Law and Information

In yesterday’s New York Times Magazine, Jeffrey Rosen published a terrific piece on John G. Robert’s confirmation hearings, suggesting that the Senate should ask the questions that will matter in 2015. The scenarios outlined by Rosen include: Brain fingerprinting and the future of privacy rights; genetic screening and the future of personal autonomy; DNA and the future of affirmative action, and–in our context particularly interesting–”property, free expression and the right to tinker”, quoting Larry Lessig and Ed Felten, among others.

My colleague and friend Derek Bambauer, Fellow at the Berkman Center, was kind enough to send me a link to an interesting article in the Boston Globe on the strategic (mis-)use of the U.S. Data Quality Act by the industry. According to the Globe, the Data Quality Act has become a ”device that defenders of industry have increasingly relied upon to attack all range of scientific studies whose results or implications they disagree with, from government global warming reports to cancer research using animal subjects. …. [A]s interpreted by the Bush administration, it creates an unprecedented and cumbersome process that saddles agencies with a new workload while empowering businesses to challenge not just government regulations–something they could do anyway–but scientific information that could potentially lead to regulation somewhere down the road.”

The Globe draws our attention to lawsuit before the federal appeals court in Virginia brought by the US Chamber of Commerce and the Salt Institute. The suit challenges a National Institutes of Health study showing that reduced salt intake lowers blood pressure. The court is expected to decide “whether companies can sue agencies that reject their ‘data quality’ complaints, thereby dragging individual studies into the courtroom …. If the judge in the case writes a precedent-setting opinion, and if higher courts agree, a brand-new body of law could emerge, consisting largely of corporate lawsuits against scientific analyses.”

I analyzed the Data Quality Act from an information law perspective soon after its enactment and also mentioned potential misuse scenarios. The paper is available here and might be worth a skim reading.

Apple recently announced that it has sold 500 million songs from its Tunes Music Store (iTMS) and entered the Japanese online market. The Berkman Center’s Digital Media Project team takes this moment to share some observations on the legal and policy developments in the Post-Grokster World. In a report that I have written with my wonderful colleague Gabriela Ruiz Begue we also look back at analysis presented in our iTunes case study, in which we provided an in-depth analysis of the iTMS service. As always, comments most welcome.

On a personal note: Thanks much, Gabriela, for great collaboration during your summer internship at the Berkman Center. I wish you all the best.

See, for instance, reports here and here.

Boston Globe correspondent Siddhartha Mitter wrote a nice article on audioblogging and MP3 blogs. I’m quoted in the piece (thanks to JP for the pointer). Siddhartha invited me to comment on the current legal outlook for MP3 blogs, asking whether there are any signs on the horizon that MP3 blogs will soon be tested by litigation. The short answer is: I don’t know for sure. The long answer I provided is the following:

I cannot foresee the entertainment industry’s next move and predict whether they will be targeting mp3blogs or not. However, we might identify some of the elements that RIAA and IFPI are likely to consider before taking legal actions against mp3 sites.

1) Economic significance: From a business perspective, it is currently unclear as to what extent mp3 blogs have negative impacts on, say, CD or online sales. First, mp3blogs are operating on a small scale compared to p2p networks. Second, they are often designed as “sampling” or “promotional” tools, linking to legitimate sources where tracks can be purchased legally. Third, mp3 blogs often promote non-mainstream, niche-music. Fourth, mp3 blogs often make available songs for a limited time only — and often take tracks down when rightsholders complain. Fifth, it’s already hard to make causal connections between large-scale file-sharing on p2p networks and incline in CD sales — and, consequently, even harder to establish causality in the case of small-scale mp3 blogs. While the economic effects of mp3 blogs are unclear, litigation for sure is expensive.

2) Open legal questions: Besides economic considerations, the industry is likely to consider the specific legal situation surrounding mp3 blogs. Two aspects must be distinguished: First, the legality of making available tracks on mp3 blogs. Second, the question whether downloading songs from mp3 blogs is legal or not. In both cases, fact-specific questions remain open, which, naturally, might affect the legal analysis. However, here’s my take on it.

– As to uploading: Certainly, uploading of copyrighted materials tends to be illegal where rightsholders haven’t given authorization. However, I would argue that a fair use defense is more promising in the case of mp3 blogs as compared to p2p file-sharing networks, at least to the extent that the relevant mp3 blog is entirely non-commercial and — due to the above-mentioned sampling/promotional effect — might only (if at all) have a minimal impact on any potential market.

Further, one should note that mp3 blogs by no means only provide infringing materials. In many cases, mp3 blog operators upload songs with authorization from rightsholders — esp. from indie labels, unknown bands, etc. — or “teasers” released by record labels.

– As to downloading: As a baseline, downloading of copyrighted material without rightsholder’s authorization infringes copyright law. But users of mp3 blogs again might have a significantly stronger fair use defense than p2p downloaders. It seems likely that users can often make a reasonable argument that they used the mp3 songs for sampling or other noncommercial personal use only - imagine a case where the downloader can prove that s/he later deleted the track downloaded from the mp3 blog and purchased the relevant CD based on the sample made available on the mp3 blog.

In sum, it would probably be more promising to make a fair use defense in case of mp3 blogs. However, keep in mind that fair use is an ad-hoc and highly-fact specific defense and therefore almost impossible to apply to abstract cases.

3) Practical considerations: There are practical considerations, too. It might be more difficult to identify mp3 blogs than p2p networks, it might be much more difficult to identify potential infringers as in the p2p scenario, etc. Further, the recording industry has always seen litigation as part of an educational campaign. One might doubt what legal actions against mp3 blogs might add to this.

Regardless, I assume that RIAA and IFPI are closely monitoring the emergence and further development of mp3 blogs and might be ready to react in specific cases where mp3 blogs clearly and significantly infringe copyright, or to react more broadly when mp3 blogs will develop and get economically significant.

So, that’s my take on it. What’s your legal outlook?