Computer Ethics, Summer 2011

LT 412;  6:00-9:00 TTh, May 31, Class 3

Paper 1


Sony v Universal City Studios, 1984

This was apparently a near miss; originally it looked like the vote would be 6-3 against Sony [wikipedia, based on Thurgood Marshall's papers]. The four dissenters were solidly against Sony, taking a view that the primary function of the betamax VCR was copyright infringement. Even after the 5-4 Sony final decision, it seems clear that a majority on the court (perhaps the original 6-3 majority) still felt that personal home copying was not fair use; ie was in fact infringement. Justice Stevens played a major role in the shift; Justice White also played a role in getting the court to realize that the issue was not whether such copying was infringement, but whether the betamax should be prohibited because of it.

There was also some concern on the court about to what extent Universal City Studios should have to prove actual harm. They did not do so, but that was largely because there was no market for home videos (how could there have been?) and they would have been left to prove that the existence of taped movies cut into advertising revenue for movies shown on TV (most of you won't have experienced when that was sometimes a big event). Requiring the plaintiff in a copyright case to prove actual harm remains controversial; see the Perfect 10 case (later). In Blackmun's dissent, he wrote,

[The copier] must demonstrate that he had not impaired the copyright holder’s ability to demand compensation from (or to deny access to) any group who would otherwise be willing to pay to see or hear the copyrighted work.... Even a showing that the infringement has resulted in a net benefit to the copyright holder will not suffice.
  
Harry Blackmun, Thurgood Marshall, Lewis Powell, and William Rehnquist dissented, holding that Sony's new device should not be allowed. Blackmun wrote "there can be no question that under the [copyright] Act the making of even a single unauthorized copy is prohibited." Contrast this with Stevens' "One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home". Why do you think Stevens said this? And got four other justices to sign on to his opinion?

Blackmun also stated the following regarding fair use (emphasis added):

Fair use may be found when a work is used "for purposes such as criticism, comment, news reporting, teaching, . . . scholarship, or research." ... other examples may be found in the case law. Each of these uses, however, reflects a common theme: each is a productive use, resulting in some added benefit to the public beyond that produced by the first author's work....

"Productive" use seems to be a slightly lower standard than "transformative" use, but in Blackmun's mind it was not Fair Use if you were just making an outright copy ("consumptive" use). You had to be adding something to society, somehow.

Where would we be if this decision had gone the other way? It seems likely (though not certain) that the 1999 RIAA v Diamond case about the Rio mp3-player would then have gone the other way. And if that happened, Apple would likely never have introduced the iPod or iTunes (and it seems pretty clear nobody else would have both the vision and the clout to create something like iTunes), and perhaps not the iPhone or iPad. And Apple pretty much created the smartphone market with the iPhone; the cellular phone industry remains very conservative. Although phones make excellent mp3 players, it is not at all clear the telecommunications industry would have supported this use.

Noted IP-law commentator Pamela Samuelson wrote in her paper "The Generativity of Sony v Universal: The Intellectual Property Legacy of justice Stevens"

Sony has been highly influential in new technology cases, such as those permitting reverse engineering of computer programs and development of add-on software, and those limiting liability of Internet service providers and search engines. Digital access initiatives, such as the Internet Archive and Google’s Book Search Project, rely on Sony as a key supporting precedent. Had Justice Blackmun’s fair use analysis prevailed in Sony, few, if any, of these developments would have survived copyright challenges.

Justice Stevens had a long history of feeling that the public was a significant stakeholder in the decision to grant the "copyright monopoly", and was inclined to take the public's interests seriously. Blackmun, despite his universally acknowledged liberalism, argued strenuously here against the rights of the public. Why? Likely he saw the rights of creators as on the table here, challenged by a big corporation (Sony) that wanted to take them away.

Ironically, a different Sony outcome thus might have made file-sharing more prevalent; without iTunes there would be no alternative to CD purchases.

In 2003, following the successful shutdown of Napster -- whose Sony defense was rejected by the Ninth Circuit -- the RIAA sued Aimster, a similar music-sharing site, and made the following list of anti-Sony arguments [from Samuelson]:
  1. The primary use of the defendant’s system was for infringement
  2. Aimster was providing a service rather than a machine
  3. There was an ongoing relationship between Aimster and its customers
  4. Aimster's service enabled not only home copying, but distribution
  5. The system was specifically designed to enable infringement
Judge Posner of the Seventh Circuit wrote that none of the above applied, but that Aimster was in trouble anyway because [emphasis added - pld]  "Aimster has failed to produce any evidence that its service has ever been used for a noninfringing use, let alone evidence concerning the frequency of such uses." Posner then wrote his own anti-Sony proposal, in the form of a cost-benefit argument, suggesting that the SNIU model be replaced with an analysis of the legitimate benefits of the new technology versus the social costs, and taking into account the cost of adding technology to support the interests of content owners. Unless that cost were prohibitively high, manufacturers would be expected to take steps to minimize the potential for infringement.

Recording broadcasts remains controversial. Under FCC rules, HDTV receivers are to respect the "broadcast flag" and limit the copying of TV broadcasts when indicated by the broadcaster. The limit can be temporal (eg the copy must be viewed within seven days); another idea is to limit replay to the original device. However, the courts have struck down this rule because it was not based on actual legislation from Congress. To date [May 2011], Congress has not passed legislation mandating adherence to the broadcast flag.

Criminal copyright violations

In 1994 David LaMacchia ran a "warez" site as an MIT student; that is, he created an ftp site for the trading of (bootleg) softwarez. He did not profit from the software downloads; in this, his site was a precursor of today's file-sharing systems. Because of the lack of a profit motive, the government lost its case against him. The NET act was passed by congress to address this in future cases. It criminalizes some forms of noncommercial copyright infringement, which until then hadn't apparently been illegal. (Copyright owners like the RIAA, or in LaMacchia's case Microsoft, could still go after you).

17 U.S.C. § 101
§ 101. Definitions

Add the following between "display" and "fixed":
The term "financial gain" includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.

Does this cover peer-to-peer filesharing? What if you are just distributing music you love?

17 U.S.C. §§ 506 & 507

§ 506. Criminal offenses
(a) Criminal Infringement.--Any person who infringes a copyright willfully and for purposes of commercial advantage or private financial gain shall be punished as provided in section 2319 of title 18. either--
  1. for purposes of commercial advantage or private financial gain, or
  2. by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,
shall be punished as provided under section 2319 of title 18. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.

How does the NET act affect file sharing?
Note that the law includes both reproduction and distribution.
Note the retail $1000 cutoff. Arguably that is 1,000 tracks. So far, prosecutors have been loathe to apply the NET act to music filesharers. This is partly due, no doubt, to the added burden of proving "willful" infringement: the law states that file sharing itself is not sufficient to establish "willfulness" (infringement "with knowledge of or 'reckless disregard' for the plaintiffs' copyrights" -- arstechnica.com).
 
In 1994, mp3 file sharing had not yet become significant.

Napster

Napster was started June 1999. Content owners promptly sued, and Napster lost in federal district court in 2000. The Ninth Circuit appeals court then agreed to hear the case. They granted an injunction allowing Napster to continue operating until the case was decided, because they took seriously Napster's arguments that Napster might have "substantial non-infringing uses" and that Napster was only a kind of search engine while the real copyright violators were the users. The Ninth Circuit eventually found that Napster did indeed have Substantial Non-Infringing Uses, but they ruled against Napster by January 2001. After some negotiating, Napster was ordered in March 2001 to remove infringing content, which they technologically simply could not do, and so they shut down in July of that year.

Bottom line: the Betamax videotaping precedent [below] was rejected because, although SNIUs existed for Napster, Napster had actual knowledge of specific infringing material and failed to act to block or remove it. Also, Napster did profit from it.
    
However, the court refused to issue an injunction for quite a while; it was clear that the Betamax precedent was being taken very seriously.

Legality in Napster era: napster.com was a clearinghouse for who was online, and what songs they held. Actual copying was between peers.

Did that make it ok?

Napster figured the RIAA would never bother with individual lawsuits against users.

Were they right?

Are such suits justified?
What evidence should be required to obtain a subpoena to identify the home users involved?

Note that signed and indie musicians fare VERY differently under the napster model!

Also note the long-term implications for "future fans"

IS napster like radio?

Napsterized business model for musicians: make money giving live concerts, not selling CDs.

IS THIS REALISTIC? IS THIS FAIR? IS THIS JUST LIFE?
Is this a case of "harm" being unequal to "wrong"?

Question: is it ethical to cause harm?
What about economic harm?


RIAA Lawsuits

When you pirate mp3s, you're downloading COMMUNISM

Part of the Napster business model was that the RIAA wouldn't ever bother to sue individual music-file-sharers. But when file-sharing continued after Napster was closed down, the RIAA felt forced to do just that.

File-sharing software works by sharing your files too; advertising your music folder(s) online when you join the service. Investigators look for these, by participating in online file-sharing networks. They record your IP address and the listed songs; they also generally download a few of the songs.

Different software works different ways. Kazaa shows a "share" folder. bittorrent shows your connection to a torrent "tracker" site, but there's no notion of "shared files".

Step 1: The RIAA files a "John Doe" lawsuit against your ISP. They issue a subpoena to your ISP, asking for your name, and, if relevant, the MAC address of your computer. These subpoenas are almost always in a group, asking for multiple customer names.

One legal criticism of RIAA lawsuits has been over joining together of multiple individuals in one ISP lawsuit. Normally you can't do that unless you believe the cases are related.

Prior to December 19, 2003, the RIAA didn't need to sue ISPs: it could subpoena ISP records without a lawsuit, under a provision of the DMCA. But then a court ruled that this DMCA provision did not apply to RIAA-type cases. [RIAA v Verizon]

The ISP usually complies, usually without contacting you. However, it is possible for either the ISP or you (if the ISP contacts you) to file in court to "quash" the subpoena. You do need a reason for that, however. It *is* possible to file to quash without giving up your identity, but you have to hire a lawyer.

Step 2: the RIAA now sends you a settlement letter, offering you a chance to settle before the lawsuit is filed. The settlement offer is usually something like $500-1000 per track. The RIAA may or may not distinguish between tracks that showed up in your directory, and/or tracks that they actually downloaded.

You can refuse to settle. However, in that case the RIAA will almost certainly go to Step 3.

Once the possibility of a lawsuit is raised, destroying evidence becomes both a civil and criminal offense.

Step 3: The RIAA files a lawsuit. They are likely to ask for a forensic copy of your hard drives (they may ask for the hard drives themselves, but you're under no obligation to give them up). An independent forensic examiner will copy the drive, and determine whether or not the songs are there. (The MAC address from Step 1 plays a role here in determining whether they've got the right computer; so does other identifying information about KaZaa, etc.)

The cost of settlement typically goes up a little at this point.


Some defenses that have NOT helped:


Some possibly valid defenses in court:

The problem with all these is that you don't want to be going to court, and the RIAA does not have to consider these when settling.

It wasn't your computer.
Typically this is due to the ISP's misidentification of you. Sometimes it's because someone jacked your wi-fi. In this case the forensic examination of your computer will probably help.

Your roommate used your computer
Your problem here is proving that this is the case. In civil cases, the burden-of-proof requirement for the plaintiff is much more modest than in criminal cases.

Your kids used your computer
There is a very limited legal doctrine of parental responsibility. Originally, the RIAA did sue parents, or made them settlement offers. More recently, after several losses, the RIAA has been suing the minors themselves. This is a little tricky; the court must appoint an attorney, often at the RIAA's expense. Also, in Capitol_v_Foster, Deborah Foster eventually won $68,000 in legal fees from the RIAA. Foster's daughter did the downloading. (The case was brought in 2004; the RIAA dropped their suit a year later but Foster continued with her countersuit. The judge eventually ordered the award for legal costs without a full trial.)

You didn't actually download any songs
What the RIAA has, as evidence, isn't evidence of downloading. All they have is evidence that you "offered" songs for downloading. At this point it might matter a great deal whether the RIAA actually tried downloading anything from your computer.

Jammie Thomas-Rasset

Jammie Thomas-Rasset had her case go to trial (the first RIAA case to reach a jury trial; Tenenbaum's July 2009 trial was the second) and she lost and was ordered to pay $220,000. But Judge Michael Davis rethought this issue, and in in September 2008 rejected the "offered for distribution" theory, and ordered a new trial. Alas, the new trial reached a judgement against Thomas of $1.9 million ($80,000 per song). The judge then lowered the amount to a total of $54,000, and the RIAA allegedly offered to settle for half that. But Thomas-Rasset did not, and in November 2010 there was a third trial leading to a total damage award of $1.5 million. The judge has yet to rule on reducing the award.

See http://www.citypages.com/2011-02-16/news/jammie-thomas-rasset-the-download-martyr (Feb 2011).

Joel Tenenbaum case

Joel Tenenbaum was caught downloading files by the RIAA, and was offered their past settlement offer, typically about $5000. He chose to fight. He got Harvard Law professor Charles Nesson to take his case pro bono; Nesson also involved his law-school class. They put up a vigorous and spirited defense before Judge Nancy Gertner.

They lost.

When it came time to assess damages (July 31, 2009), the jury decided $22,500 per track was fair, for a total of $675,000. Oops.

Actually, a core part of Tenenbaum's defense, and the central part of his appeal, is that the damages (and settlement offer) were disproportionately high, and not tied to actual damages. Normally, when you sue someone, all you can ask for is actual damages. Actual retail cost of music tracks is about $1. Tenenbaum got socked with 22,500 times actual damages!

Tenenbaum's case was the second RIAA case to go to trial. Jammie Thomas-Rasset was first; in her first case the verdict was $222,000. Thomas-Rasset got a new trial; the second verdict was $1,920,000.

Moral: think hard about settling early.

Tenenbaum's music downloading appeared to be both intentional and egregious; he had actually been sharing some 800 songs. However, it was done when he was a student.

An interesting point about the case is how the judge dismissed the fair-use claim based on the legal theory that fair use could not apply after Apple opened its iTunes store; that is, once it became possible to buy individual tracks, file-sharers lost any claim to fair use. That is, the underlying justification for "fair use" was that mp3 tracks were otherwise unavailable. Tenenbaum's appeal in part is about the idea that until iTunes dropped DRM its music tracks were still not really comparable to downloaded ones.

What do you think of this Fair Use argument?

See http://arstechnica.com/tech-policy/news/2009/07/o-tenenbaum-riaa-wins-675000-or-22500-per-song.ars. and the links at the end to earlier articles.


It's really hard to generate much sympathy for the RIAA methods.
Consider, though, the theory that file sharing is a violation of their copyrights, and that such individual lawsuits are the ONLYway to proceed.

What's unfair about this process? What is fixable, within the constraints of the US legal system?

Some things to think about:


RIAA-2

The RIAA has officially given up on filing lawsuits against infringers, at least for now; they announced this policy in December 2008, just after the Tenenbaum case (lawsuits still in the pipeline will continue). The new policy is to work with ISPs to
See http://www.wired.com/epicenter/2008/12/riaa-says-it-pl.

Why would ISPs want to go along with this plan? Here are a few reasons:
  1. file-sharers are also huge bandwidth hogs. (Linux users are too, but there aren't enough of us to matter. (How many times a day do you rebuild your kernel?)) The broadband business model basically gives every customer the ability to download several dozen gigabytes a day, but the hope is that most customers will actually download somewhere in the range of dozens of megabytes a day. File-sharers who download movies pretty solidly put themselves in the heavy-downloaders camp, tying up resources for everyone.
  2. The ISP might get sued. The RIAA probably wouldn't win, but it would be an expensive hassle.
  3. It's the Right Thing To Do. Knowingly cooperating with copyright infringement is wrong.
  4. Eventually, the RIAA is likely to press for laws requiring ISPs to cooperate. Better get started now.


The RIAA model today

While the RIAA has officially gotten out of the business of suing everyone, the US Copyright Group (USCG) has stepped up to the plate, having begun operations in early 2010. They follow the RIAA model, suing ISPs for the identities of subscribers and then sending settlement letters. USCG does this at the behest of individual movie producers; they have gone after downloaders of The Hurt Locker, for example. Many of the Hurt Locker cases were later dropped, likely over jurisdictional issues.

This program ran into a snag when, in March 2011, US District Court Judge Harold Baker (Central District, Illinois (Urbana)), in the case VPR Internationale v Does, ruled that "an IP address is not a person", and that he would not grant subpoenas of user names associated with given IP addresses. The ruling not to grant the subpoena was issued in March, but the explanation was not entered until April 29. Judge Baker cited FBI raids on child-pornography suspects, who turned out to be innocent but who had had their wifi hijacked. It remains to be seen whether other District Court judges go along with this approach. The ruling closes with a technical legal point:

In its order denying the motion for expedited discovery, the court noted that until at least one person is served, the court lacks personal jurisdiction over anyone. The court has no jurisdiction over any of the Does at this time; the imprimatur of this court will not be used to advance a “fishing expedition by means of a perversion of the purpose and intent” of class actions.

In May 2011, some 23,000 users were receiving settlement offers for downloading the movie The Expendables. Many if not all these users were likely discovered before Judge Baker's March ruling.

As with the RIAA lawsuits, usually someone must be serving as an upload point in order to have their IP address captured.

While we are on the topic, the PROTECT IP act was passed by the Senate Judiciary Committee on May 26, 2011; this law would allow judges to seize domain names such as thepiratebay.org, isohunt.com, cinematorrents.com and other torrent sites. For sites in the U.S., the actual servers could also be seized. Note that the U.S. does pretty much control the top-level DNS servers, but that nothing in principle prevents users from pointing their DNS resolver at different, non-US, "root servers".



Bill O'Reilly on Intellectual Property (also on Privacy): http://www.youtube.com/watch?v=hCSaF4KC3eE.

Bill's correspondent is attorney Megyn Kelly. Kelly acknowledges that it is indeed a "federal offense to access email without authorization", but goes on to say that the web site is probably ok [~2:00 minute mark]. O'Reilly responds with "they're trafficking in stolen merchandise" and compares it to if "you steal somebody's car".

At 3:13, he says there is "no difference between taking a person's letter out of the mailbox and taking someones email off their internet site".

Is there a difference?

To be fair, O'Reilly here is not talking about file sharing, but rather someone hacking into someone (Palin's) private email account.


Michael Eisner, CEO of Disney, testifying before Congress in June 2000: (as included in Halbert & Ingulli, CyberEthics, 2004)

Eisner's statement remains a pretty clear example of a particular point of view, even if some of his concerns are a bit dated. He does use "intellectual property" as if you're just supposed to assume it's the same as physical property. His comments about "Pirates of Encryption" are a bit odd, especially considering that the goal of many encryption crackers was and is the ability to play purchased DVDs on arbitrary (eg linux) systems. Note that he appears to equate that with credit-card theft.

[Although Eisner's remarks supposedly are from 2000, he refers to the 2003 movie Pirates of the Carribean.]

Disney believes in technology
5 rules:
     1. legislative mandate for technological fixes
     2. international protection
     3. public education - many don't know it is wrong
     4. use appropriate technological measures
     5. appropriate pricing
            does free copying drive down prices?

DISCUSSION: Do you agree with Mr Eisner?

Conversly, does Disney engage in theft by overpricing (cf Eisner's 5th rule)

Some side issues:

Can the FILM industry survive on the napster model?

Here we get into ECONOMICS. Thirty years ago, the movie industry income from selling recordings was zero, and the industry did fairly well. That said, it seems likely that going back to those days would be impossible.

From 2002 to 2008, the film industry grossed more in DVD sales than at the box office. However, that trend reversed in 2009. It is not clear whether filesharing is a significant factor, or, for that matter, legal on-demand downloads (which are not counted as DVD sales). (TV rights in the past were often as large as box-office; I do not know if that trend has continued but I doubt it.)
Figures in billions (http://www.reuters.com/article/2010/01/05/us-dvd-idUSTRE5BU0HS20100105):


 box office
 DVD, other sales
 rental (all forms)
2008
 8.99
 10.06
 1.20
2009
 9.87
 8.73
 1.27



Other ethics/economics questions:
Check out http://thepiratebay.org. O brave new world!


What about the market for video games that run on a general-purpose computer, rather than a console, and which do not require a subscription fee to access a central server? Supposedly the main reason this market has all but collapsed is that it is much too easy to defeat copy protection, and with games running $50 each, there is considerable incentive to do this.

If this is true, it would be an example of how inability to enforce copyrights led to collapse of a market.

Console games represent, in a sense, a move by game makers to hardware-based copy protection.

(To be sure, game consoles also offer a standardized hardware platform and guarantee high-performance graphics, but most personal computers these days have high-performance graphics. Many of the most successful PC-based games in fact involve registration and monthly fees (Second Life (which can be played for free), World of Warcraft).)


Digital Restrictions Management

(aka Digital Rights Management)

How does DRM fit into the scheme here? Is it a reasonable response, giving legitimate consumers the same level of access they had before? Or is it the case that "only the legitimate customers are punished"?

The general idea behind DRM is to have
  1. encrypted media files, with multiple possible decryption keys
  2. per-file, per-user licenses, which amount to the encrypted decryption key for a given file
  3. player software (the DRM agent) that can use some master decryption to decrypt the per-file decryption key and then decrypt the licensed file. The DRM agent respects the content owner's rights by not allowing the user to save or otherwise do anything with the decrypted stream other than play it.
The last point is the sticky one: the software must act on behalf of the far-away content owner, rather than on behalf of the person who owns the hardware it is running on. Open-source DRM software is pretty much impossible, for example; anyone could go into the source and add code to save the decrypted stream in a DRM-free form. Windows too has problems: anyone cat attach a debugger to the binary DRM software, and with enough patience figure out either what the decryption key actually is, or else insert binary code to allow saving the decrypted stream.

iPods, iPads, kindles, nooks, DVD players, and other closed platforms are best for DRM. Under windows, DRM is one of the issues leading Microsoft towards "secure" Palladium-style OS design under which some processes can never have a debugger attached. ("Protected processes" were introduced into Vista/win7.)

Most DRM platforms allow for retroactive revocation of your license (presumably they will also refund your money). This is creepy. Content providers can do this when your device "phones home", when you attempt to download new content, or as part of mandatory software upgrades.

Note that the music industry, led by iTunes, no longer focuses on DRM sales. E-book readers, however, are still plunging ahead. One iPad market-niche theory is that the machine will provide a good platform for DRM-based movies and books.
 
Some older DRM mechanisms are based on the "per-play phone-home" model: the DRM agent contacts the central licensing office to verify the license. This allows, of course, the licensing office to keep track of what you are watching and when. This raises a significant privacy concern. I have not heard of any recent systems taking this approach.

Another major DRM issue is that different vendors support different platforms. DRM might require you to purchase, and carry around with you, several competing music players, in order to hold your entire music library.

Perhaps the most vexing real-world DRM problem is that licenses are inevitably lost, sooner or later. Keeping track of licenses is hard, and moving licensed content from one iPod to the next (eg to the replacement unit) is nontrivial. If the first iPod is lost or broken, and Apple no longer supports the license, your content is lost. When Wal*Mart switched to selling non-DRM music a year ago, they also dropped support for the DRM music they'd sold in the past, meaning that those owners would see their investment disappear whenever their current hardware platform needed to be replaced.

Traditional CDs have a shelf life of (it is believed) a few decades, and traditional books (at least on acid-free paper) have a shelf life of centuries. Compare these to DRM lifetimes.

See also http://xkcd.com/488.

General copyright law rules

Different categories may be (and usually are) subject to different rules. See http://copyright.gov/title17 for (voluminous) examples.

A local copy is at http://cs.luc.edu/pld/ethics/copyright2007.pdf.
 
Rules for theatrical performances are tricky: these are ephemeral performances! Videotaping a performance may violate actors' rights.  Usual issue is rights of the DIRECTOR.
 
Copyright is held by creator unless:
 
Copyright covers expression, not content. 
Famous case: Feist Publications v Rural Telephone Service:
    (Feist v Rural) (1991, Justice O'Connor)
    the phone book is NOT copyrightable.
(some European countries DO have "database protection". Gaak!!)
More info below
 
Note that if you buy a copy, you have right of private performance (so to speak; there's no special recognition of it), but not public.

First Sale doctrine: after YOU buy a copy, you can re-sell it. Copyright law only governs the "first sale".
 
Who owns the copyright? The creator, unless it is a "work for hire", or the copyright is sold.

Fair Use:
This idea goes back to the constitution: the public has some rights to copyrighted material. Limited right of copying for reviews, etc

Good-faith defense protects schools, libraries, archives, and public broadcasts (but not me and Joel Tenenbaum); this limits statutory damages to $200 IF infringement was "reasonably believed" to be fair use. Note that, in the real world, this strategy doesn't usually apply (though it probably means that schools don't get sued much; it's not worth it.) Section 504(c)(2)(i).

In other cases, statutory damages may be reduced to $200 if the "infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright".

Statutory damages are a flat amount you can ask for at trial instead of actual damages. See Section 504. Part of the theory is that by asking for statutory damages, you do not have to prove the number of copies made. But note the effect on the RIAA cases: actual damages might be in the range of $1/track, if you're downloading for personal use, while statutory damages are usually $750/track. Statutory damages were created in an era when essentially all copyright cases that reached the legal system involved bulk commercial copying. If a DVD street vendor is arrested, statutory damages make sense, because of the likelihood that a rather large number of copies have been sold in the past. But file-sharing is about single copies.
   
Title 17 United States Code, Chapter 5, Section 504, Paragraph (c) Statutory Damages. —

(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.

This was written to address large-scale commercial copyright infringement. Should it apply to personal use?

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.

[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.

2009: Pro IP act
    This may lead to an increase in statutory damage claims, by allowing plaintiffs to claim multiple infringements.

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 Intelectual 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.


Reverse engineering

Many reverse-engineering cases are based on copyright, and on the Sony case in particuar.

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.