Industry-Wide Survey Reveals 67% of Professional Photographers Are Affected by Unauthorized Use of Photos — “According to a recent industry survey by Professional Photographers of America (PPA) on the prevalence and impact of copyright infringement among professional photographers, 67% of the nearly 2,000 respondents said they have had photographs used without their permission. Of that group, more than half estimate unauthorized uses of their images totaled five or more in the past five years.”

The Hunger Games: Mockingjay – Part 2‘s Production Designer on Creating the Capitol — A look at the efforts that went into translating the scenes from the book into physical sets for the final installment of the Hunger Games series.

Google’s continued do-si-do around its piracy pledge — Ellen Seidler: “Google pretends to be working on its piracy problem, but when you drill down it’s clear that the tech giant is doing everything it can to avoid taking action or responsibility. I hope those House members who sat and listened to Mr. von Lohmann will not take him at his word, but instead, examine actual facts. Google still has a very long way to go when it comes to fighting piracy.”

YouTube to Pay Fees for Some Video Makers to Fight Takedowns — The most powerful company on the planet says it may offer help to as many as four of its users.

‘All You Need to Know About the Music Business’ Author Donald Passman on ‘Freemium’, New Realities — Highlights from the latest edition of the guidebook to the music industry, with thoughts on the vinyl boom, consent decrees, and freemium.

Previously on Copyhype — On Wednesday, both parties in Fox News v. TVEyes told the court they intended to appeal the case to the Second Circuit. Fox News is appealing the court’s September 9, 2014 order, which I wrote about in Fox News v TVEyes: Fair Use Transformed.

Judge Restricts Sharing of Fox News Clips Through Email and Social Media — Following an extraordinarily broad fair use decision last year and a second, narrower fair use decision last summer, Judge Hellerstein this week ordered a somewhat surprisingly broad permanent injunction against news clipping service TVEyes, which had been sued by Fox News for copyright infringement. The injunction prohibits: “Enabling users to download to their own computers video clips of content telecast on the Fox News Channel or Fox Business Network. Enabling users to view FNC or FBN content by searching by date, time and channel. Enabling users from sharing video clips of FNC or FBN content on social media websites rather than by personally directed emails, with further limitations.”

FilmOn Can’t Use Compulsory Copyright License, Judge Says — The Aereo clone won a victory in a California court last July when a judge ruled that it could qualify for a cable compulsory license under the Copyright Act. But this week, in parallel litigation, a DC court judge ruled the opposite. The sealed ruling sets up a potential circuit split on the interpretation of 17 USC § 111.

Music piracy, copyrights and royalties in Ivory Coast — Music Africa reports: “Piracy does not only stifle distribution houses and producers. The entire chain of the music industry is affected. Recording studios no longer generate income, since there are very few albums produced. Musicians are given no contracts to sign. Graphic designers who make the covers of CDs and especially the Ivorian Office for Copyright (BURIDA) are all experiencing the downfall. Since 2006, for example, according to BURIDA figures, the number of musical registrations fell from 870 000 to 320 000.”

Google-chaired think tank says Google’s No.1 for digital rights — Orlowski: “Just fancy that! A Washington think tank chaired by Eric Schmidt, Alphabet Inc’s executive chairman, has given Alphabet Inc. an award for ‘protecting your digital rights’.”

YouTube is a hosting provider, but one with extensive duties of care, say two German Courts — The German word for “take down, stay down” is “Stoererhaftung”. “Stoererhaftung requires that YouTube has breached its duty of care after having been notified of an infringement. This duty of care (arising with notification) does not only include a mere takedown of the infringement notified, but also a stay down and the prevention of other infringements of the same kind which are also obvious. This concept applies to YouTube according to the Hamburg court.”

The Peanuts Movie‘s Animation Supervisor on Getting the Gangs into 3 Dimensions — I admit to being a bit skeptical after seeing trailers for the new Peanuts Movie, but this sounds very interesting. “We obviously started out just by studying Schulz’s wobbly pen line, his cartoon line, and the four panel strip. We definitely looked at the Christmas and Halloween specials as the Hallmark classics of the Peanuts. We studied the movies as well. We had access to every single comic, movie, special, even the commercials that they did way back before they did the specials. We studied Bill Melendez [Schulz’s trusted animator on the televised specials] and Bill Littlejohn [the lead animator with Melendez].”

Using intellectual property system to harness African creativity — “Also included are the copyright systems that reward writers, artists, musicians and other creators and allow them to market their work around the world. IP helps ensure that the product of your mind belongs to you, so that you and your family will benefit. But governments need to put in place legal, regulatory and other frameworks to maximise human creativity and assure it can be shared across boundaries.”

Will Buckley works to unite artists and fix a broken DMCA — Ellen Seidler sits down with Fareplay founder Will Buckley about his efforts advocating on behalf of artists and creators. “Artists groups: authors, filmmakers, musicians, photographers and other creators will really need to step up their game in terms of individual participation to prevail. And while there are far more creators speaking out than ever before, in the scheme of things, it is far fewer than one percent. If that doesn’t change the creative community may come away empty handed from the proceedings.”

Previously on Copyhype —This week, the final text of the Trans-Pacific Partnership, which includes a chapter on intellectual property, was publicly released. For background on how copyright came to be included in trade agreements, see Copyright and Trade.

Copyright for Blockheads: An Empirical Study of Market Incentive and Intrinsic Motivation — Jiarui Liu:

Even though musicians seem to primarily create music for music’s sake, copyright law could still supply powerful incentives for music production in a way that not only caters to market demand, but also allows for broader artistic freedom. Copyright piracy that does not necessarily affect musicians’ intrinsic motivations could nevertheless affect music creation in terms of the time spent on music creation, the volume of investment in music creation and, ultimately, the quality of music creation. Most importantly, copyright incentives do not function as a reward that musicians consciously bargain for and chase after, but as a mechanism that preserves market conditions for gifted musicians to prosper, including a decent standard of living, sufficient income to cover production costs and maximum artistic autonomy during the creative process.

Wil Wheaton is right: Stop expecting artists to work for free — or worse, for “exposure” — After Huffington Post asked actor Wil Wheaton to republish an article he had written for free, Wheaton went public with the story and an exhortation to fellow writers, artists, and creators to value their work and think twice about offers to work for free, even when “free exposure” is promised. As Scott Timberg observes here, “when ‘free’ becomes the way creative work gets assessed, it undercuts the market for everyone, famous and obscure alike. We end up with a race to the bottom.”

Google Books and Fair Use: From Implausible to Inevitable? — Eminent copyright scholar Jane Ginsburg on the Second Circuit’s recent decision in Authors Guild v. Google. She asks, “How did the fair use doctrine go from a safety valve to enable second authors to create new works that productively incorporate reasonable portions of prior works, to a free (in both senses of the word) pass for mass commercial digitization – at least so long as the outputs from the commercial database communicate no expression or insufficient expression to infringe?”

New Tech Plans Aim to Take Copyright Office out of the 1970s — “According to the document, the office plans to revamp its website,, by improving the site’s organization and boosting its interface to make it easier to use. This overhaul would also include enhancing the public records search engine to allow users to save their queries and receive unlimited results. The office is also looking to finish digitizing its pre-1978 copyright records, according to the document.”

Protecting Authors and Artists by Closing the Streaming Loophole — “Congress has a long history of modernizing copyright law to account for ever-changing technologies. Now that the internet has advanced to where streaming is a dominant method of illicitly disseminating copyrighted works, the time has come to close the streaming loophole and to harmonize the remedies for criminal copyright infringement.”

Can economic and historical analyses end copyright law’s property/monopoly disputes? — Tom Sydnor: “We can now resolve 300-year-old debates about whether copyrights are monopoly rights or property rights. Modern law and economics provide no basis for distinguishing copyrights from other private property rights that also tend to promote imperfect competition by innovation among producers of differentiated goods, services, and works.”

95% of YouTube Views Come from Just 5% of Videos — “Of [YouTube’s] 1.1 billion videos, just 5.3 percent (roughly 58.6 million) of videos on YouTube have 10,000 views or more. These videos have generated a cumulative 7.4 trillion views, or about 95% of all views.”

Three More Reasons Why the Supreme Court Needs to Clean up the Mess of Transformative Use — Those three reasons, according to Stephen Carlisle, are the recent decisions in Author’s Guild v. Google, Inc., Katz v. Google, and Galvin v. Illinois Republican Party.

Is Google Books leading researchers astray? — “By not taking into account the relative popularity of texts, Google Books leaves itself open to disproportionate influence from less widely recognized sources. ‘It’s as if you’re giving every work in a library the same weight,’ Dodds said. When an author publishes numerous books about a single character, for example, that character’s name may appear to be far more central to an era’s discourse than it actually was. Dodds pointed me to the example of Star Trek novelizations, which made names like Spock appear with improbable frequency. By contrast, Dodds noted, a long-standing best-seller like A Tale of Two Cities has trouble making a dent at all, even in eras when everyone was reading it.”

CPIP 2015 Fall Conference — The Center for Protection of Intellectual Property has now posted videos of all the panels from its recent fall conference, The IP Platform: Supporting Invention and Inspiration. A must watch!

On Friday, the Second Circuit published its long-awaited decision in Authors Guild v. Google, holding that the Google Books project was fair use. The litigation has extended over a decade, and the court’s opinion ably recounts the factual and legal background so there is no need to repeat that here. Surely it will provide fodder for plenty of commentary over the coming months, but for now, I wanted to highlight an ancillary point: the court’s apparent overlook of its fair use holding in Cariou v. Prince.

Cariou involved the appropriation, without permission, by celebrity artist Richard Prince of over thirty photos taken by professional photographer Patrick Cariou, to create a series of new works. Prince asserted a fair use defense after Cariou sued him for copyright infringement. The district court rejected the fair use defense. 1Cariou v. Prince, 784 F.Supp.2d 337 (SDNY 2011). Key to its holding was its response to Prince’s assertion that “use of copyrighted materials as raw materials in creating ‘appropriation art’ which does not comment on the copyrighted original is a fair use.” The court disagreed, saying it was “aware of no precedent holding that such use is fair absent transformative comment on the original.”

To the contrary, the illustrative fair uses listed in the preamble to § 107—“criticism, comment, news reporting, teaching […], scholarship, [and] research”—all have at their core a focus on the original works or their historical context, and all of the precedent this Court can identify imposes a requirement that the new work in some way comment on, relate to the historical context of, or critically refer back to the original works.

On appeal, the Second Circuit reversed, finding all but five of Prince’s works to be fair use (the remaining five were remanded to the district court on the issue). 2Cariou v. Prince, 714 F.3d 694, 706-07 (2nd Cir. 2013). In doing so, the Second Circuit disputed the above statement from the lower court, saying, “The law imposes no requirement that a work comment on the original or its author in order to be considered transformative … Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so.”

The New York Times noted that the decision was criticized by copyright experts and photographers. I also criticized the decision, and later wrote that it ignored a long-standing principle that fair use requires that the use of the original work is essential to the new work for some purpose related to those listed in the statute (“criticism, comment, news reporting, teaching […], scholarship, [and] research”). 3See also William F. Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Entertainment L. J. 667, 714-15 (1992) (“If the defendant is commenting on something that has nothing to do with the plaintiff’s work, he has no need to use the plaintiff’s work to make that comment. He can equally well create his own expression, or use material in the public domain. … In the absence of a need to use that particular work, there is inadequate justification for carving out a substantial chunk of the copyright owner’s exclusive rights.”). This necessity principle, I observed, can be derived from the underlying justifications of fair use—which include furthering the goals of copyright itself and providing First Amendment safeguards.

My discussion was motivated by the Seventh Circuit’s 2014 decision in Kienitz v. Sconnie Nation, which, after criticizing the Second Circuit’s holding in Cariou, touched briefly upon the necessity requirement. 4766 F.3d 756 (7th Cir. 2014). There, Judge Easterbrook said,

There’s no good reason why defendants should be allowed to appropriate someone else’s copyrighted efforts as the starting point in their lampoon, when so many non-copyrighted alternatives (including snapshots they could have taken themselves) were available. The fair-use privilege under §107 is not designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright proprietors.

Following the Supreme Court’s denial of cert in Sconnie Nation, it seemed like we’d be stuck with a bit of a circuit split between the Seventh Circuit and the Second (and Ninth) Circuit. Until Authors Guild.

Judge Leval, who authored the opinion, began his fair use analysis by exploring what it means to be “transformative” in the fair use context (a term he himself introduced into copyright jurisprudence). 5See Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990). It “does not mean that any and all changes made to an author’s original text will necessarily support a finding of fair use.” To explain the distinction, Leval turned to the same passage from the Supreme Court’s opinion in Campbell v. Acuff-Rose that I relied on to describe the necessity requirement. There, the Court explained (as quoted by Leval),

[T]he heart of any parodist’s claim to quote from existing material . . . is the use of . . . a prior author’s composition to . . .comment[] on that author’s works. . . . If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish). . . . Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s . . . imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.

Leval drives this point home, saying,

In other words, the would-be fair user of another’s work must have justification for the taking. A secondary author is not necessarily at liberty to make wholesale takings of the original author’s expression merely because of how well the original author’s expression would convey the secondary author’s different message. Among the best recognized justifications for copying from another’s work is to provide comment on it or criticism of it. A taking from another author’s work for the purpose of making points that have no bearing on the original may well be fair use, but the taker would need to show a justification.

This would appear to contradict Cariou—there, Prince did not have any justification for using Cariou’s photos; indeed, he did not articulate any reason at all for using them, but the court nevertheless held that to be a fair use. I say appear to contradict since a panel court cannot overrule prior holdings by the same court, so we are left with a state of tension between the holdings in Cariou and Authors Guild.

Nevertheless, and setting aside other aspects of this decision, the Second Circuit’s recognition of the necessity requirement of fair use is a welcome one.


References   [ + ]

1. Cariou v. Prince, 784 F.Supp.2d 337 (SDNY 2011).
2. Cariou v. Prince, 714 F.3d 694, 706-07 (2nd Cir. 2013).
3. See also William F. Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Entertainment L. J. 667, 714-15 (1992) (“If the defendant is commenting on something that has nothing to do with the plaintiff’s work, he has no need to use the plaintiff’s work to make that comment. He can equally well create his own expression, or use material in the public domain. … In the absence of a need to use that particular work, there is inadequate justification for carving out a substantial chunk of the copyright owner’s exclusive rights.”).
4. 766 F.3d 756 (7th Cir. 2014).
5. See Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).

Oops, DNS blocking did not break the Internet — “[O]pponents of stronger digital copyright enforcement have staked their reputations on predictions that have clearly not come true. Policymakers, therefore, should not accept the falsehood that blocking a website or taking other actions to shut down infringing sites equates to an assault on the security and reliability of the Internet as a whole. Instead, they should recognize that selective targeting of websites dedicated to infringement is an effective strategy to combat piracy.”

Think tank: Take Copyright Office out of Library of Congress — “In a report, the think tank called for lawmakers to remove the Copyright Office from the Library of Congress — where it is one of a mere handful of agencies in the legislative branch. The report outlines constitutional arguments for a restructuring while underscoring ongoing problems with the office’s dated information technology systems as another driver. The Copyright Office currently falls under the umbrella of the Library of Congress, upon which it must depend for its IT — as well as for human resources, budget requests and other functions.”

Bear McCreary on The Walking Dead Season 6 — The composer of the AMC series discusses scoring the latest season, which premiered this past Sunday. “The creative model for this series has been to reinvent itself every eight episodes, with each run taking on a unique tone, and following our characters on a specific arc. Of course there are larger macro narrative arcs that span the entire series as well. This richly layered drama creates a unique challenge for me as a composer. With each season I strive to integrate elements from my previous seasons’ work into new themes, sounds and styles. My task is always to tell the immediate story at hand, but to also help thread the entire series together, to remind viewers they are taking part in a story that goes all the way back to the first episode.”

RIAA Obtains Restraining Order Against Aurous — On Saturday, the developer of Aurous publicly launched the unlicensed music service. On Tuesday, the major labels sued the developers. And yesterday, the Florida court granted a temporary restraining order against operation of the site, with a hearing on a motion for preliminary injunction scheduled for October 28.

The magic depends on us all, creators and audiences alike — “Art cannot be created on an automated assembly line. It is not a matter of plugging some numbers into a spreadsheet. The people in front of the camera and behind it – who write, light, film, act, cater, edit, costume, and create scenery – are the lifeblood of the business. We are the workers who craft these productions… And we, the behind-the-scenes magicians, are dependent on so many others to keep those opportunities flowing. We are dependent not only on the studios and networks but also on the audience who come to our movies or watch our TV shows on any number of screens and platforms. And we too are affected by the rampant theft of our work. When someone accesses our movies or shows on a pirate site, they steal our ability to make a living.”

Court’s docket shuns bankruptcy and IP cases — The US Supreme Court has started its new Term, but, as SCOTUSBlog reports, with 65% of its docket already filled, there is not a single IP case to look forward to.

Copyright Doesn’t Restrain Culture – Part II — Newhoff: “…because building upon what has come before is a well-established part of the creative process—because artists themselves throughout history admit to knowing how to steal—the argument is often made that modern copyright tips the scale too far toward a presumption of ‘originality,’ supposedly resulting in a kind of intellectual land grab whereby a minority of creators and corporations now own and charge rents for too much of the fertile ground necessary for creative endeavor. Nevertheless, by some miracle, literally millions of creators can simultaneously and independently produce new works while only very occasionally create conflicts of copyright.”

Rothman’s Roadmap to the Right of Publicity (via Rebecca Tushnet’s 43(B)log) — An incredibly useful guide to laws protecting the right of publicity in each of the fifty states.

Does Piracy Cost Content Creators a Fistful of Dollars? — “Copious research has countered claims that piracy is de facto publicity that spurs sales for individual recording artists or that increases in merchandising opportunities offsets the lost revenue from pirated films. While the literature is still open to new contributions, current research and analysis is demonstrating more and more that piracy has a measurable, negative impact on content creation and profits, which shouldn’t be a surprise to anyone.”

The problem is the music-streaming companies — Paul Williams: “Bottom line: the problem is neither transparency nor what is being paid out to songwriters and other copyright holders by PROs… the real problem is how little is being paid into the system by streaming companies”

As Batman so sagely told Robin, “In our well-ordered society, protection of private property is essential.”

Ninth Circuit, holding that Batmobile is protected as a copyrighted character. 1DC Comics v. Towle, No. 13-55484 (9th Cir. 2015).

Kim Dotcom case is ’simple fraud’, court told — “Gordon said Megaupload, the now-defunct site at the heart of Dotcom’s online empire, was part of a scheme to steal copyright-protected material. ‘The respondents took part in a conspiracy,’ she said. ‘They deliberately introduced copyright-infringing material to their website, they deliberately preserved that material, they deliberately took steps to profit from that material and made vast sums of money.'” See also Let’s Get Real about Kim Dotcom: The Indictment Clearly Alleges Felony Copyright Infringement.

Behind the Authors Guild’s New Proactive Approach — “Since Mary Rasenberger took over as executive director of the Authors Guild last November, the writers’ group has undertaken two significant projects: its Fair Contract Initiative and the first survey of guild membership in six years. Both efforts, Rasenberger said, are designed to help the organization better represent the interests of its 9,000 members, not just with publishers, but with government officials and other groups that can affect the livelihood of all authors.”

Valuing Music in a Digital World — Cary Sherman: “Compounding the harm is that some major online music distributors are taking advantage of this flawed system. Record companies are presented with a Hobson’s choice: Accept below-market deals or play that game of whack-a-mole. The notice and takedown system—intended as a reasonable enforcement mechanism—has instead been subverted into a discount licensing system where copyright owners and artists are paid far less than their creativity is worth.”

This free online encyclopedia has achieved what Wikipedia can only dream of — Spoiler: It’s the Stanford Encyclopedia of Philosophy, which predates Wikipedia by six years. Unlike Wikipedia, the Stanford Encyclopedia manages to be authoritative, comprehensive, and up-to-date, and does so by relying on a hierarchy of editors and expert authors rather than “the wisdom of the crowd.”

USTR Releases Detailed Summary of TPP Objectives — Included are the objectives of the free trade agreement’s copyright chapter.

GroupM And TAG Partner To Fight Piracy, The “Seed That Grows Into Ad Fraud” — “’The people who create pirate sites are the same ones who perpetrate clickbot fraud – they’re the ones who spread malware and create the armies of bots that generate most of the automated clicks in the business,’ said John Montgomery, chairman of GroupM Connect, North America , and co-chair of the Trustworthy Accountability Group’s (TAG) antipiracy working group.”

The Fake Traffic Schemes that are Rotting the Internet — “’I can think of nothing that has done more harm to the Internet than ad tech,’” says Bob Hoffman, a veteran ad executive, industry critic, and author of the blog the Ad Contrarian. ‘It interferes with everything we try to do on the Web. It has cheapened and debased advertising and spawned criminal empires.’ Most ridiculous of all, he adds, is that advertisers are further away than ever from solving the old which-part-of-my-budget-is-working problem. ‘Nobody knows the exact number,’ Hoffman says, ‘but probably about 50 percent of what you’re spending online is being stolen from you.'”

References   [ + ]

1. DC Comics v. Towle, No. 13-55484 (9th Cir. 2015).

Nearly four years ago, the US Justice Department indicted Kim Dotcom (née Kim Schmidt)—along with six other individuals and two corporations—on a number of charges related to the operation of Megaupload and alleged “massive worldwide online piracy.” 1Researchers found that “the shutdown of Megaupload and its associated sites caused digital revenues for three major motion picture studios to increase by 6.5-8.5%.”

Since then, Dotcom has consistently questioned the charges, claiming not innocence but a lack of legal basis for the charges themselves—that is, that his conduct in creating and operating Megaupload does not make him criminally liable for copyright infringement and related charges. His defense team even took the highly unusual step of publishing a “white paper” that explores its arguments against the criminal charges. 2I wrote previously about the arguments raised in the white paper here.

Despite this insistence of legality, Dotcom’s defense has repeatedly delayed an actual trial with procedural challenge after procedural challenge. This week, despite those efforts, his extradition hearing has begun and is expected to last four weeks.

But that still doesn’t mean Dotcom is confident his legal claims will hold up in court. In fact, his legal team has enlisted the aid of presidential candidate Lawrence Lessig to support their case. Lessig recently filed an expert opinion in the extradition hearing to support the argument “that the Superseding Indictment and Record of the Case filed by the DOJ do not meet the requirements necessary to support a prima facie case that would be recognized by United States federal law and subject to the US-NZ Extradition Treaty.”

There are a couple things worth highlighting about Lessig’s declaration.

Lessig, of course, has become a popular figure in the copyright world for his work in addressing how the law should work in a networked, digital world. However, his track record in accurately describing how the law actually works has been less than stellar.

This is not the first time he has appeared in litigation as an expert witness—he appeared in the godfather of online copyright cases, A&M Records v. Napster. In his expert declaration for Napster, Lessig argued in part that in evaluating whether the service enabled infringement, a court should look at whether it has “potential for substantial noninfringing purposes.” He concluded that Napster was capable of “vast” noninfringing uses, including “the sharing of non-copyrighted music, the sharing of copyrighted music that had been authorized for sharing (for example, for purposes of sampling), and the sharing of other non-copyrighted content on the net in a peer-to-peer manner.” Lessig added that, by passing the Audio Home Recording Act, Congress expressly left “private, noncommercial home recording unregulated by copyright law.”

None of these arguments were successful in the Ninth Circuit. 3A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). The court did note it was bound by Sony‘s holding regarding substantial noninfringing purposes and would not “impute the requisite level of knowledge to Napster merely because peer-to-peer file sharing technology may be used to infringe plaintiffs’ copyrights” However, the court explained “Napster’s actual, specific knowledge of direct infringement renders Sony‘s holding of limited assistance to Napster. We are compelled to make a clear distinction between the architecture of the Napster system and Napster’s conduct in relation to the operational capacity of the system.”

The Ninth Circuit also rejected the argument that “that MP3 file exchange is the type of ‘noncommercial use’ protected from infringement actions by” the Audio Home Recording Act, holding that the plain language made the statute irrelevant to the issues at hand.

Lessig also spent a considerable amount of time and energy during the 2000s arguing that the Copyright Term Extension Act, as regarding the term extension of existing copyrights, violated the Copyright Clause of the Constitution. This litigation went all the way up to the Supreme Court, which rejected Lessig’s arguments unequivocally in Eldred v. Ashcroft. 4537 US 186 (2003). In doing so, the Court concluded its opinion by saying, “Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing the CTEA’s long terms. The wisdom of Congress’ action, however, is not within our province to second-guess.”

Given this track record, it might be said that Dotcom is more interested in making a statement than beating the charges.

The second thing about Lessig’s declaration that jumps out is an apparent contradiction between Lessig and Dotcom’s defense team regarding the applicability of the DMCA safe harbors to Megaupload.

In the white paper, Dotcom’s defense team says

Even if the U.S. government’s wishful expansion of the criminal copyright law into the realm of secondary infringement were tenable (which it is not), Megaupload is shielded from criminal liability by specific “safe harbor” provisions in the Digital Millennium Copyright Act (DMCA), included in the law to protect companies like Megaupload that make efforts to remove infringing material in response to “take-down” notices issued by copyright holders

But in his declaration, Lessig asserts “The DMCA is only a defense in the civil context”. The reversal is notable.

I do think Lessig is correct here. As I wrote in 2012 following the indictment,

Though [the DMCA] references only “infringement of copyright” — which could include both criminal and civil infringement — it merely shields service providers from “liab[ility] for monetary relief, or [in some circumstances] injunctive or other equitable relief.” This is civil lawsuit language — criminal defendants are punished with fines, not liable for monetary relief.

In addition, criminal liability would seem to preclude safe harbor protection solely as a matter of common sense. Criminal copyright infringement requires willful infringement. The DMCA safe harbor only protects service providers from liability for passive infringement. If the evidence shows that a defendant was willfully infringing copyrighted works beyond a reasonable doubt, it doesn’t seem possible that that same defendant could ever meet the requirements for safe harbor protection under the statute.

Nevertheless, for Lessig to contradict a point the defense has been asserting for three years cannot be welcome news for Dotcom.

References   [ + ]

1. Researchers found that “the shutdown of Megaupload and its associated sites caused digital revenues for three major motion picture studios to increase by 6.5-8.5%.”
2. I wrote previously about the arguments raised in the white paper here.
3. A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).
4. 537 US 186 (2003).