The objection to the rights of literary property … proceeds, it should be observed, not upon fact but upon vague and unwarranted suspicion. It says, in effect, “We dare not trust you with your rights, because we suspect that you would make an ill use of them.” Why should this be suspected? No good reason can be assigned why the descendants of literary men should be less honest or less liberal than other persons. Surely, then, the objection is of a most ungracious character.

Are the Laws Regarding Literary Property Founded in Justice? (1825).1

Copyright doesn’t limit online speech — IP scholar Adam Mossoff makes the case why copyright is not censorship. “The right to free speech is the right to express one’s thoughts without censorship by the government. Copyright does not prohibit anyone from creating their own original novels, songs or artworks. Importantly, copyright does not stop people from thinking, talking or writing about copyrighted works.”

Our forgotten Constitutional right — intellectual property protection — Marking the 225th anniversary of the drafting of the US Constitution this week, Colin Hanna reflects on the protection of creator’s rights in the foundational document. “The focus of any discussion of Constitutional rights usually focuses on the limitations placed upon its power by one of the first ten amendments to the Constitution, known collectively as ‘The Bill of Rights.’ There are, however, other specifically enumerated rights laid out in the main body of the Constitution that sometimes go unnoticed. One of those is the protection of copyrights and patents, or what we now call ‘intellectual property.’”

Visions of a Blind Photographer — A fascinating look at the work of Sonia Soberats, a 77 year-old woman who took up photography after losing her eyesight to glaucoma. As Soberats says, “It surprised me that the human mind can do whatever it wants if we work toward it.”

I Has Moar Flava: Nine Copyright Observations About the myVidster Case — IP attorney Rick Sanders takes a closer look at last month’s Flava Works v Gunter decision. Insightful and quite entertaining.

MPAA debuts new website telling stories behind the story — Check out thecredits.org, a new site that takes a behind the scenes look at the people and technology creating films. Like this article on the Democratization of CGI Technology, which traces the history of computer generated special effects in movies and how advances in technology have “fostered greater opportunity to bridge the gap between independent films and Hollywood studios.”

Top False Claims of the New Internet Association — Part 2 of Internet as Oz Series — This week, Internet giants including Google, Facebook, and Amazon launched yet another lobbying organization. Scott Cleland fact-checks the claims made by the Internet Association.

Footnotes

  1. Philomathic Journal and Literary Review, Vol. 3, pp 393-94. []

Today’s guest post comes from Copyhype contributor Devlin Hartline.

Last week, Seattle-based photographer Christopher Boffoli sued Twitter in the U.S. District Court for the Western District of Washington for contributory copyright infringement. Boffoli is well-known for his “Disparity Series,” which according to the complaint is “a series of art photographs featuring miniature figures in whimsical poses on fruit.” Seattle Magazine has a brief article about the series. Boffoli’s case was also a topic of discussion on the most recent episode of “This Week in Law” (where Terry Hart was a guest).

In the complaint, Boffoli alleges that Twitter users uploaded several of his copyrighted photographs without license or permission and then linked to them in various tweets. Some images were hosted on Twitter’s own servers, while others were hosted on servers operated by third-parties. Boffoli claims that even though he sent four DMCA takedown notices to Twitter’s registered agent for receiving such notices, none of the hosted links or images were removed.

As such, Boffoli alleges that Twitter is liable for willful contributory infringement because (1) it had actual knowledge of infringement provided by his DMCA takedown notices, and (2) it materially contributed to the underlying infringements by Twitter’s users.

Ars Technica and Techdirt ran articles about the lawsuit last week. Both pointed out that Twitter’s failure to respond to the DMCA takedown notices doesn’t necessarily mean that the service provider is liable for infringement. That much is true, but it was also suggested in both articles that Twitter wasn’t likely to be liable for infringement despite its failure to remove the links and images complained of. It’s that notion that I’ll examine more closely.

DMCA Notice-and-Takedown

The DMCA1 notice-and-takedown provisions are no doubt familiar. Title II of the DMCA, titled the “Online Copyright Infringement Liability Limitation Act,” created Section 5122 of the Copyright Act—what people often are referring to when they talk about the “DMCA,” even though it’s only one part. It’s here that the notice-and-takedown provisions are found. The idea is simple: A copyright owner who finds infringing material on a service provider’s system sends notice to the service provider who then takes it down.

The “DMCA did not simply rewrite copyright law for the on-line world,” but rather, “it crafted a number of safe harbors which insulate ISPs from most liability should they be accused of violating traditional copyright law.”3 The DMCA uses a classic carrot-and-stick approach to get service providers to play along. The carrot of limited liability within the safe harbors is enforced by the stick of full liability without. This “preserves strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment.”4

When a third-party user stores material on a service provider’s system, the provider’s potential copyright liability is greatly reduced if it “responds expeditiously to remove, or disable access to,” the material upon notice that it “is claimed to be infringing or to be the subject of infringing activity.”5 Thus, to moor in the safe harbors, a service provider must quickly take down allegedly infringing material when notified. Once in the safe harbors, a service provider is only potentially liable for limited injunctive relief—it’s not potentially liable for monetary relief as it would be otherwise.

A common misperception is in thinking that a service provider that qualifies for the safe harbors cannot be liable for infringement. The DMCA itself is irrelevant to determining whether the service provider is an infringer. The safe harbors limit liability, but they “do not affect the question of ultimate liability under the various doctrines of direct, vicarious, and contributory” infringement.6 After it’s determined that a service provider is an infringer in the first place, the safe harbors can be used to assess the extent of the liability. Although as a practical matter, courts usually start with the analysis of the safe harbors first.7

Nor does the fact that a service provider fails to qualify for the safe harbors necessarily mean that it is liable for infringement. Such a service provider “is still entitled to all other arguments under the law—whether by way of an affirmative defense or through an argument that conduct simply does not constitute a prima facie case of infringement under the Copyright Act.”8 This make sense because the material complained of may not even be infringing or the service provider may qualify for some defense. Just because its liability isn’t limited by the safe harbors, it doesn’t mean that the service provider is liable in the first place.

Immunity under the safe harbors is not presumptive, and it’s only granted to service providers who do not have knowledge, either actual or constructive, of infringement. The “DMCA’s protection of an innocent service provider disappears at the moment the service provider loses its innocence, i.e., at the moment it becomes aware that a third party is using its system to infringe.”9 One common way to alert a service provider of infringement is via a takedown notice, which is effective only if it “includes substantially” certain elements listed in the statute.10

Contributory Infringement

With “roots in the tort-law concepts of enterprise liability and imputed intent,” contributory infringement is a type of secondary copyright liability.11 It follows from the common law doctrine that “one who knowingly participates in or furthers a tortious act is jointly and severally liable with the prime tortfeasor,” a concept that applies in copyright law as it does in numerous other areas of the law.12 Put simply, contributory infringement is the idea that a person who contributes to the infringement of another is held liable for the infringement they helped to bring about.

The courts have formulated different tests for contributory infringement, but they all share the same basic elements. The test in the Ninth Circuit, where Boffoli filed his suit against Twitter, is simple: “one contributorily infringes when he (1) has knowledge of another’s infringement and (2) either (a) materially contributes to or (b) induces that infringement.”13 Inducement infringement, identified by the Supreme Court in the Grokster opinion,14 is not at issue here. Boffoli is claiming traditional contributory infringement, which has two elements: (1) knowledge, and (2) material contribution.

As to the knowledge element, contributory infringement “requires that the secondary infringer know or have reason to know of direct infringement.”15 In other words, either actual or constructive knowledge will suffice. It’s not enough that a service provider merely supplies the means of accomplishing infringement.16 Instead, there must be knowledge of “specific information which identifies infringing activity” before liability attaches.17 This makes sense because without specific knowledge, a service provider wouldn’t know what items to remove to avoid liability.

The relationship between knowledge and intent should also be noted. An explicit finding of intent is not “necessary to support liability for contributory copyright infringement.”18 Under the “rules of fault-based liability derived from the common law,”19 the “intention to cause the natural and probable consequences” of one’s conduct may be imputed.20 It’s not mandatory to find that a service provider actually intended to contribute to the underlying infringement. Instead, a “knowing failure to prevent infringing actions” can be the basis for imposing contributory liability.21

Generally speaking, the material contribution element “turns on whether the activity in question substantially assists direct infringement.”22 In the internet context, the Ninth Circuit last year held that there “is no question that providing direct infringers with server space satisfies” this standard because it is “an essential step in the infringement process.”23 The alleged material contribution must have a direct connection to the infringement such that it assists or enables internet users to locate infringing content.24

In the famous Napster case, the Ninth Circuit held that “if a computer system operator learns of specific infringing material available on his system and fails to purge such material from the system, the operator knows of and contributes to direct infringement.”25 The appellate court concluded that “Napster materially contributes to the infringing activity,” since without its help, “Napster users could not find and download the music they want” as easily.26 To impose contributory liability, it was enough that “Napster provides the site and facilities for direct infringement.”27

Similarly, the Ninth Circuit in Perfect 10 stated that “a computer system operator can be held contributorily liable if it has actual knowledge that specific infringing material is available using its system and can take simple measures to prevent further damage to copyrighted works yet continues to provide access to infringing works.”28 The court of appeals held that “Google could be held contributorily liable if it had knowledge that infringing . . . images were available using its search engine, could take simple measures to prevent further damage to [plaintiff’s] copyrighted works, and failed to take such steps.”29

Putting it all together, I think Boffoli has a good chance of success on the merits of his claim. If he sent DMCA takedown notices to Twitter that complied substantially with the elements listed in the statute, then Twitter will have lost its innocence and will be deemed to have knowledge of the infringement (should there actually be any). Once knowledge is established, Twitter’s intent to cause the infringement will be imputed. And as to material contribution, Twitter is assisting and enabling its users to find the infringing content it provides on its system.

This is similar to the situation in Napster, where the Ninth Circuit held that Napster could be liable as a contributory infringer for failing to remove material it knew to be infringing. This is also similar to the circumstances in Perfect 10, where the Ninth Circuit held that Google could be liable as a contributory infringer for failing to remove links to infringing images once alerted to their presence. Here, Twitter is failing to remove both links and images.

That said, it’s kind of hard to understand why Twitter hasn’t removed the links and images Boffoli complained of. Perhaps there’s more going on here than meets the eye, but under the allegations in the complaint, it seems to me that Twitter could be contributorily liable for whatever infringement is taking place of Boffoli’s copyrighted images.

Follow me on Twitter: @devlinhartline

Footnotes

  1. Digital Millennium Copyright Act, Pub.L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 17 U.S.C. and at 28 U.S.C. § 4001). []
  2. 17 U.S.C.A. § 512 (West 2012); Section 512 codified the principles developed by the district court in Religious Tech. Ctr. v. Netcom On-Line Commc’n Services, Inc., 907 F.Supp. 1361 (N.D. Cal. 1995). []
  3. Ellison v. Robertson, 189 F.Supp.2d 1051, 1061 (C.D. Cal. 2002). []
  4. H.R. Conf. Rep. 105-796, 72 (1998). []
  5. See 17 U.S.C.A. § 512(c)(1)(C) (West 2012) (“A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider– *** upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.”). []
  6. Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1174 (C.D. Cal. 2002). []
  7. See, e.g., Costar Group Inc. v. Loopnet, Inc., 164 F.Supp.2d 688, 699 (D. Md. 2001) (“The existence of the safe harbor convolutes the analysis of copyright infringement which, theoretically, should proceed in a straight line. Ideally, CoStar would have to make a prima facie showing that LoopNet was liable of contributory infringement and then the court would turn to the question of whether the “safe harbor” provided a defense. However, because the parameters of the liability protection provided by the “safe harbor” are not contiguous with the bounds of liability for contributory infringement, the analysis may proceed more efficiently if issues are decided a bit out of order. On summary judgment, it is often appropriate for a court to decide issues out of the traditional order because a dispute of fact is only material if it can affect the outcome of a proceeding. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Thus, to the extent, if at all, that LoopNet is entitled to summary judgment in its safe harbor defense, all other issues concerning damages liability for contributory infringement would be rendered immaterial.”). []
  8. CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 552 (4th Cir. 2004). []
  9. ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 625 (4th Cir. 2001). []
  10. 17 U.S.C.A. § 512(c)(3)(A) (West 2012) (“To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (v) 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. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”). []
  11. Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 795 (9th Cir. 2007). []
  12. 1 Niel Boorstyn, Boorstyn On Copyright § 10.06[2], at 10-21 (1994). []
  13. Perfect 10, 494 F.3d at 795; it should be noted too that contributory infringement requires direct infringement to have occurred before liability attaches; see 1 Goldstein, Copyright: Principles, Law and Practice § 6.1, at 705 (1989) (“It is definitional that, for a defendant to be held contributorily . . . liable, a direct infringement must have occurred.”). []
  14. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) (the Court held that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”). []
  15. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1020 (9th Cir. 2001). []
  16. See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 436 (1984). []
  17. Napster, 239 F.3d at 1021. []
  18. Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 658 F.3d 936, 943 (9th Cir. 2011). []
  19. Grokster, 545 U.S. at 934-35. []
  20. DeVoto v. Pac. Fid. Life Ins. Co., 618 F.2d 1340, 1347 (9th Cir. 1980); see also Restatement (Second) of Torts § 8A (1965) (“All consequences which the actor desires to bring about are intended, as the word is used in this Restatement. Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.”). []
  21. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1172 (9th Cir. 2007). []
  22. Louis Vuitton, 658 F.3d at 943 (internal quotations omitted). []
  23. Id. (internal quotations omitted). []
  24. Perfect 10, 494 F.3d at 797. []
  25. Napster, 239 F.3d at 1021. []
  26. Id. at 1022. []
  27. Id. []
  28. Perfect 10, 508 F.3d at 1172 (internal quotations and citations omitted). []
  29. Id. []

A case involving hip-hop producer Timothy Mosley (aka Timbaland), chiptunes, and alleged unauthorized sampling has drawn to a close.

On Friday, the Eleventh Circuit affirmed a lower court’s decision that resolved the case in favor of Mosley. If you’re expecting a discussion of copyright and its intersection with the practice of digital sampling, you can stop reading now. The litigation here ended up being resolved on more dry matters.

I had previously written about Kernel Records Oy v Mosley, including the district court’s judgment in favor of Mosley and Kernel Record’s appeal. To reiterate, AcidJazzed Evening is a “chiptune” style track originally composed by Janne Suni. The track was remixed with permission by Norwegian Glenn Rune Gallefoss and first released via an Australian “disk magazine” in August 2002.

In 2006, pop artist Nelly Furtado released her album Loose. One of the tracks, “Do It”, produced by Mosley, was alleged to contain elements from the Gallefoss version of AcidJazzed Evening. Gallefoss subsequently transferred his rights to Kernel Records, and litigation ensued.

Kernel Records had not registered its copyright prior to bringing suit in the US. Mosley moved for summary judgment on this point, and in 2011, a Florida district court granted the motion, holding that AcidJazzed Evening was a “United States work” under the US Copyright Act and must be registered before bringing a copyright infringement suit. Kernel appealed.

Copyright Registration and Country of Origin

Since the first US Copyright Act, and for nearly 200 years afterward, creators were required to register their works to receive copyright protection. This requirement was done away with in the 1976 Copyright Act. Since then, copyright protection vests automatically once a work is put into fixed form — on paper, on tape, or saved to a digital file. The US, however, has retained a voluntary registration system that provides certain benefits to authors. One in particular is especially important to US authors: a US author cannot sue for infringement before registering her work.1

The move from mandatory to voluntary registration happened for several reasons, one of which was to bring US law into accordance with the Berne Convention, which the US entered in 1988. The Convention provides minimum standards of copyright protection for creators of member parties in other member parties. One of these standards is that “enjoyment and the exercise of these rights shall not be subject to any formality.”2 Thus, under the Convention, the US may require registration before a lawsuit is filed for US authors, but not for foreign authors.

Since this registration requirement hinges on the distinction between a US work and a foreign work, things get tricky when a work is published at the same time in the US and a foreign country. What is the country of origin in that situation?

The Berne Convention provides that “The country of origin shall be considered to be: … in the case of works published simultaneously in several countries of the Union which grant different terms of protection, the country whose legislation grants the shortest term of protection” and “in the case of works published simultaneously in a country outside the Union and in a country of the Union, the latter country.”3

The US Copyright Act, consistent with these provisions, states:

For purposes of section 411, a work is a “United States work” only if—

(1) in the case of a published work, the work is first published—

(A) in the United States;

(B) simultaneously in the United States and another treaty party or parties, whose law grants a term of copyright protection that is the same as or longer than the term provided in the United States;

(C) simultaneously in the United States and a foreign nation that is not a treaty party; or

(D) in a foreign nation that is not a treaty party, and all of the authors of the work are nationals, domiciliaries, or habitual residents of, or in the case of an audiovisual work legal entities with headquarters in, the United States

Since Kernel Records had not registered its copyright in the US before bringing suit, the Eleventh Circuit was tasked with determining, under this complex framework, whether the work at issue was a “United States work,” and thus not falling within the scope of the registration requirement.

What isn’t entirely clear from the language of either the Berne Convention or the US Copyright Act is what happens when a work falls into more than one category — when, for example, it is first published simultaneously in the US and another Berne Convention country and a non-Berne country. On appeal, Kernel argued that this is typical when a work is first published online, calling it “simultaneous worldwide publication.” Since the Copyright Act uses the disjunctive or, according to Kernel, any publication that falls in more than one category would be excluded from the definition of a “United States work.”

The Decision

The court begins with a recitation of the meaning of “publication” under the Copyright Act and then turns to an explanation of the analysis required for determining whether a work is first published in the US or abroad.

Determining whether a work was first published domestically or abroad adds an additional level of complexity. Because the statutory definition of “United States work” contains strict temporal and geographic requirements (e.g., “first,” “simultaneously,” “in the United States,” “foreign nation,” and “treaty party”), a determination that a work was first published abroad requires both: (1) an examination of the method, extent, and purpose of the alleged distribution to determine whether that distribution was sufficient for publication, and (2) an examination of both the timing and geographic extent of the first publication to determine whether the work was published abroad.

For example, a free pamphlet distributed by mail to every household on the continent of North America would undoubtedly meet the statutory definition of “publication.” However, to determine whether the very same pamphlet was first published abroad, the exact timing and geographic extent of the first publication must be known. Was the pamphlet first mailed to every household in Mexico, followed a week later by a separate mailing to the rest of the continent? If so, the pamphlet is a foreign work, first published abroad, and is not subject to the registration requirement. Or was the pamphlet first mailed to households in the United States and Mexico, followed a week later by a separate mailing to the rest of the continent? If so, the pamphlet was first published in the United States and a treaty party whose law grants a term of copyright protection longer than the United States, making the work a United States work that is subject to the registration requirement. Without evidence of the exact timing and geographic extent of first publication, it would be impossible to determine whether the pamphlet met the statutory definition of a “United States work,” or was instead a foreign work.

Applying this analysis to online publication, the court notes that care must be taken — the question still relies on a close look at the facts of a specific case rather than a blanket determination that online publication equals simultaneous worldwide publication.

Although “online” and “Internet” are largely synonymous terms, the Internet consists of distribution methods of significantly different types. Thus, an “online” activity may occur through public websites, restricted websites, peer-to-peer networks, e-mail, or other less common methods. Although it may be possible to presume simultaneous worldwide availability of a public website, such a presumption could not apply to restricted websites, peer-to-peer networks, and e-mail. A restricted website is only available to those willing to pay a fee or who meet specified criteria; a peer-to-peer network is only available to those who have downloaded the required software; and an e-mail only goes to the addresses input by the sender. Thus, unlike public websites on the World Wide Web, each of these other methods of online distribution would be inconsistent with a presumption of simultaneous worldwide availability.

To determine the countries to which these other online methods distribute material would require additional evidence, such as the country of residence of the users of a certain restricted website or peer-to-peer network, or the recipient of a certain e-mail.

The court ends its analysis there, however, since it has no need to go further based on the facts of this case.

It first denies Mosley’s motion for summary judgment because the parties disputed over first publication. Acidjazzed Evening first appeared in an Australian “disk magazine”, a point both parties agreed on. They disagreed, though, on whether this “disk magazine” was an offline or an online publication. Since this point is necessary to determine whether registration is required, and since courts can only grant summary judgment when there is no disputed material facts, the Eleventh Circuit denied Mosley’s motion.

The court nevertheless affirms the district court’s judgment because it found that Kernel Records failed to meet its burden of offering evidence that Acidjazzed Evening was published simultaneously worldwide. As it notes above, simultaneous worldwide publication might be possible when a work is published on the world wide web, but this depends on the facts, and here there was only speculation that the work was first made available on a website. The court concludes that, “A reasonable fact-finder could not find that a simultaneous, worldwide publication occurred in August 2002,” fatally dooming Kernel’s copyright claim since it had not met the Copyright Act’s registration requirements.

So the court punts on the issue of “simultaneous worldwide publication.” It states, “Because the record lacks sufficiently probative evidence of simultaneous worldwide publication, we need not determine what effect simultaneous worldwide publication would have under 17 U.S.C. § 101’s definition of a United States work.” That issue, then, remains unresolved.

As a result, Mosley essentially faces no more liability, and considering the narrow grounds that the Eleventh Circuit based its decision on, the success of any potential future appeal does not seem likely.

So this decision will be of interest primarily to copyright practitioners. As this case indicates, registering a copyright is important before initiating any infringement suit in the United States. The cost of registration is nominal compared to court fees and attorney costs, so the first step when contemplating an infringement lawsuit in the United States should be ensuring that the work is properly registered.4

Footnotes

  1. 17 USC § 411(a). []
  2. Article 5(2). []
  3. Article 5(4). []
  4. Timely registration also allows for statutory damages and attorney fees. Here, the court noted without discussion that these remedies are only available to works that have been registered, regardless of the country of origin, consistent with other courts that have faced the issue. See, for example, Football Ass’n Premier League v. YouTube, 633 F. Supp. 2d 159 (SDNY 2009). []

Eroding the Pull of Piracy-A Bilateral Approach — Be sure to check out filmmaker Ellen Seidler’s newly launched blog, Vox Indie, featuring “commentary, memes & more from creative culture.” Here, Seidler notes recent news that offer “compelling evidence that ongoing efforts to fight online piracy should include a bilateral effort to alter consumer habits–via legal means (legislation) in tandem with the continued development of new business models.”

Streaming media could have larger carbon footprint than plastic discs — A provocative new report from Music Tank reveals the extent that information is not free. The report’s author notes, “Streaming or downloading 12 tracks, without compression, just 27 times by one user would, in energy terms, equate to the production and shipping of one physical 12-track CD album,” and “unlicensed file sharing could consume the equivalent of up to four times the annual combined electricity consumption of all UK households.”

Safe Harbor Not Loophole: Five Things We Could Do Right Now to Make the DMCA Notice and Takedown Work Better — The Trichordist presents a number of ideas to align the 1997 DMCA notice and takedown procedure more with its original intent rather than its current interpretation that has resulted in a “catch me if you can” attitude among a small minority of service providers profiting off infringement.

Why Are Google DMCA Notices Skyrocketing? — Plagiarism Today’s Jonathan Bailey examines the reason that DMCA notices to Google have increased so rapidly within the past few months. Bailey notes it is not so much because the amount of notices have increased, but because the search giant has relaxed previous throttles on the amount of notices allowed and begun working through its backlog — a backlog that explains why, as has been reported, some recent notices have targeted content that has already been removed.

Emmy-Nominated TV Shows Hit Home — The Primetime Emmy Awards are next Sunday, the 23rd. CreativeAmerica takes a look at some of the nominated shows and their contributions to state jobs and economies.

Warner Bros. eyes the future through its ‘tech ops’ — Fascinating profile of Warner Bros. “tech lab” at its Burbank studio. The LA Times says, “This might be a sneak peek at the future of the modern studio, where the digitization of delivery systems and the power of social media mean that making great movies and television shows is no longer enough to succeed. The new studio needs to manage complex processes as efficiently as Google and reach consumers as aggressively as Apple.”

Blood to Rain, in a Bag of Tricks— Take an inside look at the world of theatrical props in this NY Times profile of an informal gathering of prop professionals last week. “‘It’s kind of the stepchild of theater,’ said Faye Armon, a properties coordinator who works often at Lincoln Center Theater. Theatergoers probably understand what costume, set and lighting designers do. Their work can be eye-catching, and their names appear on a program’s main credit page. They get their own Tony Award category. But a props master?”

A+L Innovation Central Podcast: David Lowery — David Lowery (Cracker and Camper van Beethoven) has been on a roll lately, with several popular articles in the past months, including Meet the New Boss, Worse Than the Old Boss?, and a Letter to Emily White. Here, Chris Castle interviews Lowery about how he approaches fan outreach and what online tools he uses to connect with his listeners.

How Kansas City taxpayers support Google Fiber — Ars Technica reports that “Google Fiber isn’t exactly a free-market success story.” As they point out, former FCC official Fred Campbell says, “Google received stunning regulatory concessions and incentives from local governments, including free access to virtually everything the city owns or controls: rights of way, central office space, power, interconnections with anchor institutions, marketing and direct mail, and office space for Google employees. City officials also expedited the permitting process and assigned staff specifically to help Google. One county even offered to allow Google to hang its wires on parts of utility poles—for free—that are usually off-limits to communications companies.”

ACTA: Will It Ever Become A Valid International Treaty? — IP Watch provides an update on the Anti-counterfeiting Trade Agreement. The multilateral agreement has run into some opposition. It needs ratification from six member parties to go into effect; currently it has been signed (but not ratified) by seven nations.

Assessing the Academic Literature Regarding the Impact of Media Piracy on Sales — Though filesharing denialists will likely ignore this, a new report shows that piracy’s effects on media sales is very real. The authors note, “Based on our review of the empirical literature we conclude that, while some papers in the literature find no evidence of harm, the vast majority of the literature (particularly the literature published in top peer reviewed journals) finds evidence that piracy harms media sales.”

Less than three weeks after a Massachusetts district court held that the jury award in the Sony v. Tenenbaum filesharing case did not violate the constitution, the Eighth Circuit has come to the same conclusion in Capitol v. Thomas-Rasset.

In a decision yesterday, the federal appeals court upheld the jury award from Thomas-Rasset’s first trial — $222,000 in statutory damages — and “a broadened injunction that forbids Thomas-Rasset to make available sound recordings for distribution.”

The court details the long, winding road this case has travelled, but to sum up: In 2007, a jury awarded damages of $222,000 against Thomas-Rasset for willful infringement of 24 songs on Kazaa. Several months later, the court, on its own, raised the issue of whether it erred when it instructed the jury that “making available” a work online is sufficient to show distribution, or whether evidence of actual distribution to another peer must be shown. After a hearing, the court granted a new trial, this time resulting in a jury verdict of $1,920,000 against Thomas-Rasset. The judge remitted the jury award to $54,000. The record labels rejected the remitted award,1 and a third trial, solely on the amount of damages, was held November 2010. The jury reached a verdict of $1,500,000 against Thomas-Rasset, and this time, the judge subsequently reduced the award to $54,000 on constitutional grounds. Both parties appealed, which is how we got here.

Making Available

The interesting twist here is that the record labels sought to have the first award reinstated, even though it was significantly lower than the most recent verdict. The labels proceeded this way in an attempt to have the Eighth Circuit reverse the district court’s ruling on the “making available” issue.

District courts are divided on whether “making available” counts as distribution, and the issue has generated a good deal of academic attention.2 Ben Sheffner, who covered both the Thomas-Rasset and Tenenbaum trials at his former blog, Copyrights and Campaigns, explains the controversy over the issue:

The problem for plaintiffs is that it is difficult, perhaps impossible, to prove directly that a particular p2p user actually disseminated a particular file to a specific other user. Plaintiffs argue that to prove distribution, it is sufficient to show that the defendant had the files in her “shared” folder, thus making those files available to all other users of the p2p network. There are at least two ways to think about the making available theory: either making the file available in itself counts as distribution, or it is a factual scenario that presents sufficient circumstantial evidence from which a jury can infer that actual dissemination, and thus distribution, occurred.

But while the Eighth Circuit here reinstated the verdict from the first trial, it declined to review the “making available” issue, noting that “this court reviews judgments, not decisions on issues.” The court explained:

That the companies seek these remedies with the objective of securing a ruling on a particular legal issue does not make that legal issue itself the matter in controversy. Once the requested remedies are ordered, the desire of the companies for an opinion on the meaning of the Copyright Act, or for a statement that Thomas-Rasset violated the law by making works available, is not sufficient to maintain an Article III case or controversy.

The Constitution and Statutory Damages

The critical import of this case, as with Tenenbaum, was how to review the damages award. Both parties here disagreed over the proper standard to review the jury award regarding its constitutionality. The lower court, and Thomas-Rasset, argued that the award should be reviewed under the standard developed by the Supreme Court to examine punitive damages, while the record labels, and the United States (acting as intervenor because the constitutionality of a federal statute was at issue), argued that statutory damage awards should be reviewed under the deferential standard from St. Louis v. Williams.3

The court here sided squarely with the record labels:

Due process prohibits excessive punitive damages because “‘[e]lementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.’” This concern about fair notice does not apply to statutory damages, because those damages are identified and constrained by the authorizing statute. The guideposts themselves, moreover, would be nonsensical if applied to statutory damages. It makes no sense to consider the disparity between “actual harm” and an award of statutory damages when statutory damages are designed precisely for instances where actual harm is difficult or impossible to calculate. Nor could a reviewing court consider the difference between an award of statutory damages and the “civil penalties authorized,” because statutory damages are the civil penalties authorized.

And, applying the Williams standard, the court held that the jury verdict was not unconstitutional.

The Eighth Circuit goes on to say that its conclusion supports the policies of copyright law:

Congress’s protection of copyrights is not a “special private benefit,” but is meant to achieve an important public interest: “to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.”

Statutory damages play a role in advancing this public interest:

Because the damages award “is imposed as a punishment for the violation of a public law, the Legislature may adjust its amount to the public wrong rather than the private injury, just as if it were going to the state.” The protection of copyrights is a vindication of the public interest, and statutory damages are “by definition a substitute for unproven or unprovable actual damages.” For copyright infringement, moreover, statutory damages are “designed to discourage wrongful conduct,” in addition to providing “restitution of profit and reparation for injury.”

The court ends by wrapping up several loose ends, including Thomas-Rasset’s assertion that had the record labels sued for the actual number of files she copied and distributed, the potential damages award would have been astronomical. The court notes it’s a fair point, but hypothetical, and thus not relevant:

If they had sued over 1,000 recordings, then a finder of fact may well have considered the number of recordings and the proportionality of the total award as factors in determining where within the range to assess the statutory damages. If and when a jury returns a multi-million dollar award for noncommercial online copyright infringement, then there will be time enough to consider it.

What’s Next?

This is likely the end of the road for Thomas-Rasset. Though her attorneys have indicated that they will appeal the ruling to the Supreme Court, the odds of the Court granting cert are against them. The Court has already denied an appeal from Tenenbaum, and since this decision is consistent with the Tenenbaum case, there is less of a reason for the Supreme Court to weigh in. So barring the unlikely, it would appear that the record label’s campaign of suing individual filesharers — starting September 2003 and ending December 2008 — has drawn to a close. The RIAA itself, which coordinated the record labels’ lawsuit here, stated that it is looking “forward to putting this case behind us.”

Footnotes

  1. Generally speaking, the Seventh Amendment requires that plaintiffs are given the option of either accepting a remitted award or rejecting it and having a new trial on damages, though there are some who argue that remittitur itself is unconstitutional; see, for example, Suja A. Thomas, Re-Examining the Constitutionality of Remittitur Under the Seventh Amendment, 64 Ohio State Law Journal 731 (2003). []
  2. Compare John Horsfield-Bradbury, “Making Available” as Distribution: File-sharing and the Copyright Act, 22 Harvard Journal of Law & Technology 274 (2008) and Peter S. Menell, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, Journal of the Copyright Society of the USA (2012). []
  3. For more on the different standards, see my previous posts on the subject: Capitol v. Thomas-Rasset Verdict Unconstitutional, Oh Tenenbaum, and Sony BMG v Tenenbaum: District Court Erred in Reducing Jury Verdict. []

Last week, France’s HADOPI released a report of figures from its first 20 months of operation.

HADOPI, if you recall, is both the French law implementing a graduated response, or “three strikes”, approach to mitigating online infringement, and the agency created to administer the law. Internet users who download an infringing work are first sent a warning email by the agency. If the user’s ISP notes a second infringement within six months of the first, a certified letter is sent to the user. A third infraction within a year of the second warning results in additional measures — including termination of internet access for up to a year, though court review is required before any such measures can be taken.

One thing revealed from the HADOPI report is that there has been an unofficial “fourth strike” added by practice: only users who infringe after a third warning are referred to a court for further measures.

Since it began operations, HADOPI has identified 3 million IP addresses connected with downloading infringing works. Of those, it sent out 1.15 million initial warnings. 102,854 users received a second warning. Of these, 340 received a third warning. Thirty of these cases resulted in repeated infringement after a third warning and were reviewed by a commission within HADOPI, though only 14 of those 30 have been referred to a court for judicial review.

In other words, from first identification, only .00047% French internet users face punitive measures for repeated infringement. These numbers are consistent with the program’s goal of educating internet users about the harms of copyright infringement — and turning them toward legal options — rather than punishing users.

What’s interesting here, however, is how substantially the picture that emerges from these figures differs from the apocalypse predicted by copyright skeptics when the law was first introduced.

Since its inception, HADOPI has been describe as “repressive” and “draconian“, with dire predictions that “already overworked courts risk being overwhelmed by piracy cases.”

The EFF, no stranger to hyperbole, described the HADOPI agency as an “executioner” and the law like a “guilliotine.” It warned of other country’s following France’s lead and “pressuring ISPs to throw their customers offline.” Even as recently as a month ago, the organization continued to call it “ham-fisted,” saying the process “runs contrary to principles of due process, innovation, and free expression.”

Would you believe Techdirt has also chimed in over the past 20 months? The site has said of HADOPI: “Due process? It’s dead.” The law, according to Techdirt, was “designed to kick accused (not convicted) file sharers off the internet“, it “suggests a huge percentage of French citizens at risk of losing internet access“, and “has effectively criminalized vast swathes of that country.”

This type of rhetoric is all too common from copyright skeptics whenever any effort is made to protect creators’ rights. One could call this “copyright hypochondria,” where every minor change in copyright law or enforcement is surely a symptom of a life-threatening disease. Far more often, it’s not, as this story demonstrates.

HADOPI’s numbers show that, contrary to the claims of copyright skeptics, the law did not threaten “vast swathes” of French internet users with punitive measures based solely on accusations. Instead, it seems to have achieved its purpose of educating users. Only about 38% of the IP addresses identified in connection with unauthorized downloading actually received an email warning. Of those, less than nine percent continued to infringe. And the bottom line is that only fourteen users in twenty months face actual penalties for continuing to infringe despite repeated warnings — less than one for each month of operation.

Also contrary to warnings that the process would surely lack due process or rely on naked allegations of infringement, the numbers suggest strong protections. While thirty users reached the unofficial fourth strike, HADOPI only recommended less than half to a court for further action.

So far, it appears to be the case that HADOPI has reduced piracy in a fair manner, but is it effective? Early studies suggest it is. A 2012 study by researchers, including professor of economics Brett Danaher, noted that consumer awareness of HADOPI has increased iTunes sales in France by over 22%. And a report by HADOPI itself after 17 months of operation showed that the clear decline in online piracy coincided with a rise in quality and quantity of legal cultural offerings.

In the US, a voluntary agreement between ISPs and major content producers that takes a graduated response approach is set to commence within the coming months. Like HADOPI, the process involves a series of escalating warnings to internet users who engage in unauthorized downloading. Unlike HADOPI, the process involves as many as six “steps”, and, while it provides for mitigation measures after the fifth or sixth steps, there is less of an emphasis on temporary termination of internet access. If HADOPI’s experience is any indication, the Copyright Alert System should do a good job in helping reduce online piracy and guiding internet users to legal options.

Unless you’re a copyright hypochondriac, of course, in which case the Copyright Alert System means that “ISPs are poised to start treating their customers like criminals, restricting their access to the Internet.” Sound familiar?

In Honor of Labor Day — This past Monday was Labor Day in the US. Check out CreativeAmerica’s interactive map that shows the jobs and economic contributions made by the film and television industry in each state.

No, Bruce Willis isn’t suing Apple over iTunes rights (H/T IPKat) — Earlier this week, there was a flurry of news stories that actor Bruce Willis was considering taking legal action against Apple over whether he can pass on his digital music collection to his kids when he passes away. While it raises interesting contractual issues that we’ll likely see more and more of, it turns out that this particular story is more fiction than fact. Meanwhile, Jeff John Roberts at GigaOM looks at 3 ways to deal with digital media when you die.

Pirate Bay Founder Arrest Related To Tax Hack, Not Piracy — Also earlier this week, Pirate Bay cofounder Gottfrid Svartholm was arrested in Cambodia at the request of Swedish authorities. Many assumed the arrest was in connection with his role in the Pirate Bay, which earned him a one year sentence. Svartholm left the country before a 2010 appeal affirmed the conviction but reduced the prison term. Torrentfreak reports, however, that the arrest is in connection with Svartholm’s alleged role in a hacking operation that published the tax numbers of thousands of Swedes online. Because, well, information wants to be free.

Legal brief done in comic form — Great stuff. However, just yesterday, the judge issued a surprise ruling in the ebook antitrust litigation, approving a settlement offer, which this brief argued against.

Meet the man who wants to satirize Silicon Valley — “British arch-satirist Armando Iannucci – best known for his documentary-style dissections of the political classes — is getting ready to take on his next project: a black comedy based on Silicon Valley’s worst moments of excess. Fish, meet barrel.”

Making Stuff and Making Money — Some smart words from the Cynical Musician.

 

On September 5, 1787, New Jersey Delegate David Brearly submitted the final language of the Copyright Clause to the members of the US Constitutional Convention. Granting the new federal Congress the authority to issue copyrights had been proposed several weeks earlier by James Madison (and, separately, by Charles Pinckney).

The full language, which also gives Congress power to issue patents, reads, “The Congress shall have power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The US Constitution would not be finalized until September 17th, it would not be ratified for another year, and the first Copyright Act would not be signed into law until May 31, 1790. But it seems appropriate to mark this date as an important one in US copyright history.

The existence of copyright law in the United States is mainly the result of efforts by authors.

The Statute of Anne, Britain’s 1710 law establishing copyright in that country, did not apply in its American colonies. The colonies before independence did not have anything resembling a “publishing industry.” Attitudes toward printing in the 17th century were inherited from England; Legal professor Oren Bracha notes that, “In short, throughout the colonial period … the press was seen as an important but dangerous public resource to be encouraged and used by the government, but also to be restricted and regulated.”1 Any book trade was small and unorganized, with only a handful of printers and presses in the colonies at the time. This reflected the less-industrially developed character of the colonies at this time.

Legal mechanisms were scarcely needed because printers faced little risk from reprinting. Printers faced little competition due to their scarcity and the lack of any ability to serve more than their local market. The existence of reprinting was further minimized by extra-legal mechanisms, described by Bracha as “private contractual agreements among booksellers not to print each other’s copies” and “an informal social norm within the trade against such behavior.” There were a few exclusive printing patents granted during this time, primarily for the exclusive right of printing compilations of a colony’s laws.

It was authors who primarily lobbied for general copyright laws in the colonies, and, eventually, the federal government. These authors include Joel Barlow, American politician and writer of Vision of Columbus and Hasty Pudding. Barlow played in important role in convincing the Continental Congress to pass its 1783 resolution encouraging the States to enact copyright legislation.

They also include Noah Webster, who would eventually write the dictionary that still bears his name today. Webster took it upon himself to lobby the individual state legislations, in person, to act on the Continental Congress’s resolution. (He would later play a role in the first major revision of the US Copyright Act in 1831).2

Other authors who played a role include Jeremy Belknap, writer of the first modern history in America, the History of New Hampshire, and Thomas Paine, whose pamphlets proved indispensible to the American Revolution.3

But often overlooked is the part played by a lesser-known author — and a musician, to boot — in efforts to create American copyright law.

William Billings

The author is William Billings, the “father of American choral music.” Billings was born in Boston in 1746. He worked as a tanner but taught himself music, never receiving any formal training, and according to biographical reports, seemed to have been quite the character:

Billings was a mixture of ludicrous, eccentric, commonplace, smart, active, patriotic and religious elements, with a slight touch of musical and poetical talent. To this side of the tanner-composer’s moral nature his personal appearance and habit formed a harmonious sequel. He was somewhat deformed, blind of one eye, one leg shorter than the other, one arm somewhat withered; and he was given to the habit of continually taking snuff. He carried this precious article in his coat-pocket made of leather, and every few minutes would take a pinch, holding the snuff between the thumb and clinched hand. To this picture we must add his stentorian voice, made, no doubt, rough as a saw by the effects of the quantity of snuff that was continually rasping his throat.4

Critically panned5 but popular, Billing’s works seem to capture the quintessence of American spirit. Though “crude, unrefined, and even vulgar”, and “scarred with glaring imperfections”, they contained a “buoyancy of rhythm, originality, life and melodic fluency.”6 His “lively and spirited” psalms were a welcome change from the old “slow isochronous” hymns, which aided in their wide acceptance.7

Not everyone welcomed Billings’ new style of music, however. Indeed, some accounts seem reminiscent of more modern day accounts of new trends in music:

These old bigots must have been paralyzed at the new style of psalm-singing which was invented and introduced by a Massachusetts tanner and singingmaster named Billings, and which was suggested, doubtless, by the English anthems. It spread through the choirs of colonial villages and towns like wild-fire, and was called “fuguing.” …

All public worshippers in the meetings one hundred years ago did not, however, regard fuguing as “something sweet everywhere,” nor did they agree with Billings and Byles as to its angelic and ecstatic properties. Some thought it ” heartless, tasteless, trivial, and irreverent jargon.” Others thought the tunes were written more for the absurd inflation of the singers than for the glory of God; and many fully sympathized with the man who hung two cats over Billings’s door to indicate his opinion of Billings’s caterwauling. An old inhabitant of Roxbury remembered that when fuguing tunes were introduced into his church “they produced a literally fuguing effect on the older people, who went out of the church as soon as the first verse was sung.”8

Billings’ popularity grew as he turned to patriotism during the Revolutionary War. He penned the tune, “Chester“, which became known as the first unofficial National Anthem. The song was said to have been “frequently heard from every fife in the New England ranks” during the war.9

Let tyrants shake their iron rod,

And Slav’ry clank her galling chains,

We fear them not, we trust in God,

New England’s God forever reigns.

Billings’ Copyright Bill

William Billings hoped to have a successful career as a songwriter. In November 1770, Billings petitioned the Massachusetts House of Representatives, “praying that he may have the exclusive Privilege of selling a Book of Church-Musick compos’d by him self, for a certain Term of Years.” Over the next two years, Billings continued his petition until he was able to bring a bill in front of the legislature. Both the Massachusetts House of Representatives and the Council eventually passed the bill.

Bracha notes that this is “This was an important landmark in American copyright history.”

For the first time an author rather than a printer or a bookseller applied to receive exclusive privileges in his own work. Two and a half centuries after printing privileges were granted to authors in Venice, France, Germany and England, an American legislature was willing to bestow rights on an author as such. In Britain the Statute of Anne had formally conferred rights on authors since 1710 and during the eighteenth century authorship had become the dominant ideology of copyright law and discourse, but in America Billings’ petition and Bill constituted the first appearance of the author as a claimer of rights.

Unfortunately, Billings never got his bill. Massachusetts Governor Thomas Hutchinson vetoed it and several other bills without comment. Tensions between the Loyalist Governor and the more radical legislature were already growing, so it is likely that Billings’ bill was simply a victim of politics.

Also unfortunate: Billings never escaped poverty during his life. He was buried in an unmarked grave even though his music remained popular, reprinted freely without compensation throughout the States.

Two hundred twenty five years later

US copyright law has come a long way since Billings’ time. In the 225 years since the Copyright Clause was drafted, the law has expanded to include artistic and creative works beyond books and maps. The entry of the US into the international copyright realm in the nineteenth century allowed American creators to compete on a level playing field with foreign authors.10 Today, US films, television shows, music, and books are enjoyed across the globe.

As with any legal doctrine, copyright will continue to face challenges in the face of societal and technological advancements. But securing the exclusive rights of authors remains a valuable and viable mechanism for promoting the progress of the arts and sciences.

Footnotes

  1. Oren Bracha, Commentary on John Usher’s Printing Privilege 1672, in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer (2008). []
  2. Oren Bracha, ‘Commentary on the U.S. Copyright Act 1831‘, in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer (2008). []
  3. William Patry, ‘The Colonies and Copyright’, in Copyright Law and Practice (2000). []
  4. Frédéric Louis Ritter, Music in America, pg. 60 (Charles Scribner’s Sons 1884). []
  5. Ritter, Id., says, “Nevertheless, Bill Billings remained an awkward harmonist and a worse contrapuntist … not to speak of hideous consecutive fifths and illogical progressions of octaves, motivi, without any inner aesthetic connection, chase each other, without rhyme and reason, from one end of the scale to the other; chords and harmonies tumble upon each other without order and euphony, playing carnival in the hearer’s ears.” []
  6. A Hundred Years of Music in America, ed. W.S.B. Mathews, pp 25-29 (Theodore Presser, 1900). []
  7. Musical Reporter, no. 1 vol. 7 (1841). []
  8. Alice Morse Earle, The Sabbath in Puritan New England, pp 218-221 (Charles Scribner’s Sons 1891). []
  9. Musical Reporter, Id. []
  10. “More authors came to public attention with the growth of interest in the novel, many of them Americans after the International Copyright Law of 1891 for the first time made their works no more expensive to issue than those by foreigners. After 1894 more novels, though not always more popular novels, came from Americans than from Europeans.” The popular book: a history of America’s literary taste, James David Hart, pg. 185 (Univ. of Cali. Press 1950). []

Principles for an Ethical and Sustainable Internet — The Trichordist offers a set of 8 principles for ensuring the internet remains a viable public forum for content creators and consumers alike. “Technology may change but principles do not. A society that encourages the creative spirit is rare in history and worth defending. The internet and digital technology have opened up many new opportunities for artists, but it has also opened up new opportunities for those who wish to exploit those artists.”

The Big Online Rip-Off — Danuta Kean has a comprehensive piece on “the burgeoning power and influence of internet venture capital, and illegal filesharing sites.” Well worth a read, Kean closes with a list of steps that creators can take to counter this power and influence.

The Illusion of More — Be sure to check out filmmaker David Newhoff’s new site, launched this week. Subtitled, “Dissecting the Digital Utopia,” Newhoff already has a number of great articles up. The site promises to be “a response to the promise of the digital age that more would necessarily be better. More content, more information, more access, and more interaction would ultimately produce more freedom, more democracy, more cultural diffusion, more innovation, and so on.  According to some, the evolution of the Internet would ultimately fuse with human evolution itself, allowing us to transcend even our own mortality. To be sure, we seem to have accomplished the more part, but whether it’s all for the better is a question worth asking.”

The Best Book Reviews Money Can Buy — The New York Times profiles the increasing use of paid book reviews in the world of self-publishing. Among those the Times looks at is author John Locke, who used such services to become somewhat of an internet superstar, even parlaying his success into an e-book, “How I Sold One Million E-Books in Five Months.”

Brand banners on pirate sites: whose fault is it anyway? — Adland looks for an answer, inspired by a recent series of posts on the Trichordist pointing out many major brands that show up on display ads for notorious pirate sites — like this recent one showing over a dozen brands advertising alongside unauthorized Neil Young recordings. The list includes Ford, Mini, Target, and even the Boy Scouts. Over at Music Think Tank, Bruce Warila looks at the same series of posts and asks, Are we a community of copyright cowards?

Brian Keene: I write novels, stories, and comic books for money — Lucinda Dugger of the Copyright Alliance profiles comic artist Brian Keene. “Yet, despite the many hours of work for what would seem to many of us like little financial return, Brian continues to write and offer new opportunities to his fans. In fact, he so appreciates his fans, that he wrote a novel, Deluge: The Conqueror Worms II, which he offered for free on his website.”

Average wait time from theater to home video — An interesting graph showing how consistently and dramatically the release windows for films have dropped in the past 14 years. The companion thread on Reddit.

Two court decisions involving online services transmitting broadcast television have recently been released. Both — WPIX v ivi in the Second Circuit and ABC v Aereo in the Southern District Court of New York — involve companies sued by television broadcasters for providing,in essence, the same type of service. However, the technology behind the scenes of each differs, as well as the legal issues involved.

And while both involved preliminary injunctions, they each resulted in different outcomes — Aereo succeeded in convincing the district court to deny an injunction while the Second Circuit upheld an earlier-granted injunction against ivi.

But while the differences in the two cases may outweigh the similarities, they do share one thing in particular that is, perhaps, most relevant: in both cases, the court reiterated the public’s strong interest in ensuring effective copyright protection.

WPIX v ivi

Billed as “the first internet cable network,” ivi launched in 2007. The service captures broadcast television from several markets, offering live viewing over the internet for a monthly fee. The company was sued in 2010, and the district court granted a preliminary injunction against it last year. On Monday, the Second Circuit upheld the injunction.

ivi argued that it is a “cable system” under the Copyright Act. Section 111 of the Act creates a compulsory license for “cable systems”, as defined in the Act, to retransmit television broadcasts — so long as a “cable system” complies with the statute and pays rights holders according to rates set by law, it can retransmit broadcasts without the consent of broadcasters.

Because the definition of “cable system” is not entirely without ambiguity, the Second Circuit turned to the legislative history of the section, as well as the Copyright Office’s interpretation of the law. Both clearly showed that the definition of “cable system” was never intended to encompass services like ivi. This conclusion is strengthened by the fact that, as the court notes, the definition of “cable system” must be read narrowly since it involves government intrusion into the marketplace and acts in derogation to the exclusive property rights granted by the Copyright Act.

ABC v Aereo

Aereo provides paid online access to New York City television stations broadcast over the air, including all the major networks (the service is currently only available to New York City residents). Unlike ivi, however, the service offers both live viewing and DVR-style functionality, allowing users to pause and record programs. Aereo operates an array of tens of thousands of antennae, each the size of a dime. When users access the service, Aereo dynamically assigns them a unique antenna.

Aereo hinges its defense on the nature of its setup. Relying on the Second Circuit’s Cablevision decision, Aereo argues that it essentially acts as a remote device controlled by its users. Because any individual transmission is going to a unique individual, says Aereo, any performance of television broadcasts is not public and thus not within the scope of any copyright holder’s exclusive rights. The district court concluded that Aereo’s arguments were strong enough to defeat the necessary likelihood of success on the merits that the television broadcasters must show in order to succeed on a motion for a preliminary injunction.

The Public Interest

To grant a preliminary injunction, courts consider four factors: the plaintiff’s likelihood of success on the merits, the irreparable harm that would result in the absence of an injunction, the balance of hardships between the plaintiff and defendant in the presence or absence of an injunction, and the public interests at stake. Despite the different legal issues involved, and despite the injunction in Aereo being denied because plaintiffs did not demonstrate a likelihood of success on the merits, both courts noted that the public interest favored granting an injunction.

The Aereo court puts it this way: “There is a strong public interest in the copyright system’s function of motivating individuals to make available their creative works and increase the store of public knowledge.”

The court also knocked down arguments that the public interest would be served by keeping the Aereo service running. Said the court, “There is a logical gap—one that Aereo and amici fail to bridge— between any public interest in receiving broadcast television signals generally and the public interest in receiving them from Aereo’s particular service.”

Interestingly, the court addresses arguments raised by the EFF and Public Knowledge in their amicus brief. “[A]mici argue that there is a public interest in the free access to and reception of broadcast television. The Court notes, however, that even setting aside the other lawful methods through which consumers may access broadcast television even in Aereo’s absence, Aereo is a business and does not provide ‘free’ access to broadcast television [Emphasis added].” The court continues even more stringently, “Amici‘s argument thus bears an unacceptable resemblance to advocacy that copyright infringement of broadcast television is generally in the public interest, a point on which this Court cannot agree.”

In ivi, the Second Circuit explores the public interests involved at length, in a section worth repeating in full:

Here, streaming television programming live and over the Internet would allow the public — or some portions of the public — to more conveniently access television programming.

On the other hand, the public has a compelling interest in protecting copyright owners’ marketable rights to their work and the economic incentive to continue creating television programming. Inadequate protections for copyright owners can threaten the very store of knowledge to be accessed; encouraging the production of creative work thus ultimately serves the public’s interest in promoting the accessibility of such works.

Plaintiffs are copyright owners of some of the world’s most recognized and valuable television programming. Plaintiffs’ television programming provides a valuable service to the public, including, inter alia, educational, historic, and cultural programming, entertainment, an important source of local news critical for an informed electorate, and exposure to the arts. Plaintiffs’ desire to create original television programming surely would be dampened if their creative works could be copied and streamed over the Internet in derogation of their exclusive property rights.

Further, there is a delicate distinction between enabling broad public access and enabling ease of access to copyrighted works. The service provided by ivi is targeted more toward convenience than access, and the public will still be able to access plaintiffs’ programs through means other than ivi’s Internet service, including cable television. Preliminarily enjoining defendants’ streaming of plaintiffs’ television programming over the Internet, live, for profit, and without plaintiffs’ consent does not inhibit the public’s ability to access the programs. A preliminary injunction, moreover, does not affect services that have obtained plaintiffs’ consent to retransmit their copyrighted television programming over the Internet.

What’s next

ivi has indicated in the press that it doesn’t plan on giving up just yet. That could mean an appeal or, more likely, continuing in litigation at the district court level. Though with its service still offline — the lower court last year denied its motion to stay the injunction while its appeal was pending, meaning it hasn’t been able to operate for over a year — it is uncertain how much longer it will stick with its plan.

The Aereo decision has been appealed to the Second Circuit. The appeal will be closely watched since Aereo is the first internet rebroadcaster to survive past the preliminary injunction stage. For example, earlier this month, Filmon.com, a similar service that was sued in October 2010, agreed to shut down its internet broadcasting service as part of a settlement with broadcasters. Within the past couple years, other services like VuiVision and iCraveTV have been quickly shuttered by courts.1

Footnotes

  1. H/T to Andrew Berger for making those decisions available at IP in Brief. []
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