Check out this amazing video:

[youtube]http://www.youtube.com/watch?v=N1KfJHFWlhQ[/youtube]

Impressive, right? I mean, it’s no “Star Wars according to a 3 year old1 , but if you check out the stats, you’ll see it has gotten over one million views. Why all the fuss?

Lenz v. Universal Music Group

Stephanie Lenz, the mother of the child in the video, uploaded the clip to YouTube in February 2007. Several months later, Universal Music Group (UMG) sent a flurry of DMCA notices to YouTube requiring the site to remove videos that included unauthorized uses of Prince songs, including Lenz’s video (Prince’s “Let’s Go Crazy” was playing on the radio and caught by Lenz while she filmed). Lenz responded to the notice with a counter-notice to request the video be put back online. YouTube restored the video. Then, Lenz sued UMG for sending the original DMCA notice, claiming that it was sent in bad faith.

Lenz became somewhat of an internet folk hero: the innocent mother who just wanted to show her dancing baby to the world standing up to the big, bad music conglomerates. In the comments, Lenz is called a “hero” and a “legend,” while Prince is called a “scum bag,” a “miser”, and a “selfish, cold-hearted, insensitive, bitter and ugly jerk.” I can’t tell what UMG and the RIAA are called, since most of those names are censored.

But the story’s popularity has gone beyond YouTube and made it into academic literature. A HeinOnline search reveals close to 150 mentions of the video in legal journals. Many notable copyright scholars have devoted a considerable amount of time to the video. Lawrence Lessig, in his book Remix, devotes the first five pages of the introduction to telling the story of this video. He calls it “a perfect YouTube moment” and “a bit of shared culture.” Later in the book, he describes the video as “amateur creativity.” William Patry mentions the video several times in his latest, Moral Panics and the Copyright Wars, as well. On page 98, in a section titled “The Myths of Economic Freedom and Market Fundamentalism,” Patry notes that it is economic freedom which allowed Prince to “sanctimoniously demand” that YouTube remove this video. On page 169, he again uses the takedown of this video as an example of “suppression of free speech and creativity” under the DMCA.

Public interests groups have also joined in the fun. Lenz was aided in her lawsuit by the Electronic Frontier Foundation, which described the case as part of its “ongoing work to protect online free speech.”

Wow.

Threats to freedom of speech and creativity are paramount. But when your claim is that they are threatened by a law passed twelve years ago and the removal of this video is the best example you have as proof, the discussion gets a little silly.

This is a video of a baby. Cute? Maybe. Harmless? Yes. But heroic? A “bit of shared culture” whose removal amounts to “suppression of free speech and creativity?”

Luckily, our society has survived the brief time when Lenz’s video was not available to the world. But does this episode only highlight the DMCA’s sword of Damocles hanging over free speech and creativity? Or is it just another example of the cries of internet freedom fighters that the sky is falling as content industries adapt to technological changes? I think it’s the latter: despite the elevation of this dancing baby video to a cause célèbre, our freedom to speak is not threatened, and any “burden” the DMCA places on users uploading content is almost illusory.

The DMCA and Freedom of Speech

The Digital Millennium Copyright Act of 1998 (DMCA) was made up of several major sections, including the Online Copyright Infringement Liability Limitation Act (OCILLA), which established safe harbors for online service providers that protect them from copyright infringement liability. I briefly discussed these DMCA safe harbors in Viacom Appeals Lawsuit Against YouTube. For more information, check out the Wikipedia entry on OCILLA and Chilling Effect’s comprehensive FAQ About DMCA. To recap, the DMCA shields online service providers from secondary copyright liability if they remove material when requested by a copyright owner through a DMCA takedown notice. The user who originally uploaded the material may send a counter-notification to restore the content if they believe the takedown notice was sent in error.

This “notice-and-takedown” procedure was at the heart of Lenz’s case against UMG and has been widely criticized by copyright scholars, legal academics, and bloggers. Partially, the criticism stems from a perceived threat to our freedom of speech:

The DMCA flips the defaults on speech. Where ordinarily speech remains available until someone files and wins a lawsuit or settlement against it, the DMCA forces a speaker to take action to re-assert the lawfulness of his speech, in the form of a counter-notification, or if he wants uninterrupted speech, a lawsuit. It is precisely this mechanism by which the chilling effect operates to censor.2

Copyright laws occupy a unique position in the free speech landscape. On the one hand, they are without a doubt a categorical restriction on one’s right to speak – you cannot communicate someone else’s expression without permission. On the other hand, copyright is often considered the “engine of free expression” – the exclusive rights it grants provide incentives to authors to create and disseminate new ideas and expression.3 Mindful of this inherent paradox, courts have consistently rejected First Amendment defenses to copyright laws. ((L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1, 3 (1987).)) Instead, they typically subscribe to the view that copyright law has “built-in First Amendment accommodations” – namely, the idea-expression continuum and fair use.4 Criticism of the DMCA often does not recognize this different approach to freedom of speech in the copyright context, nor does it consider the free expression rights of copyright owners.

A DMCA notice applies only to the specific site it is targeted at. While “the right to upload videos to YouTube” may some day be recognized as a fundamental right, for now most people  likely realize that there are numerous ways to get your message out on the internet. Yet free speech critics of the DMCA takedown procedure seem to be unaware of these alternatives. One author even went so far as to claim that perhaps presidential candidates would have the resources to share a video elsewhere, but “most individuals would not have alternatives” if their video was removed from YouTube.5

YouTube may be the most popular video hosting site, but it is far from the only one out there. Here is a list of over 300 video sharing sites like YouTube. Not enough? Wikipedia has a list of video hosting sites with over a dozen more not on the first list. You don’t even have to limit yourself to video-only sites since there are many companies which offer shareable file-hosting. Here’s one list with over 30 such services- many free. Worst comes to worst, you can set up your own site and host your own content. It may cost a couple bucks a month, but does that rise to an unconstitutional restriction on free speech? Is it a violation of the First Amendment to require you to pay to host and distribute your own content just because companies exist that offer to do that for free?

Wanting the Baby and the Bath Water

The burden DMCA takedown notices place on users like Lenz often accompanies free speech criticism.

Shouldn’t we be just as worried about the completely innocent individual hit with a DMCA takedown and the process they need to go through to get their legal content back online? Given how massive the damage awards can be for simple (even incidental or accidental) copyright infringement, the fact that there is barely any real punishment for bogus copyright claims seems incredibly one-sided and unfair.6

Leaving aside worrying about the tragedy someone faces when they can’t have their video hosted on another person’s site for free, this type of criticism misses a key aspect of the DMCA: it does not affect the liability of the user. Complying with the takedown procedures of the DMCA only shields the service provider from secondary liability. If a user uploads copyrighted content without permission, that user has directly infringed a copyright. The DMCA does not stop the content owner from suing the user directly. A content owner can still sue the user for copyright infringement after sending a DMCA notice even after the content is taken down by the service provider since the infringing act has already been completed. The owner can even sue the user without sending a DMCA notice – it is only the service provider who receives a safe harbor from liability.

The reason content owners don’t routinely sue users is based on practical considerations – primarily the cost of lawsuits. In a way, the DMCA protects users. It gives content owners a more efficient alternative to managing piracy that doesn’t require mass lawsuits on users. Without the DMCA, a user uploading copyrighted content would still be faced with the same liability.

So how about those users, like Lenz, whose content was not infringing but removed anyway? Well, the DMCA provides a counternotice procedure for users to respond to situations where a notice was mistakenly sent – notice that requires little more than your name, identification of what was removed, a statement affirming a good faith belief that it was removed by mistake, and a signature.7 In Lenz’s case against UMG, the court also held that content owners must determine if a specific use is fair before sending a DMCA notice while allowing a user to recover damages, attorney fees, and court costs if a particular notice was sent in bad faith rather than by mistake. This seems to me a fair balance. The same procedural burden is placed on content owners to protect their copyrights from thousands of infringing uses among multiple sites as it is on the rare user like Lenz whose content was removed from a free, third-party site by mistake or bad faith.

But this, it seems, is still not enough for some critics of the DMCA takedown procedure. After the court awarded Lenz attorney’s costs in her case, one critic responded:

Compare this, of course, with the statutory damages given to those who infringe on copyrights — starting at $750 for sharing a single item and going way up from there. How is that equitable?8

Again, this misconstrues key aspects of the Lenz case and the DMCA. Damages are available to users who receive “bogus” takedown notices – it’s just that in Lenz’s case, there were no damages (only attorney fees and costs). While it may be difficult to come up with examples of a user who would suffer a cognizable loss as a result of their content being wrongfully taken down from a third-party site, I’d imagine that type of situation is rare. No matter to critics though, as it seems they want the baby and the bath water. They’re arguing not that the burden of responding to takedown notices is too high, but that there should be no burden at all. It’s too much trouble for the one Lenz who may have a fair use argument out of thousands of YouTube user users who do upload infringing material to say “on the contrary, my use is fair.”

One Final Note

I realize the story revolving around the “Let’s Go Crazy” video has largely run it’s course, but I think it remains relevant today. The case has become enshrined in copyright criticism as a seminal example of “attacks” on freedom of speech and creativity by the hands of the big, bad content industries. For a while it occupied center stage in the copyright debates, which struck me as odd, considering what it is: a low-quality video of a stranger’s baby dancing. But as I came to realize, the use of this video as a launching pad for copyright criticism typifies much of the imbalance between creators and users that is present both online and in academic scholarship – how do we protect the “heroic” Lenz’s from those who wish to destroy free speech?

Perhaps those one million people who have seen the video have benefited. Perhaps our society and culture have been enriched by this display of amateur creativity, and the progress of art and knowledge has been promoted. However, before fully embracing this line of thinking, we should ask who else benefits from it. Who benefits from the idea that user-generated content, which drives traffic to a site, should have stronger protections from removal. Who benefits from the idea that other sites are not an adequate alternative to YouTube? And who benefits from placing less burdens on users to stand behind whatever they upload, less burdens on the sites to police what is uploaded, and more of a burden on the content owners?

Footnotes

  1. Or “kittens inspired by kittens“. []
  2. Wendy Seltzer, Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment, pp. 7-8 (March, 2010). []
  3. Harper & Row v. Nation Enterprises, 471 US 539 (1985). []
  4. Eldred v. Ashcroft, 537 US 186, 219 (2003). []
  5. Seltzer, supra. []
  6. TechDirt, Should Copyright Holders Pay for Bogus DMCA Takedowns? []
  7. 17 USC § 512(g)(3). []
  8. TechDirt, Damages Possible, But Limited, For Bogus DMCA Takedowns. []

This is the second installment of a point-by-point look at the proposed Anti-Counterfeiting Trade Agreement. Check out ACTA: Thought for FUD, Part 1 for more details and a comparison of Section 1 of ACTA (civil enforcement) to existing US law.

I’d like to reiterate that the purpose of this is to get a better grasp on what is in the ACTA, since there is a large amount of FUD being circulated online. The comparison to existing US law is only meant to put the scope of the treaty in context. Whether the existing law is good or bad is another discussion entirely, and the same is true about whether or not including similar provisions in an international treaty is good or bad. Indeed, in some situations, US negotiators are actually opposed to specific proposals that would mirror existing US law.1

Comparing this section to US law is challenging for several reasons. First, I’m not as familiar with border enforcement of copyrighted works as I am with other areas of copyright law. Second, intellectual property border measures are governed by a framework involving international treaties (most notably TRIPS); chapters 6 (domestic security), 17 (copyrights), and 19 (customs duties) of the US Code; and numerous regulatory provisions. Within such an interconnected regulatory framework like this, it can be difficult to pinpoint one specific statute or regulation.

Section 2: Border Measures

The Consolidated Text Prepared for Public Release begins section 2 by laying out the scope of the border measures:

ARTICLE 2.X: SCOPE OF THE BORDER MEASURES

1. This section sets out the conditions for action by the competent authorities when goods are suspected of infringing intellectual property rights, within the meaning of this agreement, when they are imported, exported, in-transit or in other situations where the goods are under customs supervision.

2. For the purposes of this section, “goods infringing an intellectual property right” means goods infringing any of the intellectual property rights covered by TRIPS. However, Parties may decide to exclude from the scope of this section, certain rights other than trade marks, copyrights and GIs when not protected exclusively by copyright and trade mark systems and protected by sui generis systems.

3. Parties shall provide for the provisions related to border measures to be applied at least in cases of trade mark counterfeiting and copyright piracy. Parties may provide for such provisions to be applied in other cases of infringement of intellectual property rights.

Now, let’s take a look at the individual provisions.

ACTA Provision Corresponding US Law
ARTICLE 2.X: DE MINIMIS PROVISION

Parties may exclude from the application of this Section small quantities of goods of a non-commercial nature contained in travelers’ personal luggage or sent in small consignments.

19 USC § 1321. Administrative exemptions

(a) Disregard of minor discrepancies in collection of taxes and duties; admission of articles free of duty or tax; limit on amount of exemption
The Secretary of the Treasury, in order to avoid expense and inconvenience to the Government disproportionate to the amount of revenue that would otherwise be collected, is authorized, under such regulations as he shall prescribe, to—
[…]
(2) admit articles free of duty and of any tax imposed on or by reason of importation, but the aggregate fair retail value in the country of shipment of articles imported by one person on one day and exempted from the payment of duty shall not exceed an amount specified by the Secretary by regulation, but not less than—
(A) $100 in the case of articles sent as bona fide gifts from persons in foreign countries to persons in the United States ($200 in the case of articles sent as bona fide gifts from persons in the Virgin Islands, Guam, and American Samoa), or
(B) $200 in the case of articles accompanying, and for the personal or household use of, persons arriving in the United States […] or
(C) $200 in any other case.

17 USC § 602: Infringing importation or exportation of copies or photocopiers

(3) Exceptions.— This subsection does not apply to—
[…]
(B) importation or exportation, for the private use of the importer or exporter and not for distribution, by any person with respect to no more than one copy or phonorecord of any one work at any one time, or by any person arriving from outside the United States or departing from the United States with respect to copies or phonorecords forming part of such person’s personal baggage;
(3) Exceptions.— This subsection does not apply to—
[…]
(B) importation or exportation, for the private use of the importer or exporter and not for distribution, by any person with respect to no more than one copy or phonorecord of any one work at any one time, or by any person arriving from outside the United States or departing from the United States with respect to copies or phonorecords forming part of such person’s personal baggage

One of the biggest fears when people heard “intellectual property” and “border measures” was that Customs officials would begin searching iPods for pirated materials.

ARTICLE 2.X: PROVISION OF INFORMATION FROM THE RIGHT HOLDER

Each Party shall permit the competent authorities to request a right holder to supply relevant information to assist the competent authorities in taking border measures provided for under this Section. Each Party may also allow a right holder to supply relevant information to the competent authorities.

19 CFR § 133.32. Application to record copyright.

An application to record a copyright to secure customs protection against the importation of infringing copies or phonorecords shall be in writing addressed to the IPR & Restricted Merchandise Branch, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue, Washington, DC 20229, and shall include the following information:
(a) The name and complete address of the copyright owner or owners;
(b) If the applicant is a person claiming actual or potential injury by reason of actual or contemplated importations of copies or phonorecords of the eligible work, a statement setting forth the circumstances of such actual or potential injury;
(c) The country of manufacture of genuine copies or phonorecords of the protected work;
(d) The name and principal address of any foreign person or business entity authorized or licensed to use the protected work, and a statement as to the exclusive rights authorized;
(e) The foreign title of the work, if different from the U.S. title; and
(f) In the case of an application to record a copyright in a sound recording, a statement setting forth the name(s) of the performing artist(s), and any other identifying names appearing on the surface of reproduction of the sound recording, or its label or container.

ARTICLE 2.6: APPLICATION BY RIGHT HOLDER

Option 1
1. Each Party shall provide procedures for import and in-transit shipments and may provide procedures for export shipments, by which right holders may request the competent authorities to suspend release 24 of suspected counterfeit trademark goods and suspected pirated copyright goods into free circulation.

Option 2
1. Each Party shall provide procedures by which right holders may request the competent authorities to suspend the release of goods suspected of infringing intellectual property rights.
2. The competent authorities shall require a right holder requesting the procedures described in paragraph 1 to provide adequate evidence to satisfy themselves that, under the laws of the Party providing the procedures, there is prima facie an infringement of the right holder’s intellectual property right and to supply sufficient information that may reasonably be expected to be within the right holder’s knowledge to make the suspected infringing goods reasonably recognizable by the competent authorities. The requirement to provide sufficient information shall not unreasonably deter recourse to the procedures described in paragraph 1.
3. Each Party shall provide for applications to suspend the release of suspected infringing goods that apply to all goods under customs control in its territory and remain applicable to multiple shipments. Each Party may provide that, at the request of the right holder, the application to suspend the release of goods may apply to selected points of entry and exit under customs control. These applications for suspension shall remain applicable for a period of not less than one year from the date of application, or the period of protection of the relevant intellectual property rights under the laws of the Party providing border measures under this Section, whichever is shorter. Each Party may permit a right holder to specify that an application to suspend remain applicable for a period of less than one year.
4. The competent authorities shall inform the applicant within a reasonable period whether they have accepted the application. Where the competent authorities have accepted the application, they shall also make known to the applicant the period of validity of the application.
5. Each Party may provide, where the applicant has abused the process, or where there is due cause, that an application may be denied, suspended, or voided.

17 USC § 603. Importation prohibitions: Enforcement and disposition of excluded articles

(a) The Secretary of the Treasury and the United States Postal Service shall separately or jointly make regulations for the enforcement of the provisions of this title prohibiting importation.
(b) These regulations may require, as a condition for the exclusion of articles under section 602—
(1) that the person seeking exclusion obtain a court order enjoining importation of the articles; or
(2) that the person seeking exclusion furnish proof, of a specified nature and in accordance with prescribed procedures, that the copyright in which such person claims an interest is valid and that the importation would violate the prohibition in section 602; the person seeking exclusion may also be required to post a surety bond for any injury that may result if the detention or exclusion of the articles proves to be unjustified.
(c) Articles imported in violation of the importation prohibitions of this title are subject to seizure and forfeiture in the same manner as property imported in violation of the customs revenue laws. Forfeited articles shall be destroyed as directed by the Secretary of the Treasury or the court, as the case may be.

ARTICLE 2.7: EX-OFFICIO ACTION

Option 1
1. Each Party may provide that its customs authorities may act upon their own initiative, to suspend the release of suspected counterfeit trademark goods or suspected pirated copyright goods with respect to imported, exported, or in-transit goods including suspected counterfeit trademark goods or suspected pirated copyright goods admitted to, withdrawn from, or located in free trade zones.

Option 2
1. Each Party shall provide that its competent authorities may act upon their own initiative, to suspend the release of goods suspected of infringing an intellectual property right.
2. Each Party may also provide that its customs authorities may act, upon their own initiative, to suspend the release of goods suspected of infringing other intellectual property rights

19 CFR § 133.42. Infringing copies or phonorecords.

(a) Definition. Infringing copies or phonorecords are “piratical” articles, i.e., copies or phonorecords which are unlawfully made (without the authorization of the copyright owner).
(b) Importation prohibited. The importation of infringing copies or phonorecords of works copyrighted in the U.S. is prohibited by Customs. The importation of lawfully made copies is not a Customs violation.
(c) Seizure and forfeiture. The port director shall seize any imported article which he determines is an infringing copy or phonorecord of a copyrighted work protected by Customs. The port director also shall seize an imported article if the importer does not deny a representation that the article is an infringing copy or phonorecord as provided in §133.43(a). In either case, the port director also shall institute forfeiture proceedings in accordance with part 162 of this chapter. Lawfully made copies are not subject to seizure and forfeiture by Customs.

ARTICLE 2.9: SECURITY OR EQUIVALENT ASSURANCE

Each Party shall provide that its competent authorities shall have the authority to require a right holder requesting procedures described under Article 2.6 to provide a reasonable security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Each Party shall provide that such security or equivalent assurance shall not unreasonably deter recourse to these procedures. Each Party may provide that such security may be in the form of a bond conditioned to hold the defendant harmless from any loss or damage resulting from any suspension of the release of the goods in the event the competent authorities determine that the good is not a counterfeit trademark good or a pirated copyright good. Only in exceptional circumstances or pursuant to a judicial order may a Party permit a defendant to post a bond or other security to obtain possession of suspected counterfeit trademark goods or suspected pirated copyright goods.

19 CFR § 133.43. Procedure on suspicion of infringing copies.

(b) Notice to copyright owner. If the importer of suspected infringing copies or phonorecords files a denial as provided in paragraph (a) of this section, the port director shall furnish to the copyright owner the following information, if available, within 30 days, excluding weekends and holidays, of the receipt of the importer’s denial:
[…]
(6) Notice that the imported article will be released to the importer unless, within 30 days from the date of the notice, the copyright owner files with the port director:
[…]
(ii) A bond, in the form and amount specified by the port director, conditioned to hold the importer or owner of the imported article harmless from any loss or damage resulting from Customs detention in the event the Commissioner or his designee determines that the article is not an infringing copy prohibited importation under section 602 of the Copyright Act of 1976 (17 U.S.C. 602) (See part 113 of this chapter).

ARTICLE 2.10: DETERMINATION AS TO INFRINGEMENT

Each Party shall adopt or maintain a procedure by which competent authorities may determine, within a reasonable period of time after the initiation of the procedures described under Article 2.X or 2.X, whether the suspected infringing goods infringe an intellectual property right.

19 CFR § 133.43. Procedure on suspicion of infringing copies.

(a) Notice to the importer. If the port director has any reason to believe that an imported article may be an infringing copy or phonorecord of a recorded copyrighted work, he shall withhold delivery, notify the importer of his action, and advise him that if the facts so warrant he may file a statement denying that the article is in fact an infringing copy and alleging that the detention of the article will result in a material depreciation of its value, or a loss or damage to him. The port director also shall advise the importer that in the absence of receipt within 30 days of a denial by the importer that the article constitutes an infringing copy or phonorecord, it shall be considered to be such a copy and shall be subject to seizure and forfeiture.

ARTICLE 2.11: REMEDIES

1. Each Party shall provide its competent authorities with the authority to order the destruction of goods following a determination under Article 2.10 that the goods are infringing. In cases where such goods are not destroyed, each Party shall ensure such goods are disposed of outside the channels of commerce in such a manner as to avoid any harm to the right holder.
2. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit the release of goods into the channels of commerce.
3. Each Party may provide its competent authorities with the authority to impose administrative penalties following a determination under Article 2.10 that the goods are infringing.

19 CFR § 133.43. Procedure on suspicion of infringing copies.

(a) Notice to the importer. If the port director has any reason to believe that an imported article may be an infringing copy or phonorecord of a recorded copyrighted work, he shall withhold delivery, notify the importer of his action, and advise him that if the facts so warrant he may file a statement denying that the article is in fact an infringing copy and alleging that the detention of the article will result in a material depreciation of its value, or a loss or damage to him. The port director also shall advise the importer that in the absence of receipt within 30 days of a denial by the importer that the article constitutes an infringing copy or phonorecord, it shall be considered to be such a copy and shall be subject to seizure and forfeiture.

ARTICLE 2.12: FEES

1. Each Party shall provide that any application fee, storage fee, or destruction fee to be assessed by competent authorities in connection with procedures described in this Section shall not be used to unreasonably deter recourse to these procedures.

Fees for registering with Customs are set by regulation. While I couldn’t find any explicit provision governing the reasonableness of fees, the US Customs and Border Protection agency generally considers what burden fees have when setting them. See, for example, Notice and request for comments on Agency Information Collection Activities: Regulations Relating to Recordation and Enforcement of Trademarks and Copyrights.

ARTICLE 2.13: DISCLOSURE OF INFORMATION

Without prejudice to a Party’s laws pertaining to the privacy or confidentiality of information:
(a) Each Party may authorize its competent authorities to provide right holders with information about specific shipments of goods, including the description and quantity, to assist in the detection of infringing goods;
(b) Each Party may authorize its competent authorities to provide right holders with information about goods including, but not limited to, the description and quantity of the goods and the name and address of the consignor, importer, exporter or consignee, and, if known, the country of origin and name and address of the manufacturer of the goods to assist in the determination under Article 2.10 of whether goods infringe rights covered by this Section;
(c) Unless a Party has granted authority under subparagraph (b), at least in the case of imported goods, where competent authorities have seized or, in the alternative, made a determination under Article 2.10 that goods infringe rights covered by the section, each Party shall authorize its competent authorities to provide right holders within 30 days of seizure or determination, with information about goods including, but not limited to, the description and quantity of the goods and the name and address of the consignor, importer, exporter, or consignee, and, if known, the country of origin and name and address of the manufacturer of the goods.

19 CFR § 133.43. Procedure on suspicion of infringing copies.

(a) Notice to the importer. If the port director has any reason to believe that an imported article may be an infringing copy or phonorecord of a recorded copyrighted work, he shall withhold delivery, notify the importer of his action, and advise him that if the facts so warrant he may file a statement denying that the article is in fact an infringing copy and alleging that the detention of the article will result in a material depreciation of its value, or a loss or damage to him. The port director also shall advise the importer that in the absence of receipt within 30 days of a denial by the importer that the article constitutes an infringing copy or phonorecord, it shall be considered to be such a copy and shall be subject to seizure and forfeiture.
(b) Notice to copyright owner. If the importer of suspected infringing copies or phonorecords files a denial as provided in paragraph (a) of this section, the port director shall furnish to the copyright owner the following information, if available, within 30 days, excluding weekends and holidays, of the receipt of the importer’s denial:
(1) The date of importation;
(2) The port of entry;
(3) A description of the merchandise;
(4) The quantity involved;
(5) The country of origin of the merchandise; and
(6) Notice that the imported article will be released to the importer unless, within 30 days from the date of the notice, the copyright owner files with the port director:
(i) A written demand for the exclusion from entry of the detained imported article; and
(ii) A bond, in the form and amount specified by the port director, conditioned to hold the importer or owner of the imported article harmless from any loss or damage resulting from Customs detention in the event the Commissioner or his designee determines that the article is not an infringing copy prohibited importation under section 602 of the Copyright Act of 1976 (17 U.S.C. 602) (See part 113 of this chapter).
(c) Samples available to the copyright owner. At any time following presentation of the merchandise for Customs examination, but prior to seizure, Customs may provide a sample of the suspect merchandise to the owner of the copyright for examination or testing to assist in determining whether the article imported is a piratical copy. To obtain a sample under this section, the copyright owner must furnish Customs a bond in the form and amount specified by the port director, conditioned to hold the United States, its officers and employees, and the importer or owner of the imported article harmless from any loss or damage resulting from the furnishing of a sample by Customs to the copyright owner. Customs may demand the return of the sample at any time. The owner must return the sample to Customs upon demand or at the conclusion of the examination or testing. In the event that the sample is damaged, destroyed, or lost while in the possession of the copyright owner, the owner shall, in lieu of return of the sample, certify to Customs that: “The sample described as [insert description] provided pursuant to 19 CFR 133.43(c) was (damaged/destroyed/lost) during examination or testing for copyright infringement.

Article 2.X: LIABILITY OF THE COMPETENT AUTHORITIES

1. With respect to the border measures covered by this Section, each Party shall provide measures concerning the liability of competent authorities in the execution of their duties.

Option 1
2. The acceptance of an application on its own shall not entitle the right-holder to compensation in the event that goods infringing an intellectual property right are not detected by a customs office and are released or no action is taken to detain them.

Option 2
2. Each Party may limit remedies sought by a right holder or other persons against a Party’s competent authorities as a result of mere acceptance of an application under Article 2.6, where the competent authorities release, or fail to detect, detain, or take action against or in connection with, goods that may infringe IPR covered by this Section.
3. The competent authorities shall not be liable towards the persons involved in the situations referred to in Article 2.6 for damages suffered by them as a result of the authority’s intervention, except where provided for by the law of the Party in which the application is made or in which the loss or damage is incurred.

19 USC § 1513. Customs officer’s immunity

No customs officer shall be liable in any way to any person for or on account of—
(1) any ruling or decision regarding the appraisement or the classification of any imported merchandise or regarding the duties, fees, and taxes charged thereon,
(2) the collection of any dues, charges, duties, fees, and taxes on or on account of any imported merchandise, or
(3) any other matter or thing as to which any person might under this chapter be entitled to protest or appeal from the decision of such officer.

Generally, federal government officials are not liable for actions arising out of their duties unless Congress has provided an exception by law. I was unable to find any such exception for failure to detect infringing goods by US customs officials. I’ve included the above provision which seems most on point. Other nations may not follow the doctrine of sovereign immunity, so this provision would ensure that customs officials are exempted from liability in these cases.2

Next week, we’ll take a look at Section 3: Criminal Enforcement.

Footnotes

  1. For example, the provision allowing Parties to seize infringing goods at the border. []
  2. India, for example, has regulations that mirror the proposed ACTA provision. []

Earlier this month, Mark Lemley asked Is the Sky Falling on the Content Industries? In the paper (a draft), he traces content owner claims over the past two centuries that new technologies will disrupt their businesses. The essay quickly spread across the blogosphere – garnering mentions on sites like Hypebot and Techdirt – and hitting the #1 spot on the SSRN charts within days of being uploaded. While not the first person to make the claim that content producers repeatedly invoke the impending doom of their respective industries,1 the essay is notable because of who the writer is.

Lemley is “widely recognized as a preeminent scholar of intellectual property law,” a professor at Stanford Law School, and a founder and partner of Durie Tangri LLP. He has written over 100 published articles, six books (including two treatises), and is one of the 50 most cited authors in law journals. In other words, when Lemley speaks, people listen.

A casual Google search shows that nearly all the responses to Lemley’s article are positive – a reinforcement of what the writers and commentators already knew. The moral of the story seems to be that it’s time to stop listening to the content industries, cause we’ve heard this all before. That’s not, however, a very satisfying response for those most affected by disruptive technologies. Instead of nodding in agreement and moving on to the next hot topic of the day, let’s examine Lemley’s claims and conclusion in more depth and see what, if any, lessons we can learn from the examples he provides.

Chicken Little, meet the Boy Who Cried Wolf

The abstract reads:

Content owners claim they are doomed, because in the digital environment, they can’t compete with free. But they’ve made such claims before. This short essay traces the history of content owner claims that new technologies will destroy their business over the last two centuries. None have come to pass. It is likely the sky isn’t falling this time either. I suggest some ways content may continue to thrive in the digital environment.

The paper, at 15 pages, is brief, and the first ten of those pages are devoted to recounting those content owner claims. Unfortunately, within the first few sentences, Lemley writes, “The music industry tells us, as their revenues decline because of file sharing… No one is going to create new music anymore.” I’ve seen this canard repeated time after time. Obviously, as copyright is a comparatively recent development in human history, it is simply not true that people will cease to create without it. But is anyone actually claiming they will? All mentions I’ve seen of this statement have been in the context of setting it up only to knock it down – the classic straw man argument. If anyone can point out where a content industry has seriously made this claim, I’d be happy to see it.

Straw man aside, the tale of doomsday prophecies from content industries of yore concludes with Lemley saying “if you claim that the sky is falling whenever a new technology threatens an existing business model, the rest of the world can be forgiven for not believing you when you claim that this time around it’s going to be different than all the other times.” Or, as Mike Masnick more bluntly put it: “How many times will content industries claim the sky is falling before people stop believing them?” But is this the best lesson we can take away from these stories?

The sky is not literally falling every time it rains, but that doesn’t mean you won’t want an umbrella. Technology is disruptive to established industries; new media do displace old methods of communication. Saying “let’s not listen” whenever this happens ignores the fact that industries and creators bear the brunt of the disruption while struggling to adapt. Lemley tells how the spread of radio threatened the music industry at first, but soon became an integral part of that same industry. As noted by economist Stan Liebowitz, though, soon is a relative term – according to Liebowitz, it took nearly a quarter century for record sales to recover from the introduction of radio.2 Today, we are in the midst of another lost decade for the music industry – with similar disruptions occurring in other content industries like newspapers, books, movies, and television.

Rather than being labelled as chickens little, it would be more helpful to those affected by these disruptions to see how past generations have responded to previous disruptions.  We should recognize that – like the rain – technological disruptions are a normal occurrence and figure out the best way to weather the storm.

Learning From the Past

Lemley’s collection of anecdotes may be a “breezy read” and “enjoyable,” but taking away universal lessons from these stories is difficult since he conflates all content industries and all technological disruptions, as though each new innovation is just another chapter in the story of a monolithic content industry. In many cases, the only similarity between the separate industries discussed in the article is that the content is protected by copyright law. The publishing industry is far different than the television industry; filmmakers live in a different world from painters; even a term like the “music industry” conflates disparate groups, lumping together everyone from record labels, music publishers, live venues, and more.

So, for instance, it’s difficult to compare the effect of the VCR on the television industry with the effect of photography on painters. We are dealing with two different industries facing two different technological disruptions. It may help to categorize the different types of new technologies based on their effect. Perhaps something like this:

  • Technological reproduction – Before the printing press, books had to be copied by hand. And before photography, portraits had to be painted by an artist. The last hundred years especially has seen the introduction of technology that allows reproduction of content in a way that didn’t exist before.
  • Experience-shifting technology – Some new technologies changed the way people interacted with content. The gramophone allowed music to be archived where before it had to be performed. The VCR allowed “time-shifting” of television broadcasts. The shifts can also be between who we experience content with, as when movie attendance experienced a drop after the introduction of television.
  • Improved reproduction – Many of the later examples do not involve a disruption so much as an improvement. Cassette tapes are far easier for someone to copy than vinyl records. CDs were even easier, with the added bonus that you didn’t have to worry about quality loss. Copying mp3 files is almost effortless.

Lemley argues that shutting or locking down new technologies doesn’t work, and I’m inclined to agree. I’ll save that discussion for a future post. For now though, let’s focus on the broader picture. Talking about how “content industries” have cried foul over “new technologies” is overly simplistic and sheds little light on today’s challenges.

Instead, once we start categorizing disruptive innovations, we can begin seeing what responses work in each situation and what responses don’t. Technological reproduction where none existed before is monumental – the introduction of copyright law itself followed closely behind the invention of the printing press. Experience-shifting technologies open the door to new business models and innovations in copyright law like compulsory licensing schemes for phonographs and cable broadcasts. Technology that merely improves reproduction may call for a different response. After all, whether you’re listening to the Beatles on vinyl or on a CD, you’re still engaged in the same conduct. It makes little sense in these situations to scrap an entire business model and more sense to look at ways to better manage the inevitable increase in piracy.

My purpose here is not to “find the answers” to each individual content industry’s current struggle. My point is to be more than just dismissive when they point out that they are struggling. Rather than using past disruptions to craft a chicken little narrative, we should use them to create a framework for better understanding what role copyright law can and should play in today’s world.

The Other Side of the Coin

One would think that those calling out the content industries for their chicken little rhetoric would refrain from doing the same. Sadly, no. Legislation supported by content industries is routinely decried as an attack on consumers. Copyright laws either inevitably lead to censorship or destruction of culture. Free speech, privacy, and due process are always in danger when the industry is concerned with infringement – critics use terms like “Orwellian” a lot. We hear about how our jails will fill up with innocent children and others any time the “MAFIAA” calls for more effective enforcement. Any attempt at copyright education is propaganda; anyone who joins in support is a shill.

This is just a sampling of the rhetoric. I’m sure if one would examine the talk surrounding each new bit of legislation, court case, or technology as Lemley has done with technological disruptions, one would easily find exaggeration and hyperbole on the opposite side of the copyright aisle that parallels that of the content industries. How long before their cries of “the sky is falling” begin to fall on deaf ears?

Footnotes

  1. See, e.g., here, here (2002), here (2003), and here (2006). []
  2. Stan Liebowitz, The Elusive Symbiosis: The Impact of Radio on the Record Industry (March 2004). []

I’m happy to announce that my article, Copyright Reform Step Zero, has just been published in volume 19, issue 2, of the journal Information & Communications Technology Law. I’m especially happy since this is my first published article. You can find the article at http://www.informaworld.com/openurl?genre=article&issn=1360-0834&volume=19&issue=2&spage=147; I have a pre-print version on my ‘about me’ page for those who don’t have access to the journal.

Take a moment to think of all the purposes copyrighted works fulfill: entertainment, art, culture, knowledge, teaching, information, communications, etc. Now factor in how rapid technological changes can shift the balance of power between stakeholders almost over night. Crafting copyright policy that takes all that into consideration is a huge challenge. My article proposes one way which may more effectively meet that challenge.

The abstract reads:

‘A reasonable person might well think it’s a fool’s errand to contemplate a [copyright] reform project of any sort.’ The US Copyright Act of 1976 and its subsequent amendments is contained in over 200 pages of incomprehensible, sometimes inconsistent, and highly technical provisions. Attempts to reform this law are doomed from the start. They are doomed not because they lack merit, but because of the way copyright law is made. This article argues that before any meaningful copyright reform is passed, the institutional framework that makes copyright law must be changed. It proposes delegating substantive rulemaking authority to the US Copyright Office as part of that change. The article explores the benefits and drawbacks to this approach and concludes that without the type of institutional reform envisioned by this proposal, copyright law will continue to become increasingly unable to keep up with technological and other challenges while also becoming increasingly resistant to reform efforts.

Since finishing the article several months ago, I’ve noted a few developments that continue this theme of a movement toward wholesale copyright reform and the challenges any reform effort faces. For starters, in June 2010, IP Czar Victoria Espinel released the first Joint Strategic Plan on Intellectual Property Enforcement, as directed by the PRO-IP Act – illustrating the priority that the federal government has placed on coordinating agency efforts to enforce intellectual property. Outside groups continue to push for their own versions of reform; in February 2010, Public Knowledge announced the start of its Copyright Reform Act project. Finally, Copyrights and Campaigns author Ben Sheffner asked, Is it time to completely reform US copyright law? – getting to the heart of the institutional roadblocks of copyright reform efforts that I address in my article.

FUDFear, Uncertainty, and Doubt – was originally coined to describe a deliberate strategy of creating insecurity in customer’s minds to keep them from adopting competitors products. Since then, it has also been used to describe the outrage or fear that may build over a particular issue based on incomplete and erroneous information. In this sense, FUD arises organically out of naiveté or ignorance rather than being instigated (though it may often be fueled by third parties seeking an advantage).

Copyright law is not immune from FUD. Several years back, FUD swept across the internet over proposed orphan works legislation. Many were sure that this modest bill, which would have allowed libraries and archives to display older works where the copyright owner couldn’t be found without risking liability, would result in everybody losing all rights to everything they ever created.

So it’s not surprising to see a fresh round of FUD over the proposed Anti-Counterfeiting Trade Agreement (ACTA). Boing Boing’s Cory Doctorow has asserted that ACTA “will change the world’s internet laws,” that it’s a “screwjob for the world’s poor countries,” and that “your kids could go to jail for noncommercial music sharing.”  A Google attorney has called it “cultural imperialism” and describes the treaty as “something that has grown in the shadows, Gollum-like.”

Others claim it “could outlaw Google“; “create a culture of surveillance and suspicion“;  it is “unconstitutional, ineffective, inhumane, and unlawful.”

In short: “Be afraid. Be very afraid.”

If that’s all you had to go on, you might wonder who in their right mind is supporting this thing? As it turns out, ACTA does have supporters outside those negotiating it. Organizations and trade unions representing “actors, musicians, performers, composers, songwriters, music publishers, technicians and craftspeople, directors and their teams, and record and film companies (both large and small)” have written the US Administration to show their support for ACTA. You can find articles countering the FUD over ACTA by influential bloggers like Ben Sheffner and Barry Sookman.

Still, the FUD far outweighs any rational or informative discussion of ACTA. A multinational treaty is a big deal, and scare tactics only do a disservice to furthering our understanding of it. To provide some balance, let’s take a more dispassionate look at this treaty.

Treaty negotiations began in 2007. Like most trade agreements, the provisions evolved and morphed with each round of negotiations as parties made proposals and concessions. Also like most trade agreements, these preliminary discussions were not open to the public. However, concerns over the proposed treaty soon grew, and drafts of the agreement began to leak online. Each new leak brought a new round of criticism.

How Did All This Trouble Begin?

The Anti-Counterfeiting Trade Agreement is a proposed plurilateral treaty currently being negotiated between the US, the EU, Canada, Japan, Australia, Mexico, Morocco, New Zealand, the Republic of Korea and Singapore. According to the Office of the United States Trade Representative (USTR):

The objective of the ACTA negotiations is to negotiate a new, state-of-the art agreement to combat counterfeiting and piracy.

[…]

The ACTA is intended to assist in the efforts of governments around the world to more effectively combat the proliferation of counterfeit and pirated goods, which undermines legitimate trade and the sustainable development of the world economy, and in some cases contributes to organized crime and exposes American families to dangerous fake products.

The key to understanding ACTA is that its provisions are not substantive, but rather procedural. “Substantive rules of law define rights and duties, while procedural rules of law provide the machinery for enforcing those rights and duties.”1 ACTA does not affect the substance of copyright law – what works are covered, what rights are granted, what acts constitute infringement, what uses are allowed by third parties, or what defenses are available.2 Instead, it provides a framework for what procedures are available when infringement occurs.

Also key is understanding what ACTA doesn’t do. The treaty doesn’t “make new laws.” Take a look at Article 1.2: Nature and Scope of Obligations:

1. Members shall give effect to the provisions of this Agreement. A Party may implement in its domestic law more extensive protection and enforcement of intellectual property rights than is required by this Agreement, provided that such protection and enforcement does not contravene the provisions of this Agreement. Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice.

2. Nothing in this Agreement creates any obligation with respect to the distribution of resources as between enforcement of intellectual property rights and enforcement of law in general.

In other words, once a nation adopts the treaty, any changes to its copyright laws must still go through the legislative process. The treaty provisions are broad and set the “floor” – the minimum standard for what is required from member nations. Each nation is free to decide how best to implement any changes needed to comply with ACTA’s obligations.

Comparing ACTA to US Copyright Law

Now that we know a bit more about where ACTA came from and where it’s going, let’s take a look at what it will do. There’s a lot of confusion about what’s in the treaty as well as concerns that it will radically alter the scope of US copyright law. With that in mind, I want to go through ACTA point by point and compare it to existing law.

Keep in mind the challenges of doing this before a final draft is adopted. Treaty negotiations began in 2007. Like all trade agreements, provisions have evolved and morphed over the years as parties make proposals and concessions. More provisions are bound to change by the time negotiations end later this year. I’m working off the official Consolidated Text Prepared for Public Release, provided by the USTR in April, 2010. The draft contains many bracketed sentences where the final language has not been settled or where additions have been proposed but not agreed upon. I’ve edited the text for cohesiveness, clarity, and readability. I’ve edited out specific references to patent, trademark, and other intellectual property rights for the same reasons.

Chapter 1 of the treaty includes administrative and housekeeping matters, like definitions and the above section on the nature and scope of obligations. Chapter 2 is titled “Legal Framework for Enforcement of Intellectual Property Rights” and is broken into several sections. In the first part of this series, we’ll take a look at Section 1: Civil Enforcement. Below is a side-by-side comparison between the proposed ACTA provision and corresponding US law. I’ve included a few notes under some of the provisions.

Section 1: Civil Enforcement

Proposed ACTA Provision Corresponding US Law
ARTICLE 2.1: AVAILABILITY OF CIVIL PROCEDURES

In the context of this section, each Party shall make available to right holders civil judicial procedures concerning the enforcement of any copyrights.

17 USC § 501. Infringement of copyright

(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section106A (a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be […]
(b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it.

ARTICLE 2.X: INJUNCTIONS

1. In civil judicial proceedings concerning the enforcement of copyright, each Party shall provide that its judicial authorities shall have the authority subject to any statutory limitations under its domestic law to issue against the infringer an injunction aimed at prohibiting the continuation of the infringement, including an order to prevent infringing goods from entering into the channels of commerce and to prevent their exportation.

17 USC § 502. Remedies for infringement: Injunctions

(a) Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.

17 USC § 602(a). Infringing importation or exportation of copies or phonorecords

(2) Importation or exportation of infringing items.— Importation into the United States or exportation from the United States, without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either constituted an infringement of copyright, or which would have constituted an infringement of copyright if this title had been applicable, is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under sections 501 and 506.

Injunctions – court orders compelling or prohibiting a defendant to engage in specified conduct – have long been available as a remedy in copyright infringement cases. Importation of copyrighted goods is not a separate right; it is instead a specific example of the right to distribute that has existed in this country in some way even before the first copyright act.3

ARTICLE 2.2: DAMAGES

1. Each Party shall provide that:
(a) in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer who knowingly or with reasonable grounds to know, engaged in infringing activity of copyright to pay the right holder
(i) damages adequate to compensate for the injury the right holder has suffered as a result of the infringement; or
(ii) at least in the case of copyright infringement, the profits of the infringer that are attributable to the infringement,
(b) in determining the amount of damages for copyright infringement, its judicial authorities shall consider, inter alia, any legitimate measure of value submitted by the right holder, which may include the lost profits, the value of the infringed good or service, measured by the market price, the suggested retail price, or the profits of the infringer that are attributable to the infringement.

17 USC § 504. Remedies for infringement: Damages and profits

(a) In General.— Except as otherwise provided by this title, an infringer of copyright is liable for […] —
(1) the copyright owner’s actual damages […]
(b) Actual Damages and Profits.— The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

Monetary damages are typically available in most types of lawsuits as a rough but efficient remedy for the wrong incurred. The measure and calculation of “actual damages” is more art than science, so courts need flexibility in computing damages on a case-by-case basis. The burden is on the copyright holder to “prove up” the amount of damages the court should order.

2. At least with respect to works, phonograms, and performances protected by copyright or related rights, in civil judicial proceedings, as an alternative to paragraph 1, each Party shall establish or maintain a system that provides:
(a) pre-established damages;
(b) presumptions for determining the amount of damages sufficient to compensate the right holder for the harm caused by the infringement; or
(c) additional damages
3. Where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity, each Party may authorize its judicial authorities to order the recovery of profits or the payment of damages, which may be pre-established.
4. Where a Party provides one of the options described in paragraph 2(a) or 2(b), that Party shall ensure that a right holder has the right to choose that option as an alternative to the remedies referred to in paragraph 1.

17 USC § 504. Remedies for infringement: Damages and profits

(a) In General.— Except as otherwise provided by this title, an infringer of copyright is liable for […]
(2) statutory damages, as provided by subsection (c).
[…]
(c) Statutory Damages.—
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally.

In contrast to actual damages, statutory damages are damages set by law – either a set amount, or some sort of formula a court can apply. In cases where actual damages would be extremely difficult to determine – or where a plaintiff has suffered a non-financial harm – legislators may provide for statutory damages. Many times they also serve as a deterrent, especially in cases where the harm is diffuse and enforcement is costly.

5. Each Party shall provide that its judicial authorities, in appropriate cases, shall have the authority to order, at the conclusion of civil judicial proceedings that the prevailing party be awarded payment by the losing party of court costs or fees and reasonable attorney’s fees.

17 USC § 505. Remedies for infringement: Costs and attorney’s fees

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

Like soccer, the metric system, and techno music, the “loser pays” rule of litigation costs is followed by virtually every nation except the US. Instead, parties to a lawsuit in the US usually have to pay their own attorney fees and court costs, no matter who wins.4 However, the US rule has been abandoned by statute in a number of areas, including copyright law.

ARTICLE 2.3: OTHER REMEDIES

1. With respect to goods that have been found to be infringing an intellectual property right, each Party shall provide that in civil judicial proceedings, at the right holder’s request, its judicial authorities shall have the authority to order that such goods be recalled, definitively removed from the channel of commerce, or destroyed, except in exceptional circumstances, without compensation of any sort.
2. Each Party shall further provide that its judicial authorities shall have the authority to order that materials and implements the predominant use of which has been in the manufacture or creation of infringing goods be, without undue delay and without compensation of any sort, destroyed or disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements.
3. The judicial authorities shall order that those remedies be carried out at the expense of the infringer, unless particular reasons are invoked for not doing so.
4. In ordering those remedies, the judicial authorities shall take into account the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interest of third parties.

17 USC § 503. Remedies for infringement: Impounding and disposition of infringing articles

(a)(1) At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable—
(A) of all copies or phonorecords claimed to have been made or used in violation of the exclusive right of the copyright owner;
(B) of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies of phonorecords may be reproduced; and
(C) of records documenting the manufacture, sale, or receipt of things involved in any such violation, provided that any records seized under this subparagraph shall be taken into the custody of the court.
[…]
(b) As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced.

ARTICLE 2.4: INFORMATION RELATED TO INFRINGEMENT

Without prejudice to other statutory provisions which, in particular, govern the protection of confidentiality of information sources or the processing of personal data, each Party shall provide that in civil judicial proceedings concerning the enforcement of copyright, its judicial authorities shall have the authority upon a justified request of the right holder, to order the alleged infringer to provide, for the purpose of collecting evidence any relevant information on the origin and distribution network of the infringing goods or services that the infringer possesses or controls, where appropriate, to the right holder or to the judicial authorities. Such information may include information regarding any person or persons involved in any aspect of the infringement and regarding the means of production or distribution channel of such goods or services, including the identification of third persons involved in the production and distribution of the infringing goods or services or in their channels of distribution.

Federal Rules of Civil Procedure, Rule 37

(a) Motion for an Order Compelling Disclosure or Discovery.
(1) In General. – On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

17 USC § 512. Limitations on liability relating to material online
(h) Subpoena To Identify Infringer.—
(1) Request.— A copyright owner or a person authorized to act on the owner’s behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.

A court’s authority to compel a defendant to produce evidence during the pre-trial stage is established in the Federal Rules of Civil Procedure, which govern the procedure of all federal civil lawsuits. Additionally, Congress has specifically provided for copyright owners to subpoena online service providers for identification of alleged infringers.

ARTICLE 2.5: PROVISIONAL MEASURES

X. Each Party shall provide that its judicial authorities shall have the authority, at the request of the applicant, to issue an interlocutory injunction intended to prevent any imminent infringement of a copyright or related rights or trademark. An interlocutory injunction may also be issued, under the same conditions, against an infringing intermediary whose services are being used by a third party to infringe an intellectual property right. Each Party shall also provide that provisional measures may be issued, even before the commencement of proceedings on the merits, to preserve relevant evidence in respect of the alleged infringement. Such measures may include inter alia the detailed description, the taking of samples or the physical seizure of documents or of the infringing goods.
1. Each Party shall provide that its judicial authorities shall act expeditiously on requests for provisional measures inaudita altera parte, and shall endeavor to make a decision on such requests without undue delay, except in exceptional cases.

17 USC § 502. Remedies for infringement: Injunctions

(a) Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.

While this section may appear similar to Article 2.X above, note that 2.x refers to injunctions while this section refers to interlocutory injunctions – injunctions issued before a final decision by the court. In the US, these two are often referred to as permanent injunctions and preliminary injunctions. The second part of Article 2.5 refers to inaudita altera parte measures, a fancy way of saying requests made to a court by one party in the absence of the presence of the other party. US Courts have held that inaudita altera parte interlocutory injunctions, more commonly known as temporary restraining orders, are available to plaintiffs in copyright infringement lawsuits. For example, in Capitol Records v. Bluebeat, the Ninth Circuit issued a TRO after stating the following: “The standard for issuing a temporary restraining order (“TRO”) is identical to the standard for issuing a preliminary injunction. See Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995).

Also note that these measures extend to “infringing intermediaries.”5 US copyright law does not make a distinction between direct infringement and infringing intermediaries when it comes to what remedies are available. Just ask Napster, Aimster, Grokster, Isohunt, or Limewire – all of which had injunctions issued or sought against.

2. In civil judicial proceedings concerning copyright infringement, each Party shall provide that its judicial authorities shall have the authority to order the seizure or other taking into custody of suspected infringing goods, materials, and implements relevant to the act of infringement.

17 USC § 503. Remedies for infringement: Impounding and disposition of infringing articles

(a)(1) At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable—
(A) of all copies or phonorecords claimed to have been made or used in violation of the exclusive right of the copyright owner;
(B) of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies of phonorecords may be reproduced; and
(C) of records documenting the manufacture, sale, or receipt of things involved in any such violation, provided that any records seized under this subparagraph shall be taken into the custody of the court.
(2) For impoundments of records ordered under paragraph (1)(C), the court shall enter an appropriate protective order with respect to discovery and use of any records or information that has been impounded. The protective order shall provide for appropriate procedures to ensure that confidential, private, proprietary, or privileged information contained in such records is not improperly disclosed or used.
[…]
(3)(b) As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced.

3. Each Party shall provide that its judicial authorities have the authority to require the plaintiff, with respect to provisional measures, to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the plaintiff’s right is being infringed or that such infringement is imminent, and to order the plaintiff to provide a reasonable security or equivalent assurance to protect the defendant, ensuring compensation for any prejudice suffered when the measure is revoked or lapses due to any reason, and to prevent abuse.

Federal Rules of Civil Procedure, Rule 65

(c) Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.

Injunction bonds serve as a check on overzealous lawsuits. Preliminary injunctions are granted before the court has heard the entire case and prevent a defendant from engaging in conduct that may eventually turn out to be entirely proper. In that event, an injunction bond compensates the defendant for any losses suffered as a result of the injunction.

Stay Tuned

So far, ACTA seems to hew very closely to existing US law. This should not be too surprising, as the idea behind the treaty is likely establishing a framework that is similar to the negotiating parties in order to “export” this framework to those nations not involved in the drafting.

Next week, we’ll dive into Section2: Border Measures.

Footnotes

  1. Substantive law. (2010, May 31). In Wikipedia, The Free Encyclopedia. Retrieved 06:45, August 18, 2010, from http://en.wikipedia.org/w/index.php?title=Substantive_law&oldid=365190840 []
  2. Substantive copyright law is guided largely by the Berne Convention for the Protection of Literary and Artistic Works, created in the 1880s and currently signed by 164 nations. []
  3. See Patry on Copyright § 13:40: “Of the 12 states in the immediate post-Revolutionary War era to pass copyright laws (only Delaware did not), nine had provisions barring the importation of books printed beyond the States’ borders.” []
  4. See “Loser Pays,” by Walter Olson, for more on this topic. []
  5. See Viacom Appeals Lawsuit Against YouTube for a discussion on direct infringement versus secondary liability. []

On August 11, 2010, media giant Viacom filed notice with the Second Circuit that it would be seeking an appeal in its legal battle against YouTube. The Southern District Court of New York essentially threw out the case, granting summary judgment to YouTube on June 23. Viacom originally sued the video site in 2007, claiming that the site did not do enough to prevent users from uploading infringing videos. The stakes are high – Viacom alleges $1 billion in damages, and Google has already spent $100 million to defend. More importantly, the case may have ramifications for many sites that rely on users for content.

What is this case all about? Some have suggested that Viacom is trying to “get back” at YouTube after it failed in a bid to buy the video site. Or even more sinisterly, maybe the case is an example of the entertainment industry’s shift toward propping up failing business models by extracting settlement money from legal threats. Exploring those contentions may have merit, but that’s not what this site is for. Instead, I’m more interested in examining the legal principles at work to get a better grasp at what’s going on inside the courtroom.

The case boils down to this: what obligation does a host like YouTube have to keep infringing materials off their site? To understand this a little better, let’s first take a closer look at secondary liability and internet safe harbors.

Secondary Liability

Qui facit per alium facit per se.1

By default, we are not responsible for someone else’s actions. There are circumstances however where the law does hold one person responsible for the actions of another. In criminal law, for example, someone aiding and abetting a criminal can be charged with the same offense. In civil law, the concept is sometimes referred to as secondary liability.2

It makes sense. If you have some sort of control over another’s actions and you benefit from their wrongdoing, or if you help someone knowing they will use your help to commit a wrong, you shouldn’t be let off the hook. Secondary liability is also a form of risk allocation. Holding someone responsible for the acts of those in their control encourages safety and fair business practices. Finally, secondary liability addresses concerns of obtaining redress when someone is wronged. It is more efficient to sue a single employer rather than multiple employees, and the person running the show often has deeper pockets than those under his control.

Secondary liability is well-established in many areas of the law. Let’s turn now to how courts have used it in the copyright context.

Secondary Liability in Copyright

Courts have applied two separate theories of secondary liability to copyright cases: vicarious  liability and contributory infringement.3 Vicarious liability includes the concept of respondeat superior, used to hold employers responsible for the acts of their employees, and requires that one benefits from conduct within one’s right or ability to control. Contributory infringement requires providing the means to engage in infringement with knowledge that infringement will occur.

One point of confusion: it’s easy to conflate secondary liability with direct infringement, but important to keep the two ideas separate.4 Direct infringement requires an unauthorized reproduction, distribution, or public performance. Secondary liability is liability for indirect infringement. The person doing the actual reproduction or distribution is directly liable; anyone who is not engaged in those acts but is contributing to – or controlling and benefiting from – that direct infringement is indirectly liable.

While vicarious liability is fairly easy to find in older copyright cases5, contributory infringement was relatively rare before the internet became popular. It became easy for anyone connected to transmit all kinds of data, including copyrighted content – and transmit they did, first by the hundreds, than by the thousands, than by the millions (often anonymously). The transmission of this content was made possible by several different parties: ISPs, web hosts, BBS operators, etc. Which of these parties should also be held responsible for infringement by internet users?

The DMCA

Needless to say, courts struggled with applying traditional legal doctrines to new, unfamiliar technologies. Concerned about the effects liability would have on the growth of an important communications network and the problem of having inconsistent law throughout the country, Congress passed the Online Copyright Infringement Liability Limitation Act (OCILLA) as part of the Digital Millennium Copyright Act of 1998 (DMCA).6

OCILLA provides online service providers7 with a conditional safe-harbor from secondary liability.  For anything stored on a service provider’s system or network at the direction of a user – e.g., a video uploaded to YouTube – service providers can qualify for this safe-harbor if they do not have knowledge of the specific infringing act, do not benefit directly from the infringement, and remove the infringing material when they receive notification from a content owner. This last aspect is known as a “notice-and-takedown” procedure.

So, continuing with the YouTube example, a user who uploads a television clip to YouTube has directly infringed – he has reproduced and distributed a copyrighted work without authorization from the owner.  YouTube would ordinarily be indirectly liable for this infringement, either because it has provided the means for the user to infringe or because it has the right and ability to control what is presented on its site and benefits from the traffic its content attracts. But under OCILLA, it is shielded from this potential liability if it removes the video once it either has knowledge that it is infringing or when the content owner sends a DMCA notice.

Viacom v. YouTube

The heart of the case between Viacom and YouTube hinged on interpretation of the “knowledge” component of the safe-harbor. The full language of the statute states that a service provider only qualifies if it

(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing; (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material.

Viacom alleged that YouTube was acting in “willful blindness“. It was well aware that large amounts of  content on its site was infringing but chose to ignore it – welcoming it, even – unless it received notification from the content owner. Essentially, Viacom argued, this awareness of infringement in general constituted the “actual knowledge” that triggers YouTube’s obligation to remove the material without receiving notice from the content owner.

The court sided instead with YouTube, and held that actual knowledge meant “actual or constructive knowledge of specific and identifiable infringements of individual items.” “General knowledge that infringement is ‘ubiquitous’ does not impose a duty on the service provider to monitor or search its service for infringements.”

That leaves the second prong of the knowledge component – a lack of awareness of “facts or circumstances from which infringing activity is apparent.” This is sometimes called “red flag infringement,” as in the facts and circumstances surrounding the activity should raise a red flag that infringement is occurring.

After reading the case though, I couldn’t figure out what, if anything, constitutes a “red flag”. Several others have pointed out that courts have largely written out the “red flag” prong. Here, the court wholesale adopted reasoning from Perfect 10 v. CCBill, a 9th Circuit case dealing with “red flag” trademark infringement. Copyrights and Campaigns author Ben Sheffner notes how unconvincing the reasoning of that case was:

In other words, under Ninth Circuit precedent, having material identified by its poster as “illegal” and “stolen” is not a red flag that infringing activity is taking place. One is left to wonder whether the panel would have ruled the same way had actual red flags been waved in the defendants’ faces.

One of the basic rules of interpreting a law is to avoid rendering any part superfluous.8 Courts assume lawmakers had a reason for wording a statute the way they did; any interpretation that vitiates a word, phrase, or entire provision subverts the lawmaking process.9

So the question is, what exactly would count as a “red flag”? It would have to be something less than specific knowledge that a particular work is infringing, but something more than general knowledge of infringing activity, including material specifically identified as being “illegal” or “stolen.” It’s difficult to think of anything that would fall in that middle ground, and it is possible that this interpretation of “red flags” will be revisited on appeal.

Why This Matters

This ruling has little effect on YouTube. Its policies have changed substantially since the suit was filed; today, many content providers have few qualms with YouTube’s approach to infringement, and the site continues to develop technological solutions to police infringement more effectively, especially its Content ID program. In addition, the pending appeal means that the lower court’s holding has little effect.

But the issues at play bring up a larger question: how much burden should be placed on hosts for policing infringement when they encourage user-generated content to drive traffic to their sites and, ultimately, sell advertising (or make money off the traffic in some other way)? While the DMCA has given content providers a mechanism to remove infringing material that is far cheaper and faster than going to court, the scale of the internet and ease of reproducing and distributing content means that creators still must focus an inordinate amount of time on managing infringement. YouTube is just one of many sites.10 If we talk about secondary liability in the context of risk allocation, should sites like YouTube – which receive a direct benefit by allowing user-generated content and have a greater ability to monitor what is uploaded on the back-end than multiple content creators have on the front-end – have more of an obligation to minimize direct infringement?

We’ll have to wait and see.

Footnotes

  1. “He who acts through another does the act himself.” []
  2. It is also sometimes called third-party liability, a linguistic oddity that makes me chuckle. []
  3. A third type of secondary liability, inducement, was introduced in MGM v. Grokster, but it is still unclear whether the Supreme Court meant to create a new, discrete form of secondary liability or whether they were merely rephrasing the concept of contributory infringement. []
  4. Some courts have even fallen into this trap – see Patry on Copyright § 21:40 []
  5. Many cases involve unauthorized public performances of music by bands hired by dance halls []
  6. OCILLA was codified as 17 U.S.C. § 512. []
  7. “Online service providers” encompasses any company or service that transmits or communicates information between users and includes internet service providers and web sites. []
  8. CRS Report for Congress, Statutory Interpretation: General Principles and Recent Trends. []
  9. This is different from a court striking down a law on constitutional grounds. If the constitutionality of a law is not being challenged, courts generally don’t have the power to change the meaning of laws to whatever suits them. []
  10. Viacom notes that monitoring YouTube alone is time-consuming. []

Why Copyright?

Let’s get things started with an overview of copyright. Most people start off these kinds of discussions with the what of copyright – what is protected, what is the length of protection, etc. I’m more interested in the why. Learning that Title 17 of the US Code governs copyright, which is authorized by Section 8 of Article 1 of the US Constitution doesn’t give much insight into analyzing the hot-button issues we hear about every day.

Of course, there’s a lot of passionate debate over the nature and justification of copyright. What follows is my attempt to present what many scholars view as the prevailing framework for US copyright law.1

The Metaphysics of the law2

Before we get into copyright, let’s think for a moment about property in general.3 We grasp the basics of property easily. If you buy something, it becomes yours. You can use it, abuse it, sell it, or give it away. So why is it that when you buy a DVD, the FBI warns you that you can’t copy it?

The problem is that copyright protects something abstract, intangible. It’s a struggle to imagine ideas like rights or ownership over something you can’t touch.4 But the idea of property itself is abstract and intangible. All property is conceptual: your house, your car, your things. If you looked at any of this stuff under a microscope, you could discover their physical properties, but there’s nothing inherent in their physical nature that expresses the idea that they belong to you.

Property is best described as a relationship between people, things, and the law. These relationships create recognition of certain rights and interests between people and things. If you buy a bicycle, you have an ownership and a possessory interest in it. If a thief steals your bike, the law recognizes that you are the owner and allows you to recover it through the police or the courts. Nowadays, these relationships can be very complex, with different people holding different rights and interests in the same piece of property.5

Once we establish that property is conceptual, it’s just as easy to apply it to intangibles. You can buy and sell stocks and bonds. Banks buy and sell mortgages, and many companies sell debts to collection agencies. You can see these things represented on paper or a computer screen, but they don’t materially exist. Now, think of two different albums on CD. The CD’s themselves are physically almost identical (minus whatever is printed on them), yet each will give you a completely different experience when you press play. Imagine instead that you only have one album, but you have it on CD and on a vinyl record. If you press play on both, you’ll hear pretty much the same music, yet the two items couldn’t be more different physically. There is something that exists independently of the media.

Going way back to 1791, a German philosopher by the name of Johann Gottlieb Fichte said

We can distinguish two aspects of a book: its physical aspect, the printed paper, and its ideational aspect. The ownership of the former passes indisputably to the buyer upon purchase of the book. He can read it and lend it as often as he likes; he can re-sell it to whomever he wishes, and for as much or as little as he wants or can get; he can tear it to pieces or burn it — and who could quarrel with him? But since people seldom buy a book for such purposes, and most seldom of all simply to display its paper and printing and cover the walls with it, they must assume that when they buy a book they are also acquiring a right to its ideational aspect. This ideational aspect is in turn divisible into a material aspect, the content of the book, the ideas it presents; and the form of these ideas, the way in which, the combination in which, the phrasing and wording in which they are presented.6

In other words, any creative work consists of the tangible medium, the intangible ideas represented in the medium, and the intangible form of those ideas – or expression – represented in the medium. By establishing the existence of intangibles in a creative work, we can next look at the relationships that arise between people and those intangibles, as well as any rights and interests that may be recognized.

If you want two chairs, you have to buy two chairs – it’s not possible (yet) to create copies of physical items. But expression is intangible and abstract. It can be copied infinitely, either by hand or through technology. In a competitive, free-market economy, the result is that the price of any expressive work will ultimately be driven down to the marginal cost of the work – how much it costs to reproduce and distribute. This is great for consumers in the short term – free movies and music for everyone! But it’s troubling for those who wish to create new expressive works. Why would you spend the time and money creating new works if you have to compete on the same playing field as those who don’t have those costs?

This serves as the basis for the economic justification for copyright. By legally recognizing a temporary monopoly on the reproduction and distribution of expressive works, we allow creators the opportunity to recoup the costs of creating new works.

Like many areas of law, copyright did not begin as a highly principled approach to promoting knowledge and culture. However, the economic justification has long been established. In 1841, British historian and politician Thomas Babington Macaulay described it in a speech to the House of Commons -

The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright. You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalise themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.

The Founding Fathers embraced this mindset decades earlier, and the result was the Copyright Clause of the US Constitution. It gives Congress the power to grant copyright – but in a departure from other grants of power, it includes a purpose: the promotion of the progress of the useful arts and sciences. The Founders recognized that knowledge and culture are hallmarks of a democratic society, as important as commerce, justice, or the common defense. We promote these through many ways: public schools, libraries, government grants. Copyright is an additional way to promote it. It gives incentives to those outside the wealthy and leisure classes to pursue and perfect their craft, which in turn, advances knowledge and culture for all of us.

Conclusion

Describing a model for the basis of copyright is only the first step. As with any model, we have to ask “is it working?” How can we tell if it’s working? What specific laws do we implement to make it work?

The challenge with copyright is balancing its goal of promoting the progress of the arts for the general public with the fact that it is, after all, an anticompetitive monopoly. We want to ensure continued dissemination of new works while at the same time protecting creators of new works.

Now with more footnotes1

William Patry has said we are in the midst of a “copyright war.” Now that high-speed internet has become the norm, debate over the future of entertainment, culture, knowledge, and communication is heating up. Traditional content providers – book publishers, newspapers, the music industry, film studios, etc – struggle to adapt to rapid technological changes while a new generation has access to an entire universe of information with a few clicks of a button.2 At the heart of these debates is the issue of copyright. Copyright law has emerged from the little-travelled sidestreets of lawyerville into the arena of public discussion.

I read a tremendous number of well-written blogs that deal with current topics concerning copyright law, many of which you can find to the right. To those, I add my own voice. I plan on doing more in-depth writing, provide analysis to some of the headlines that fly through the 24-hour news cycle, and examine some of the deeper issues in the discussion on the role of copyright. And I hope to do this all in a way that is understandable to non-legal types – the general public, and the artists and authors whose lives are affected by these issues.

Just a note, as I am in the US, this blog will be primarily about US copyright law. I may look at other countries in future articles, but unless otherwise noted, assume I’m talking about the US.

Balance

There is a lack of balance online when it comes to talking about copyright. Writer and attorney Ben Sheffner noted this lack as one of his motivations for starting Copyrights and Campaigns in 2008, which has since become one of the most popular blogs about copyright. But still, copyright skeptics continue to dominate the blogosphere.

The result is that anyone wishing to learn more about, say the proposed Anti-Counterfeiting Trade Agreement will walk away with little more than the repeated notion that it is bad bad bad. This one-sidedness extends everywhere online. If you read the Wikipedia entry on digital rights management, you’re bound to wonder why companies continue to use it, and why it’s protected by law, if it’s so bad bad bad.3

Other writers, such as The Cynical Musician, have noted that the promises of “Web 2.0″ to new creators have failed to materialize, despite the proliferation of hype that continues unabated.4 “The internet can make anyone a famous author/filmmaker/musician!” You would think we’d be a little more skeptical of people claiming that “the internet will solve all our problems” ten years after the dot-com bubble. But the hype remains, leaving a void for creators looking to leverage their careers online.5

Finally, analysis of legal issues is scant in most media. Reporting is often superficial, alarmist, or just plain wrong.6 Online, the “reporting” is even worse. There are many well-written legal blogs, but they are aimed primarily at other lawyers – most laypeople find them too technical or boring to regularly read. But the law affects all of us; it’s fair to say that we all need some understanding of the law to function as a democratic society.

Practioners of law play a role in aiding the public with understanding of the law. The American Bar Association says in the preamble to the Model Rules of Professional Conduct

As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.

As a soon-to-be practicing lawyer,7 one of my goals in starting this site is to provide some insight into understanding copyright issues to those outside the legal field.

“Long-form” Blogging

The accepted wisdom is that attention spans are shrinking: we’ve gone from books to magazines to blogs to tweets.8 But is this necessarily true?

The Nieman Journalism Lab released a case study of Slate magazine’s embrace of “long-form” journalism that challenges this notion. The idea is that

in order to really thrive, in order to have the kind of committed, excellent, well-educated, media-engaged audience that we’ve always had — and to build that audience — we had to do something more than just 1,500 word pieces, and more than just explainers.

There’s nothing wrong with short, frequent posts. It’s just that the web is filled with blogs that do just that. It’s easy to stay on top of the latest news, but more difficult to take a step back and analyze the issues in a larger sense. It’s my hope that this site will add to the discussion rather than the chatter.

Until Next Time

I hope you find this blog interesting, useful, or both. If you have any topics you’d like to see discussed, send them my way.

Footnotes

  1. I love footnotes. []
  2. Although, even buttons are becoming quaint. I’ll keep using the term, though, until someone comes up with an elegant way to describe all the finger-sliding and whatnot you use on touchscreens. []
  3. A recent discussion of the page on Wikipedia highlighted this problem. []
  4. Full disclosure: I’ve once bought into the hype as an amateur musician, even writing about the subject on a now-defunct blog. But after 15 years of hearing the same claims, and particularly as a result of some research work I’ve done, I’ve realized that it is just hype. []
  5. It’s striking how similar the claims made in this CNN segment on IUMA from 1994 are to claims made today. []
  6. The same is true in science reporting. Chocolate is good for you! Now it’s bad for you! []
  7. I sat for the July 2010 Illinois Bar Examination []
  8. In the future, people will literally “send a letter.” []