A Copyfighter’s Musings

First day of school, so the idea of college-only digital music services is on my mind.

At first, there’s something quite appealing about these services. College students make up a large percentage of people on P2P services. If these services used CLs instead of something like iTunes, this would be an interesting way to try out the scheme on a lower level before using universally. In any case, it’d help stop infringement and get people the music they want – what more could we ask for, right?

A lot, according to Frank, and I generally agree. First, why should this be part of a university’s mission? Along with having Internet politics dominated by copyright, we now need copyright interests dominating university politics? This goes far beyond optionally supplying cable TV. While the universities are entering into this voluntarily, the fact that this is so removed from colleges’ typical purposes makes this seem more like blackmail than compromise. (Frank views this as part of a general trend towards universities’ seeing IP more like other copyright holders.)

Second, why the hell should my decision to go to School X mean that I have to give Y dollars to the RIAA? What about musicians not controlled by the RIAA who I typically purchase music from? Will it really be a full catalog of songs if such a thing does not exist in any current digital media service? What if I specifically don’t support the use of DRMed files and don’t want to fund them? Will people be able to opt out of the system? If so, how will colleges be able to keep the price down if they’re licensing unlimited music downloads and streams? Or is it not unlimited? Or is it some downloads and unlimited streams? Should the university just create some non-interactive radio stations at a lower rate, try to diversify their music offerings?

Unbelieveable that that discussion is even imaginable.

It is an “ugly solution” to one problem that’s likely to be an even uglier cause of many more. Yeah, it would fix a lot of things short term. But, long term, is this really where we want universities involved? If the cost of setting up one of these systems is really equal to colleges’ responding to DMCA requests, then I think we have far bigger fish to fry.

Filed by Derek Slater at 7:35 pm under Big Ideas
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Updated 9/15 6:12 PM to reflect comments

1.  Matt links to Stan Liebowitz’s criticism of compulsory licensing. Definitely worth checking out. Like Ernest’s post on commercial use, the doc brings up many questions that will need to be answered before CLs can succeed. These problems’ significance depends in part on your premises; for instance, if you think DRM is dreadful, the RIAA’s lawsuits won’t solve anything, and regulating third party tech developers will greatly harm innovation, then the problems involved in CL seem far less severe.I find myself somewhere in between the two extreme positions on CLs. I don’t know enough (in regards to economics and technical issues) to say whether Liebowitz’s concerns and those expressed in the pho discussion are severe enough to make CL not worth pursuing. Some part of me hopes that the lawsuits and new music services solve everything, but I doubt that will happen. So I’m left with few options.

Regarding Ernest’s questions about commercial/noncommercial use, a short brainstorm on a few problems:
We’d start by defining commercial use as Netanel does: “selling copies of, access to, or advertising in connection with the copyright-protected work or any modification of the work.” The latter part seems aimed at webcasters while the former parts focus on an exchange of money at point of copying/distribution.

Of course, one way to deal with Ernest’s questions is simply to not allow the tipjar people to link it in any way to the mp3 page. Netanel suggests that earning revenue and getting donations in any way would not be allowed in his regime. So, linking to your blog with a tipjar wouldn’t be ok, nor would any of the other examples where you link the copyrighted work to any money gathering site. That would be simpler in some ways, but it would also lead to some overbreadth. [Update:] At the same time, if the transaction costs of monitoring any exemption are too high, as Ernest suggests they might be, it’s probably worth proscribing any site from receiving payment from downloaders for supplying copyrighted works.

[added conditional] If we don’t want to sweep up all the tipjar people in the definition, and we don’t want to have a giant loophole allowing all uses if there’s no immediate exchange of money, perhaps we could assume that sites that earn under $X are not commercial. Sites making above that amount would be suspect and open to further investigation to see if their way of earning money is effectively equivalent to Netanel’s definition.

Similarly, the advertising part would generally not target people who get free webhosting for serving ads, regardless of the content of the files they upload. Unless financial benefit is directly tied to distributing copyrighted works, it would not be commercial. Think of Netcom here – in that way, direct financial benefit and thus the commercial/noncommercial distinction does have some roots in the law already without being completely tied to businesses. [updated:] You can make similar fixed fee vs. sliding scale distinctions, and you can then distinguish cases where a fixed fee is paid to all site owners but the service is designed specifically to feature distributors of copyrighted works, so they’re effectively getting paid for that distribution.

[Updated] Ernest says there’s a loophole here too, but I’m not quite sure where. I guess I’m thinking of two types of sites – one where ads are served and web space is allocated regardless of the site’s content, and one where supplying copyrighted works gets you a better deal or where your payment is directly related to you serving coyprighted works. The latter sites are commercial, the former aren’t. Note, I’m talking about the sites themselves, not really the hosting services – the hosting services might be contributors to infringement, but the commercial/noncommercial distinction should be linked to whether the distributor gets money for distributing.  Maybe that’s why I’m missing the loophole. What services would “spring up” if this were the case? 

Who would investigate instances on the border of commercial/noncommercial? I wonder how hard it would be for the Copyright Office or courts to do audits in the close calls. If people are earning income from their websites, they should be recording that for tax purposes, right? Or perhaps we could condition the NUL on keeping some records on money earning – I doubt that would be a heavy burden if it just means printing your paypal records. If it’s more than paypal records, then it’s more likely to not be a non-commercial venture. (begin privacy concerns here)

But won’t it be difficult to determine who to audit? And won’t many people go under the radar? The sites likely to go under the radar are the least likely to be making any significant impact on the copyright owner’s profits, in the same way that private distribution is so incidental that allowing it would not be a major change from the status quo.

Now, that doesn’t take care of all Ernest’s questions, and it’s not as if what I’ve said here is perfect. But I do think that there are creative solutions to some of these problems. We can come up with decent lines to separate commercial from non-commercial –  at least as long as we’re not trying to make it perfect for all possible imaginable and unimaginable situations.
(BTW, I do agree that public/private is currently better defined than commercial/noncommercial, but it’s not an impossible distinction in either case.)
(Also, it’s worth noting that Fisher’s plan is not limited to non-commercial use.)

2. Following up on Ernest bringing up his public/private distinction, here’s a link to Taking the Copy out of Copyright, in which he discusses several ways he’d like to see copyright changed.

Some brief, mostly unrelated comments: look at how they deal with first sale. There are some decent arguments for limiting digital first sale (see Copyright Office arguments here), but I’m not completely comfortable with saying that eliminating copyrights “copy-centrism” means getting rid of first sale. What about libraries? Are they totally left out in the cold? Do we really think that copyright holders need control over the digital video rental market, or are we better off keeping that separation of control? Why not allow only lawfully acquired copies to be legitimately redistributed under first sale? I know that keeps some focus on distinguishing between certain copies, but I’m not sure it’s grave enough to mean that we shouldn’t include such an exemption.

I find it interesting that the authors worry about people in dorms and apartment complexes systematically sharing copyrighted works under digital first sale, but they wouldn’t mind if those same people systematically distributed permanent copies under a private distribution right. Seems a bit odd.

Finally, also recognize that you’d be able to record webcasts under this plan with no infringement. Would we want an exception there, to keep separation between those two markets? Would doing that and a first sale exception open us up to a world of exceptions making this new distribution-centrism worthless?

Worth some more thought….

[Updated] In his comment, Ernest says I misconstrue a few things. I’ve added my response in the comments box.

Filed by Derek Slater at 9:32 pm under General news
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Pretty busy today, so two quick links:

1. First, go to Lawmeme here and here and follow the links.  I had similar feelings to Ernest’s when looking at the EFF petition.  I think the RIAA’s picking poor targets, the suits won’t solve much, and their money and time could be better spent. But I can’t say it should be illegal for them to sue the 12 year old instead of the 25 year old “pimple scarred gangbanger.” Moreover,  I’m not sure I can be “outraged” by the very idea of the RIAA suing people, which is kind of how the EFF petition comes off when it says the RIAA’s “attack[ing] the public.”  There are many ways I’d like to see the law changed so I am bothered that the law doesn’t fit my views, but that doesn’t mean I’m opposed to any lawsuits against “the public” (whoever that is).

I am outraged, though, that Congress has not seriously considered any alternate plans, and that’s why I still signed the petition.

Also: though I don’t know if these suits will be a sufficient deterrent, many friends have asked me about how to avoid getting sued – they seem seriously worried about the prospect. Of course, they’re still going to keep downloading for now. But they do seem to scared to share.

2. Professors Solum and Volokh have a nice IP justification debate.

The opening of the Volokh piece caught me off guard (“I’ve recently gotten some messages asking why intellectual property makes sense at all”) and colored my experience reading both posts. Does anyone actually think the differences between physical and intellectual property mean that there should be no intellectual property rights? Even Volokh concedes that people shouldn’t have unlimited rights in their intellectual property. The debate should be about the limits on those rights, not about whether the rights should exist in general – it should be a debate about “some”s, not all and nothing.

In any case, drawing the correct analogy (to physical property or club goods, for instance) can help us find what level of “some” is correct. But we also have to recognize the unique features of intellectual property, as Professor Solum does.

Filed by Derek Slater at 3:55 pm under General news
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Now showing: the new Creative Commons Featured Commoner with collagist Vicki Bennett, interviewed by yours truly.

Filed by Derek Slater at 12:28 pm under General news
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(Update: I’ve now linked to a copy of the article here at my site (reprinted with permission). Also, see Lawmeme for more here and here and Professor Solum’s post – see my additional comments at the very end of this post.)

Today’s Wall Street Journal features an article by Professor Douglas Lichtman, in which he argues that the RIAA should be allowed to sue only the P2P services, not the individuals. He argues that suing individuals is inequitable, randomly penalizing certain people hefty sums while leaving others untouched and only benefitting implicated copyright owners. Though that inequity is tolerable in some cases, it is not when assigning indirect liability would be more efficient. Lichtman suggests that services like KaZaA and Morpheus should be liable; read an expanded view of his indirect liability approach here.

Lichtman’s plan is not unlike Judge Posner’s argument in Aimster.  Under a negligence rule (which apparently is quite common in tort law), technology creators should be expected to restrain infringement when doing so is inexpensive, the level of infringement is high, and legitimate use would not be adversely affected.  It boils down to an economics argument, weighing costs and benefits of uses in relation to how costly changing the technology would be. Unlike Aimster (where the issue wasn’t relevant), Lichtman would force copyright holders to choose between suing direct or indirect infringers, even mandating they only sue indirect infringers in some circumstances.

Though I do like his idea about choosing who to sue, I’m not too fond of the negligence rule approach because it creates uncertainty, curbing technological innovation. If a judge were to take the general purpose functionality of these P2P programs seriously when considering future benefits, we’d end up at something much closer to the Sony rule, which I assume is not what Lichtman’s trying to do with the negligence rule.  By focusing more on present benefits, the rule will harm service providers in their infancy, which will lack a substantial userbase and lack non-infringing uses that, to a judge, are significant. This will become particularly problematic when judges analyze whether altering the system would be disproportionately costly. Surely, the cost seems much lower when the service is new and lacks a full complement of non-infringing users. The key, then, is for content industries to target new technologies before they have a chance to seem valuable and worth protecting.

Under this rule, every technology creator has to know specifically how the service should be used for legitimate purposes and design around those specific purposes, because putting out general purpose technologies will leave a company open to huge damages.  In turn, users won’t be able to come up with new, innovative, legitimate uses of new technology because they’ll be strictly cabined within the uses the technology creator was thinking of. That, too, will hinder technology creation. (I suppose this is an extension of my general thinking of DRM and fair use, too. Sure, DRM can do a decent job of allowing for certain specified fair uses. But as far as allowing for user spontaneity, forget about it – we can get closer, but it’ll never capture what we have now.)

In an email conversation with Professor Lichtman, he suggested that this chilling effect is tolerable if we can ensure that new technologies actually “[get] out of the womb and onto the radar screen.” So, if you argue that we must protect P2P because of its substantial non-infringing uses, then what’s the problem with the negligence rule as long as we aren’t so harsh that we ignore the value of protecting legitimate uses? The uncertainty problem decreases if we can still protect those legitimate uses while filtering out the infringing ones. If the legitimate uses truly are substantial, they can stand for themselves; they don’t need to (and shouldn’t be allowed to) stand on the shoulders of infringement. Moreover, once the idea is out there, Lichtman argues, people will be able to continue to create versions that allow new legitimate uses.

That’s somewhat true, but I see a few problems.

Certainly, the creation of new legitimate uses won’t completely stop. But the amount of people innovating will greatly decrease, because it will be limited to people who have created a given technology or have the means to create additional features. In that way, the value of general purpose software – both to producer and consumer – is diminished.

Even if P2P itself can survive, many other technologies won’t be created because it won’t be worth the trouble to think of how to satisfy every possible content owner who might have a problem with one’s technology. And to the extent that adding a legitimate purpose risks allowing some more illegitimate uses, people will be hesitant to stray outside the lines of what’s already accepted.

In addition, this rule only works optimally when it is clearly possible to restrain infringement at very low cost and without much reduction in legitimate uses. P2P might provide such an example because, from what I know, it might be possible to filter certain files without significant cost to P2P provider. It would undershoot (missing certain misspellings and purposely altered files) and overshoot (hindering certain fair uses using copyrighted files), but it could be done with some accuracy, and debating how bad the under/overshooting is would be a slightly narrower debate that could lead to some constructive solutions.

Regardless, the problem comes when the cost of restraining infringement isn’t as clear and you have to distinguish P2P from other systems. Let’s compare Morpheus to AIM and Google. Morpheus and AIM both allow 1-to-1 file transfers, but only Morpheus allows for searching of indexes, so let’s say Morpheus has to filter but AIM only has to terminate people who are repeatedly infringing. Now, Google does do indexing, but they don’t do the same sort of file transfers and filtering for all sorts of files would be difficult because Google only indexes pages, not individual media files. So let’s say Google has to do notice and takedown but Morpheus still has to filter.

If we don’t draw these distinctions, then we really will cripple general purpose software.

If we do draw these distinctions, we still create more uncertainty. As every distinction becomes more and more fine-grained, technology creators will not know precisely how they should go about restraining infringement in their new creations. They won’t know what’s enough, so they’ll have to continually stay on the side of caution, eliminating more features from their programs that could be used for infringing purposes. This fine grained analysis is better than nothing (and, as I’ve said, would be helpful in the remedy stage using the Grokster analysis), but when we’re talking about having people redesign their software and create monitoring functions that they don’t currently have, it could get very messy.

Yes, I know that a lot of the law has to do with balancing tests like this. All balancing tests create uncertainty. But, with technology changing rapidly, it seems like there will be far less certainty than in other contexts. I’m not sure judges are in a particularly good position to make this sort of analysis with each changing technology.

Lichtman does recognize the value of how Sony dealt with the uncertainty problem and suggests a partial solution: safe harbors. But that is a very limited solution that would likely encourage people to remain conservative in their technological designs.  The distinctions I made above are incredibly difficult to design safe harbors around, particularly when you’re doing so without knowing what technology will develop in the future.  Again, better than nothing, but not really adequate.

Furthermore, Lichtman suggests that in some situations, a regime like the AHRA’s might be useful and cites Neil Netanel’s plan. Here, I can agree with him.

I must concede that Lichtman does have some things right here – it’s a far clearer statement of this approach than Posner’s. He’s right that, if you can ensure that the technology gets out of the womb, having a narrower debate about what manageable solutions to infringement can be expected might lead to some constructive solutions. The narrower the cost-benefit analysis gets, the more likely it is to be accurate. Then again, the narrower we get, the more we might lose sight of potential uses we haven’t even imagined. So, I’m still rather skeptical of this approach.

Update: Professor Solum has commented on the article here. He points out how the P2P genie might be out of the bottle, because people can continue to use current versions of Gnutella clients (like Morpheus) forever. You can sue the creators and make them change new versions (or, for those who have such a feature, auto-update clients), but that will only have a limited impact. Of course, that’s not necessarily relevant to whether this is a good liability standard. It is, however, relevant to the overall digital music debate. Professor Lichtman thinks that if we imposed the negligence standard and had more options like iTunes, we could see a large degree of change. If Solum’s right that the genie’s out of the bottle and we then infer that people will never have enough incentive to switch to iTunes-like services, then we should start considering more drastic solutions. If that takes the form of compulsory licensing, it seems Lichtman wouldn’t be entirely opposed – it just wouldn’t be his first solution.

Filed by Derek Slater at 6:27 pm under General news
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Couldn’t have said it better myself.

What’s surprising to me about these lawsuits is that the RIAA is targetting mothers like Ms. Bassett and senior citizens like Mr. Durwood Pickle. Weren’t they supposed to use the expedited subpoena process to go after “skanky pimple-scarred gangbanger[s]”? If they’re going to sue people indiscriminately without a lot of prior investigation, John Doe suits should work just fine.

I wonder if suing people like Bassett and Pickle is worthwhile. The RIAA can spin it in a “it can happen to anyone” sort of way, rather than a “do you, Sympathetic Possible Future Target, want to end up like this Skanky Pimple-scarred Gangbanger who we’ve just sued?” way. The latter puts off suing Bassetts and Pickles; the former doesn’t and thus could have more drastic consequences.

I suppose they’re choosing the former because, if people already think that file-sharing is wrong (whether done by them or the truly unsympathetic defendants), then all they need is a push in the right direction, reminding them that they aren’t perfectly hidden. But if people don’t think it’s wrong, let alone illegal, then Bassett’s and Pickle’s plight will be seen as sad and unfair, in turn limiting any deterrence effect and greatly expanding the potential for public furor.  (How can you root against a team like Bassett and Pickle? There’s an EFF educational cartoon waiting to come out of that.)

Of course, the RIAA isn’t limiting itself to the first spin tactic. They’re also saying that their battle isn’t solely about music piracy, but also about child pron. This is a new low – more disgusting than suing the four students last year. Sharman Networks is right that this is a horrible, totally undeserved smear campaign. Hiawatha Bray might be right that the P2P network owners are a bit disingenous when they say they don’t know or control or care about what goes on their network (note: Bray focuses on a lack of knowledge, which is not quite accurate – both Streamcast and Grokster admitted to having knowledge). But along with the Sony-style problems with ending the argument there – do the RIAA’s rhetoric and Bray’s logic mean P2P providers now deserve to be called child porn peddlers because they don’t actively regulate how everyone uses their P2P networks? Isn’t that going too far?

What is to separate this argument against P2P from an argument against the Internet as a whole? Not a whole lot. After all, “half the things on the Internet must be illegal.”

Filed by Derek Slater at 1:13 pm under General news
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WhenU (a sibling of Gator) does not infringe trademarks or copyrights, according to a federal judge in the Eastern District of Virginia. The decision was reached in July and the full opinion became available today. Please send a link to the opinion if you can find it. I’d like to take a look at it because the judge’s reasoning might make an interesting parallel to the Huntsman v. Soderburgh case, which addresses DVD players that automatically skip “adult content.” There, as in the WhenU case, the DVD players are used “as a result of the invitation of and consent of the individual … user.”

Filed by Derek Slater at 8:34 pm under General news
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Much to my delight, it looks like Ernest is really back to posting at Lawmeme. Check out this post on compulsory licensing. I’m busy moving in to school, but I hope to chime in later.

Filed by Derek Slater at 1:53 pm under General news
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I hope you’ve been following the rest of the commentary on Skylink here. In particular, read doogieh (who, I think, is this guy) comparing the judge’s reasoning to copyright misuse and Ernest’s response.

Update: Another back and forth. See below for my updated comments (starting with Update). In addition, I found this really interesting article about copyright misuse and the Video Pipeline case. It talks about misuse not as antitrust but as anti-Constitution. Interesting.

A couple of points in response:

1. They’re both right in a way.  Doogieh’s right that one can choose to make a distinction between Skylink and Reimerdes because the former obviously protects “substantially” more than copyright while the latter at least bears some direct connection to a copyrighted work. The judge’s pseudo copyright misuse argument compensates for the broad interpretation of “access control” thus far. It ain’t pretty, but it’s better than nothing, and it fits reasonably with the copyright misuse doctrine as a whole.

Ernest is right that the access control provision probably is supposed to protect substantially more than copyight (follow the links in this post to Ernest’s writings to learn more about the history and intent of 1201). Protecting cable signal stealing and such does go beyond section 106. True, the scope of the provision isn’t defined, but if it were connected directly to section 106, then the 1201(b) “copy control” provision (which does speak in terms of section 106) would be somewhat redundant. Furthermore, Ernest is right that drawing lines between Skylink and Reimerdes is vague and arbitrary. Even if we can choose to draw this copyright misuse distinction between them, strictly speaking there isn’t one, and we don’t know where the distinction’s boundaries are; there will be absurd claims like Chamberlain’s, but there will also be many closer calls.

Doogieh’s right that, in the end, those points might not matter. Judges come up with kludges to save statutes all the time, choosing to draw lines like these to fit laws into “common sense.” We can argue about the validity of interpreting statutes that way and creating doctrines like copyright misuse – regardless, these techniques of tailoring a statute do exist, and this workaround is better that others (at least more fleshed out than the judge’s).

Update: Ernest makes some good points about statutory construction and how you should read 1201(a) in relation to (b) and the (a) exemptions. Again, a judge would really have to twist the DMCA to make this defense work.

He’s also right that, looking through the lens of Reimerdes, the DMCA probably precludes copyright misuse as a defense in the same way it precludes fair use. I think there might be room for a slight distinction there. The fair use defense looks at your intent when you circumvent, whereas copyright misuse analyzes whether there’s a valid copyright claim (and thus a DMCA claim) in the first place. The former failed because the language in the DMCA about fair use only means that the defense to copyright infringement is unchanged, but it’s eliminated as a defense to the DMCA. Since the copyright misuse claim is about copyright broadly, not really about the DMCA, it might work. A small distinction, but something a judge might pick up on if they’re already busy reading stuff into the DMCA. (Ernest says that it’s more like DMCA misuse, but I’m not sure why – Chamberlain’s misusing their copyright to make a DMCA claim that they can’t make. Perhaps his argument is that the misuse only revolves around the DMCA, and thus there’s little reason for a judge to invalidate the entire copyright. That makes some sense, and is part of the reason why judge’s are reluctant to use the misuse doctrine.)

At times, Ernest and doogieh are talking past each other. Ernie makes a positive claim that copyright misuse is a weak doctrine (that was my impression), but doogieh’s making a normative claim that this is a good way to beef it up.

2. Of course, the judge didn’t say copyright misuse – she said that this didn’t count as circumvention of an access control. On that point, she is obviously wrong as far as Reimerdes goes.

Copyright misuse generally would go beyond making a particular right (in this case, 1201(a)) inapplicable, instead invalidating the entire copyright for the period of misuse. So Doogieh’s argument, if applied as typical copyright misuse, would have broader implications.

3. I know of copyright misuse only because it’s generally in a long list of legal arguments (estoppel, implied license, unclean hands) that are often shot down in Internet copyright cases. So, I’m eager to see the article Doogieh’s planning. It would be interesting if the doctrine were applied broadly to misuse of DRM precluding fair use, reverse engineering, etc. So far, that hasn’t happened. See what I wrote way back about copyright misuse here. (That link isn’t working right now, so see the Google cache if that link doesn’t work.)

4. See here for the Lexmark copyright misuse argument Doogieh refers to.

Filed by Derek Slater at 1:39 pm under General news
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Ernest Miller returns to Lawmeme to post about the recent denial of summary judgment in Chamberlain v. Skylink, the DMCA garage door opener debacle. As Ernest explains, it’s a good result with poor reasoning. In Lexmark, Reimerdes, Streambox, and Gamemasters, similar programs were defined as access controls, and the distinctions drawn by this judge are not that convincing.

Which is not to say the argument can’t be made – in fact, Ernest himself has made it several times. The access control provisions were targeted at people who didn’t legitimately have access to the copyrighted work, e.g. people illegally getting cable. Someone who buys a DVD theoretically has authorization to access the work, but, according to all court rulings except this one, you also need authorization to decrypt.

[added:] Ernest nails the most important problems with the judge’s logic. One other stems from the judge’s assertion that Chamberlain didn’t tell homeowners that they couldn’t use other products. Why should that make a difference if we’re assessing whether something controls access? It either does or it doesn’t, regardless of what homeowners knew. Similarly, why should historical interoperability matter? Read together with the judge’s commentary on CSS (and putting aside the problems of her logic there), does she mean to say that because Chamberlain didn’t specify which openers were authorized, all openers are implicitly authorized? I don’t understand why that would be.

[added:] The judge would have been better off explicitly disagreeing with the other cases rather than trying to distinguish them. Either way, it will take more detailed reasoning than this.

When reading the court hearing transcript, the reverse engineering exception seemed to be a better fit – I wonder why the judge didn’t go that route. Does it have something to do with this being a summary judgment?

Filed by Derek Slater at 7:00 pm under General news
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1. Whenever legislation targeting P2P is proposed, someone always asks, “Can you target P2P without lumping in search engines, file transfer software, and basically everything else on the Internet?”

I’ve never been able to come up with a definition that can do that. P2P file-sharing software is defined by a) indexing of files, which are b) located on hard drives and c) copied on request to another person’s computer.

You can’t distinguish P2P from most search engines based on a). Focusing on whether the indexing is centralized doesn’t help much. I suppose you could look at whether someone specifically signs up to be indexed, but why should someone be penalized for doing that? Should Yahoo not take website submissions to add to its index?

For b), it’s hard to distinguish having the files on your personal local hard drive from having them on a web server (they might be the same thing). For c), everytime someone clicks a link in a search engine, or initializes a file transfer on AIM, they’re copying a file on request.

If you try to define P2P by discussing its primary purpose and functionality (Kazaa is only file-sharing, but AIM is a messaging service that happens to allow file transfers), you would encourage P2P services to add other functions while hindering the development of streamlined services (like, say, Google).

So, does anyone have a suitably narrow definition?

2. So far, the DMCA’s reverse engineering provision has been intepreted narrowly, including only program to program interoperability. Interop between your movie program and movie is not covered. Movies, in their transition to the digital medium, are now data, not programs.

But what are video games? They seem more like programs, but will they be covered? And how firm is the distinction between data and programs? What would bend the distinction?

17 USC 117 allows you to back-up computer programs. Presumably, Congress created this right to recognize that digital data is not permanent and can be ruined quite easily. The same is true of music files, but, theoretically, this exemption wouldn’t apply.

3.  From the DMCA Exemption post-hearing comments:

Question: “Is [United States] person’s use of the multizone DVD player to play [a] DVD encoded for a region other than region 1 an act of circumvention under 17 USC 1201 (a)(1)?

DVD CCA: “DVD CCA takes no position on the response to this question.” Footnote: “…[A]t the May 2 hearing … [we] responded ‘I don’t think so.’ Subsequent to that hearing, it has become apparent that there are different views within DVD CCA on the response to this question.”

MPAA: “Yes. As the Librarian concluded in the 2000 rulemaking, regional coding is an access control measure within the meaning of 1201(a). Use of a multizone DVD player, or any other device to avoid, bypass, deactivate, or otherwise impair such regional coding, meets the definition of ‘circumvent a technological measure’ in 1201(a)(3)(A).”

4. I spend a lot of time here criticizing fair use’s ambiguity as applied in various court cases, so revisiting this was in order, as I did the other day. “Better” DRM is ultimately just a kludge on top of many other copyright law kludges, which could be resolved by a compulsory licensing kludge. Though a right to hack will help, it won’t fix everything because not everyone will be able to perform the hack.

I wonder if someday we’ll see the EFF go past the “right to hack” like they did when they switched from “sue the infringer, not the technology creator” to “let the music play.” The EFF avoids tech mandates like the plague, so it’s hard for me to imagine them mandating DRM to allow certain fair uses. Maybe they’d be ok with conditioning copyright enforcement on allowing some fair uses. Still, that would probably indirectly limit technology because few copyright holders would forego copyright protection.

I can’t decide right now whether that’d be the right step. I used to agree that we were running out of options what with Palladium on the way, and that’s part of why I started this blog. I guess I’ve moderated a little over the year.

5. Frank points to another tivo-for-radio program. Matt brought up Streamripper the other day and whether such recording is fair use.

It’s unlikely we’ll ever know if these companies/programmers are contributory infringers – they’ll be sued into the ground before that ever happens. That’s why I wish the ReplayTV case had gone to court. If ReplayTV had won, we would have had another case affirming time-shifting as a fair use and time-shifting devices as substantially non-infringing. That principle could then be extended to these audio time-shifters. Moreover, a win would likely show that time-shifting as fair use is not contingent on people’s viewing habits staying just like the ones Justice Stevens said were not harmful to copyright holders; the overall reasoning, not the statistics, of Sony would take center stage (see this article on how new stats could affect time-shifting fair use). If ReplayTV had lost, then we would have had so much uproar that Congress might have stepped in and try to revamp fair use.

(To address one repeated inaccuracy: Sony does not speak to archival, permanent copies, only to time-shifting. Both parties assumed for the purposes of that case that archiving was not a fair use. Probably, permanent copies would be seen as a “commercial” use because they supercede a purchase.)

Re: the AHRA – these devices will not be covered, just as the Diamond Rio and other computer equipment are not covered. That EFF doc seems to repeat another inaccuracy, that the Diamond Rio case made space-shifting a fair use. The court made an analogy to Sony and defended space-shifting on the basis of the statute’s purpose, but it never said it was a fair use. What’s interesting is that, given computers aren’t covered under section 1002 of the statute, neither would space-shifting using computers under 1008, the non-commercial exemption (unless you consider it an analog recorder).

Re: the DMCA – some programs have actually circumvented copy controls. Some just copy the stream to the hard drive. Digital radio stations are required under 17 USC 114 (2)(c)(vi) to make such copying difficult, but that doesn’t mean they use copy controls. That would be like saying multizone DVD players circumvent access controls.

Oh wait.

Filed by Derek Slater at 7:51 pm under General news
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First, check out these two articles by Professor Pam Samuelson: Trade Secrets v. Free Speech and Resolving Conflicts between Trade Secrets and the First Amendment. The former is a short piece just on Bunner. The latter is more in-depth, fitting Bunner into larger issues about trade secret law – here are my notes on the piece.

Second, Frank’s got some good bits on the “right of access” we’d like to find in the First Amendment and in fair use. Seth “Eeyore” Finkelstein (who’s been posting a lot about Bunner) and I discussed this awhile back. Kevin Heller has a short argument about it.

The content-based/-neutral test is unwieldly in the case of code. The Corley court used the Internet as an excuse – that because code is functional and the Internet transmission has such immediacy to it, that functionality can be targeted separate from the actual speech. Immediacy makes far more sense if restricted to object code, but Corley included source code. Regardless, all speech is functional in some way, and code (certainly source code) is no different in that regard than recipes or blueprints, which are also pure speech.  At the same time, code that is not part of any expressive activity should not be regarded in the same way as pure speech. Addressing this unique speech rigidly, by looking only at whether function is targeted, is not adequate. Instead, we should shift more focus to how the speaker uses code in context, rather than what the code does (discussed more here).

The content-based/-neutral distinction works a bit better in this case because the UTSA isn’t focusing on one type of expression. The DMCA targets specifically encryption circumvention code/speech. The UTSA is more neutral in its application, so the argument works a bit better here. But, as Judge Moreno argues, it still inhibits Bunner from speaking about a particular type of information. Whether that’s enough to shift from content-neutral to -based, I’m not sure.

What Frank is really talking about, I think, applies less to code-as-speech and more to fair use. Frank is talking about how, without a right of access, we do not have fair use and thus the First Amendment activities it enables. Asking a court to include that in a fair use analysis is hard enough (Kevin’s argument sounds nice, but the cases he cites sound distinguishable – they sound like unique exceptions regarding distribution, not private fair uses, like time shifting). Asking a court to include that activity in its consideration of the DMCA as content-based towards circumvention code would be too much. They’re really two separate issues.

Third, the public/private concern distinction seems odd to me (see Volokh’s argument). I don’t see how this wasn’t a matter of public concern. The real question is: was it presented as an expressive practice? Was he posting the code to engage in a discussion, or just to post circumvention code? Here, too, looking at context is key. I suppose looking at private concern as part of the context is okay [added:] and can help sort out secrets relevant only to a private competitor who won’t be hurt too much by the delay; it makes sense to assess the harm to the public in this special exception to the rule against prior restraints (note: the public/private concern is not a wholly foreign line-drawing measure in free speech cases, e.g. libel law). But a strict, binary public/private distinction shouldn’t be wholly determinative – what is private concern to these judges is public to many interested in IP and encryption. The judges are too dismissive of this argument.

So, to the extent that the CA Supremes didn’t take seriously how Bunner’s posting the source code was part of an expressive activity in a public debate, I question the decision. But, I don’t know enough about exactly how Bunner posted the code (was it part of an article? did he try to explain parts of the code as a matter of security research?) to say if that would have made a difference.

Indeed, given all that the Appeals Court and CA Supremes assumed about Bunner, it surely would not have made a difference at this stage. If you assume he knowingly misappropriated code that still is a secret, then the public/private concern matters far less. And that’s why this decision won’t matter too much after the Appeals decision, and why both sides are claiming victory in this decision.

Hopefully, the Appeals Court will sort the trade secret issue out correctly. Intuitively, I don’t see how CSS is still a secret.

Finally, as Samuelson argues, calling trade secrets “property” goes too far. To the extent that IP laws exclude people in the same way trespass laws do, the analogy works, but unfair competition laws might work better. (I’m not sure what the difference would be in practice, but Samuelson suggests there is one – “property” seems more exclusive and comprehensive than “unfair competition”, I suppose, but the Court’s remand accepts that the right can be exhausted.) At least the court did not let “property” alone end the analysis.

Filed by Derek Slater at 8:14 pm under General news
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From Slashdot:

If you search Google for Kazaa Lite, you’ll find the results a bit lacking. Ironically enough, Sharman Networks, using the DMCA, filed a legal complaint to block Kazaa Lite sites. ” Google links the DMCA request at the end of the results which contain the URLs in question, but the URLs aren’t really the point. It’s scary that the DMCA makes URLs a copyright violation. How long before libraries can’t index books? Or own them?

I wonder if a real infringement suit is to follow.

Filed by Derek Slater at 2:36 pm under General news
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The Economist has a decent piece about movie piracy.  It’s got some good balance, discussing problems in the MPAA’s approach. It points out how Movielink is “clunky” and notes that consumers and electronics companies hate DRM. Interestingly, it doesn’t discuss legislative actions taken by the MPAA – that would have made this a far more complete copyright piece, the sort of thing I’ve come to expect from this mag.

(Also, doesn’t it annoy you that articles like this always ignore how the MPAA represents TV, too?) 

Filed by Derek Slater at 11:53 pm under General news
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After reading the Library Journal article on fair use, I wanted to link together some pieces from the article by two Berkeley SIMS students about evaluating DRM systems. The latter cites a paper by Deirdre Mulligan, Berkeley Samuelson Clinic Director, and Aaron Burstein, a Berkeley grad student, about creating DRM that can expressly permit certain fair uses and allow customers to request uses through third-party rights servers (without giving up their privacy). You might also want to check out this similar paper by them.

Honestly, I can’t say I totally understand their suggestions on a technical level. But, if their plan is possible, it puts an interesting spin on DRM.

Most of the time, we think of DRM as the embodient of the “alls” in the copyright debate. With Mulligan and Burstein’s version of DRM, we have something a little closer to “some” – not the true “some” of Creative Commons, of DRE, but a bastardized “some” nonetheless, somewhere in between. It runs counter to part of David Weinberger’s fears in “Copy Protection is a Crime,” for perhaps DRM can provide latitude and exceptions.

Certainly, though better DRM might be better than the “hard-coded software incapable of applying the snicker test” that Weinberger’s thinking of, it’s still just software. It’s not a human.

That’s why Mulligan and Burstein realize that there needs to be, along with basic expressions of fair use, some sort of messaging between consumer and creator, and potential for immediate and deferred decisions.  Again, not perfect, but better than just software – better than our worst fears about DRM. This balance is reflected in and expected by Professors Burk and Cohen’s proposal, Fair Use Infrastructure for Rights Management Systems (which I originally discussed here).  They condition copyright protection on allowing a baseline of fair uses and condition DMCA protection on escrowing circumvention keys for potential fair use requests and arbitration.

Using this dual system, Burk and Cohen have brought together two sides of fair use proposals, which actually fit into a larger legal debate about rules versus standards. Groups like Digital Consumer push for specific fair use rights that cover many consumer expectations. These rules would remove much of the uncertainty in the currently fragmented, broad, and thus somewhat meaningless doctrine. No longer would fair use mean merely that you have the right to hire a lawyer. At the same time, having broad fair use standards allows for the spontaneity that the doctrine requires; fair use is always evolving and cannot be pinned down to a particular set of uses. Indeed, by legislating a specific set of rights, standards-supporters say we risk making it seem like those rights are the only fair uses (I’ve always found this a silly criticism, since most legislation of this sort specifically states that it is not a comprehensive list).

Like many aspects of copyright, the proper solution is probably a “some.” Both strategies have upsides that we should try to capture. Rights can be enumerated, and that list can be updated over time. Standards can be improved to specify the underlying principles of the fair use test (public interest balancing? market failure? a clearer mix?).

In the DRM context, the escrow key system can also help fill in some gaps. Ultimately, I’m not sure if such a key escrow system is feasible. I’m also not too optimistic that such a thing could ever be legislated. 

If we are not moving to more compulsory licensing (which would diminish the need for DRM), enumerating some fair uses with a right to hack is superior to letting the market work itself out. That would simply perpetuate the idea that fair use is about market failure, not about protecting public interests.

With that in place, Burstein and Mulligan’s proposal could help in other ways. Of course, without a legislative mandate, its effect is contingent on copyright holders using it to allow fair uses. Still, by allowing such systems to develop privately, without a single center, key escrow and better DRM is a possibility. And, if it isn’t, then we can sort that out after it’s been tried. At the very least, better DRM gives us some chance to move past DRM as the spectre of pure “all.” If there is truly going to be a competitive market in digital music services and thus DRM, then it will have to involve these flexible proposals.

Update, 9/1, to not give anyone the wrong impression: I’m not writing this to advocate DRM. As I’ve said before, I am incredibly suspicious of DRM/”trusted” systems and the often oligarchical market they are being born into. DRM will never be able to fully preserve the ambiguity that allows new fair uses to develop alongside technology. But, if we are to allow DRM to exist, then flexible DRM is better than what we’ve got now. Hopefully, the competitive process will make it less and less restrictive, making digital media as – if not more – capable of fair use than analog media. Flexible DRM might play an intermediate step between our ideal DRM-less digital media and today’s DRM.

For more on this thread, see this debate from last summer about Lessig’s “better DRM” article. Ernest Miller is still right that DRM, flexible or not, is restrictive, and that the market conditions are not ideal. At the time, I agreed with him completely. Now, as I see competition in digital music services beginning, I am more hopeful that he is wrong.

Filed by Derek Slater at 4:16 am under General news
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