Access and Authorization

At the Volokh Conspiracy, Orin Kerr linked to his new article entitled, “Cybercrime’s Scope: Interpreting “Access: and “Authorization” in Computer Misuse Statutes.”  Haven’t read it, but it looks interesting.  Kerr is a moderate supporter of the DMCA, so it’s not surprising that he redefines access without authorization in terms of circumventing technological protections.  Significantly, he excludes contract-based restrictions from his definition.  When reading this, interrogate whether this distinction actually creates a meaningful “balance.” (Note: he does not say that ToSs shouldn’t be enforceable at all – his analysis is restricted to criminal computer misuse statutes.  Think about how the civil context is just as important, see Bowers v. Bay state.)

More on Theft

If you’ve missed Matt’s pieces on theft v. infringement, you can check them out here and here.  There’s been some back and forth on the subject, and I figured I’d bring it up here.  Matt states, “It’s illegal to distribute copyrighted material without permission of the copyright holder, but it’s not illegal to acquire it.”  I’ll try to illustrate why that’s not really the case in P2P situations, and, in doing so, tie in some  important points of current copyright law.

As I noted at Matt’s blog, uploading infringes copyright holders’ distribution rights, downloading infringes copyright holders’ reproduction rights.  Strictly speaking, unless you have express authorization, you technically have no “right” to copy. You have fair use defenses that might allow you to copy, but you don’t have rights. 

Matt states that downloaders have no way of knowing whether the copy they’re making is lawful.  That’s a matter of intent only, not of fact; that is, a copy is still a copy and remains an infringement of the reproduction right.  If you look at Title 17 sections 501 and 504 you’ll notice that intent does not eliminate all culpability (even the NET Act has more leeway in this regard).  Surely, downloading the wrong version of “American Life” will probably make a judge more sympathetic.  But, in general, if you’re downloading a whole bunch of songs from various people on KaZaA, courts probably won’t believe a willfulness defense.  Most P2P users have little reason to believe that they do have authorization to make the copies.

Besides intent, courts will also take into consideration fair use defenses. As the Napster ruling implies, users are unlikely to meet this burden of proof.  Again, you can think up exceptions – for instance, you could be using a P2P service to send your own files to a different computer, thus space-shifting.  But even this right is limited, because you can only space-shift in a way that does not expose the files to the public (again, see Napster ruling).

Matt also notes that, “Presumably, Madonna owns the copyright on the [fake version of ‘American Life’], but by putting it on the network, she is approving of its distribution over the network.  Therefore, if I download the file, there is no copyright infringement.”  It’s probable that a court would also disagree in this matter.  If you’re downloading specifically from Madonna, you have her authorization.  But, if you’re downloading the file from or sending it to someone else, that’s still infringement. Madonna still has exclusive distribution and reproduction rights.  Even if you acquire a copy from her, you do not acquire distribution rights.  You only have rights under the first sale doctrine.  You can sell/give your copy to someone else and delete your own, but you can’t keep a copy for yourself.  Moreover, because the copyright holder only authorized giving that one copy to the uploader, the downloader would still be infringing the artist’s exclusive right to make reproductions.