VMG Salsoul v. Madonna — No details here other than the fact that the appeal has been docketed by the Ninth Circuit, but I include it because I think this will become one of the more closely watched copyright cases of 2014. Last month, a district court held that Madonna’s use of a digital sample without permission in her song Vogue was not infringing. The court held that the sample lacked originality, and even if it were protected by copyright, the use was de minimis. The appeal marks the first time that a Circuit Court will be looking at the same issue as Bridgeport, (although at least one other federal district court and a state court have) a 2005 decision from the 6th Circuit that attracted considerable attention for its holding that digital samples are not analyzed under the substantial similarity test like other copyrighted subject matter.

Shady Toymaker Attempts to Run and Hide from Beastie Boys LawsuitSPIN magazine has the latest from the GoldieBlox saga. On Tuesday, the Silicon Valley startup dismissed all the corporate defendants from its lawsuit, so it now only targets artists and producers.

Art and Music are Professions worth Fighting for — Musician Blake Morgan has an excellent essay on the importance of art and music as professions. “Every profession has daunting risks. And yet I’ve never heard of anyone who’s been successful in any profession who went for it half way. We artists and musicians have the right to expect from our profession what others expect from their professions. That through hard work and determination, perspiration and inspiration, we’ll have the same fair shot to realize our dreams, answer our callings, support our families.”

Appeals Court Won’t Penalize NFL Network for use of Artist’s Logo — The Fourth Circuit released a fair use decision this week, holding that the appearance of a copyrighted Baltimore Ravens logo in historical photos and videos is not infringing. At one point, the court cited to a brief filed by the MPAA and International Documentary Association to support its statement, “For creation itself is a cumulative process; those who come after will inevitably make some modest use of the good labors of those who came before.”

Sovereign Immunity and Copyright Law — Jonathan Bailey discusses a topic that I know everyone is excited to learn about more. But seriously, the issue of sovereign immunity may not pop up all that often, but it is worth knowing, especially for creators who work with state institutions like universities.

In Memoriam: Remembering the Photographers we Lost in 2013 — Time pays tribute to those photographers who passed away this year. “For photographers, the camera is a tool of existential negotiation. Regardless of the genre in which they work, they use the camera to mediate what is before them with what lies within. The best pictures are not a statement of fact, but a fully formed and articulated opinion.”

For over six years, the Electronic Frontier Foundation (EFF) has been doggedly pursuing Universal Music for a DMCA takedown notice that removed a 29 second clip of a dancing baby from YouTube for approximately six weeks. The case is currently in front of the Ninth Circuit on appeal. The EFF has soldiered on for so long in order to create a precedent that copyright owners should be punished if they make one wrong step protecting their works in order to stop what some call “rampant abuse” of the Digital Millennium Copyright Act (DMCA) notice-and-takedown provisions. Yet if the EFF is successful, it will create a much bigger burden to creators who are already overburdened keeping their works from being exploited by illegitimate sites.

The story is probably familiar to most readers. In 2007, mother Stephanie Lenz filmed her toddler dancing in the kitchen while Prince’s “Let’s Go Crazy” played on a radio in the background. Lenz uploaded the half a minute clip to YouTube. Universal Music, the administrator of Prince’s musical composition copyrights, regularly monitored YouTube for infringement of Prince works. After a brief review of Lenz’s clip, Universal sent a takedown notice to YouTube, which YouTube complied with. The EFF soon came calling, and helped Lenz submit a counternotice to YouTube to restore the clip online. Lenz then filed suit claiming that Universal knowingly made a material misrepresentation that Lenz’s video was infringing in its takedown notice, a claim that is actionable under 17 USC § 512(f).

Years of discovery followed. This past January, the district court denied both parties’ summary judgment motions on Lenz’s. Few would argue that sending a takedown notice because a poor quality version of a portion of a song appears in the background of a home video is a smart thing to do. The question is whether it gives rise to legal liability.

The court said that the DMCA’s requirement of a good faith representation that a use of a work is not authorized by law demands, at a minimum, an initial assessment of whether the fair use doctrine applies. But it rejected the EFF’s argument that failure to consider fair use by itself is sufficient to establish liability under § 512(f). The court relied on the Ninth Circuit’s earlier decision in Rossi v. MPAA, which held that the “good faith belief” requirement in the DMCA encompasses a subjective standard (that is, whether it is reasonable from the perspective of the actual individual), not an objective standard (that is, whether it is reasonable from the perspective of a hypothetical “reasonable” observer), and “[a] copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake.”1 Thus, the statute requires actual knowledge that a material misrepresentation had been made.

The EFF also argued that Universal’s failure to thoroughly consider fair use amounted to willful blindness – a form of actual knowledge under the law. As the court notes, the Supreme Court recently defined willful blindness as a subjective belief that there is a high probability that a fact exists combined with deliberate actions to avoid learning of that fact.2 The court rejected the EFF’s contention that the Prince song playing in her video was “self-evident” fair use, saying, “A legal conclusion that fair use was ‘self-evident’ necessarily would rest upon an objective measure rather than the subjective standard required by Rossi.” Ultimately, however, the court did not see enough evidence from either side to make a ruling as a matter of law at this stage in the proceedings. Both sides appealed.

512(f) and the proper standard

The DMCA in part provides a safe harbor from liability for infringing material uploaded to online service providers by third parties for purposes of storage if (among other requirements) those service providers remove the material upon notice by the copyright owner. The statute spells out what information is required on such notices, information that includes “A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”3 The statute also creates a cause of action against “Any person who knowingly materially misrepresents under this section … that material or activity is infringing.”

Rossi is the leading case interpreting these provisions. Michael J. Rossi owned the internet site “internetmovies.com” that boasted “Join to download full length movies online now! new movies every month”; “Full Length Downloadable Movies”; and “NOW DOWNLOADABLE” – it also included graphics of a number of MPAA member studio films. Upon discovering the site, the MPAA sent a takedown notice to Rossi’s ISP, which complied. The MPAA hadn’t attempted actually downloading any films from the site before sending the takedown notice, and apparently the site, despite its claims, did not contain any infringing material. Rossi sued for, among other things, misrepresentation under § 512(f), arguing that the MPAA should have known the site did not infringe.

The Ninth Circuit disagreed with Rossi, and held that the DMCA encompassed a subjective standard for two reasons. First, courts have traditionally interpreted the phrase “good faith” in other statutes as indicating a subjective standard. Second, the structure of the DMCA suggests Congress intended a subjective standard.

Juxtaposing the “good faith” proviso of the DMCA with the “knowing misrepresentation” provision of that same statute reveals an apparent statutory structure that predicated the imposition of liability upon copyright owners only for knowing misrepresentations regarding allegedly infringing websites. Measuring compliance with a lesser “objective reasonableness” standard would be inconsistent with Congress’s apparent intent that the statute protect potential violators from subjectively improper actions by copyright owners.

Rossi is on solid grounds, both for legal reasons and for policy reasons. As one recent court said, “The high standard for a § 512(f) claim reflects the reality that copyright owners face an uphill battle to protect their copyrights on the internet. … Without the subjective standard, copyright owners … could face limitless lawsuits just by policing [their] copyrighted material on the internet.”4 The EFF’s primary argument for seeking an objective standard is based on a California district court case that was released before Rossi.

The EFF’s argument that copyright owners must consider fair use before sending takedown notices fails for an even more fundamental reason. Fair use is an affirmative defense, meaning the onus is on a defendant to raise it. It would be unusual — not to mention near impossible — to require a plaintiff to anticipate any possible defenses a defendant might decide to raise and then consider them.

An example illustrates the problems that arise from this approach. To bolster its argument that “Based on the facts readily available to it, Universal should have known Ms. Lenz’s video was lawful,” the EFF stitches together case holdings from the Ninth Circuit, the Second Circuit, the Southern District Court of New York, and the Central District Court of California. It also cites to one case that came out five years after Universal sent its takedown notice.

The EFF has inadvertently revealed the fatal flaw in its argument here. Its legal analysis that should make fair use obvious to a reasonable person only works if the analysis takes place in some sort of conglomerate circuit court. But that’s not how things work in the real world. The fact is that fair use is not so much a legal determination as it is an adjudicated determination, one far outside the narrow scope of § 512(f).

DMCA abuse and perspective

That’s not to say there isn’t abuse of DMCA takedown notices, nor that § 512(f) shouldn’t work to prevent such abuse.

There are certainly examples of bad actors sending takedown notices for sites or content that is not infringing or likely not infringing for purposes of harassment, suppressing criticism, or stifling competition. This is obvious abuse, and this abuse reflects poorly on the vast majority of copyright owners who don’t abuse the DMCA process.

(There is also a lot of other stuff that isn’t abuse but categorized as such nevertheless. This may include takedowns that are a result of either overzealous or inexperienced/mistaken creators, or automated processes. Technical processes are constantly improved, and copyright owners have incentives to makes sure they are accurate since they generally don’t want to spend time and resources going after works that don’t harm their own property. As for overzealous enforcement, many copyright owners have found that the bad PR that results from too heavy a hand in sending takedown notices is not worth it.)

Abusive takedown notices receive a lot of attention, amplified by groups like the EFF to be sure, but how big of a problem are they within the larger picture?

A recent paper by Prof. Bruce Boyden provides one data point. In The Failure of the DMCA Notice and Takedown System, Boyden notes that from March to August 2013, the MPAA sent 25.2 million DMCA notices and received a total of eight counternotices claiming the targeted work did not infringe or was fair use or otherwise authorized. Not eight million — just eight.

Google’s own amicus brief in this case states it receives “hundreds of notices” that are not targeted at infringement. That’s a lot to be sure, but Google also receives nearly 24 million notices in total every month.

During last week’s public meeting on the USPTO Green Paper, the EFF’s Corynne McSherry made reference to a story that made waves earlier this year, involving several DMCA takedown notices intended for infringing copies of the television show Homeland targeting copies of Cory Doctorow’s book by the same name. The rhetoric certainly made it sound like a disaster: Doctorow’s book was “shut down” by “overzealous” takedowns, his novel “censored” by a veritable “dragnet.”

But take a closer look at the actual takedown notices that were at issue. Contained on them was not just URLs to copies of Homeland by Cory Doctorow but also URLs to copies of the TV show Homeland, as well as other television shows owned by the same copyright owner. Lots of URLs. One takedown notice has four links to Doctorow’s work out of around ten thousand total links. Another has sixty-two out of over 4,200 total links. A third has three out of around 9,600 total links. The “dragnet” captured a couple dozen copies of Doctorow’s book out of over 20,000 total URLs.

So we can ask two questions. Do we want to see noninfringing content become temporarily inaccessible at certain web sites?5 Of course not. But, at the same time, is a greater than 99.8% accuracy rate acceptable, especially when you’re dealing with tens of millions of notices a month?

Abusive takedowns are a problem, certainly, but they are a problem that exists at the far margins of the notice and takedown system. Seeking solutions could be a helpful discussion, but solutions shouldn’t come at the expense of the overwhelming majority of legitimate notices that are sent.

What shape would these solutions take?

Solutions, should they be needed, could come from the private sector. Because of the way courts have interpreted the DMCA, the burden falls almost exclusively on creators to identify infringing works. Service providers have little responsibility in cooperating with copyright owners to detect and deal with online copyright infringement, as Congress intended when it drafted the statute.6 That cooperation could include mitigating abusive notices since both service providers and copyright owners are motivated to prevent them. Unfortunately, many service providers have taken a minimal, hands off approach to the DMCA, doing little more than responding to takedown notices when they arrive. If service providers played a more active role in protecting creative works, perhaps the more egregious abusive takedowns could be prevented. This might be accomplished by incorporating best practices into voluntary initiatives or building more effective technical measures. Increasing transparency and streamlining internal appeals processes.

They might also come from government. The Copyright Office released a report on copyright small claims September 30, 2013. The report examined alternatives to litigation in federal courts that would be more accessible to individual creators with limited resources. The Office recommended a streamlined, voluntary administrative tribunal that would hear infringement claims with amounts at stake under a certain monetary threshold. The goal of such proceedings would be to afford effective remedies when federal litigation is resource prohibitive.

Interestingly, the Copyright Office proposes that the tribunal hear not only infringement claims, but also claims of misrepresentation in DMCA takedown notices or counter notifications under section 512(f).7 The challenge with implementing the small claims court would be providing a process that is accessible to the general public without opening the door to a flood of frivolous or vexatious claims, but if that balance can be struck, the availability of hearing 512(f) claims may help address those rare cases of abuse that currently go unaddressed and relieve some tension in copyright debates.

Conclusion

The EFF spends much of its brief appealing to free speech values.8 But courts should also be mindful of the free speech values that meaningful copyright protection promotes, and the chilling effect that the tidal wave of online infringement has on creators. As Susan Cleary of the Independent Film & Television Alliance said at a panel last week on creating a multistakeholder process to identify ways to improve the notice-and-takedown process, the game of whack-a-mole itself may be fun, but playing whack-a-mole with online infringement is not so much fun when it prevents your ability to finance your next film. Throwing up barriers against speech being made in the first place — especially speech from independent and niche voices — is a far graver threat to free speech then the temporary inaccessibility of already existing speech on a single website.

Footnotes

  1. 391 F. 3d 1000 (2004). []
  2. Global Tech. Appliances, Inc. v. SEB SA, 131 S.Ct. 2060, 2070 (2011). []
  3. 17 USC § 512(c)(3)(A)(v). []
  4. Ouellette v. Viacom Int’l, Inc., No. CV 10-133-M-DWM-JCL (D. Montana, April 25, 2012). []
  5. I’m certain that despite Doctorow’s novel being removed from sites like “http://tpb.5gg.biz”, it was still readily available at other sites, like Doctorow’s own home page. []
  6. Senate Report 105-190 at 20 (1998). []
  7. It’s unclear to me what remedies would be available under the draft legislation provided in the report. § 1403(c)(3) limits remedies in proceedings involving 512(f) claims, which I presume are not “infringement” claims, to “those available under this chapter.” But §1404(d)(1)(C), which sets remedies for claims other than copyright infringement, says damages “shall be awarded in accordance with applicable law.” []
  8. Though it oversteps when it says that private actors can violate the First Amendment. Pg. 58. []

Starting the Conversation on Copyright Issues in a Digital Age — Yesterday, the Department of Commerce held a public meeting to discuss issues it raised in last July’s green paper on Copyright Policy, Creativity, and Innovation in the Digital Economy. I have a full write up on the panels at the Copyright Alliance site with links to archived video of the event and additional background materials.

Hurd at Content Protection Summit: Google, Corporations Can Help Stop PiracyWalking Dead Executive Producer Gale Anne Hurd said Google and major brands could do more to minimize filesharing and ad-sponsored piracy at a recent event. Said Hurd, “I don’t buy into the philosophy that piracy helps [the business] … It creates a habit and I don’t think it’s something we should encourage.”

Oral Argument in Oracle v. Google: A Setback for Google? — Lee Gessmer has another excellent post covering the appeal in Oracle v. Google. Though it’s rarely wise to predict case outcomes from oral arguments, the judge’s questions did suggest vulnerabilities in Google’s arguments.

MPAA Studios Sent 25 Million DMCAs in Six Months, Only Eight Were Contested — Torrentfreak picks up on a interesting statistic from Bruce Boyden’s recent DMCA paper released by the Center for Protection of Intellectual Property: the Motion Picture Association of America only received 8 counter-notices from the 25 million takedown notices it sent in the past six months. This suggests a nearly 100% accuracy rate.

Review of streaming TV issue urged — SCOTUSBlog reports on Aereo’s rebuttal to the broadcaster’s cert petition, which somewhat unusually urges the Court to review the case even though Aereo won at the Second Circuit. Broadcasters have 10 days to file a reply brief, at which point the Court will consider the petition at its next conference, though that is not likely to be until January due to the holidays.

Silicon Valley Kings Write Half-Assed Outrage Letter to NSA — “It only took half a year for the un-beating heart of America’s tech sector to show any unified opposition to NSA dragnet techniques: ReformGovernmentSurveillance.com is a lazy piece of PR dreck—and about as transparently self-serving as it gets. Of course, companies like Google and AOL—which stay in existence by trading in private information—don’t want competition.”

Legal Theory Lexicon: Consent — A longer version of “permission is a foundation of a free civilization.”

Any given Sunday: inside the chaos and spectacle of the NFL on Fox — Read this amazing behind-the-scenes look from the Verge about what goes into a typical TV broadcast of a professional football game: the investment in technology, the employees who can only pull it off after developing their skills and talents. To wit: “Kevin Callahan, Fox’s director of technical operations, estimates Fox credentialed between 150 and 200 people for the weekend, from Troy Aikman and director Rich Russo to runners and microphone holders. The network brings in about $25 million worth of equipment, with thousands of individual parts.”

David Lowery: Silicon Valley must be stopped, or creativity will be destroyed — Love or hate the idea of an artist actually speaking out, David Lowery has provide much food for thought over the past year. He is in top form in this interview with Spin, particularly here where he is talking about resistance to making the internet more ethical: “That would be like in the Industrial Revolution saying, ‘You can’t have a non-polluting factory; you can’t have a factory that doesn’t have child labor; you can’t have a factory that’s safe to work in.’ Of course you can! We’re the fucking masters of our own destiny, we pass the laws for this country, we create this country, we decide what kind of a society we’re going to have — not the Internet.”

Silicon Chasm — How bad is Silicon Valley? The extreme economic inequality present there shocks even Laissez-faire conservatives.

Best photos of the year 2013 — Beauty, tragedy, hope, sorrow: the range of human experience is captured by photographers. I couldn’t get through all these in one setting because of how powerful they are, but it is worth it — not just to see the images but also to read the observations from the photographers themselves.

The Failure of the DMCA Notice and Takedown System — Bruce Boyden has released a new paper with the Center for Protection of Intellectual Property that details the Digital Millennium Copyright Act after fifteen years. “A tool that was originally designed as an emergency stopgap measure, to be used in isolated instances, is now expected to manage infringement on a persistent, ubiquitous, and gargantuan scale.”

Thom Yorke Calls Himself a ‘Luddite and Proud of It’ in Spotify Debate — The only people who think “Luddite” is an insult are people whose exploitative machines are being smashed. As Spin points out, the Luddites “weren’t anti-machine — they were against low-paying bosses, against being put out of a job in the name of efficiency, you name it.”

This morning, the Federal Circuit dove into the wild and wooly world of software copyright, hearing oral arguments in Oracle v. Google. The case between the two juggernauts could have enormous implications for the software industry, which contributes more than $260 billion to the U.S. GDP each year and employs 2 million U.S. workers.

Oracle licenses the programming language Java.1 One of the key features of Java is the Java Virtual Machine, which enables Java programs to run on any platform – a software developer can “write once, run anywhere” using Java.

To facilitate development of Java applications, Oracle also created a set of packages, or APIs. Each package is made up of multiple classes, and each class consists of a set of methods, each of which performs a specific function. Rather than writing a specific function from scratch, a Java developer can simply drop in a reference to the API.

While Google had become dominant in the desktop world by the mid 00’s, it was facing a lot of competition in the quickly growing mobile space. It acquired Android, Inc., in 2005 for the mobile software platform the company was developing, and began discussions with Oracle to license the Java operating system in order to quickly tap into a community of developers to build up a universe of apps.

But after five years, negotiations fell apart. Undeterred, Google created its own virtual machine and packages, but also copied verbatim the declaring code of 37 of the most popular Java packages. Oracle sued for copyright and patent infringement.

The procedural history of the case so far is a bit complicated because of the complexity of the issues. The trial was broken up into phases to address the patent and copyright issues separately. During the copyright phase, the jury was told to assume that the code was copyrightable to determine whether Google infringed the API packages, whether the infringement was fair use, and whether any copying of other snippets of code was de minimis. The trial court would later determine whether, as a legal matter, the code actually was copyrightable – the thinking was that this sequence would avoid a retrial if the judge found the code was not copyrightable and an appeals court reversed; the appeals court could then simply reinstate the jury’s verdict.

The jury found that (assuming the code was copyrightable) Google had infringed the 37 Java API packages but deadlocked on the fair use question. It also found that all snippet copying was de minimis except for one, a snippet named “range-Check.”

However, when the court then looked at copyrightability in the first instance, it held that Google had not copied anything protected by copyright. It based its holding first on the fact that Google had not copied the code that implemented methods from Java. Second, the “structure, sequence and organization” of the 37 packages that Google did copy from Java – amounting to over 7,000 lines of code – was not copyrightable because the court considered it a “system” or “method of operation,” both of which are not copyrightable under Section 102(b) of the Copyright Act.

Oracle appealed the decision to the Federal Circuit, which must determine whether the statutory copyright protection for software extends to source code and the structure, sequence and organization of the Java packages that Google admits to copying and whether that copying qualifies as fair use. Affirmation would endorse the type of free-riding Google engaged in here and erode the ability of software creators to invest in the constant innovation that drives this vibrant sector.

When does copyright protect software?

Software is protected under the Copyright Act as a “literary work.” Figuring out what exactly is protected and is not protected, however, can quickly become complicated, as application of copyright’s doctrines occur at a much more conceptual level than other subject matter. For example, copyright protects form, not function2 – but how is that applied to software code, all of which performs some sort of function?

The district court’s holding that Google only copied nonprotected “methods of operation” seems most vulnerable on appeal. The court itself even admitted that “nothing in the rules of the Java language . . . required that Google replicate the same groupings.” Any concerns that protecting Oracle’s expression in its Java packages would prevent other developers from the underlying functional ideas are overstated. Indeed, Google was here able to deliver the same functionality without copying the Java implementations.

It’s difficult also to see how the interoperability argument holds up: Java and Android are not interoperable. Oracle’s appellate brief points out that this, in fact, is one of the primary reasons the two parties failed to reach a licensing agreement: “Google wanted to be the only company ever allowed to use the Java packages commercially without making its implementation compatible with the Java virtual machine and therefore interoperable with other Java programs.” The reason Google copied the 37 packages was to attract app developers more easily, not to create a compatible product. At the very least, the question of interoperability should be addressed as part of the larger fair use inquiry, not under the threshold question of copyrightability.

Last week, IP attorney Lee Gesmer discussed some further legal nuances in the case that are well worth a read.

In the end, a win for Google at the Federal Circuit would not, as some have said, be a win for innovation and interoperability – just the opposite, in fact. A win would create a preference for copying and free-riding over innovation. And, as stated above, the copying here created less interoperability rather than more.

This is especially concerning because of how Google increasingly operates. Some have suggested that Google uses open source as a “Trojan Horse” for locking users into its own closed ecosystem. That is, it creates an open space that is freely available to jump start its marketshare, than slowly creeps toward closed systems as it increases dominance. Last month, Rom Amadeo discussed this in an Ars Technica article, Google’s iron grip on Android: Controlling open source by any means necessary. Amadeo said:

While Android is open, it’s more of a “look but don’t touch” kind of open. You’re allowed to contribute to Android and allowed to use it for little hobbies, but in nearly every area, the deck is stacked against anyone trying to use Android without Google’s blessing. The second you try to take Android and do something that Google doesn’t approve of, it will bring the world crashing down upon you.

Judges seemed skeptical of Google’s argument this morning, but a ruling is not expected for several months.

Footnotes

  1. Which it acquired after purchasing the original creator of Java, Sun Microsystems, in 2010. To keep things simple, I’ll use “Oracle” throughout this article to refer to Oracle or Sun. []
  2. Mazer v. Stein, 347 US 201 (1954). []