Computer Ethics, Fall 2010 Week 4
Corboy Law Room 523
4:15-6:45 Mondays
Copyright law/cases
DMCA
ASCAP
Transformative Use
Dozier
Privacy
From whom?
AOL leak
RFID
Read: §2.1, 2.2 of Baase on privacy
Read http://cs.luc.edu/pld/ethics/garfinkel_RFID.pdf on privacy
MGM v Grokster, 2005
Introduced doctrine of copyright inducement
Left Sony SNIU framework
intact, despite MGM's arguments against it
See http://w2.eff.org/IP/P2P/p2p_copyright_wp.php
for a lengthy article analyzing the decision.
The decision syllabus is at http://www.law.cornell.edu/supct/html/04-480.ZS.html,
with links to Souter's opinion.
Note that the District Court and the Ninth Circuit granted summary
judgement to Grokster!
1. Inducement:
Held: One 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, going beyond mere
distribution with knowledge of third-party action, is liable
for the resulting acts of infringement by third parties using
the device, regardless of the device’s lawful uses.
Pp. 10—24.
2. Contributory infringement.
Contributory infringement is similar to "aiding and abetting"
liability: one who knowingly contributes to another's infringement may
be held accountable. The Sony
precedent might have blocked this, but if
your primary goal is unlawful (as was Grokster's), you lose.
3. Vicarious liability.
[Week 4]
Vicarious liability is derived from the same legal principle that
holds an employer responsible for the actions of its employees.
Despite offsetting considerations, the
argument for imposing
indirect liability here is
powerful, given the number of
infringing downloads that occur daily using respondents’
software. When a widely shared product is used to commit
infringement, it may be impossible to enforce rights in the
protected work effectively against all direct infringers, so
that the only practical
alternative is to go against the
device’s distributor for secondary liability on a theory
of contributory or vicarious
infringement.
Unlike points 1 and 2, point 3 applies even if Grokster had not
been actively encouraging copyright infringement. Note that part of the
issue here is the practicality
(or lack thereof) of going after individual users.
"Filtering" argument: if an ISP fails to implement blocking or
filtering,
they have vicarious liability.
MGM had been hoping to get Sony v Universal overturned. In this they
failed.
Paragraphs (b) and (c) in the syllabus addresses the Sony precedent. The bottom line is
that, while the Sony SNIU doctrine remains, Grokster went further
(paragraph c):
The rule on inducement of infringement as
developed in the early cases is no different today. Evidence
of active steps taken to encourage direct infringement, such as
advertising an infringing use or instructing how to engage in
an infringing use, shows an affirmative intent that the product
be used to infringe, and overcomes the
law’s reluctance to
find liability when a defendant merely sells a commercial
product suitable for some lawful use.
Note that paragraph (d) begins: "On the
record presented, respondents’ unlawful objective is
unmistakable."
Finally, the court was unanimous in ruling that Grokster was liable for
inducement. The 5-4 split was over whether Sony needed formal modification, with the answer being
no for the time being.
What if Grokster had not
actively induced users to engage in copyright infringement? Would that
have gotten them off the hook?
Baase points out on page 218 (1st paragraph) that the DMCA has eroded
this doctrine of SNIUs-make-it-ok; under the DMCA, circumvention of
copy protection is illegal even if it
has SNIUs. But this applies only to circumvention, not other potentially infringing uses.
At the top of page 216, Baase points out that it is not just computer
technology that leads to societal debates about whether the technology
should be banned. Drugs, guns, and power tools are also in this
category.
Reverse engineering
Many reverse-engineering cases are based on
copyright.
Sega Enterprises v Accolade, 1992:
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, 1992: another reverse-engineering case; also won
by the defendant
Sony Computer v Connectix, 2000: Connectix copied Sony BIOS and
reengineered
it so that Sony Playstation games could be played on a computer.
Bottom line: the courts have had a pretty strong history of not
allowing copyrights to interfere with reverse engineering. Note that
these cases are about pre-DMCA copyright law (the DMCA officially
acknowledges a right to reverse engineering, §1201(f)), and are also
not about license claims made
by the plaintiff (that is, that the license terms of the software forbid
reverse-engineering).
DMCA, 1999
Extends copyright to boat hulls. Who paid for that?
Section
1301.
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'
See §1201(a)(1)(A), and also §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—
[We will return to these later under the topic "rights of computer
owners", and also "speech"]
Provides LIMITED exceptions for those doing "legitimate" encryption (not "security") research.
See Section 1201g.
Note in particular 1201(g)(2)(C) (making a good-faith effort to obtain
authorization), and 1201(g)(3): Factors in determining exemption
(especially (B)).
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.
Dmitry Sklyarov was arrested on July 16, 2001 after his DEFCON
presentation
related to breaking Adobe's e-book anticircumvention measures. He was
held in prison for three weeks (until August 6), and then required to
remain in the US until December 13, 2001.
His Russian employer, Elcomsoft, sold software that
allowed users to bypass Adobe's copy protection on e-books. Sklyarov
was charged for this. Adobe issued a press release stating that "the
prosecution of this individual in this particular case is not conducive
to the best interests of any of the parties involved or the industry."
On December 17, 2002, a Federal jury found Elcomsoft not guilty.
Note that at no time did the US government allege that any of
Sklyarov's or Elcomsoft's activities were carried out within the US.
This is not an uncommon situation regarding jurisdiction.
DMCA Contains OCILLA: Online Copyright Infringement Liability Limitation
Act
This act protects ISPs from claims when users put up infringing
material.
It establishes the legal framework for "takedown notices". Also for
"putback notices", but there are more stringent rules for the latter.
Who is Loyola's Takedown agent?
See the small "Copyright & Disclaimer 2009" link at the bottom of
the main luc.edu page, leading to http://luc.edu/info/copyright_disclaimer_2008.shtml,
and then to a mailto: link to "our DMCA 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
The ISP must take down material "promptly", and notify the user.
The user can respond with a putback
request, which must contain the following:
- description of material
- good-faith claim use is
legal, subject to perjury
- acknowledgement of court jurisdiction
The ISP then can put material back after 10 business days (to give
original
complainant time to file a lawsuit). If a suit is filed, the material stays
down.
If a suit is filed at that time or later, it will be filed against the
user and not the ISP.
OCILLA does NOT protect end-user in any way; in fact, it puts a
burden on the end-user.
It does protect the ISP
OCILLA also specifies rules about subpoenas to ISPs for end-user
identity; these were what the RIAA first used.
Why do you think blackboard is so popular? Hint: not because it's easy
to use.
Cases related to DMCA/OCILLA
Youtube was sued by Warner; negotiations are continuing but youtube has apparently agreed
to the principle of some kind of cut of revenues. In December
2008 [?], Warner was back to demanding that its music videos not be
available. (I'm not sure of the dates or anything else). On August 19,
2009, the parties announced a settlement that would allow Warner to
post lots of their clips on Youtube, subject to the following:
- Selections would be at Warner's discretion
- They would be played through a special player provided by Warner
[malware alert!]
- Warner would control the advertising, and receive all revenues
See http://finance.yahoo.com/news/Time-Warner-and-YouTube-Reach-iw-2585532384.html?x=0&.v=1.
How does http://www.vidtomp3.com
affect this issue? Does it matter where vid2mp3.com is? Are they the bad guys here? Should we
even be discussing vidtomp3.com?
YouTube: is it an example of "good" sharing or "bad" sharing??
See Baase pp 219-222
Viacom v Youtube
filed March 2007
This case has not yet come to trial.
Google (Youtube's owner) has cited OCILLA in its defense; Viacom is
still trying to claim statutory damages. Question: does Youtube try to
"induce" users to upload protected stuff? This remains a major
unsettled issue; see MGM v Grokster.
Here's a July 2008 BusinessWeek article on the case:
http://www.businessweek.com/technology/content/jul2008/tc2008073_435740.htm.
Here's a January 2009 blog on the case:
http://copyrightsandcampaigns.blogspot.com/2009/01/viacom-v-youtube-viacoms-anti-piracy.html.
Here's a March 2009 blog, addressing (among other things) the fact that
Viacom's discovery motions involve in excess of 12 terabytes of data: http://www.digitalmedialawyerblog.com/2009/03/controlling_discovery_in_digit.html.
Here's a March 2010 story, including several internal youtube emails
about how aggressive they should be on rejecting copyrighted content: http://www.dailyfinance.com/story/company-news/viacom-v-youtube-google-a-piracy-case-in-their-own-words/19407896. For example:
On July 19, Chen wrote to Hurley and Karim: "Jawed, please stop putting
stolen videos on the site. We're going to have a tough time defending
the fact that we're not liable for the copyrighted material on the site
because we didn't put it up when one of the co-founders is blatantly
stealing content from from other sites and trying to get everyone to see
it." Four days later, Karim sent a link to the other founders, and
Hurley told him that if they rejected it, they needed to reject all
copyrighted material. Karim's reply: "I say we reject this one but not
the others. This one is totally blatant."
A July 29 email conversation about competing video sites laid out the
importance to YouTube of continuing to use the copyrighted material.
"Steal it!" Chen said , and got a reply from Hurley, "hmmm, steal the
movies?" Chen's answer: "we have to keep in mind that we need to attract
traffic. how much traffic will we get from personal videos? remember,
the only reason our traffic surged was due to a video of this type."
Here's another March 2010 blog, which makes some interesting points
about how time is on Youtube's side, and how Viacom has made some major
tactical errors: http://blog.ericgoldman.org/archives/2010/03/viacom_v_youtub.htm.
First, YouTube has repositioned itself from "video grokster" to Good Internet Citizen, withPredominately Non-Infringing Uses.
Perhaps more importantly, the intervening time has been good to YouTube
as a business and as a brand. In this sense, compare Grokster to
YouTube. At the time of the Grokster cases, it was still very much an
open question whether Grokster would ever evolve into a tool where
legitimate activity dominated. While we might still have had that same
question about YouTube in 2006, by 2010 YouTube has answered that
question resoundingly. YouTube’s business practices have matured,
everyone has had positive legitimate experiences with YouTube (even
behind-the-curve judges), and it’s clear that major legitimate players
have adopted YouTube as a platform for their legitimate activities. For
example, YouTube’s brief makes the point that all of the 2008
presidential candidates published YouTube videos as part of their
campaign. I’m guessing no 2004 presidential candidates used Grokster
for campaign purposes.
But Viacom has tremendously undermined their case that Youtube
should have been able to tell which Viacom videos were forbidden, by
being unable to tell themselves!
In YouTube’s case, I could not get over that Viacom has TWICE withdrawn
clips from its complaint. I thought
the
first time Viacom did that was embarrassing and damaging to
Viacom’s case, but then Viacom admitted that it didn’t catch all of its
errors on the first withdrawal and therefore had to
make
a second withdrawal of clips. WTF?
How hard it is for Viacom to
accurately determine which clips it has not permitted to show on
YouTube? Whether it intended to or not, Viacom has answered that
question to its detriment: hard enough that an entire brigade of
extremely expensive lawyers obligated to do factual investigations by
Rule 11 can’t get the facts right the first OR SECOND time. For me,
this undercuts Viacom’s credibility to its core. ... Viacom’s failings
have
proven to the judge that it’s too hard—too hard for lawyers
charging upwards of $1k an hour despite having unrestricted access to
accurate information in their clients’ possession, and clearly too hard
for YouTube’s slightly-above-minimum-wage customer support
representatives with no such information advantages.
Finally, there is an allegation (at the dailyfinance.com site above,
not the ericgoldman.org site) that Viacom itself was doing much of the
uploading of its material, for marketing purposes:
Google's brief recites in great detail Viacom's use of YouTube as a
promotional engine for its products, explaining how Viacom hired at
least 18 marketing firms to upload video on its behalf in order to
distance itself from the uploading and make it appear that the videos
were genuine, grassroots uploads. Viacom would "rough up" the video to
make it look pirated, and would even send its employees off-site to
places like Kinko's so that uploading would occur from computers
untraceable to Viacom.
Discussion
What do you think of the OCILLA defense here? One point that has
been made is that, while OCILLA might block a financial claim, it might
not block a Viacom request for a
court restraining order that Youtube desist completely. But that was before Viacom's mistake, above.
Now consider www.vidtomp3.com.
Many bands allow music videos to be uploaded to youtube, as
"advertising", likely on the assumption that the music cannot easily be
downloaded. But vidtomp3.com makes that easy! It is true that the
encoding rate is usually relatively low (64kbps?), but it's still a
great deal.
Also note vidtomp3's disclaimer:
This site is in no way associated with myspace,
youtube or any of the other video sites we support. This tool is
designed to be used in compliance with each sites ToS and local and
national copyright laws. We do not support piracy. Only rip the sound or
use youtube downloader from none-copyrighted sources.
Is this an honest sentiment, or is it a "grokster defense"?
Viacom v Google ruling, June 2010
US District Court, Southern District of New York
Judge Stanton
Dated June 23, 2010
Summary Judgement was granted to Google (owner of Youtube): Viacom's case cannot continue
From the decision (at http://cs.luc.edu/pld/ethics/viacom_v_youtube_sj_2010.pdf)
From plaintiff's submissions on the
motions, a jury could find that the defendants not only were generally
aware of, but welcomed, copyright-infringing material being placed on
their website. Such material was attractive to users, whose increased
usage enhanced defendants' income from advertisements displayed on
certain pages of the website, with no discrimination between infringing
and non-infringing content.
Plaintiffs claim that .. "Defendants had 'actual knowledge' and were
'aware of facts or circumstances from which infringing activity [was]
apparent,' but failed to do anything about it."
However, defendants designated an agent, and when they recieved
specific notice that a particular item infringed a copyright, they
swiftly removed it. It is uncontroverted that all the clips in the suit
are off the YouTube website, most having been removed in response to
DMCA takedown notices.
Thus, the critical question is whether the statutory phrases "actual
knowledge that the material or an activity using the material on the
system or network is infringing," and "facts or circumstances from
which infrining acttivity is apparent" in §512(c)(1)(A)(i) mean a
general awareness that there are infringements (here, claimed to be
widespread and common), or rather mean actual or constructive knowledge
of specific and identifiable infringements of individual items.
Here is §512(c)(1)(A) of the copyright act:
(c) Information Residing
on Systems
or Networks at Direction of Users.—
(1) In general. — A
service
provider shall not be liable for monetary relief, or, except as
provided in
subsection (j), for injunctive or other equitable relief, for
infringement
of copyright by reason of the storage at the direction of a user of
material
that resides on a system or network controlled or operated by or for
the service
provider, if the service provider -
(A)(i) does not have actual
knowledge that the material or an activity using the material on the
system or
network is infringing;
(ii) in the absence of such actual
knowledge, is not aware of facts or circumstances from which infringing
activity
is apparent; or
(iii) upon obtaining such knowledge
or awareness, acts expeditiously to remove, or disable access to, the
material;
The judge ruled that YouTube/google did not
meet the standard of (A)(1): actual knowledge doesn't mean that you
know it's going on wink wink nudge nudge, but that you have knowledge
of specific infinging items.
In other words, the judge upheld the OCILLA takedown defense very strictly.
My guess is that Viacom will appeal, but that it won't help.
Update on part (ii) above, from page 10 of the decision. The House Report described this clause as
a
'red flag' test. A service provider need not monitor its service or
affirmatively seek facts indicating infringing activity. However,
if the service provider becomes aware of a 'red flag' from which
infringing activity is apparent, it will lose the limitation of
liability if it takes no action.
This could
be interpreted as a looser standard than "actual knowledge [of specific
infringing content]" test of part (i), that Google prevailed on. Later
[p 13], again quoting the House Report,
Under this standard, a service provider would have no obligation to seek out copyright infringement, but it would not qualify for the safe harbor if it had turned a blind eye to "red flags" of obvious infringement.
YouTube/Google did just that. But then [p 14], quoting the House Report,
The important intended objective of
this standard is to exclude sophisticated "pirate" directories -- which
refer Internet users to other selected Internet sites where pirate
software, books, movies, and music can be downloaded or transmitted --
from the safe harbor. Such pirate directories ... are obviously
infringing because they typically use words such as "pirate",
"bootleg', or slang terms in their URLs and header information to make
their illegal purpose obvious to ... Internet users. ... Because the infringing nature of such sites would be apparent from even a brief and casual viewing, safe harbor status ... would not be appropriate.
So what does a "red flag" have to be? YouTube was not "obviously" a
pirate site, but certainly the existence of infringing content was very
well known. Although parts of the Congressional Reports quoted above do
suggest that YouTube/Google had met the "red flag" test, existing case
law generally suggests otherwise. And a "safe harbor" provision is of
little use if it does not come with an "objective standard" (a term
used in the Congressional Report).
On page 15, Judge Stanton concludes from all this that
The tenor of the
foregoing provisions is that the phrases “actual knowledge
that the material or an activity” is infringing, and “facts or
circumstances” indicating infringing activity, describe knowledge of
specific and identifiable infringements of particular individual
items. Mere knowledge of prevalence of such activity in general
is not enough. ... To let knowledge of a generalized practice of
infringement in the industry, or of a proclivity of users to post
infringing materials, impose responsibility on service providers to
discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.
On page 20 of the decision the judge says "General knowledge that
infringement is 'ubiquitous' does not impose a duty on the service
provider to monitor or search its service for infringements."
Here's a blog that identifies the principle of least-cost avoidance as a general legal rule:
http://larrydownes.com/viacom-v-youtube-the-principle-of-least-cost-avoidance
The idea is that, given the conflict between Viacom and Google, the
judge should consider who can address the situation more economically.
For Google, denying OCILLA protection would mean that they would have
to review every post to YouTube. For Viacom, it would mean that they'd
have to review those posts on YouTube which turned up in tag searches
for Viacom content. Viacom has less work; ergo, they lose.
Discussion
What do you think of this rule?
And is it even true, in this particular case?
Are there other legal principles at stake? What about the
"least-disruptive solution"? Should we count disruption to users who
while away their days watching YouTube?
Judge Stanton granted Google summary judgement.
This leaves Viacom with the right to appeal to the Second Circuit. They
probably will, given how much has been invested so far. What will
happen there, however, is anyone's guess.
Tiffany v Ebay
Judge Stanton in the Viacom v Google case cited this one, from the
Second Circuit. EBay merchants sold counterfeit Tiffany merchandise on
the site. Tiffany sued them, and also eBay.
Should eBay be liable here? How on earth would they police the authenticity of all merchandise offered?
How is this different from Viacom v YouTube? Do the similarities override the differences?
The court ruled that the burden of protecting a trademark falls properly
on the mark holder: policing is a job that comes with the territory.
Also, in this case, it is hard to see what eBay might have done
differently.
Another subtle issue, not addressed here, is that Tiffany (like most manufacturers of high-end consumer goods) would really
like to ban eBay entirely. Such manufacturers generally only sell
to stores that agree to charge "list price" (sometimes sales are
allowed, but they are generally tightly regulated, which sometimes
leads to "storewide sales" with fine print listing brands that could
not be discounted). Still, there is a vast "grey market" out there,
where vendors purchase luxury (and not-so-luxury) items from
distributors, from bankruptcy sales, and oversees, and resell them.
Disallowing such sales strikes at the heart of the free market, but
note that such online sales have no clear jurisdictional boundaries.
Some sites once devoted to file-sharing and copy-protection
technologies:
musicview.com: GONE!
dontbuycds.org: GOING GREAT! Well, maybe not so great, but it's still there. No change since 2008.
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.
Project Gutenberg: http://gutenberg.org
Eldred v Ashcroft: Eric Eldred maintained a website of public-domain
books
unrelated to Project Gutenberg's, although he did do some
scanning/typing for them.
What does it mean for copyrights if Congress extends the term
continuously?
Amazon has now scanned in most of the books they sell, and offers
full-text search of the book contents. This is intended as providing an
online equivalent of browsing
in a physical bookstore. They apparently did not get a lot of publisher
permissions to do this.
Apparently, however, no major lawsuit has ever been filed!
Note that what Amazon has done arguably earns them ZERO dmca shield:
they've actively scanned the books, and keep the images on their
servers.
Clearly, "effect on the market" must be presumed POSITIVE. However, see http://www.authorslawyer.com/c-amazon.shtml.
ASCAP
How music copyrights are "supposed" to work: ASCAP (the American Society
of Composers, Authors, & Publishers). See ascap.com.
ASCAP: collects on behalf of all members, = original songwriters.
To perform, you need a license from ASCAP, BMI, &
third one (SESAC?). See ascap.com/licensing.
Even if you write your own songs and perform only them, you still may
be asked to show you have 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. But not without a
prolonged fight.]
Blanket performance licenses are generally affordable, though not
negligible.
Generally ASCAP licenses do not
allow:
- selection of lower-cost (eg older) works, in order to save money
- proving that a significant fraction of the music played was
non-ASCAP, in order to save money.
That is, a university with regular chamber-music concerts (not covered
by copyright) must pay ASCAP just as if these were copyrighted music.
You need a license to play recorded music at public places, too.
You do not get this right
automatically when you buy a CD. Nor does purchasing sheet music provide
you with any performance right.
ASCAP collects your money, keeps about 12%, and sends the rest off to
its members. At one time this was in
proportion to their radio play,
which meant that if you play music no longer found on the radio, the
original
songwriters will get nothing. The rules have changed, however; now,
ASCAP licensees have to supply information about what was played in
order to ensure proper crediting.
ASCAP and BMI continue to support the idea of a strict difference
between public and private listening. While there are grey areas here,
it is hard to see that technology or file-sharing has contributed any
new ones.
They are very concerned about web radio,
and have had reasonable success in making it unaffordable
for any but commercial stations with traditional formats.
TRANSFORMATIVE use
This describes copying where the "purpose .. of the use" (factor 1) is
wholly different from the purpose of the original. Typically it may be
important that the new use offer something to the public that was
otherwise unavailable.
Parodies are usually considered transformative use.
Another example: from Diebold v Online Policy Group, & some
Swarthmore
students: (Actually, they were suing Diebold; the students had posted
some internal Diebold memos, and Diebold was wildly filing DMCA
takedown notices. The students, and the EFF, felt these were an abuse
of the DMCA process.)
From the judge's opinion:
Finally, Plaintiffs' ... use was transformative: they used the email
archive to support criticism
that is in the public interest, not to develop electronic voting
technology. Accordingly, there is no genuine issue of material fact that
Diebold, through its use of the DMCA, sought to and
did in fact suppress publication of content that is not subject to
copyright protection.
The Kelly and Perfect 10 cases below address this
doctrine of "transformative". We'll return to this under "Free Speech"
Kelly and Perfect 10
Baase p 232-233:
Kelly v Arriba Soft: 2002
Perfect 10 v Google: 2006 -- ??
Kelly was a photographer incensed that Arriba Soft's "ditto.com"
search engine was displaying thumbnails of his images. (There still is a
ditto.com, but I have no idea whether it
is connected to the original one.) The 9th Circuit
ruled thumbnails were fair use,
but not links to full-sized images.
They later reversed that last point.
Four-factor analysis:
Purpose and Character: use is transformative
Nature
of
work:
creative work on internet; "slightly in favor of
Kelly"
Amount & Substantiality: irrelevant; whole image must be copied
Effect
on market: The court found no harm to Kelly's market; in fact, by
helping people find Kelly's images they might help him. Use of thumbnails weighed heavily here: they
aren't nearly as attractive as
originals.
Now
to the Perfect 10 case. Perfect 10 sold nude images; they claimed to
have a business plan to sell thumbnail images to cellphone users.
Question: does this undermine the thumbnail analysis in Kelly v Arriba
Soft?
This question goes pretty much to the heart of Google's ability to
provide image searching.
images.google.com is an image-based search engine; it frames
full-sized images, and caches thumbnails.
P10's images came up on google only when some third party posted
them (at some third-party site), apparently without authorization.
District court:
The District Court ruled that links
were ok, but thumbnails were
not. More precisely, the
court granted an injunction
against the thumbnails, but not against the
links. The case is still not decided completely (and probably won't be).
Wikipedia documents the District Court ruling in http://en.wikipedia.org/wiki/Perfect_10_v._Google_Inc.
Judge Howard Matz (emphasis added):
The first, second, and fourth fair use
factors weigh slightly in favor of P10. The third weighs in neither
party’s favor. Accordingly, the Court concludes that Google’s creation
of thumbnails of P10’s copyrighted full-size images, and the subsequent
display of those thumbnails as Google Image Search results, likely do
not fall within the fair use exception. The
Court reaches this conclusion despite the enormous public benefit that
search engines such as Google provide. Although the Court is reluctant
to issue a ruling that might impede the advance of internet technology,
and although it is appropriate for courts to consider the immense value
to the public of such technologies, existing judicial precedents do not
allow such considerations to trump a reasoned analysis of the four fair
use factors.
Note that Judge Matz does not believe that value to the public has
priority over the fair-use factors.
Ninth Circuit
Ninth Circuit then reversed this: all of it is likely enough (as of 2008) fair use that P10 loses their
injunction!!
Their preliminary decision at http://webpages.cs.luc.edu/~pld/ethics/Perfect10vGoogle9thCir12-2007.pdf.
The bottom line was that google's use was TRANSFORMATIVE.
Google might still be liable for contributory infringement. However, it
appears that P10 has mostly abandoned the case.
Appeals court ruling points:
1. Google DMCA defense
2. P10's "display right" and "distribution right" are at issue.
3. [server test: whose server are the images really on?]
From the preliminary decision:
Applying the server test, the district
court concluded that Perfect 10 was likely to succeed in its claim that
Google’s thumbnails constituted direct infringement but was unlikely to
succeed in its claim that Google’s in-line linking to full-size
infringing images constituted a direct infringement. Id. at 84345. As
explained below, because this analysis comports with the language of
the Copyright Act, we agree with the district court’s resolution of
both these issues. [15458 (15), last ¶]
Google isn't doing it:
[6] Google does not, however, display a
copy of full-size infringing photographic images for purposes of the
Copyright Act when Google frames in-line linked images that appear on a
user’s computer screen.[15460 (17)]
Contributory infringement is not at issue.
Perfect 10 incorrectly relies on Hotaling v. Church of Jesus Christ of
Latter-Day Saints and Napster
for the proposition that merely making images “available” violates the
copyright owner’s distribution right. [15463 (20)]
Isn't this "making available" a core issue for file sharers?
At this point the appeals court turns to Google's Fair Use defense
In applying the fair use analysis in
this case, we are guided by Kelly v. Arriba Soft Corp., ... In Kelly, a
photographer brought a direct infringement claim against Arriba, the
operator of an Internet search engine. ... We held that Arriba’s use of
thumbnail images was a fair use primarily based on the transformative
nature of a search engine and its benefit to the public.
Id. at 818-22. We also concluded that Arriba’s use of the thumbnail
images did not harm the photographer’s market for his image. [15466
(23)]
Recall the District Court judge's reluctance to put much stock in
"benefit to the public"
Purpose and Character: Again, use is transformative. Very much so. Just
what is this??
District
Court: this was diminished, in terms of Google's use of thumbnails, by
P10's plan to sell thumbnails. Also, google's use is commercial.
9th Circuit: "In conducting our case-specific analysis of fair use in light of the purposes of copyright,":
this is an explicit acknowledgement of the Copyright Clause. [15470
(27), ¶ starting in middle of page]
Bottom line: Purpose&Character goes from DC's "slightly in favor of
P10" to Ninth's "heavily in favor of Google"
Also note, same paragraph:
The Supreme Court, however, has directed
us to be mindful of the extent to which a use promotes the purposes of
copyright and serves the interests of
the public.
One of the cases cited as evidence of this directive is Sony.
Another is the 1993 Campbell
case (about a 2 Live Crew parody of the Roy Orbison song Pretty Woman), in which the Supreme
Court stated that
"the more transformative the new
work, the less will be the
significance of other factors, like commercialism, that may weigh
against a finding of fair use". [15471 (28)]. (See http://supreme.justia.com/us/510/569/case.html.
A major element of the Campbell
case was that the Supreme Court backed away from the idea that
commercial use would seldom qualify as "Fair use"; compare this with
the earlier Sony quote
"although every commercial use of copyrighted
material is presumptively an unfair exploitation of the monopoly
privilege that
belongs to the owner of the copyright,....")
Also:
we note the importance of analyzing fair
use flexibly in light of new circumstances [15471 (28)]
Nature of work: no change; still "slightly
in favor of Kelly". Part of the "slightly" was that the images were
already published.
Amount & Substantiality: irrelevant; whole image must be copied; see [15473 (30)]
Effect on market: P10 did not prove their market for thumbnail
images was harmed. So this didn't count. But how would they ever do
that?? More precisely, "the district
court did not find that any downloads for mobile phone use had taken
place." [15470 (27), last line of page]
Whoa! Is that last issue really fair? Did the DC even consider that point?
More at [15474 (31)], end of 1st and 2nd paragraphs
We conclude that Google is likely to
succeed in proving its fair use defense and, accordingly, we vacate the
preliminary injunction regarding Google’s use of thumbnail images."
Note how the appellate court sort of finessed the "effect on the market"
issue.
Another option: why were P10's images ever found? Because users
uploaded them illegally. There is another path here: to allow google to
provide thumbnails and links only so long as the originals are present.
Then, P10 can go after the originals.
An interesting question: if P10 had been selling something more
socially acceptable than soft-core pornography, might this decision
have gone the other way? There's an old legal saying that "bad cases
make bad law"; is this an example?
Dozier Internet Law, http://www.cybertriallawyer.com
1. Lots of solid mainstream copyright cases:
architectural designs
jewelry designs
advertising work (sitforthecure.com)
stolen websites for:
gamers sites
physicians
small businesses
2. Their AMAZING user agreement:
http://dozierinternetlaw.cybertriallawyer.com
We do not permit you to view such [website html] code since we consider it to be our
intellectual property.
Where are they coming from?
3. Dozier Internet Law and Sue Scheff
Sue Scheff was a client of Dozier
Internet Law, which we looked at last week. She won an $11.3
million dollar verdict in her internet-defamation case; she later wrote a
book Google Bomb. The
defendant was Carey Bock of Louisiana.
But see http://www.usatoday.com/tech/news/2006-10-10-internet-defamation-case_x.htm.
It turns out Ms Bock couldn't afford an attorney, as she was at the
time of the case a displaced person due to Hurricane Katrina, and she did not appear in the case at all.
So we don't really know what happened. However, it is clear that at this
point Ms Scheff has become a master at reversing being google-bombed;
if you google for her name, her multiple blogs touting her book will
likely lead the list.
Kindle case
see:
http://online.wsj.com/article/SB123419309890963869.html
http://www.engadget.com/2009/02/11/know-your-rights-does-the-kindle-2s-text-to-speech-infringe-au
http://mbyerly.blogspot.com/2009/02/authors-guild-versus-amazon-kindle-2.html
The kindle is intended primarily for letting people read e-books.
However, it also has a feature to read the book to you, using a synthesized voice. This potentially
affects the audiobook market.
The Authors Guild has protested vehemently. They may or may not have
filed a lawsuit against Amazon.
pro-kindle arguments:
- Book publishers have already agreed to kindle distribution
- the
synthetic voice has no inflection or emotion
- The synthetic
voice does not constitute a "performance"
- No copy is made [is
this a legitimate argument?]
- Amazon is a leading seller of
audiobooks; arguably they don't see a negative effect on the market.
- what about reading for the blind?
- what about
conventional-text-to-braille scanners?
- existing audiobook
formats (CDs) are unsatisfactory
- use is transformative
anti-kindle arguments
- The kindle infringes on the right to create audio recordings of
books
- creation of a spoken "performance" is not a right that was
granted by purchasing the text.
- publishers thought this was a text-only deal
- people
who buy e-books to listen to while driving now may not buy the audio
book.
Privacy
What is privacy all about? Baase (p 45) says it consists of
- control of information about oneself: who knows what about you?
- freedom
from intrusion -- the right to be left alone in peace
- freedom
from surveillance (watched, listened to, etc)
Are these all? Note that Baase put control of information as #2; I moved
it to #1.
In some sense the second one is really a different
category: the need to get away from others. A technological issue here
is the prevalence of phones, blackberries, and computers and the
difficulty of getting away from work.
The third one is to some degree a subset of the first: who gathers
information about us, and how is it shared? Another aspect of the third
one is freedom from GOVERNMENTAL spying. Privacy from the government is a
major part of Civil Liberties.
Privacy is largely about our sense of control
of who knows what about
us. We willingly put info onto facebook, and are alarmed only when
someone reads it who we did not anticipate.
Privacy from:
- government
- commercial interests
- workplace
- local community (ie online info about us)
Sometimes, when we try to argue for our privacy, we get asked what do you have to hide? Is this
fair?
On the other hand, should we care at all about privacy? Or is it just
irrelevant?
Strange history: once upon a time we were mostly concerned about privacy
from the government, not from private commercial interests.
What do computers have to do with privacy?
Old reason: they make it possible to store (and share) so much more data
Newer reasons:
- They enable complex data mining
- They allow us to find info on others via google
- Records are kept that we never suspected (eg google searches)
- Electronic eavesdropping
Baase, p 45: Communist East-German secret police Stasi, and
non-computerized privacy invasion
Fourth amendment:
The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.
Baase p 47: computers "make it easy to produce detailed profiles of
our personal characteristics, relationships, activities, opinions, and
habits"
Maybe also of what sales pitches we're likely to respond to??
Some non-governmental privacy issues:
- shopping data
- RFID chips in cards and merchandise
- search-engine
queries
- cellphone GPS data
- event data recorders in
automobiles