This is not legal advice. Leave audio feedback at (512) 686-6329.
Issue: Should plaintiff's bear the burden of rebutting fair use in their case in chief?
I'd like to start by saying I hope any readers have had a great Thanksgiving and I'm sorry its been so long seen I posted, the holidays can be hectic, especially if you have law school finals.
I believe fair use is the most important aspect of American Copyright law because it is really meant to achieve the purpose of copyright law which is to promote the progress of science and the useful arts. Which is not to say that other aspects of copyright law do not promote science and the useful arts but fair use is an important balance to the economic incentives given to copyright holders and the right of others to communicate freely.
Doug posed an interesting thesis that rebutting fair use should be an aspect of a prima facie case for copyright infringement. I disagree mostly for procedural reasons. Lawsuits start with a plaintiff filing a complaint and then the defendant filing an answer. Then there can be a motion for a judgment on the pleading if it is clear that no real case exists. (or in some rare debt collection cases I believe a plaintiff can win on judgment on the pleadings.) Requiring plaintiffs to rebut a case for fair use in their pleading before discovery would frustrate the doctrine of fair use because fair use is a fact intensive doctrine. Judges need to have a strong grasp on all relevant facts in order to determine whether a use is fair or not. Forcing plaintiffs to allege that fair use is not possible before the plaintiffs have had an opportunity to go through discovery would result in good cases being thrown out because plaintiffs' attorney were unable to obtain all the facts through the procedural process.
As to whether the plaintiff should bear a greater burden to rebut a defense of fair use at trial is an irrelevant issue. The Doctrine of fair use is a four factor balancing test. If a defendant raises the defense in the defendant's answer, then at trial the defendant will argue for the factors they believe favor fair use and the plaintiffs argue for the factors they believe will rebut fair use. Essentially I don't think a shift in the burden would do much unless Doug is arguing to change from the balancing test to something else entirely different. I just do not see the need for change because fair use adequately balances copyright owners economic incentives with everyone's first amendment right to free speech.
Music Manumit Lawcast
Friday, December 28, 2012
Friday, December 7, 2012
Copyright: Week 3-5 - The Ravings of a Mad Man
This is not legal advice. Leave audio feedback at (512) 686-6329.
I believe it was Week 2 when Nick decided he needed to leave the Lawcast for health reasons. It I'm not sure if it was Week 5, but there abouts my grandmother died.
In the interim, Brian came on board and I worked on piecing together articles for those weeks. However, I as the semester went rolling by I never went back and got out those Week 3, 4 and 5 posts.
Below the fold I give you a rough draft of what I had going on. Some say that putting out unfinished content dilutes the brand, but I say release early and release often! Brian should be coming out with critiques of my last three articles and that will knock this off the front page. If people don't like the article it will float away into obscurity. Perhaps though, the unfinished thoughts will provoke some response. Maybe the people are really interested in what I have to say about these topics.
Either way, the people will speak, even if it is with their silence.
I believe it was Week 2 when Nick decided he needed to leave the Lawcast for health reasons. It I'm not sure if it was Week 5, but there abouts my grandmother died.
In the interim, Brian came on board and I worked on piecing together articles for those weeks. However, I as the semester went rolling by I never went back and got out those Week 3, 4 and 5 posts.
Below the fold I give you a rough draft of what I had going on. Some say that putting out unfinished content dilutes the brand, but I say release early and release often! Brian should be coming out with critiques of my last three articles and that will knock this off the front page. If people don't like the article it will float away into obscurity. Perhaps though, the unfinished thoughts will provoke some response. Maybe the people are really interested in what I have to say about these topics.
Either way, the people will speak, even if it is with their silence.
Copyright: Week 15 - Upcoming Issues
This is not legal advice. Leave audio feedback at (512) 686-6329.
Reading:
Originally, I was going to talk about preemption this week. Perhaps it is because I am a Constitutional Law junkie, but it is one of my favorite topics. However, Professor Wong removed it from our syllabus. On the plus side, many of our materials (above) are free to the public, so you don't need the book we've been using to follow along.
THESIS FOR REBUTTAL: If Google Books goes to trial, it will not be fair use.
Back in Week 12/13, I didn't have the time to do a lengthy four-factor fair use analysis...and I'm not going to do one this time either. I'll leave that to Brian, because in this case I'm not sure that the four-factors will be the driving force.
First off, let me say that I'm not sure I agree with Professor Lessig about Google Book Search being fair use. It would be great if he was correct, but just like Justice Brennan and Justice Marshall dissent in just about every Criminal Procedure case, I think Lessig is on the wrong end of this (just like he was in Eldred). I'm tempted to say I think it's fair use because there is an ounce of truth that if you repeat something enough times it becomes true. Of course, the honest way to feed that machine is to say simply that it would be good policy for Google Book Search to be fair use. That is a statement I can stand by without an ounce of hesitation. However, I'm afraid the courts are going to want more guidance from Congress before pronouncing something so controversial as fair use.
When Brian and I were discussion this in meat space, he brought up the point that the anti-trust analysis is a different analysis that the fair use analysis. Perhaps then the correct way to announce my pecessism is to say that I think that it *is* fair use but that it won't survive an anti-trust challenge.
Having not studied anti-trust law, I can't say one way or another how I really feel about the anti-trust challenge. There does, however, seem to be growing distrust of Google. In some sense, even a benevolent giant is likely to destroy a few things under its feet. I can't get past the fact that Google has had skirmishes with the law over its image search, Android and over YouTube. Google thus far has done just enough to stay on the right side of the law.
Courts are supposed to be neutral and detached, but judges are people too. Whereas a court ruling that made image search, Android or YouTube financially unfeasible would have genuinely alter the commercial fabric of America, I personally can't see a ruling against Google Books as having such dire consequences. This might be a perfect time for a court to tell Google to step away from the infringement line.
But, maybe I'm wrong. Lessig is not the only law professor that thinks Google should prevail in court and courts do have a history of protecting innovation against over-breadth of copyrights and patents (aside from the obvious misstep of not seeing sampling as innovation).
Law professors have spilled a lot of (digital) ink on the Google Books project. A cursory search of WestlawNext returns 9134 secondary sources on the topic (Google Scholar, which covers more than the law, returns over 1.3 million hits for the search "google book search," ~30k of which are from 2011 or 2012). I encourage all of our readers to read up on the topic. The outcome of a Google Books case could affect the outcome of a similar attempt to have an Alexandria of music online. How an online music library might be different than an online book library was originally going to be the topic of this post, so if that's something that interests you, let me know and I can make it the subject of my next post.
...which will be 2013!
Have a Merry Christmas* and a Happy New Year**!
*other holidays are available
** actually, other New Years are available too, which makes me wonder why no one gets in a huff when you wish them a New Year on January 1st? What about Jewish New Year? What about Chinese New Year? Anyway, for those of you in school or taking time off for whatever reason, I hope you enjoy it!
Reading:
December
6 – Review & Discussion:
Kirtsaeng
at the US Supreme Court; Google Book Search & fair use (readings
& class assignment follow below)
- Listen to the recording of the oral arguments before the US Supreme Court on October 29, 2012: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-697
(NOTE:
you may find it helpful to read along with the transcript (provided
on the same page as a PDF document) as you listen to the recording.)
- Read pp. 364-366 (top) of the SUPPLEMENT to your Casebook.
- Watch the following 30-minute video featuring a talk by Professor Lawrence Lessig of Harvard Law School, on whether Google Book Search is fair use or not: http://video.google.com/videoplay?docid=-7256091247456149593&q=lawrence+lessig
Originally, I was going to talk about preemption this week. Perhaps it is because I am a Constitutional Law junkie, but it is one of my favorite topics. However, Professor Wong removed it from our syllabus. On the plus side, many of our materials (above) are free to the public, so you don't need the book we've been using to follow along.
THESIS FOR REBUTTAL: If Google Books goes to trial, it will not be fair use.
Back in Week 12/13, I didn't have the time to do a lengthy four-factor fair use analysis...and I'm not going to do one this time either. I'll leave that to Brian, because in this case I'm not sure that the four-factors will be the driving force.
First off, let me say that I'm not sure I agree with Professor Lessig about Google Book Search being fair use. It would be great if he was correct, but just like Justice Brennan and Justice Marshall dissent in just about every Criminal Procedure case, I think Lessig is on the wrong end of this (just like he was in Eldred). I'm tempted to say I think it's fair use because there is an ounce of truth that if you repeat something enough times it becomes true. Of course, the honest way to feed that machine is to say simply that it would be good policy for Google Book Search to be fair use. That is a statement I can stand by without an ounce of hesitation. However, I'm afraid the courts are going to want more guidance from Congress before pronouncing something so controversial as fair use.
When Brian and I were discussion this in meat space, he brought up the point that the anti-trust analysis is a different analysis that the fair use analysis. Perhaps then the correct way to announce my pecessism is to say that I think that it *is* fair use but that it won't survive an anti-trust challenge.
Having not studied anti-trust law, I can't say one way or another how I really feel about the anti-trust challenge. There does, however, seem to be growing distrust of Google. In some sense, even a benevolent giant is likely to destroy a few things under its feet. I can't get past the fact that Google has had skirmishes with the law over its image search, Android and over YouTube. Google thus far has done just enough to stay on the right side of the law.
Courts are supposed to be neutral and detached, but judges are people too. Whereas a court ruling that made image search, Android or YouTube financially unfeasible would have genuinely alter the commercial fabric of America, I personally can't see a ruling against Google Books as having such dire consequences. This might be a perfect time for a court to tell Google to step away from the infringement line.
But, maybe I'm wrong. Lessig is not the only law professor that thinks Google should prevail in court and courts do have a history of protecting innovation against over-breadth of copyrights and patents (aside from the obvious misstep of not seeing sampling as innovation).
Law professors have spilled a lot of (digital) ink on the Google Books project. A cursory search of WestlawNext returns 9134 secondary sources on the topic (Google Scholar, which covers more than the law, returns over 1.3 million hits for the search "google book search," ~30k of which are from 2011 or 2012). I encourage all of our readers to read up on the topic. The outcome of a Google Books case could affect the outcome of a similar attempt to have an Alexandria of music online. How an online music library might be different than an online book library was originally going to be the topic of this post, so if that's something that interests you, let me know and I can make it the subject of my next post.
...which will be 2013!
Have a Merry Christmas* and a Happy New Year**!
*other holidays are available
** actually, other New Years are available too, which makes me wonder why no one gets in a huff when you wish them a New Year on January 1st? What about Jewish New Year? What about Chinese New Year? Anyway, for those of you in school or taking time off for whatever reason, I hope you enjoy it!
Friday, November 30, 2012
Copyright: Week 14 - DRM and DMCA
This is not legal advice. Leave audio feedback at (512) 686-6329.
Original Reading Schedule:
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:
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!
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)
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:
- contracts is an entire course (two courses if you include Sales) and thus covering the topic in a single post is a crazy proposition.
- 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 HaberGiant 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)
Thursday, November 29, 2012
Copyright: Week 12 & 13 - Be Thankful for Fair Use!
This is not legal advice. Leave audio feedback at (512) 686-6329.
Reading:
Reading:
November
13 – Fair Use I (Casebook
pp. 529-554)
November
15 – Fair Use II (Casebook
pp. 565-575;
576-579)
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.
I'd be remiss if I didn't mention the interplay between the First Amendment and 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.
talk from founder of The Fair Use Project
In fact, Stanford has made a Copyright and Fair Use playlist
Kenneth Crews on Fair Use, Creative Commons and More
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 UseLife 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
Monday, November 19, 2012
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.
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.
Monday, November 12, 2012
Copyright: Week 11 - Different Faces of Infringement
This is not legal advice. Leave audio feedback at (512) 686-6329.
Reading:
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):
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:
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.
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!
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)
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.
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:
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.(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;(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:
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.(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).
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
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