Computer Ethics, Fall 2011

Corboy 423;  7:00-9:30 Th, Sept 22, Class 4

Readings:
Paper 1, due Friday Sept 30


Quick note on the Sony hack


In January 2010, George "geohot" Hotz (first to jailbreak the iPhone) published the root key for the PlayStation 3. In general, all playstation software must be signed with this key. Having the root key allows third-party developers to create software unlicensed by Sony, but it also allows for the playing of pirated games. (Sony licensing is not cheap.)

Sony sued, alleging violation of the DMCA among other things. They settled in April 2011; Hotz is required not to engage in PS3 code disassembly or reverse-engineering, and not to discuss the settlement beyond that. In the course of the lawsuit, Sony asked for the IP address of everyone who had viewed Hotz's YouTube post about the hack.

Another group, fail0verflow, has also been hacking the PS3.

Hotz's technique involved using the "OtherOS" feature of the PS3 that allowed running linux; Sony promptly removed that. This action in turn appeared to have triggered a widespread hacking effort against Sony (not by Hotz), with the group "Anonymous" in the forefront (another group was Lulzsec). Anonymous was apparently responsible for obtaining the names (and email addresses and other information) of ~75 million customers. They may also have been responsible for the tampering that led Sony to shut down the PlayStation Network for over a month beginning in April 2011.

In September 2011, Sony modified their Terms of Service for the PlayStation Network requiring users to waive their rights to class-action lawsuits in the event that their personal information held by Sony is compromised.

Are individuals and groups such as Hotz and Anonymous criminals? Is Sony's response heavy-handed? Or is it a legitimate effort to protect the intellectual-property rights of third-party developers?

Copyright Laws (highlights only):

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 rolls were the medium of recorded music back then, and a court case established that they were not copyrightable because they were not readable.

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 copyright holder has placed them there.

1976 & 1980 copyright acts: mostly brings copyright up to date. 1976 act formally introduced the doctrine of Fair Use, previously carved out by court cases, and formally covers television broadcasts.

1988: US signed Berne Convention, an international copyright treaty. We held out until 1988 perhaps because Congress didn't believe in some of its requirements [?]. 1989 Berne Convention Implementation Act: brings US into conformance with Berne convention: most famous for no longer requiring copyright notice on works.

[start of week 4]

[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: the third world is generally AGAINST tight IP law, while the first world is generally FOR it (at least governments are)
 
Brief comment on treaty-based law:  A judge may 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: not really about copyright, but it will be important to us later.

1997: No Electronic Theft act: David LaMacchia case (above); criminalizes noncommercial copyright infringement if the value exceeds $1000 and the infringement was willful.
 
In 1994, mp3 file sharing had not yet become significant.

1998: Digital Millenium Copyright Act passes. the two best-known and/or most-controversial provisions:
2005: recording movies in a theater is now a felony.

2008: Pro IP act
This may lead to an increase in statutory damage claims, by allowing plaintiffs to claim multiple infringements. It may also make it easier for rights-holders to sue owners of a computer for infringement even when some third party is known to have done the infringing without the consent or knowledge of the computer owner.

Some Famous Copyright Cases

Wikipedia famous copyright cases:
    http://en.wikipedia.org/wiki/List_of_leading_legal_cases_in_copyright_law.

1964: Irving Berlin et al. v. E.C. Publications, Inc.: "Mad Magazine case"

    Mad Magazine published "sung-to-the-tune-of" alternative lyrics for popular songs.
    District court ruled in MAD's favor on 23 of 25 songs.
    2nd Federal Circuit decided in MAD's favor on all 25 songs.



Sony v Universal City Studios, 1984, discussed previously.


1985, Dowling v United States, 473 U.S. 207

Supreme Court

Paul 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". This was an important case in establishing that copyright infringement was legally not the same as theft (or, more specifically, that the illegal copies could not be equated with "stolen property"). However, the distinction was rather technical, addressing only whether a federal law on interstate transport of stolen property could be applied.

From the Supreme Court decision, http://laws.findlaw.com/us/473/207.html

The language of 2314 [the interstate-transportation-of-stolen property act] does not "plainly and unmistakably" cover such conduct. The phonorecords in question were not "stolen, converted or taken by fraud" for purposes of 2314. The section's language clearly contemplates a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods. Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud

It follows that interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: ... 'Anyone who violates any of the exclusive rights of the copyright owner ... is an infringer of the copyright.'

Dowling's criminal copyright-infringement conviction still stood. Note that Dowling's case clearly met the first item of USC §506(a)(1), namely     
    (A) for purposes of commercial advantage or private financial gain;
This was the standard that the courts ruled did not apply in the David laMacchia case.

1991,  Feist Publications v Rural Telephone Service

Supreme Court
    (Feist v Rural) (1991, Justice O'Connor; decision: http://www.law.cornell.edu/copyright/cases/499_US_340.htm)
    phone book is NOT copyrightable.
Paragraph 8:

This case concerns the interaction of two well-established propositions. The first is that facts are not copyrightable; the other, that compilations of facts generally are.

The decision then goes on to explain this apparent contradiction. First, the essential prerequisite for copyrightability is that the matter be original. Some compilations are original, perhaps in terms of selection criteria or presentation. The phone book displays no such originality. There is more starting at ¶ 22 (subsection B); Article 8 of the Constitution is referenced in ¶ 23. The gist of O'Connor's opinion is that, yes, copyright law does go back to the Constitution, and has to be considered. In ¶ 26, she writes,

But some courts misunderstood the statute. ......

What really matters is not how you register your copyright, but whether your work is original.

In 27, O'Connor directly addresses the Lockians among us: she explicitly refutes the "sweat of the brow" doctrine.

Making matters worse, these courts developed a new theory to justify the protection of factual compilations. Known alternatively as “sweat of the brow” or “industrious collection,” the underlying notion was that copyright was a reward for the hard work that went into compiling facts.

Instead, O'Connor held that it was originality that mattered.

In ¶ 32: "In enacting the Copyright Act of 1976, Congress dropped the reference to “all the writings of an author” and replaced it with the phrase “original works of authorship.”"

¶ 46 states exactly what Feist did [emphasis added]. You can do it too.

There is no doubt that Feist took from the white pages of Rural's directory a substantial amount of factual information. At a minimum, Feist copied the names, towns, and telephone numbers of 1,309 of Rural's subscribers. Not all copying, however, is copyright infringement. To establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.

Bottom line, ¶ 50:
The selection, coordination, and arrangement of Rural's white pages do not satisfy the minimum constitutional standards for copyright protection. As mentioned at the outset, Rural's white pages are entirely typical. ... In preparing its white pages, Rural simply takes the data provided by its subscribers and lists it alphabetically by surname. The end product is a garden-variety white pages directory, devoid of even the slightest trace of creativity.

Pamela Samuelson wrote in her paper "The Generativity of Sony v Universal: The Intellectual Property Legacy of justice Stevens"

The Register of Copyrights characterized Feist as having “‘dropped a bomb’” on U.S. copyright law 17 because it upset settled expectations of publishers of directories and databases who had long relied on “sweat of the brow” copyright caselaw.



1991: Basic Books, Inc. v. Kinko's Graphics Corporation
Federal District Court, NY
Just because it's been published in a book does not mean you can use it freely in teaching a course. This was considered relatively obvious; nobody appealed.

1993: Campbell v Acuff-Rose Music, relating to the 2 Live Crew parody of Roy Orbison's Prety Woman.

1999: Estate of Martin Luther King, Jr., Inc. v. CBS, Inc.

MLK's "I have a dream" speech is not in the public domain. The legal issue was that the speech was delivered in 1963, before the 1989 Berne Convention Implementation Act; however, the copyright was not registered until AFTER the speech. In the pre-Berne era, publication before copyright could make copyright impossible. The technical issue: did giving the speech constitute "general" publication or "limited" publication?

2000: UMG v MP3.com
    Federal District Court, NY
The court implicitly rules that you can't download copies even if you already own a copy, but that might not have been the central issue.

Copyright and traditional music


A quote from http://www.edu-cyberpg.com/Music/musiclaw2.html:

John and Alan Lomax, who also devoted themselves to collecting and preserving traditional folk music, took the controversial step of copyrighting in their own names the songs they collected, as if they had written the songs themselves. They even copyrighted original songs collected from other singers, such as Leadbelly's "Good Night Irene."

The Leadbelly incident occurred under the pre-Berne rules, where first-to-register meant something, even if you were registering the copyright of someone else's work.

  
2006-07 Da Vinci Code case: (actually filed in England, which has different laws): authors Leigh & Baigent of the 1982 book 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 Brown's 2003 book The Da Vinci Code. Did Dan Brown violate copyright?

Not if it was a "factual" theory, which is what the judge ended up ruling.


MGM v Grokster, 2005

Introduced doctrine of copyright inducement
This case left Sony SNIU framework intact, despite MGM's arguments against it. Indeed, the justices took pains to argue that the Grokster situation was very different than Sony's.

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.

The ruling introduced doctrine of copyright inducement
 
Note that the District Court and the Ninth Circuit granted summary judgement to Grokster! That is, they felt Grokster's case was very strong under the Sony doctrine.

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

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. However, computer technology can often be spread at zero cost, with no clearly identifiable responsible "manufacturer", and sometimes there is a Free Spegpd Peter Dordal <gpd@cs.luc.edu>ech issue as well.


Reverse engineering

Many reverse-engineering cases are based on copyright, and on the Sony v Universal case in particular. (Note the irony that Sony, then on the side of copyright infringers, is now involved in aggressive legal attempts to ban software and hardware that enables infringement of PS3 games.)

Sega Enterprises v Accolade, Ninth Circuit, 1992: Accolade made copies of the Sega ROM and reverse-engineered it. Accolade won.

Sega argued that all four Fair Use factors were in their favor. The Ninth Circuit dismissed much of this, pointing out that copies of Sega's program were not being distributed at all, and were not even being used for infringing game play within Accolade. The copies were made only to create new games; Accolade's only "harm" to Sega was as competitor. The Ninth Circuit did cite the Sony decision regarding the possibility that an entire copy might in some cases be fair use, and that "[w]hen technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose [to stimulate artistic creativity for the general public good]" (in turn quoting an earlier copyright case).

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 
The ISP must take down material "promptly", and notify the user. The user can respond with a putback request, which must contain the following:
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 in 2007 by Time-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 completely certain of the dates). 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:
It looks like Warner finally gave up on the last item.

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

Viacom also sued Youtube, and held out for more than Warner. This case has not yet come to trial (though it may nonetheless be over). 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.

YouTube was founded in early 2005 by Chad Hurley, Steve Chen and Jawed Karim. The original model was as a forum for funny home videos, but this did not quite attract the attention for which the founders had hoped.

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 over the years from "video grokster" to Good Internet Citizen, with Predominately 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 will be difficult to download; Youtube has certainly (and intentionally) chosen a setup to make downloading of video nonobvious. But vidtomp3.com makes downloading 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"?

Finally, note that vidtomp3 has run into significant problems in recent years (since 2010 sometime?) with unrestrained advertisers. One strategy is advertisers who display a button that says click here to download, which is either more prominent than the actual button or entirely obscures it.

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. (Viacom has appealed this ruling to the Second Circuit; more at http://news.viacom.com/news/Pages/youtubelitigation.aspx.)

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)(i): 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.



Update on part (ii) above, from page 10 of the decision. The House Report on the OCILLA part of the law 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."

What would have happened had the judge ruled the other way?


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?


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. High-end 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 [omit?]

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:
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:
   

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. Note that, on the face of it, this last point undermines the Kelly reasoning on effect on the market.

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.

Google then appealed the case to the Ninth Circuit.

Ninth Circuit

Ninth Circuit then reversed, ruling 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 (the server test):
[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,...." Another point was that the Campbell song was intended to poke fun directly at Orbison's song, not to be general social satire.

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]. There were echoes of this issue in the Sony case: Universal Studios did not prove that they were harmed, because the market for home sales of movie videotapes did not exist, because Sony's Betamax was the first VCR on the consumer market.

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

[omit fall 2011]
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. But they apparently did not actually file a lawsuit against Amazon.

pro-kindle arguments:

anti-kindle arguments