A Copyfighter’s Musings

Do read Professor Felten’s analysis of the solicitor general’s brief and the various anti-porn coalitions’ and police organizations’ brief.  As he suggests, this case is not simply about controlling P2P narrowly, but about regulating the Internet itself.  Susan Crawford has also been hammering away at this point.

Filed by Derek Slater at 12:09 pm under Big Ideas
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Didn’t realize they were all coming in now. Anyway, have a look.

Esp. of note: the MPAA/RIAA and songwriter/music publisher briefs.

Filed by Derek Slater at 10:57 am under General news
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See here.  Summary:

“Consumers have two strong interests: (1) Avoiding inhibitions on technological progress; and (2) Fostering the production of content by providing incentives to creators…. The Ninth Circuit focused totally on the need to avoid any inhibition on technology, and in so doing it lost sight of the equally important consumer interest in promoting content….

Also, the Ninth Circuit was mistaken in its application of the “capable of substantial non-infringing uses” language from Sony. No one in this case argues that P2P as a technology should be banned. The issue, rather, is the business practices which the filesharing companies are wrapping around this technology. These can and should be the subject of judicial inquiry, and condemned when they create business models that can fairly be classified as deliberately dependent on infringement.

Finally, this Court has been urged to defer to Congress. This is bad advice, because it assumes that Sony was rightly applied below. Also, the present situation needs cautious, common law approaches, not sweeping efforts to solve poorly-understood problems at one hack. Congress will benefit greatly if this Court gives it some breathing space.”

Filed by Derek Slater at 4:41 pm under General news
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See here.  Here’s the summary of the argument:

“It is critical to preserve the Sony defense, which allows technology vendors to innovate without fear of liability imposed simply because their socially valuable technologies are misused by third parties to infringe copyright. This Court should emphatically reject the Seventh Circuit’s attempt to engraft a nebulous balancing test onto the venerable Sony defense, and it should also make clear that courts ought not to inquire into whether a technology might have been designed differently to reduce or eliminate infringement. No such radical surgery is necessary because, when properly understood, the Sony defense offers no shelter to rogue companies for conduct that actively encourages their users to infringe.”

Note that “active encouragement” is not intended as a new standard (see footnote 4).  However, if you followed the proposed alternatives to INDUCE closely, you’ll recognize the proposed reading of Sony.  On a very quick skim, my first thought is: how is this active encouragement standard not open to abuse like the control/alternative design/balancing test standards the brief rejects?  In the danger a difference in kind or degree?  “Active encouragement” does characterize only a limited range of activities, and the brief specifically urges to not allow inferences from particular designs or business model:

“Although the district court’s failure to examine the record for evidence of active encouragement justifies a remand in this case, the Court should nevertheless make clear that the range of potential guilty conduct is quite limited. First, active encouragement does not exist merely because a technology vendor profits indirectly from infringing use – any business plan based on advertising will profit in proportion to the number of users a technology has, but that fact alone does not demonstrate active encouragement of illegal activity. Second, the presence of encouragement is a question of overt acts, and the purpose for which a technology may have been designed plays no part in that inquiry…. Third, the fact that a vendor maintains an ongoing relationship with its customers does not, without more, demonstrate encouragement. Fourth, no acts relating to the design, manufacture, distribution, or operation (by the vendor or distributor) of a technology that is capable of substantial noninfringing uses could constitute impermissible encouragement. Finally, the question whether an act constitutes active encouragement turns on traditional principles of contributory liability.”

In this way,  the standard they propose is overall rather technology-protective.  Also, there’s a lot of great stuff in here about why moving away from a bright-line, substantial non-infringing uses rule would be problematic. And they rightly criticize Aimster - choice line: the 7th Circuit “abandon[ed] the Sony rule in everything but name.”  Indeed, the brief goes even further and criticizes Napster’s focus on control.

Again, that’s just from a quick skim - I may have more to say on this and the VSDA brief later. And the other briefs, I suppose.  Watch here for the briefs, or use Joe’s RSS feed here (via Copyfight).  And is that Pam Samuelson blogging about the case?  Much to read and write!

Filed by Derek Slater at 4:32 pm under General news
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John Mitchell sends word that the VSDA has filed the first brief on the merits in Grokster. Haven’t had a chance to read it yet, but that shouldn’t stop you:

“The first brief on the merits before the Supreme Court in MGM Studios v. Grokster was filed Friday, January 21, by the Video Software Dealers Association. The brief suggests that while p2p systems may be used for infringing and noninfringing uses, courts should consider whether technologies may be used to reduce infringing uses without over-burdening the system provider, the freedom of speech for non-infringing uses (including by copyright owners who want p2p systems to be used to reach their audiences) or the freedom of competition (including first sale doctrine principles) of retailers and all intermediate software and services that make downloading possible. Bringing a retailer perspective, it strikes a balance of respect for copyright and respect for the limits the law places on those copyrights. The brief is available (in PDF) at http://interactionlaw.com/id5.html and at http://www.vsda.org/Resource.phx/vsda/government/positionstatements/grokster.htx“

Update: I’ve now given it a read, and, aside from attention to the distribution right, first sale, anti-trust, and First Amendment considerations, (all well-done and typical of Mitchell), I disagree with a whole lot of it. Here’s the concluding paragraph, which summarizes their argument: 

“Because the courts below failed to inquire into any available remedies, they also failed to properly balance the relevant harms, leaving no room to consider the reasonableness of imposing a duty to help prevent infringement. The Ninth Circuit’s ruling should be reversed, and the case remanded for consideration of whether, without unduly burdening the First Amendment rights of authors who wish to do so to make their works available for reproduction by others using peer-to-peer systems, without unduly burdening the audience for – or intermediaries of – such authors, without enlarging the scope of Petitioners’ copyrights such that they may be leveraged into control over methods for the reproduction of works into copies and phonorecords, the distribution of lawfully made copies or phonorecords, the rendering of private performances of works, or the competing systems for compression, management,transmission, and copyright protection for those works, it may require Respondents to institute measures designed to limit the use of their software services for infringing purposes.“ 

Earlier, the brief argues that: “[T]he Betamax recorder’s core function was to make reproductions, and it would have been impossible to enjoin the manufacture and sale of a Betamax recorder used for infringing reproductions without also enjoining the manufacture and sale of Betamax recorders used for noninfringing reproductions. This distinction goes to the core question of whether the burden of enjoining the infringing reproduction comes at too high a cost because, to be effective, the injunction would necessarily have too broad a reach.” And later: “Sony had no occasion to consider this question [of redesigning the technology to limit infringing uses] because ‘a finding of contributory infringement would inevitably frustrate’ the desire of approving broadcasters to expand their audiences through time-shifting. 464 U.S. at 446 (emphasis added). There was simply no means of enjoining sales of the Betamax recorder to protect the copyrights of the complaining copyright owners without also suppressing the freedom of expression of copyright owners who desired wider audiences gained through timeshifting.”

Distinguishing Sony because it only dealt with enjoining the technology altogether seems wrong to me.  In terms of interpreting Sony, I think the Court resolved how we should treat redesigns, as I discussed here. From a normative perspective, I think Sony was right to not assess potential redesigns and simply use the substantial non-infringing uses rule, as I discussed here. 

To quote from the Streamcast brief below:

“Plaintiffs assert that the Sony-Betamax doctrine does not apply where a technology can be redesigned to eliminate infringing uses while preserving noninfringing uses. This very argument was flatly rejected in the Sony-Betamax case itself, where the movie studio plaintiffs (whose corporate descendants are Plaintiffs in this action) suggested that the infringing uses of the Betamax could be easily addressed by either 1) removal of the tuner or 2) incorporation of a “jamming system” that would require VCRs to respond to “no copy” markers embedded into television signals. See Universal, 480 F. Supp. at 462. Plaintiffs’ conception gets the analysis precisely backward—the Supreme Court’s opinion in Sony-Betamax makes it clear that, so long as a technology is capable of substantial noninfringing uses, its vendor is not liable under contributory infringement principles and thus has no obligation redesign the product to the copyright owners specification.”

Joe Hall discusses why, even if a court were to consider potential redesigns, a redesign may be difficult.

Filed by Derek Slater at 10:49 am under Big Ideas
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Oral arguments will be held March 29.

Who’s planning to come out for it? I’m scheming travel arrangements, though I would imagine it will be even trickier to get into this than to Eldred - only 25 people from the general public were allowed in then.  Who’s going to camp out?

Filed by Derek Slater at 4:01 pm under General news
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Today, the Berkman Center and Gartner|G2 released an update to Copyright and Digital Media in a Post-Napster World, which ”examines the transition from analog/offline to digital/online media from a U.S. legal and market perspective.”  This edition reflects important changes since the whitepaper’s original publication in August 2003.  The new edition also includes an international supplement that “considers developments regarding copyright and related rights in Europe and Asia/Pacific (including Australia) against the backdrop of earlier studies by the Berkman Center’s Digital Media Project that reviewed the interplay of law, technology, and the business ecosystem.”

Filed by Derek Slater at 7:35 pm under General news
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News of Senator Murray’s California INDUCE-like bill is making the rounds.  Murray says that the MPAA/RIAA/et al had nothing to do with it.  Uh huh.

It seems like the RIAA/MPAA/whichever organization is behind this is throwing a million darts, hoping just one sticks.  Congress, Supreme Court, the states - doesn’t matter which one steps in as long as they get their P2P liability standard enacted somewhere.  At the same time, this bill seems so broadly drafted, so obviously bad that they can’t seriously think it will pass.  Maybe this is just the baseline, but, given what happened with INDUCE, do they really want to start that debate again in the state of Silicon Valley?  If they don’t take the bill’s chances seriously, is this just a way of wasting other organizations’ resources?  Lessig suggested that INDUCE was intended as a distraction, to move through the IP Protection Act.

Also, re: Professor Felten’s question about “reasonable person” standards, see Professor Solum’s legal theory lexicon post for a clear, simple discussion.

Filed by Derek Slater at 11:48 am under General news
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1.  DRM Watch has published several DRM year-in-review articles.  (via Paidcontent)

2.  The INDICARE Project has published Digital Rights Management and Consumer Acceptability. It “provides an overview of consumer concerns and expectations regarding DRMs, and discusses the findings from a social, legal, technical and business perspective.” (via Urs Gasser)

Filed by Derek Slater at 4:19 pm under General news
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Scoble’s got more links regarding the issues below.  As expected, a lot of it is knee jerk “bloggers can’t do this!” mixed with ad hominem attacks.  That’s too bad.  Chris Baus and Russell Beattie raise the issue of what CC’s non-commercial/commercial distinction actually means. It’s not entirely clear to me that Russell’s examples would not be commercial or would somehow be considered fair use.  Indeed, Martin argues the legal issue in his matter is fairly clear.  Cases like Basic Books and MP3.com seem rather on point here.  One of the key issues seems to be what having an RSS feed implies others should be able to do with one’s website. If Martin had no RSS feed and Bloglines was simply scraping the site, it seems people would feel very differently.  But why must RSS make a difference in this case?

Filed by Derek Slater at 11:17 am under General news
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Techlawadvisor’s been blogging up a storm, esp. recently.  I don’t link there near enough - do make sure to head over.

Also, Phil Leigh keeps pumping out interesting digital media industry interviews.  You can now download them instead of streaming. You might want to check out the interview with Wired writer Jeff Howe, particularly in light of Ed Felten’s post about Howe’s article “The Shadow Internet.”

Speaking of Ed, really digging the clips blog.

Filed by Derek Slater at 2:44 pm under General news
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Read Martin Schwimmer’s post “Why I Have Asked Bloglines To Remove My Sites From Its ‘Service.’”  Then read JP’s earlier posts on RSS and copyright.  Let me throw out some questions, in the service of probing the issue (and not to judge or argue for any particular view).

Which of your intuitions about RSS and copyright stay the same when commercial use is added to the mix? Which change? 

Let’s change the facts a little and see what happens. What if, instead of a server-side aggregator, Bloglines distributed software that aggregated client-side?  Imagine it functions exactly the same, reframing Martin’s page, cutting off his contact information, and targeting advertisements based on its contents.  However, the derivatives are rendered wholly on the client’s machine. Would Martin (or someone similarly situated) have reason to object?  Intuitively? Legally? For the same reasons as Martin proposes in his post, or different ones?

Compare and contrast these two situations with related issues in Basic Books v. Kinkos, Sony v. Universal, UMG Recordings v. MP3.com, and Huntsman v. Soderburgh. Consider the different roles played by intermediaries and users in making infringing and non-infringing uses.  Let’s assume for the moment that if a user were to make a particular derivative work himself it’d be a fair use - are there reasonable arguments that an intermediary should be able to make that fair use on behalf of the user even though the intermediary charges a fee? Does anything change if the intermediary’s action might actually promote markets for the original work? 

(If not obvious: part of my intent in framing the problem this way is to take it out of the blogging context, to see how that changes our intuitions about the issues, if at all.  I can imagine certain responses to Martin along the lines of “he’s a blogger - this just isn’t right” - we should treat that intuition critically).

Update: Denise has some linkage on this subject and points out the implied licensing issue.  Scoble’s comment re: Newsgator mirrors the hypothetical comparison I suggest above. He also writes, “Yes, I’m fully aware of copyright law. But blogging needs a new copyright idea. When you blog you are defacto agreeing to let your content be used in ways that might not agree with strict copyright laws.” In response to someone asking why copyright for blogging should be any different, Scoble argues that “RSS is a Syndication format and the usage model existed before any of you started writing. You saw how it was being used. You decided to participate by adding RSS feeds.”  Dennis Kennedy notes some of the complicated fair use issues and points out how they relate to early cases regarding framing of websites.  RSS and blogging norms seem to complicate the case, at least in some people’s minds.

Update 2: Martin clarifies and expands. Particularly points 4 and 5 are relevant to the above post.

[1/17 - edited second graf; before both questions were about intuitions staying the same]

Filed by Derek Slater at 2:02 pm under General news
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Again, sorry for the lack of posts here, but I’m in the midst of finals period.  Will bbiab.

Filed by Derek Slater at 11:38 pm under General news
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See here. I do agree with Brad’s concluding point that charging the higher price for portability might not be a good way to “compete with ubiquitous, free, portable music in the standard MP3 format.”  At the same time, I don’t think the higher pricing is just underwriting the DRM’s cost.  First, Napster might be paying higher royalty rates to the labels for the portable subscription offering.  Second, either Napster and/or the labels may see this as an opportunity to harness DRM for price discrimination.

Filed by Derek Slater at 1:46 am under General news
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Sorry for the slowdown here recently.  Actually, things have been a bit slower here over the last few months in part because of a Berkman Center research paper which I am very happy to report has now been published.  Here’s the link and abstract.  Feedback would be appreciated.

Content and Control: Assessing the Impact of Policy Choices on Potential Online Business Models in the Music and Film Industries

The online environment and new digital technologies threaten the viability of the music and film industries’ traditional business models. The industries have responded by seeking government intervention, among other means, to protect their traditional models as well as by developing new models specifically adapted to the online market. Industry activity and public debate have focused on three key policy areas related to copyright holders’ control of content: technical interference with and potential liability of P2P services; copyright infringers’ civil and criminal liability; and legal reinforcement of digital rights management technologies (DRM).

This paper seeks to support policymakers’ decision making by delineating the potential consequences of policy actions in these areas. To do so, it assesses how such action would impact relevant social values and four business models representative of current and emerging attempts to generate viable revenues from digital media. The authors caution that government intervention is currently premature because it is unlikely to strike an appropriate balance between achieving industry goals while supporting other social values, such as consumer rights, the diversity of available content, and technological innovation.

Filed by Derek Slater at 1:22 am under General news
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