That every person for every injury done him in his goods, land or person, ought to have remedy by the course of the law of the land and ought to have justice and right for the injury done to him freely without sale, fully without any denial, and speedily without delay, according to the law of the land.1

Ineffective remedies are often just as bad as no remedy at all. While innovative, sustainable services continue to develop, offering consumers exciting and convenient new ways to enjoy content that remunerates creators, rogue actors still find it easy to profit off the misappropriation of someone else’s time and talents.

The Stop Online Piracy Act (H.R. 3261) gives creators more tools to address this type of commercial piracy. Since it was introduced, however, it has been subject to much criticism, and with the House Judiciary Committee holding a hearing on the bill Wednesday, the criticism is sure to continue.

While some of the criticism is legitimate — few bills are perfect when they are first introduced, hence the need for hearings — a lot of it is unfounded. One thing that should be kept in mind is that SOPA does not expand the scope of copyright law, of what is protected or what is not.

The Stop Online Piracy Act creates new remedies, it does not create any new liability.

Section 103 of SOPA provides for a procedure, similar to the notice-and-takedown procedure of the DMCA, that allows copyright holders to better protect their work against commercial misappropriation. This procedure is limited to use against sites that are, as the bill terms them, “dedicated to theft of U.S. property.” The bill includes three separate definitions for a site “dedicated to theft of U.S. property.”

To see why SOPA doesn’t expand the scope of copyright law, compare its definitions to current law. These definitions, for sites “dedicated to the theft of U.S. property”, incorporate existing standards of liability. That is, sites or services that fall within the scope of these definitions are already potentially liable for copyright infringement. All Section 103 of SOPA does is give copyright holders a new tool to more effectively protect their work from commercial misappropriation.

No legitimate purpose

The first definition of a site “dedicated to the theft of U.S. property” under SOPA is one that “is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates” copyright infringement.

The language of this definition mirrors that of the existing provision in the DMCA that prohibits devices that circumvent technological protection measures:

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.2

But in a broader sense, this definition draws upon the theory of liability originally set forth in Sony Corporation v. Universal City Studios — the “Betamax” case. There, the Supreme Court held that the sale of a good “does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.” This holding borrowed from the staple article of commerce doctrine in patent law. A corollary to this doctrine is that “where an article is ‘good for nothing else’ but infringement … there is no injustice in presuming or imputing an intent to infringe.”3

There is recognition in Sony itself that its holding on contributory infringement doesn’t extend to products or services which have no purpose other than infringement. Justice Blackmun said in his dissent, “If virtually all of the product’s use, however, is to infringe, contributory liability may be imposed; if no one would buy the product for noninfringing purposes alone, it is clear that the manufacturer is purposely profiting from the infringement, and that liability is appropriately imposed.” Blackmun’s dissent bore a strong resemblance to an earlier draft of what, at one point, was the majority opinion in Sony.4 The language of that draft bears an even stronger resemblance to SOPA’s definition of a site “dedicated to theft of U.S. property”: “Sony can be liable for contributory infringement only if the Betamax’s ‘most conspicuous purpose’ or ‘primary use’ is an infringing use.”5

Willful Blindness

Willful blindness is sometimes also referred to as “Nelsonian knowledge“, after flag office Horatio Nelson, who fought for the British Royal Navy in the late 1700s and early 1800s. The following story explains why — this particular story also serves as the origin of the phrase “turning a blind eye.”

When some of your great grandfathers were little boys, there was a great war between England and France. Many of the battles were fought at sea. England had good ships and brave sailors and bold captains in plenty; but the best sailor and the boldest captain of them all was Lord Horatio Nelson.

[…] In one battle this brave officer lost an eye. In another he lost an arm; but though he had but one eye and one arm, he was always the first in the fight and the last out. He never would give in. At the battle of Copenhagen two of his ships ran aground. Admiral Parker, who had command of the fleet, thought Nelson had no chance of winning: so he hung out the signal to “stop fighting.”

But Nelson took no heed of it. His one eye danced with glee as the guns roared, and ropes and bits of timber flew through the air. When a shot struck the mast of his own ship and broke it to hits, he only said. “Warm work this! But I wouldn’t lie out of it for all the world!” Some one told him that the signal was up to “stop fighting.”

He laughed: and putting the glass to his blind eye, he said: “I don’t see the signal. Keep mine flying for closer battle. Nail it to the mast.” And he kept on fighting till he won the battle; and for his great victory he was made lord admiral of the fleet.6

The second definition of a site “dedicated to theft of U.S. property” under SOPA is a site where “the operator of the U.S.-directed site is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute” copyright infringement.

The language is taken directly — word for word — from last May’s Supreme Court opinion for Global-Tech Appliances v. SEB. The Court stated that “a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing.”

Global-Tech presented the Court with the question of whether willful blindness can satisfy the knowledge requirement of 35 U.S.C. § 271. However, willful blindness itself is an incontrovertible part of the law. The Court explains:

The doctrine of willful blindness is well established in criminal law. Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances. The traditional rationale for this doctrine is that defendants who behave in this manner are just as culpable as those who have actual knowledge. It is also said that persons who know enough to blind themselves to direct proof of critical facts in effect have actual knowledge of those facts.

The Court notes the wide acceptance of the concept of willful blindness. It begins its survey with a case from 1899 which embraced the idea and traces the doctrine through the 20th century. Today, “every Court of Appeals—with the possible exception of the District of Columbia Circuit, has fully embraced willful blindness, applying the doctrine to a wide range of criminal statutes.”

Finally, the Supreme Court presents a general formulation of willful blindness. “While the Courts of Appeals articulate the doctrine of willful blindness in slightly different ways, all appear to agree on two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.”

The doctrine of willful blindness applies to copyright law just as much as it does to law in general.7

Inducement

The final definition of a site “dedicated to theft of US property” under SOPA is a site operated “with the object of promoting, or has promoted, its use to carry out acts that constitute” copyright infringement, “as shown by clear expression or other affirmative steps taken to foster infringement.”

Like the definition for willful blindness, this definition is taken directly from the Supreme Court. In Metro-Goldwyn-Mayer v. Grokster, the Court stated 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.”

The Court dubs this “inducement”, and it has been recognized as a form of secondary liability within copyright law for decades. In 1971, for example, the Second Circuit said that “one who, with knowledge of the infringing activity induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.”8

Effective recourse

The Stop Online Piracy Act incorporates long standing principles of liability, principles that have applied to service providers and web site operators since the beginnings of the world wide web. The actions that would subject a provider to SOPA’s provisions are the same ones that would subject it to a copyright infringement suit under existing law and are actions that would not be protected under DMCA safe harbors.

What has been missing has been effective remedies against operators and providers that clearly fall within the scope of this liability: sites that have been purposely designed for the sole purpose of infringement, sites whose operators have taken deliberate steps to blind themselves from the use of their sites to engage in wrongdoing, and sites whose operators have actively promoted the use of their sites for piracy. For smaller content producers and individuals especially, this lack of effective recourse has proven damaging.

The goal of SOPA is to remedy this lack of effective recourse, and ensure that creators have “justice and right” freely, fully, and without delay for the injury caused by rogue sites.

Footnotes

  1. Chief Justice Thomas Philips, The Constitutional Right to a Remedy, 78 New York University Law Review 1309 (2003), paraphrasing Arkansas Constitution art. II, § 13; Illinois Constitution art. I, § 12; Maine Constitution art. I, § 13; Maryland Constitution Decl. of Rights, art. 19; Massachusetts Constitution pt. 1, § 11; Minnesota Constitution art. 1 § 8; New Hampshire Constitution pt. I, art. 14; Rhode Island Constitution art. I, § 5; Vermont Constitution ch. I, art. 4; and Wisconsin Constitution art. I, § 9. []
  2. 17 USC § 1201(a)(2). []
  3. Metro-Goldwyn-Mayer v. Grokster, 545 US 913, 932 (2005). []
  4. Jonathan Band & Andrew J.  McLaughlin, The Marshall Papers: A Peek Behind the Scenes at the Making of Sony v. Universal, 17 Columbia – VLA Journal of Law & the Arts 427 (1993). []
  5. Draft Majority Opinion of Associate Justice Harry A. Blackmun at 35 (June 13, 1983). []
  6. The Brave Lord Nelson, Timely Topics, Vol. v. No. 1, pg 286 (Sept. 7, 1900). []
  7. In re Aimster Copyright Litigation, 334 F.3d 643, 650 (7th Cir. 2003), “Willful blindness is knowledge, in copyright law as it is in the law generally”; See also Island Software and Computer Service v. Microsoft, 413 F.3d 257, 263 (2nd Cir. 2005). []
  8. Gershwin Publishing v. Columbia Artists Management, 443 F.2d 1159, 1162. []

Eleven links for 11/11/11…

Give the Gift of Music — Winning essays from Give the Gift of Music’s autumn contest. Incredibly moving stories of how music and lyrics have inspired and helped others.

Fight for the Future — Worcester Mag profiles the “Fight for the Future” group, which is based in Worcester, MA, and debate over rogue sites legislation. Some quotes from yours truly in there.

Everything looks like a nail: the “social music” fallacy — A thought provoking essay from Fingertips Music. “Music is made to be shared? No, it isn’t. Unless you happen to run a large, international social media company. In which case, everything is made to be shared.”

5 ways we ruined the Occupy Wall Street Generation — It’s from Cracked Magazine, but still pretty observant. Number 2: “Creating the idea that entertainment has no monetary value.” The author writes, “See, when piracy hit Hollywood, they didn’t stop funding blockbusters — they stopped funding edgy, creative movies. They’re going with safer and safer bets. Piracy did that. We got that ball rolling, and there is no going back. Instead of Reservoir Dogs, we get Jack & Jill … and you have no idea how deeply sorry I am for that.”

How movie money works — “When you read articles claiming every Hollywood movie loses money, an obvious question arises: ‘Why do they keep making them, then?’” Screenwriter John August answers this question via podcast. Very informative.

Authors and Book Piracy — Literary agent Rachelle Gardner gives authors information and advice about book piracy.

On rogue websites legislation: when you’ve got them by the bucks, their hearts and minds will follow — Chris Castle, writing at the Huffington Post, ponders about opposition to rogue sites legislation from venture capitalists. “The good guys know that there is a difference between innovation and theft — but while this seems obvious, that distinction seems to be lost in a grandiose belief that the positive effects of crime are justified by ‘innovation’ and ‘Internet freedom.’”

The facts on PROTECT-IP and the Stop Online Piracy Act: What are rogue sites? — Sandra Aistars separates fact from fiction about what types of sites are targeted by legislation in the US House and Senate. Says Aistars, “The bills don’t regulate the Internet. They regulate bad actors.”

Counterfeit Military Parts “Threaten the Safety and Mission Readiness of our Armed Forces” — Counterfeit parts, often defective, are a rising problem in defense supply chains. A recent Senate Armed Services Committee held a hearing on the subject, and rogue sites legislation in the House and Senate include provisions to deal with this problem.

Celebrating the Fortieth Anniversary of Justice Breyer’s Article The Uneasy Case for Copyright — The George Washington Law Review recently held a symposium to celebrate current Supreme Court Justice Stephen Breyer’s seminal article written 40 years ago. Six articles, plus an esssay by Breyer himself, are available at the GWLR site. I especially recommend Stan J. Liebowitz’s Is Efficient Copyright a Reasonable Goal?

Drassinower on Copyright Infringement & Compelled Speech — “Copyright infringement is wrong because it is compelled speech.” This academic paper from Abraham Drassinower develops a rights-based justification for copyright as a communicative act. Certainly not light reading, but very interesting.

The online safe harbors for copyright infringement liability, enacted as part of the DMCA in 1998, have been credited for everything from saving the web to removing former Egyptian president Hosni Mubarak from power.

But while there is certainly disagreement over the scope of immunity for online service providers — appeals are currently pending in the Second and Ninth Circuits over many of the details of the provisions, for example — the law is generally considered to strike the appropriate balance where it applies.

Now with the introduction of the Stop Online Piracy Act in the US House, critics are concerned that the bill — specifically Section 103, which creates a notice mechanism for preventing sites “dedicated to theft of US property” from profiting off infringement similar to the notice-and-takedown procedure in the DMCA for removing infringing content uploaded by a service provider’s users — will upend this balance.

The EFF warns that the bill threatens to “effectively eliminate the DMCA safe harbors.” Public Knowledge writes that “SOPA would undermine the DMCA.” The Internet abounds with others raising the alarm over what would become of DMCA safe harbors should SOPA pass.

I had previously written about the need for copyright law to continue to adapt alongside technology. It makes as much sense to freeze the law relating to the online world as it was a decade ago as it does to freeze the technologies that shape the web as they were.

The Stop Online Piracy Act in many ways represents an update to the Digital Millennium Copyright Act — DMCA 2.0 — rather than an end-run around it. The existing safe harbors are good for certain things — user-generated sites and social networking sites to name just two — but not good for others.

Active and Passive Infringement

One major feature of the safe harbors, which illustrates both why they are ineffective against the type of commercial piracy targeted by SOPA and why SOPA enhances rather than eliminates these limitations on liability, is that they are primarily concerned with passive infringement: infringement that occurs through services that is inevitable, but which would be overly burdensome to fully prevent.

The online safe harbors were intended to encourage content owners and service providers to cooperate in order to “detect and deal” with online infringement.  They were also meant to give “greater certainty to service providers concerning their legal exposure for infringements that may occur in the course of their activities.”1 Note the passive “infringements that may occur” — the safe harbors weren’t made for service providers who set out to enable or facilitate infringement.

Perhaps the most popular safe harbor is the one laid out in 17 USC § 512(c), which immunizes service providers from liability for “Information residing on systems and networks at direction of users.” The text of 512(c) supports the idea that the safe harbor was designed for inadvertant and incidental infringement. It shields service providers for copyright infringement liability that arises only “by reason of the storage at the direction of a user of material.” The safe harbor does not apply if the service provider has actual knowledge that material or activity using the material infringes copyright, or if the provider receives a directly attributable financial benefit where it has the right and ability to control infringing activity.

It shouldn’t be controversial to say the DMCA safe harbors were crafted as a shield for service providers, not as a sword against creators and copyright holders. The notice and takedown procedure in Section 103 of the Stop Online Piracy Act thus builds upon the originally intended goals of the DMCA to target only those sites that actively set out to benefit from third-party infringement.

The provisions can only be used against sites that are “primarily designed or operated” to offer services in a way that “engages in, enables, or facilitates” copyright infringement; sites that take “deliberate actions to avoid confirming a high probability” that the site is used to carry out infringement; or sites that promote their use to engage in infringement “as shown by clear expression or other affirmative steps taken to foster infringement.”

Taken as a whole, the bill can only be used against sites that have purposefully taken actions to profit off piracy, actions that are well beyond the scope of the DMCA safe harbors.

DMCA safe harbors remain alive and well

This is not a departure from existing law. The third definition of a “site dedicated to theft of US property” repeats word-for-word the Supreme Court’s articulation of inducement — “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.” [Emphasis added.]2 And as one court noted, “inducement liability and the Digital Millennium Copyright Act safe harbors are inherently contradictory. Inducement liability is based on active bad faith conduct aimed at promoting infringement; the statutory safe harbors are based on passive good faith conduct aimed at operating a legitimate internet business.” [Emphasis added.]3

It’s also important to keep in mind that nothing in the bill negates the safe harbors. A copyright holder can only proceed in court against a site after it has sent a notice to an advertising or financial transaction provider and either those providers failed to comply with the notice or the site operator sends a counter-notification. Even then, the court is limited solely to granting an injunction against the site to cease and desist from doing further any of the actions described above that made it subject to a notification in the first place.4

In practice, the DMCA notice and takedown provisions are ineffective against site operators who take an active role in facilitating, promoting, or turning a blind eye toward the use of their sites for infringing copyright. Many creators would find it a full time job to send notices against these types of sites, and most find that specific content removed quickly returns elsewhere. This results in sites playing a game of “catch me if you can” while continuing to profit off the work of others. And they are especially ineffective against sites that are directed at and easily accessible by US residents but located outside the US and dismissive of US law.

Rogue sites sidestep the rule of law by using the DMCA safe harbors to shield themselves from liability while they take deliberate steps to profit off of piracy. With the Stop Online Piracy Act, the US House is hoping to truly secure the exclusive rights of creators; doing so not only protects creators but also ensures that the development of innovative and sustainable services for consumers to access and enjoy media and content is not hamstrung.

Footnotes

  1. Final Conference Report on H.R. 2281, House 105-796, pg. 72 (Oct. 8, 1998). []
  2. MGM v. Grokster, 545 US 913 (2005). []
  3. Columbia Pictures v. Fung, CV 06-5579 SVW, Order granting plaintiff’s motion for summary judgment on liability (CD Cali. Dec. 21, 2009). []
  4. Which make the claims that SOPA would lead to increased litigation, “shakedowns” of new services, or a boon for trial lawyers absurd: copyright holders already can sue a site for copyright infringement, and if successful, can collect monetary damages. A cause of action that is much narrower than copyright infringement, for which only limited injunctive relief is available, isn’t exactly attractive to someone looking to make a buck. []

Return of the AmeriKat I: Berne takes a bite out of the US Constitution — The Supreme Court’s opinion in Golan v. Holder, which was argued last month, likely won’t be out for several months. In the meantime, IPKat offers a substantial look at the background and issues raised in the case.

Where are all those mashers and mixers we keep hearing about? — One of the central tenets of some “copyfighters” is that remixing and mashing up somehow represents the new paradigm of culture, replacing “traditional” notions of authorship. The takeaway being that corporations like Google should be given free reign to profit off the aggregation of such remixes and mashups without any regard to the original creators. John Degen points to a recent study that reveals that, contrary to this tenet, only 12% of the respondents said they engage in remixing.

Public Safety Community Overwhelmingly Supports Rogue Sites Legislation — The Fraternal Order of Police and the International Association of Fire Fighters join an array of public safety organizations backing legislation aimed at online copyright infringement and counterfeit goods. Counterfeit safety equipment is a very real public safety issue.

Copyright Small Claims? — The US Copyright Office has recently begun seeking comments on possible remedies for small copyright claims. Attorney David Lizerbram takes a deeper look at the issue.

Does Culture Really Want to be Free? — Salon sits down with Robert Levine to discuss many of the issues he raises in his new book Free Ride. Full of choice quotes like this one: “I don’t think anyone is going to go to hell for downloading ‘Iron Man 2.’ But saying you have the right to download it is also pretty silly.”

5 Steps to Understanding Bill C-11 and “Digital Locks” — As Canada moves toward reforming its copyright law, concern has been raised over provisions dealing with technological protection measures. James Gannon explains what these provisions do and why they are needed.

The Entire $1.65B Acquisition of YouTube Took a Week, Was Negotiated at Denny’s — “Schmidt basically promised the founders unlimited resources in return for an “infinite amount of happy users” and an “infinite amount” of good content.” (Sadly, Schmidt could only promise a finite amount of Moons Over My Hammy.)

More Than Just a Formality: Instant Authorship and Copyright’s Opt-Out Future in the Digital Age — UCLA law student and friend of the site Brad Greenberg penned this forthcoming law review article about proposals to bring back copyright formalities in the digital age. Ultimately, he concludes that “returning to an opt-in copyright system via formalities would actually disincentivize authors who are presently motivated by copyright.”

Harold Camping has famously predicted the end of the world three times.

His first prediction — September 6, 1994 — came and went with little fanfare. His second attempt at setting a date for the apocalypse was far more successful. The Internet was abuzz as May 21, 2011 approached. But again, the world did not end.

Undeterred, Camping checked his math and announced a new date. October 21, 2011, would mark the final day of everything we know, for real this time. Wrong once again, the former leader of the California-based Family Radio has apparently retired from his role as apocalyptic soothsayer.

Apocalypse Now?

I mention Camping because a similar phenomenon occurs in the copyright realm. It seems that whenever new legislation is introduced, there are those who are ready to predict that if it passes, it will surely result in the demise of the Internet, or innovation, or some other thing we hold dear.

You can see this in action by taking a look at some of the headlines in response to the US House’s introduction of the Stop Online Piracy Act (SOPA):

This are just a sampling of the dire predictions about the epic catastrophes SOPA would bring if passed — the SOPAcolpyse, if you will.

But, like Camping, copyright’s skeptics have made these predictions before.

Sometimes they are done with striking consistency. Sci-fi author Cory Doctorow says SOPA “might be the worst-ever copyright proposal in US legislative history.” Not one to make use of hyperbole sparingly, Doctorow also declared a 2005 French proposal the “worst copyright law in Europe”; in 2007, it was an EU proposal that would surely be the “worst copyright law in the world!”; little more than seven months later, he stated that a Canadian legislative proposal “promises to be the worst copyright law in the developed world.”

The same goes for copyright activist Lawrence Lessig, a big proponent of the “break the internet” line over the years. Talking in 2003 about his idea for a compulsory license that would cover P2P activity, he said, “We have to buy [music and movie companies] off, so they don’t break the Internet in the interim.” That same year on PBS’s NewsHour with Jim Lehrer, it was DRM: “The response that the music industry has insisted on would be technologies that would essentially break the Internet.” Fast-forward to 2008, and Lessig, speaking at an event hosted by Harvard’s Berkman Center, Google, and the Family Online Safety Institute, again cautions against letting copyright law “break the Internet.”

The Sky is Falling

The doomsday scenarios began on day one. In February 1993, the Clinton administration put together the Information Infrastructure Task Force to study the advancement and development of information technologies, including the burgeoning Internet and infant web. Part of their mandate was examining the intersection of copyright law, digital technologies, and networked communications and exploring what changes were necessary.

The Working Group on Intellectual Property Rights released its report, Intellectual Property and the National Information Infrastructure (the “White Paper”), in September of 1995, sparking the first wave of the “parade of horribles” that would accompany copyright reform from then on out.

Copyright scholar Pamela Samuelson penned an article in Wired magazine that gave a laundry-list of reasons to oppose legislation proposed after the White Paper was released: “your online service provider will be forced to snoop through your files”, it would “transform the emerging information superhighway into a publisher-dominated toll road”, it would “eliminate fair-use rights”, “it can be construed as outlawing many activities widely believed to be lawful.”

Others concurred. “The bill in Congress now, critics say, goes much too far … the Internet’s potential as a source of public education and free expression could be crippled … [it] could instead turn out to be the executioner of the Internet’s real promise.”

The initial legislation evolved to become the Digital Millennium Copyright Act (DMCA), which became law in 1998. Some still weren’t convinced the days of a free Internet weren’t numbered. A writer in the Berkeley Technology Law Journal predicted shortly after the DMCA became law that:

The post-DMCA Internet will feature even more of those damnable “404 – file not found” messages than it currently does. As media companies expand their demand-letter operations from commercial “piracy” to include negative commentary, transformative uses, and what they deem to be a little bit too much sampling or quotation, the ranks of the independent Internet publishers will be radically depopulated.

Ten years later, many of those same critics couldn’t praise the DMCA enough. Wired magazine calls it “the law that saved the web.” “Blogs, search engines, e-commerce sites, video and social-networking portals are thriving today thanks in large part to the notice-and-takedown regime ushered in by the much-maligned copyright overhaul.”

A Decade of Falling Sky

Since the DMCA, most copyright legislation has elicited similar responses.

The No Electronic Theft (NET) Act was passed in 1997, expanding the definition of “financial gain” in criminal copyright infringement and increasing criminal penalties. Among the opponents of the bill was the Association for Computing, which raised concerns that it would restrict dissemination of science, criminalize the transfer of information protected by fair use, and chill free speech in research institutions. Others warned it would greatly expand the scope of criminal infringement; “aggressive prosecutors would abuse their discretion to win convictions” or “bring weak felony cases to get quick misdemeanor plea bargains.”1

None of these concerns materialized. As Eric Goldman concludes after examining the five years following the Act, “the prosecutions to date appear generally consistent with Congress’ objectives for the Act.” None of the convictions could be fairly characterized as “de minimis“, none of the defendants could have raised a legitimate fair use defense, and universities and educators remained untouched by efforts under the Act.2

The Artists’ Rights and Theft Prevention (ART) Act of 2005 added provisions to criminal copyright law that expressly targeted “camming” and distribution of pre-release commercial works. Critics called it draconian, foresaw an uptick in prison sentences, and decried a lack of fair use in the Act. The provisions have instead been used judiciously; prisons have not been filled with cammers and leakers.

2008 brought the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act, a broad bill that amended civil and criminal provisions of the Copyright Act and created the Intellectual Property Enforcement Coordinator position, currently held by Victoria Espinel.

The response? Michael Seman of NetSherpa wrote, “The passing of the PRO-IP act is the latest in a string of actions taken by the U.S. Government that result in further constricting the free exchange of ideas,” one that “means we’re close to losing the flow of culture that the Internet so greatly facilitates.” Mike Masnick said, “All it will actually serve to do is to limit more creative forms of expression and much more innovative business models from being allowed to thrive.” And noted copyright scholar William Patry remarked, “The dangers in the new Zero Tolerance to copyright go far beyond the individuals swept within its net, although that is bad enough: the Zero Tolerance approach threatens respect for law itself.”

Grokster pt. 2

Legislative proposals aren’t the only things that brings out the freedom and innovation pessimists.

The Supreme Court issued its decision in Metro-Goldwyn-Mayer Studios v. Grokster in 2005, holding that “one who distributes a device with the object of promoting its use to infringe copyright” may be liable for the resulting infringing acts by its users. In its amicus brief to the Grokster court, the National Venture Capital Association warned that a rule holding Grokster liable would “have a chilling effect on innovation.”

However, since Grokster:

[V]enture capital in the media and entertainment sectors grew faster than the rest of the VC market in four out of the six years. By comparison, in the five years before the Grokster decision, growth was lower in four of them. From 2000 to 2004, media and entertainment venture capital accounted for about 4.6 percent of total VC dollars invested. From 2006 through 2010, media and entertainment VC dollars grew to 7.1 percent of total VC dollars.3

This year alone, in a down economy, music-based startups have received nearly half a billion dollars in funding. And some of these startups are far more exciting than the mere hoarding of music files that Grokster and other P2P services offered.

Little difference that makes though. In a letter to Congress on the proposed PROTECT IP Act, a group of venture capitalists offer the same warning: the bill would “throttle innovation” and “chill investment.”

It’s the End of the World as We Know It

Despite this history, critics of the Stop Online Piracy Act promise that the bill spells the end of innovation, culture, freedom, and the very Internet itself, for real this time.

It won’t.

In the long term, the public benefits the most when both creators and innovators succeed. And our laws should continue to adapt to make sure that happens.

Footnotes

  1. Eric Goldman, A Road to No Warez: The No Electronic Theft Act and Criminal Copyright Infringement, 82 Oregon Law Review 369 (2003). []
  2. Id. 392-96. []
  3. Greg Sandoval, VCs to Congress: Antipiracy will ‘chill’ tech investment, CNet, June 24, 2011. []

Creators are often told they have to learn how to “compete with free” because of online piracy. To some extent, this is true, but certainly not a new idea — piracy existed way before the Internet became so prominent in our lives.1 Creators have been adapting, and continue to adapt, to the realities of digital technology — through a combination of new business models, technology, and carefully constructed legislation.

But what creators shouldn’t have to do is compete with paid. That is, the law should provide little leeway for those who profit off the infringement of the core exclusive rights protected by copyright law for centuries — rights that the US Constitution empowers Congress to secure to authors in order to promote the progress of the useful arts and sciences for all of society.

Most online firms recognize the value of copyright and creative works — rogue sites, however, believe that all of that value should go directly into their own bank accounts. Recognizing the ease of doing this and the harm it causes to creators, consumers, and the economy in general, Congress has pursued legislation addressing the problem of rogue sites: the PROTECT IP Act was introduced in the Senate last May, and the Stop Online Piracy Act (SOPA) in the House this past week.

Some of the early criticism of the House bill has centered around Section 103 of SOPA, which would provide a system for notifying advertising and payment providers of Internet sites that are dedicated to piracy and using their services.

The EFF predicts “we’re going to see a flurry of notices anyway – as we’ve learned from the DMCA takedown process, content owners are more than happy to send bogus complaints.” Larry Downes, writing on behalf of TechFreedom, claims the bill is “drafted to ensure maximum litigation.” And Gary Shapiro, president of the Consumer Electronics Association, notes “the potential for abuse by the notoriously litigious content industry is clear.”

If you read the bill, however, it is difficult to see these predictions coming true. Section 103 is appropriately called a “Market-based system to protect U.S. customers and prevent U.S. funding of sites dedicated to theft of U.S. property” — the market will naturally mitigate against any flurry of notices. The robust procedures envisioned in the bill, along with the penalties for abusing the notice process, also make it an unlikely candidate for abuse.

The Market-based System

The notification system under SOPA is similar to the one provided by the DMCA where content owners can notify service providers of infringing material uploaded by users. By comparing the two notification processes, we can see that, contrary to early criticisms, the notification process under SOPA is less likely to be abused than the DMCA.

A service provider has an incentive to remove content when it receives a DMCA takedown notice. Expeditiously removing content once it is notified preserves its safe harbor from any liability it might face. There is also little downside to removing content for the service provider. The DMCA shields the service provider from any legal claims from a user whose content was removed.2 And, in most cases, any subsequent business repercussions of content takedown are slight — at worst, a user of a free service takes his business elsewhere.

While an ad provider or payment processor may, in some cases, be liable for contributing to copyright infringement,3 this requires a rare set of circumstances.4 Most ad and payment service providers, then, do not have the same additional legal incentives to comply with SOPA takedowns as online service providers have to comply with DMCA takedowns.

They also don’t have business incentives to comply with bad faith notices under SOPA. Each site they are ordered to block is, presumably, a paying customer or revenue source. I doubt many businesses would be happy to rubber-stamp any and every order that cuts into their bottom line without some way of making sure the site at issue is one that genuinely falls within the scope of this law.

Due Process

The bill provides a fair process for resolving disputes between content owners and ad and payment providers when they disagree about whether a particular site is dedicated to the theft of US property.

When an ad or payment provider receives a notice under SOPA, one of three things may happen: (1) the identified site files a counter-notice, (2) no counter-notice is filed and the provider complies with the notice and prevents its service from being used by the infringing site, or (3) no counter-notice is filed but the provider fails to comply with the original notice.

In the first and third scenarios, absolutely nothing happens to either the identified site or provider unless the copyright owner chooses to pursue further. In those cases, a copyright owner is limited to filing an action against the identified site’s operator, or the site itself if the operator is not locatable or resides outside the US.5

When an action is commenced, the court may issue an injunction — governed by the Federal Rules of Civil Procedure, the same rules that govern injunctions in any federal civil lawsuit — against the site owner to cease infringing activity. The copyright owner may then serve court orders against ad and payment providers providing services to the identified site.

When one of these providers gets such an order, it must use “technically feasible and reasonable measures” to prevent its services from being used by the identified site, but once it has put these measures into place, it has no duty to monitor.

If the provider still refuses to comply, the copyright owner may, upon a showing of probable cause that the provider has refused to comply, request further action by the court. Under the statute, the court would issue an order to show cause to the provider. If the provider cannot show cause why it has failed to comply, the court may order it to comply, or, in the case of a knowing and willing refusal to comply, it may “impose an appropriate monetary sanction”.

These are the only legal remedies available to a copyright owner under this section of SOPA. Copyright owners cannot shut down a site, they cannot collect monetary damages (any monetary sanctions go directly to the court). Success under this market-based system is getting an ad or payment provider to prevent its services from being used by a site dedicated to the theft of US property to profit off that theft.

Little room for mistakes

Under the DMCA, a content owner who “knowingly materially misrepresents” that content is infringing is liable for any damages, attorney fees, and costs incurred by the user as a result of the content being taken down.6 One of the few cases that dealt with this part of the DMCA involved the infamous takedown of the dancing baby video on YouTube. In 2008, the Northern District Court of California concluded that a takedown notice requires a “good faith consideration of whether a particular use is fair use”; otherwise, a content owner may be liable for misrepresentation.7

Even so, as the court pointed out, the amount of damages a content owner would face for such a misprepresentation would likely be “nominal.” Having a video removed from YouTube for a few days may be annoying, but provable financial damage? Probably not much.8

SOPA provides a similar provision against misrepresentation in notices — but while the language mirrors that in the DMCA, there are two practical realities that make it different.

First, a good faith effort to determine that an entire site is “dedicated to theft of US property” under the definition of the bill requires considerable more effort than determining whether a single file is infringing. The notification itself requires substantially more investigation than a DMCA notice. Under the DMCA, a copyright owner need only identify what work is being infringed and the content that is infringing.9 Under SOPA, the copyright owner must show, among other things, “specific facts to support the claim that the Internet site, or portion thereof, is dedicated to theft of U.S. property” and “clearly show that immediate and irreparable injury, loss, or damage will result” to the copyright owner in the absence of timely action; “Information reasonably sufficient to establish that the payment network provider or Internet advertising service is providing payment processing or Internet advertising services for such site”; and identification of evidence that indicates the site is US-directed.

Second, the risk of making a material misrepresentation is much higher. The operator of a site whose sources of income have been threatened is far likelier to push back than a user whose video was taken down. And unlike the nominal damages present in a DMCA takedown, the loss of ad revenues and credit card transactions because of a bad faith takedown could add up.

No law is immune from abuse, and copyright law shouldn’t be an exception. But the penalties for erroneous notices under SOPA have teeth, the procedures and remedies involved don’t encourage over-litigiousness. These provisions strike a proper balance that should prove to be effective against rogue sites and protective of good faith actors.

Taking the Profit out of Piracy

The provisions of Section 103 of the Stop Online Piracy Act will certainly continue to evolve during the legislative process; if SOPA and the PROTECT IP Act are successfully voted on, they will need to be reconciled before becoming law.

But these provisions represent a good start for creators who have long noted the ease (and injustice) of profiting from online piracy and escaping liability. They are aimed in theory at rogue sites, and in practice will be used against only rogue sites. Safeguards are built into the bill to limit abuse.

Web services who are acting legitimately and legally should welcome rogue sites legislation because effective protection of creative labor is vital to a functioning online marketplace, and a functioning online marketplace benefits us all.

Footnotes

  1. See, for example, Martin Luther’s Warning to the Printers, Wittenberg (1541): “Avarice now strikes / and plays this knavish trick on our printers whereby others are instantly reprinting [our translation] / and are thus depriving us of our work and expenses to their profit, / which is a downright public robbery / and will surely be punished by God / and which is unworthy of any honest Christian.” []
  2. 17 USC § 512(g). []
  3. See Warner Bros. v. Triton Media, Consent Judgment, No. CV 10-6318-GW (CD Cali, Oct 27, 2010), defendant liable for “providing advertising consulting and referrals for, and/or providing other material assistance to” infringing websites. []
  4. See Perfect 10 v. Visa International, 494 F.3d 788 (9th Cir. 2007), payment processor not liable for copyright infringement for processing credit card transactions on infringing sites. []
  5. This dual in personam/in rem style cause of action is reminiscent of the one in the Anticybersquatting Consumer Protection Act, see Caesars World v. Caesars-Palace.com, 112 F.Supp.2d 502 (ED Va 2000) for a discussion of the constitutional propriety of the Act. []
  6. 17 USC § 512(f). []
  7. Lenz v. Universal Music Corp., 572 F.Supp.2d 1150, 1156 (ND Cali 2008). []
  8. See Ben Sheffner’s discussion of the 512(f) damages provision in Lenz for more on this. []
  9. 17 USC § 512(c)(3). []

“The bill in Congress now, critics say, goes much too far … the Internet’s potential as a source of public education and free expression could be crippled … [it] could instead turn out to be the executioner of the Internet’s real promise.”1

The bill referred to above is not the House rogue sites legislation unveiled this week, but the DMCA — the quote was written over 15 years ago. You could say today’s criticisms are simply “remixes” of the same criticisms heard every time new copyright legislation is proposed, but remixes involve at least some originality.

In other news …

Protect IP Act: Minorities Who Produce It, Should Get Paid For It — Dorrissa D. Griffin highlights a little-discussed aspect of copyright. Though content theft affects all creators, minorities are hit especially hard. Black artists, especially musicians, have historically struggled to be fairly compensated for their creative contributions. Griffin explains, “Fortunately, the recording industry has greatly reformed its practices, making it an exemplar of equal opportunity.  However, this has not been the case in the online world, where today’s Internet pirates simply copy and use copyrighted material without permission or remorse. Minority artists are impacted the most by this kind of theft because minority artists, writers and filmmakers often have little wealth (the wealth gap being as vast as it is) – except for their intellectual property. And once that gets stolen, nothing is left.”

Priorities and Special Projects of the United States Copyright Office October 2011 – October 2013 (PDF) — The US Copyright Office this week released its plan for the next 2 years, outlining 17 priorities and 10 special projects. Ambitious and commendable.

Backbeat: Robert Levine, David Carr Trade (Friendly) Barbs Over Levine’s New Book, ‘Free Ride’ — Levine’s Free Ride: How Digital Parasites are Destroying the Culture Business, and How the Culture Business Can Fight Back hit the US stands this week. Billboard shares this interesting discussion between the author and NY Times columnist David Carr at a recent panel discussion.

The Role of the Record Producer and Why We Need PROTECT IP/Stop Online Piracy Act by Luke Ebbin — MusicTechPolicy provides this guest post from record producer Luke Ebbin. Ebbin notes that the “new” music business world is an exciting and promising one for both musicians and fans. But in order to ensure its promises, “a fair and equitable market-based solution needs to be developed and enforced to protect the rights of the owner of the master recordings.”

What is so special about music? — I’ve been following researcher Paul Lamere’s work on music recommendation over the past several years, finding it fascinating. Here, he talks about the things that separate music from other forms of media, making it difficult to apply the same techniques for recommending, say, books to recommending music.

Google’s Spreading Tentacles of Influence — Businessweek reports on Google’s ramping up of traditional lobbying — the corporation hired its 16th lobbyist firm this week and has spent over $5 million on lobbying so far this year — as well as its “preferred way” of spreading money to public interest groups. Good article, though they missed an opportunity with the metaphor in the title — I would have used something that involves crawling rather than spreading.

Footnotes

  1. Gary Chapman, Copyright Bill Would Infringe on the Internet’s Real Promise, Los Angeles Times (May 20, 1996). []

Yesterday, a dozen Democrat and Republican House members introduced the Stop Online Piracy Act. The bill, H.R. 3261, targets rogue sites that infringe on US intellectual property rights.

Full text of the bill.

Debate over the Stop Online Piracy Act has already hit full throttle, but I’ll leave that for another day.

Today I want to “walk through” the bill so that readers and creators know exactly what is in it and what to expect if it passes. I’ve tried to keep the legalese to a minimum here. This is not meant to be a comprehensive look at every bit and piece of the bill, but hopefully I’ve hit all the major points.

If you look at the text of the bill, you’ll notice that there are several sections I haven’t mentioned below — provisions that increase criminal penalties for trafficking in inherently dangerous counterfeit goods, for example. I don’t mean to suggest these aren’t as important as the ones directly related to copyright enforcement.

Attorney General actions against foreign infringing sites

The first section of the bill applies only to foreign infringing sites — sites where the domain name is not registered within the US. The Attorney General may commence an action under this section if one of these sites is directed at the US (meaning it is used by US users, and the owner of the site would be subject to personal jurisdiction in a traditional infringement lawsuit), the owner of the site is committing or facilitating a criminal copyright offense, and the site would be subject to seizure if it were a domestic site (like the domains seized by ICE over the past year).

This suit would then be filed against the site operator personally. If the operator cannot be found or doesn’t live in the US, the Attorney General may file an in rem action against the site itself. The statute also details how notice of the suit must be served.

Once begun, the AG files for a temporary restraining order, a preliminary injunction, or a permanent injunction against the site, ordering it to stop its infringing activites. A court would issue these injunctions under the same rules that govern every federal lawsuit — with both parties presenting their case (except in the case of a temporary restraining order, which can be issued ex parte but is limited to 14 days) and the injunction issuing only if the AG meets its burden. A preliminary injunction, for example, requires establishing likelihood of success on the merits and irreparable harm (among other factors).

The AG can then, after approval by the court, serve court orders on specified entities, requiring specified actions by each entity. In all cases, the entities are only required to take “technically feasible and reasonable measures” to comply with the orders.

(1) An online service provider must prevent access by its subscribers to the infringing site, including preventing the domain name from resolving to the site’s IP address. The service provider is not required to modify its “network, software, system, or facilities” in order to do this, and its DMCA safe harbors are not affected.

(2) A search engine must prevent the infringing site from being served as “a direct hypertext link”.

(3) A payment network provider must prevent or suspend transactions between US customers and the infringing site from completing. The payment network provider has no continuing duty to monitor transactions after it has taken these steps.

(4) An Internet advertising service is required to prevent providing advertising services to or relating to the infringing site. Like payment network providers there is no continuing duty to monitor once the advertising service has put its measures into place.

That’s it.

What happens if one of the entities above doesn’t comply with the order? The AG can bring an action for an injunction against the provider to order it to comply.1 The failure to comply must be knowing and willing, and this injunctive relief is the only legal remedy available here.2

In addition, in this action, entities are given a defense against failure to comply if they can show they do “not have the technical means to comply with this subsection without incurring an unreasonable economic burden.”

Finally, any of the above individuals and entities may move to modify or vacate the orders at any time after they are issued. The court may grant this relief if it finds that the site at issue has stopped, or never was, infringing, or if “the interests of justice otherwise require” it.

DMCA 2.0

This next section borrows the notice-and-takedown procedure of the DMCA and applies it to preventing profit from piracy.

Both foreign and domestic US-directed sites are subject to this section, but only if they are “dedicated to theft of US property.” The section defines this as either (1) a site that “is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates” copyright infringement or circumvention of technological measures; or, (2) a site where the operator has either remained willfully blind to a high probability of infringing acts occuring on the site or induced infringement through the site.

A copyright holder that has been harmed by one of these sites may serve a notice on payment network providers or Internet advertising providers that service the site. When a provider receives a notice, it is required to take the same technically feasible and reasonable measures described in the first section or reply with a counter-notification disputing the notice. As with the DMCA, copyright holders are liable for any monetary damages that may occur if they knowingly and materially misrepresent that a site is dedicated to the theft of US property.

If a provider serves a counter-notification or fails to comply with a notice under this section, the copyright holder can initiate an action very similar to the one the Attorney General can initiate under the first section of the bill. Court orders in this section are limited to the advertising and payment providers involved.

Commercial Streaming

Sorry, Justin Bieber is still not going to jail under the House’s version of the Commercial Felony Streaming Act included in SOPA. The language is largely the same, but there is one key difference.

To be convicted for criminal copyright infringement, the government must prove beyond a reasonable doubt that the defendant acted willfully. Most courts have interpreted willfulness strictly: an intentional violation of a known legal duty. But a small number of courts have instead adopted a lower standard: the intent to do the acts at issue without knowledge that they constituted infringement.3 The lower standard has caused some worry, especially when it comes to criminal copyright statutes applied to online infringement.

SOPA takes care of this. It says:

Any person acting with a good faith reasonable basis in law to believe that the person’s conduct is lawful shall not be considered to have acted willfully for purposes of the amendments made by this section. Such person includes, but is not limited to, a person engaged in conduct forming the basis of a bona fide commercial dispute over the scope of existence of a contract or license governing such conduct where such person has a reasonable basis in law to believe that such conduct is noninfringing. Nothing in this subsection shall affect the application or interpretation of the willfulness requirement in any other provision of civil or criminal law.

The bill offers a lot to digest, and I’ll be sure to have more analysis in the coming weeks. My initial thoughts: this is a well-crafted bill, providing effective remedies against the narrow problem of rogue sites. Anyone who makes a living creating knows it’s impossible to stop all piracy — that’s been true since the beginning of copyright — but at the very least, our laws should be able to reliably prevent individuals and companies from profiting off of online piracy. And this bill promises to be a big step in that direction.

The House Judiciary Committee is scheduled to hold a hearing on the Stop Online Piracy Act on November 16, 2011.

Footnotes

  1. Under this section, the AG can also bring an action for injunctive relief prohibiting any entity that has knowingly and willingly offered a product or service designed or marketed for circumventing the measures taken by the above entities. []
  2. A failure to comply with any injuction issued may result in contempt of court. []
  3. Prosecuting IP Crimes Manual. []

Just a quick note today to point readers to Robert Levine‘s wonderful Free Ride: How Digital Parasites are Destroying the Culture Business, and How the Culture Business Can Fight Back, which is available in the US today. (And if you haven’t already, be sure to check out his blog.)1

I previously wrote a more thorough review of Free Ride on this site, but to sum up: the book offers a well-researched look at copyright issues in the digital age over the past decade and a half. The reality is a far cry from the narrative you often hear from copyright’s critics — one of greedy dinosaurs who failed to adapt their business models and instead relied on ever-stronger enforcement.

The difference between that narrative and reality is not a historical accident, as Levine shows. The businesses and industries that benefited the most from weakened copyright protection and devalued digital content facilitated and funded many of the civil and academic proponents of those same ideas.

I think Free Ride is a must-read for creators, policy makers, and copyright wonks. It’s also entertaining, and should interest anyone who’s gotten into debates over file-sharing, digital media, or the future of the content industries.

Footnotes

  1. I apologize if this seems like a shameless plug. Rob’s a friend, and I helped him with some legal research for the book. But I’m not getting paid to talk it up — I just think it’s a great book. []

By now, you’ve probably heard of the “Free Bieber” Campaign. Since it was announced, it has been widely reported on many blogs and news sites, including Hillicon Valley.

According to the campaign:

A new bill in Congress makes posting a video containing any copyrighted work a felony– with up to 5 years in prison.

But wait… didn’t Justin Bieber get famous by posting YouTube videos of himself singing copyrighted R&B songs? Yep.
If this bill passes, he could get 5 years in jail.

The rest of the website (store coming soon!) is filled with the usual diatribes against the mean record labels and movie studios.

But what makes this campaign truly absurd is that it is completely wrong about what this new bill will do. Not wrong in a “we’ll agree to disagree” sense, but wrong about the plain meaning of the text of the legislation.

The bill referred to hear is S.978, the Commercial Felony Streaming Act, introduced in the Senate last May. I wrote about the bill, what it does, and why it’s needed several times in the past (see Fears of Felony Streaming Bill Overblown and Commercial Felony Streaming Act FUD).

The individuals behind the “Free Bieber” campaign are either completely ignorant about how copyright law works or being deliberately disingenuous  to stir up opposition against a minor, albeit judicious, piece of legislation. Anyone who uploads video to YouTube faces no increased risk of criminal penalties if this bill passes.

Justin Bieber is not going to jail.

Uploading Video is Not a Public Performance

Copyright is made up of several, discrete rights: the right to reproduce, distribute, prepare derivative works, and publicly perform (or display) a work.1 The Commercial Felony Streaming Act only concerns the public performance right. It aligns the maximum criminal penalties for infringement of public performances to the equivalent, already existing penalties for infringement of reproduction and distribution of copyrighted works.

It should first be pointed out that a “performance” requires two parts: an active and a passive component, the performer and the audience. “Broadcasters perform. Viewers do not perform.”2 Only a performer is liable for an unauthorized public performance; viewers and listeners are not infringers in this situation.3 So someone who merely watches or listens to unauthorized streaming media is not infringing on the copyright owner’s public performance right.4

The key to understanding public performance is pinning down what activity constitutes a performance and who is acting as the performer. (And don’t confuse the legal definition of a “performance” within copyright law with the every day meaning of the word.)

You may recall that earlier this month the Supreme Court denied cert in US v. ASCAP. That lawsuit provides a good starting point for learning how to answer these questions. ASCAP had argued that a download of a music file is not only a reproduction but also a public performance of the work. Both the District and Circuit Courts rejected this argument.

Said the 2nd Circuit:

The ordinary sense of the words “recite,” “render,” and “play” refer to actions that can be perceived contemporaneously. To “recite” is “to repeat from memory or read aloud esp[ecially] before an audience”, to “render” is to “say over: recite, repeat,” and to “play” is to “perform on a musical instrument,” “sound in performance,” “reproduce sound of recorded material” or to “act on a stage or in some other dramatic medium.” All three actions entail contemporaneous perceptibility.

These definitions comport with our common-sense understandings of these words. Itzakh Perlman gives a “recital” of Beethoven’s Violin Concerto in D Major when he performs it aloud before an audience. Jimmy Hendrix memorably (or not, depending on one’s sensibility) offered a “rendition” of the Star-Spangled Banner at Woodstock when he performed it aloud in 1969. Yo-Yo Ma “plays” the Cello Suite No. 1 when he draws the bow across his cello strings to audibly reproduce the notes that Bach inscribed. Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener.

The final clause of the § 101 definition of “to perform” further confirms our interpretation. It states that a performance “in the case of a motion picture or other audiovisual work, [is] to show [the work's] images in any sequence or to make the sounds accompanying it audible.” The fact that the statute defines performance in the audio-visual context as “show[ing]” the work or making it “audible” reinforces the conclusion that “to perform” a musical work entails contemporaneous perceptibility. ASCAP has provided no reason, and we can surmise none, why the statute would require a contemporaneously perceptible event in the context of an audio-visual work, but not in the context of a musical work.

The downloads at issue in this appeal are not musical performances that are contemporaneously perceived by the listener. They are simply transfers of electronic files containing digital copies from an on-line server to a local hard drive. The downloaded songs are not performed in any perceptible manner during the transfers; the user must take some further action to play the songs after they are downloaded. Because the electronic download itself involves no recitation, rendering, or playing of the musical work encoded in the digital transmission, we hold that such a download is not a performance of that work, as defined by § 101. [Emphasis added].5

Though it was specifically addressing downloading a file, the reasoning applies just as well to uploading a file. And, in fact, the District Court spoke more directly, saying “Although we acknowledge that the term ‘perform’ should be broadly construed, we can conceive of no construction that extends it to the copying of a digital file from one computer to another in the absence of any perceptible rendition.”6 Other courts seem to agree: “Napster users who upload file names to the search index for others to copy violate plaintiffs’ distribution rights. Napster users who download files containing copyrighted music violate plaintiffs’ reproduction rights.”7 “Downloading and uploading copyrighted files from a peer-to-peer network constitutes, respectively, reproducing and distributing copyrighted material in violation of 17 U.S.C. § 106.”8

Uploading a video to YouTube, then, may infringe on someone else’s reproduction or distribution rights, but it doesn’t infringe on someone else’s public performance rights.

We can compare users who upload to YouTube to record labels who provide songs to radio stations. Most commonly, record labels and recording artists control only the rights to the sound recording, while music publishers and songwriters control the rights to the underlying song.9 A recording artist needs permission from a songwriter to reproduce a song onto a sound recording — generally called a “mechanical license.” A radio station needs permission to perform the song on air10 — permission that is granted through blanket licensing by Performance Rights Organizations (in the US: ASCAP, BMI, and SESAC). The record label, however, doesn’t need a public performance license in this scenario because giving the sound recording to a radio station is not a performance.

In the same way, someone who uploads a video to YouTube is not performing the video — YouTube is.

Someone uploading a video to YouTube still needs permission for any reproduction or distribution of someone else’s copyrighted work that occurred during the creation and uploading of the video — but that’s always been true. The Commercial Felony Streaming Act adjusts the penalty only for unauthorized public performances.

In short, the proposed legislation changes no law that would effect someone uploading a video to YouTube.

It’s Still Copyright Infringement Without S.978

As an aside, I want to address the idea that creating and uploading videos to YouTube that use copyrighted material without permission is (and has always been) copyright infringement. Judging by some of the comments on sites reporting on the “Free Bieber” campaign, this idea is news to many people.

But despite the fact that creating and uploading a video using copyrighted material without permission is, in many cases, infringement, and despite much ink spilled worrying that such “user-generated content” could subject the user to copyright law’s various penalties, these worries have failed to materialize.

I’m not talking about a video being removed pursuant to a DMCA takedown notice — service providers take users’ videos down when they are notified by a content owner to protect themselves. A user may not like seeing his video come down, but a DMCA takedown is not legal action against the user and has no bearing on any liability for infringement the user may be exposed to.

I’m also not talking about lawsuits filed against individual P2P users for uploading and downloading music and movies through P2P networks. Filesharing is a markedly different activity than uploading content to a UGC sharing site like YouTube.

I’m talking specifically about legal action taken against users of YouTube and other sites who upload videos that may infringe on someone else’s copyright.

The EFF, certainly not biased in favor of copyright enforcement, is clear that this has not been a problem:

As far as we know, no typical YouTube user has ever been sued by a major entertainment industry company for uploading a video. We have heard of a couple special cases, involving pre-release content leaked by industry insiders, but those aren’t typical YouTube users. And there have probably been a few lawsuits brought by aggressive individual copyright trolls. But no lawsuits against YouTubers by Hollywood studios or major record labels. That’s right — millions of videos have been posted to YouTube, hundreds of thousands taken down by major media companies, but those companies have not brought lawsuits against YouTube users.

Given that over 48 hours of video are uploaded to YouTube every minute, the percentage of people who face liability for copyright infringement on the site is effectively zero.

In his response to the “Free Bieber” campaign, Thomas Sydnor allays these worries even further. He notes that “Neither existing law nor S. 978 criminalizes the act of being a kid or consumer who does not understand the nuances of performance-right licensing”, “Even if posted years ago, Bieber’s videos were probably licensed,” and “Federal prosecutors have never, nor will they ever, prosecute ordinary consumers for technical infringements unworthy of even a takedown notice.”

We can disagree over legitimate concerns over any proposed legislation — its effectiveness, whether potential harms outweigh potential benefits. But these are not legitimate concerns. The worries expressed are not, in any sense, implicated by S.978.

 

Footnotes

  1. 17 USC § 106. []
  2. Fortnightly Corp v. United Artists Television, 392 US 390, 398 (1968). []
  3. Twentieth Century Music v. Aiken, 422 US 151, 159-60 (1975); Jerome H. Remick & Co. v. General Electric, 16 F.2d 829 (SDNY 1926): “Certainly those who listen do not perform, and therefore do not infringe.” []
  4. Whether or not such activity infringes on the reproduction right is an entirely different question for another day. []
  5. US v. ASCAP, 627 F.3d 64, 72-73 (2010). []
  6. US v. ASCAP, 485 F.Supp.2d 438, 443-44 (SDNY 2007). []
  7. A&M Records v. Napster, 239 F.3d 1004, 1014 (9th Cir. 2001). []
  8. Maverick Recording Co. v. Goldshteyn, No. CV-05-4523, 2005 WL 2892371, *3, 2006 U.S. Dist. LEXIS 52422, at *8 (E.D.N.Y. July 31, 2006). []
  9. See Brian Day, In Defense of Copyright: Record Labels, Creativity, and the Future of Music, 21 Seton Hall Journal of Sports and Entertainment Law 61 (2011); Licensing Music: Cover songs, samples, public domain, CDBaby, July 23, 2010; Brooke Wentz, Understanding the Roles of Copyright Holders: Publishers and Labels, RightsWorkshop, July 29, 2010. []
  10. Though, at least in the US, it does not need permission to perform the sound recording on air since the Copyright Act only recognizes a limited digital public performance right for sound recordings, see 17 USC § 106(4), (6). []
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