[Update 1:00PM: The panel is in room 310.]

In some ways this is better, and in some ways worse. Fingerprinting can catch a lot of infringement, but it’s a rule rather than a standard: there’s no way for a content ID system to figure out fair use. (Heck, lawyers are bad at it.) The dispute resolution form improves things, but I wish the system notified the poster first (with, say, a deadline for response) before taking down the allegedly infringing content.

This is a nice reminder that the Internet is a world of private power. There’s no right to post to YouTube, and posters get whatever process Google decides to afford them when content appears to be infringing. In many ways, this recapitulates the standard public choice problems of copyright law: copyright-owning interests are concentrated and powerful, and copyright-using interests tend to be dispersed and weaker. In that sense, we’re probably fortunate that the content ID take-down system is as thoughtful as it apparently is. /Update

Warner Music has issued a take-down notice under the Digital Millennium Copyright Act for the video slideshow of Larry Lessig’s keynote talk at the OFC Conference in San Diego in March 2009. This can only be viewed as 1) a sad commentary on automated detection of copyrighted material, 2) a serious error in judgment, or 2) a deliberate provocation. Naturally, Lessig is going to fight, which I assume begins with a counter-notification under Section 512(g)(3) of the DMCA. I’ve been going over the myriad of clips in Lessig’s talk, trying to figure out which might be the source of Warner’s notice. It’s an interesting question whether Warner might be liable under 512(f) of the DMCA, along the lines of Lenz v. Universal’s claims, for failure to issue this notice in good faith. (Is it sufficient to believe in good faith that all uses require permission, or to hold a completely unreasonable yet devoutly believed view on the topic? I’m dubious – most subjective standards have some objective grip at bottom.) It’s hard to see Lessig’s utilization of the clips as anything but fair use: they’re quite abbreviated, the use is in a non-traditional educational setting, and there’s no market displacement of the originals. Not sure, in other words, how this fight started, but I have a sense of how it’ll end…

In addition to a pleasant trip down memory lane (except Jelly Rolls – I hate dueling pianos), this short raises some fun copyright questions. Is this a parody? If so, of what – South Park, Lotusphere, or both? If it’s of Lotusphere, aren’t we in infringing territory (at least in the Ninth Circuit) under Dr. Seuss v. Penguin Books? What about a trademark claim – this mash-up is good enough that I actually wondered if Trey Parker and Matt Stone were involved somehow? (And if so, what does this mean? Only crappy mash-ups are safe from legal liability?) If you’d asked me these questions when I was at Lotus, I’d have looked at you as though you asked about the release plans for Lotus Marmoset 1.0, but now that I’m a lawyer, I sit and ponder them.

Anyway, if you like the vid, here’s another one on Web design that is spot-on.

Through the good work of advocacy groups like Public Knowledge, efforts to add legal approval of copyright filtering to the economic stimulus bill now before Congress have been thwarted — so far. Although neither the House nor the Senate version of the legislation contained the provision, it can of course be added by the conference committee. If that happened, it would be almost impossible to stop it from becoming law, given the high stakes for the overall legislation and special rules that make it essentially impossible to remove a provision by amendment.

I would oppose copyright filtering in any event, on two independent grounds dear to my heart: it is harmful to both data privacy and fair use. But adding such a complicated and far-reaching bill to the stimulus package (to which it is superfluous) — without any real debate — would be unconscionable.

PK has a web page up that allows you to fax a letter to the conference committee members; do it today before it’s too late. The letter I wrote is after the jump:

I am a law professor studying privacy and intellectual property law and new technology. I understand that efforts continue to insert a “copyright filtering” proposal into broadband development provisions of the conference report on the stimulus bill.

Any such amendment should be rejected. This issue is being portrayed as noncontroversial, but I assure you that is not so. This extremely complex issue implicates personal privacy of web users and the balance of intellectual property rights.

First, filtering opens the door for monitoring of our online reading and writing habits, seriously threatening personal intellectual privacy. Second, mechanized filtering cannot reliably detect “fair use” under copyright law, which requires human judgment. Such automatic filtering will chill free expression by shutting down perfectly legal web content.

This proposal requires greater scrutiny. I support rapid passage of the stimulus bill to help spur our economic recovery, but filtering is not necessary to allow that to happen. Please resist efforts to add it to the package.

Many thanks for your attention.

1. The deepening recession in the United States throughout 2008, which caused consumers to cut back on discretionary spending on entertainment, as further confirmed by the decline in the number of  tickets sold in 2008 for movies in theatrical release?
2. The Blu-ray victory in the lengthy high-def format war, which led consumers to postpone new DVD purchases until their desired titles were available in high definition?
3. Increasing broadband internet penetration, leading to improved end-user experiences with video-on-demand services like Netflix and Hulu?  Or…
4. PIRATES!

Do the studios have a problem with the increasing availability of their works on peer-to-peer file-sharing sites? Of course they do. Is that the sole explanation, or even the most significant contributing factor, for declining DVD sales? The linked New York Times story doesn’t even acknowledge the existence of any other explanations—a jarring omission, given how many other possibilities were surely staring the authors in the face. By reflexively parroting the studio line on the causes underlying the challenging conditions the movie industry (along with everyone else, by the way!) now faces, the Times trivializes a complex issue and serves its readers poorly.

As Tim and I explained in those past years, showing a broadcast of the game on a big-screen television “of a kind commonly used in private homes,” without charging admission, is almost surely allowed under the “homestyle exception” to copyright law. The trademark claim is even weaker, because simply holding a “Super Bowl viewing party” is a reference to the mark surely covered by various trademark fair use theories (notwithstanding their other flaws).

So, it’s no surprise that this year — wait, what’s this? STOP THE PRESSES! Ladies and gentlemen, can you believe it?!? The NFL now says that it will not stop churches from doing what the law allows and holding the parties. As Tim and this fellow IP blogger suggest, proposed legislation by Senator Specter may have played a role in the league’s change of heart. But my whole view of the universe is shifting nonetheless. The RIAA has stopped its lawsuits, iTunes has abandoned DRM, the TV networks now put episodes up online for free, and there is a pig sailing through the air outside my window.

Don’t worry, though. We can still count on the annual “Network Bans Sexy Super Bowl Ad” controversy. (Concerns included “licking eggplant” and other steamier issues…)

The legal problem with with finding the tenth-of-a-second RAM buffer copy to be a separate infringement is that it effectively erases the “more than transitory duration” requirement from the Copyright Act’s definition of “fixation.” The practical problem is that there is no piece of modern technology that does not at some point store information in RAM in the course of copying it or transmitting it elsewhere. If every one of those temporary RAM buffer copies is a separate act of infringement, it potentially multiplies the scope of possible liability in any case in which the work is stored in digital form.

Happily, the Second Circuit agreed. From pp. 20–21:

No bit of data remains in any buffer for more than a fleeting 1.2 seconds. And unlike the data in cases like MAI Systems, which remained embodied in the computer’s RAM memory until the user turned the computer off, each bit of data here is rapidly and automatically overwritten as soon as it is processed. While our inquiry is necessarily fact-specific, and other factors not present here may alter the duration analysis significantly, these facts strongly suggest that the works in this case are embodied in the buffer for only a “transitory” period, thus failing the duration requirement. … Accordingly, the acts of buffering in the operation of the RS-DVR do not create copies, as the Copyright Act defines that term.

There’s more to like in the court’s opinion, but what’s even better than the court’s specific language is its general attitude. Perhaps I’m reading too much into the decision, but it certainly seems like the judges are skeptical that changes in technology (here, from home storage, a la TiVo, to offsite storage) mandate, or even support, changes in basic copyright principles. It’s one of the most technologically level-headed copyright opinions I’ve read since … well, unfortunately, since the 9th Circuit’s opinion in Grokster. Here’s hoping Cartoon Network fares better than that case did.

UPDATE: I’ve posted the court’s opinion on Wikimedia Commons and launched a transcription project to extract the text to Wikisource.

Two years ago, the retail giant and the video recording firm parted ways. Now, to Wal-Mart’s understandable chagrin, the video firm has offered to open its archives — for a fee — to all sorts of people who take a rather dim view of Wal-Mart: plaintiffs’ lawyers, labor organizations, documentary filmmakers, and the like, many of whom have already paid substantial amounts for damning clips from the video firm’s archives.

From the article:

Wal-Mart isn’t pleased. “It’s difficult to understand how the company could now sell to third parties the material we paid it to produce on our behalf,” says a Wal-Mart spokeswoman. “Needless to say, we did not pay Flagler Productions to tape internal meetings with this aftermarket in mind.” She adds that the company is “reviewing our legal options.”

Let’s review those legal options along with them, shall we?

Under Section 201(b) of the Copyright Act, “In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.” So far, it sounds pretty good for Wal-Mart! If the videos were “works made for hire,” then Wal-Mart (the “person for whom the work was prepared”) owns the rights, unless the parties agreed otherwise in writing.

But that’s about the end of the good news for Wal-Mart. The exceedingly complicated definition of “work made for hire” in section 101 of the statute gives two alternatives, neither of which looks promising (emphasis mine):

A “work made for hire” is—

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.…

I think we can safely rule out option #1, works created by employees within the scope of their employment. The Supreme Court ruled in CCNV v. Reid, 490 U.S. 730 (1989), that in using the terms “employee” and “scope of employment,” Congress meant to incorporate “the conventional master-servant relationship as understood by common-law agency doctrine,” id. at 740. In a passage that has vexed copyright students ever since, the Court continued:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

Id. at 751–52. Reid didn’t qualify as an “employee” under this standard because his relationship with CCNV was that of an independent contractor hired to do a particular job — he wasn’t put on CCNV’s payroll, didn’t receive employment benefits, and so forth. Without knowing more, I’d surmise that much the same was likely true of Wal-Mart’s relationship with the video recording firm. So Wal-Mart likely won’t be able to characterize the videos as works created by an employee within their scope of employment.

That leaves option #2, which converts some works created by non-employees (i.e., independent contractors) into “works made for hire.” There are two prerequisites here: (a) subject matter, and (b) written instrument. The videos probably pass the subject matter test; they’d likely be considered “audiovisual works” under the statute. What about the “written instrument” part of the test? Did Wal-Mart and the video recorder agree in writing that the videos would be works made for hire, owned by Wal-Mart? According to the WSJ story (emphasis mine):

The production company’s founder and former owner, Mike Flagler, says he was hired on a handshake in the 1970s …

Corporate records typically are closely controlled through legal contracts that restrict access and use. Mr. Flagler says he never signed a contract with Wal-Mart for the production or video work. Flagler Productions says that that arrangement left ownership and control of the films with it.

Flagler has a good point. Under cases like Effects Associates v. Cohen, 908 F.2d 555 (9th Cir. 1990), copyright in video footage ordinarily attaches in the first instance to the person who fixed it in a tangible medium. To divest Flagler’s company of the copyright in its footage, Wal-Mart needs to show that it was a “work made for hire” — which is going to be problematic either under option #1 (because the video firm wasn’t an “employee”) or option #2 (because the parties had no written agreement) of section 101’s “work made for hire” definition.

What’s left for Wal-Mart here? Perhaps they could try to show, as the plaintiff successfully did in Lindsay v. RMS Titanic, 52 U.S.P.Q.2d 1609 (S.D.N.Y. 1999), that a Wal-Mart exec was really directing the videography — that it was Wal-Mart, not Flagler’s company, that was really choosing camera angles and composing the shots. If Flagler’s camera operators are just mechanically implementing creative decisions that are actually being made by Wal-Mart itself, Wal-Mart would have a correspondingly stronger claim to authorship of the disputed footage. The Hail-Mary play would be a right of publicity claim grounded in the rights of Wal-Mart’s execs to control uses of their own likenesses, but with the possible exceptions of Sam and Hillary, most of the Wal-Martites (Wal-Marters? Wal-Martians?) shown in the videos are going to have trouble establishing their celebrity bona fides. According to the WSJ story:

In a Jan. 14 letter to Flagler, Marshall S. Ney, a lawyer for Wal-Mart, said the retailer has “claims to rights in the video library” and the film transcripts. Mr. Ney didn’t return calls for comment, and Wal-Mart’s spokeswoman declined to elaborate.

I’ll bet.