Copyright Law — FALL 2008

The Free and Open Source Software (FOSS) movement believes that the public is best served if it has the ability to access, modify, and redistribute the source code of the software it uses.  Source code, as distinguished from object code, is human readable and used by computer programmers to actually write software.  In contrast, object code, which comes about after having been compiled from source code, can only be read by computers.  The rational for the FOSS movement’s belief that the public should have access to source code and the ability to modify and redistribute it is that the collaboration multiple users will result in a more effective revision process of software and therefore an overall better product.

The motivation for this belief can be further distinguished within the FOSS movement between two camps.  On the one hand, there is the Open Source Initiative (OSI) which champions Open Source Software (OSS).  On the other, there is the Free Software Foundation (FSF) which champions Free Software (FS).  The FSF is driven by normative beliefs and asserts that the public has a moral right to be able to access, modify and redistribute software.  See GNU Project – Free Software Foundation (FSF), Overview of the GNU System, http://www.gnu.org/gnu/gnu-history.html.  In contrast the OSI seeks to make FOSS more palatable to the business community and therefore stresses the economic benefits of using OSS.  See Raymond T. Nimmer, Legal Issues in Open Source and Free Software Distribution, in Critical Issues in Today’s Corporate Environment 7, 17 (Practicing L. Inst. 2006).  Therefore these two groups have developed, encouraged the development of, and approved a number of licensing agreements that grants the licensees the ability to copy the software, make derivative works, and distribute these derivative works.  Of all the FOSS licensing agreements the FSF’s GNU General Public License version 2.0 (GPL) is the most popular.  See Douglas D. McGhee, Free and Open Source Software Licenses: Benefits Risks and Steps Toward Ensuring Compliance, 11 Intell. Prop. & Tech. L. J. 5, 5 (2007).  The GPL uses theconcept of “copyleft” to maintain the free (as in freedom) access to software licensed under it.  Effectively, copylefted software requires, as a condition of the license to distribute any derivative works created, that the user grant all downstream users the same rights they were.  See GNU Project – Free Software Foundation (FSF), What is Copyleft? http://www.gnu.org/copyleft/copyleft.html.   Thus, the GPL seeks to prevent the software it covers from being transformed into proprietary software; i.e. software who’s copyright holder only grants license to copy and use the object code.

On June 29, 2007 the FSF released the GPL version 3.0 (GPLv3).  One of the reasons for updating the GPL was the FSF’s perception that the Digital Copyright Millennium Act (DCMA) threatened the viability of the FOSS movement.  See Clark D. Asay, The General Public License Version 3.0: Making or Breaking the FOSS Movement?, 14 Mich. Telecomm. & Tech. L. Rev. 265, 276 (2008).  The DCMA, effectively grants copyright holders protection of their digital rights management (DRM) technology.  See 17 U.S.C. § 1201.  DRM can be thought of as a key which limits access to a copyrighted digital work such as software.  Without the key the software cannot be accessed, or it might not operate properly.  Fearing that users might hack their DRMs and thus cause escalations in the technologies that needed to be used digital copyright holders sought aid from Congress which answered in the form of the DCMA.  § 1201(a) prohibits the circumvention of technologies that limit access to a digital work, effectively making it illegal to attempt to overcome DRM technologies.

This provision is of great concern to the FSF, especially in light of the practice it calls “Tivoization.”  The term Tivoization was coined after TiVo, the maker of the TiVo digital video recorder, utilized software licensed under the GPL in conjunction with DRM technology.  If the source code was modified then the DRM technology would not recognize it and the TiVo DVR would not operate properly.  See Asay at 276.  Tivoization has been decried by Richard Stallman, the founder of the FSF and FS movement, as “treacherous computing” and a restriction on a user’s freedom which has no legitimate purpose.  Id.  As a result of this development, the FSF has inserted an anti-DRM provision in the GPLv3.

GPLv3 § 3 “Protecting Users’ Legal Rights From Anti-Circumvention Law” provides that no work covered by the GPLv3 may utilize DRM.  If a GPLv3 work is conveyed by a user, that user waives their right to forbid circumvention of DRM technologies.  Thus the GPLv3 seeks to overcome the DCMA.  See GNU Project – Free Software Foundation (FSF), The GNU General Public License, http://www.gnu.org/licenses/gpl.html.

This provision is viewed as controversial, even within the FOSS movement.  See Asay at 277.  The OSI and many in the FOSS movement, including the creator of the Linux kernel Linus Torvald, have been critical of this provision.  Id.   In their view, hardware manufactures should be able to limit what types of software, even those licensed under the GPL, that can be used on their products as that version may be the only one they have tested and proven to work.  Id. at 277-78.  Furthermore, there is concern that such provisions as contained in GPLv3 § 3 unduly extend the reach of copyright law to cover technologies not normally covered by it.  Id. at 278.  Finally, the OSS movement may be concerned about the public relations disaster such anti-DRM provisions may create.  Id. at 279-80.  As mentioned previously the OSI seeks to encourage businesses to use FOSS.  Such businesses may be less inclined to do so if they perceive FOSS license agreements as limiting their ability to take advantage of § 1201.

But is the GPLv3’s anti-DRM provision truly necessary?  I argue that it is not in light of the Federal Circuit’s ruling in Chamberlain v. Skylink, 381 F.3d 1178 (2004).  The Chamberlain court feared that an expansive use of § 1201(a) preventing all circumvention would effectively create two regimes.  The first regime would involve copyright holders who feared that their rights under § 106, subject to the limitations under the Copyright Act, would be placed in danger due to the technologies used.  See Chamberlain 381 F.3d at 1199-1200.  These copyright holders would thus use DRM technology to protect against potential infringers.  In contrast, the second regime would allow copyright holders to rely on § 1201(a) to limit the public’s access to uses of a copyrighted work that it would normally be allowed to use.  See Chamberlain 381 F.3d at 1200. Citing § 1201(c)(1), the court noted that § 1201 was not to “affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title,” and therefore the second regime was unacceptable.  Chamberlain 381 F.3d at 1200.  Effectively, the court said in Chamberlain that if you don’t have a right to exclude you can’t utilize § 1201 to limit access to the work.

Now let us apply this holding to the GPL.  The GPL requires that a user who wishes to redistribute any derivative works they may have created grant the same license to all down stream users that they received.  The user has therefore, in effect, waived his right to exclude downstream users from copying, making derivative works, or redistributing those works.  The Chamberlain court made the distinction between those who access the copyrighted work for a legitimate purpose and those that do not.  381 F.3d at 1198.  It stands to reason under Chamberlain, that because the public has a right to do these things the user cannot deny access to the work, by means of DRM, and if they do they cannot sue for a violation of § 1201(a) if the downstream user seeks to circumvent the DRM measures.

One of Stallman’s primary concerns was that the use of DRM would limit access to GPL covered software and thus make the GPL a farce.  See Asay at 277.  However, Chamberlain suggests that this is not the case.  Therefore, it is unclear that GPLv3 § 3 is necessary, and could potentially prove to be a public relations disaster for the GPLv3.

“09 f9 11 02 9d 74 e3 5b d8 41 56 c5 63 56 88 c0” is the 128-bit hexadecimal key for unlocking HD-DVDs. It became infamous around May of 2007 when the code was posted on Digg.com, a news site. Digg received requests from the AACS to remove all articles referring to the code since they claimed it violated the DMCA. Digg complied, but in a move the would make 2600: A Hacker Quarterly proud, the users revolted by posting countless articles about the code. They posted the articles faster than Digg could remove them, and finally Digg caved and stopped deleting the articles (http://blog.digg.com/?p=74).

The AACS LA went beyond trying to stop Digg from posting the code, they even tried to get search engines like Google to stop linking to the key. A Google search currently brings up 432,000 pages with “09 f9 11 02 9d 74 e3 5b d8 41 56 c5 63 56 88 c0”.

This is of course strongly reminds us of DeCSS, but is it really the same? DeCSS is software that can be used to bypass the CSS used on DVD’s. But here, we simply have a hexadecimal code without the code being implemented into software. Despite the AACS LA claims, this appears to be more related to Sega Enterprises, Ltd. V. Accolade, Inc. than DeCSS except for the mass distribution of the code.

1201(a)(2)

(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

While DeCSS is considered “technology” within the meaning of the statute, a single hex key is more difficult to call “technology”.

1 – CSS Effectively Controls Access to Copyrighted Works

In DeCSS the CSS “effectively controls access” for DVDs, and likewise AACS performs the same access control for HD-DVD’s.  They state that the CSS keys cannot lawfully be gotten except by entering into a license. Here it might not be so clear, because all the person did was watch changes in the memory during startup of the movie.  Nothing was “hacked, cracked or even reverse engineered”.

2. DeCSS Was Designed Primarily to Circumvent CSS

While DeCSS was designed primarily to circumvent CSS, that does not appear to be a valid argument here. There is no software here as there was in DeCSS, it is just a key. The purpose isn’t to circumvent, since it is the main key used by the HD-DVD players. If there was software using the key to circumvent it might be different, but the key alone does not seem to be enough to be considered circumvention.

C.  Linking to Sites Offering DeCSS

In DeCSS they were linking to pages where the software could be downloaded. But here it isn’t software that needs to be hosted, just a single key that can be typed in any website. A Google search brings up 432,000 pages with “09 f9 11 02 9d 74 e3 5b d8 41 56 c5 63 56 88 c0”. According to the AACS LA all of those pages are in violation of the DMCA even though they aren’t linking to any code or software.

III. The First Amendment

Here there may be a better argument for First Amendment rights. The key is not a large piece of computer code that may or may not fall under the First Amendment, it is a single key that can easily be posted on any website by anyway. Many of the news articles the AACS LA wanted removed from Digg were simply users who had no understanding of how to use the key posting the key in the comments, or posting it in images.

I could find no evidence that the AACS LA actually followed through with its DMCA threats against sites that contained the key.

Perfect 10 has the exclusive right to distribute copies of their work under 17 U.S.C. § 106(3). Third parties referred to as “Stolen Content Websites” have unlawfully copied their work and sell them to the public. Perfect 10 spent great amounts of time, money and effort to produce these images, while the infringer merely has to copy and resell. Perfect 10 is unable to enforce their rights against the direct infringer, because the infringing websites maintain no physical presence in the United States and are therefore able to evade any civil or criminal liability. The only viable solution is to pursue the credit card companies under a theory of secondary liability.

Perfect 10 operates a subscription website and publishes a magazine that pays homage to the all-natural woman in a society that has become obsessed with breast augmentation. The founder, Norm Zada wanted to create an all-natural magazine and website that does not feature women with implants. (Interview with Norm Zada, http://news.zdnet.co.uk/internet/0, 1000000097,39255863-1,00.htm) According to Perfect 10, their magazine and website “feature[s] tasteful copyrighted images of the world’s most beautiful natural models.” Perfect 10’s Opening Brief at 1.

The fundamental test for contributory infringement has also been applied in Perfect 10 v. Visa Int’l Service Assn. In order to be held liable for contributory infringement, a party must (1) have knowledge of a third party’s infringement and (2) either (a) materially contributes to or (b) induces that infringement. Id. The court never had to decide on whether Visa had knowledge of infringement because they held that there were not facts stated sufficient for a claim of material contribution.

The majority tries to differentiate Amazon from Visa because there is an extra step in the causal chain ultimately resulting in no material contribution. The majority states that the credit card companies do not provide a service, but they make infringement more profitable, and people are more likely inclined to engage in an activity when it is more profitable. The difference between search engines and payment systems is that payment systems make it easier for infringement to be profitable.

The majority does not sufficiently delineate Amazon from Visa because they both ultimately result in aiding the direct infringers. It is incredulous that the court finds that the addition of “making it easier for infringement to be profitable” is drastically different from Amazon. Google simply makes it easy to locate infringing images and Visa makes it easy to pay for infringing images. There is little difference between the two. The end result in both cases is the distribution of the image.

It appears the majority in Visa has added a new criterion in determining material contribution. The dissent points out that if there are “other viable … mechanisms” that would allow infringement to continue on a large scale, without the aid of the alleged contributory infringer, then there is no material contribution. The majority in Visa has acknowledged that the payment systems make it easier to infringe, which thereby have the effect of increasing infringement, but they hypothesize that there might be other viable funding mechanisms.

The court has erred in the application and the assertion of this test. First, there is no basis or support for stating that if there were other viable mechanisms that would allow infringement to continue on a large scale then there would be no material contribution. This is directly counter to the holding in Amazon that held Google could be liable for contributory liable if it “substantially assists” in the process of distributing the infringing material. Had this been the standard in Amazon, then there would have been no need for Google to assert the defense of fair use. The dissent in Visa pointed out a multitude of alternatives by which a third party could locate and distribute infringing images, including other search engines, search engines not under the jurisdiction of the United States, and P2P networks just to name a few. This criterion would have also changed the outcome of Grokster. Despite the shut-down of Grokster, infringement is still runs rampant and continues on a large scale.

Second, the court also erred in saying that infringement would continue on a large scale without the aid of credit card payment systems. The importance of credit cards are underestimated and too readily dismissed by the majority in Visa. In Amazon, Google simply made it fast and easy to locate and distribute infringing images. Similarly, making a credit card payment to purchase a pirated image makes the transaction quick and easy. Otherwise, the alternative is check, money order, electronic-fund-transfer services, cash-transfer agents, and electronic-check-processing services. Who wants to give a check, money order or bank account number to a business based in another country with no guarantee of receiving the product you have purchased? Otherwise, payment can be made to websites through electronic-wallet companies, such as Click2Pay, Neteller PLC and ePassporte. This would likely deter all but the most ardent of infringers.

In Amazon, we learned that a party infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit the infringing activity. The majority in Visa asserted that the fear of losing credit card privileges does not give them the ability to control the infringer. They state that even if users were unable to pay, they cannot stop websites from reproducing, altering or distributing images. Again, the majority places to little importance on credit card payment systems. The majority in Visa tries to distinguish Napster from the defendant. They asserted that Visa did not have the same tools as Napster did to take away the ability to reproduce, alter and distribute infringing content. It is blatantly false to say that payment does not prevent the distribution of the infringing content. Only after payment is made, is the content available for distribution.

Obviously, Perfect 10 is not the most attractive plaintiff.  The court may have been reluctant to hear the case because Perfect 10 is simply a peddler of pornography, even if they display “tasteful” images by their own admission. Arguably, the court did choose to hear Perfect 10’s suit in Amazon and even found infringement (but it was held to be fair use despite the commercial nature).

The more plausible reason is that if the court were to hear the case, they would be afraid that it would open the floodgates for an onslaught of litigation to entities that are remotely involved in offering services to infringers. If payment systems are going to be implicated, why stop there? Banks are the entities ultimately responsible for financing the transaction. Without the aid of an Internet Service Provider, the end-user wouldn’t be able to access the website. Hardware and software give you the ability to get online. There are a myriad of ways that an entity could conceivably be secondarily liable, but the court should be able to distinguish when the relationship becomes too tenuous or remote.

Changes in technological innovation have made it easier to infringe copyright and evade liability. Therefore, the way in which liability is determined must change as well. Credit card payment systems could possibly be an effective way to enforce copyright laws, given there are only four major payment systems (Visa, Mastercard, Discover, and American Express). Why should they have the ability to profit to the detriment of the copyright holder, when they have the ability to withhold service resulting in either compliance or becoming unprofitable. I am not proposing that Visa should have been found secondarily liable, but the case should have at least made it too trial. Isn’t the standard for a 12(b)(6) motion that the complaint must be viewed in a light most favorable to the plaintiff and that the factual allegations taken as true? In this case, it does not appear to be so.

The court should have at least heard the case and then made the determination of whether the consequences of making credit card payment systems secondarily liable are outweighed by the policy goals of the United States to foster the development of the Internet and preserve the existence of a free market on the Internet.

*This post is in no way an endorsement of Perfect 10 or it’s subsidiaries.

(and what content providers have failed to learn)

Introduction

The Advanced Access Content System (AACS) is a digital rights management (DRM) system used in the newest generation of optical discs (Blu-Ray and the now-defunct HD DVD). Events since its release show that its developer, the AACS Licensing Administrator, LLC (AACS LA) has failed to learn the lessons of both CSS and other forms of DRM.

Not only is AACS similar in technical implementation (and thus limitations) to CSS, but the AACS LA has failed to consider certain abstract, but major, considerations in their handling of security breaches. In trying to prevent the spread of vulnerabilities (including encryption keys), they provoked a backlash resulting in more notoriety of the hack and a faster spread of the data they were trying to contain.

The Digital Millennium Copyright Act (DMCA) contains a provision that prohibits circumventing copy protection schemes without the permission of the copyright holder. This has done nothing to curtail copyright infringement and could easily cause harm to legitimate users while leaving pirates unaffected.

CSS

The Content Scramble System (CSS) is a DRM system used on commercially-produced DVD movies. Released in 1996, it uses a 40-bit key length (which was required to comply with U.S. export regulations) to encrypt the DVD content. A player must go through several steps with several keys in order to access the video content on the disc.

CSS implements its encryption poorly, however, so cracking the encryption requires less work than 40-bit encryption normally would. One proposed attack found in 1999 only required 2²⁵ calculations to break the key, which a 450MHz processor can do in less than 18 seconds.

AACS

AACS is an updated version of CSS, created for Blu-Ray and the now-defunct HD DVD. It uses a more robust encryption algorithm (including a much longer key length) and allows the AACS Licensing Authority (AACS LA) to revoke certain players’ access to protected content if compromised.

In 2005, readers of IEEE Spectrum magazine voted AACS one of the technologies most likely to fail. This proved prophetic.

It began in 2006, when an anonymous member of Doom9, a bulletin board devoted to audio/visual software, posted source code to a program that could extract content from AACS-protected discs provided it had the correct keys.

By the beginning of 2007, members of that same forum had discovered the actual keys. The process was simple: they just had to look at the RAM being used by a software movie player, and there they were. Once hackers had the keys, they could then use their own homebrew programs to decrypt the protected content.

The keys (which are simply numbers, usually in hexadecimal format) quickly proliferated around the Internet.

Responses from Licensing Authorities

DeCSS was released in October of 1999, and the Motion Picture Association of America (MPAA) quickly found out about the program and took action, leading to the case of Universal v. Reimerdes, which we read earlier. There it was found that since the primary purpose of DeCSS was to allow copying of DVDs, the creators were liable under the DMCA’s anti-circumvention provision, which states that: “[it is a violation] to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.”

The backlash against the legal challenges to DeCSS was strong. People posted the algorithm used by DeCSS in many forms across the Internet, including hidden in images, t-shirts, and even a haiku. One page (that still exists) is entitled, simply, “42 ways to distribute DeCSS.”

When AACS was cracked several years later, the AACS LA’s response was similar: it sent takedown notices under the DMCA to all sites that provided the key or software capable of decrypting protected discs. One of the largest sites targeted was news aggregator Digg, which contains links submitted and voted upon by members. It began deleting references to the encryption keys at the beginning of May. However, users rapidly revolted, spreading the key faster than administrators could delete the links. Some retailers began selling t-shirts with the key. Eventually, the entire front page of Digg contained nothing but references to the offending key (as seen here). Digg eventually relented, according to founder Kevin Rose:

But now, after seeing hundreds of stories and reading thousands of comments, you’ve made it clear. You’d rather see Digg go down fighting than bow down to a bigger company. We hear you, and effective immediately we won’t delete stories or comments containing the code and will deal with whatever the consequences might be.

Thus instead of containing the spread of information that could be used illegally, the AACS LA’s actions provoked a backlash that made this a much more widely-known phenomenon than it would otherwise have been. Instead of just hackers and tinkerers on isolated forums, it became an international story (with stories about the incident appearing in Forbes, the LA Times, and the BBC among others). Ironically enough, one of the takedown notices sent by the AACS LA (in this case to Google) itself contained the offending key.

One reason for the anger in response to the takedown notices in both cases is that there are generally no players available on open-source operating systems such as Linux. A closed-source, licensed DVD player application for Linux did not come out until 2006, years after DVDs became popular. As far as I can determine there are still no legal Blu-Ray players for Linux.

Futility of Takedown Notices

The backlash from users in both cases is a significant part of the equation that businesses, trade groups, and licensing authorities completely fail to consider. If the AACS LA, for example, had accepted that the cat was out of the bag, there would have been a few stories on tech-oriented web sites and that’s it. The revolt they provoked in trying to contain the spread of keys and programs only brought them more attention.

Moreover, Section 230(c)(1) of the Communications Decency Act (codified at 47 U.S.C. § 230) protects content providers (e.g. websites) from any liability for content posted by their users. Thus many of the takedown notices given to websites were meaningless.

Anti-Circumvention Serves No Legitimate Purpose

The speed with which these systems were cracked and the resulting programs’ spread shows that the anti-circumvention provision of the DMCA serves no practical purpose. It’s unclear that there even would be liability under the DMCA for the AACS keys acquired from software players. The keys were merely copied out of the computer’s memory, so there was no circumvention. Moreover, as we’ve seen, there’s no copyright on a random number. Thus the anti-circumvention provision in this case adds nothing to existing copyright law.

This provision also seeks to create liability where none should exist. First, it could easily create legal liability for security researchers. What if someone publishes information about security vulnerabilities in software (or hardware) players? Could they then be liable for circumventing protections? We’ve already seen backlash against researchers in other fields (e.g. vulnerabilities in Boston’s subway system).

Second, what about those users who use an operating system on which there is no licensed player? There’s no reason to think that just because someone uses Linux or BSD they’re automatically a pirate. So in this case the anti-circumvention could actually be harming sales, since users can’t even buy discs and then play them without breaking the law.

Finally, the ability of AACS LA to revoke the keys of devices that have been compromised leads to another problem. So far, it has only been software players that have been compromised, because they are the easiest. But what would happen if a hardware (i.e. connected to a TV) player’s key was compromised and then revoked? With the software players it’s only a matter of downloading a patch containing a new key, but a vast majority of TV-connected players do not have this capability (the notable exception being the PlayStation 3). Hackers figured out in 2007 how to get the device-specific keys off the firmware chip in the Xbox 360’s HD DVD drive. What then is the option of someone who bought this player, which is now unusable on any disc produced after the revocation, other than buying a new one?

It’s clear that the anti-circumvention provision of the DMCA is a failed idea and does nothing to help content providers while at the same time creating bad situations for legitimate users. It does nothing to support the underlying basis for copyright law, and in fact stifles innovation, which is the reason we’re willing to give creators a limited monopoly in the first place. In the scenarios above, only people who are unwilling to pirate discs are going to be affected. As with many schemes to prevent copy protection, it is only the legitimate users who are hurt.

Viacom alleges in its complaint that “Although YouTube touts itself as a service for sharing home videos, the well known reality of YouTube’s business is far different.”  There clearly is copyright infringement occurring on YouTube’s website.  However, after reading Grokster, YouTube may have a defense.  Grokster references the holding in Sony Corp. of America v. Universal City Studios that “distribution of a commercial product capable of substantial noninfringing uses could not give rise to contributory liability for infringement unless the distributor had actual knowledge of specific instances of infringement and failed to act on that knowledge.”  This seems to be another argument that YouTube could make by bringing up all the ways that people use YouTube in a non-infringing way.  The fact remains that there still are some videos on YouTube that are not infringing any copyrights, thus these such videos provide a substantial benefit for the public with no copyright holder incurring any harm.

However, I am sure that Viacom would rebut this argument by citing Grokster again.  In Grokster, there were non-infringing works, such as Shakespeare, on the peer-to-peer network, but the Court decided that the evidence showed that there was more demand for the copyrighted works.  This may also be the case for YouTube, but I think that it can be differentiated from Grokster because of its use of advertising.  Grokster and StreamCast wished to capture the market that Napster left behind when it was shut down, and they flaunted this in their advertising.  In contrast, although YouTube does advertise, it does not advertise in a way to promote copyright infringement.  I think that YouTube would probably argue that since it promotes the posting of original works rather than copyrighted works, it should not be held liable like Grokster and StreamCast.

Also, Viacom further complains that YouTube places the entire burden on copyright holders to notify it of infringing works on its website.  This burden is not imposed by YouTube, but by the Digital Millennium Copyright Act [DMCA].  The DMCA grants protection against liability to Internet service providers, while leaving copyright owners with only limited injunctive relief.  This was an effort for Congress to balance the need for rapid response to potential infringement with the legitimate interests of end-users in not having material removed without recourse.

This burden which the DMCA created helps maintain the dichotomy between the benefit to society and the cost to the copyright holder.  Congress seems to be saying with this Act that it is more important for the public to be exposed to things on the Internet than to automatically take possible infringing works down.  The Internet has become a very useful and educational tool.  If the burden, that the DMCA places on copyright holders, were to shift, then a precedent might be set which would affect the way people use the Internet.   Regarding YouTube, although there is blatant infringement, there is also educational, self-expressive works on the website, and if such works were removed, then it would decrease a benefit to society.  Thus, the education, that the Congress wanted people to receive from the Internet, only seems to be further enhanced by YouTube by getting a visual and audio component.  In the end, although copyright infringement occurs on YouTube, shifting the burden to infringers, and causing website like YouTube to shut down would hinder the benefit to society, which is the primary purpose of the Copyright Act.

Fair use is a defense relied on when a copyright holder claims the work infringes their original work. However, instead of thinking of fair use only as a defense, artists (and the attorneys who represent them) need to advocate that fair use is a right. By concentrating solely on the defense aspect of the doctrine, the protections afforded by it are being eroded away.

Copyright protection creates an incentive for the artist to create a work. The legal protection allows that artist to recoup their expenses and hopefully profit. This protection is afforded to them because society is better off having the work created and shared in smaller quantities than not shared because of fears of cheap copies. However, fair use is designed to allow critical examination and education through use of copies for which the artists does not profit. The benefit to society outweighs the harm to the incentive for the artist.

One of the factors examined to determine if a use falls under the Fair Use doctrine is “the effect of the use upon the potential market for or value of the copyrighted work” (17 US Code §107). The court will look to the impact on the potential marker for the original good if the infringing copy is allowed. Often, because the work is an educational or news item, the infringing work does not steal any market from the original work. In many cases, the market could be expanded because of increasing interest in the original work due to the discussion.

Recently, developments in the business, technology and legal fields have created situations where areas that used to be protected are now included in as part of an artist’s incentivized market. Through the technological advances in internet video and distribution, overstated legal threats and cost driven business decisions winning out over costly legal arguments, the uses that the Fair Use doctrine previously protected are being absorbed into potential markets or eliminated completely.

YouTube is one of the most popular video sharing websites that have caused much ire among modern copyright holders. Beyond the immense amount of original content the site legitimately hosts, often videos are uploaded by users that contain either outright infringing or questionable content. This grey area of possible infringement is where fair use should often be argued.

Because of how the DMCA interacts with fair use, legal notices requesting removal are often complied with without question.

“Universal Music told a federal judge here Friday that takedown notices requiring online video-sharing sites to automatically remove content need not consider whether videos are protected by the “fair use” doctrine… The music company made the argument Friday as part of a lawsuit brought by a Pennsylvania woman whose 29-second video of her toddler dancing to Prince’s “Let’s Go Crazy” was removed last year after Universal sent YouTube a takedown notice under the Digital Millennium Copyright Act. The act requires the automatic removal of material a rights holder claims is infringing its copyrights. If it isn’t removed, legal liability can be placed on YouTube or other video-sharing sites.”

http://blog.wired.com/27bstroke6/2008/07/universal-says.html

The abuse of take down notices is easily imagined. With the threat that the site itself might be found liable- any request to remove a video, no matter how questionable the legal assertion of copyright, is complied with. (http://www.techdirt.com/articles/20070202/164759.shtml)

Remedies are available to the fair use claimant. They can simply reply to the website that their use falls under fair use. (http://techdirt.com/articles/20080922/2002012337.shtml) However, this shifts a burden onto the artist. The cost of simply sending an email is negligible.  Combined with the consequence free outcome of sending a take down notice without real cause, and much of the material covered by fair use is removed without second though. With the copyright holder often represented by corporate firms with deep pockets, they have far more time and money to expend throwing claims around than the infringers do defending against them.

Google is creating a system that scans pages of books in libraries to allow people to search though paper materials. http://books.google.com/googlebooks/about.html Many writers who have copyrighted works are concerned about copies being available online. But, legal experts believe that Google’s process would fall under fair use (http://www.eff.org/deeplinks/2005/09/authors-guild-sues-google). Especially since they only show short portions of copyright protected works.

However, Google knows the costs of litigation. We discussed their case involving Perfect 10 in class already. They don’t want to have to pay to have a judge tell them they can do this years later, or not at all. With the pace technology and the internet moves, the time it would probably take this case to be litigated is simply too long. So, Google settled with the Authors Guild (http://www.nytimes.com/2008/10/29/technology/internet/29google.html?_r=2&partner=rssuserland&emc=rss&oref=slogin&oref=slogin). They have the money to do so, and it ensures they get the right to do what they want now. This comes at a cost to society, while increasing incentive for Google, the infringer in this case - the opposite of what Copyright Law is designed to do.

The wide-ranging agreement calls for Google to pay $125 million and in exchange gives the search giant rights to display chunks of these in-copyright books, not just snippets. This will result in broader exposure for out-of-print books that are, by definition, hard to find.

In addition, Google will make it possible for people to buy online access to these books. The agreement will also allow institutions to buy subscriptions to books and make them available to their constituents.

http://www.infoworld.com/article/08/10/28/Google_settles_copyright_lawsuits_with_publishers_authors_1.html

In the end, this can only serve to weaken fair use rights. It promotes the idea that something that should be a right – educational expansion through making materials located in a library available to all by search – is in fact a commodity. Future litigants can point to this case and argue that a use that would traditionally fall under fair use could be a potential market- pointing to Google’s book search as an example. By not challenging and asserting this right, people will regard fair use as a last ditch defense instead of a right they should claim and utilize.

American copyright law encourages the development of new works.  But preservation of artistic expression is also worthy of consideration.  After the exclusionary period granted to the author, copyrighted works are supposed to become easier & cheaper for the public to access.  The ‘public domain’ is the ‘commons’ of intellectual property—all citizens can mix their own labor with what resides within and make the result their own property.  Preservation and downstream transmission of public domain works relies on market forces or interest in the subject matter.  Unfortunately, not all forms of expression will be preserved in this way—some that might have great value to later generations are forgotten.  Potential corrective measures have been offered by two international organizations.  But there is danger in offering too much protection—some proposed regulations might prevent the population at large from performing, displaying, or creating derivative works based on works that reside in the ‘commons’.

Many forms of creative expression do not satisfy the requirements for protection under American copyright law.  These include the traditional cultural expressions of indigenous communities.  Some traditional folklore is communicated orally and fails the fixation requirement; other pieces have been performed for hundreds of years and reside in the public domain.  Without the exclusionary rights offered by copyright protection entire works can be ‘lifted’ and economically exploited by others without offering a financial return to the communities that created and maintained them.  There are other concerns; an unanticipated consequence of globalization is homogenization.  Some traditions are in danger of dying out as the members of the culture adopt different practices.  A satirical take on the latter effect can be found here:  http://www.theonion.com/content/node/29426.

Both UNESCO and WIPO have proposed measures to prevent further loss.  Contrasting the two illuminates a question that has not been resolved:  Are traditional cultural expressions the property of all mankind, or are they the exclusive property of the particular culture that developed them?  This debate has been playing out in the fields of anthropology & history for quite some time (See generally Bernard Lewis, The Question of Orientalism, Islam and the West 99 (Oxford University Press 1994) for a discussion of this as it relates to middle eastern studies.).  It may soon reach the field of intellectual property.

UNESCO approaches the issue of cultural preservation from the belief that each individual culture contributes to humanity’s shared heritage.  The Intangible Cultural Heritage Intergovernmental Group (ICH) establishes, updates, and publishes a list of “Intangible Heritage in Need of Urgent Safeguarding.”  Through donations from U.N. member states a pool of funds is made available.  Field teams hired by UNESCO make recordings and gather information on folklore at risk.  Material is archived and made available to researchers around the world.  The ICH also provides funding to teach the particular form of cultural expression to later generations—to make sure the tradition remains alive.  These efforts compliment those provided by private and public foundations such as the Smithsonian Institute.  Although they do not confer legal rights of exclusion, they are effective at encouraging further downstream creation.  The archived works are an invaluable resource for anthropologists and artists alike.  Such an approach is complimentary to American copyright law, and fears of misappropriation can be assuaged through creative application of the Lanham Act, VARA, and through making ‘authenticity’ a value adder in the marketplace.  More information on the ICH can be found here:  http://www.unesco.org/culture/ich/index.php?pg=home.

WIPO has proposed legislation that takes a different approach—it favors giving exclusive ownership of cultural heritage to the group (or agents of the group) that ‘created’ the expression in question.  This follows current trends in the academy—the cultural ‘nationalists’ are winning out over the ‘internationalists’ (See generally Sarah Harding, Value, Obligation, and Cultural Heritage, 31 Ariz. St. L.J. 291, 301 (1999)).  Although these potential provisions are still in the drafting and discussion stage, they could have profound effects on copyright law.

The Revised Draft Provisions for the Protection of Traditional Cultural Expressions/Expressions of Folklore seek to require compensation or limit the use of indigenous cultural traditions by those outside the culture or outside of the traditional context.  They emphasize the protection of the collective rights of those “in whom the custody, care and safeguarding of the TCEs/EoF are entrusted” or those “who maintain, use, or develop the traditional cultural expressions as being characteristic of their cultural and social identity.”  Such collective rights would abrogate those of the individual creator, as shown on page 18 of the draft provisions’ explanatory notes:

“Thus, even where an individual has developed a tradition-based creation within his or her customary context, it is regarded from a community perspective as the product of social and communal creative processes.  The creation is, therefore, not ‘owned’ by the individual but ‘controlled’ by the community, according to indigenous and customary legal systems and practices.”

The Draft Provisions propose that copyright protection be extended to folklore and traditional works, including restrictions against misappropriation or distortion, and would limit the acquisition of IP rights over derivative works by those outside the culture.   Those who seek to utilize these for their own downstream creation would be required to make a request to the community deemed to be the holder of the cultural ‘property.’  Although there appears to be a carve-out for use of folklore as ‘sources of creative inspiration’ there would still be regulation.  The notes state that at issue would not be if they were being used, but how they were being used.  It is not clear that a mandatory & statutory royalty (similar to § 114 of the Copyright Act) would be allowed—downstream creation could be entirely prevented.  What would constitute ‘fair use’ is not clear.

These proposed provisions are still in the draft form and WIPO signatory nations are continuing to debate it.  More information can be found at http://www.wipo.int/tk/en/consultations/draft_provisions/draft_provisions.html.

The ‘nationalist’ approach to safeguarding folklore is troubling, as are the proposed provisions.  In addition to being incompatible with American copyright law, they run the risk of significantly inhibiting downstream creation from both within and without the culture.  Implementation may also frustrate the purpose behind the provisions.  Instead of encouraging vibrant expressive traditions it may serve to freeze them in their current form.  Coupled with the restrictions on unauthorized display or performance of the works in question they may reduce, rather than expand, the audience for folkloric expression.  Intellectual property becomes valueless when it is not shared, and without transmission this folklore would be in even greater danger of dying out.

Why would the proposed WIPO protection of folklore run afoul of American copyright law?  They capture too high of a level of abstraction.  Under our system, while the Japanese Taiko group Kodo is free to acquire a copyright for a work (http://www.youtube.com/watch?v=thQ1VAyJWHw) the Japanese government does not have the right to exclude others from the entire genre (http://en.wikipedia.org/wiki/Taiko).  This would allow copyright for a system or method—a patent.  Although the WIPO notes state that ‘eventually’ material should pass into the public domain, the fact that they also mention ‘perpetual’ and even ‘retroactive’ protection should raise a red flag.

Requiring authorization from the interested group could hinder inter-cultural downstream communication and creation.  The current provisions might also inhibit members of the culture from utilizing their own heritage.  Art. 5 (a) (i) states that the provisions should not hinder the normal use of folklore within the traditional and customary context.  But what about the native artist placing it in a new medium or context, or deliberately ‘mutilating’ aspects of it to serve an artistic purpose?  Under the proposed WIPO provisions the artist might be subject to criminal and civil sanctions.  Such limitation of expression, even if distasteful, goes against the principals of American copyright law and the first amendment.

Lastly, allowing for collective, exclusionary rights over traditional expression could very well end the further development of that expression and limit the size of the audience exposed to it.  Although commercial interests can exploit cultural traditions without offering compensation, they also can create interest in a wide audience and provide a means for the tradition to be re-vitalized.  An example of this would be the resurgence of old-timey and bluegrass music from Appalachia after the release of the soundtrack to the Coen Brothers’ Oh Brother, Where Art Thou?.  Encouraging folklore to only develop within the traditional context (it is only in this context that it is protected) runs the risk of making vibrant and ongoing cultural traditions into ‘museum pieces’  in which further additions are not welcome.  A backward-looking focus necessarily limits the height to which new and derivative expressions can rise.

Although some aspects of WIPO’s proposal would be satisfying—fewer hipsters would get  those irritating tribal tattoos if they had to pay the Maori a royalty—the well-meaning protections offered by WIPO are simply too restrictive.  Copyright should be thin enough to encourage, not inhibit, further works.

In IP Fundamentals we started out learning the various theories of intellectual property law.  Moral rights, in its purest sense, seems to fit more squarely in the Natural Rights theory - that a man who creates a work should retain control over that work.  In civil law jurisdictions, such as France, this right is retained by the author even if he or she assigns his other rights to a third party.  However, moral rights is distinct from any economic rights tied to copyright.  Economic rights stem from ideas of property, but also from the Utilitarian theory of intellectual property.  Economic rights further the underlying purpose of U.S. copyright law - to provide incentive to authors to further progress in the arts.  But do moral rights do the same?  It seems that moral rights provides more of a monopoly to authors, which U.S. copyright law tries to avoid.  By giving the author control over a work that cannot be severed, assigned, or sold, moral rights seem to be rights beyond the scope of what U.S. copyright law intended to protect.  This is evident in the U.S.’s attempt to limit the use of moral rights theories - first by not providing moral rights in the Copyright Act itself, and second in limiting the use of other sources of U.S. law to provide the basis for a moral rights argument, such as the Lanham Act.

So my question is, why allow the exception for “works of visual arts”?  It is clear that the U.S. finds moral rights inconsistent with our idea of copyright law, so why essentially carve out an exception for visual arts?  Admittedly, it is a narrow exception, but it seems inconsistent with the purpose of U.S. copyright law.  It rather, provides a suis generis protection for authors/artists.  In Carter v. Helmsley-Spear, the court ultimately concluded that a sculpture commission in the lobby of a building was a work for hire and therefore, VARA did not apply.  However, the court came very close to preventing the new building owner from removing (or applying damages to the new building owner for removal) of a sculpture in his own building.  Had the sculptor been found to be the author of the sculpture (rather than a work for hire), the sculptor very well could have had a valid cause of action under VARA against the building owner for removing something that he owned (presumably, if he bought the building, he bought the sculpture as well).  This seems far beyond our true copyright purpose.  Furthermore, in Pollara v. Seymour, while the court did not inevitably find a violation of VARA, the artist was essentially bringing a claim because she was mad that someone tore down her banner and crumpled it in the corner.  While undoubtedly a traumatic experience for an artist who spent a great deal of time and energy in creating her piece of art, do we really want to provide a cause of action in the name of copyright against the bullies of the world who crumple up the art and throw it in a corner?  The court seems to realize the ridiculousness of this and invariably limits VARA in a way that does not seem to be present in the statute – that VARA does not apply to promotional art.  But as the concurrence points out, there’s probably a better way to get around providing protection within the actual terms of the statute itself.

I think this is clearly a case well beyond the scope of copyright law.  While moral rights seem to dominate in other countries, there are clearly other avenues of copyright law that provide plenty of protection to authors and artists.