A Copyfighter’s Musings

Check it out.

Filed by Derek Slater at 8:11 pm under Big Ideas
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Madster lost. Go here. More to follow.

Bullet points: Posner says:”Subject to this qualification, building a library of taped programs was infringing because it was the equivalent of borrowing a copyrighted book from a public library, making a copy of it for one’s personal library, then returning the original to the public library. The third use, commercial-skipping, amounted to creating an unauthorized derivative work, see WGN Continental Broadcasting Co. v. United Video, Inc., 693 F.2d 622, 625 (7th Cir. 1982); Gilliam v. American Broadcasting Cos., 538 F.2d 14, 17-19, 23 (2d Cir. 1976); cf. Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1173 (7th Cir. 1997), namely a commercial-free copy that would reduce the copyright owner’s income from his original program, since “free” television programs are financed by the purchase of commercials by advertisers.”

Wow. I have never heard of those cases, but that statement flies in the face of the arguments made by ReplayTV and Clearplay (I think that’s the one that makes the movie-modifying DVD player). Wow.

Next, Posner rejects the RIAA’s argument that the Betamax defense does not apply as well as the argument that primary infringing uses overrides other non-infringing uses. And, the court “We therefore agree with Professor Goldstein that the Ninth Circuit erred in A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1020 (9th Cir. 2001), in suggesting that actual knowledge of specific infringing uses is a sufficient condition for deeming a facilitator a contributory infringer. 2 Paul Goldstein, Copyright § 6.1.2, p. 6:12-1 (2d ed. 2003).”

Posner also rejects many of Aimster’s arguments. This really worries me. He’s talking about having a cost-benefit analysis with non-infringing v. infringing uses, and then he speaks in broad language about what can constitute knowledge of infringement. The way he talks about Aimster’s encryption might be able to applied to Grokster/Morpheus. Or maybe not - it’s pretty vague. Critical statement from Posner: “To the recording industry, a single known infringing use brands the facilitator as a contributory infringer. To the Aimsters of this world, a single noninfringing use provides complete immunity from liability. Neither is correct.”

Posner then gets into the fact that Aimster did a horrible job defending itself. As discussed in earlier posts, they flaunted the piracy and they didn’t cite any non-infringing uses.

But here’s where this turns far worse. Posner says, “Even when there are noninfringing uses of an Internet file-sharing service, moreover, if the infringing uses are substantial then to avoid liability as a contributory infringer the provider of the service must show that it would have been disproportionately costly for him to eliminate or at least reduce substantially the infringing uses. Aimster failed to make that showing too, by failing to present evidence that the provision of an encryption capability effective against the service provider itself added important value to the service or saved significant cost. Aimster blinded itself in the hope that by doing so it might come within the rule of the Sony decision.”

He then has some passing comments about vicarious infringement, but it’s not that important.

Overall, both the expected and the unexpected. The expected: Aimster’s service was poorly designed and is liable for the same reasons Napster was. The unexpected: Posner’s unbelieveably broad statements about contributory infringement. It feels like an extension of Napster in a direction opposed to Grokster. Maybe it’s not as bad as I think. You can interpret that bold statement above as still protecting Morpheus. The distributed nature of the service is useful. But I’m not sure it’s disproportionately costly for them to do some filtering. It could easily cut either way. That’s the problem with the broad language - that’s what worries me.

I’ll have to read it closer to firm this up. Expect more later.

Filed by Derek Slater at 6:10 pm under Big Ideas
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Finally read “Spectrum Abundance and the Choice Between Private and Public Control” by Stuart Benjamin.  He’s pretty convincing, and, while not making me want to go to totally private control, does make me want a mixed policy at least at first.  Here are my notes, with limited commentary:

-Doesn’t seem to be arguing that spectrum commons won’t work, although he is skeptical.  He is arguing that a government created one would be less inefficient that providing large allotments to private owners, who would create a commons if it’s desired.

-Two points about commons, using spread spectrum. You need:
 Smarter devices - strong computational abilities, can transmit at low power and still get through.
 Cooperation gain - which means that devices act as retransmitters. Instead of having cell phone base stations installed throughout the city, you just have everyone’s device act as a mobile base station.

Problems: what if people choose to transmit at higher power? what if people do not share their devices (think of people turning off their shared folder on Napster - it was a drain on your machine’s resources)?
Solution: Standards.

Commons advocates arguments against private property allotments (according to him)
 1.  Transaction costs - you’d have to buy up so many slices of the spectrum to create privately a commons network.  And “holdout costs” - people waiting to sell to bid price up.  Benjamin’s response: these are not inherent in private ownership, just in dividing spectrum into small pieces.
 2.  Large allotments will not lead to spectrum commons. They won’t be able to make money, so they won’t do it.  Benjamin says: charge for access, or put fee on the device.  If we’re in a competitive market, and these commons are really more efficient, someone will create them. (Makes an interesting point. If commons can carry more users, you can charge less per user.)

Government v. Private Control - how do we evaluate it?
 1.  Smart engineers - need to have access to people most up on the tech, best access to info. (Note: he’s speaking as an economist.) Governments are controlled by constituencies, many of which will want to see spectrum fail. Private = competition and profit motive to get best info.
 2.  Putting the engineers to work - need people who are going to want to make the best choices, continually innovated.  Want to be able to make quick changes to adjust to new technology.  Profit motive is key here, government doesn’t have it.
 3.  Anticompetitive concentration of power - inefficient uses and pricing.  Benjamin wants restructuring of spectrum (opening more up to auction, including broadcast television’s and the military’s spectrum, approximating a “big bang” auction of all exiting rights) and then selling off enough to create many abundant networks. Not sure how he came up with his numbers here, or if the amount of abundant networks he thinks are sufficient will actually be so.  It would be unlikely that any one company would buy all spectrum, and you could set limits just in case, or maybe a common-carrier sort of approach.  Try to promote as much as healthy competition as possible. That’s good for reducing monopolies, but also for optimizing system capabilities.  Systems will differentiate, try out new technologies.    Also, less monopolies because interconnection will be desirable. Interesting idea: the only situtation where a monopolist is guaranteed is if you let the government handle everything. Then the question is, is that a beneficial monopoly? What happens when government has to work with private company and there’s rent-seeking?
  I think he makes a good point here - if you consider the history of the FCC, you know how screwed up government spectrum regulation has been.
 4.  Value of a Free Network
  a) Free of charge - Benjamin says you need to have a broader conception of cost. What about opportunity costs, the lost ability to create a different non-commons use? (What’s a specific use that won’t work?) Also, why should the government subsidize this?  All communications networks seek this sort of subsidy in some wya.
  b) Serve us as citizens and prevent filters - how is this really going to come about? why can’t this be created by private networks? Government will still be affected by private actors.  Are these arguments simple paternalism? (I agree with him as far as any theory that treats everyone as too dumb to like commons networks is probably a bad theory.  The concentration of power problems are more serious - it’s making sure that spectrum is distributed in a neutral fashion, in a truly competitive environment.)

Should government distribute in large bands?
 If abundant networks not most efficient, giving large bands will be bad because hard to disaggregate. Need some way to balance.

Filed by Derek Slater at 2:45 pm under Big Ideas
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Quick, ultimately silly question: would you allow legitimate infinite copyright in exchange for actual fair use rights and no exclusive right to derivatives?

This question came to mind after reading Matt’s interaction with one of the copyright-equals-my-Property types.  My first problem with any of these discussions is that I have no idea what “their property” actually means. 

Does that mean the expression itself?  All of it, at all times? So exact quoting is out of the question?

What about my property? You may own the music, but I own the CD.  Do you get to tell me how to use my property in my own home?  If you made the music, does that also mean you own my CD player?

That bit is a good rejoinder to people who try to use Locke to justify their moral reasoning.  But, the fact of the matter is, it doesn’t matter if the moral rights theory doesn’t come from Locke or any other major western philosophy that this country was built on. If people want to believe that, fine, and I’d like to spend minimal time convincing them otherwise.

Here’s how I look at things, from a moral rights perspective: Even if those moral rights should/do exist, one at least must concede that they don’t gel with other parts of American law, particularly free speech and private property rights (your music, but my cd).  Now, we could change American law to fit one’s intellectual property theory, but that’d be absurd.  So what we have to do is fudge it. 

From a moral rights perspective, finite copyrights is fudging it, but not necessarily bad. It’s too hard to balance the public interest, interests that exist in the rest of the law, with “all rights reserved”; because the law has trouble with laying out for ALL cases where only some rights should be reserved, we have to have an accompanying time of no rights reserved.  (I’m not advocating this justification, just imagining one from this position.)

You have to add a little bit for the copyright holder, trim a little bit off here for the public, shape it into something reasonable.  It’s not perfectly one theory or the other, but it’s what we have to do.

Then the question is, where do you balance it.  And, when people accept that there needs to be some balance, they see that the property interest they want most is the distribution and public performance rights.  For some others, it will include derivatives - but even for them, there’s a wide variation between how much coverage that should be.

The general point: I’m tired of the moral rights camp, but I’m also tired of arguing with them about their theories. If we can meet them half-way, that’d be pretty cool, because, right now, we have illegitimate infinite copyright, with ill-defined traditional contours of fair use and of the idea/expression dichotomy.  For the most part there is no balance.

Update: Matt responds - I don’t think we’re that far off, even though he thinks I’m laying into moral rights advocates. So I commented back.

Filed by Derek Slater at 2:36 pm under Big Ideas
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Been a little busy with work and travel lately, so I figured I’d do what I do best: say little about a lot.

I think Seth ended his comments quite nicely on the After Eldred thread.  It includes some of what came out of that debate, but ultimately brings us right back to where we started: how would you get the Court to say, “The Eldred decision establishes the contention that fair use is a guarantee of access to copyrighted material” or something to that effect. Yep, that’s tricky.

That makes me think of what Volokh mentioned in his article.  To make this argument work, you probably have to argue that the First Amendment includes conduct. Volokh used the example of a law prohibiting news gathering being offensive to free speech protections for news reporting. I don’t what the caselaw is like in this area, but this seems like the right line of attack.

Of course, that reasoning only works if you have an expansive view of fair use and how integral the conduct is to the resulting speech.  That’s why scientific research is probably a good line of attack.

But, given how little room the Courts have given fair uses like parody and criticism, we might still be out of luck.  Over the last few days, I’ve been going over court rulings on parody and criticism and other “derivative” reuses.  I am always thoroughly annoyed when I read these rulings.  Not only are they rather narrow, but they’re unbelievably confusing.

I guess it all starts with the unwieldly fair use test.  The factors are vague, and they have no inherent weight (although some have tried to divine a consistent pattern from past practice).  Even when the court gave parody some breathing room in Acuff-Rose, they indicated that in future cases other fair use factors might nullify the import of parody.  Every case will be treated on its own merits, and each slight difference could be important.  Who knows what the standards will be next time.

What feels very odd to me is how parody, which probably would be protected regardless of section 107, gets treated on the basis of the section 107 test.  If Congress took away section 107 (which might NOT alter the traditional contours of fair use), how would the Court treat parody? (I know there’s plenty of law in other areas about Congress amending Court-created/interpreted standards, like with the RFRA and City of Boerne. How would those apply here?)

All that said, I wonder if the next big copyright case will come from the area of parody or transformative reuse.  Sampling and collage seem to be much more a part of mainstream culture than discussions about back-up copies and such.  Of course, the sampling we hear daily is licensed.  But there are artists all over using cheap editing software and the Internet to make their works available.  I wonder if the next case will come at a time when those unlicensed works really are mainstream.  If that time ever comes, how will the Court be affected by public opinion?

“If that time comes” - that’s always an important qualifier to remember when it comes to future court decisions.  Seth is right that it’d be absurd to say that Eldred, today, stands for a right of access.  What it will stand for tomorrow, though, is anyone’s guess.  A large part of tomorrow’s meaning rides on how our culture changes in relation to copyrighted works.  We lead, and the Court may follow.

(Realists would disagree, particularly one’s like Seth, who cite corporate interests as the driving force behind Court policy.  I think that ignores a lot of the Court’s history and much of what happens today.  We learned yesterday that, at least as long as O’Connor is around, we can expect the Court to choose muddled, confusing decisions over ones that would cause extreme public uproar.)

Filed by Derek Slater at 5:51 pm under General news
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[updated 6/19] Seth restates his main thesis, and it’s well-taken.  Like I said from the very beginning, way back when this was discussed right after Eldred, I’m skeptical, too. I don’t know if the strategy would work. To sum up and go a little further:

1.  I’d say Ginsburg’s argument is more than that paragraph - it’s also the paragraph she spends on fair use specifically. Seth ”agree[s] Eldred established fair use as a Constitutional requirement.” Thus, I’m not sure how you would read Ginsburg’s opinion as talking about a technical exception, so I’m not sure how the substantive/exception dichotomy is useful in discussing her particular argument. 

The real question is: how big is that substantive limit (or, rather, the substantive fair use right)?  As Seth has asserted, this is where the dichotomy becomes important - how do you get the courts to read Eldred broadly?  The SC could simply restrict the meaning of the limit to Constitutional fair use, and limit that to parody, scholarship, and criticism.  I’m not sure the DMCA does enough to take those away; that’s the easiest place for courts to say that technological inconvenience doesn’t matter.  Unless the SC brings in statutory fair uses–the ones we typically think of with VCRs, back-up copies, etc.–we might be pretty stuck. Or, the SC would have to bring more of those into Constitutional fair use, which is also an uphill battle.

2.  One thing that occurs to me: this argument would work best with something like Felten’s case.  That most certainly is scholarship and criticism.  Though I think Felten’s case dealt with trafficking, future cases might involve declaratory relief to make the fair use.  Moreover, it was someone who the courts respected.  One reason I suppose the EFF did not appeal Corley was that the SC might have said “they’re hackers!” and left it at that.  The key is getting a fair user that courts will look at favorably and can be most easily fit into typical fair uses.  It’s got to be something ordinary enough that courts would be more likely to lump it into traditional contours.  (Interoperation with garage door openers might be tougher, but what if it were with car tires - something that just wouldn’t make sense to the justices.  Of course, they could defer to anti-trust law, and that could get pretty tricky.) This is still a tough route, but it’s our best bet.

Of course, there’s some debate as to whether the DMCA even reaches scientific research.  Read with Eldred and Congressional hearings on the DMCA, courts might limit the DMCA rather than strike it down. Though not a total victory, it would save somebody some legal fees.

3.  That’s why I don’t really think of this discussion as people naively reading too much into the Eldred opinion.  I look at it as a starting place for the next person who gets sued.

[updated 6/19 to include the link to Edelman and to clarify where I think the dichotomy is useful.]

Filed by Derek Slater at 1:20 am under General news
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[updated: 11:08] Before I head to the MeetUp, I want to make two minor points about Seth’s follow-up:

1.  Regardless of how many pages Corley spends on fair use, let’s make a slight clarification: Eldred is the SC precedent here.  If there’s any conflict between the two, Eldred’s controlling.

2.  Seth does have a point that Ginsburg’s support of fair use might be disregarded later.  As I’ve said before, courts might skip right over the “traditional contours” part and move right onto the strong deference to Congress.  And there’s plenty of leeway regarding how high the bar is for altering those contours.

Interpretations that set that bar at impossible levels are inappropriate, however, because it would render Ginsburg’s argument totally meaningless.  I reject the argument that the “traditional contours” argument is just a “vague phrase” without any meaning.  It’s not just that one phrase; it’s a thread that runs through her entire argument.  If none of that argument is important, then she would not have said that the lower court had erred in any way - her opinion would be equal to a categorical first amendment immunity for all copyright legislation.  Given that she specifically said no such immunity exists, I don’t see how one can ignore the traditional contours portion of her argument.

Filed by Derek Slater at 9:52 pm under General news
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Professor Larry Solum has an interesting article up called, “The Layers Principle: Internet Architecture and the Law.”  This post does not cover the entire article.  I’ve described some bits (in outline form) and then pointed to one particularly interesting point.  I will probably come back to the other parts of the article later (I might also clean up this post a little, because it’s kind of fragmented).

The Layers Principle - respect the layers
 What are the layers?  A little different than Benkler’s, made for the narrow context.  These are the content, application, transport (TCP), internet protocol (IP), link (between user’s computer and physical layer), and physical layers.  Communications move from highest to lowest layers,  then back up again.
 What does it mean to respect the layers?
  1.  Keep them separate.
  2.  If you’re making policy to affect one layer but you are directly altering the functions of another layer, minimize the distance between the two layers. (Ex. Say you’re blocking amazon.com.  You’re trying to affect the content layer, but you go after the IP layer.  You can block amazon.com in many different ways, but you’re impairing the functioning of IP.)
 Why?
  Briefly: Fit between means and ends (otherwise, overbreadth and underinclusion), and transparency on the Internet

Reviewing features of Internet
 Lessig’s code thesis
 E2E principle
 Tranparency - network does not “associate data packets with application file types”
 
Solum is positing that layers, not E2E, is the key feature that brings about transparency.
E2E does follow from layer separation, but layer separation does not flow from E2E.
Transparency is a direct result of how the layers treat each other - if layers are separated, accepting and not modifying the info, then it will be transparent.

“Layers principle and its corollaries should be viewed as establishing a framework for analysis of alternative policies for Internet regulation that incorporates a strong presumption against regulations that violate the layers principle.”
 Wants to stop incrementally violating principle more and more (”incrementalism”).
 But, doesn’t want this to be an absolute rule.

There’s a lot of justification here, and a lot of interesting ideas about how this principle could work into legislative and judicial analysis.  There’re also some great case studies.  I won’t go into that right now - the article is quite long, and I’ve got other stuff to describe for you.

Solum moves back to Benkler’s formulation at the very end, because there are some regulations aimed at Benkler’s layers that need to be compared to regulations in Solum’s framework.

Take the DMCA, for example.  This is a regulation targeting the content layer by going after a lower layer (code).  Solum says the transparency requirement doesn’t apply in the same way, because Benkler’s layers are more descriptive categories rather than “an implementation of design principles.” 

Then Solum moves into “A Layers Approach to the Substantial Non-Infringing Uses Doctrine.”  He notes that the Sony principle can be associated with the idea of ensuring a good fit between means and ends that applies when using his layers principle.  You can also think of as e2e, Solum argues, because “unless there is near identity of the problem and the technology, the law should not target the lower technology layer in order to regulate the problems at the upper layer.”  But, he says that these principles should be distinguished from the layers principles because, unlike with TCP/IP, substantial innocent use is not an inherent design feature of all of Benkler’s communications layers.  Additionally, he repeats that there’s no transparency requirement.

The point Solum then makes is pretty interesting.  Problems of fit between means and ends are “even more profound than the problems of fit that undergird the Sony rule. To these problems of fit are added the even more compelling problems identified by the transparency thesis. In other words, the underlying rationale of Sony applies more strongly to layer-violating regulations in the TCP/IP layers than it does on the facts of Sony itself.”

Thus, you can find this layers principle already embedded in case law - that’s a neat idea.  It’s particularly interesting if it actually has weight in other areas, outside the copyright context.  As noted, Solum does suggest ways that the layers principle could become part of judicial reasoning, and this seems like a good in.

This point is particularly interesting to me because it comes from the same professor who has helped me understand the importance of distinguishing between a case’s dicta and its holding.  When you try to glean precedent from a case, your assessment will radically change depending on whether you look at just the narrow holding, a broader version of the holding, or the general reasoning itself.

Whether or not this reasoning would actually work, it’s interesting to think about how “the normative basis for the layers principle is already anchored in the deep structure of American law.”  I wonder: where else, outside of Sony, can we find it?

Filed by Derek Slater at 9:35 pm under General news
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I love how you can tell they have no idea what Congress is doing simply by their hearings’ titles.

Filed by Derek Slater at 6:47 pm under General news
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First up, Samuelson’s article.  You should check it out if only because it’s a nice overview of what was going on in copyright law before Eldred.  It also has a mountain of footnotes. These articles in particular caught my eye:

• Alfred C. Yen, Eldred, the First Amendment, and Aggressive Copyright Claims, Houston L. Rev. (forthcoming 2004).
  
• Michael D. Birnhack, Copyright Law and Free Speech After Eldred v. Ashcroft, 76 S. Cal. L. Rev.(forthcoming 2003);
  
• David McGowan, The Code-Speech Conundrum, 64 Ohio St. L.J. (forthcoming 2003) (criticizing Corley)
  
• 
  

  Edward Lee, The Public’s Domain: Evolution of Legal Restraints on the Government’s Power toControl Public Access Through Secrecy or Intellectual Property, 55 Hastings L. J. (forthcoming 2003)

After a lengthy intro to the issues, she gets into the meat of the article: “six challenges to intellectual property rules with constitutional overtones.” She didn’t number them, but here’s a rough approximation, some of which will be familiar from the Volokh piece.

1.  Dastar.  The article was written before the decision, but, as she notes, a pro-Dastar decision gives some hope that the public domain cannot be destroyed using non-copyright means.

2.  Golan (which, as of yesterday, is now fully briefed) and other cases regarding the restoration of expired copyrights. Eldred does not say that you can take stuff out of the public domain, and the Graham and Bonito Boats precedents apply more directly to restoration (they were part of the Eldred argument, too, if I recall).  The result of Dastar is in Golan’s favor
But, one tricky part of Golan remains: the treaty making/foreign policy powers.  The Court doesn’t like to get into this area. If we get a pro-Golan result, that means treaties entrenching the DMCA can be targeted. An anti-Golan result that reaches the treaty power issue would make us totally screwed.  IP law will continue to be an international treaty issue, and the Internet probably will increase this trend.

3.  Database law.  The Feist creativity-standard for copyrights is a problem here, as well as the importance of the idea/expression dichotomy as reflected in Eldred (see Volokh, below)
Another tricky issue: can you get around this using Commerce Clause?  Maybe.  The government can’t do trademark under IP (see Trademark Cases), but you can do it under commerce.

4. Challenge to DMCA in full.  This is what everyone has been talking about.  The main problem I saw with Kerr’s argument is that he doesn’t consider Eldred.  But let’s talk about Corley for a second, because it came down before Eldred.  Say other courts believe Corley got it right during its time - what has time/experience and Eldred changed?

Let me discuss this briefly now and return to it after I read some more Corley articles (this is what the summer does to me - adds even more stuff to my reading list!).  The court said “we note that the Supreme Court has never held that fair use is constitutionally required.”  That was suspect then, and it’s even moreso now.  The SC clearly sees fair use as part of the “traditional contours” necessary in copyright law.  As for the rest of the opinion, I doubt Eldred is much help.  The court said that 2600 couldn’t be a fair user because it was just trafficking and that the DMCA did not preclude fair use simply because it made it technologically difficult.

This is where Frank’s write-up turns on the light bulb - his points relate to a  big thread within Corley.  The court clearly had trouble figuring out how to treat technology in relation to expressions.  It refused to differentiate between object code and source code.  This part in particular reminds me of what Frank’s getting at:

“Unlike a blueprint or a recipe [regulated as “pure speech”], which cannot yield any functional result without human comprehension of its content, human decision-making, and human action, computer code can instantly cause a computer to accomplish tasks and instantly render the results of those tasks available throughout the world via the Internet.  The only human action required to achieve these results can be as limited and instantaneous as a single click of a mouse….[The] momentary intercession of human action does not diminish the nonspeech component of code, nor render code entirely speech, like a blueprint or a recipe.”

That’s splitting the technology from the expression, divorcing the use of code from actual human experience.  The court is trying to find a middle ground, speech with a non-speech component; it’s trying to grasp how the tech is not just an intermediary between human and expression, but embedded inherently in the experience.  But, in reaching its conclusion, the court fails to go far enough.  Though this is in the context of considering code by itself, this reasoning placed in IP context fails to “[confront] the fact that the distributed artifact is not a creative expression without access to the technology implicit in the artifact’s design.”  A DRM wma file is not the same creative expression without “without human comprehension of its content, human decision-making, and human action.”  And it’s the DRM that’s restricting the human aspect.  We have to be able to interact with the technology in order to interact with the expression.  (…this is shaky, I’ll see what I can do.  Note, I’m not really trying to deal with this as legal line drawing.  Just trying to map their legal reasoning to their larger vision of how we interact with code.)

And this sort of thinking bears heavily on the the whole issue of whether simply making fair use inconvenient via DRM is enough to strike the law.  I suppose you can make those technologically inconvenient fair uses, in the abstract.  But it’s greatly altering the way you experience the content.

5. Experience and time might help with these points from Corley, along with the court’s last point, that no content users have been harmed by the DMCA (bah!). Samuelson suggests that even if we couldn’t mount an attack on the entire DMCA, we could see more successful challenges by particular defendants.  They might have more success as fair users rather than traffickers (think Felten).

Samuelson also brings up conflict between Bunner and Corley, for Bunner does allow the publishing of source code.  True, it’s not a DMCA case, but it is related to the strength of the First Amendment in copyright claims.

6.  Two final impacts.  First, from non-copyright to copyright impact - how will a case like Bunner affect copyright cases?  And, vice-versa - how will copyright cases affect patent cases, for example.  Finally, Samuelson notes that Eldred puts cases like Bowers in doubt.

Now: I’m not sure I need to say anything about Kerr’s argument, because it’s been covered elsewhere.  But, as for Balkin’s DMCA=unconstitutional arguments - how should one frame an argument that the DMCA’s burden on fair use is too severe?  Again, I think it’s going to be critical to determine what fair use we’re talking about - constitutional or statuatory, and what constitutionally mandated fair use actually is.  The burden on commentary, criticism, and parody is far less than on time-shifting, space-shifting, etc.  The technological difficulty argument is much easier to make when it comes to being able to copy and paste versus retype quotations from something you’re criticizing.  Maybe one would have to consider the tradition of protecting general purpose tools - but, that comes from the statutory construction of the 1976 Act in Sony.

Oh, and as for Seth’s argument about the “DMCA does not limit fair use” clause - I don’t buy it.  Corley, for good reason, did not read that clause to mean that the DMCA provided a fair use exception.  Its designers did not intend such an exception.

Filed by Derek Slater at 11:25 pm under General news
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Start here, read Kerr and Balkin, then Solum, and then turn to Frank (who’s got something going here on a really good, non-legal level, even though I’m not sure if it’s totally what Balkin was getting at - see here for the links and my criticism, taking into account what I mentioned here in reference to the Volokh article).

I’ll try to have a post on all this tomorrow - I want to discuss what’s going on in these posts, but I also need to read this IP after Eldred article by Pam Samuelson (via copyfight).  And, I will at some point, get to this Benkler wireless article once I read critiques like this one.

Filed by Derek Slater at 5:04 pm under General news
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Eugene Volokh’s latest article goes into much more than that, but that’s as far as I’ll focus here.  This post will be part cliff notes, part commentary.

Volokh starts by arguing that copyright, trademark, and the “right of publicity” are content-based, rather than content-neutral.  The hardest sell is copyright law, but even it prohibits producing and distriubting works that are substantially similar to the content of prior speech.  He also notes that the fair use exception is based in part on content, and, following analogous cases, this implies that copyright law as a whole is content based. (As Alex suggests, you might want to think about this in terms of Bunner.)

Next, Volokh explains that, even if you treat copyright laws as content-neutral, they don’t pass typical restrictions that focus on time, place, and manner of speech and require “ample alternative channels.”  Copyright law bars entire use of certain words.  Even if you can say different words to express a similar meaning, you’re never going to get exactly the same expression.

So, if copyright laws generally won’t pass muster under the first amendment, how are they constitutional?  Obviously, because of the copyright clause.

Volokh then turns to Eldred (without delving into the case’s first amendment reasoning, probably because the court went into very little detail).  Though Eldred stands for copyright as exempt from most first amendment scrutiny, it provides two exceptions: restrictions on the ideas/facts (as opposed to expression), and laws that eliminate constitutionally protected fair use.

What can we derive from this?  First, copyright law provides no help for fact based laws (eg, database protection laws, property right in private info).  Sometimes the facts will matter, like in a contributory infringement context when pointing to infringing material might be enough to get you in trouble (even though you’re just publishing the factual location of the material). But this is pretty iffy, especially when you throw the DMCA into the mix.

Second, as explored by Professor Balkin, the fair use exception might poke a hole in the DMCA.  To make this argument work, you’d have to say that First Amendment protects certain types of conduct, since that’s what the DMCA regulates; Volokh makes an analogy with arguments that say restricting news gathering is basically the same as restricting news reporting, which is largely unconstitutional.  But the court hasn’t said a lot about this issue.

Third, if you’re going to use copyright law as an analogy for trade secret law, you’d have to note the fair use exception and the right to publish facts.  This would show dissimilarity between the two laws. Think about Bunner here.  If you try to analogize that trade secret prohibition to copyright law, then you’ve got to ask, does the trade secret argument have no exceptions?  If it doesn’t, then the analogy fails. 

Volokh suggests that this only binds constitutionally protected fair use.  According to Volokh, the judiciary has only extended this as far as “for scholarship and comment, and even for parody.”  The wide-range of fair uses we know and love extend from statute, not the constitution.  I think the DMCA would probably not be found unconstitutional along these lines because it was passed after the Copyright Act of 1976, and thus they’d try to read the DMCA as affirming a limit on that statute - they’d accept the latter statute over the earlier one if they contradict each other.  Remember: those constitutional fair uses are the closest thing you have to fair use rights. The others can be snatched up by Congress whenever they please.

Or maybe not - how far would the Court allow them to take it?  Would they really let copyright law control every single way you make personal, private, non-commercial use of content?  Volokh mentions the uncertainty regarding other fair uses.  Probably, the buck would have to stop somewhere further than scholarship, comment, and parody. But it wouldn’t go to much further, because the Court would be hesitant to make too broad of a statement on an issue that’s largely supposed to be Congress’ domain.

One could also argue that Volokh is wrong to imply that the “traditional contours of copyright” does not include what came out of the 1976 Act. Indeed, Ginsburg cites title 17 section 107, not the constitutional caselaw, first.  But, what sort of First Amendment analysis would come from that?

I wonder: as Balkin suggested, there might also be a public domain exception. I know, I know - that sounds totally un-Eldred.  But think of it this way: Congress still doesn’t have the power to pass an infinite copyright.  One could argue that the public domain is part of copyright’s traditional contours and then, cringing, you could say that Eldred affirms that the traditional contours are still important by saying that infinite copyrights are not legit.  You still have to signal that a work will fall into the public domain at some point in the future, even if you back away from that deadline later.  By effectively creating a perpetual copyright, the DMCA violates this traditional contour. [Update - Note: I know, I’ve brought this up before and expressed my doubts. But, Volokh’s article made me want to restate the possibility.]

In the next section, Volokh delves into what this means for procedural rules in copyright cases.  First, he argues that the standard should be the same as in other first amendment cases.  He sees no reason for treating non-fair uses different than obscenity or libel law.  In the latter cases, the burden is on the plaintiff; however, in copyright infringement cases, the burden is on the fair user to make his affirmative defense.

Now that’s an interesting point.  This would totally change fair use arguments.  It’d be less of a longshot for people, because they wouldn’t have to shoulder all the burden.  I’ll try to think more about this and read up on what could change. (Volokh cites a Neil Netanel article on the subject, among other interesting sounding Netanel pieces.)

Volokh made one other point that caught my attention.  He asserts, “If [Eldred is] seen as arguing that the copyright exception is legitimate because copied speech is substantially less valuable than other speech—then the text seems mistaken.”  The end of Ginsburg’s opinion implies this.  Both copies and detrivate works obviously can have quite a lot of values for the speaker and potential listeners.  Hopefully, the Court will heed Volokh’s concerns.

Filed by Derek Slater at 1:46 am under General news
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Just wanted to let you know that I’ll be at the MeetUp next Tuesday.  If you live in the area, come hang out!

Filed by Derek Slater at 12:39 am under General news
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Hoping to get to Professor Volokh’s latest copyright piece later in the week, and I’ll post on it as soon as I can.  For now, I want to return to the story that just won’t go away: Apple iTunes and the new digital retailers.

It’s one thing when CNet is writing about iTunes every other week. It’s another thing entirely when the NY Times seems to be doing a new Apple story every week.  This marketing bubble has yet to burst.

And then comes word in the LA Times that more companies are trying to get into the business with Apple-like services.

We’ve discussed the potential for success from many different angles. Is Apple’s DRM too strict?  Too lax (see iTunes streaming)?  Can you compete with free?  Some scholars, particularly Professor Fisher, say that the price has to come down much, much further - perhaps to as low as 15 or 20 cents per song. 

Let’s say the DRM’s fine and that this newfound competition drives the price down to 15 cents.  Say the services also start incorporating independent labels and artists (see Apple’s recent discussions, which, I think, are incredibly important.  Again, people aren’t going to want to switch between many different music services. These services have to be fairly comprehensive). 

What else needs to happen?

One angle that I haven’t fully considered is that there simply are not enough broadband subscribers to support these services.  I don’t have a clear sense for whether broadband rollout is getting any better - I know that the prices are still largely unsatisfactory.  As Declan points out, aspects of broadband pricing are a total political mess.  And I still don’t understand why cable is classified differently. Here’s a little bit from this report:

“By contrast, when an entity offers transmission incorporating the ‘capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing,or making available information,’ it does not offer telecommunications. Rather, it offers an ‘information service’ even though it uses telecommunications to do so. We believe that this reading of the statute is most consistent with the 1996 Act’s text, its legislative history, and its procompetitive, deregulatory goals.”

Ugh. I’m still trying to work through what the hell this means.

I saw this Jupiter report on Apple’s growth and price, and I’ve seen some reports on broadband growth.  Anyone have a sense for whether there are enough customers out there?  What sort of numbers would be necessary?  Even this estimate, which used numbers twice Apple’s pace, doesn’t guarantee a profit. And that’s with 1 dollars per song!

So, the scenario of these services failing not because there’s no demand or because they’re not cheap enough but because getting broadband is too difficult - that scenario will make things very tricky.  If these services fail, extremists on both sides are going to seem way more credible.  The wait-and-see approach would be virtually dead. 

Moreover, we might not see DRM regulation. We might see more broadband deregulation that puts the wires in the hands of even fewer companies, if that’s possible. Maybe they’ll offer it cheaper.  But they’ll also probably have concentrated control of the wires and the content.  If that’s the case, the DRM angle matters far less.

Or, maybe it’ll all turn out ok.  Then, I wonder what happens to the movie industry. At what point do all of its claims seem totally ludicrous in light of the music industry’s changes?  If you’re interested in this angle, check out the Intertainer lawsuit.

Filed by Derek Slater at 8:27 pm under General news
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I’ll be back tomorrow with an actual post, but for now:

Eric Eisenhart explains why Blubster probably doesn’t protect anonymity.

Cory Doctorow asserts that contracting around copyright is ”contrary to the balance of copyright, and is probably a good place for contract regulation.”

Filed by Derek Slater at 8:32 pm under General news
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