Fun with International Copyright

I have started to learn about international copyright law and thus issues of jurisdiction and choice of law in general. To be perfectly honest, they make very little sense to me.  I need to get a hold of Paul Goldstein’s copyright book, I think, just so that I have something on hand with brief overviews of copyright subjects. I don’t have anything comprehensive to say, but here are some interesting bits I’ve found along the way:

1.  As mentioned awhile ago, read Jonathan Zittrain’s “Be Careful What You Ask For: Reconciling a Global Internet with Local Law.”

2.  The main issues I run into are:
a) Jurisdiction
b) National treatment – each Berne Convention member must be foreigners as if they were nationals (see Article 5.1).  (The Berne Convention creates “substantive minima” that all member countries must meet.) There are varying interpretations of this, see this article.
c) Choice of law – which law do you apply to a foreign national. The above article goes into this issue.  So does this article about a Russian copyright case in the US.

Both articles separate out two issues: infringement and ownership.  Infringement is dealt with by national treatment under the Berne Convention. For instance, if you sue for infringement in the US, the applicable law for infringement is US law regardless of where the copyright holder is from. But for ownership of the work, it’s necessary to determine which country has the closest connection to the copyrighted work.  I’m not really sure why national treatment doesn’t apply here.  The Gigalaw article explains it, but I don’t see how US’s adoption of the Berne Convention supports it.

Two other articles I was reading, “The Architecture of the International Intellectual Property System” by Graeme B. Dinwoodie and “Valuing ‘Domestic Self-determination’ in International Intellectual Property Jurisprudence” by Graeme W. Austin, noted some cases that complicate the issues further. (Check out the whole law review edition, too). In many cases, the US has declined to deal with infringement that occurs in a foreign country. In others, it has not. In certain cases, it has even applied foreign copyright law in domestic cases.  Here are some cases I need to look at, the first of which deals with applying foreign law to domestic infringement.  (Note: I haven’t read these yet)

Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co., 145 F.3d 481, 484 (2d Cir. 1998)
Carell v. Shubert Org., Inc., 104 F. Supp. 2d 236
Frink Am., Inc. v. Champion Road Mach., Ltd., 961 F. Supp. 398
Armstrong v. Virgin Records 91 F. Supp. 2d 628

3.  If you don’t know about it already, you should check out the Emily Somma case.

Quick Notes

1.  So I went with some friends to see how bad Terminator 3 could be.  Before the movie even started, I saw the sort of thing that makes me want to be a total absolutist and not see any feature film ever (I rarely go to the movies anyway).  Yep, it was the ad.  It featured some set painter, out in front of his toolshed, and then throwing in at the end, “It’s not going to hurt the millionares, piracy’s going to hurt people like me.”  The greatest thing (aside from the fact that he’s standing in front of a shack, to make it seem like the guy is already struggling financially) is the tearjerker-summer-hit sappy music and titles sequence.

The rejoinder the ad tries to make is fairly legit – it’s the people at the bottom who are likely to get hurt most. But is moralizing going to change things?  Some people argue that people downloading music and movies don’t know they’re doing anything illegal, even that they’re not really conscious of any impropriety, moral, legal or otherwise.

I think most people haven’t thought it through in great detail, but I think they’ve thought it through enough to know they don’t care.  More copyright “education” won’t matter.  The BSA’s tried it, the RIAA’s tried it, the MPAA’s tried it, and it hasn’t made a difference on either side. 

The goal of this education is merely to make the MPAA/RIAA look better in Congress’ eyes. Once corporate copyright holders have exhausted all available avenues, Congress will be more willing to step in.

2.  I’m quite interested in all the new online music services springing up.  BuyMusic sounds like it’s going to be too much of a hassle; I wonder if Napster 2.0 will be any better and when iTunes will get ported to PCs. A part of me wants to see things get bad enough that something like Professor Fisher’s plan gets on Congress’ radar, because I want to see P2P preserved in its current form.  At the same time, I’d much rather see these services be successful enough that we see some real competition, particularly competition over price and DRM, and then the extreme solutions will naturally fade away.

I wonder when the MPAA will consider putting out similar services.  The moralizing campaign would be much better if they actually were trying to meet consumers’ demands.

3.  An open note to John Dvorak, re: latest column: Perhaps you didn’t hear of the campaign against media consolidation. Sure, they didn’t “win”, but they got tons of attention.  How about the S-DMCA campaign? It was successful in several (but not all) states.  John, if you want to see the trees, you have to stop thinking purely in terms of the forest. I hope your goal in writing the column is genuine, because it is a step in the right direction.

4.  Dvorak talks about ACCOPS while people on the pho list have recently been discussing the P2P Porn bill.  At least ACCOPS is, at least in its felony section (not in the “enabling software” section), pretty forthright about its intended effects.  One wonders if the same is true for the porn bill.  Kevin Doran on pho remarked that the bill’s true intentions are to force a level of control into P2P networks. If you can remotely deactivate P2P software to stop a child from accessing porn, why not do so for accessing pirated materials?  That would mean the end of Grokster as we know it.  The bill could also help create a RIAA-friendly registry of P2P users.

I’m not sure that that’s really what the bill is up to. To me, it seems like poor construction and the usual overbreadth, without any RIAA involvement per se.  But maybe not.