Information Law Possum

Yesterday’s EDRI-gram informs about the recent decision by the Paris Court of Appeal in the case “Mulholland Drive”.

A French consumer association sued the producers of Mulholland Drive because their DVDs were copy-protected and because there was no appropriate notice on the wrapping.

[T]he Court … decided on 4 April 2007 that the private copy of a certain work is not a right but “a legal exception to the principle of copying the entire work without the consent of the copyright holder”. Therefore a private copy is not a right, but an exception and no one can start a legal action based on an exception.

In Hohfeldian terms, private coyping is a privilege for consumers, not a right that would be associated with a duty on the part of rightsholders.

The decision doesn’t come as a big surprise, although many European scholars have put forward the argument–or at least examined it at great length–that private copying could actually be more than a privilege.

The report goes on:

However, the Court of Appeal indicated that this exception can be used as a reasonable defence in the case of alleged counterfeit, if the other legal conditions are fulfilled.

From the perspective of law enforcement, the “right” to make private copies confers subjects immunity from liability for counterfeit.

By the way: The opt-in private copy exception to DRM protection under the EUCD (Art. 6(4)2) doesn’t make the privilege a right, but rather limits consumers’ liability for DRM circumvention.

My friend and colleague Richard Staeuber has been interviewed by TheStreet.com about the headwind Apple is facing in many European countries because of its non-interoperable DRM system (FairPlay).

The article also mentions that Steve Jobs has recently blamed the major labels for obliging Apple to impose DRM protection on iTunes, and that he would be happy to sell non-DRM’ed music.  EFF’s Jason Shultz doubts that this statement could be taken at face value.

At the current state of play it doesn’t seem to make much business sense to try to bind consumers to iPods through iTunes:  First, the vast majority of songs played on iPods is not DRMed, and–as anti-DRM activists rightly claim–it is logically impossible to prevent the use of non-DRMed music by selling DRMed music.  Second, iPods somehow appear to be cooler than a) iTunes files and b) MP3 players of Apple’s competitors, and they’re expensive:  If a consumer wants to replace her iPod, I surmise that it would be cheaper in most cases to replace it by a no-name player and either burn-and-rip her iTunes or buy the respective songs at another online music store, than buying a new iPod.

My take on the story is that Steve Jobs’ statement is compatible with Apple’s business interests–at least in the short or mid-term.  The situation would only be different if a) the next generation of iPods is a flop or if b) non-DRMed music were not available anymore.

Urs Gasser and Richard Staeuber has dug out one of the earliest decisions based on the European Copyright Directive (EUCD), rendered on December 31, 2003, by a court in Bolzano (Bozen), South Tyrolia, Italy.

The judgment (no English translation available anymore), which is summarized here, essentially declared illegal the seizure of Sony Playstation consoles that use modified chips to permit uses of the console not authorized by Sony, e.g. playing disks with a different regional code.

Delivering one of the most consumer-friendly decisions in Europe in the realm of digital copyright and anti-circumvention laws, Judge Edoardo Mori made a hilarious metaphor worth keeping in mind. He wrote:

Sarebbe un po’ come se la Fiat vendesse un’auto con il divieto di uso per extracomunitari e per strade extraurbane.

which can be translated as:

This would be a bit as if Fiat* sold a car, but prohibited its use by non E.U. residents and on highways.

Indeed, GPS might make it possible to design such a technical protection measure. The legal problem in this scenario would be, however, that nothing on a Fiat car seems original enough to be copyrightable subject-matter …

*) Fiat is the Italian equivalent to a Chevy, just smaller.

John Palfrey, on the basis of a comment to YouTube’s copyright liability risks, has made a very important and outside-the-box suggestion as to how to deal with the present copyright uncertainty in the digital realm:

“One might imagine a process by which citizens who create user-generated content (think of a single YouTube video file or a syndicated vlog series, a podcast audio file or series of podcasts, a single online essay or a syndicated blog, a photo covering the perfectly captures a breaking news story or a series of evocative images, and so forth) might consistently adopt a default license (one of the CC licenses [...]) for all content that they create, with the ability also to adopt a separate license for an individual work that they may create in the future.

In addition to choosing this license (or these licenses) for their work, these users registered this work or these works, with licenses attached, in a central repository. Those who wished to reproduce these works would be on notice to check this repository, ideally through a very simple interface (possibly “machine-readable” as well as “human-readable” and “lawyer-readable,” to use the CC language), to determine the terms on which the creator is willing to enable the work to be reproduced (though not affecting in any way the fair use, implied license, or other grounds via which the works might otherwise be reproduced).

Some benefits of such a system:

- It would not affect the existing rights of copyright holders (or the public, for that matter, on the other side of the copyright bargain), but rather ride on top of that system (which might have the ancillary benefit of eventually permitting a global market to emerge, if licenses can be transposed effectively);

- It would allow those who wish to clarify the terms on which they are willing to have their works reproduced to do so in a default manner (i.e., “unless I say otherwise, it’s BY-SA”) but also to carve out some specific works for separate treatment (i.e., “… but for this picture, I am retaining all rights”);

- It might provide a mechanism, supplemental to CC licenses, for handshakes to take place online without lawyers involved;

- It might be coupled with a marketplace for automated licensing — and possibly clearance services — from creators to those who wish to reproduce the works;

- It could be adopted on top of (and in a complementary manner with respect to) other systems, not just the copyright system at large as well as worthy services/aggregators of web 2.0 content, ranging from YouTube, software providers like SixApart, FeedBurner, Federated Media, Brad Feld’s posse of VCs, and so forth; and,

- It would represent a community-oriented creation of a market, which ultimately could support the development of a global market for both sharing and selling of user-generated content.”

John concludes:

“This system would not have much bearing on the Google/YouTube situation, but it might serve a key role in the development of web 2.0, or of user-generated content in general, and to help avoid a copyright trainwreck.”

I think, the main strength of this approach is — besides transparency and legal certainty — its potential for automatization of licensing. “Traditional” rightsholders as well as potentially liable intermediaries might be well advised to foster creating this system, as they could benefit from it themselves:

• Rightsholders could benefit in three ways: First, they could signal that they don’t want people to use their works for certain purposes, and that their works are n o t CC-licensed. Second, they could use the system to license their works for a fee.
• Intermediaries could prevent abuses of their notice-and-takedown mechanisms, for instance requiring that a work be listed in one of the central repositories/clearinghouses and that the rightsholder argue that the use of the work he or she wants to be taken down violates the terms of the machine-readable license.

More theoretically, it would be interesting to see if we can design a rights management layer to the internet whose default rule is on “open”, in contrast to the “closed” default rule of DRM protected works their protection by hardware.

In this way, John’s system could be very meaningful for Google, YouTube & Co. I hope that not only the intermediaries, but also the “copyright industry” have learned the copyright industry’s lesson of the late 90s/early 2000s, and that they will proactively help users in shaping copyright’s digital future.