1. Judge Gertner will reduce the damages somewhat.
2. She will find that the statutory damages provisions of the Copyright Act do not contravene constitutional protections under the Gore line of cases.
3. The First Circuit will affirm.
4. The Supreme Court will deny cert.

I think the damages provision might be vulnerable in a specific defendant’s case (though Ms. Thomas-Rasset would be a better test than Mr. Tenenbaum here), but is safe on its face. In lawyerspeak, it’ll survive a facial challenge, but might fail as-applied.

The Gore limits depend in part on the concept of notice: defendants should know ahead of time how much they’d be liable for if they violate the law. No one expects punitive damages of 500:1 (Gore) or 145:1 (State Farm). But predicting liability – at least at its minimum / maximum amounts – is easy for copyright law. That’s a key difference between a statutory damages scheme, with a range specified by the legislature, and a common-law one where juries pick a number from a hat.

Second, the range of damages in the Copyright Act looks reasonable on its face. $30,000 per work (and up to $150,000 for willful infringement) is a lot, especially if it’s just to deter (or compensate for harm by) a single defendant. (General deterrence is out under Philip Morris v. Williams, which is sad for law & econ thinkers.) Imagine a business that runs off copies of “Harry Potter and the Deathly Hallows” in its basement and sells them. Copyright infringement of this one work is clear, but the business carefully shreds all evidence of sales. So, it’s impossible to prove actual damages; businesses are often risk-averse, meaning that higher awards of damages are needed to deter; and there’s only 1 copyrighted work at issue. Statutory damages are important to provide any deterrence – since proof of harm is under the infringer’s control – and since the infringement might be quite profitable, an award might need to be high (even $150K). Hence, the damages scheme is clearly rational in at least some cases.

The harder question is whether the unconstrained jury discretion for statutory damages could run afoul of due process protections. Individual downloaders tend to be pretty similar if you think about it: there’s not much difference between Thomas and Tenenbaum. So why is her penalty almost 4 times more per work than his, for the same type of infringement? Neither has much in the way of monetary resources, so they’re either undeterrable, or able to be deterred at a fairly low amount (marginal value of a dollar and all that). Here is where the damages scheme seems like it might be vulnerable: it does get hard to predict liability in some individual cases, and the wide range of damages looks a bit too much like absolute discretion. (Thought exercise: what if a jury could award any amount of damages per infringement? Would that improve deterrence against Tenenbaum and Thomas? Would it be significantly less accurate than the actual damages, which everyone agrees are pretty low in real terms? But such a framework would likely run afoul of constitutional limits.)

If this is right, it means that both sides should worry – as should Congress. Getting damages right is important, but preserving both procedural and substantive protections for defendants is just as much so. Comments and disagreement welcomed…

I’m speaking tomorrow morning, delivering a revised version  of a talk I have given before on using peer-production techniques to foster open access. My slides are public, although I’m never terribly happy just reading other people’s slides divorced from the content of their presentation. Some of the links in the slides, however, may be of interest. I’ll have more to say about the presentation later in the week.

I made a few points that I’ll share here. First, I think that Internet filtering has had three epochs:

1. Filtering 1.0: filtering is technically impossible (Gilmore and the cyber-exceptionalists / cyber-libertarians)
2. Filtering 2.0: filtering is possible, but only done by bad actors / authoritarian states (China, Iran, Saudi Arabia, etc.)
3. Filtering 3.0: filtering becomes widespread, including in Western democracies, and we face hard questions about how to assess the practice’s legitimacy

Second, Australia is the beta for Filtering 3.0. The country is having useful, vehement disagreements over how filtering is implemented (what method is used? who pays? what trade-off in performance is acceptable?) and what gets blocked (who decides? why is certain content prohibited? how can one challenge censorship decisions?). The Rudd government, via Senator Conroy, seems to be backing down on two fronts – specifying that only Refused Classification (RC) material will be blocked in a mandatory fashion, and that a “voluntary” industry code to which all ISPs adhere could substitute for legislation – but a requirement to filter is still a government objective.

Finally, there’s a persistent myth that the U.S. is a filtering-free zone. I think this derives because what we block seems natural / inevitable / invisible. Google has to remove certain search results that link to infringing content to stay within the safe harbor of the Digital Millennium Copyright Act. This is like the dog that didn’t bark in Sherlock Holmes: how do you know what you’re missing? (To Google’s credit, the site includes notification that it has filtered results, and links to Chilling Effects so you can read the DMCA take-down notice.) Linking to a site that you know posts DeCSS is unlawful. Napster had to institute filtering to satisfy the district court in California (which it failed to do). Americans think that prohibiting copyright infringement just makes sense – but Saudi Arabia thinks this about porn, and France for hate speech, and Australia for euthanasia. We aren’t different, and that’s what makes Filtering 3.0 hard.

I’ve got an initial proposal for how to approach Filtering 3.0 (my paper Cybersieves, coming out this year in the Duke Law Journal) that looks at process rather than the content that’s banned. Filtering is coming: to Australia, to Germany, to Minnesota. Gilmore’s optimism no longer applies. We need to think about what comes next.

The new article is an analytical bookend to my earlier piece on DRM and the process of fair use, focusing less this time on DRM technologies and more on the response of the courts that have been called upon to construe the DMCA, some of which have interpreted the statute broadly and some of which have gone the other direction.  Although I suspect that my sympathies will be pretty well known to readers of this blog (they lie, on the whole, with cases like Chamberlain and Lexmark that have given the anticircumvention provisions of the DMCA a comparatively narrow reading), I find that court opinions on both sides of the divide contain aspects that are pretty problematic, challenges that may limit their persuasive force going forward. At bottom, the article is a call for the courts to interpret the DMCA more holistically, in line with preexisting copyright principles that some commentators have argued (mistakenly, in my view) are no longer relevant.

The article is Creative Commons licensed (BY-SA-3.0-US, if you’re curious; I was tangentially involved with the “U.S. port” of the CC licenses during my time with the Berkman Center’s Cyberlaw Clinic, and putting our work product to good use seemed like the right thing to do). So if you have ever wanted to turn a law review article into, say, a comic book, here’s your source material!  I’ll depart somewhat from the convention of posting my abstract here; instead, if you’re interested, the article’s “Conclusion” section is available after the jump.

The institutional response of the courts to the enactment of the DMCA has been puzzling. Federal copyright law has long developed as an exercise in interbranch partnership, with Congress and the courts generally acting as coequal partners in the development of doctrine. The courts have played particularly important roles in limiting the potentially undesirable reach of copyright’s liability and penalty provisions, which might readily threaten other expressive values if applied strictly as written. Under the DMCA, in contrast, the courts seem to have ceded a good deal of their historical policymaking role in copyright matters back to Congress. Both the cases construing the DMCA broadly and the cases construing it narrowly have attempted to portray their results as resting not upon policy considerations, but instead as commanded solely, or primarily, by the literal text of the statute. In doing so, the courts have at once demoted themselves from the coequal policymaking role they have traditionally occupied in copyright and imposed on the text of the DMCA a far greater burden than it can colorably bear, for like other copyright statutes, the DMCA includes a multiplicity of provisions pointing in different directions.

The effect has been a devaluing of copyright doctrine in cases under the DMCA to no identifiable benefit. The development of a cohesive body of DMCA case law is hampered by the courts’ insistence on disregarding provisions that actually appear in the statute. Doing so both diminishes the persuasive force of their decisions (for later courts may decide instead to emphasize the provisions of the DMCA that the earlier courts discounted) and inhibits consideration of plainly relevant source materials outside the enacted text. Copyright law, for its own valid purposes, long ago outgrew such strict formalism. It would be far preferable for the courts in DMCA cases to do likewise.

Perhaps they have. After all, cases like Chamberlain and Lexmark do seem to draw upon matters of legislative policy and intent to give the DMCA quite a different reading than did cases like Reimerdes. Perhaps the courts are silently thinking “fair circumvention” thoughts, while outwardly preserving a façade of formalist orthodoxy to forestall intervention by a more narrowly textualist Supreme Court. If that is their game, however, it seems hardly to be worth the candle. A court’s insistence in case #1 that the literal text of the DMCA says something it clearly does not leaves all the parties in case #2 worse off, for they must either frame their own arguments around the supposed literal text of the statute (a recipe for continued confusion) or invoke policy considerations outside the statutory text that precedent has declared to be irrelevant.

Development of a rational, cohesive body of doctrine under the DMCA would be served far more readily by a forthright judicial declaration that, although particular conduct might be encompassed within the four corners of the statute’s liability provisions, it nevertheless will not be punishable for good and adequate reasons of policy. Debate thereafter could revolve around ascertaining the reasonable limits of those policies and any countervailing principles (prominently including, to be sure, fidelity to the intent of Congress and the enacted text where it supplies an ascertainable rule of decision). This is the route the courts took when developing copyright’s fair use doctrine, and it remains a sensible alternative for developing a “fair circumvention” doctrine under the DMCA.

The coalition was organized by Open MIC, a group seeking to involve investors and other private sector actors in efforts to promote openness in the development of communications media and preserve the “democratizing potential of the digital era.”

Derek and I have both written here before about the importance of market-oriented efforts of this type. Here’s Derek’s post. As I said just about two years ago:

Activists and policy wonks who work with environmental issues take it for granted that private corporate activities and markets lie at the center of both the problems and the potential solutions … to issues such as water pollution, global warming, and habitat destruction. … Until recently, the same was not true for info/law issues. The problems were often seen as based almost entirely on some combination of legal regulation and technological architecture. Tech companies were regarded as ideals by many socially responsible investors — they had low environmental impacts, typically they had progressive employment policies and benefits, and their supply chains did not involve the sorts of entanglements with corrupt regimes and human rights problems that beset industries from oil to global agriculture.

There is still a significant lag in the application of the “corporate responsibility” ethos and tactics to the problems of Info/Law. But this move by Open MIC is another sign that such efforts are emerging, albeit very very slowly.

Expats will despair: the New York Times Web site appears to be blocked in China. (The Times itself reports on the development, and includes a quote from a Times spokesperson. It’s almost a parody, except of course for the seriousness of the issue.) My friend and Berkman colleague Rebecca MacKinnon is quoted.

It’s hard to tell if this will last, or if there is some (temporary) reason why the blocking is occurring. As the Times article makes clear, it’s hard to know which door to knock on in China – there are a dozen governmental entities with some role in Internet regulation – when you want to protest or find out about filtering. Oddly, the BBC is apparently available, along with Voice of America. This is what makes China’s Internet controls so powerful and Kafka-esque: you never know exactly what’s happening, or why.

This will make me enjoy my dead tree version of the Times tomorrow over brunch all the more…

The New York Times reports on some terrific research done by my former ONI colleague Nart Villeneuve – he found that the TOM-Skype text messaging service in China not only scans messages for sensitive keywords, it also stores copies of offending messages along with information identifying the sender and receiver. This raises a host of scary issues. First, these messages are clearly stored for a purpose. It might be to help TOM-Skype kick people who send sensitive messages off the service; more sinister (and more likely) is that it might help the Chinese government keep tabs on those users (and, probably, analyze traffic data for trends in what’s discussed or to detect new keywords to block). Second, the surveillance is insecure: Nart’s hax0r skills are rare, but there are other skilled folks out there, too, who might find (or have found) uses for this information. Third, Skype has consistently denied doing this sort of thing. Oops. Finally, eBay (which has thus far eluded the scrutiny that Microsoft, Google, and others have faced over operations in China) has responded by saying they’ll have TOM-Skype fix the “security breach.” No, not the one that stores all these messages – the one that let Nart access them. This is like spotting a sewage leak like by the flies above it, and vowing to do something about those flies.

This research also elucidates the link between censorship and surveillance: the former can enable the latter to be better-targeted. Indeed, Nart’s work suggests that TOM-Skype messages were stored not simply because of content, but because the service identified certain users as more likely to send texts with sensitive keywords. That’s scary. And it moves (or should move) the debate about corporate complicity with authoritarian states’ actions up a notch: this is more like Yahoo! selling out Shi Tao than Google censoring search results. We’ll see what, if anything, eBay does in response.