Copyright Laws and Cases





RIAA Lawsuits
RIAA2
Fair Use
    Sony v Universal City Studios
Criminal infringement
Napster
Music sampling
Transformative use
    Cariou v Prince
O'Reilly
Eisner
The Napster Model and Film
Aereo
DRM
Laws
Cases
    MGM v Grokster
DMCA
    Viacom v YouTube
Server-based Filesharing revisited
Sita
Dozier
Google Books



RIAA Lawsuits

When you pirate mp3s, you're downloading COMMUNISM
From ModernHumorist.com, probably 2001 or 2002

Part of the original Napster file-sharing 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. In some recent cases, judges have rejected this strategy (see the quotes below from Judges Lloyd and Baker).

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.

One legal tool on the RIAA's side is statutory damages. A plaintiff in a copyright-infringement lawsuit can ask either for actual damages ($1/track) or statutory damages, which are between $750 and $30,000 per "work" (that might be for an entire CD, but if you copy 20 songs from 20 different CDs then you might get hit with a $600,000 judgement). The original legal theory behind statutory damages was that you're suing a bootleg publisher and you can't figure out how many copies he or she sold. Should these apply in individual lawsuits?

The RIAA won a verdict against Limewire, and at one point they were asking for statutory damages of $75 trillion. They eventually settled for $105 million, 0.00014% as much.



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 or even your ISP connection
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 might help. Alas, the organization suing you may have absolutely no interest in settling. Before giving up on these lawsuits entirely, the RIAA had come around to actually looking at the evidence. But later litigants start from scratch here.

Your roommate used your computer or your ISP connection
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 some reversals, 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 case

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 $222,000. 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. In July 2011 the judge reduced this to $54,000. The RIAA appealed this decision to the Eighth Circuit.

In September 2012 the Eighth Circuit ruled that the large damage award -- when compared to the actual damages -- was constitutional. The Eighth circuit apparently did not rule on whether the "offered for distribution" theory (now sometimes known as the "making available" theory) was actually grounds for infringement. The Eighth Circuit also reinstated the original $222,000 judgement. The Supreme Court refused to hear the appeal, leaving this $222,000 award apparently final.

Thomas-Rasset has since indicated she intends to declare bankruptcy.

In later, post-RIAA cases, there has been much more controversy as to whether the "making available" theory is sufficient.

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.

Judge Gertner reduced the damage award by 90%. Judges usually do this through a process known as remittitur, meaning that the damage award was simply too high. Gertner, however, argued that the full award was unconstitutionally high. The First Circuit dismissed this argument, and sent the case back to the District Court with the remittitur option open.

Gertner retired in September 2011.

The Supreme Court on May 21, 2012 refused to hear Tenenbaum's appeal that Gertner's constitutional argument should not have been dismissed. So the case is back in what would have been Gertner's court, except that Gertner had by then been replaced by Judge Rya Zobel.

In August 2012, Zobel upheld the original verdict. Zobel, clearly much less sympathetic to Tenenbaum than Gertner, pointed out in her opinion that the penalty was low for willful infringement and "even" in the range for non-willful infringement.

In June 2013 the First Circuit upheld the award.

Tennenbaum declared bankruptcy in 2015.

One of the Tennenbaum legal team's arguments was that the original $30,000-per-infringement statutory penalty was written back in the days when copyright violations were perpetrated by for-profit bootleggers, not individuals. This turns out to be false. In 1999, Congress passed the Digital Theft Deterrence and Copyright Damages Improvement Act, raising the statutory ceiling for non-willful infringement from $20K to $30K and for willful infringement from $100K to $150K. Congressional testimony about the bill made it clear that the goal was to stop individual piracy. However, note that the bill was passed before Napster; there was very little individual music file-sharing at that point. There are some indications that Congress was primarily concerned with software privacy.



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 ONLY way to proceed.

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

Some things to think about:
There is  a good blog about these lawsuits by Ray Beckerman, attorney, at recordingindustryvspeople.blogspot.com. Here's a quote there by Judge Lloyd of San Jose, CA:

the court will not assist a plaintiff who seems to have no desire to actually litigate but instead seems to be using the courts to pursue an extrajudicial business plan against possible infringers (and innocent others caught up in the ISP net). Plaintiff seeks to enlist the aid of the court to obtain information through the litigation discovery process so that it can pursue a non-judicial remedy that focuses on extracting "settlement" payments from persons who may or may not be infringers. This the court is not willing to do.

As we shall see, the RIAA has moved on from these lawsuits, but the movie industry is picking up the slack.



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. The RIAA might decide to sue only customers of ISPs that have not cooperated with the cutoff proposal
  5. Eventually, the RIAA is likely to press for laws requiring ISPs to cooperate. Better get started now. Think about SOPA-2 (a mandatory ISP-cooperation rule is apparently not part of SOPA-1).
  6. The content owner might offer the ISP a cut of any settlements collected; Rightscorp apparently did this to get Cox to agree to send infringement notices to its customers. See http://torrentfreak.com/rightscorp-offered-internet-provider-a-cut-of-piracy-settlements-150525/.

See also Rightscorp below.


ISPs and copyright infringement


Apparently ISPs are signing up for the RIAA-2 strategy, though in somewhat limited ways.

http://arstechnica.com/tech-policy/2011/07/major-isps-agree-to-six-strikes-copyright-enforcement-plan/

Whether this will solve the problem remains to be seen, but warnings are a positive start.

Remember: your wired ISP is also likely your cable provider. They do not want you watching free stuff.

New Zealand has passed a law mandating the ISP-cutoff approach to file-sharers. See here.

France had a three-infringement-strikes-and-you're-disconnected law, known as HADOPI. In October 2009 a judicial-review provision was added. As of October 2011, 60 French users had reached their third strike: http://torrentfreak.com/60-french-isp-account-holders-on-their-third-strike-for-internet-piracy-111003. However, it remains unclear whether anyone was ever disconnected. In December 2011 the membership of the HADOPI commission apparently fell below the necessary quorum for further actions; if so, new appointees would need to be approved before disconnections. In July 2013 the French government repealed the law.

England now has a similar law, which in March 2012 survived a Court of Appeal challenge.

In all these cases, the subscriber can be cut off for infringing activities by some other user. That said, the subscriber does get (usually) three notices.

Residential fiber service, with speeds of up to 1 Gbps, has content owners worried. Content owners have a long history of conflicts with Google. Perhaps to allay fears, Google Fiber has taken to forwarding settlement-demand letters to its subscribers, even when it does not identify the subscriber. See http://torrentfreak.com/google-fiber-sends-automated-piracy-fines-to-subscribers-150520/. Generally, if your ISP hasn't turned over your name, you're still safe, but forwarding on the settlement offers is still very odd.




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.

Note that VPR Internationale is an adult-film publisher; it is likely that part of their strategy was that users contacted would settle promptly in order to avoid public embarrassment.

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. Bittorrent users generally do that automatically. You can prevent that, but if all the uploaders are gone then nobody can download.

In December 2013, federal Judge Stephanie Rose, in Iowa, issued a ruling that a copyright plaintiff could not use a single lawsuit to try to discover the subscribers corresponding to multiple IP addresses; each IP address had to have its own lawsuit. This, of course, makes subscriber discovery much more -- possibly prohibitively -- expensive. The legal theory in including multiple IP addresses in a single suit is called joinder, and rests on the assumption that the infringements have something in common. Such rulings have been made before, but Judge Rose took the time to understand how bittorrent works at the technical level, and crafted a careful analysis of the issue. In particular, she ruled that it was not enough that the various users were downloading a file from the same original source. You can read more at http://dietrolldie.com/2014/01/29/bittorrent-hash-file-alone-is-insufficient-to-justify-mass-joinder-cases-sdia-judge-413-cv-00271/.

Since this ruling, there have been other cases dismissed due to "improper joinder".

While on the subject, the site DieTrollDie.com is a good source of information about these cases, despite their inflammatory name. Another site devoted to news about copyright lawsuits is TorrentFreak.com. But my own favorite is copyright attorney Ray Beckerman's blog RecordingindustryvsPeople.blogspot.com.




Righthaven

The strategy of Righthaven appeared to be to make copyright lawsuits into a profit center; see https://www.eff.org/deeplinks/2010/09/righthavens-own-brand-copyright-trolling. Righthaven allegedly scoured the internet for newspaper articles posted by bloggers, and then contacted the publisher to buy the rights to the story involved. They then sued the blogger.

This was clearly an attempt to use copyright lawsuits for profit. Note that when bloggers post articles, they usually have at least some claim to Fair Use; they are essentially never posting articles to get around copyright restrictions.

Righthaven now appears to be bankrupt, after losing a case and owing the defendant's legal fees.

The domain righthaven.com was sold to a group specializing in "spineful" web hosting!

Pornography

The adult-film industry has also begun going after filesharers, as in the VPR Internationale case mentioned above. Here they rely in part on the embarrassment factor to urge defendants to settle. The EFF has been fighting some these lawsuits on privacy grounds. The usual problem is the economical discovery of the identities of large numbers of internet users known only by IP address. See https://www.eff.org/cases/west-virginia-copyright-troll-lawsuits; dismissals due to "improper joinder" are strategically important.

Despite claims in the press, it is not clear that the adult-film industry lawsuits in fact represent an attempt to profit from user filesharing. However, the attempt to consolidate thousands of user identifications in a single lawsuit suggests that the lawsuits may be much less attractive if the plaintiffs are required to file the lawsuits individually.

Malibu Media is another adult-oriented site that has taken to copyright litigation; in 2013 they apparently filed about 1300 lawsuits, amounting to a third of all US copyright cases. There is an article here, which claims that Malibu Media generally files one lawsuit per IP address, and quotes their attorney as saying that "Malibu Media drops a suit if there's any hint of a mistake".

Malibu Media has been sanctioned in Wisconsin, by Judge Stephen Crocker. In their court complaints, Malibu Media listed the titles of a bunch of pornographic films that were not even theirs (although they may have been downloaded to the same IP address). Apparently this is because Malibu Media is in fact a "high-end" erotica studio, with boring titles such as "Red Satin" and "Tuesday Morning"; they may have included other, (much) more salacious titles in their complaints for the embarrassment effect.


Prenda Law

The Chicago law firm of Steele Hansmeier, aka Prenda Law, has been pursuing multiple such claims (usually but not always pornography-related). Here is a copy of the settlement letter they were sending in 2011. Note the second paragraph on the second page:

In light of these factors, we believe that providing you with an opportunity to avoid litigation by working out a settlement with us, versus the costs of attorneys' fees and the uncertainty associated with jury verdicts, is very reasonable and in good faith.

Later on in the FAQ section, they write

Q: I haven't infringed on a copyright, why did I receive a notice?
A: ...In any of these scenarios [spouse, child, roommate, employee, wifi-jacker] the Internet Service Provider (ISP) account holder may be held legally responsible for the infringement(s) and settlement fees.

Q: What if I have an unsecured wireless network/router?
A: The Internet Service Provider (ISP) account holder is responsible for securing the connection and may be legally responsible for any infringement(s) that result from an unsecured wireless network/router. This 'defense' has been raised in many criminal matters regarding such crimes as child pornography, and the courts have generally rejected this defense. As far as we are aware, this defense has never been successfully argued, in multiple contexts, including child pornography and civil copyright infringements actions.

The idea that the account owner is responsible has in fact never been established by any court. This is not to say that the Steele-Hansmeier letter is wrong; for civil infringement no case has ever gone to trial where this defense was raised (Deborah Foster raised the defense and the RIAA dropped the case; she later won damages).

As for child-pornography cases, these are criminal, and prosecutors (though not police!) need more evidence than that your IP address was involved in downloading. Barry Ardolf was sentenced to 18 years in July 2011 for hacking his neighbors' wi-fi and framing them as child pornographers. In that case, Ardolf was intentionally framing someone; there are many other cases where the police showed up at someone's doorstep investigating them for child-pornography downloads, only to realize after a forensic examination of the equipment that it was some wifi-jacker instead. See http://www.huffingtonpost.com/2011/04/24/unsecured-wifi-child-pornography-innocent_n_852996.html (this article also claims that in Germany it is illegal to have an unsecured wi-fi network, though the penalty is modest). The bottom line: if someone raises the wifi-jacking defense in court, it is likely irrelevant as the prosecutors have more than just that.

In spring 2013, Prenda Law got themselves into very hot water before Los Angeles District Court Judge Otis Wright. Some of Judge Wright's issues have to do with the "legal extortion" aspect that is fundamental to this type of lawsuit, but there are particulars to the case that may make it different from other such cases. For example, in some respects Prenda Law appears to be its own client, in that they may have purchased the rights to some of their cases.

Judge Wright wrote, in his May 6, 2013 order,

Plaintiffs can only show that someone, using an IP address belonging to the subscriber, was seen online in a torrent swarm. But Plaintiffs did not conduct a sufficient investigation to determine whether that person actually downloaded enough data (or even anything at all) to produce a viewable video. Further, Plaintiffs cannot conclude whether that person spoofed the IP address, is the subscriber of that IP address, or is someone else using that subscriber's Internet access. Without better technology, prosecuting illegal BitTorrent activity requires substantial effort in order to make a case. It is simply not economically viable to properly prosecute the illegal download of a single copyrighted video.

Note that Judge Wright is thus aligning himself with the "making available" defense that got Jammie Thomas-Rasset her new trial: that it wasn't enough to prove "offering for download"; the plaintiffs had to prove that material was actually downloaded. But Judge Wright wants to apply this even at the evidence-gathering stage. On the one hand, at this stage there is even less reason to believe a case against an alleged downloader will develop; this would argue for Judge Wright's position. On the other hand, one could also argue that a more relaxed position on subpoenas should apply, as there is evidence that a user's account was used for infringement.

The comment about spoofed IP addresses is probably not accurate technically.

One can dispute the final sentence here, although Judge Wright's larger issue appears to be that even with statutory damages of $30,000 for one video, that is too little for a reasonable case.

Judge Wright fined Prenda Law $81,319.72, and noted the amount was "calculated to be just below the cost of an effective appeal", just like the settlement amount in Prenda Law's "extortion" letters.

But many of Judge Wright's issues with Prenda Law had nothing to do with the basic model of suing infringers. Prenda may have purchased some of the copyrights they were suing over, and failed to disclose that. There is now some evidence that they uploaded the original copies, in hopes of ensnaring downloaders (http://arstechnica.com/tech-policy/2013/06/prenda-seeded-its-own-porn-files-via-bittorrent-new-affidavit-shows/), although this is still a pending action. The principles also refused to testify in Wright's court.

Prenda Law dissolved itself in 2013, although they may be back in business under another name.

See also the following on adult-film attorney Evan Stone: http://arstechnica.com/tech-policy/news/2011/09/sanctioned-p2p-lawyer-fined-10000-for-staggering-chutzpah.ars


Rightscorp

Rightscorp is a legal company which works with several music and movie publishers, in particular BMG. According to Wikipedia, they were under contract to enforce 1.5 million copyrights in 2014. Their basic strategy is to collect IP addresses of bittorrent seeders.

Rightscorp's model is, at least initially, not to sue the downloaders, but to work with the downloaders' ISP to send notification letters. Many (but far from all) ISPs agree to do this; Rightscorp estimated at one point that only 15% of US Internet users are customers of ISPs who are willing to forward the letters.

In many of the notification letters, there is a settlement offer. The Rightscorp offers are usually in the range of $20 for first offenses, however, a far cry from the RIAA initial offers. If users don't pay, and continue to infringe, they are the target of a lawsuit.

Rightscorp has gone back to attempting to use DMCA subpoenas against ISPs; courts have differed on whether this is a legitimate tactic. The "standard" tactic is to sue the individual John Doe user first, but that is expensive.

In November 2014, BMG sued cable-Internet provider Cox Communications (BGM Rights Management v Cox Communications) for failing to forward its notification letters, and for failing to terminate accounts of repeat infringers, thus forfeiting DMCA protections for ISPs. The DMCA does indeed have some language that suggests that ISPs might qualify as "service providers" under the meaning of the OCILLA part of the DMCA law. In the past, ISPs have tended to assume they have blanket immunity.

The actual law (Section 512 of Title 12) is here. One portion states that

[The limitations of liability apply to an ISP provided it] has adopted and reasonably implemented ... a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers.

There is no legal definition of "repeat infringer"; some suggest it means anyone who has infringed twice while others suggest that it means someone who has been legally determined to be an infringer in the past. But Cox appears not to have taken "repeat infringer" seriously at all, and "terminations" were simply account suspensions; accounts were reactivated upon customer request.

Cox had a policy of refusing to forward infringement notices that contained settlement offers. But the real legal issue appears to be their refusal to terminate permanently the accounts of persistent infringers. Ironically, Cox apparently thought they had a "reasonable" policy; the DMCA does not spell out that termination must be "permanent", or cannot be appealed. Nor does the DMCA spell out what evidence of infringement is necessary.

In December 2015 a jury returned a $25 million judgment against Cox in this case, for vicarious infringement. It was the failure of Cox's account-termination policy that led to their loss of the DMCA shield.

This case may mean that other ISPs start taking repeat infringers much more seriously.


Server-based File-sharing

See below at server





Fair Use

Fair Use is the right to publish or distribute copyrighted material, without permission. Generally speaking, Fair Use has to be rather limited use. There are two broad theories as to why we need Fair Use:

Legal basis for Fair Use

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright act (title 17, U.S. Code). One of the more important limitations is the doctrine of "fair use." Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.
 
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered "fair," such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
  1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.
Question: does the First Amendment imply some sort of fair-use right to quote other works? Or does Fair Use solely derive from the Copyright Clause? Or does it have no constitutional basis at all, and simply come from 17 USC §107? Most often, Fair Use is seen as following from the "to promote useful knowledge" social-contract justification under the Copyright Clause of the Constitution.

The standard example of Fair Use is quotes used in a book review. Such quotes are essential to provide an example of the author's style, which may be a central issue in the review. However, asking permission clearly sacrifices the critic's impartiality.

Factor 1 relates to how you are using the work, and is not exclusively tied to the commercial/nonprofit issue. It may help, for example, if your use is transformative: transforming the original work into something new and at least partially unrelated.

Factor 1 is traditionally used to justify all photocopying by schools, but this is clearly overbroad.
 
PARODIES are also often considered as a Factor 1 fair-use exemption, although you should be parodying the work in question and not just using the work in a parody of something else. (Maybe not always; see 1964 MAD case below) Here are a few parodies:
Generally the creator of a parody does NOT need permission of the original author. To an extent, the parodies Fair Use exception may simply reflect the reality that original authors will usually not agree to parodies.
 
Factor 2 relates to the work itself: is it fiction? Nonfiction? Text? Video? Music? A performance? Fundamental news facts (and even sometimes images, eg individual frames from the Zapruder film of the Kennedy assassination) have been ruled "Fair Use". (The Zapruder film itself is still under copyright, held now by the Sixth Floor Museum.) Sports scores are still debatable, though copyright claims for these appear to have waned.
 
Factor 3 is not specific, but "one chapter" is probably way over the Fair-Use boundary. Quoting 300 words from Gerald Ford's biography was ruled not fair use; however, the 300 words in question were those where Ford explained his pardon of Nixon. The district court described the 300 words as "the heart of the book".

The Ford case reached the Supreme Court as Harper & Row v Nation Enterprises in 1985. The Nation magazine tried to defend its quotation on the grounds that Ford was a public figure, but the court rejected that. Another significant issue is that The Nation had published its article before the actual book was released, and the right of first publication is taken quite seriously. Also, the quotations amounted to more than an eighth of The Nation's article, if only 0.15% of Ford's book.

Music sampling, in the sense of 1-2 second snips used in another work, might be Fair Use. 10-20 seconds is a lot longer.

In Vanderhye v iParadigms LLC [the latter is the owner of Turnitin.com], the fourth circuit ruled that Turnitin's making copies of entire student papers is fair use.
     
Factor 4 is the big one. See Sony v Universal. A tricky problem with Factor 4, however, is that while there might not be a market now for the use in question, such a market could potentially develop. That is, a market for music sampling rights might develop (has developed!) if sampling were not claimed as fair use. A market for prerecorded television shows has definitely developed. Later we'll consider a case in which the plaintiff claimed that they were considering marketing thumbnail images, and thus images.google.com's "republication" of thumbnail images was not Fair Use.

On 4e page 207, "Safe harbor in the cloud?", Baase writes:

Cloud storage raises copyright issues. Is copying legally purchased files to and from the cloud a fair use?

Is there an issue here with private cloud storage? Apparently by the 5th edition Baase decided this wasn't an important question; the cloud is just computer space you lease. See also the Aereo case.




Sony v Universal City Studios, 1984

SCOTUS decision: http://www.law.cornell.edu/copyright/cases/464_US_417.htm, by Justice Stevens.

This is the "Betamax" case, to at least some degree about Fair Use. Universal Studios sued Sony for selling the betamax VCR, on the theory that Sony was thus abetting copyright violation, and profiting from it.

District court found for Sony
Appellate court (9th circuit) found for Universal Studios
Supreme court, 5-4 decision, found for Sony

Paragraph 12 of the Supreme Court decision (emphasis added), addressing the Four Factors of Fairness:

The District Court concluded that noncommercial home use recording of material broadcast over the public airwaves was a fair use of copyrighted works and did not constitute copyright infringement. It emphasized the fact that the material was broadcast free to the public at large, the noncommercial character of the use, and the private character of the activity conducted entirely within the home. Moreover, the court found that the purpose of this use served the public interest in increasing access to television programming, an interest that "is consistent with the First Amendment policy of providing the fullest possible access to information through the public airwaves. Even when an entire copyrighted work was recorded, the District Court regarded the copying as fair use "because there is no accompanying reduction in the market for 'plaintiff's original work.'"
   
Is that part about "broadcast free to the public" and the "private character" explicit in the Four Factors? What about the part about "serving the public interest"? Note the consideration of the effect on the market. Note also that in 1984 there was no market for recordings of TV shows; there is now.

The Supreme Court decision then went on to introduce the doctrine of Substantial Non-Infringing Uses, which is still with us today and sometimes abbreviated SNIUs.

This case apparently legalized taping of TV programs for later viewing (but NOT archiving). Universal did not show how it was damaged, which didn't help their case any (presumably they thought it was obvious?). Under the doctrine of SNIU, Substantial Non-Infringing Uses, a distributor cannot be held liable for users' infringement (that is, for contributory infringement) so long as the tool is capable of substantial noninfringing uses. The precise role of "Fair Use" in the court's reasoning is not as clear as it might be, but this certainly DID play a role. It was actually the District Court that made that case.

The Supreme Court did not spell out a "Fair Use" four-factor analysis, though they hint at it in the section "Unauthorized Time-Shifting" (paragraph 46). It was the District Court that came to the Fair Use conclusion (quoted above in the SCOTUS decision).
  
The following sentence is rather odd (from Paragraph 54):

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

There is also the following very interesting line from the Sony decision, in paragraph 46:

Although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, ...

This is a remarkably strong statement about commercial use! The Supreme Court has backed away from this considerably in later decisions.
  
Fred Rogers testified in favor of Sony
  
Harry Blackmun, Thurgood Marshall, Lewis Powell, and William Rehnquist dissented.



The case 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 (think about it: 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. [emphasis added]
  
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 (more on that below), 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 the Sony 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, earlier competitors notwithstanding; the cellular phone industry remains very conservative. Although phones make excellent mp3 players, it is not at all clear the telecommunications industry would have figured this out.

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. Harry Blackmun, despite his universally acknowledged liberalism (he was, after all, the author of Roe v Wade), 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 arguments intended to refute Aimster's SNIU defense [from Samuelson]:
  1. The primary use of the defendant's system was for infringement
  2. Aimster was providing a service rather than a piece of hardware
  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.

Posner's cost-benefit model for this particular situation has not really gone anywhere. Posner is noted in legal circles for these kinds of economic analyses; some are more successful.

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, Congress has not passed legislation mandating adherence to the broadcast flag, and the FCC retracted the rule in August 2011.



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
(1) In general. Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed

(A) for purposes of commercial advantage or private financial gain [see note above - pld];

(B) 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; or

(C) by the distribution of a work being prepared for commercial distribution [that is, a work not yet released -- pld], by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

(2) Evidence. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.

The or in part 1 is a little confusing! In theory it could be used to claim that the $1,000 threshold was not necessary, in that the "financial gain" clause of part (A) was met, but as far as I know this argument has never been made.

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 file-sharers. 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.

Congress continues to consider stronger measures for criminalizing infringement (eg SOPA and PIPA), though these have not passed, and my guess is that including personal downloading as criminal will not happen anytime soon. The goal of proposed legislation like SOPA and PIPA, however, is to go after server-based filesharing: to create the legal tools needed to shut down these sites. Unfortunately, such tools usually have heavy-handed negative consequences for ordinary users, as we shall see.



Napster

See Baase 4e p 192 / 5e p 206: "Sharing music: the Napster case"

Napster was started June 1999. It acted in effect as a search engine for content held by members; actual copying was always member-to-member. Napster's own legal theory was that they were in the clear because they weren't doing any copying; they also figured that the RIAA could never sue every individual user.

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 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. What similarities to the Sony case do you see? What differences?

Napster itself is gone (though someone bought the trademarked name), but the Napster model -- that content will be free and that performers make money only from live performances and showings -- lives on. Note that signed and indie musicians fare very differently under the napster model!

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

Is napster at all like radio?

Is the Napster model realistic? Is it fair? Is it "just life"?
Is this a case of "harm" being unequal to "wrong"?

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



Music Sampling

This is widely done in the music industry, sometimes as an homage to the original artists, sometimes to connect a new musical work with an older one, sometimes as a form of social commentary, and sometimes, well, we don't know.

Consider the following news item, from http://origin.avclub.com/articles/guns-n-roses-sued-for-uncredited-ulrich-schnauss-s,33744:

by Josh Modell October 6, 2009
According to Reuters, the British label Independiente and the U.S. arm of Domino Records have filed suit against Guns N' Roses and the band's label, Interscope/Geffen/A&M for swiping portions of compositions by semi-obscure German electronic artist Ulrich Schnauss for the Chinese Democracy track "Riad N' the Bedouins." Pitchfork has some links to listen to the tracks. Sounds to me like it's pretty clearly swiped, but I'll say this: I own and really like Schnauss' 2003 disc A Strangely Isolated Place, but I wouldn't have picked out the sample if it hadn't been pointed out. Which isn't to say he shouldn't get paid, of course.

This may be an atypical example, partly because the sample is so blatant and so long and partly because it seems possible that GnR simply had no idea it was music (stylistically, GnR and Schnauss are about as far apart as you can get). It's also just about copying a snippet of the original performance, rather than combining that sample with other material, or modifying the sample.

Here are links (working Feb 2012) to the two compositions:
At issue is the opening ~20 seconds. It's not the best example of sampling, because it's a rather atypical sound for GnR (why did they include it?), and it's also rather long. Note that GnR used this opening only on their CD release; I did not find it in any of their live-performance examples on YouTube. GnR has insisted that they did nothing wrong.

A musician who does nothing but sample (or perhaps "remix" is a more accurate term) is Gregg Gillis, aka Girl Talk; see myspace.com/girltalk/music. There are many other examples at whosampled.com.

Sampling can vary in degree. Here are a few possible categories:

Note that GnR and Schnauss do not appear to fall into any of these categories. Some of Gillis' work seems to fall into the first category; some into the third.

There is a good deal of material that is borrowed and re-performed; this is quite different although the Fair Use question is similar. Kanye West is often in the news about this.

In 1991,in Grand Upright Music v Warner, a district court ruled that clearly recognizable sampling constituted infringement. Judge Duffy wrote

It is clear that the defendants knew that they were violating the plaintiff's rights as well as the rights of others. Their only aim was to sell thousands upon thousands of records. This callous disregard for the law and for the rights of others requires not only the preliminary injunction sought by the plaintiff but also sterner measures.

Ironically, it is also clear that the sampling here was not going to affect sales.

The Bridgeport Case

In the case Bridgeport Music v Dimension Films, the Sixth Circuit ruled in 2005 that use without permission of a 2-second chord from a song by the Funkadelics constituted infringement. More specifically, they ruled that the de minimus defense (ie that the sample was "too small to matter") did not apply. The Court famously wrote

Get a license or do not sample. We do not see this as stifling creativity in any significant way.

However, the court left open the possibility of a Fair Use defense. They left this open because the defendants did not raise the Fair Use defense at the trial level, and new defenses cannot be introduced later.

The original Funkadelics album came out in 1975; the NWA album in question came out in 1990. At that point, serious sampling was just beginning, and the Grand Upright case had yet to be filed. Somehow, ~15 years later this sample became an issue for someone.

Let's take a look at just what was sampled.

Here is the two-second guitar riff from the Funkadelics: cs.luc.edu/pld/ethics/funkadelic_riff.wav

And here is where the sampling occurred in the NWA's 100 Miles and Runnin': cs.luc.edu/pld/ethics/NWA_100_miles_and_runnin_sample_use.wav

The lyrics are as follows; the sampling starts at the point in bold:

[Chances] are usually not good
'Cause I freeze with my hands on a hot hood.
And gettin' jacked by the you-know-who.
When in a black and white the capacity is two.
We're not alone, we're three more brothers, I mean street-brothers.
Now wearin' my dyes, 'cause I'm not stupid, mutherfuckers.
They're out to take our heads for what we said in the past.
Point blank - They can kizz my black azz.
I didn't stutter ...

At this point, I can see why the NWA defense team thought their de minimus argument would win.

Question: why did the NWA sample at all here? Funk music is dance music; it had a great influence on disco. The NWA is gangsta rap. The sample could as easily be musical sarcasm as an homage.

Here are a few observations from the actual Bridgeport decision:


1. NWA apparently did have permission to use the part of the composition of "Get off your ass and jam". Alas, they lacked permission to use the recording. The recording copyright was actually held by Westbound, a co-plaintiff with Bridgeport.

2. Actually, the lawsuit was about the use of "100 miles and runnin'" in a film, I Got the Hook Up, about the sale of cellphones.

3. In 2001, Bridgeport and co-defendants filed "nearly 500 counts against approximately 800 defendants for copyright infringement and various state law claims relating to the use of samples without permission in new rap recordings."

4. The district court described the guitar riff as follows:

The portion of the song at issue here is an arpeggiated chord -- that is, three notes that, if struck together, comprise a chord but instead are played one at a time in very quick succession -- that is repeated several times at the opening of "Get Off." The arpeggiated chord is played on an unaccompanied electric guitar. The rapidity of the notes and the way they are played produce a high-pitched, whirling sound that captures the listener's attention and creates anticipation of what is to follow.

In the context of the NWA recording, I am not sure the sound can fairly be said to "capture" or "create" anything.

5. The District Court considered sampling from a recording to be the same as sampling from a composition, and accepted the de minimus defense. The Circuit court felt that sampling from a recording was quite a different thing.

6. The Circuit Court wrote:

The music industry, as well as the courts, are best served if something approximating a bright-line test can be established. Not necessarily a "one size fits all" test, but one that, at least, adds clarity to what constitutes actionable infringement with regard to the digital sampling of copyrighted sound recordings.

7. Finally, here is the controversial line of the decision in context:

To begin with, there is ease of enforcement. Get a license or do not sample. We do not see this as stifling creativity in any significant way. It must be remembered that if an artist wants to incorporate a "riff" from another work in his or her recording, he is free to duplicate the sound of that "riff" in the studio. Second, the market will control the license price and keep it within bounds. The sound recording copyright holder cannot exact a license fee greater than what it would cost the person seeking the license to just duplicate the sample in the course of making the new recording. Third, sampling is never accidental. It is not like the case of a composer who has a melody in his head, perhaps not even realizing that the reason he hears this melody is that it is the work of another which he had heard before. When you sample a sound recording you know you are taking another`s work product.

What do you think of the market-price argument?



Both courts seemed to side with the "copying is presumptively bad" school of legal thought, rather than the "society has an interest" school of thought.

The industry line here is that any use of copyrighted material requires permission; this gives the rights-holder the opportunity to set a fee limited only by the law of supply and demand.

Fair Use is the one exception to the copyright law's strict assignment of rights to the creator. Note that sampling clearly has no effect on the market for the original. On the other hand, there might be (and in fact is) a "secondary" market for sampling rights that is affected. The copyright law itself only refers (§107(4)) to "the effect of the use upon the potential market for or value of the copyrighted work", without making it entirely clear whether the market for the entire work is meant (though the phrase "the copyrighted work" certainly seems to suggest the entire work). If the secondary-market theory is legitimate, then music samplers have a harder time claiming Fair Use. On the other hand, if the secondary-market theory is legitimate then essentially all claims of Fair Use are undermined, as content owners can set up artificial markets for any fractional use.

Whether or not the Fair Use sampling argument will ever prevail in court, there is definitely a serious social issue here that cannot be written off as theft. Music is generally built on the musical influences of others. Before sampling this would be limited to a melody, or an accompaniment line, or a particular guitar style; all that sampling does is allows for musicians to sample without re-performing. Is this taking advantage of the original artist? Certainly not in a financial sense. But a performer is entitled to feel that they do not want their work serving as the larger component of a remix that is done in a very different style (it is hard to see how this would apply to ~2-second samples).

Samples can always be licensed, but sometimes licensing rates are exorbitant. Rights for a few small samples can easily amount to 100% of royalties, which makes further sampling financially impossible.

The site whosampled.com includes in its masthead the phrase "exploring and discussing the DNA of music", suggesting that sampling is how music evolves nowadays. Others feel that musical evolution is not hindered by the simple rule that samples must either be licensed or be re-performed.

Classical musicians have long based their works on traditional hymns and folk melodies, a form of non-recording sampling. Classical musicians have also often borrowed melodies from one another; the whole "variations" format is based on this. Brahms, for example, wrote a piece called Variations on a Theme by Haydn; Fernando Sor wrote Variations on a Theme by Mozart, and Ralph Vaughan-Williams wrote Fantasia on a Theme by Thomas Tallis. There are also all kinds of shorter borrowings, typically to establish a reference (eg the use of a national anthem to emphasize an operatic character's nationality). See the Wikipedia article on musical quotation.

One of the oddest examples is Georges Bizet's use of what he thought was an anonymous folksong "El Arreglito" in his opera Carmen. Later he discovered the song had a composer, Sebastián Iradier, who had died recently. At that point Bizet credited Iradier in his score.

Look at the recent case Cariou v Prince, below, for an important and relevant fair-use case in the visual arts.



Public Enemy's song Caught: Can We Get A Witness, from their 1988 album It Takes a Nation of Millions to Hold Us Back, is about sampling:

Caught, now in court cause I stole a beat
This is a sampling sport
But I'm giving it a new name
What you hear is mine
...
I found this mineral that I call a beat
I paid zero
I packed my load cause it's better than gold
People don't ask the price, but its sold
They say that I sample, but they should
Sample this my pit bull
We ain't goin' for this
They say that I stole this

This was before the 1991 Grand Upright case, but clearly sampling was already an issue.

In a 2004 interview, Public Enemy's Chuck D explained 1988-era sampling this way:

Sampling basically comes from the fact that rap music is not music. It's rap over music. So vocals were used over records in the very beginning stages of hip-hop.

The 1988 recording is at http://www.youtube.com/watch?v=pdrkPBEalkc.

The Amen Break

A very famous sample, used widely, is the Amen Break, by drummer Gregory C Coleman (1944-2006). It is famous enough that it has its own Wikipedia page, at http://en.wikipedia.org/wiki/Amen_break. You can also listen on YouTube: https://www.youtube.com/watch?v=qwQLk7NcpO4.

The Economist did an article on this drum break, and the many times it was sampled. They discussed the sampling with saxophonist and band-mate Richard Spencer:

Spencer is not interested in the digital age and its remix culture. He dismisses the music spawned by the track as "plagiarism" and "bullshit", considering it another chapter in the plundering of African-American cultural patrimony. "[Coleman's] heart and soul went into that drum break," he says. "Now these guys copy and paste it and make millions."

They don't make millions from the drum break, however. And we don't actually know what Coleman himself thought of all the times he was sampled.



Transformative Use

"Transformative use" is use of copyrighted material 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 often considered transformative use. Note, however, that permission to parody is often refused, so many parodies might not exist if it were not for Fair Use.

Another example comes from Diebold v Online Policy Group, and some Swarthmore students. The students and OPG were originally suing Diebold; the students had posted some internal Diebold memos about flaws in electronic voting machines, and Diebold was wildly filing DMCA takedown notices. The students and OPG, 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.

Search engines often (and often successfully) raise the transformative-use defense when the alleged infringement comes up in the course of making search available. For example, Google caches whole pages of other sites, and also makes entire images available on images.google.com. The transformative-use argument is based on the idea that Google is not publishing articles or images to compete directly, but rather to provide its search service to the public. See the Perfect 10 case below.

A claim of transformative use might be raised for music sampling, especially if the sampled sound is digitally modified, but generally speaking it is the intent that matters when use is transformative. The Online Policy Group's purpose in publishing Diebold's internal memos about flaws in their voting machines was to further democracy, not to make competing voting machines.

When Google copies articles (and, as we shall see below, photographs) as part of maintaining its search engines, the purpose is to enable search, not to compete as a publisher. (One can take a cynical view that Google does indeed try to compete as a publisher, but the idea is still that search brings to the public something that was fundamentally absent before.) Baase 4e §4.3 / 5e §4.4 is devoted to this topic of search engines and copyright.

Is music sampling a transformative use? Is it transformative in some cases? If so, what cases?

The Kelly and Perfect 10 cases, next, address this doctrine of "transformative". We'll return to the Diebold case under "Free Speech"


Kelly and Perfect 10

Kelly v Arriba Soft: 2002  (Baase 4e §4.3 / 5e §4.4)
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 Ninth 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).

[What do you think of the links issue?]

Wikipedia documents the District Court ruling in http://en.wikipedia.org/wiki/Perfect_10_v._Google_Inc.
   
Here is Judge Howard Matz's Fair Use analysis (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

In 2007 the Ninth Circuit then reversed, issuing a preliminary ruling that all of Google's use is likely enough fair use that P10 lost their injunction. Their preliminary decision is at 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 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: the Ninth Circuit held that the use was transformative. Very much so.
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.
     
Ninth Circuit 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. Recall that a major element of the Campbell case was that the Supreme Court backed away from the idea that commercial use would seldom qualify as "Fair use"; compare this with the earlier Sony quote "although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright,...."

Also:  

we note the importance of analyzing fair use flexibly in light of new circumstances [15471 (28)]

   
Nature of work: no change; still "slightly in favor of Kelly". Part of the "slightly" was that the images were already published.

Amount & Substantiality: irrelevant; whole image must be copied; see [15473 (30)]

Effect on market: P10 did not prove their market for thumbnail images was harmed. So this didn't count. But how would they ever do that?? More precisely, "the district court did not find that any downloads for mobile phone use had taken place." [15470 (27), last line of page]. 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 District Court 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?



The Hotaling v Church of Jesus Christ of Latter Day Saints case mentioned above, by the way, is decidedly weird. Hotaling published a geneology reference; the LDS library bought one copy on microfiche and duplicated it. They then made copies and distributed them to their branches. Upon notification by Donna Hotaling, they recalled all the copies and destroyed them, intending to keep the original. But then it turned out that they had destroyed the original; their one remaining copy was one of the copies they made.

When the Hotalings found out the library still had a copy, they sued. The District Court granted summary judgement to the church, but the 4th Circuit overruled. They decided

In this appeal we hold that a library distributes a published work, within the meaning of the Copyright Act, 17 U.S.C. §§ 101 et seq., when it places an unauthorized copy of the work in its collection, includes the copy in its catalog or index system, and makes the copy available to the public.

Never mind that the church had paid for one copy and had only one copy remaining.

The 4th Circuit essentially ruled that offering to distribute an unauthorized copy to the public constituted infringement. Compare that to Jammie Thomas-Rasset's defense.

Judge Butzner, in his dissent, pointed out that the copyright law does not make all distribution an infringement. In fact, the law spells out that infringment means

"to distribute copies ․.. of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending [.]"  17 U.S.C. § 106(3).

The LDS library certainly did not rent or lease the copies. In fact they did not even "lend out" copies; it was a research library with no checkout privileges.


Cariou v Prince

This case about photography was a rather substantial win for Fair Use, and in some ways a surprising one. Richard Prince used photographs by Patrick Cariou in what might be called a collage, but which might also be called trivial editing. Some of Prince's work can be seen here: http://www.gagosian.com/exhibitions/richard-prince--may-08-2014/exhibition-images.

Cariou won at the District Court level, but the Second Circuit reversed. In their decision, they argued that the first factor was the most important: how the material was being used, and whether the use was "transformative". The court cited this precedent: "For a use to be fair, it 'must be productive and must employ the quoted matter in a different manner or for a different purpose from the original.'" The district court had said that for Fair Use to apply the new work must explicitly comment on the original work, and Prince's images do that only indirectly.

Thirty images were in question. The Second Circuit found Fair Use very clear in 25 of them (the other five were sent back to the District Court for further consideration; Prince and Cariou then agreed to a sealed financial settlement).

These twenty-five of Prince's artworks manifest an entirely different aesthetic from Cariou's photographs. Where Cariou's serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince's crude and jarring works, on the other hand, are hectic and provocative....

In [the twenty-five artworks], Prince has not presented the same material as Cariou in a different manner, but instead has "add[ed] something new" and presented images with a fundamentally different aesthetic.

Also

Cariou argues that ... we are not to consider how Prince's works may reasonably be perceived unless Prince claims that they were satire or parody. No such rule exists, and we do not analyze satire or parody differently from any other transformative use

The court also looked at the commercial/noncommercial distinction. Prince was selling his work; that makes it "commercial". However, the court noted "nearly all of the illustrative uses listed in the preamble paragraph of § 107 [the Fair Use law], including news reporting, comment, criticism, teaching, scholarship, and research... are generally conducted for profit." So is music sampling, but it is also "artistic".

For the third factor, amount and substantiality, the Second Circuit followed the lead of the Ninth Circuit in the Perfect 10 v Google case: the rule doesn't really make sense for images.

The court also considered the fourth factor, effect on the market. Despite cancellation of a Cariou show based on the pictures, after Prince's work became known, the court found little direct impact.

This case may have relevance to music sampling. Note that the fact that Prince made money by using Cariou's work (and in fact made a lot more than Cariou earned in total for his Rastafarian photographs) did not matter at all.

Prince has recently done a show based on images taken from ordinary people's Instagram accounts. Many of these images sold for $90,000. See http://www.washingtonpost.com/blogs/style-blog/wp/2015/05/25/a-reminder-that-your-instagram-photos-arent-really-yours-someone-else-can-sell-them-for-90000/.

See also Author's Guild v Google.


A related 2017 case concerns a Star-Trek-related fan film titled Axanar, about Captain Kirk's hero Garth of Izar, and the Four Years War with the Klingon Empire. The proposed film incorporates a large number of Star Trek background concepts, including Klingons, the Klingon language, and Vulcans. But the story of the Four Years War was never told by Paramount or CBS, owners of the Star Trek copyrights, and the fan film would not include any established Star Wars characters. Should the film developers be entitled to a Fair Use defense? The film would clearly have no effect on sales of existing Star Trek content. See https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/09/copyright-in-klingon/. However, creating fan fiction that fits into an established series is often problematic.

The judge rejected the Fair Use argument. The parties then reached a settlement, announced January 2017, in which the movie can go ahead subject to the following rules:

Given that the original plan was for a ~2-hour movie, 30 minutes is something of a letdown.

Author JK Rowling has similarly cracked down on fan fiction related to Harry Potter.


Search Engines generally

Being a search engine is not a blanket exemption from claims of copyright-infringement inducement. In one sense, thepiratebay.org is simply a search engine for torrents; essentially nobody in the legal establishment believes it has a legitimate public role. Google routinely removes unlawful copyrighted content from its search results; Google search is not likely to turn up examples of file-shared material.

Meltwater News, which considers itself a reputation-management service, tried to set up a system where you could use their site as a portal for searching for AP news articles. The idea was that corporate subscribers could find out what was being said about them by the press. Meltwater claimed they were just a search engine, but the courts did not buy it.

How, exactly, is Meltwater different from Google? For one thing, they are a fee-based service. For another, they only searched a limited set of news sites. Finally, most subscribers did not click on the Meltwater links to the original AP stories for follow-up; they apparently regarded the Meltwater report as an end in itself.


Sony and 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).

A note on the 2010 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. Sony's 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 supposedly 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?





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

Hmm: it seems to have moved to https://www.youtube.com/watch?v=cZiJQnIMV_s. Ignore the opening text ad.

O'Reilly is actually talking about the person who downloaded (and publicized) Sarah Palin's email, during the 2008 election. However, many of O'Reilly's points apply to how the term "intellectual property" can be a misleading concept.

The perpetrator of the Palin hack was eventually identified as David Kernell, and was later convicted and sentenced to 366 days in jail.

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".

The relevant Supreme Court case is Bartnicki v Vopper, which established that one has a first-amendment right to publish illegally recorded conversations, provided you were not a participant in the illegal act.

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?




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, and seems to be continuing. 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

Here are some more box-office figures, from http://www.statista.com/statistics/187069/north-american-box-office-gross-revenue-since-1980/ and from https://docs.google.com/spreadsheet/ccc?key=0Aqe2P9sYhZ2ndEtDWmVXNi1FWmN5ei0yMlUwdXBIZ1E&hl=en_GB#gid=1. Box-office revenue is widely available; non-box-office revenue (DVDs, Blu-ray, streaming, rental) is less so. Numbers are in billions.



US box office
all US sales/rental
2004 10.53 24.95
2005 10.18 24.02
2006 9.83 23.32
2007 10.08 22.48
2008
9.63/9.71
21.86
2009
10.60/10.77
19.71
2010 10.57/10.60 18.8
2011 10.17
2012 10.84


It is impossible to tell if the slow decline in sales & rental depicted here is due to file-sharing, or if it is due to the rise of streaming.

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

Oh, wait, you can't, from within Loyola. How about https://www.mousematrix.com/, and enter thepiratebay.se in the PHProxy box



Napsterized Video Games

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).)


Film Filesharing

The "Napsterization" of film is not quite the whole story. Most people in the US get their wired Internet from a cable company, and cable companies are also in the business of selling access to content. Comcast has largely taken to bundling Internet and TV packages. And if you have one of the latter, you get Comcast's "TV Everywhere" option which allows you to watch online, over the Internet, most of the video content that comes with your cable service, all at no additional cost. In other words, the incentive to download unlawfully is greatly reduced, as the marginal price of most streamed legitimate online video is zero.

Of course, the TV Everywhere video service competes head-to-head with netflix.com and hulu.com. There are "net neutrality" issues when Comcast imposes bandwidth caps on the use of the latter, but not the former.

While we're on the subject, when Netflix negotiated their streaming rates, they were a niche player. Now they're one of the dominant ways for people to get access to streaming video, and some in the film industry think Netflix should pay a lot more. Of course, the cable industry thinks Netflix is using their internet infrastructure to compete with the cable side of the business, and so they are against Netflix too.





Broadcast TV Sharing

The broadcast TV signal is copyrighted; you cannot just redistribute it (via cable or the internet) without permission. Generally, cable operators must pay the network a retransmission-consent fee. These fees were permitted by the 1992 Cable Television Consumer Protection and Competition act; as with any copyrighted material, the cable operator had to have the consent of the network, and this usually involved payment. The 1992 act forbade fees in the reverse direction: cable-system operators may not charge networks to carry the network's programming.

Slingbox model: this forwards your TV signal via the internet from a point of origin. But you have to "own" the point of origin. That is, you can watch your own home TV connection from work, or while on vacation, but it's not a new way to receive TV at home.

Aereo took this strategy to a new level, starting in early 2012. Everyone is allowed to receive broadcast TV over the airwaves. So in a server room somewhere with excellent TV reception, each subscriber leases a little antenna. The video signal received by your own little antenna is then forwarded, slingbox-style, to your home, over the Internet. Actually, the antennas are reassigned dynamically; you don't lease a specific antenna. And the show can be "parked" for a while on Aereo's servers, so you can watch it later at your convenience.

Aereo's strategy has its roots in a Cablevision DVR idea: when you wanted to record a show, they would store it on their server, and stream it to you later. Making one copy of a TV program and streaming it to multiple users has long been viewed as copyright infringement, but Cablevision made a separate copy for each user. Thus, you "owned" your own copy. The Cablevision strategy passed muster by the 2nd Circuit in 2008.

Aereo also allows you to record a TV show at Aereo's server farm and stream it to your home later.

Sometimes there is conflict under the law between the "technicalities" view of the law, and the "big picture" view. Is Aereo violating the "big-picture" rule that a provider can't rebroadcast TV over the internet? Or is the no-rebroadcasting concept fundamentally broken, because receiving broadcast TV is, after all, free. In other words, is what they are doing a "technical workaround", in violation of the spirit of the law? Or is it just good business? Is the law simply obsolete, trying to make technical distinctions that make no sense?

In recent years, TV networks (Fox, CBS) have been pushing hard for much higher fees from cable operators for the right to carry their signal. Aereo completely undermines that.

The root of the issue is the so-called retransmission-consent fee paid by cable operators to networks. These fees were mandated by the 1992 Cable Television Consumer Protection and Competition act, which forbade fees in the reverse direction: charged by cable-system operators to networks to carry the network's programming.

Aereo won its District Court case filed by a consortium of broadcasters. They appealed. On April 1, 2013, the Second Circuit issued its decision in favor of Aereo: Aereo's video streams were not "public performances" under the meaning of copyright law or the 1992 Cable Television Consumer Protection and Competition Act (in which "Protection" does not apply to "Consumer", but never mind).

A competitor of Aereo, FilmOn, lost a very similar suit in District Court in California. That case is now on appeal to the Ninth Circuit. Federal District-Court Judge Rosemary Collyer of the District of Columbia issued an injunction against FilmOn's antenna-farm service, binding throughout the Ninth Circuit region.



In January 2014 the Supreme Court agreed to hear the Aereo case.

During oral arguments on April 22, the Court seemed very concerned that a verdict in ABC's favor could also undermine the broader concept of cloud-based content storage. After all, Aereo's basic business model is to allow you to lease a small antenna in New York City and record your favorite broadcast-TV shows on your own cloud space. You can then watch them at your leisure. Is there some way in which this is different from storing your purchased content in the cloud?

ABC's attorney tried to describe Aereo as a provider of "new content". Of course, it is not. What Aereo does is transfers content from the airwaves to the cloud, on a per-subscriber basis.

How can the Court separate the leased-antenna concept from the cloud-storage concept?

Justice Roberts said "I'm just saying your technological model is based solely on circumventing legal prohibitions that you don't want to comply with". Though he immediately added, "which is fine. I mean that's -- you know, lawyers do that".

Also Justice Sotomayor owns a Roku.

The court ultimately ruled that Aereo bore an "overwhelming likeness to cable companies", and so the Cable Television Consumer Protection and Competition Act should apply. This law requires permission of the broadcaster for retransmission. The court also described Aereo's retransmissions as a "public" performance. Aereo promptly ceased operations.




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. They would not get automatic upgrades to DRM-free versions.

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.

Digital music sales are currently often without DRM, probably because everyone wants their music library to be "portable". Movies, however, usually are subject to DRM (and sometimes pretty onerous DRM); nobody really thinks you need to have a portable movie library.

In February 2014 Adobe announced that as of July 2014 they would no longer support their own older DRM formats, known as ACS 4 and RMSDK 9. What this means in practice is that if a user has an older e-book reader, it will have to be upgraded in order to read new ebook downloads or even ebooks previously purchased but then re-downloaded as part of a backup/restore. Many older readers, however, are not upgradeable, either by design or because the vendor has gone out of business.

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://pld.cs.luc.edu/ethics/copyright2007.pdf.

There is a good overview (intended for paralegals) at http://nationalparalegal.edu/public_documents/courseware_asp_files/patents/menu_patents.aspx. The examples here are mostly from the legal mainstream, avoiding bleeding-edge controversies such as Viacom v YouTube.
 
Rules for theatrical performances are tricky: these are ephemeral performances! Videotaping a performance may violate actors' rights.  The usual issue is rights of the director.
 
Copyright is held by the 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 on Feist 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". There is an exception for software, but not for music and movies.
 
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. Fair Use grants a 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 go up to $30,000/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.

Statutory damages were introduced in the 1909 copyright act, which stated they "shall not be regarded as a penalty". Many have read this as meaning that they were simply meant as compensation to the rightful copyright owner. However, this is not as clear as it might be; the article washingtonpost.com/news/volokh-conspiracy/wp/2017/02/10/statutory-damages-in-copyright-law-on-forgetting-how-to-read-a-statute interprets this phrase, with good historical evidence, as meaning that statutory damages shall not be regarded as criminal fines, with the attendant much stricter burden of proof, but that they were still meant to discourage infringement.

Certainly the RIAA uses these enormous statutory damages to discourage file-sharing by others.
   
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? The legal objection is usually the huge disconnect between actual damages and statutory damages.

 


Laws (highlights only):

1790 copyright act: protected books and maps, for 17 years. "The earth belongs in usufruct to the living": Thomas Jefferson [the earth is for the use of the living]

1909 copyright act: a 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. The 1976 act formally introduced the doctrine of Fair Use, previously carved out by court cases, and formally covers television broadcasts.

1988: US signed the Berne Convention, an international copyright treaty. We held out until 1988 perhaps because Congress didn't believe in some of its requirements [?]. The1989 Berne Convention Implementation Act brought the US into conformance with Berne convention; its most famous consequence was perhaps no longer requiring a 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 Millennium Copyright Act (DMCA) passes. the two best-known and/or most-controversial provisions:
2005: recording movies in a theater (with a compact video camera) was made a federal felony.

2008: Pro IP act
The "compilation clause" was eventually deleted during the legislative debate; it might have lead to an increase in statutory damage claims by allowing plaintiffs to count each track of an album as a separate infringement; without this change, albums can only count as a single infringement. In practice, nowadays this is seldom relevant.

This law 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; this describes the situation of Deborah Foster, sued unsuccessfully in 2004 by the RIAA, who was able to convince the judge that the downloading was likely done by her estranged adult daughter.

The 2008 Pro IP act does allow the Justice Department to sue infringers on behalf of copyright holders; to date, the DoJ has shown no interest in suing individual infringers for personal use. If someone steals a physical CD, then the DoJ (or, more likely, the state in question) can bring criminal proceedings, not just a lawsuit.




Some Famous Copyright Cases

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

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.


 
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 (which, at the time of the Feist decision, was a popular theory in legal circles and even a precedent in some cases).

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.



The Feist case is related to a much-later summary-judgement decision in favor of the defendants in BanxQuote v Costco, a federal copyright case in New York. Costco and other defendants had quoted a figure calculated and published online by BanxQuote for the average return on 5-year bank certificates of deposit: 3.95%. BanxQuote sued, claiming their results were copyrighted. Judge Kenneth Karas wrote, after hearings on some of the facts,

But now the evidence is in, and, on cross-motions for summary judgment, the Court determines that, even drawing all reasonable inferences from the evidence in Plaintiff's favor, the averages are unprotectable because they are uncopyrightable facts, because they are too short to be copyrighted, and because the so-called merger doctrine -- which applies where there is "only one ... or so few ways of expressing an idea, that protection of the expression would effectively accord protection to the idea itself," -- bars copyright protection.

Had the case gone the other way, there would have been an immediate question as to whether 3.949999.... was also copyrighted.

This is reminiscent of an attempt a few years earlier by the NFL to claim that football scores were copyrighted. Feist established, in essence, that compilations of facts are generally not copyrightable.



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 Pretty Woman. 2 Live Crew tried to get a license, but were denied; they then decided they did not need one. The District Court found for 2 Live Crew and the Circuit Court found for Acuff-Rose.

The Supreme Court agreed that the parody was Fair Use, but apparently not on general principles; they explicitly stated that parody was not automatically Fair Use. However, they found for Fair Use despite the statement in the Sony decision that commercial use was presumptively UnFair Use. Much of the decision dealt with the four-factor analysis: the parody song used the tune of the original, and its first line. As for the Effect on the Market factor, the Supreme Court recognized that parodies seldom if ever compete with the original. The Supreme Court sent the case back for resolution of some details, at which point the case was settled. Apparently 2LC did end up paying a licensing fee. It also appears that the Campbell song was intended to some degree to poke fun directly at Orbison's song, not to be general social satire.

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.




MGM v Grokster, 2005

StreamCast, purveyor of morpheus, was another defendant. Limewire was not, but they shut down soon after the decision was announced. (Limewire recently lost a contributory-infringement case; damages ended up at $105 million after the RIAA had at one point asked for $75 trillion).

This decision introduced the doctrine of copyright inducement.

This case left the 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.
 
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.

As for the Supreme Court, the decision points out [emphasis added]

The record is replete with evidence that when they began to distribute their free software, each of them clearly voiced the objective that recipients use the software to download copyrighted works and took active steps to encourage infringement.

Justice Souter then opened his decision with the following:

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.
 
This is known as the theory of copyright inducement, or contributory infringement; the intentional encouragement of 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 stated primary goal is unlawful (as was Grokster's), you lose.

Justice Souter also raised the possibility of vicarious liability: profiting from the infringement of others while not interfering with it. 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.

It is not clear whether vicarious liability played a role in the Grokster ruling per se, or whether the Supreme Court was holding it out as an option for future cases.

Unlike copyright inducement, vicarious liability would apply 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.

But nothing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from the common law.

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? The site vidtomp3.com allows people to rip the sound from YouTube videos. Mostly this is infringing. But vidtomp3 has the following disclaimer:

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.

Does this get them off the Grokster hook? Because, although everyone knows how to use their site for piracy, vidtomp3.com doesn't actually say it?

Baase points out 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.

In the sidebar "Analogies and Perspectives" on 4e page 200 / 5e p 215, 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 Speech issue as well.





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.





DMCA, 1999

This law extends copyright to boat hulls. Who paid for that? Section 1301. (Though note that US copyright law still does not extend to typefaces).

Perhaps the primary focus is to implement the WIPO treaty of the year before.
 
The DMCA provides legal protection for copy protection; it provides (severe) penalties for even speaking about circumvention (eg supplying online explanations); these are called 'anti-circumvention measures' (a circumvention method is a way around copy protection).

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 topics of "speech" and "rights of computer owners"]
     
The DMCA 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)).
 
The DMCA mandates Macrovision-brand copy-protection 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 copy-protection 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.

See also the case of David Carruthers of BETonSPORTS.com


OCILLA

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.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.



It is now common practice for large content producers to scour the web and send automated takedown notices for anything they find that appears to be infringing. This is often criticized on Fair Use grounds.

Github[!] has received takedown notices for open-source projects from publishers who have not bothered to verify that their content is not actually present: https://torrentfreak.com/google-porn-takedowns-carpet-bomb-github-150107/.

Chillingeffects.org has agreed to self-censor the DMCA takedown notices it publishes because those very notices contain a list of URLs of pirated content: http://searchengineland.com/anti-censorship-database-chilling-effects-censors-removing-domain-search-212567. This is not entirely unreasonable, but odd f

One of the strangest takedown stories is described at https://torrentfreak.com/fox-stole-a-game-clip-used-it-in-family-guy-dmcad-the-original-160520/. The producers of Family Guy found a video-game clip on YouTube and used it in an episode. Later, and probably automatically, Fox TV demanded that the original clip be taken down on the grounds that it had appeared in Family Guy.



Cases related to DMCA/OCILLA

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. YouTube has been sued by both Time-Warner and by Viacom for hosting clips of copyrighted videos.

YouTube's core defense is that they are happy to take down whatever is requested, but that they cannot monitor everything. According to court documents in the Viacom lawsuit (below), 24 hours of video were uploaded every minute; costs to monitor all that video for infringing potential are staggering.

Is YouTube an example of "good" sharing or "bad" sharing??

Should YouTube be placed in the same category as MegaDownload.com, which was pretty clearly a server-based-filesharing site, despite the fact that it makes the same DMCA shield argument and abides by takedown notices?

Youtube was sued in 2007 by Time-Warner; Youtube has apparently agreed to the principle of some kind of cut of revenues, and the suit appears closed. 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, or at least it was a Flash-based player.

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 vidtomp3.com is? Are they the bad guys here? Should we even be discussing vidtomp3.com?



IO Group v Veoh Networks

Veoh was a lot like YouTube: users could upload video (although Veoh also tried to license commercial video). IO Group found its videos there, and sued in 2006. There was no evidence Veoh had encouraged the uploading of copyrighted videos, although they did remove an option (directed at third parties) to "report possible copyright infringement". IO apparently felt that the fact that their copyrights were registered meant that Veoh should have known about them.

The District Court granted summary judgement to Veoh.

Veoh went on to bankruptcy (Chapter 7) in 2010, and general withdrawal from the user-posted-content market.

They were sued around that time by UMG; see below.


Viacom v YouTube

This case was filed in March 2007. Note that the case is now Viacom v Google, as Google has purchased YouTube.

Viacom also sued YouTube, and held out for more than Warner. This case apparently has not yet come to trial (though that a. Google (Youtube's owner) has cited OCILLA in its defense; Viacom is still trying to claim statutory damages. Question: does YouTube try to "induce" users to upload protected stuff? This remains a major unsettled issue; see MGM v Grokster.

Here's a July 2008 BusinessWeek article on the case:
http://www.businessweek.com/technology/content/jul2008/tc2008073_435740.htm.

Here's a January 2009 blog on the case:
http://copyrightsandcampaigns.blogspot.com/2009/01/viacom-v-youtube-viacoms-anti-piracy.html.

Here's a March 2009 blog, addressing (among other things) the fact that Viacom's discovery motions involve in excess of 12 terabytes of data: http://www.digitalmedialawyerblog.com/2009/03/controlling_discovery_in_digit.html.

Here's a March 2010 story, including several internal youtube emails about how aggressive they should be on rejecting copyrighted content: http://www.dailyfinance.com/story/company-news/viacom-v-youtube-google-a-piracy-case-in-their-own-words/19407896. For example:

On July 19, Chen wrote to Hurley and Karim: "Jawed, please stop putting stolen videos on the site. We're going to have a tough time defending the fact that we're not liable for the copyrighted material on the site because we didn't put it up when one of the co-founders is blatantly stealing content from from other sites and trying to get everyone to see it." Four days later, Karim sent a link to the other founders, and Hurley told him that if they rejected it, they needed to reject all copyrighted material. Karim's reply: "I say we reject this one but not the others. This one is totally blatant."

A July 29 email conversation about competing video sites laid out the importance to YouTube of continuing to use the copyrighted material. "Steal it!" Chen said , and got a reply from Hurley, "hmmm, steal the movies?" Chen's answer: "we have to keep in mind that we need to attract traffic. how much traffic will we get from personal videos? remember, the only reason our traffic surged was due to a video of this type."

Here's another March 2010 blog, which makes some interesting points about how time is on Youtube's side, and how Viacom has made some major tactical errors: http://blog.ericgoldman.org/archives/2010/03/viacom_v_youtub.htm.

First, YouTube has repositioned itself 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, here is a claim from Zahavah Levine, Chief Counsel for YouTube, that goes a long way towards explaining why Viacom could not produce an accurate list (emphasis added by pld):

For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

The point here is that Viacom not only benefited from having its content on YouTube, but actively sought that benefit. Alas for Viacom, this strategy on their part enormously undermines their claim that YouTube should have known the Viacom material was uploaded unlawfully.

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 bargain.

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 District Court 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. (The Second Circuit has now overturned this part of the decision, below)

From the decision (at 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 received 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 activity 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; [and]

     (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;

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement ... responds expeditiously to remove... the material that is claimed to be infringing [the takedown]

All three of A, B, C must be met. C is the takedown part; that's easy. Viacom has argued that YouTube violated B by being advertising-supported. Most sites are advertising-supported; should clause B be interpreted to mean such sites should not receive immunity? Or should not automatically receive immunity, which is a major problem in that the "safe harbor" is no longer very safe?

Still, Viacom's primary claim is that Youtube violated (A): they did have actual knowledge that infringing was going on. The logic of (A) is tricky: YouTube is ok if they don't have actual knowledge, and are not aware of facts or circumstances from which infringing is apparent, and if they find out about infringing, they remove it.

The judge ruled that YouTube/google did meet the standard of (A)(i) and thus were not liable: 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 broadly.


Here are some notes on the decision. The House Report on the OCILLA part of the law described clause A(ii) as follows:

Subsection (c)(1)(A)(ii) can best be described 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.

Page 17: "if investigation of 'facts and circumstances' is required to identify material as infringing, then those facts and circumstances are not 'red flags'." In other words, to be a red flag the infringing has to be obvious.

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.

As of this point in the proceedings, Google had spent $100 million on legal fees (Time.com).



Appellate Court 2012

The Second Circuit handed down its ruling partially reversing Judge Stanton on April 5, 2012. Judge Stanton had granted YouTube summary judgement; the Second Circuit argued that there was enough evidence that YouTube had indeed known of specific instances of infringement that the case should go to a jury.

The Second Circuit upheld the District Court's decision that Viacom would have to prove that YouTube had "knowledge or awareness of specific infringing activity"; that is, YouTube would have had to know about some specific items, not just that infringing videos were being uploaded. They reasoned in part from A(iii) above, where to remove something it has to be, well, specific. The Second Circuit also affirmed that the Safe Harbor provision would, if it applied, block all claims against YouTube, including for contributory infringement.

But the Second Circuit felt that the question of whether YouTube did in fact have actual knowledge of infringing should go to a jury. The Court was impressed by YouTube's own data that 60% or more of the content was copyrighted, with only 10% of that being authorized. Even this, though, was, by itself, not enough. But there was substantial circumstantial evidence that YouTube was definitely aware of specific infringing content it hosted. There were internal company rankings of content, and surveys of infringing content for which YouTube was bidding on the legitimate rights. And there were all those emails. Here's another from Karim:

As of today [2006][,] episodes and clips of the following well-known shows can still be found [on YouTube]: Family Guy, South Park, MTV Cribs, Daily Show, Reno 911, [and] Dave Chapelle [sic]." Karim further opined that, "although YouTube is not legally required to monitor content . . . and complies with DMCA takedown requests, we would benefit from preemptively removing content that is blatantly illegal and likely to attract criticism.

Many other emails identify specific clips that the founders believed to be infringing.

Willful Blindness

But then the Second Circuit went on to consider the doctrine of "willful blindness", apparently based roughly on the "blind eye" language of the Congressional Report. A blind eye test might in practice be rather different from a red flag test, even though both phrases are in the same sentence in the Congressional Report. A red flag is something you have to look for (or can be expected to notice readily); a blind eye is intentionally not following up on reasonable suspicions. Willful blindness is stronger. The Second Circuit has asked the District Court to determine whether YouTube "made a 'deliberate effort to avoid guilty knowledge'".

Although Viacom has made much of this "willful blindness" clause, it does not seem to play a major role in the decision. If the District Court (and jury) finds at trial that there was no specific knowledge of infringement after all, then it seems to me that finding willful blindness would be even harder.

Finally, the appellate court rejected Viacom's arguments that YouTube's thumbnail creation, conversion of uploaded files to uniform formats and similar automated activity constituted activity beyond "storage at the direction of a user". This may be an important issue: the ruling states that what matters is that users initiate the content uploading, not that there isn't some later post-processing.

Back to the District Court 2013

The case returned to District Court Judge Stanton, who on April 18 2013 again granted summary judgement in favor of YouTube. Stanton's decision is here.

Stanton's dismissal of the first claim

Whether, on the current record, YouTube had knowledge or awareness of any specific infringements

is perhaps surprising: he seems to have ignored the Second Circuit's recommendation that a jury decide this. Yet on the other hand Stanton's decision contains a careful argument that Viacom cannot point to any specific "clips-in-suit" that it alleges YouTube knew about! Instead of providing such a list, Viacom had claimed

It has now become clear that neither side possesses the kind of evidence that would allow a clip-by-clip assessment of actual knowledge. Defendants apparently are unable to say which clips-in-suit they knew about and which they did not (which is hardly surprising given the volume of material at issue) and apparently lack viewing or other records that could establish these facts.

Alas for Viacom, Stanton is a firm believer that a confused situation (implicitly acknowledged above by Viacom!) means YouTube wins on safe-harbor grounds: it is Viacom's responsibility to name specific infringing clips. And this they simply did not do.

Settlement!

Judge Stanton's latest decision was again appealed, but then on March 18, 2014, the parties settled (as a flock of flying pigs migrated northwards?) Industry rumors suggest that Google paid no damages, but did let Viacom in on the advertising revenue. In other words, Viacom caved completely.



A Posner-style view of Viacom v YouTube

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, along the legal-economics lines championed by our own Seventh Circuit's Richard Posner. 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?

One problem with Tiffany v Ebay as a standard is that eBay apparently does have a significant (read: expensive) mechanism in place to watch out for the sale of counterfeit merchandise. Should YouTube have had an anti-piracy mechanism in place?

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.


UMG v Veoh

In 2007 the UMG group sued the Veoh network for hosting their music videos, and for allegedly turning a blind eye to evidence of infringement. The case was heard by the Ninth Circuit in 2013 (decision here), after the Second Circuit's decision above in the Viacom v YouTube case. The Ninth Circuit mostly agreed with the Second Circuit that the DMCA Safe Harbor provision meant that Veoh was not liable.

UMG tried to argue that the DMCA takedown provision was meant to cover only companies which provide hosting services to third-party websites, rather than websites that host content uploaded by users. The Ninth Circuit disagreed with that position.

The Ninth Circuit addressed the "who should be responsible" theory with the following:
Copyright holders know precisely  what materials they own, and are thus better able to efficiently identify infringing copies than service providers like Veoh, who cannot readily ascertain what material is copyrighted and what is not. 
One peculiar point in the decision addresses Veoh's handling of an email from UMG to former Disney CEO Michael Eisner, then a major shareholder of Veoh. The court ruled this email did not constitute a takedown notice, because it was not identified as such, even though Eisner responded to it as a takedown notice and had the offending material removed. The Ninth Circuit then added
If this notification had come from a third party, such as a Veoh user, rather than from a copyright holder, it might meet the red flag test because it specified particular infringing material.
This is something of a peculiar position, though the Ninth Circuit appeared to consider it hypothetical. In a similar example, an email from a genuine Veoh user whose upload had been denied complained that other users had successfully uploaded copyrighted material.
The Ninth Circuit dismissed this as "red flag" knowledge of infringement only because UMG had failed to show Veoh did not in fact take down the email-referenced material.

In light of these concerns about third-party notification, the Wikimedia Foundation in February 2016 removed The Diary of Anne Frank from its online collection. So even if the Ninth Circuit was speaking hypothetically, the third-party-notification theory has had some impact.


Server-based Filesharing

Peer-to-peer filesharing grew out of the idea that a server that hosted copyrighted content would be a sitting duck for lawsuits. But this turns out not to be quite true.

If content is user-posted, and if the site responds promptly to "takedown notices" as spelled out in the DMCA, they may be untouchable.

For the basic business strategy of such sites, see here. The idea is not to sell the content, but to sell bandwidth. Or server space. Or initial access. They also must create some incentive for uploaders.

Then they argue that "it's not our fault users are exchanging copyrighted content" and "we don't allow that".

At one point, YouTube seemed to be based on this model, though without selling anything except advertisements. Viacom, as we saw above, sued. While Viacom won some important concessions, the lawsuit overall did not go well for them.

MegaUpload.com was shut down by the feds in 2012 for criminal copyright infringement; basically the FBI seized the domain. But the case has not really gone anywhere since; site owner Kim Dotcom has put up a significant defense. Was the goal of the site to profit from copyright infringement? At one point MegaUpload stated, in their FAQ:

Activity that violates our terms of service or our acceptable use policy is not tolerated, and we go to great lengths to swiftly process legitimate DMCA takedown notices.

But nobody believed that. MegaUpload was eventually accused of the following:

For MegaUpload's purported side to this, see www.hangthebankers.com/10-facts-about-the-megaupload-scandal.


The SOPA and PIPA laws were proposed largely to deal with server-based filesharing. They failed to pass, after Google and other Internet companies launched an Internet-dark-for-a-day protest in January 2012. Two of the most serious problems with these laws were that

Either of these, while effective for taking down filesharing servers, would radically change the Internet as we know it.


In light of Viacom v YouTube, how can Big Content fight the filesharing servers like MegaUpload.com? The latter claim the same DMCA safe-harbor defense, and many of them abide by the DMCA takedown-notice process. It's just that, as with YouTube in the early days, taken-down content promptly reappears, and there is simply too much of it for Big Content to keep track of.

Filesharing servers often charge for some form of "premium access"; does it matter that YouTube makes its money only by advertising? Filesharers often offer incentives to encourage "members" to upload content; does this matter?

YouTube did have procedures in place from the beginning to make it difficult to make permanent copies of content: the length was limited, and it remains difficult to download the underlying video file from YouTube.

YouTube also responded, relatively early on, with "fingerprinting" software that detected most attempts to upload copyrighted content. This software often snags arguably legitimate uploads, however; for example, pet/baby videos with copyrighted music playing in the background.

Big Content has had trouble fighting sites like thePirateBay.org, despite the fact that the latter did not claim to abide by the DMCA, and in fact bragged about its determination to flout it.

Does the "willful blindness" standard help here?

Suppose we agree that, in order to stop these sites, the DMCA takedown process needs to be overhauled? What then happens to Wikipedia? What happens to free personal web pages? What about all the other forms of user-posted content? If hosting sites are liable, will such content simply disappear?

Most of the time, it's pretty hard to post text that is likely to infringe on copyright, though some fan-fiction falls into this category. But users post copyrighted photos all the time, and there are lots of sites intended to support user-contributed music and, to a lesser extent, video. It remains, in other words, very hard to distinguish "good" content from "bad".

SOPA and PIPA

SOPA and PIPA would both have made it easier to seize suspicious domains, like "thepiratebay.org", "rapidshare.net" and "wikipedia.com". It's not clear how much easier; already there are cases in which domains have been seized with no notice to the original domainholder at all. See
On the face of it, domain-name seizures do make sense as an attack against filesharing sites. Unfortunately, this strategy is only effective if the US-based domain-name system remains in charge. There is nothing, however, to prevent users from configuring their browsers so as to use "alternative" domain-name servers. Once this is done, domain seizures have no effect whatsoever. (There is still the possibility of IP-address blocks, but those have their own problems.)




Some sites once devoted to file-sharing and copy-protection technologies:

musicview.com: GONE!
dontbuycds.org: Now also gone. Somebody new took over in 2008, but never got around to any updates and apparently stopped renewing the domain in 2011.
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 their term continuously?


Amazon

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 by the publishers! Though some authors have been quite upset.

Note that what Amazon has done arguably earns them zero DMCA shield: they've actively scanned the books, and keep the images on their servers.

Clearly, "effect on the market" must be presumed POSITIVE. However, see http://www.authorslawyer.com/c-amazon.shtml.


ASCAP

How music copyrights are "supposed" to work: ASCAP (the American Society of Composers, Authors, & Publishers). See ascap.com.
 
ASCAP: collects on behalf of all members, = original songwriters.
 
To perform, you need a license from ASCAP, BMI, & third one (SESAC?). See ascap.com/licensing. Even if you write your own songs and perform only them, you still may be asked to show you have these licenses! While that sounds appalling to some, it's based on the not-implausible idea that the nightclub/venue where you play is the entity to actually pay the fees, and they have no guarantee you won't whip out an old Beatles song. [Richard Hayes Phillips, a musician who plays only his own and traditional material, did apparently beat BMI here. But not without a prolonged fight.]
 
Blanket performance licenses are generally affordable, though not negligible.

Generally ASCAP licenses do not allow:
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 ambiguities.

They are very concerned about web radio, and have had reasonable success in making it unaffordable for any but commercial stations with traditional formats.


Sita Sings the Blues

The above is the name of an animated film by Nina Paley, about the relationship of Rama and Sita in the Indian epic the Ramayana. It is available at http://www.sitasingstheblues.com, along with Ms Paley's discussion of the copyright woes she encountered in creating the film (most of that discussion is actually at http://www.sitasingstheblues.com/faq.html).

The animation itself was entirely Paley's own work. However, she used recordings of 1920's jazz singer Annette Hanshaw (here is a link to Hanshaw singing Mean to Me). Hanshaw was chosen for her ability to sing about heartbreak without rancor (Hanshaw is amazing at this), and for her remove from both today and from ancient India. Hanshaw's songs were traditionally copyrighted; normal licensing fees would have been $220,000. Paley cut a deal for $50,000, but the budget for the rest of the film was zero. So these fees are disproportionately large.

Copyright on the Hanshaw recordings themselves was not renewed long ago, and so these are not covered. However, the musical compositions are still covered by copyright. These are the rights Paley had to pay for.





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. She won an $11.3 million dollar verdict in her internet-defamation case; she later wrote a book Google Bomb. The defendant was Carey Bock of Louisiana.

But see http://www.usatoday.com/tech/news/2006-10-10-internet-defamation-case_x.htm. It turns out Ms Bock couldn't afford an attorney, as she was at the time of the case a displaced person due to Hurricane Katrina, and she did not appear in the case at all.

So we don't really know what happened. However, it is clear that at this point Ms Scheff has become a master at reversing being google-bombed; if you google for her name, her multiple blogs touting her book will likely lead the list.


Kindle case


see:
    http://online.wsj.com/article/SB123419309890963869.html
    http://www.engadget.com/2009/02/11/know-your-rights-does-the-kindle-2s-text-to-speech-infringe-au
    http://mbyerly.blogspot.com/2009/02/authors-guild-versus-amazon-kindle-2.html

The kindle is intended primarily for letting people read e-books. However, it also has a feature to read the book to you, using a synthesized voice. This potentially affects the audiobook market.

The Authors Guild has protested vehemently. But they apparently did not actually file a lawsuit against Amazon.

pro-kindle arguments:

anti-kindle arguments


Authors Guild v Google

The Google Books Project began in 2004 as a way to support searching within books (some have suggested that Google wanted to prevent Amazon from becoming the default book-searching site). Google, with the cooperation of a consortium of university libraries, began scanning millions of books into its database; the total eventually reached 30 million. Users of books.google.com could search this database for words and phrases.

As many of these titles were still under copyright, the Authors Guild sued. Google reached a tentative settlement agreement with the Authors Guild in 2008; this was amended in 2009. This agreement allowed Google to sell digital editions of the books, with compensation to the authors. US District Court judge Denny Chin, Southern District NY, ruled in March 2011 against this agreement, arguing at the time that it was unfair to authors. Chin had by that time been appointed to the Second Circuit, but was still finishing up with some of his previous District Court cases.

Librarians were often against the draft agreement because of Google's lack of respect for the principle of patron privacy, and out of fears that library rates for access to the Google Library would be excessive.

The parties went back to negotiation. Google began an argument before the court that their scanning amounted to Fair Use, and so they did not need authors' permissions at all.

Two and a half years later, in November 2013, an odd thing happened. Judge Chin now ruled that Google's book-scanning project was indeed Fair Use. No author permission was needed.

He wrote

In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.

Overall, the decision is a straightforward Fair Use analysis. The fact that Google copied the entire book counts "slightly" against it, but it does not display the entire book to users, and the transformative nature of being able to provide the search feature counted heavily in Google's favor. The fact that search can lead new readers to a book appears to count even more heavily. (Recall that Justice Blackmun wrote in his Sony dissent "Even a showing that the infringement has resulted in a net benefit to the copyright holder will not suffice".)

Sometimes Google's search is considered "commercial", because Google profits from the associated advertising. Google stopped advertising on its "About the Book" pages, however, possibly with this issue in mind.

Google divides each book page into eight snippets. When a phrase is found, Google usually displays the snippet containing the phrase and two others (probably the preceding and following snippets). But some snippets are never displayed, and some entire pages are never displayed, making it impossible to obtain an entire book this way. One can obtain a large majority of it, though.

For some books, such as reference works and poetry, readers are often content with just a few pages. The proposed (and now moot) settlement had mechanisms in place to protect against this; the recent ruling appears to make no mention of it.


Why did Chin change his mind?

After the breakdown of the initial agreement, the Authors Guild upped the ante by pressing their parallel case against the Universities who had partnered with Google. This case was Authors Guild v Hathitrust. In October 2012, District Court judge Harold Baer (also of the Southern District NY, but a different judge was assigned because it was theoretically an unrelated case) ruled that the book scanning was Fair Use.

Baer gave a detailed Fair Use analysis in his ruling, which Chin no doubt read closely.

But there is one other point of interest: one of the defenses of the Google Books project was its enormous benefit to the blind. Judge Baer was clearly influenced by this (and in fact Section 107 of the Copyright Act, defining Fair Use, gives as an example the creation of copies for the blind).

In an eloquent oral argument ... Defendant Intervenors spelled out where blind scholars stood before digitalization: "Prior to the development of accessible digital books, the blind could access print materials only if the materials were converted to braille or if they were read by a human reader, either live or recorded.". Absent a program like the [Google Books project], print-disabled students accessed course materials through a university's disability student services office, but most universities are able to provide only reading that was actually required.

Judge Baer is quite sensitive to the needs of the handicapped. Judge Baer is deaf.

The Hathitrust defendants may have been more sympathetic than Google: they are unarguably noncommercial.

Did the Authors Guild commit a strategic blunder by pursuing its case against the Hathitrust?



The Authors Guild v Google case was appealed to the Second Circuit. Judge Chin did not sit on the panel that heard the case. In October 2015 the Second Circuit upheld Chin's decision:

Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google’s commercial nature and profit motivation do not justify denial of fair use.

The Authors Guild wants to appeal to the Supreme Court, but their problem is that at some level they are simply "stuck" on the idea that it is "wrong" for someone else to make money from an author's book.

The Second Circuit had earlier issued its decision in the appeal in Authors Guild v Hathitrust. They upheld the creation of a searchable database of the books in question as Fair Use, though by that point a search would yield only the page numbers and not the actual passages.

They did rule that a use was not transformative just because it made an important contribution to society, such as enabling access by the visually impaired. Recall that the District Court judge, Baer, was particularly concerned about this as he has a significant hearing impairment. The Second Circuit wrote

[A] transformative work is one that serves a new and different function from the original work and is not a substitute for it....  [T]ransformative use adds something new to the copyrighted work and does not merely supersede the purposes of the original creation.

The Second Circuit compared the database's enabling of access for the blind with a translation's enabling of access to a book for non-English readers; translations have never been regarded as Fair Use. But at the end of the argument, the Second Circuit did agree that, for other reasons, the access for the blind here was Fair Use.

They agreed, on the other hand, that the search feature was "a quintessentially transformative use". " There is no evidence that the Authors write with the purpose of enabling text searches of their books."

The Second Circuit spoke vaguely to the sampling controversy when it wrote "Lost licensing revenue counts under Factor Four only when the use serves as a substitute for the original." Generally, the music industry has argued that lost sample-license revenue makes sampling not Fair Use; the Second Circuit here appears to disagree with that but exactly what was meant by "substitute for the original" is unclear; book search is much less a "substitute for the original" than is music sampling.

The Authors Guild was dismissed from the suit: "the Copyright Act does not permit copyright holders to choose third parties to bring suits on their behalf"

On April 18, 2016 the Supreme Court rejected the authors' appeal, making the Second Circuit's ruling final: http://arstechnica.com/tech-policy/2016/04/fair-use-prevails-as-supreme-court-rejects-google-books-copyright-case/.


Did we somehow all lose after all?

The case firmly settled that book scanning was in the public interest for search, and thus was fair use.

But the other part of the original agreement was that it would have allowed Google to sell digital copies of books, with payment to the author (and probably to the publisher), if the author was alive or if copyright information could be found. Google would give away access to public-domain books. As theatlantic.com/technology/archive/2017/04/the-tragedy-of-google-books/523320 put it:

You were going to get one-click access to the full text of nearly every book that’s ever been published. Books still in print you’d have to pay for, but everything else—a collection slated to grow larger than the holdings at the Library of Congress, Harvard, the University of Michigan, at any of the great national libraries of Europe—would have been available for free at terminals that were going to be placed in every local library that wanted one.

Fair Use isn't going to allow this, however; just the search. The proposed agreement would have settled how to make accessible both orphan works -- books that had no known copyright status -- and out-of-print works, which were still under copyright but not actively available. As things stand now, no one can legally distribute works in either category; they might as well have been burned. Which is why the Atlantic article above is titled "torching the modern-day library of Alexandria".

Congress could act, of course, but won't. And, as the Google agreement appears to be completely dead, our best chance at solving the access dilemma appears to be lost.

Google itself has largely abandoned the book project, except for search.