Today’s guest post comes from Devlin Hartline, a J.D. candidate at Loyola University New Orleans College of Law with an expected graduation date of May, 2012. His primary interests are in copyright, internet, and constitutional law. He lives with his wife and two young sons in Metairie, Louisiana. You can follow him on Twitter: @devlinhartline.

“Constitution time is over.”

For academic and self-proclaimed “copyright activist” Lawrence Lessig, January 18, 2012, represents more than just the day the internet stood up to copyright law. In his view, it’s also the day “the Supreme Court shut the door, finally and firmly, on any opportunity to meaningfully challenge a copyright statute constitutionally.” For it was on that day that the Supreme Court handed down its decision in Golan v. Holder, 1Golan v. Holder, 10-545, 2012 WL 125436 (U.S. Jan. 18, 2012). or as Lessig puts it, it’s the day the Court signaled to the copyright bar: “Constitution time is over.” Lessig’s defeatist attitude is understandable. He had spent the past thirteen years representing four different plaintiffs challenging various copyright laws on constitutional grounds. Two of the cases were even heard by the Supreme Court; all four cases ended in resounding defeat for Lessig’s various constitutional arguments. 2See Eldred v. Ashcroft, 537 U.S. 186 (2003); Luck’s Music Library, Inc. v. Gonzales, 407 F.3d 1262 (D.C. Cir. 2005); Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007), cert. denied, 128 S.Ct. 958 (2008); Golan v. Holder, 10-545, 2012 WL 125436 (U.S. Jan. 18, 2012). Upset with Congress’s treatment of copyright, it’s not surprising that Lessig would turn to the courts. To get a court to strike down a copyright statute, he had to constitutionalize the issue—courts simply aren’t in the business of second-guessing legislative choices unless those choices violate the Constitution. The problem for Lessig, though, was that the Constitution itself provides few limits on Congress’s power to create copyright laws. But “few limits” does not mean “no limits.”

One of Lessig’s major arguments was that a copyright law must give way to First Amendment concerns, and it’s that particular notion that I’ll focus on in this article. While Lessig may have been defeated on this argument in that he didn’t like where the Court ultimately drew the line between copyright and free speech, as we’ll see, he was certainly vindicated in that the Court definitively recognized that copyright must in fact significantly give way to free speech interests. One culmination of Lessig’s thirteen-year-long legal battle against copyright law in the federal courts is that the Supreme Court has given us a test to use in determining whether a copyright statute has run afoul of free speech—the “traditional contours” test. And contrary to Lessig’s complaint that this test forecloses meaningful First Amendment challenges to copyright, the test instead, I think, reasonably reflects the fact that free speech and copyright promote the same public good. This sentiment is reflected in something the Court said over two decades ago: “it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” 3Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985).

There is no doubt that copyright, in some sense, burdens free speech. The First Amendment commands that “Congress shall make no law . . . abridging the freedom of speech.” At the same time, however, the Copyright Clause allows Congress to “secur[e] for limited Times to Authors . . . the exclusive Right to their . . . Writings.” But by creating a law that secures to an author a copyright in his work, Congress has inevitably created a law that abridges free speech. Copyright, just like any other type of personal property, provides its holder with the “right to exclude others from using his property.” 4Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932); see also Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 454 F.Supp.2d 966, 997 (C.D. Cal. 2006) (“The right to exclude is inherent in the grant of a copyright . . . .”). It follows then that a copyright law burdens free speech since others are not free to speak that which a copyright protects. But, under the Constitution, how much can copyright burden free speech, exactly? Thanks to Lessig’s efforts, we now have the “traditional contours” test that answers just that question.

An Amorphous Test

In Eldred v. Ashcroft, 5Eldred v. Ashcroft, 537 U.S. 186 (2003). the Supreme Court squarely addressed a First Amendment challenge to the Copyright Term Extension Act (CTEA). 6Copyright Term Extension Act of 1998, Pub.L. 105–298 (amending, inter alia, 17 U.S.C. §§ 302, 304). Lessig himself participated in the oral arguments before the Court. The CTEA provided for an additional twenty years of copyright protection for most works, even those that were currently under copyright. Petitioners (Lessig’s clients) included individuals and businesses who depended on works that had fallen into the public domain for their products or services. Petitioners argued that, but for the CTEA, they would have been able to exploit works that otherwise would be in the public domain. Therefore, by extending the copyright term for these works, Congress had impermissibly abridged petitioners’ free speech rights. In light of this perceived conflict, petitioners asked the Supreme Court to find the CTEA unconstitutional under heightened First Amendment judicial scrutiny. Heightened scrutiny simply refers to how important the legislature’s ends must be, and how well those ends must fit with the means chosen to accomplish them. The greater the scrutiny, the more likely it is that a statute will be struck down as unconstitutional. So the party challenging a statute almost always argues for greater scrutiny, while the defending party, naturally, argues the opposite.

The Court declined the invitation to apply heightened scrutiny, instead agreeing with respondents that none was needed. Said the Court: “The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles. Indeed, copyright’s purpose is to promote the creation and publication of free expression.” 7Eldred, 537 U.S. at 219. In the Court’s view, imposition of heightened judicial scrutiny was not necessary because copyright law already contains two built-in First Amendment accommodations. The first, known as the idea/expression dichotomy, 8The idea/expression dichotomy is codified in 17 U.S.C. § 201(b) (“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”). “distinguishes between ideas and expression and makes only the latter eligible for copyright protection.” 9Eldred, 537 U.S. at 219. The second, known as the fair use defense, 10The fair use defense is codified in 17 U.S.C. § 107 (“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright…”). “allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.” 11Eldred, 537 U.S. at 219. According to the Court, these built-in accommodations strike a good balance between copyright and free speech since they allow for the free flow of ideas while providing only partial protection for an author’s particular expression.

The Court explained further that the “First Amendment securely protects the freedom to make—or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.” 12Id., at 221. Petitioners’ asserted right to speak other people’s copyrighted works did raise First Amendment concerns, said the Court, but these concerns were adequately addressed by copyright’s built-in free speech protections. And then, in what can be described as an afterthought, the Supreme Court announced the “traditional contours” test: “But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” 13Id. The “traditional contours” test, then, is a simple conditional statement: If Congress did not alter copyright’s “traditional contours” when crafting a copyright statute, then a reviewing court faced with a First Amendment challenge to that statute does not apply heightened judicial scrutiny. In other words, a court will not have to look at how important the ends are, or how closely those ends fit the means chosen to accomplish them, so long as copyright’s “traditional contours” have not been altered in creating the statute. Lower courts sorely needed a test like this to apply when faced with a free speech challenge to a copyright statute. The problem, unfortunately, was that no one knew what these “traditional contours” were because the Court didn’t really say. How could courts apply the test if they didn’t even know when the test applied? And what exactly is (or isn’t) included within these “traditional contours”?

Kahle Tests The Waters

The year after the Supreme Court opinion in Eldred was handed down, a district court in California attempted to apply the newly-minted “traditional contours” test. In Kahle v. Ashcroft, 14Kahle v. Ashcroft, 2004 WL 2663157 (N.D. Cal. Nov. 19, 2004). plaintiffs (Lessig’s clients), including the Internet Archive, were in the business of taking works that had fallen into the public domain and posting them on the Internet. They brought suit challenging the constitutionality of the Copyright Renewal Act (CRA) 15Copyright Renewal Act of 1992, Pub.L. 102-307. and the CTEA on First Amendment grounds. The CRA removed the renewal requirement for works created between 1964 and 1977, and it provided that the copyrights for these works would be automatically renewed for a second term. Before the CRA, these works would have only received a second term if their owners had filed for a renewal. Now, they went full-term without the owners doing anything. The CTEA, as we just saw in Eldred, added an additional twenty years of copyright protection to these now automatically-renewing works. Plaintiffs argued that, but for the CRA and the CTEA, the vast majority of the works created between 1964 and 1977 would have fallen into the public domain on January 1, 2004. Rather than a conditional copyright regime that required authors to take affirmative steps to extend the copyright term for their works, the challenged statutes created an unconditional copyright regime where copyright protections were extended automatically. This transition from a conditional to an unconditional system—in effect, from one that was “opt in” to one that was “opt out”—argued plaintiffs, altered copyright’s “traditional contours,” thereby necessitating heightened judicial scrutiny under the “traditional contours” test.

The intuitiveness of this argument is undeniable: Whereas a copyright owner once had to renew his registration to get a second term, now he had to do nothing to obtain the same result (plus an additional 20 years of protection). For parties, like plaintiffs, waiting for these works to fall into the public domain so they could use them, this change was understandably seen as an alteration of copyright’s “traditional contours.” The district court didn’t agree, and it started its analysis with the observation that the Supreme Court hadn’t actually identified the protections it considered to be within copyright’s “traditional contours.” In fact, the court noted, the phrase “traditional contours” did not appear in any other reported decision prior to its use in Eldred. The court deduced that the two concepts recognized by the Court, namely the idea/expression dichotomy and the fair use defense, related only to the scope of copyright protection. Contrasting that with the procedural steps now being challenged, the court reasoned that removing the renewal requirement did not alter the scope of the copyright protection or the copyright holder’s substantive rights. As such, the court held that the challenged statutes did not alter copyright’s “traditional contours.” For the district court, the “traditional contours” simply were not affected by changes in copyright procedures, like removing the renewal requirement.

On appeal to the Ninth Circuit, 16Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007). plaintiffs fared no better. The circuit court accepted plaintiffs’ argument that abolishing the renewal requirement would increase the copyright term for the works in question while correspondingly decreasing the number of works entering the public domain. Nonetheless, the court of appeals found that automatically renewing a copyright’s registration was qualitatively no different than extending a copyright’s term, and the Supreme Court’s holding in Eldred had in effect already answered plaintiffs’ challenge: If extending copyrights for existing works was constitutional there, then automatically renewing and thus extending copyrights for existing works was also constitutional here. So long as “traditional First Amendment safeguards such as fair use and the idea/expression dichotomy” vindicate the plaintiffs’ affected free speech interests, said the court, “extending existing copyrights . . . does not alter the traditional contours of copyright protection.” 17Id., at 700 (internal quotation marks omitted). So for the Ninth Circuit, automatically renewing a copyright was no different than extending a copyright’s term, and plaintiffs’ clever framing of the issue fell flat. While the Supreme Court in Eldred did not define what it meant by copyright’s “traditional contours,” the Court’s decision did make clear that extending a copyright’s term leaves the “traditional contours” intact—that was the exact issue in Eldred. And once the circuit court framed the issue as one of simply extending a copyright’s term, plaintiffs’ game was over under the Court’s prior holding. Plaintiffs appealed to the Supreme Court, but the petition for certiorari was denied. 18Kahle v. Gonzales, 128 S.Ct. 958 (2008) (denying cert.).

Coming up in Part II: Golan I & II, The “Traditional Contours” Test Defined, and Closing Thoughts.

References   [ + ]

1. Golan v. Holder, 10-545, 2012 WL 125436 (U.S. Jan. 18, 2012).
2. See Eldred v. Ashcroft, 537 U.S. 186 (2003); Luck’s Music Library, Inc. v. Gonzales, 407 F.3d 1262 (D.C. Cir. 2005); Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007), cert. denied, 128 S.Ct. 958 (2008); Golan v. Holder, 10-545, 2012 WL 125436 (U.S. Jan. 18, 2012).
3. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985).
4. Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932); see also Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 454 F.Supp.2d 966, 997 (C.D. Cal. 2006) (“The right to exclude is inherent in the grant of a copyright . . . .”).
5. Eldred v. Ashcroft, 537 U.S. 186 (2003).
6. Copyright Term Extension Act of 1998, Pub.L. 105–298 (amending, inter alia, 17 U.S.C. §§ 302, 304).
7. Eldred, 537 U.S. at 219.
8. The idea/expression dichotomy is codified in 17 U.S.C. § 201(b) (“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”).
9. Eldred, 537 U.S. at 219.
10. The fair use defense is codified in 17 U.S.C. § 107 (“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright…”).
11. Eldred, 537 U.S. at 219.
12. Id., at 221.
13. Id.
14. Kahle v. Ashcroft, 2004 WL 2663157 (N.D. Cal. Nov. 19, 2004).
15. Copyright Renewal Act of 1992, Pub.L. 102-307.
16. Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007).
17. Id., at 700 (internal quotation marks omitted).
18. Kahle v. Gonzales, 128 S.Ct. 958 (2008) (denying cert.).

About the author: Devlin Hartline

Devlin is a husband, father, and law geek (JD & LLM). He is currently an SJD candidate at Tulane Law in New Orleans, Louisiana, where he is writing his dissertation on copyright law. He is also a Mark Twain Copyright Fellow at the Center for the Protection of Intellectual Property at George Mason Law in Arlington, Virginia.

29 Comments

  1. Devlin Hartline

    I just wanted to say “Thanks!” to Terry for the invitation to post on Copyhype. I really appreciate the opportunity to use his platform to share my thoughts on copyright with the world. I’ve greatly enjoyed researching and writing this article–there’s simply no better way to learn something than by explaining it to others. Hope everyone enjoys it, and thanks again, Terry!

  2. Thanks for the summation, Devlin!

  3. As a copyright and trademark holder who inadvertantly found himself at the Faustian crossroads of content and technology..I can unequivocably proclaim that the ideological antithesis is upon us. The anti-copyright pyschophants cannot shoutdown or petition SCOTUS with anonymous voices (or DDoS). When major Content Delivery Networks are racing to catalog, coerce and quantify original code and content, the tide has turned. Google, Amazon and Facebook are hosted by these CDN’s. They are the keystones of the gatekeepers.

    The Internet Archives are not a right, contrary to the idealists at EFF. They are a privilege. One that should be anxiously contributed to and not hijacked by bias, bloviation and browbeating. Intellectual Property is a dish best served voluntarily. Great article Terry!

  4. Kudos to both Terry and Devlin Hartline!

    • Devlin Hartline

      Thanks, Kevin! I appreciate the thoughts of one such as yourself who’s been at the “Faustian crossroads.” 🙂

  5. There is a section of the DMCA that is unconstitutional, and it is pretty simple to find. I’m surprise no lawyer has neither found it, nor argued it properly.

    17 USC § 512(i)(1)(A) states that a “repeat infringer” can be allowed to infringe copyrights more than once; hence, a repeat, a repetition. However, in contrast, 17 USC § 501 clearly states that a secured exclusive right, a monopolistic right (see 17 USC § 106) cannot be infringed ever. Thus a repeat infringer is granting more than one infringement which companies that claim to be service providers under 17 USC § 512(k)(1)(B) like YouTube (it is not a service provider under that provision), monetize numerous infringements with anonymous users where copyright owners have to monitor or watch the value of their content diminish by Google if not known. Disgusting.

    Under 1:8:8 of the US Constitution, Congress must secure an exclusive right. Therefore, 17 USC § 106 (see 17 USC § 501) defines a single violation for a monopolistic right. Period. An amendment to copyright law, 17 USC § 512(i)(1)(A) grants a repeat infringement to a secured exclusive right. That is not allowed; therefore, it is ambiguous with 1:8:8 of the US Constitution for Congress to not secure an exclusive right.

    Conclusion: 17 USC § 512(i)(1)(A) is unconstitutional.

    You’re welcome. I am right.

    • Devlin Hartline

      My read differs from yours. 512(i)(1)(A) dictates that a service provider must adopt and implement a repeat infringer policy in order to be eligible for the DMCA’s liability limitations: “We hold that a service provider “implements” a policy if it has a working notification system, a procedure for dealing with DMCA-compliant notifications, and if it does not actively prevent copyright owners from collecting information needed to issue such notifications. . . . The statute permits service providers to implement a variety of procedures, but an implementation is reasonable if, under “appropriate circumstances,” the service provider terminates users who repeatedly or blatantly infringe copyright.” Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1109 (9th Cir. 2007).

      If a user repeatedly infringes using a particular service, then that service provider must terminate that user’s account at some point. It doesn’t mean what you’re saying, though, that the infringing user gets some sort of safe harbor–they don’t. The infringer is still liable for each and every infringement, as you’d expect. The safe harbor is for the service provider, not the infringer. And assuming the service provider has no knowledge of the infringement, for example, they wouldn’t be liable anyway even without the safe harbor.

      As far as who is a service provider under 512(k)(1)(B) goes… the definition in the statute is vague: “a provider of online services or network access, or the operator of facilities therefor.” I believe the legislative history did not indicate an intent to embrace the sort of Web 2.0 sites we have today, but that’s understandable given that those kinds of sites didn’t exist at the time. I think the language is broad enough though to encompass new businesses like YouTube, and courts have been interpreting it broadly. The questions I’ve seen turn more on other sections, like the “by reason of the storage at the direction of a user” language in 512(c)(1).

      • First, developing a “repeat infringer policy” is still unconstitutional because a copyright is a monopolistic right, a secured exclusive right (see 17 USC § 106). They have to develop a policy for no infringement; otherwise, the exclusive right is not secured.

        If you plan to use case-law, may I make clear that Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1109 (9th Cir. 2007) remanded the service provider definition to CCBill LLC, and it is still used to argue a position. If the definition was remanded (and not restored), then the entire case-law cannot be argued through its own negation. RESOLVED: Perfect 10, Inc. v. CCBill, LLC, 488 F.3d 1102 9th Cir. 2007 (“[i]t is unclear whether such payment is a digital communication, transmitted without modification to the content of the material, or transmitted often enough that CCBill is only a transient holder. On the record before us, we cannot conclude that CCBill is a service provider.”).

        As for the definition of 17 USC § 512(k)(1)(B), you wrote that it states the definition in the statute is vague: “a provider of online services or network access, or the operator of facilities therefor.” That is not how it is written. You placed a “period” at “therefor” providing a dual definition, claiming vagueness, or in many courts’ points of view, “broad”. There is nothing broad about it; in fact, plaintiffs do not see how the definition was construed in 1998.

        The accurate way it is written:
        “As used in this section, other than subsection(a), the term ‘service provider’ means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph(A).” See 17 U.S.C. § 512(k)(1)(B)

        [T]ext from any provision and/or subparagraph can neither be removed, nor can any text be added where it does not exist. As decreed inside 17 U.S.C. § 512(k)(1)(B), the provision upholds, “and includes an entity described in subparagraph(A)”. Therefore, the entire subparagraph(A) is unconditionally included with 17 U.S.C. § 512(k)(1)(B) as the combination to create the singular entity. Internet Access is mandatory to secure an exclusive right. There is no other consideration in this matter for copyrights. Other considerations allow rampant infringement to continue and flourish; grant creators of Napster to have seats at Davos, allow YouTube to lie in Federal court that there exist “no downloading” when every file is downloaded; and most disturbing, have plaintiffs state “specific URL knowledge” when in fact it is “same URL knowledge” which grants unconditional liability to the defendants.

        Simply put, 17 USC § 512(k)(1)(B) does not grant subsection(a) qualification. That’s all that it is for Internet Service Providers like Earthlink (in 1998, or Netcom). Subparagraph(A) is 17 U.S.C. § 512(k)(1)(A), and subsection(a) is 17 U.S.C. § 512(a). Any conceived definition that attempts to go beyond what has just been described is specious. The legislative material demarcates this where it states “[T]his definition includes, for example, services such as providing Internet access, e-mail, chat room and web page hosting services.” (See H.R. Rep. 105-551(II) at page 64 for 17 USC § 512(k)(1)(B), listed [incorrectly] as 17 USC § 512(j)(1)(B) (emphasis added as underlined).

        Now the 9th Circuit for UMG vs. Veoh didn’t see it that way because UMG literally did not dispute that Voeh was a service provider under the provision, but later on made a claim that [Veoh] didn’t qualify for the safe-harbor because they were not a company that hosts web services.

        That argument is wrong. They were not a service provider because they do not provide Internet Access under the inclusive definition of the provision, and any other case-law that states otherwise either:

        1) omits the second half of the provision assuming a dual definition, when there isn’t one
        2) places “and includes” outside the quotes to create a dual definition.

        But the legislative material asserts a single definition. Why can I see this and no one else cannot?

        To conclude, the judges in the 9th Circuit simply deemed the provision based on a lack of knowledge in computer science and didn’t have to make judgements if both sides agreed to granting the status as a “service provider”. If UMG would like to go to the Supreme Court on the DMCA’s constitutionality, fine. However, UMG made it worse for the secured exclusive rights of copyright owners, and their lawyers should be questioned on why it was argued with negligence.

        • There is nothing about the repeat infringer policy that is unconstitutional.

          However it is an area where the DMCA is not being enforced and needs to be.

          If it was enforced, there wouldn’t be people constantly uploading material illegally without repercussions.

        • First, developing a “repeat infringer policy” is still unconstitutional because a copyright is a monopolistic right, a secured exclusive right (see 17 USC § 106). They have to develop a policy for no infringement; otherwise, the exclusive right is not secured.

          I’m not sure I follow you. Service providers don’t have to implement any repeat infringer policy, so I don’t see how you can say that they must implement one that’s zero tolerance. Lots of service providers have no policy and don’t qualify for DMCA safe harbor. That doesn’t mean they’re liable for all the infringement that takes place on their service–they’re not. If they don’t qualify for 512 safe harbor, then a service provider’s liability turns on common law secondary liability doctrine.

          If you plan to use case-law, may I make clear that Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1109 (9th Cir. 2007) remanded the service provider definition to CCBill LLC, and it is still used to argue a position. If the definition was remanded (and not restored), then the entire case-law cannot be argued through its own negation. RESOLVED: Perfect 10, Inc. v. CCBill, LLC, 488 F.3d 1102 9th Cir. 2007 (“[i]t is unclear whether such payment is a digital communication, transmitted without modification to the content of the material, or transmitted often enough that CCBill is only a transient holder. On the record before us, we cannot conclude that CCBill is a service provider.”).

          I cited that case for its explanation of what it means to “implement” a repeat infringer policy. You are right, the circuit court said it didn’t have enough information to decide whether CCBill was a service provider under 512(a), but so what? The holding about what it means to “implement” a repeat infringer policy still stands. Just because the court remanded one issue doesn’t mean its holding on a separate issue doesn’t stand on its own–it does.

          As for the definition of 17 USC § 512(k)(1)(B), you wrote that it states the definition in the statute is vague: “a provider of online services or network access, or the operator of facilities therefor.” That is not how it is written. You placed a “period” at “therefor” providing a dual definition, claiming vagueness, or in many courts’ points of view, “broad”. There is nothing broad about it; in fact, plaintiffs do not see how the definition was construed in 1998.

          You’re absolutely right. I put a period when I should have used an ellipsis. My apologies. As to the rest of your argument, I certainly agree that what’s considered to be a “service provider” today isn’t what the term was meant to include when the statute was written. At this point, though, I doubt you’d get much traction arguing that a service like YouTube isn’t a “service provider” under the DMCA.

  6. Kent Wrote:
    There is nothing about the repeat infringer policy that is unconstitutional.
    However it is an area where the DMCA is not being enforced and needs to be.
    If it was enforced, there wouldn’t be people constantly uploading material illegally without repercussions.

    The reason it is not enforced is because it is unconstitutional. A secured “[e]xclusive right to sell, give away, rent or lend any material embodiment of his work” See 2 MELVILLE B. NIMMER, Nimmer on Copyright § 8.11[A], at 8-124.1 (1993) shall not be usurped in any way (see 17 USC § 106(3) and 17 USC § 501(a)). An exclusive right is a singular right, it is not a repeated number of non-rights before a non-qualifying innocence. Anything that is claimed as more than 1, a “repeat” is not allowed under the foundations of 1:8:8 of the US Constitution.

    There is no other argument to counter that. 1 does not equal an infinity of repetition.

    ======================================================

    Devlin Hartline wrote:
    You’re absolutely right. I put a period when I should have used an ellipsis. My apologies. As to the rest of your argument, I certainly agree that what’s considered to be a “service provider” today isn’t what the term was meant to include when the statute was written. At this point, though, I doubt you’d get much traction arguing that a service like YouTube isn’t a “service provider” under the DMCA.

    Hang on a second. If you agree that a “service provider” today isn’t what the term was meant to include when the statute was written, then that is not an arguable defense. If there are 4 lights, and I am being damned to say there are 5 lights instead, I’ll go with the way that the statute was written at the time it was. There are 4 lights.

    Anything “new” by companies, like the farce known as YouTube (see The William B. Hohegnarten and Susan J. Kohlmann evidentiary documents catastrophically against YouTube), that make a mockery of fraud and cause an economic collapse in doing so through the infringement of all, had better reconsider the analogy that the 9th Circuit which eventually claimed “God” was unconstitutional in the US Pledge of Allegiance (with the SJC skirting the issue using the technicality of a non-qualifying counsel).

    If a good lawyer can write a good brief, the argument will stick. But if a non-lawyer can nine better briefs and an amicus curiae with damning evidence beyond a preponderance, then the counsel that it was submitted to had better argue for it.

    • The reason it is not enforced is because it is unconstitutional. A secured “[e]xclusive right to sell, give away, rent or lend any material embodiment of his work” See 2 MELVILLE B. NIMMER, Nimmer on Copyright § 8.11[A], at 8-124.1 (1993) shall not be usurped in any way (see 17 USC § 106(3) and 17 USC § 501(a)). An exclusive right is a singular right, it is not a repeated number of non-rights before a non-qualifying innocence. Anything that is claimed as more than 1, a “repeat” is not allowed under the foundations of 1:8:8 of the US Constitution.

      There is no other argument to counter that. 1 does not equal an infinity of repetition.

      I still don’t see it. Yes, an infringer who commits a single act of infringement is liable for his infringement. But what does that have to do with whatever policies the service he uses to infringe may happen to have in place? If I use YouTube to infringe your copyright, then I am liable to you. Whether YouTube has safe harbor or not, or whether they are also liable to you or not, is irrelevant to my liability. Your rights have not been “usurped in any way,” by either me or YouTube.

      Hang on a second. If you agree that a “service provider” today isn’t what the term was meant to include when the statute was written, then that is not an arguable defense. If there are 4 lights, and I am being damned to say there are 5 lights instead, I’ll go with the way that the statute was written at the time it was. There are 4 lights.

      Nice reference! Love that episode! I think the term was meant to be somewhat malleable so that it could be applicable to online services that hadn’t been conceived of yet. I agree that its meaning has been stretched out, and perhaps even too far. I just think that genie isn’t going back in the bottle without legislative action at this point.

  7. Devlin Hartline wrote:
    The holding about what it means to “implement” a repeat infringer policy still stands. Just because the court remanded one issue doesn’t mean its holding on a separate issue doesn’t stand on its own–it does.

    Wait, wait, wait. Perfect 10, Inc. v. CCBill, LLC, 488 F.3d 1102 9th Cir. 2007 did not just remand one issue. The ruling remanded THE definition for all of the qualifications before hand. One has to be a “service provider” to qualify for the safe harbors. Therefore, if that was remanded, then everything else holds no moment.

    • The court remanded the issue of whether CCBill’s repeat infringer policy was reasonable, but the test the court explicitly held should be used in making that determination still stands on its own and is the law in the Ninth Circuit.

  8. Heavens, a whole thread of intelligent, literate comments. The usual suspects must be on holiday.

  9. Devlin Hartline wrote:

    I still don’t see it. Yes, an infringer who commits a single act of infringement is liable for his infringement. But what does that have to do with whatever policies the service he uses to infringe may happen to have in place? If I use YouTube to infringe your copyright, then I am liable to you. Whether YouTube has safe harbor or not, or whether they are also liable to you or not, is irrelevant to my liability. Your rights have not been “usurped in any way,” by either me or YouTube.

    I can see the misunderstanding of arguments here. If I understand this correctly, you’re equating that YouTube is an automatic, monetized innocent no matter who uses the service (a super-majority is infringed content that YouTube knowingly allowed from its inception). That has to be conceived differently.

    As I see it, let’s assume that you infringed my content on a URL that you own, then you would be liable. However, in YouTube’s case, you would infringe on a medium of YouTube’s URL that they own. Therefore, the creation of YouTube is liable for the content known or not on their own URL, like an amusement park that fosters prostitution to get male clients to use the bar for drinks afterward. YouTube are not protected by any of the safe-harbors; less alone, the company is not service providers under the DMCA either.

    It is not the individual that is the infringer, but the medium, in this case YouTube, that grants the environment to infringe for the revenue of the medium to sap demand from those following the rules to use against competitors (i.e.: Using one’s actual content, including derivative works, against the content owner). In fact see Playboy Entertainment, Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993) (“Intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement; rather, innocence is significant to a trial court when it fixes statutory damages, which is a remedy equitable in nature. See D.C. Comics Inc. v. Mini Gift Shop, 912 F.2d 29 (2d Cir.1990))

    • You’re right that direct infringement is a strict liability tort, meaning, if I infringe your work I’m liable whether I meant to do it or not. But once we move away from direct infringement and into the world of third-party liability, then it’s no longer strict liability. Think of all the intermediaries that go into me infringing your work on YouTube: Me, computer, router, modem, electricity, ISP, server, YouTube, etc. If every intermediary were held liable for my infringement, there’d be no internet. The trick then is how to decide when to hold third parties liable.

      What’s developed through judge-made law are two different doctrines: contributory liability and vicarious liability. Grossly simplifying, contributory liability is when a third party has knowledge of the infringement and materially contributes to it, and vicarious liability is when the third party profits from the infringement and has the right and ability to control it. YouTube’s liability, if any, is the contributory flavor, which is why once it has knowledge of a specific infringement it has a duty to end it lest it be held liable. This common law notion is codified in the DMCA safe harbors–to keep the safe harbor, YouTube has to remove infringing material when notified of its existence.

      So I think where you’re confused is in thinking that YouTube is liable for even unknown infringements–there not. If they were, there’d be no YouTube nor any other service provider for that matter.

      • Devlin Hartline wrote:

        Think of all the intermediaries that go into me infringing your work on YouTube: Me, computer, router, modem, electricity, ISP, server, YouTube, etc..

        However, YouTube is not a service provider. One requires “[you], computer, router, modem, electricity, ISP, server” before YouTube. You stated an “ISP”. Therefore, YouTube requires an ISP to function as a business; otherwise, it is not accessible by anyone. Therefore, YouTube’s claim that they too are an ISP is false. Thus they are NOT a “service provider” under 17 USC § 512(k)(1)(B) and are subject to 17 USC § 106 copyright law.

        “Judge-made law” can be re-argued. Judges and plaintiffs omit half the definition for the “service provider” qualification, and therefore, the “there are 4 lights” argument proceeds.

        I refer you to the William B. Hohengarten and Susan J Kohlmann evidentary documents that show collusion to infringe copyrights; in fact, one document claims that YouTube required an ISP. Hence, self-admission that YouTube is not an ISP.

        YouTube is liable for all unknown infringements. Because they are, YouTube is an illegal operation. What if I told you that YouTube grants every file to be downloaded as a YouTube promotion, and then in Memoranda of Law, they specifically claim there are “No Downloads”? What would your opinion be then?

        • What if I told you that YouTube grants every file to be downloaded as a YouTube promotion, and then in Memoranda of Law, they specifically claim there are “No Downloads”? What would your opinion be then?

          Well since there was no response to this. The trap would have been: If YouTube grants downloading of all their files (which they do), but claim inside Memoranda of Law in Federal and in the 2nd Circuit, YouTube would be guilty of “[a]ssert[ing] the right to make other people‘s speeches.’ See Eldred v. Ashcroft, 537 U.S. 186, 123 S. Ct. 769, 788-89, 154 L. Ed. 2d 683 (2003). Or, we add, to copy, or enable the copying of, other people’s music.‖ (See Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003))

          That’s right: “[a]ssert[ing] the right to make other people‘s speeches.’ See Eldred v. Ashcroft.

          You cannot grant a company unconditional innocence as an existing entity for everyone to use as an inception point. Especially in law. The entity itself has to be questioned first. God did not create YouTube, humans via a non-redacted admission to infringe copyrights did. My concern is, if you were assigned to argue my position; that is, argue to negate the 17 USC § 512(k)(1)(B) definition in a debate, would you get it right? Would you win?

          • Devlin Hartline

            I hear ya. I’m not sure I have much to add to what’s already been said. I agree that YouTube doesn’t get “unconditional innocence,” and I think the district court in the Viacom case had to significantly (and wrongly) downplay some really bad facts for YouTube. I’ll be really surprised if that appeal is a straight affirmance.

  10. I’ve always been confused/concerned about who qualifies under safe harbor myself – as well.
    I’m not a lawyer, but the way i read it: The company that actually lays wire to each house [ISPs].
    If you go futher to anyone that provides a “Service”… how can that be seperated from EACH and EVERY website out there? Doesn’t any interactive webpage provide some kind of service?
    i believe the law falls somewhere inbetween.. but i’m confused as to how we arrived at where we are now, and why the definition wasn’t fully challenged/defined.

    • Each and every website would be considered a “service provider” under the DMCA — “the term “service provider” means a provider of online services or network access.” I don’t think there’s any problem with the broad scope of the definition.

      Where the issue lies is that the safe harbors of the DMCA only immunize liability for four specific scenarios: transitory routing and transmission, system caching, material stored at direction of a user, and providing links or information location tools.

      It’s that third scenario that has, I believe, been considerably broadened since the DMCA passed. I’ve expressed doubts previously that service providers like YouTube qualify for immunity under that scenario.

      The Ninth Circuit, however, rejected a similar argument in UMG v. Capital Shelter Partners, finding that Veoh’s video service platform fell within the scope of this safe harbor.

      Viacom has made a similar argument in its appeal against YouTube, though it focuses the bulk of its appeal on other arguments, so while the Second Circuit may address the point when it comes to a decision, it’s not likely to be dispositive. For the time being, it appears that courts are comfortable with a broad reading of the user storage safe harbor.

      • Devlin Hartline

        I still don’t see the big deal with the safe harbors. It appears to me that the safe harbors simply protect parties that wouldn’t be liable even if the safe harbors didn’t exist, and it doesn’t protect parties that would be liable if the safe harbors didn’t exist. Put another way, I can’t think of a situation where the safe harbors lead to an outcome that’s different than you’d get if the safe harbors didn’t exist. I’m sure I’m missing something. I know I’ve read somewhere that the safe harbors and common law secondary liability aren’t coextensive, but other than procedural things like the repeat infringer policy requirement, I don’t see how the two are qualitatively different. What am I missing?

      • Thanks Terry.
        I know you have covered the topic before (thanks for the link[s])

        My understanding of the origination of the ‘safe harbor’, was to encourage the private sector to build the infrastructure necessary to connect us to the point to where we are now. Now that it has achieved it’s goals, do you ever see it going away?
        I believe i’ve read [one of] the author of the DMCA being horrified in it’s current use– of encouraging parasitic buisnesses using the safe-harbor as a ‘get out of jail free’ card. That’s not what the framer[s] envisioned when they wrote it.

      • @ Devlin.
        I suppose the Viacom vs YouTube case could clarify some of the problems.
        Specifically talking about the original YouTube creators now infamous internal emails… which has spawned countless ‘services’ on the back of nothing being done to them. Though.. the practice is currently being challenged (ala GrooveShark case and YouTube hearings)
        The outcome of both cases will have huge ramifications on if we’re going to an acutal fair market based system or more parasitic type systems.

      • Terry Hart wrote

        Each and every website would be considered a “service provider” under the DMCA — “the term “service provider” means a provider of online services or network access.” I don’t think there’s any problem with the broad scope of the definition.

        Again, that is not what is written in the law. Please do not remove the full definition. “[…] or [whatever] therefor, and includes an entity as described in subparagraph(A)”. Therefore, in actuality, websites are NOT service providers. ISPs that provide Internet Access are service providers (k)(1)(B), and telephone companies (or subscriber lines) are service providers (k)(1)(A). There is a case that questions the definition, “assumed” it to be true, and found the company quite guilty. See Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002. But the problem, again, was both sides did not dispute the definition, having judges nursemaid negligible ignorance.

        Insane. To have counsel not dispute the definition…..and then lose the case too.

        Look-up the book “HR-2281: And Then the DMCA Didn’t Apply on the Earth” and the amicus brief inside that argues against 17 USC § 512(k)(1)(B). I hope everyone debates that book forever, both sides, for and against.

        Devlin Hartline wrote:

        I know I’ve read somewhere that the safe harbors and common law secondary liability aren’t coextensive, but other than procedural things like the repeat infringer policy requirement, I don’t see how the two are qualitatively different. What am I missing?

        Common law secondary liability of an unfair competition. For example, 15 USC § 1114 and 15 USC § 1125(a) encompasses trademarks (like users wiping out trademarks like an MTV logo, and YouTube monetizing it and claiming the same defense, “I didn’t know”). This, if argued properly, would hold companies like YouTube unconditionally liable as they exist. The DMCA does not protect Trademarks, and the case-law exists to shut YouTube down under those statutes.

        Can I make a wish? I wish YouTube to be held liable. Wow! It’s a Genie!