Fall 2008 Week 3, September 15 25EP Room 602 4:15-6:45 Mondays ================================================================== ======================================================================= ================================================================== Read: 4.1-4.3 (save rest for later), 2.1, 2.2 Suddenly, ordinary rights to manage your documents are in head-to-head conflict with rights of musicians to get return on their investment. True or False? To what extent is it fair to require limitations on computers that make copying music files much more difficult? Or limitations on audio hardware, such as digital audio tape (DAT) players? EU "iPod tax": is this a good idea? Adds up to > 1 gigaEuro (2005, Baase p 215) Paper 1 http://blog.wired.com/music/2008/09/lars-ulrich-fin.html Copyright infringement: what is it? * deprives copyright holder of income? would that make copying legal if you simply would never buy? * copyright holder has right to determine distribution? more in keeping with current law ============= Without the mp3 compression format, file sharing might *still* be a fringe area. .wav files are ~ 10x larger: 30mB/song ========================================================================= ========================================================================= Cases and laws: 1790 copyright act: protected books and maps, for 17 years. "The earth belongs in usufruct to the living": Thomas Jefferson 1909 copyright act: copy has to be in a form that can be seen and read visually. Even back then this was a problem: piano-roll case (Piano rolls were *the* medium of recorded music back then.) 1972: Sound recordings were brought under Copyright. But coverage was retroactive, and now lasts until 2067. There are NO recordings in the public domain, unless the original copyright holder has placed them there. 1976 & 1980 copyright acts: mostly brings copyright up to date 1976 act formally introduces doctrine of Fair Use, and formally covers television broadcasts. ==================================== General copyright rules rules: Rules for theatrical performances are tricky: these are ephemeral performances! Videotaping a performance may violate actors' rights. Usual issue is rights of the DIRECTOR. Different categories may be subject to different rules Copyright is held by creator unless: Sold the work is a Work For Hire Covers *expression*, not content. Famous case Feist Publications v Rural Telephone Service: (Feist v Rural) (1991, Justice O'Connor) phone book is NOT copyrightable. (some European countries DO have "database protection") Gaak!! Note that if you buy a copy, you have right of private performance (so to speak; there's no special recognition of it), but not public. First Sale doctrine: after YOU buy a copy, you can re-sell it. Copyright law only governs the "first sale". Who owns the copyright? The creator, unless it is a "work for hire" or the copyright is sold Fair Use: Goes back to constitution: public has some rights to copyrighted material. Limited right of copying for reviews, etc Good-faith defense protects schools, libraries, archives, public bcasts limits statutory damages to $200 IF infringement was "reasonably believed" to be fair use. =================================== 1988: US signed Berne Convention 1989 Berne Convention Implementation Act: brings US into conformance with Berne convention: most famous for no longer requiring copyright notice on works. [Berne Convention has since become WIPO: World Intellectual Property Organization, a U.N. subsidiary. WIPO: one-state-one-vote + north-south divide => rules harming interests of poor countries were blocked. Example: pharmaceutical patents As a result, some international IP agreements are now under the jurisdiction of the WTO (World Trade Organization), which the first-world nations control more tightly. Who has jurisdiction over IP law could be HUGELY important: 3rd world is AGAINST tight IP law 1st world is FOR it (at least governments are) Brief comment on treaty-based law: A judge will work harder to find a way not to overrule a treaty, than to find a way not to overrule an ordinary law.] 1996: Communications Decency Act indecency v obscenity Section 230 1997: No Electronic Theft act: David LaMacchia case in 1994 David LaMacchia ran a "warez" site as an MIT student. He did not profit from the software downloads. Because of that, the government lost its case against him. The NET act was passed by congress to address this in future cases. It criminalizes NONcommercial copyright infringement, which until then hadn't apparently been illegal. (Copyright owner could still go after you). mp3 file sharing had not yet become significant. 1998: Digital Millenium Copyright Act: * anticircumvention * safe-harbor / takedown 2005: recording movies in a theater is now a felony. ======================================================================== ======================================================================== Cases: Sony v Universal City Studios, 1984 Supreme court. The "Betamax" case 1985 Dowling v United States, 473 U.S. 207 Dowling ran a bootleg record company, as an Elvis fan. SCOTUS agreed with his claim that what he did was not "theft" in the sense of "interstate transportation of stolen property", or fraud in the sense of "mail fraud". (Copyright-infringement conviction still stood) Fair-use case introduced doctrine of Substantial Non-Infringing Uses 1991, Feist Publications v Rural Telephone Service: (Feist v Rural) (1991, Justice O'Connor) phone book is NOT copyrightable. ====== Reverse engineering: 1992 Sega Enterprises v Accolade: Accolade made copies of the Sega ROM and reverse-engineered it. Accolade won. Copies of Sega's program were not being distributed; Accolade's only "harm" to Sega was as competitor. Atari Games v Nintendo: also in 1992; another reverse-engineering case; also won by the defendant 2000 Sony Computer v Connectix: Connectix copied Sony BIOS and reengineered it so that Sony Playstation games could be played on a computer. ====== 2005: MGM v Grokster Grokster *could* be sued for copyright *inducement* More details below 2006-07 _Da Vinci Code_ case: (actually filed in England, which has different laws): authors Leigh & Baigent of _Holy Blood, Holy Grail_ lost their suit against Dan Brown. They had introduced the theory that Mary Magdalene was the wife of Jesus and that Mary and Jesus have living heirs. This was a major plot element used in _Da Vinci Code_. Did Dan Brown violate copyright? ======================================================================== ======================================================================== DMCA Extends copyright to boat hulls. Who paid for *that*? Implements WIPO treaty PROVIDES LEGAL SUPPORT FOR COPY PROTECTION Provides (severe) penalties for even SPEAKING about circumvention (eg supplying online explanations); called 'anti-circumvention measures' [We will return to these later under the topic "rights of computer owners"] Provides LIMITED exceptions for those doing "legitimate" security research. Mandates macrovision-brand copyprotection for VHS tape Allows petitioning the Library of Congress to approve exceptions to the anti-circumvention rules; in cases where these have seriously impacted *non-infringing* use. Examples: when equipment to support the anti-circumvention measure (eg dongle, certain disk drive, certain hardware platform) is obsolete. Contains OCILLA: Online Copyright Infringement Liability Limitation Act protects ISPs from claims when users put up infringing material. Establishes legal framework for "takedown notice" Also for "putback notice", but there are more stringent rules for the latter. Who is Loyola's Takedown agent? Summary of Takedown/Putback process Takedown request must have * description of infringing material * good-faith claim that use is not legal * sworn statement requestor is authorized to act by copyright holder ISP must take down material "promptly", and notify the user. Putback: * description of material * good-faith claim use *is* legal, subject to perjury * acknowledgement of court jurisdiction ISP then can put material back after 10 business days (to give original complainant time to file a lawsuit). If suit is filed, material stays down. Does NOT protect end-user in any way; in fact, it puts burden on end-user. Does protect ISP Also specifies rules about subpoenas to ISPs for end-user identity Why do you think blackboard is so popular? Hint: not because it's easy to use. =========================================================================== =========================================================================== Fair Use Legal basis for fair use One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright act (title 17, U.S. Code). One of the more important limitations is the doctrine of "fair use." Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law. Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered "fair," such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair: 1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work. Question: does the First Amendment imply some sort of fair-use right to quote other works? More often, Fair Use is seen as following from the "to promote useful knowledge" social-contract justification under the Copyright Clause of the Constitution. Standard example is quotes used in a book review. Such quotes are essential to provide an example of the author's style, which may be a central issue in the review. However, asking permission clearly sacrifices the critic's impartiality. Item 1 is traditionally used to justify all photocopying by schools, but this is clearly overbroad. PARODIES are also often considered as an Item 1 fair-use exemption, although you should be parodying the work in question and not just using the work in a parody of something else. Item 2 refers to whether the work is nonfiction or fiction, etc Fundamental news facts (eg images from the Zapruder film of the Kennedy assassination) have been ruled "fair use" Item 3: "one chapter" is probably way over the fair-use boundary. Quoting 400 words from Gerald Ford's biography was ruled not fair use. Music sampling. Item 4: Sony v Universal: supreme court 5-4 decision apparently legalizing taping of TV programs for later viewing (but NOT archiving): Universal did not show how it was damaged. Introduced doctrine of SNIU, Substantial Non-Infringing Uses a distributor cannot be held liable for users' infringement (that is, for contributory infringement) so long as the tool is capable of substantial noninfringing uses. The precise role of "Fair Use" in the court's reasoning is not as clear as it might be, but this certainly DID play a role. ============================================================================= ============================================================================= MGM v Grokster: Introduced doctrine of copyright inducement See w2.eff.org/IP/P2P/p2p_copyright_wp.php 1. Inducement: "[O]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." 2. Contributory infringement. Contributory infringement is similar to "aiding and abetting" liability: one who knowingly contributes to another's infringement may be held accountable. 3. Vicarious liability. Vicarious liability is derived from the same legal principle that holds an employer responsible for the actions of its employees. Applies to ISPs ??? "Filtering" argument: if an ISP fails to implement blocking or filtering, they have vicarious liability. MGM was hoping to get Sony v Universal overturned. In this they failed. ================================================================================ ASCAP is an utter failure [it really *is*] Does it MATTER that ASCAP is a failure? ASCAP: collects on behalf of all members, = original songwriters. To perform, you need a license from ASCAP, BMI, & third one (SESAC?) Even if you write your own songs and perform only them, you still may need these licenses! While that sounds appalling to some, it's based on the not-implausible idea that the nightclub/venue where you play is the entity to actually pay the fees, and *they* have no guarantee you won't whip out an old Beatles song. [Richard Hayes Phillips, a musician who plays only his own and traditional material, did apparently beat BMI here.] Blanket performance licenses are generally affordable, though not negligible. You need a license to play recorded music at public places, too. You do NOT get this right automatically when you buy a CD. ASCAP collects your money, keeps about 12-20%, and sends the rest off to its members, IN PROPORTION TO THEIR RADIO PLAY. So, if you play music no longer found on the radio, the original songwriters will get NOTHING. ASCAP, BMI are very concerned about new ideas. They want to keep the rigid division between listeners and performers, and between public & private listening. They are very concerned about web radio, and have had reasonable success in making it unaffordable for any but commercial stations with traditional formats. ======================================================================== DRM: Baase p 216-218 Basic examples privacy issue backups issue iPod x 4 issue (Apple DRM, microsoft DRM, sony DRM, ???) linux ======================================================================== YouTube: is it an example of "good" sharing or "bad" sharing?? See Baase pp 219-222 ======================================================================== Ethical arguments about copying: Baase p 228 * I can't afford CDs * It's ok to take from large, wealthy corporations * I wouldn't be buying it regardless * I have a right to give gifts (of tracks) to my friends * personal file-sharing is so small as to be inconsequential. * Everyone does it. * I'd be happy to get permission to use zzzz, but don't know where. * I'm posting as a public service * This is Fair Use. ======================================================================== Some sites once devoted to file-sharing and copy-protection technologies: musicview.com: GONE! dontbuycds.org: GOING GREAT! Oh, and check out darknoisetechnologies.com (oops, how about http://news.cnet.com/SunnComm-buys-music-antipiracy-company/2100-1027_3-5153609.html) Original idea was to add some subaudible "hiss" to recordings. It was subaudible when you listened directly, but when you tried to save a copy, or even record with a microphone from your speakers, the music would be ruined.