Copyright: Week 14 - DRM and DMCA

This is not legal advice. Leave audio feedback at (512) 686-6329.

Original Reading Schedule: 

November 27 – Copyright & Contract (Casebook pp. 605-608; 614-620; 629-639)

November 29 – Technological Protections for Copyrighted Works (Casebook pp. 657-670; 680-690)

Our schedule got messed up a bit because Professor Wong got sick, but I sticking to my topic for the week: DRM and the DMCA. Brian's critique might not come until after our class next Tuesday. This is, of course, coming out before the article on fair use and that is in part because fair use is such a huge topic and in part because of Thanksgiving.

I also want to address briefly why I am covering the DMCA again instead of the seemingly more pertinent issue of Creative Commons and contracts. The reason I am not tackling the contract issue is mainly twofold:

1. contracts is an entire course (two courses if you include Sales) and thus covering the topic in a single post is a crazy proposition.
2. I am taking Copyright Licensing next semester and can bring you better coverage once that has taken place.

That said, "An effective understanding of copyight law...requires an appreciation of the many dimensions of the intersection of copyright and contract" (Page 605). There are plenty of places to learn about contracts, but I don't spend much time collecting resources in the resources section. As always, if you want more resources, just let Brian and I know and we'll see what we can do!

THESIS FOR REBUTTAL: Technical interoperability should be a goal of copyright. DRM frustrates this.

Just to expand on this, I mean interoperability of file types as well, not just software interoperability. The courts have done a reasonable job of not allowing copyright (and the DMCA in particular) to get in the way of software interoperability. See Chamberlain v Skylink and Lexmark v Static Control Components. However, once that interoperability goes to entertainment, it somehow goes out the window. See Universal v. Reimerdes.

Based on this, you might expect me to say that DRM should be illegal. In fact, that was my first thesis for rebuttal. However, I had a hard time distinguishing DRM from general security measures since essentially all electronic communications are copyrighted (there's an argument that many tweets lack sufficient originality, but that's really here nor there at the moment). I'd hate to propose that individuals couldn't encrypt emails. I'm generally against secrecy of any kind, but getting rid of secrecy would get rid of whistleblowers and a lot of journalism. Now, what might say that if everything was in the open we wouldn't need whistleblowers, but just because something is not encrypted doesn't mean it's not secret. Imagine "company men" beating union workers behind closed doors. There might not be any encryption, but they are still trying to keep it a secret. Anybody that is telling a journalist about the beatings is likely going to want to keep their identity a secret. I'm obviously not the first one to come across this information freedom versus privacy dilemma, but I do think it is worth mentioning in the DRM discussion, because we have some serious line-drawing problems.

Where I would draw the line is to say that DRM was legal, but I'd allow circumvention for interoperability. That is to say, the Linux argument should have held the day for Reimerdes. This is not necessarily to say that I disagree with S.D.N.Y. as the DMCA is written and as case law holds. Eldred was after Reimerdes, so the First Amendment argument could have held more sway in Reimerdes, but Eldred suggests that had Reimerdes made it to SCOTUS they would have been deferential to Congress. It is hard to fault a district court for not wanting to be overturned.
 

That said, the current law around §12xx of the Copyright active (the anti-circumvention provisions of the DMCA) is slightly bizarre and who knows if Reimerdes would come out the same today. My gut says that Reimerdes falls into the Grokster "bad faith" type of case, but it's a bit different since one was copyright infringement and Reimerdes was purely a DMCA action.

Both the Federal Circuit and the 6th Circuit say that the DMCA doesn't prevent fair use. If that's the case, why does the Copyright Office need to issue exceptions? The Copyright Office exceptions clearly lead to bizarre results like you can jailbreak a phone, but not a tablet.

It is worth looking at the interoperability issue a little more closely. Windows and Apple users probably don't see this issue come up often, but having worked in IT since 2002 until starting law school, I've seen the issue arise on all platforms. On Windows, the first this that always comes up for me is Ardour, which is audio software available for Mac and GNU/Linux. Now, Ardour is free software, so if someone wanted to make a Windows version someone could.

While we try to keep things as tied to music here as reasonable, let me pause for a moment to lament that not all software is free software* and due to this GNU/Linux users cannot access Netflix and iTunes (which is particularly irritating due to iTunesU), but then I have to overcome any DRM issues. No thanks. While it's entirely possible me reverse engineering the Netflix DRM would be fair use, no one can tell me how to do the reverse engineering, because that would be "trafficking". While I personally would love to spend my time reverse engineering DRM, if I did it, I couldn't then share that information with the world. 


So, do I stand by my assertion that the DMCA as a whole does more good than harm? Yes. The fact of the matter is that under current law, patents often do much of the hindering of interoperability because there is no fair use in patent law. Even if we got rid of Copyright completely, there might still be issues with bringing Netflix and iTunes to GNU/Linux. I don't personally know what the Netflix/iTunes patent landscape looks like, but I'm suspicious. I'm suspicious because of things like the patents on the mp3 format and Apple's patent on podcasting. As Brian pointed out before, the DMCA has some serious issues, but let's not throw the baby out with the bathwater!

*There are a lot of issues about free software and DRM that unfortunately there is not time this semester to cover. I've changed up my schedule a bit and next semester I'll be taking Advanced Topics in IP: Current Issues in International IP, so perhaps we'll cover DRM issues in more depth in that class. Here seems as good a place as any to mention that I'll also be taking Personal Income Tax, Cybercrime, Trademarks and Deceptive Practices and Copyright Licensing. I had previously said I'd be writing about Copyright Licensing, but since "Current Issues in International IP" covers, well, current issues, it might be a more interesting topic. Maybe I'll mix it up a bit. Let me know if you have a preference!
 

RESOURCES

DRM with Frederick Haber
Giant Robots, Circumvention, and the DMCA with Christin Hicks
Jailbreaking now legal under DMCA for smartphones, but not tablets
Jailbreaking is not a Crime. (well, actually, it is in some cases)

Copyright: Week 12 & 13 - Be Thankful for Fair Use!

This is not legal advice. Leave audio feedback at (512) 686-6329.

Reading:

November 13 – Fair Use I (Casebook pp. 529-554)

November 15 – Fair Use II (Casebook pp. 565-575; 576-579)

You'll have to forgive me if this post is a little shorter and a little less full of links than usual (obviously, it is a little later than usual as well). For whatever reason, my laptop would not connect to the wireless at BWI in Baltimore. It's not a payment thing (though I wouldn't have paid). No, in this case, the laptop just wouldn't connect. More accurately, after a reboot, I just gave up and figured I'd start writing about fair use. Of course, much of this I wrote both before and after Thanksgiving, so it's not complete bereft of links!

ISSUE FOR REBUTTAL/CRITIQUE: Negating a fair use claim should be an aspect of the prima facie case for infringement.



Still with me? There's a great discussion of the affirmative defenses  on William Patry's blog for anyone that I lost. Essentially, the way the system works now, a kid that does a YouTube remix of a Britney Spears song must have have his lawyer do a lot of fair use research (which of course means money). I think it would be better if Britney Spears (or more accurately, her label) was the one that had to pay for the analysis as part of their case in chief.



The flip side is that this means that independent artists would also bear this burden. Let's assume for the sake of example that Ford Motors decides to use Lorenzo's Music's "Downtown" for an ad campaign about how their purported fuel efficient cars will get you from the country to "downtown" for less miles. Let's further assume that they do not attribute Lorenzo's Music or release their commercial under the CC BY-SA. In this case, it would be Lorenzo's Music that would need to make the prima facie showing.
Thus, changing fair use to be a part of the plaintiff's case could embolden corporations to attempt to take advantage of musicians. That seems ridiculously farfetched to me. Any company that didn't have lawyers close enough to their marketing department before certainly got them there after the Virgin fiasco.
Plus, the Ford hypothetical above is not a particularly hard case (though I should point out this is *just* a hypothetical. In real life there could be facts that suggest otherwise. See a lawyer!). While commercial nature of the fair use analysis is not dispositive, here Ford doesn't have much of a case. However, think of a closer case, like Pete's story of news organizations using his picture. "News reporting" is listed in the preamble to the four factors. Remember that attribution is not a right given by 106, so Pete is going to be talking about the reproduction and distribution rights. How can one use a picture of someone in a news article without, well, using a picture of someone? So, in this case, now Pete is the one that has to prove that the use by the news organization is not fair use. 

Ultimately though, how often do independent musicians really want to enforce the full terms of their license? Many Creative Commons musicians allow users to post music to YouTube despite the fact that YouTube only offers one Creative Commons license - Attribution (BY). Again, though Pete was using CC BY-NC-SA for his picture, all he really wanted was attribution. And, even under the current system, how many independent artists are taking potential infringers to court? Pete certainly didn't, despite the burden of proof being on his side. Since the burden of proof for fair use doesn't currently seem to do much of anything but stiffle creativity of independent projects, I think flipping the burden of proof would, at the very least, be a good experiment.If it turns out it harms artists, we can always change it back. Fear has already done a lot of damage to creative works. We shouldn't let even more fear stop us from attempting to rectify the situation.

Other Odds and Ends Worth Mentioning

For any Canadians or others from Commonwealth nations, fair use is a little different than fair dealing. Back in August, Nick and I discussed some of these differences with Kent Mewhort of CC Canada.

I'd be remiss if I didn't mention the interplay between the First Amendment and fair use. 

RESOURCES

Wikipedia on Fair Use 
Life of a Law Student has four different episodes on fair use 
Suffolk on Fair Use

Freedom to Teach: Claiming Educational Fair Use
Is there a fair use argument for lyrics websites? I guess not.
Rip. Mix. Make. Defend the Right to Remix.

Resources from Standard

Stanford Center for Internet and Society on Fair Use (with amazingly detailed show notes)
talk from founder of The Fair Use Project
In fact, Stanford has made a Copyright and Fair Use playlist

Resources from Berkman Center at Harvard

Professor Mary Wong speaks about "the commons". (sadly no audio files, only video)

Kenneth Crews on Fair Use, Creative Commons and More

DMCA Safe Harbor and chilling effects on free speech

This is not legal advice. Leave audio feedback at (512) 686-6329.
Expected Audience: Anyone who uses the internet


The DMCA does do a lot of good. It allows websites like Youtube to exist without having to pay damages for contributory infringement. However, Doug does not emphasize the problems with the DMCA. The DMCA would work extremely well if everyone who posts content on the internet is familiar with U.S. Copyright law in general and the doctrine of fair use in particular. However, because internet users are not familiar with the fair use doctrine the DMCA has a chilling effect on free speech. Many users who post acceptable fair use material do not respond to take down notices because they either do not realize their posts were acceptable or do not care enough about the matter to respond.

Youtube is an interesting example of how the DMCA can work to protect the third parties that might accidentally infringe copyrights. As a new video sharing site on the internet, Youtube quickly became popular for watching and sharing unauthorized copyrighted videos. In 2008, Youtube stepped up policing of its site for copyrighted videos and became fully compliant with the DMCA's safe harbor provision. An interesting part of Viacom v. Youtube, is the remedy that Viacom was seeking from Youtube. The most common remedy for copyright infringement is an injuction.. Court's do not favor allowing infringing works to be distributed to allow plaintiffs to recover greater monetary damages. In Viacom, Viacom did not ask for an injunction against Youtube but instead sought damages for infringing materials that Youtube hosted prior to when it became eligible for the DMCA safe harbor. In fact an injunction against Youtube would probably not have been against Viacom's interest as Youtube has become a way for media companies to advertise and promote material over the internet.

Grooveshark, which I discussed in my last post, was an attempt at utilizing the DMCA to create a Youtube like site for sharing music. One of the main problems with the idea was that in 2006 when Grooveshark was founded Youtube, the site Grooveshark modeled itself after, was not compliant with the DMCA's safe harbor provision. I have doubts about whether the Youtube model can really work for a high profile website for music sharing. Most of the music people want to listen to are by popular artists who have assigned copyright to record companies. Time will tell if Grooveshark will find a way to exist without being sued by every major label.

I hope everyone has a happy Thanksgiving.

 

Copyright: Week 11 - Different Faces of Infringement

This is not legal advice. Leave audio feedback at (512) 686-6329.

Reading:

November 6 – Moral Rights (Casebook pp. 392-411; see also Supplement pp 357-360)

November 8 – The Different Faces of Infringement: Direct, Contributory & Vicarious Liability (Casebook pp. 469-489)

November 8 – Liability of Online Service Providers (Casebook pp. 489-513)

Another three-class-week this week.

It is often said that the US does not have moral rights, and this is true in the sense that we do not have a European conception of author's rights. Tom and I spoke about moral rights with Manuel a little over year ago. With the pointer to the discussion with Manuel, I move on to the DMCA.

The DMCA is kinda a big deal. It added 17 U.S.C. §§ 512, 1201–1205, 1301–1332 and 28 U.S.C. § 4001. It also amended 17 U.S.C. §§ 101, 104, 104A, 108, 112, 114, 117, 701.

Unfortunately, as our textbook reads on page 503, "because the legislation resulted from bargaining between interest groups, it is quite complex". Thus, this article will only be able to focus primarily on §512 of the Copyright Act.

THESIS FOR REBUTTAL/CRITIQUE: The DMCA does more good than harm. 

Now, it's possible I'm getting ahead of myself because it's not until Week 14 that we get to DRM, an important part of the DMCA. I actually plan on coming back to the DMCA at the expense of contract law in Week 14, so if you are sick of hearing about the DMCA after reading this, please let me know! Our book spends 19 pages on the DRM parts of the DMCA but only ~2 pages on the part that seems most important to me. Perhaps this is because in music DRM has mostly gone away. Maybe it's because I've more-or-less taken a vow of celibacy against commercial music. Maybe I'll change my mind after Week 14.


§512 itself is nine pages long in our statute book and has sub-sections (a) through (n). A complete overview of the statute and the relevant case law would require more than a single post. Luckily, Brian will be doing a follow-up post! Anyway, to get us started, here are the titles of the sub-sections.

a) Transitory Digital Network Communications
b) System Caching
c) Information Residing on Systems or Networks at Direction of Users
d) Information Location Tools
e) Limitation on Liability of Nonprofit Educational Institutions
f) Misrepresentations
g) Replacement of Removed or Disabled Material and Limitation on Other Liability
h) Subpoena To Identify Infringer
i) Conditions for Eligibility
j) Injunctions
k) Definitions
l) Other Defenses Not Affected
m) Protection of Privacy
n) Construction  


The definitions section only has two definitions and is probably worth reproducing here (additionally, there's a defintion of "standard technical measures" in sub-section (i) for some reason): 

(k) Definitions.—

(1) Service provider.—

(A) As used in subsection (a), the term “service provider” means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.

(B) As used in this section, other than subsection (a), the term “service provider” means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).

(2) Monetary relief.— As used in this section, the term “monetary relief” means damages, costs, attorneys’ fees, and any other form of monetary payment.

The section most relevant for my thesis that the DMCA does more good than harm is §512(c), so that's where I'll spend the bulk of my discussion. It's worth noting that Viacom v YouTube had the potential to eviscerate the protections of §512(c) and thus was a very important ruling. While some have claimed the case was a victory for Viacom, in the long run it was not. Viacom may end up getting damages on remand (if they don't settle) but the protections of §512(c) remain. 

While YouTube (via Google) could probably afford to do more policing of its site, sites such as Jamendo and Free Music Archive could not (we'll leave aside the jurisdictional issues with Jamendo being based in Europe). Free Music Archive is a 501(c)(3) non-profit and while non-profits can have sizable budgets, let's get serious about our comparison to Google. Of course, the volume on FMA is not the same as YouTube either, but with 9885 current artists and 53826 tracks, they are no slouch. Those numbers are no comparison to Jamendo's numbers, but the FMA is curated, unlike Jamendo. When Music Manumit became an FMA curator, we had to sign (actually sign, not a click-through) forms saying we wouldn't upload content we were not authorized to upload. One might think that this would absolve FMA of liability, but without 512(c) that's unlikely. To understand why that's unlikely you need to understand contributory and vicarious liability, subjects I don't have time to cover this week and require knowledge of tort law for complete understanding.

And even if Google could afford to do more policing, is that really want as a society? Sure, that's a job Google could pay someone to do, but what is that job giving society? It would be better if Google was able to spend that money bringing better services or not getting rid of services, as it often does.

And if you don't like Google, think again of the FMA. I'd like someone at FMA to work full-time on curator projects. That seems a much better thing to do for them than to hire a copyright enforcer. I can think of plenty of other projects that the FMA could do, but this is not a brainstorming session for the FMA. The point is merely that while there is a job creation possibility for the MAFIAA to have their way, not all jobs are created equally, either for the individual or for society.

While sub-section (c) is long, it is probably worth reproducing here in full: 

(1) In general.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—

(A)

(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

(2) Designated agent.— The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:

(A) the name, address, phone number, and electronic mail address of the agent.

(B) other contact information which the Register of Copyrights may deem appropriate.

The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, and may require payment of a fee by service providers to cover the costs of maintaining the directory.

(3) Elements of notification.—

(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(B)

(i) Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent.

(ii) In a case in which the notification that is provided to the service provider’s designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).

Some have claimed that the take down provisions chill speech. While there is undoubtedly some truth to that, Flickr, YouTube and competitors such as Vimeo and MediaGoblin simply would not exist without the DMCA. Talk about chilling speech! Chilling speech is bad and I am not arguing the DMCA is perfect. Clearly, whatever promotion of science and the useful arts copyright gave in 1789, in the Internet Age, copyright itself chills some speech. As far as music is concerned, we are at a point where pop/rock music can be recorded with minimal financial investment. However, once you have an orchestra, paying performers can get expensive quickly. Without copyright, people are still going to pay to go to live performances. We are social creatures.

While certain types of music will for the foreseeable future be able to rely on live performance for income, that is not true for all types of art. Major Hollywood movies simply would not exist without copyright, or at least not in current form. Actor/actress wages are ridiculous and maybe with that calmed, budgets could shrink, but the truth of the matter is that it takes an enormous amount of people to bring anything but the smallest production to market.

The DMCA, like all of copyright, is a bargain. The Internet and widespread technology have changed the relevative positions of those at the bargaining table. The SOPA/PIPA debates last year certainly showed that to anyone that hadn't already figured it out. As long as courts interpret §512(c) in a reasonable way, the bargain on the whole is good for society.

Lawcast News and Notes

I'm not sure if I mentioned this in an earlier post, but I had been planning on taking "Music Law" next semester. Due to a variety of reasons, I don't think I'm going to be doing that. I plan  to bring my thoughts from my "Copyright Licensing" course. 

Additionally, I'd like to thank Jon Livingston for all the help he's given Music Manumit over the past month or so. 

Lastly, for those of you that heard our sister site, OpenSourcePlayground.org was going away, you can dry your tears. We have a new writer for the site, so we will be staying alive over there for at least a little bit longer!

Resources

DMCA in the news.
DMCA on This Week in Law.
What about Moral Rights or Economic Rights in Orphaned Works?
Stanford on ISP as Copyright Cop
The Five Exclusive Rights and Moral Rights from Life of a Law Student (I realize I've linked to this episode for each of the posts on infringement, but it continues to be a valuable resource)
Sacked by Copyright: DMCA Takedowns and Free Expression with Wendy Seltzer
Viacom v YouTube on Wikipedia (I can't find a date for the remand or any information about a potential settlement)
EFF's take on Viacom v Google (as they call it)

Textbook Publisher Pearson Takes Down 1.5 Million Teacher And Student Blogs With A Single DMCA Notice