Cross-posted on the Law Theories blog.

Now that the Supreme Court has agreed to hear the Aereo appeal, I want to offer a simple explanation of the central legal issue before the Court. Much has been written about Aereo, but surprisingly little of it discusses the actual question the Court will decide. There is no doubt that Aereo is performing works as it retransmits them to its customers—that’s the very service that Aereo provides. The fundamental legal point the Court will determine is whether those performances are public or private. If public, they’re infringing, and if private, they’re not. Don’t let the argle-bargle being tossed out by bloggers and commentators distract you from this simple point.

Lots of arguments being offered by copyright critics are simply wrong. This case isn’t about the future of cloud computing companies—those services are protected by the DMCA. It isn’t about the length of any cord—no matter how long the cord is, the legal question is the same. Nor is it about Aereo simply doing something that a customer could do himself—the fact is that the customer isn’t doing it himself since Aereo is helping him do it. And it certainly isn’t about thwarting the progress of innovation—Aereo’s design is rather ridiculous, and it’s only “innovative” in that it retransmits broadcasts without paying any fees.

The Copyright Act gives copyright owners the exclusive right “to perform the copyrighted work publicly.”1 A work can be performed publicly in one of three ways. The first is by performing the work at a place open to the public or at a place where people outside of one’s family and friends congregate.2 An example of this would be putting on a play at a theater where tickets are available to the general public. The second is by transmitting a performance of the work to a place open to the public or to a place where people outside of one’s family and friends congregate.3 An example of this would be an opera house that transmits a performance to a movie theater where tickets are available to the general public.

The final way a work can be performed publicly is by transmitting a performance of the work to the public, by whatever means, whether the transmission of the performance can be received in one place or in many places and at one time or at many times. An example of this would be a broadcaster that transmits a television show to the general public over the airwaves. This last way of performing a work publicly is the one that’s at issue here with Aereo, and the operable statutory text comes from the last section of what is called the “Transmit Clause” in Section 101 of the Copyright Act. The outcome of the Aereo appeal will turn on how the Supreme Court parses this section of the Transmit Clause, which provides:

To perform . . . a work “publicly” means . . . to transmit or otherwise communicate a performance . . . of the work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance . . . receive it in the same place or in separate places and at the same time or at different times.4

Note how this opens up four possibilities, all of which are public performances of a work. The transmission of a performance of a work to the public is a public performance if it is capable of being received: (1) in the same place and at the same time, (2) in separate places and at the same time, (3) in the same place and at different times, and (4) in separate places and at different times. These various possibilities are very important here with Aereo because they show that the same public performance of a work can occur via multiple asynchronous transmissions to the public. An example of this would be a work streamed from YouTube—a distinct transmission occurs whenever a member of the general public initiates playback, and despite the asynchronous transmissions, YouTube is publicly performing the work.

The Transmit Clause tells us that several distinct transmissions of a performance to the public, capable of being received in separate places and at different times, can be aggregated together as constituting one single public performance. The tricky part is figuring out when to aggregate multiple transmissions of a performance. And this gets us to the crux of the arguments in the Aereo appeal. The petitioners argue that Aereo’s distinct transmissions to its customers should be aggregated together as constituting part of the same performance, and this would mean the performance is public. Aereo, on the other hand, argues that its distinct transmissions to its customers should not be aggregated, and this would mean that there are several performances which are all private.

The reason Aereo argues that its distinct transmissions of a performance to its customers should not be aggregated is because they are made from unique copies of the underlying work. If YouTube uses only one source copy of a work to make multiple transmissions of a performance to the public, the case law tells us that those distinct transmissions should be aggregated together as constituting part of the same public performance. But Aereo argues that when each distinct transmission of a performance arises from a unique copy, this one-to-one relationship between the source copy and the customer means that multiple transmissions should not be aggregated. Whether there is any legal difference between using one source copy or multiple source copies for these transmissions of a performance forms the key question to be decided by the Supreme Court.

The notion that the private-public performance divide turns on whether the source of the transmissions comes from one copy or from multiple copies can be traced back to the influential Nimmer on Copyright treatise. In the famous Cablevision case,5 the Second Circuit adopted Nimmer’s view that a one-to-one relationship between the source copy and the customer means that multiple transmissions of a performance to the public should not be aggregated, thus making them separate private performances. According to the Cablevision court, when a unique copy is used to transmit a performance of a work to a customer, the only transmission that counts is that particular transmission—other transmissions made to other customers from other copies of the work are irrelevant.

But, as the petitioners in the Aereo appeal point out, this one source copy theory has no textual basis in the Transmit Clause. The Transmit Clause defines what it means to perform a work publicly, and the fact that the same public performance of a work can be received by the public in separate places and at different times tells us that multiple transmissions of a performance can constitute the same public performance. The Transmit Clause says nothing about the number of source copies used to make these multiple transmissions—the words “copy” or “copies” do not appear in the Transmit Clause. What matters is whether the public is capable of receiving the same performance of a work; the number of source copies used to transmit this performance is irrelevant.

The fault with the Second Circuit’s reasoning in Cablevision, and its subsequent application in Aereo,6 is in how it misinterprets the word “performance” in the following section of the Transmit Clause: “whether the members of the public capable of receiving the performance . . . receive it in the same place or in separate places and at the same time or at different times.” The Second Circuit replaced the word “performance” with the word “transmission,” and under this construction, the focus is on the audience of a particular transmission. But while a transmission of a performance is itself a performance, the words “transmission” and “performance” are not synonymous and interchangeable.

Thus, under the Second Circuit’s reading of the Transmit Clause, what matters is the potential audience of each distinct transmission. But the Transmit Clause tells us that the proper focus is on the audience of a performance, not the audience of any particular transmission of a performance. The problem with focusing on who is capable of receiving a particular transmission of a performance is that it reads the “different times” language out of the Transmit Clause. The Second Circuit realized as much, and that’s why it read into the Transmit Clause a distinction between one source copy and multiple source copies.7

Given the fact that the Transmit Clause makes no reference to the number of source copies used to generate multiple transmissions of a performance, and given the fact that the Transmit Clause by its very terms says to focus on who is capable of receiving a performance of a work—and not any particular transmission of a performance of a work—I think the Supreme Court should reverse the Second Circuit’s misapplication of the Transmit Clause in Aereo—and, by extension, in Cablevision. What matters is the fact that Aereo’s customers are capable of receiving the same performance of a work, despite the fact that this performance is comprised of distinct transmissions made from distinct copies.

Follow me on Twitter: @devlinhartline

Footnotes

  1. 17 U.S.C.A. § 106(4) (West 2014). []
  2. See 17 U.S.C.A. § 101 (West 2014) (“To perform . . . a work ‘publicly’ means . . . to perform . . . it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”). []
  3. See 17 U.S.C.A. § 101 (West 2014) (“To perform . . . a work ‘publicly’ means . . . to transmit or otherwise communicate a performance . . . of the work to a place specified by clause (1),” i.e. “a place open to the public or . . . any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”). []
  4. 17 U.S.C.A. § 101 (West 2014). []
  5. See Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008). []
  6. See WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013), petition for rehearing en banc denied, WNET, Thirteen v. Aereo, Inc., 722 F.3d 500 (2d Cir. 2013). []
  7. See Aereo, 712 F.3d at 688 n.11 (“The Cablevision court’s focus on the potential audience of each particular transmission would essentially read out the ‘different times’ language, since individuals will not typically receive the same transmission at different times. But Nimmer’s solution—aggregating private transmissions when those transmissions are generated from the same copy—provides a way to reconcile the ‘different times’ language of the Clause.”). []

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The Jenna Marbles Paradox: Why are YouTube Videos so Terrible? — “When content is 100 percent advertising supported and there is no paid subscription component, the quality of the content never rises above mediocre. The content may be cute, it may be controversial, it may generate lots of clicks but it will rarely, if ever, be good… In other words, Generation C and the rest of the watching public are being shortchanged because their entertainers are motivated by bad incentives.”

How Technology Killed the Future — Media theorist Douglas Rushkoff discusses “present shock,” where the exponential amplification of the now by digital technology has drowned out context and progress. “Terror and rage replace our ideological goals; we end up reacting only to the latest crisis. And, because of what we can find (and what we can say) on the Internet, we react with a false confidence in our command of the facts. Just because we can all blog in the same size font doesn’t mean all of our opinions are equally valid or informed.”

Chaos and Growing Expense… all for a $13 Refund — After the school cancelled its relationship with educational licensor Access Canada, students at the University of Toronto got access to a lot less materials, with far more headaches, and Canadian authors and publishers lose the ability to be compensated for their work. But, according to the U of T’s student newspaper, at least students save $13 a year.

Design Pirate Cody Foster Threatens Whistleblower — Talk about pushing your luck. The admin of a Flickr account who posts catalog photos of Cody Foster products alongside pictures of the original designs that Cody Foster allegedly copied, without permission, received a cease and desist from Cody Foster for posting the catalog photos without permission.

The Siren Song of Efficiency in Music Licensing — Bartlett Cleland on the danger of letting “efficiency” override the fundamental economic principles of copyright. “Think of it this way: Property development could be more efficient if they did not need to worry about whose property they wanted to build on. They could identify the very best place for their development and break ground. But most of us understand how damaging such an approach would be to property rights, and hence to the economy. Intellectual property is no different.”

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All cultures have their fables: simplistic stories, perhaps inspired by historical events, that serve to convey a moral lesson. There is no grey area in fables; they present a binary right/wrong view that serves to solidify the bonds of the group.

One of the primary fables of copyright’s skeptics is the story of the Supreme Court’s Betamax decision. In the late 70s, Sony introduced a device that could hook up to a television and record shows for later viewing. “Hollywood” sued Sony—because they hate innovation, arrgh! The studios lost the case, but, in spite of this, the home video market ended up being a major revenue source for them. The moral of the story: copyright owners oppose any new technologies at their own peril.

It’s a simplistic (and vastly inaccurate) tale. The real story is far more nuanced and interesting, one that is expertly told by New Yorker writer James Lardner in his 1987 book, Fast Forward: Hollywood, the Japanese, and the VCR Wars. With the 30th anniversary of the Betamax decision tomorrow, I thought it would be timely to offer a review of book, readily available at libraries and used book stores.

After a brief introduction setting the stage for the Supreme Court case, Lardner rewinds to post-WWII Japan, where Masaru Ibuku and other employees of a company that had supplied precision military equipment moved back to Tokyo to rebuild from the ashes, literally (Lardner describes how Ibuku “had to send scavenging parties out into the country side for rice and vegetables.”) Ibuku partnered with tinkerer Akio Morita to form Tokyo Tsushin Kogyo—later, Sony—in 1946. The two set their sights on the consumer electronics market, gravitating toward tape recording, a recent development from Germany. The company soon began to pursue the development of transistors as well.

Over the next several chapters, Lardner traces the pursuit of a portable way to record and playback audio and video, a pursuit that occurred over several decades and multiple continents. The tinkerers in Japan were joined by similarly driven individuals and companies in the US and Europe; the pursuit was at times cooperative and at times competitive; and progress happened both incrementally and through innovative leaps. As Lardner points out throughout this discussion, the challenges were not only technological but commercial—surely there would be a market for recorded video… but as with any new technology, development of a market is often a chicken and egg problem. The recounting here demonstrates these points through efficient narrative.

Contrary to the refrain of copyright opponents, the creative industries did not sit idly by until the introduction of the Betamax, then spring into full-on active resistance. Fast Forward details how by the mid 1960s, for example, CBS was engaged in R&D to develop EVR: electronic video recording. A decade before Betamax, news magazines were predicting a future of home movie viewing. By 1970, Twentieth Century-Fox was experimenting with releasing a library of films on EVR cartridges. In a few years, Sears began selling and distributing “Cartrivision”, a console system that could play video cartridges—and record television programs. Several film studios licensed their titles, making over 300 available for sale or rental by 1972. But, as Lardner reveals, Cartrivision was not yet ready for primetime. The technology was too novel to catch on, technical glitches slowed adoption, and the business model for the hardware had one too many kinks (for example, the cartridge player was only sold as part of a television console, a tough sell at a time when replacing televisions wasn’t something consumers did too often).

When Sony finally unveiled its Betamax unit in 1976, it didn’t suffer these problems. It was a standalone unit, the technology had improved, and the nationwide advertising campaign succeeded in selling consumers on the features and benefits, particularly the ability to record off the air.

We next shift to the beginning of the litigation, which, it may surprise you if you’ve only heard the copyright skeptic version, only involved two studio plaintiffs: Universal and Disney. The trial covered many issues we would expect to hear today: were copyright owners being harmed by this technology, was Sony purposely encouraging infringement, could the technology be designed to mitigate unauthorized copying. But the court would clear Sony of any liability.

Lardner next provides historical and legal context about copyright law for the reader. What emerges is the fact that while the technological or business changes that the Betamax brought may have been predictable, the legal implications were not. Lardner says of the lower court decision, “For the first time a court had ruled that copying for mere entertainment or convenience was fair use, that copying of a whole work could qualify, and that individual copiers could gain immunity from the law simply by committing their offenses in a noncommercial setting, while frankly commercial interests—the suppliers of the machines involved—could profit as much as they liked. Finally, and most ominously, the decision suggested that infringement wasn’t really infringement unless the victim could prove economic harm.”

Here Lardner quotes from a lecture by then federal register of copyrights David Ladd:

The glory of copyright is that it sustains not only independent, idiosyncratic, and iconoclastic authors, but also fosters daring, innovative, and risk-taking publishers. . . . Copyright supports a system, a milieu, a cultural marketplace which is important in and of itself. . . . It does not ‘give’ the author or the publisher anything. It cloaks in legal raiment the undoubted right. It does not guarantee success, or audience, or power, or riches. It is not a warranty, but an invitation to risk. When the rewards are large, we should not resent or envy, but rejoice, and we should likewise cherish every miserable failure.

Then, five years after the lawsuit was filed, the Ninth Circuit reversed and found Sony liable for copyright infringement, though the precise question of remedies—damages, an injunction, something else, or some combination of these—was returned to the lower court for determination. Proceedings were stayed once the case was appealed to the Supreme Court.

But Sony began falling behind in the market because of stiff competition. It wasn’t long before everyone and their brother were selling home video player/recorders, despite the unsettled risk of liability. The technology was a disruption of the way movie studios had been operating, and each studio responded differently. As noted earlier, there were continued experiments in offering pre-recorded films directly to consumers, other studios were holding out hope for a (nonrecordable) home videodisc system in development.

Twentieth-Century Fox was signing deals to provide home videotapes within months of the Betamax’s introduction. They were joined soon by Viacom and a number of smaller and independent copyright owners. By the early 80s, all the studios were offering films for home rental and sale—and, indeed, home rental was exploding as an industry. It was only by this point that the MPAA got involved in the issue. Following the Ninth Circuit decision, the trade association began a push for a royalty on VCRs and blank tapes in Congress, the idea being to immunize device manufacturers from copyright claims while compensating copyright owners for the infringement that such devices facilitated. The MPAA’s involvement wasn’t a foregone conclusion; as noted, some studios were already engaged in the home video market.

At the same time, the consumer electronics industry sprung into high gear. Here we see the emergence of the copyright skeptic crowd, a loose confederation of consumer electronic manufacturers, content distributors, and consumer groups. And from here, things escalated. Lardner takes us through the Supreme Court arguments, the (unlikely) reargument, and the push for Congressional action in the wake of the Supreme Court’s reversal of the Ninth Circuit that absolved Sony of any copyright liability. The money was flowing into lobbyists and trade associations on both sides. This was the time of Jack Valenti’s infamous “Boston Strangler” remark, but it was also the time of political cartoons about jack-booted video police breaking into Americans’ living rooms to stop home recording; the hyperbole was equally distributed.

In the end, no legislation addressing the Supreme Court’s Betamax decision passed. The home video market had long been born, but so too had the copyright skeptic movement. Lardner recalls talking to Dale Snape, one of the film industry’s consultants during the Betamax case at this point:

He [Snape] wondered if it had been “a personal failing on my part that I cannot seem to bring people to the conclusion that the consumer’s stake comes before the time when he is paying for something—that it comes when choices are being made about what he can choose among to buy. It is personally very sad for me,” he said, “that groups like the Consumer Federation of America and Consumers Union look at these proposals in a hostile way.” He was in awe of the electronics industry’s ability to persuade people that “because they sell to consumers, they ipso facto represent consumers. The leap of faith you have to make,” he said, “is just staggering! The Consumer Product Safety Commission exists because of concern about manufacturers.”

This is an incredible book. Lardner has talked to a wide cross-section of participants in this moment of history and has gotten some candid and thorough responses. He weaves his research into an engaging narrative that does justice to the events and the issues. This is not only a good read but an important documentation of Betamax. Given the importance of the case to modern U.S. copyright jurisprudence, I think this book ranks as a must-read for any copyright nerd.

There are some who would say that the lesson of Betamax—or at least the fable version—is that the Copyright Act should be construed to favor tech companies over artists and creators. “When ‘technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose’, and courts should be ‘reluctan[t] to expand the protections afforded by the copyright without explicit legislative guidance,’” writes academic David Post in a recent article about Aereo. Thirty years later, not too many people continue to use Betamax players—in fact, Betamax had lost most of its market share before the Supreme Court had even endorsed its legality. But they do still enjoy films such as Rocky or Taxi Driver (both released the same year the Sony litigation began). A policy that favors Betamax’s over the creation of films like that seems short-sighted and ultimately detrimental to all—including the manufacturer of the next Betamax.

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Cross-posted on the Law Theories blog.

The making available issue takes center stage today on Capitol Hill as the House Subcommittee on Courts, Intellectual Property, and the Internet holds a hearing on “The Scope of Copyright Protection.” Copyright treatise author Professor David Nimmer argues for the making available right (testimony available here), and Tulane Law Professor Glynn S. Lunney, Jr., who just so happens to be my doctoral advisor, argues against it (testimony available here).

In two previous posts about the making available issue (available here and here), I suggested that the Nimmer treatise had changed its tune on whether merely making a work available constitutes distribution absent actual dissemination. After reading Professor Nimmer’s testimony, as well as reviewing Nimmer1 and the related journal article by Professor Peter S. Menell,2 I realize that I was wrong to say that Nimmer had flip-flopped on the making available question. Professor Nimmer never said that distribution requires evidence of actual dissemination in the first place.

Nimmer used to state: “Infringement of this right [i.e., the distribution right] requires an actual dissemination of either copies or phonorecords.”3 And Nimmer now states: “No consummated act of actual distribution need be demonstrated in order to implicate the copyright owner’s distribution right.”4 On its face, it appears that Nimmer has made a 180 degree turn on whether distribution requires actual dissemination. But the fault with this line of thinking is that, in the first statement, Nimmer was not saying that actual dissemination is an element of a plaintiff’s case-in-chief in proving unlawful distribution. It was instead contrasting distributions with performances.

Section 106(3) gives copyright owners the exclusive right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.”5 Thus, the distribution right only covers “copies or phonorecords,” which are material objects in which works are fixed.6 Performances, by contrast, are ephemeral and unfixed.7 An unauthorized public performance of a work is not a distribution because nothing is fixed in a material object when one performs a work. Distributions involve tangible disseminations, while performances involve disseminations that are intangible.

It should be noted that, despite the “copies or phonorecords” requirement, distributions can occur electronically. This might at first seem strange, since sending someone a file via computer is not the same thing as handing someone a tangible copy. However, the argument that Section 106(3) does not reach electronic distributions is foreclosed by the Supreme Court’s opinion in Tasini.8 Moreover, sending someone a work electronically does involve a tangible copy, because “[w]hat matters . . . is not whether a material object ‘changes hands,’ but whether, when the transaction is completed, the distributee has a material object.”9 The person the file is sent to has a copy fixed in a material object in whatever media he stores the file on, and this fulfills the “copies or phonorecords” requirement under Section 106(3).

Turning back to Professor Nimmer’s testimony, the origin of the earlier statement in Nimmer that infringement of the distribution right “requires an actual dissemination of either copies or phonorecords” stems from the treatise’s account of the Second Circuit’s opinion in Agee.10 In that case, the Second Circuit held that “merely transmitting a sound recording to the public on the airwaves does not constitute a ‘distribution.’”11 In reporting that holding in his treatise, Professor Nimmer stated:

Infringement of this right [i.e., the distribution right] requires an actual dissemination of either copies or phonorecords. A public performance of a work is not a publication and hence, even if unauthorized does not infringe the distribution right. Given that transmissions qualify as public performances, liability for that conduct lies outside the distribution right.12

That first sentence was later quoted out of context by many courts and taken to mean that evidence of actual dissemination is an element of an unlawful distribution claim. But, as Professor Menell explains, that is not the proper interpretation:

That language, written before the emergence of peer-to-peer technology, did not attempt to address its implications for copyright law. It merely contrasted distribution, which requires the dissemination of a copy, with performance, in which no copy need be disseminated. In context, the paragraph simply means that there is no violation of the distribution right when the substance of the copyrighted work has been intangibly dispersed via performance. To violate the distribution right, instead, tangible copies must be at issue. In the peer-to-peer context, uploading followed by downloading results in a “copy” resident on the second peer’s computer, meaning that the tangibility requirement has been met.13

When Nimmer stated that distribution “requires an actual dissemination of either copies or phonorecords,” it was making the point that a distribution involves a work fixed in a material object while a performance does not. That statement had nothing to do with what evidence is necessary to prove an unlawful distribution. Furthermore, the treatise’s current statement that “[n]o consummated act of actual distribution need be demonstrated” is not a reversal from the earlier statement in Nimmer. This newer assertion in the treatise is making an evidentiary point about what proof is needed to establish an unlawful distribution. Thus, Nimmer did not change its tune on the making available issue as I erroneously had stated in my two previous posts.

Follow me on Twitter: @devlinhartline

Footnotes

  1. See 2-8 Nimmer on Copyright § 8.11[C][1][a]-[b] (2013). []
  2. See Peter S. Menell, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, 59 J. Copyright Soc’y U.S.A. 1, 20-21 (2011). []
  3. 2 Nimmer on Copyright § 8.11[A] (1996). []
  4. 2-8 Nimmer on Copyright § 8.11[B][4][d] (2013). []
  5. 17 U.S.C.A. § 106(3) (West 2014). []
  6. See 17 U.S.C.A. § 101 (West 2014) (“‘Copies’ are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘copies’ includes the material object, other than a phonorecord, in which the work is first fixed. *** ‘Phonorecords’ are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘phonorecords’ includes the material object in which the sounds are first fixed.”). []
  7. See 17 U.S.C.A. § 101 (West 2014) (“To ‘perform’ a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.”). []
  8. See New York Times Co., Inc. v. Tasini, 533 U.S. 483, 498 (2001) (“LEXIS/NEXIS, by selling copies of the Articles through the NEXIS Database, ‘distribute copies’ of the Articles ‘to the public by sale,’ § 106(3)”); see also Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007) (“The Supreme Court has indicated that in the electronic context, copies may be distributed electronically.”). []
  9. London-Sire Records, Inc. v. Doe 1, 542 F.Supp.2d 153, 174 (D. Mass. 2008). []
  10. Agee v. Paramount Commc’ns, Inc., 59 F.3d 317 (2d Cir. 1995). []
  11. Id. at 325. []
  12. 2 Nimmer on Copyright § 8.11[A] (1996). []
  13. Menell, 59 J. Copyright Soc’y U.S.A. at 21. []

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A Little Bit of Laches Goes a Long Way (via Volokh Conspiracy) — On January 21, the Supreme Court will hear oral arguments in Petrella v. Metro-Goldwyn-Mayer. Though the issue involves laches, the case arises out of a claim of copyright infringement, so you’re sure to hear about it in the next several weeks if you follow copyright issues. Here is an interesting and informative look at the issues here.

The Google Book project: is it fair use? — Attorney Barry Sookman has an excellent and thorough analysis of last November’s district court decision in the Google Books litigation. He follows that with some pointed questions about the court opinion.

My Songs = Your Instagram Photos. A New Trichordist Statement of Purpose — “Your average Internet user is being exploited in exactly same way that the artists are. You are being exploited by exactly the same companies. Ad supported piracy? What’s the difference from “shared endorsements”? They take something that belongs to you without your permission. They then sell advertising against it and keep all the money without letting you set the price—much less paying you a share of the revenue.”

Top MPAA Lawyer on Google’s Failures, Suing Kim Dotcom and Obama After SOPA (Q&A) — Interesting interview. “I’ve been in this game for close to 15 years dealing with the Kim Dotcoms of the world, by whatever name they call themselves. And they all position themselves as a champion of something because it doesn’t sell papers for them to position themselves for what they are — people who just slap together some crude technology to make as much money as quickly as they can before they get caught and then run and hide.”

Google’s Knowledge Graph Boxes: killing Wikipedia? — Here is another example of how Google embraces free and open to build its market share, and then uses the resulting dominance to close off competitors. “The sad irony is that Google is very much for-profit, while Wikipedia is non-profit. Google has donated several million tax-exempt dollars to support Wikipedia in the past, and the Wikimedia Foundation thought that was a lovely series of gifts at the time. But now, Google has figured out a way to take that same Wikipedia content and “import” it directly into Google’s own Knowledge Graph space, where it can be surrounded by advertisements that put money back in Google’s pocket. And if these recent Wikipedia traffic statistics are to be trusted, the shift of Wikipedia “knowledge” over to Google may be exactly what is simultaneously robbing Wikipedia of its readers.”

Understanding Media Markets in the Digital Age: Economics and Methodology — Highly informative. “Viewpoints on such topics as filesharing, copyright enforcement, and digital distribution strategies can be quite polarized. Further complicating the picture, empirical ‘research’ appears to support both sides of the issues on these topics, with one example being the fact that some studies suggest that piracy harms sales of artistic works while others seem to suggest that piracy may be beneficial toward these sales. But not all ‘research’ is created equal.”

Google’s Spymasters Are Now Worried About Your Secrets — Wait, are you telling me there might be a downside to this idea of “permissionless innovation”? “Google has turned once private data into a commodity routinely exploited for profit. No wonder these executives are now made uncomfortable when old-fashioned dictators appropriate the snooper culture of the new technology.”

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January 09, 2014 · · Comments Off

When the U.S. passed its first copyright law in 1790, it was only the second nation in the world to have a modern copyright act. The U.S. Copyright Act only protected works of American authors. But within only a few decades, more nations began protecting copyright, and the recognition that international protection was necessary began to grow. U.S. authors and publishers, concerned about the inability to protect their works abroad and the difficulty of competing with cheap British imports, began rumblings for international protection as early as the 1830s.1

On April 9, 1868, U.S. publisher George P. Putnam chaired a meeting of the “International Copyright Association”, a group of authors and publishers recently created to advocate on behalf of international copyright protection. Among those who spoke was Francis Lieber, a German-American jurist. Lieber begins by noting that opponents of international copyright have long used the same arguments. Some of this may sound familiar even today.

It is maintained that there is no such thing as literary property. What is called so is simply the effect of laws, judiciously or injudiciously enacted; it is an arbitrary creature of the law; and secondly, expediency leads us to prevent an International Copyright. Let us have books as cheap as possible.

The chief value of the latter reason depends on the first; for if there is such a thing as a right of real property in literary productions, as natural and direct as there is in a bushel of wheat for the farmer, if he is the producer, the argument founded on expediency, even if this could be made good, would have no more value than a recommendation of obtaining flour cheaper by stealing, than by honestly purchasing it. Right and wrong are not defined or confined by the blue or red colors of political demarcations on the map, any more than that they apply to religion, or mathematics, or music. Nay, allow a teacher of the law of nations to say that it is one of the characteristics of our progressive civilization, that as it advances, it takes more and more from the meaning of the colors of the map, reducing them more and more to a political meaning alone.

Is there such a thing as literary property? The main roots of all property whatsoever are appropriation and production, diffused and accumulated by exchange. Why? Is it, because, as the saying used to be, property is the creature of Government? By no means. Property invariably precedes government, as many other institutions do. It is because every human being is as conscious as of his own identity, that if he appropriates what belongs to no one—for instance, the trunk of a tree—and if he produces a new thing—for instance a canoe out of that tree—this appropriation, or this product, is verily his own; that he can do with it what he likes, and that every one who in turn attempts to appropriate it without the process of exchange, is an intruder, a robber, and the attempt will not only be resisted but resented. The whole right of property, however developed and ramified in a code of laws it may be, rests on this primordial consciousness of mine and thine—on appropriation and production; and I now appeal to the intuitive conviction of every living man to say whether a literary work, say Baker’s description of his toilsome journeys in Africa, or a Faust of Goethe, a musical composition, say a requiem by Mozart, is not a production in the fullest sense of the word, even more so than a barrel of herrings which have been appropriated in the North Sea, pickled and barrelled by the fisherman; and whether any one has a right to meddle with this property by production, any more than you or I have to meddle with the barrel of herrings.

But, say our opponents, that which you call the literary work consists of ideas which were common property, gathered, strung together. They belong to the common civilization, and cannot constitute property. Indeed! why not go further? The alphabet used in every book is common property; the words of which it consists have been published long ago in dictionaries.

We do not claim property in ideas, any more than Beethoven claimed property in the tones he indicated, or the laws of harmony and disharmony which the Creator has indelibly implanted in the human soul; but he justly claimed by natural right the ownership of his symphonies, and, therefore, the exclusive right of multiplying them by signs and on material. He deeply resented their piratical reprint.

An author, or a composer, or an artist is what he is, in a very great measure indeed, in consequence of the civilization of his times or of the ideas which, erroneously and inelegantly, are declared common property; but is the farmer what he is, less by the common civilization in which his existence has fallen? Does the farmer, perchance, create his grain, or does he only produce, that is, dispose his combining and shaping agency so that with the help of the natural agents his labor results in, the grain? His share in agricultural production is small, indeed, compared to the share which the author, or composer, or sculptor has in the production of his work. But the question is really more positively and directly answered by asking: Do you, or do you not, feel and know that Paradise Lost was Milton’s own, and that in the world of exchange to which, by divine decree, all of us must go for subsistence, he had an exclusive right to dispose of his work?

If literary property is merely a thing so called; if there is no natural right of literary property, why does our law and the municipal law of every civilized country acknowledge and protect it in each respective country? There is no exception to it. And if literary property is real property, why not acknowledge and protect it internationally, as all righteous property is?

To the objection that literary property is of a very recent date, which is said to prove that, like the patent law, it is altogether a legal invention, and originates from no natural right, I would simply reply that literary property was claimed as soon as it obtained importance in the market, that is, immediately after the invention of the art of printing. There is a passage in the works of Dr. Martin Luther, in which he asks the “Sirs Printers” why they rob one another, and make money of what belongs to another, leaving only loss and dissatisfaction to him who incurred all the expenses in order to get out a book; and it will be remembered how short a time there elapsed between the humanizing invention of the art of printing and the great translation of the Bible by one man—Martin Luther. As to International Copyright, it belongs to our century indeed; but the whole law of nations has made its greatest strides only in recent times. Down to this century, the highest statesmanship was believed to consist in the greatest amount of injury that could be done to a neighbor. The barbarous confusion of foreigner and enemy still somewhat adhered to our race. Now it is gladly acknowledged in the commonwealth of nations to which we belong that the great law of good neighborhood, all-important among individuals, is not less so among nations, and the existing positive law of nations shows us that treaties are in force between Germany, France, England, Italy, internationally protecting literary and aesthetical copyright. Why should we lag behind? We, whose boast it is to honor and protect human rights with eager jealousy, should we, of all leading nations, disregard the right of property, because the owner is a foreigner?

Speech of Francis Lieber, Meeting of Authors and Publishers at the Rooms of the New York Historical Society, April 9, 1868.

Footnotes

  1. See, e.g., “International Copyright“, the New Yorker (Oct. 12, 1839). []

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Happy New Year, readers! I hope everyone has had a wonderful holiday season. Now it’s time to get back to work.

It Turns Out Shia LaBeouf Is Your Anti-IP Laws Messiah, Internet — 2014 starts out with a bang, with this brilliant take on a recent anti-copyright screed by actor Shia LaBeouf. Be sure to check out the author’s previous piece, How Copyright Law Gave us Star Wars, as well.

Blame Silicon Valley for the NSA’s data slurp… and what to do about it — One of the top stories of 2013 were revelations about widespread NSA surveillance. But as Andrew Orlowski points out here, the NSA is only following the lead of Google, et al.

TV Broadcasters Fire Back at Aereo’s Supreme Court Claims — Just before Christmas, TV broadcasters filed their reply brief in Aereo, where they are seeking Supreme Court review of the Second Circuit’s holding that the definition of public performance is technology-dependent. Aereo is in the stack of petitions the Supreme Court will look at during its first conference of the new year on January 10, and it was featured in a SCOTUSBlog Petition of the Day.

Living by the Pen — Turkish novelist Kaya Genç discusses some of the deep challenges he and other writers have faced, but ends on an optimistic note. “For more than ninety years of republican history Turkish freelancers had been silenced either by state institutions which employed them or by the lack of a proper literary market. But as I look around and try to see how other authors from my generation are doing nowadays, I see how they no longer share the old state ideas which make freelance authors suspect in the eyes of the intellectual community. On the contrary, they are increasingly joining the ranks of independent writers. I know, from experience, that it won’t be state patronage or employment by special institutions that will save them from the cold realities of pessimism, poverty and prosecution. No, don’t make them part of the state apparatus or turn them into ideologues or employ them as editors: if you want those writers to succeed, just pay them.”

Just How Long Should Copyright Terms Be? — A thought-provoking piece from Justin Colletti. “Recently, I read a blog post from a Duke University professor who laments that ‘Under current copyright law, we’ll have to wait until 2053′, for works such as On The Road, From Russia With Love, Funny Face, Atlas Shrugged and The Cat In The Hat to enter the public domainBut he never seems to fully explain to my satisfaction: Wait for what?

10 Great Internet Essays Condemning… the Internet — Paste Magazine rounds up some recent articles that take a critical look at the invisible technology of the internet.

Why TED is a Recipe for Civilizational Disaster — Not included in the list above, but along the same lines, is this recent TEDx talk by cultural theorist Benjamin Bratton. “Keep calm and carry on “innovating” … is that the real message of TED? To me that’s not inspirational, it’s cynical.”

How a Fabricated Story about Iron Maiden’s Love of Music Pirates Became Internet Truth — In case you missed it, last week saw the tech press breathlessly spreading a story about a band that “embraced piracy” to plan a tour. Except, as TechCrunch points out here, the story turned out to be fake.

Gibson Guitars On TV: How Props Master Danny Rowe Finds the Great Six-Strings on Nashville — Behind-the-scenes crew have the most fascinating jobs. Here, Gibson Guitars speaks with instrument wrangler Danny Rowe, who currently wrangles guitars for TV’s Nashville.

The Fascinating Method by which Megaupload Deleted Copyright Content without ever Deleting Copyright Content — The upcoming year is likely to bring new developments in the Megaupload criminal proceedings, though if what has gone on so far is any guide, then who knows what those developments may include. The DOJ publicly released hundreds of pages of evidence it had on Megaupload and its operations late last year, and here, Forbes digs into those bits that demonstrate how Megaupload operated behind a sham of DMCA compliance. Also check out the Southland Time’s editorial, Not Sitting on a Fence.

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January 02, 2014 · · Comments Off

Cross-posted on the Law Theories blog.

Representing himself before the U.S. Court of Appeals for the Tenth Circuit, Andrew Diversey has managed to set a very interesting precedent (opinion available here or here). Senior Circuit Judge Terrence L. O’Brien, writing for a unanimous panel, held that when a library adds a work to its collection, indexes it, and makes it available to library patrons, a distribution is deemed to have occurred even if there is no evidence that any patron actually accessed the work.

The underlying brouhaha concerned Diversey’s dissertation as a doctoral candidate at the University of New Mexico. Against his express wishes, two copies of his dissertation had been made available to the public in the school’s libraries. Diversey sued the school and several administrators for violation of his exclusive distribution right under Section 106(3).

Diversey’s opening brief before the Tenth Circuit was remarkably well-researched and well-written for a pro se advocate, and he cited the Nimmer copyright treatise at length in arguing that merely making a work available constitutes distribution. I wrote about the fact that the Nimmer treatise has changed its tune on the making available issue in a previous post, and I predicted that, given how influential Nimmer is in the copyright realm, others would follow.1

And follow they did. Relying on the Fourth Circuit’s holding in Hotaling and the Nimmer treatise, the Court of Appeals reasoned:

As Diversey points out, § 106(3) explicitly protects the copyright owner’s exclusive right to distribute copies by lending. See Hotaling, 118 F.3d at 203 (“When a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public.”); 2 Melville Nimmer & David Nimmer, Nimmer on Copyright § 8.11[B][4][d] at 8–154.10 (2013) (“No consummated act of actual distribution need be demonstrated … to implicate the copyright owner’s distribution right.”). . . . The essence of distribution in the library lending context is the work’s availability “to the borrowing or browsing public.” See Hotaling, 118 F.3d at 203.2

The Tenth Circuit rejected the appellees’ argument that Diversey had to prove actual dissemination to the public:

The appellees argue [that] merely listing the work in the libraries’ catalog information system does not violate Diversey’s distribution right. They say Diversey must (but has failed to) allege the libraries actually distributed an unauthorized copy to a member of the public. They cite Atlantic Recording Corp. v. Howell, 554 F.Supp.2d 976 (D. Ariz. 2008) to suggest “‘§ 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public.’” (Appellee’s Br. 14 (quoting Howell, 554 F.Supp.2d at 883).)

Howell does reflect some dissensus, particularly among district courts, about the applicability of Hotaling’s holding to cases of Internet file-sharing. We need not delve into the file-sharing issue today. Hotaling, like this case, involves a public library making “the work available to the borrowing or browsing public.” Hotaling, 118 F.3d at 203. A patron could “visit the library and use the work.” See id. This is the essence of a violation of the copyright owner’s exclusive right to distribute his work via lending. See 17 U.S.C. § 106(3); Peter S. Menell, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, 59 J. Copyright Soc’y U.S.A. 1, 52–66 (2011) (analyzing the legislative history regarding the distribution right and concluding the requirement of actual distribution of an unauthorized copy is unwarranted).3

The applicability of the Hotaling holding to this case was pretty straightforward since both cases involved libraries lending out works to the general public. In Hotaling, the Fourth Circuit stated that distribution normally requires a showing that the work was actually disseminated to the public, but in the case of a library that keeps no records of public access to its works, it would unfairly prejudice the plaintiff to require any such proof of access.4 Thus, the evidentiary issue was central to the Fourth Circuit’s holding.

Interestingly, for the argument that distribution requires actual dissemination, the Hotaling court cited the Eighth Circuit’s opinion in National Car5 and the Nimmer treatise. National Car, in turn, cited only the Nimmer treatise for that proposition. So the notion in the Fourth and Eighth Circuits that distribution typically requires actual dissemination can be traced back to earlier versions of the Nimmer treatise. As I said in that previous post, it really is hard to exaggerate just how influential Nimmer is in copyright law.

Now we have the Tenth Circuit relying on the Nimmer treatise as well as the journal article by Professor Peter S. Menell, which was the impetus for the about-face on the making available issue in the Nimmer treatise.6 The Tenth Circuit here explicitly declined to discuss the applicability of its holding to the file-sharing context, but I think the answer there is fairly clear. Several district courts have declined to extend the holding of Hotaling to file-sharing cases, citing the general rule that actual dissemination is required and reasoning that the same evidentiary problem found in the library context may not obtain when it’s file-sharing.7

But the Tenth Circuit here has unequivocally adopted Nimmer’s new tune, which states that merely making the work available to the public is sufficient to constitute distribution. And it approvingly cited Professor Menell’s article, which reaches the same conclusion. Moreover, the Tenth Circuit adopted Hotaling’s holding without mentioning the underlying evidentiary rationale applicable in the library context that led other courts to distinguish its holding in the file-sharing context. While the Tenth Circuit did not address whether its holding would apply to file-sharing, it’s really difficult to see how it would not.

Follow me on Twitter: @devlinhartline

Footnotes

  1. For the argument that Nimmer was wrong to change its tune on the making available issue, see Rick Sanders, Will Professor Nimmer’s Change of Heart on File Sharing Matter?, 15 Vand. J. Ent. & Tech. L. 857 (2013). []
  2. Diversey v. Schmidly, 2013 WL 6727517 at *4-5 (10th Cir. Dec. 23, 2013). []
  3. Id. at *4 n.7 (citation omitted). []
  4. See Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 203 (4th Cir. 1997). []
  5. See Nat’l Car Rental Sys., Inc. v. Computer Associates Int’l, Inc., 991 F.2d 426, 433-34 (8th Cir. 1993). []
  6. See Peter S. Menell, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, 59 J. Copyright Soc’y U.S.A. 1 (2011). []
  7. See Atl. Recording Corp. v. Howell, 554 F.Supp.2d 976, 981-85 (D. Ariz. 2008) (gathering cases). []

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

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

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

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

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

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

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

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

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

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

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

512(f) and the proper standard

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

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

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

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

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

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

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

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

DMCA abuse and perspective

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

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

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

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

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

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

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

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

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

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

What shape would these solutions take?

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

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

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

Conclusion

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

Footnotes

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

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