A Copyfighter’s Musings

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 respectcopyrights.org 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 MoveOn.org 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.

Filed by Derek Slater at 3:21 pm under General news
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(via pho) Fred von Lohmann has posted two interesting legal docs: one is the P2P Porn bill, discussed below, and the other is Bertelsman’s motion to dismiss in the tertiary liability Napster case. The latter is definitely worth checking out.

Filed by Derek Slater at 4:14 am under General news
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They’re trying to keep children from getting porn on P2P. Interesting. So why did they call the bill: “To prohibit the distribution of peer-to-peer file trading software in interstate commerce“? (Go to HR 2885) (via boingboing and pho)

Given the news articles and press releases about the bill, it’s probably a mistake, but a pretty stupid one.

Filed by Derek Slater at 8:13 pm under Big Ideas
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Today I read “Fair use and Market Failure: Sony Revisited” by Glynn S Lunney, Jr (which I have not been able to find online. Please tell me if you find it elsewhere.). The author makes a great case for moving away from the market failure focused analysis of fair use and altering the fourth factor (potential impact on market) to make the copyright holder prove more harm. He also makes some more radical suggestions regarding how to change fair use. Not sure I agree with how he changes the test, but I do like his general argument.  For another argument of this sort, check out the Dissenting Opinion in that Texaco case I pointed out earlier today

Click here for my notes on the Lunney article.

Filed by Derek Slater at 5:20 pm under Big Ideas
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Now that I seem to have all these tech-savvy people visiting and answering my technical questions, let me put this on the table again: is it possible to track the destination of a file as it is being downloaded on a P2P system? I know the RIAA is suing sharers, but it could it sue downloaders, too?  Is that contingent on being involved in the transfer (that is, having the RIAA being the uploader)?

Filed by Derek Slater at 3:22 pm under General news
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To figure this out, I’ll meditate on mutual funds while you grep for group ownership of sound recordings.

[added:] Although, it’d probably be better to start by figuring out some more pertinent issues, like the ones Frank points out. Cringely says, “Each share also carries the right to download backup or media-shifting copies for $0.05 per song or $0.50 per CD.” It does?  If you have to pay to make the back-up copy, that might change the fair use analysis.  Group ownership of a recording (even if it works like Cringely says it does) probably does not include making back-ups for each member of the group.  Having one copy does not mean you can make infinite simultaneous uses.

In fact, there’s an appeals case that’s quite applicable here: American Geophyiscal Union v. Texaco.  A Texaco scientist made personal copies of particular articles within a scientific journal purchased by Texaco. Everybody was working under the same roof, but it wasn’t a fair use.  The fact that Texaco is for-profit played a slight role compared to the court’s construal of the market impact – the journal was losing traditional potential licensing revenues.  Where have we heard that before? The MP3.com case.

There are certainly grounds to disagree with both cases. Sony‘s treatment of the potential market seems pretty different.  The Court scrutinized the copyright holder’s discussion of market damage. In these other cases, there wasn’t a heck of a lot of proof of damages and the courts didn’t really burden the copyright holders.  The difference, I suppose, is the first factor, the fact that it was commercial use, though the judge in MP3.com didn’t really emphasize this.(I think it’s time to read the fair use after Sony article that I found. I’ll have something on that a little later.)

One last question: regardless of whether Cringely’s scheme would work, do you think most people look at it the same way they look at Fisher’s scheme? If not, for the average person, which one’s the dream scheme and which one’s the plausible plan? 

Filed by Derek Slater at 1:11 am under Big Ideas
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It’s been blogged before, I think, but I’ll point to the new version posted on SSRN. Lawrence Solum points to Stan Liebowitz’s economic analysis of file-sharing, lending moderate support to the RIAA’s claims.  Liebowitz also promises a paper called “The Production of Music in the face of peer-to-peer downloading: Does there exist something better than the market?”, which I haven’t been able to track down.

Filed by Derek Slater at 7:52 pm under General news
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A brief addendum to my post yesterday:

First, so these proxy servers also have IP addresses, right? Do users then simply show up as the proxy’s IP? That is, can you determine who the proxy is by virtue of what IP is sent?

In any case, I’ve been thinking more about Verizon. Verizon receiving a mountain of subpoenas conjures up privacy concerns for me. I don’t worry about Verizon bearing too much cost; not that it’s insignificant, but I think they’ll still be around at the end of the day.

The further I move away from examining Verizon, the more my concerns change, shifting to more fundamental concerns about Internet architecture. I understand proxy servers are a part of privacy, too, even though I can’t say I totally understand how they work, who runs them, and how they’re created. But my impression is that they’re a much simpler service than Verizon’s.  Their operators don’t seem to need the same resources to create one. Many have no account holders or subscribers in the commercial or organization sense. If they’re doing it for anonymity, they probably keep no records or paper work. They don’t control their users, and they don’t communicate with them in any way. All these server operators are doing is plugging in a computer that routes some packets.

Are we really comfortable with these people receiving a mountain of subpoenas? Service operators probably won’t have the resources to deal with them. And thus we’ve eliminated proxy servers.

Creating too much of a slippery slope argument here would be an oversimplification or at the very least would be incomplete. This analysis could be applied to other services. Hell, it could be applied to the OpenNap servers (and, as I’ve said before, I’m not sure if I’m even comfortable with eliminating them). All of this is admittedly quite complex with many grey areas.

So let me make some simpler statements and claims. These subpoenas make me feel like we’re really on the brink now. Before, the Napster ruling and the DMCA had the potential to cause real harm. And slowly but surely, potential has proved all too real.  The copyfight is now affecting Internet issues that were once (and should still be) totally irrelevant to copyright. Letting copyright bleed into and overwhelm the politics of proxy servers is silly, just as it would be if we let it dominate search engine politics or the design of web browsers.

I know we’ve all had that sense for awhile and that this isn’t new. Why do these subpoenas feel different?  Because of how quick the P2P services are employing their counterattacks, and how quickly people are looking to P2P services with more anonymity.  The arms race is quickening. It feels like if we’re not careful, it’s going to go nuclear.

So, I should take this opportunity to applaud the EFF’s new Let the Music Play campaign. It is clearly a change in stance and tactics for them and perhaps that makes it a little disingenous. After all, the EFF did tell the RIAA and MPAA to go after the users, the ones actually infringing, rather than service providers. Well, now they’re doing that, albeit in a privacy invading way, but in a way that doesn’t target technology creators. The EFF has recognized that’s not enough – it will not end the arms race. Even going after users wouldn’t solve copyright’s ills and its unintended impact on the Internet. The EFF is trying to come up with a better solution to the problem, one that is lasting and can benefit all involved. I’m glad they shifted their stance in this direction, and I hope they’re successful.

Filed by Derek Slater at 4:52 pm under General news
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Today I read David McGowan’s “From Social Friction to Social Meaning: What Expressive Uses of Code Tell Us About Free Speech” which goes through Corley, Elcomsoft, Bernstein, and other interesting code cases. It’s a great article, discussing how courts classify code on the basis of its function, expressive content, and context. His recommendations seem quite reasonable. Here are my notes, but it’s worth reading for yourself.

Click here to read my notes on this article.

Filed by Derek Slater at 4:49 pm under General news
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Question: how much of a difference will proxy servers make?

First, will they actually work?  From what I’m reading, they will hide the IP of the sender and receiver. Is that true?

Second, could the owner of a proxy server be liable or required to identify the user?  Let’s put aside contributory liabilty arguments for the moment and consider DMCA 512.  It looks like proxy servers would fall under subsection (a) – they’re just passing information which they have no control over.

Here’s where the Verizon appeal is going to be very interesting.  The court read the subpoena subsection to apply to all service providers, even ones in subsection (a).  This seems contrary to the statute, given that those providers do not have a designated copyright agent and that there is no takedown procedure in that section.  (Perhaps a better way of dealing with Verizon would have been to put it in subsection c because the material in a loose sense resided on the network.)

If this result stands, a proxy server owner would have to turn over the identity of those who transmit through it. Do proxy servers even record such information? The information surely is “available” to them, even if they don’t record it. So would they be forced to record it?  

And would they have to block people who repeatedly infringe, subject to subsection (i)?  How do you construe account holders and subscribers?  Students at colleges and ISP subscribers obviously count, but proxy server users?

[added:] Another interesting anonymity feature is blocking others from viewing your file library.  I don’t know if you can get around this (searching using the file sharer’s name perhaps?), but, if you can’t, then it might be a way of slowing down the RIAA.  They won’t want to subpoena people for just one or two songs.

Filed by Derek Slater at 1:37 pm under General news
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This week started with a long, perhaps mundane piece on the intricacies of copyright third-party liability law.  Here are two more accessible and interesting things I’ve been involved in lately:

1.  For Creative Commons, I’ve written an article about artistic appropriation, using “Illegal Art” as a starting point. Check out “Take Another Little Piece of My Art.”

2.  On July 25, the Black Box in Oakland will be hosting the EFF-sponsored “Digital Mix”, featuring some amazing electronica and sampling artists along with great presentations by EFF’s Fred von Lohmann, Creative Commons’ Glenn Otis Brown, and Illegal Art’s Ray Beldner. If you’re in the area, please come! (My role was (trying and) failing to get an act for the event. Heh (smirk).)

Oh, and btw – whoever wrote me about movie rentals, licensing, and first sale – please write again, because I think your email was treated as junk by one of my monthly filters.

Filed by Derek Slater at 2:10 pm under General news
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This post can now be found here.

“Today I want to talk about contributory and vicarious liability. As I investigate the caselaw through Napster, I will discuss a few elements where Napster could and should be refined, including the changes Grokster incorporated….”

Filed by Derek Slater at 5:31 pm under Big Ideas
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[Updated 5:23, see below] I am developing a more substantive post about what Napster should have said – I don’t think it’s going to say anything too groundbreaking, but I hope that it will summarize some of the key issues and start some interesting discussion.

For now, let’s talk about Posner’s interesting dicta in Madster. On page 6 of the decision, Posner says that time-shifting a TV program for permanent storage (“librarying”) is an infringement and so is commercial skipping, which “amounted to creating an unauthorized derivative work” that would reduce the copyright’s holders ability to make money (thus not qualifying for fair use, presumably).

The first fallacy: Posner attributes this to the Sony opinion with zero justification.  Nowhere in the Sony opinion does the Court say anything of this kind.  It only addresses two fair uses: unauthorized and authorized time-shifting, defined as the recording, playing back, and erasing of a program.  It mentions in several footnotes the District Court’s analysis, but its ruling was inconclusive on librarying and skipping commercials. The District Court noted that very few people were librarying and omitting commercials and that it was unclear what impact this would have on the copyright owners.

There is, in fact, reason to believe that Sony specifically rejects the notion that commercial skipping creates a derivative work.  The Court of Appeals asserted, in finding that time-shifting was not fair use, that uses of the Betamax were not “productive” and thus, as far as I can discern, not transformative [clarified 5:23 to make productive/transformative distinction].  By definition, if a work is not transformative, it cannot be a derivative – it is a mere copy.  The Supreme Court did not explicitly disagree that the uses were not productive or transformative, stating only that this was not the sole factor in the fair use analysis.

Now, I could go into librarying and why that should be regarded as a fair use, but I won’t for now because a) I think it actually is a tougher case, and b) I want to stick with the commercial skipping, which seems way more clear cut to me.

Posner cites three cases to support his argument about commercial skipping.  Here they are, with my short descriptions:

WGN Continental Broadcasting Co. v. United Video, Inc., 693 F.2d 622, 625 (7th Cir. 1982)
 This case has to do with retransmission of a broadcast signal and mentions that you have to retransmit with commercials intact. It has nothing to do with private, non-commercial use. But, it emphasizes that a TV transmission is a public performance
 
Gilliam v. American Broadcasting Cos., 538 F.2d 14, 17-19, 23 (2d Cir. 1976);
 ABC distributed edited versions of Monty Python episodes.  This has nothing to do with private, non-commercial use.

Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1173 (7th Cir. 1997)
 This case involves a knock-off Beanie Baby manufacturer. The only connection is that it harmed Ty’s market.

As applied to private uses, which are not implicated in these cases, calling commercial skipping the creation of a derivative work is at best completely strained.  The work is not fixed in a tangible medium; it is simply part of the performance of the non-transformed existing copy.  WGN’s statement about public performance would matter if playing a recorded show and skipping commercials were a public performance. But it’s not.

And that’s the point.  Commercial skipping isn’t a fair use – it’s a private performance. For an eloquent description of and argument about private performance, see the EFF’s amicus in Huntsman v. Soderburgh. (Sidenote: this is part of what Professor Lessig is getting at when he talks about getting people away from protecting fair use as the only rallying cry.  We have to focus more on protecting unregulated uses.  Private performance is (used to be?) one of them. This is also a point that John Mitchell stresses.)

The copying of the show and the commercial skipping are really two separate actions.  The copying is fair use as time shifting.  Once you have that copy, the commercial skipping is part of private performance and does not implicate any of the copyright holder’s exclusive rights.

The only way to get around this is through some loose logic: Time shifting doesn’t mean copying for private, non-commercial use is fair use. It means that copying to watch only once and then erasing is fair use. So there are conditions on how you can use that copying, assuming that librarying is not a fair use. So commercial skipping could be one of those conditions, too.

But that logic would go too far if applied to commercial skipping.  Not allowing librarying would, in my mind, have more to do with preserving the public performance right.  You’re allowed to make that copy to watch the authorized performance, and only once because it was transmitted to you only once. Once on your TV set, however, there’s a private element to that performance. You don’t have a right to retransmit or (for the sake of argument) to library because that would rub up against how the program was only transmitted once.

If commercial skipping is part of a private performance, the effect on the copyright holder’s market (which Posner cites as reason to bar commercial skipping) is also completely irrelevant.  It has to be some sort of derivative for that to matter. (For clarification and counterarguments to my assumptions about derivative works, check out this debate on the Clearplay cases, which discusses some muddled lower court doctrine regarding whether fixing in a tangible medium is important. The two cases they discuss are Microstar v. Formgem and Nintendo v. Galoob. The former involves the creation of Duke Nukem custom levels; the latter involves a Game Genie altering Nintendo games and whether that constitutes a derivative work.  The cases cut both ways for the Cleaplay cases.  Check out the Clearplay casedocs for more on these cases.)

Of course, we shouldn’t be surprised that Posner put this dicta in there without reasonable justification. That’s what half the Madster opinion is – totally unrelated info, with very little supporting material, just to try to embed Posner’s views into other aspects of copyright law.  And, if we’re unlucky, that could come back to bite us.

Filed by Derek Slater at 1:16 am under General news
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I got a chance to read through Neil Netanel’s “Locating Copyright Within The First Amendment Skein“.  You might also want to check out the following articles: Alex Kozinski’s “What’s So Fair about Fair Use?”, which I think does a better job than Netanel at handling resolution to certain fair use disputes; and “Fair Use And Market Failure: Sony Revisited” by Glynn Lunney Jr., which deals with different ways to interpet fair use through Sony (I haven’t been able to find it except on Lexis Nexis). Also, I’ve been reading some articles discussing Napster, articulating in far clearer ways the confusion I’ve had.  I’m going to try to have a post discussing how I view that decision normatively, not just in relation to the caselaw.

In any case, here are my Netanel notes, with minor commentary:

Netanel
Tension between First Amendment and copyright – written before Eldred, so it’s not like the Court is likely to take this up. But it is an interesting normative argument.

Part 1 – Nimmer’s analysis
 “Nimmer concluded that, except with regard to certain news photographs, copyright’s idea/expression dichotomy and limited term of protection provide adequate protection for free speech values.”
 His analysis was adopted in many cases.
 But, Netanel says, things have changed in copyright since 1970.

Part 2 – What’s Changed in Copyright?
 1976 – Derivative works codified, bringing together and broadening several separate clauses.
  Court cases construe this broadly.
 Fair Use
  What’s the standard?  Market-centric view, looking towards fair use as solution to market failure due to transaction costs (see Harper-Row)? How transformative the use is (see Acuff-Rose)? Fair use as balancing the monopoly power (see Sony – for more on this and conflicting readings of Sony, see FAIR USE AND MARKET FAILURE: SONY REVISITED by Glynn Lunney Jr.)?
   (Note: the first version is the tact taken by people like Tom Bell and, I think, Stan Liebowitz when they talk about fared use rather than fair use.  If the transaction costs are no longer as large, then there’s no problem with actually pricing each fair use.)
  Where’s the burden? Fair user (see Harper-Row)
 Terms are not limited
 Paracopyright – he talks about DMCA, but he could have talked about contract law just as easily
 Media consolidation – copyright actually leading to more consolidation, less diversity of content and speakers

Part 3 – What’s Changed in First Amendment Law?
 The category approach, and the two part analysis
  Is this a regulation that requires scrutiny?
  Is it content based or neutral? Former gets strict scrutiny (compelling interest, least restrictive alternative), latter gets intermediate
 Content based – going after a particular viewpoint, speech with a particular “communicative impact”
 Content neutral – not based on those things, but rather on time, place, and manner.
  Though it’s “intermediate” that has meant many different things. Typically, follows “Under intermediate scrutiny, such regulations will be upheld if they (1) are justified without reference to the content of the regulated speech, (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels for communication of the information.”

Part 4 – Answering Question 1: Does copyright deserve any scrutiny?
 Responding to: Copyright must be looked at separately from First Amendment
  Netanel’s strongest arguments: other IP rights, like trademark and right of publicity, have been subjected to analysis. Safety valves are failing.
 Responding to: Copyright doesn’t burden speech
  Rebuttals: Using someone else’s work is an expressive act, more than an incidental burden on it.  These acts cannot be compared to nonspeech like obscenity or malicious falsehood or others without any substantial value.  You can distinguish just copying the work from reusing it.

Part 5 – Copyright is COntent Neutral
 “But copyright law does not discriminate on the basis of the message conveyed, seek to determine which topics may be the subject of public discourse, or endeavor to temper communicative impact”
 Doesn’t present the same problems as pure censorship, and the Copyright Clause would lead us away from giving it the highest scrutiny.
 More consistent with caselaw – see Regan v. Time Inc and the Olympics v. Gay Olympics case, even with Remeirdes

Part 6 – Copyright deserves Turner scrutiny
 Typically, intermediate is pretty deferential.  Instead, we should use the subcategory from Turner which is used when “the government is effectively allocating speech entitlements”
  “The Court insisted that the government must
adequately show “that the economic health of local broadcasting is in genuine jeopardy and in need of the protections afforded by must-carry.” It also held that the government “bears the burden of showing that the remedy it has adopted does not ‘burden substantially more speech than is necessary to further the government’s legitimate interests.'””
  “In turn, the speaker–discriminatory content-neutral regulation at issue in the reinvigorated ‘intermediate scrutiny’ cases gives reason to suspect that government is defining and distributing speech-related entitlements at the behest of politically powerful groups who seek to garner those entitlements for their own commercial gain.” – dealing with the rent seeking of copyright.  Must take into account people not privileged in democratic process, the dispersed individuals effected by the legislation.
 Copyright Law as rent allocation
  Happening more than ever, see Sony Bono, DMCA

Part 7 – Applying Turner
 CTEA
  Talks about how courts that use Nimmer forget that even he thought term limit was central to ameliorating any constitutional conflicts.  Doesn’t incent production of new works.
 DMCA
  Netanel says that Congress didn’t have an important interest. He focuses on how it gives a right to control access, which has never been part of copyright in that sense.  I don’t buy this argument, his next is better.
  Narrow tailoring.  Other means: could have made it like the AHRA, regulating second-generation copying. Could have allowed circumvention for certain uses.
 Fair use
  Doesn’t fit here, but there are still problems – discusses Wind Done Gone trial court ruling.
  Instead, modify fair use defense.  “Such modifications would in effect be designed to employ fair use as a proxy for the Turner test, and in particular the ample alternative channels of communication prong.”  Options for doing so:
   1.  Give weight to expressive purpose, not just market-centric approach.
   2.  Put burden on copyright holder for proving defendant copied more than necessary and will adversely harm market for copyright holder’s work.
   3.  Where there is no fair use, mandate license fees, do not enjoin production.
  

Filed by Derek Slater at 4:42 pm under General news
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We’re moving closer to a ruling on KaZaA’s technology, I presume, because Judge Wilson finally dismissed the antitrust and copyright misuse claims.  KaZaA seems to have moved on to some extent, what with the Streamwaves deal.  This article notes that, “The ruling won’t prevent Sharman from trying to prove later in the trial that the labels and studios colluded to block its partner Altnet from obtaining licences to their songs and movies. Sharman alleged that the labels and studios feared Altnet could compete with their own online efforts.”

From the Aimster front: As far as certainty, this could be extremely bad.  (Has the Grokster decision been appealed yet?)

Filed by Derek Slater at 3:56 pm under General news
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