A Copyfighter’s Musings

Slept on it, and my fears have moderated a little. Some of this may be redundant – I’m just trying to talk out my thoughts as I analyze the case.

James Grimmelmann has a good post on the topic.  He points out how Posner does provide a blueprint for people who want to argue substantial non-infringing uses. Someone also added a helpful comment at Lawmeme about how this may be a step up from the Napster standard.

I think it’s important to recognize, as those two do, that Posner appears to chip away at one of the most harmful parts of the Napster opinion.  If knowledge alone is enough to trigger contributory liability, even people like Morpheus are in danger. Knowledge of one infringing use isn’t enough. From what I can tell, Posner means that you have to know about a substantial number of infringing uses, and you have to know about them when getting rid of them would not be too burdensome.

So here’s where my fears might be unfounded. If you read Napster to mean that contributory liability rested only on the knowledge standard, Posner is helping out, pushing us closer to the Grokster standard. The “cabined within the architecture of the system” language only exists in the vicarious liability section of Napster, and you could read the passing references to material contribution and ability to purge material in the contributory section as irrelevant. (Posner almost collapses the distinction between the two doctrines, which seems rather reasonable.)

Moreover, even if you don’t read Napster that way (and I don’t think you should, particularly in light of Grokster), you could read Posner’s decision as ultimately equalling the Grokster and Napster standards. That isn’t such a bad thing in that it aligns it with Grokster. It simply emphasizes the point that knowledge alone is not enough.

So my only real worry, then, is that you can read Posner’s decision as meaning, if it’s not costly, you should have to completely reengineer your system if doing so will prevent infringing uses. Posner didn’t do this in the language of Grokster, which focused on whether Grokster and Morpheus could act on their knowledge of infringing uses at that particular moment given their current systems’ designs.

Here’s what counters that fear: the fact that Posner doesn’t think AIM would be at risk, even if it used encryption for privacy purposes. If AIM, which has access to its servers, wouldn’t have to do anything, Morpheus probably wouldn’t have to do anything. Probably.

I still worry about these vague standards. The law is all about line drawing, and some lines I guess are better than no lines. But the fact that so much hinges on a case-by-case cost-benefit analysis means that this will continue to be a problematic legal issue. Again, think about what Professor Lessig said before the argument: “If innovators have to guess how a federal court will balance the effects of its technology upon copyright interests, then there will be less innovation. Thus the genius of its rule was that it said essentially this: if your technology is “capable” of a “substantial noninfringing use,” then the question of whether your technology should be permitted is no longer a judicial question.”

The extreme version of Sony is long dead, but that doesn’t mean we should forget the “genius” of it, that it created a framework where innovators could innovate without being worried about what they could be sued for.

Filed by Derek Slater at 1:19 pm under General news
Comments Off on Refining Thoughts on Madster

I have a feeling this case might occupy my thoughts for a little while.  The more I think about it, the more I read it, the more confused I am.  This has been the theme of the case, so I’m not surprised.  Maybe I’ll change my mind about the following, but, right now, here’s how I’m feeling about this result.

I knew the facts went against Madster, so I was hoping that Posner would at least get the theory right.

In some ways, he adds to Sony.  For instance, he notes that, counter Napster, specific knowledge (and, presumably, material contribution) does not trigger liability.  Substantial non-infringing uses are still important.  But he clarifies this by asserting that, when there are substantial infringing uses and you can control those uses without gross burden, you’re a contributory infringer.  So is this a meaningful distinction?

And what in the hell is he talking about in that sentence I put in bold in the post below.  Really – what does it mean for a feature to add value to the system? What would be a disproportionate cost?  Think about the VCR and fast forwarding. Let’s say Posner’s right and fast-forwarding or using pause to skip commercials does create a derivative, infringing work.  Couldn’t you take that feature out without substantial burden and without harming the substantial non-infringing uses? Well, you can get out of that by saying that fast-forwarding and pausing add value to the equipment in non-infringing ways. 

You can play this out with P2P too.  When I think of Napster, I think Posner’s statement is consistent with that case.  But when I broaden it to Morpheus, I’m not sure.  It depends how you balance the all these burdens and benefits.

And more importantly, it’s how you balance the infringing and non-infringing uses. That is what stands out to me in this opinion.  Posner’s focus is on a cost-benefit analysis that compares infringing and non-infringing uses.  Look at how he talks on page 13.  His assessment gives weight to substantial non-infringing uses but under no circumstances stops there.

The sentiment that all inquiry ended with a finding of substantial non-infringing uses faded in Napster.  There, it turned on knowledge.  Here, it turns on an amorphous cost-benefit analysis.  It sounds a lot like Napster, the result is a lot like Napster – I’m not sure if anything’s really that different.  And, in that way, it doesn’t feel like this decision is terribly bad.

But here’s the thing: all he’s done is added more vague language that’s going to get someone in serious trouble.  He’s taken one vague standard and replaced it with another, perhaps vaguer standard.  Someone’s going to take this and apply it to Morpheus.

And, once again, I wish that these facts had not been litigated.  Posner knew that the encryption scheme was, in this case, an attempt to put one over on the court.  I must commend him for trying to distinguish Madster’s use from AIM’s or another service’s use.  I know he was trying to draw some firm distinctions.  But, in the end, I think the facts of the case led to some really messy principles.

Filed by Derek Slater at 1:58 am under General news
1 Comment

Check it out.

Filed by Derek Slater at 8:11 pm under Big Ideas
Comments Off on Victory: Intel v. Hamidi

Madster lost. Go here. More to follow.

Bullet points: Posner says:”Subject to this qualification, building a library of taped programs was infringing because it was the equivalent of borrowing a copyrighted book from a public library, making a copy of it for one’s personal library, then returning the original to the public library. The third use, commercial-skipping, amounted to creating an unauthorized derivative work, see WGN Continental Broadcasting Co. v. United Video, Inc., 693 F.2d 622, 625 (7th Cir. 1982); Gilliam v. American Broadcasting Cos., 538 F.2d 14, 17-19, 23 (2d Cir. 1976); cf. Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1173 (7th Cir. 1997), namely a commercial-free copy that would reduce the copyright owner’s income from his original program, since “free” television programs are financed by the purchase of commercials by advertisers.”

Wow. I have never heard of those cases, but that statement flies in the face of the arguments made by ReplayTV and Clearplay (I think that’s the one that makes the movie-modifying DVD player). Wow.

Next, Posner rejects the RIAA’s argument that the Betamax defense does not apply as well as the argument that primary infringing uses overrides other non-infringing uses. And, the court “We therefore agree with Professor Goldstein that the Ninth Circuit erred in A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1020 (9th Cir. 2001), in suggesting that actual knowledge of specific infringing uses is a sufficient condition for deeming a facilitator a contributory infringer. 2 Paul Goldstein, Copyright

Filed by Derek Slater at 6:10 pm under Big Ideas
Comments Off on Madster Loss: The Expected and Unexpected

Finally read “Spectrum Abundance and the Choice Between Private and Public Control” by Stuart Benjamin.  He’s pretty convincing, and, while not making me want to go to totally private control, does make me want a mixed policy at least at first.  Here are my notes, with limited commentary:

-Doesn’t seem to be arguing that spectrum commons won’t work, although he is skeptical.  He is arguing that a government created one would be less inefficient that providing large allotments to private owners, who would create a commons if it’s desired.

-Two points about commons, using spread spectrum. You need:
 Smarter devices – strong computational abilities, can transmit at low power and still get through.
 Cooperation gain – which means that devices act as retransmitters. Instead of having cell phone base stations installed throughout the city, you just have everyone’s device act as a mobile base station.

Problems: what if people choose to transmit at higher power? what if people do not share their devices (think of people turning off their shared folder on Napster – it was a drain on your machine’s resources)?
Solution: Standards.

Commons advocates arguments against private property allotments (according to him)
 1.  Transaction costs – you’d have to buy up so many slices of the spectrum to create privately a commons network.  And “holdout costs” – people waiting to sell to bid price up.  Benjamin’s response: these are not inherent in private ownership, just in dividing spectrum into small pieces.
 2.  Large allotments will not lead to spectrum commons. They won’t be able to make money, so they won’t do it.  Benjamin says: charge for access, or put fee on the device.  If we’re in a competitive market, and these commons are really more efficient, someone will create them. (Makes an interesting point. If commons can carry more users, you can charge less per user.)

Government v. Private Control – how do we evaluate it?
 1.  Smart engineers – need to have access to people most up on the tech, best access to info. (Note: he’s speaking as an economist.) Governments are controlled by constituencies, many of which will want to see spectrum fail. Private = competition and profit motive to get best info.
 2.  Putting the engineers to work – need people who are going to want to make the best choices, continually innovated.  Want to be able to make quick changes to adjust to new technology.  Profit motive is key here, government doesn’t have it.
 3.  Anticompetitive concentration of power – inefficient uses and pricing.  Benjamin wants restructuring of spectrum (opening more up to auction, including broadcast television’s and the military’s spectrum, approximating a “big bang” auction of all exiting rights) and then selling off enough to create many abundant networks. Not sure how he came up with his numbers here, or if the amount of abundant networks he thinks are sufficient will actually be so.  It would be unlikely that any one company would buy all spectrum, and you could set limits just in case, or maybe a common-carrier sort of approach.  Try to promote as much as healthy competition as possible. That’s good for reducing monopolies, but also for optimizing system capabilities.  Systems will differentiate, try out new technologies.    Also, less monopolies because interconnection will be desirable. Interesting idea: the only situtation where a monopolist is guaranteed is if you let the government handle everything. Then the question is, is that a beneficial monopoly? What happens when government has to work with private company and there’s rent-seeking?
  I think he makes a good point here – if you consider the history of the FCC, you know how screwed up government spectrum regulation has been.
 4.  Value of a Free Network
  a) Free of charge – Benjamin says you need to have a broader conception of cost. What about opportunity costs, the lost ability to create a different non-commons use? (What’s a specific use that won’t work?) Also, why should the government subsidize this?  All communications networks seek this sort of subsidy in some wya.
  b) Serve us as citizens and prevent filters – how is this really going to come about? why can’t this be created by private networks? Government will still be affected by private actors.  Are these arguments simple paternalism? (I agree with him as far as any theory that treats everyone as too dumb to like commons networks is probably a bad theory.  The concentration of power problems are more serious – it’s making sure that spectrum is distributed in a neutral fashion, in a truly competitive environment.)

Should government distribute in large bands?
 If abundant networks not most efficient, giving large bands will be bad because hard to disaggregate. Need some way to balance.

 

Filed by Derek Slater at 2:45 pm under Big Ideas
Comments Off on Counterpoint on the Spectrum Commons

Quick, ultimately silly question: would you allow legitimate infinite copyright in exchange for actual fair use rights and no exclusive right to derivatives?

This question came to mind after reading Matt’s interaction with one of the copyright-equals-my-Property types.  My first problem with any of these discussions is that I have no idea what “their property” actually means. 

Does that mean the expression itself?  All of it, at all times? So exact quoting is out of the question?

What about my property? You may own the music, but I own the CD.  Do you get to tell me how to use my property in my own home?  If you made the music, does that also mean you own my CD player?

That bit is a good rejoinder to people who try to use Locke to justify their moral reasoning.  But, the fact of the matter is, it doesn’t matter if the moral rights theory doesn’t come from Locke or any other major western philosophy that this country was built on. If people want to believe that, fine, and I’d like to spend minimal time convincing them otherwise.

Here’s how I look at things, from a moral rights perspective: Even if those moral rights should/do exist, one at least must concede that they don’t gel with other parts of American law, particularly free speech and private property rights (your music, but my cd).  Now, we could change American law to fit one’s intellectual property theory, but that’d be absurd.  So what we have to do is fudge it. 

From a moral rights perspective, finite copyrights is fudging it, but not necessarily bad. It’s too hard to balance the public interest, interests that exist in the rest of the law, with “all rights reserved”; because the law has trouble with laying out for ALL cases where only some rights should be reserved, we have to have an accompanying time of no rights reserved.  (I’m not advocating this justification, just imagining one from this position.)

You have to add a little bit for the copyright holder, trim a little bit off here for the public, shape it into something reasonable.  It’s not perfectly one theory or the other, but it’s what we have to do.

Then the question is, where do you balance it.  And, when people accept that there needs to be some balance, they see that the property interest they want most is the distribution and public performance rights.  For some others, it will include derivatives – but even for them, there’s a wide variation between how much coverage that should be.

The general point: I’m tired of the moral rights camp, but I’m also tired of arguing with them about their theories. If we can meet them half-way, that’d be pretty cool, because, right now, we have illegitimate infinite copyright, with ill-defined traditional contours of fair use and of the idea/expression dichotomy.  For the most part there is no balance.

Update: Matt responds – I don’t think we’re that far off, even though he thinks I’m laying into moral rights advocates. So I commented back.

Filed by Derek Slater at 2:36 pm under Big Ideas
Comments Off on Even If It’s Your Music, It’s My CD

Been a little busy with work and travel lately, so I figured I’d do what I do best: say little about a lot.

I think Seth ended his comments quite nicely on the After Eldred thread.  It includes some of what came out of that debate, but ultimately brings us right back to where we started: how would you get the Court to say, “The Eldred decision establishes the contention that fair use is a guarantee of access to copyrighted material” or something to that effect. Yep, that’s tricky.

That makes me think of what Volokh mentioned in his article.  To make this argument work, you probably have to argue that the First Amendment includes conduct. Volokh used the example of a law prohibiting news gathering being offensive to free speech protections for news reporting. I don’t what the caselaw is like in this area, but this seems like the right line of attack.

Of course, that reasoning only works if you have an expansive view of fair use and how integral the conduct is to the resulting speech.  That’s why scientific research is probably a good line of attack.

But, given how little room the Courts have given fair uses like parody and criticism, we might still be out of luck.  Over the last few days, I’ve been going over court rulings on parody and criticism and other “derivative” reuses.  I am always thoroughly annoyed when I read these rulings.  Not only are they rather narrow, but they’re unbelievably confusing.

I guess it all starts with the unwieldly fair use test.  The factors are vague, and they have no inherent weight (although some have tried to divine a consistent pattern from past practice).  Even when the court gave parody some breathing room in Acuff-Rose, they indicated that in future cases other fair use factors might nullify the import of parody.  Every case will be treated on its own merits, and each slight difference could be important.  Who knows what the standards will be next time.

What feels very odd to me is how parody, which probably would be protected regardless of section 107, gets treated on the basis of the section 107 test.  If Congress took away section 107 (which might NOT alter the traditional contours of fair use), how would the Court treat parody? (I know there’s plenty of law in other areas about Congress amending Court-created/interpreted standards, like with the RFRA and City of Boerne. How would those apply here?)

All that said, I wonder if the next big copyright case will come from the area of parody or transformative reuse.  Sampling and collage seem to be much more a part of mainstream culture than discussions about back-up copies and such.  Of course, the sampling we hear daily is licensed.  But there are artists all over using cheap editing software and the Internet to make their works available.  I wonder if the next case will come at a time when those unlicensed works really are mainstream.  If that time ever comes, how will the Court be affected by public opinion?

“If that time comes” – that’s always an important qualifier to remember when it comes to future court decisions.  Seth is right that it’d be absurd to say that Eldred, today, stands for a right of access.  What it will stand for tomorrow, though, is anyone’s guess.  A large part of tomorrow’s meaning rides on how our culture changes in relation to copyrighted works.  We lead, and the Court may follow.

(Realists would disagree, particularly one’s like Seth, who cite corporate interests as the driving force behind Court policy.  I think that ignores a lot of the Court’s history and much of what happens today.  We learned yesterday that, at least as long as O’Connor is around, we can expect the Court to choose muddled, confusing decisions over ones that would cause extreme public uproar.)

Filed by Derek Slater at 5:51 pm under General news
Comments Off on Realists, Parodists, And Other Ists

[updated 6/19] Seth restates his main thesis, and it’s well-taken.  Like I said from the very beginning, way back when this was discussed right after Eldred, I’m skeptical, too. I don’t know if the strategy would work. To sum up and go a little further:

1.  I’d say Ginsburg’s argument is more than that paragraph – it’s also the paragraph she spends on fair use specifically. Seth “agree[s] Eldred established fair use as a Constitutional requirement.” Thus, I’m not sure how you would read Ginsburg’s opinion as talking about a technical exception, so I’m not sure how the substantive/exception dichotomy is useful in discussing her particular argument. 

The real question is: how big is that substantive limit (or, rather, the substantive fair use right)?  As Seth has asserted, this is where the dichotomy becomes important – how do you get the courts to read Eldred broadly?  The SC could simply restrict the meaning of the limit to Constitutional fair use, and limit that to parody, scholarship, and criticism.  I’m not sure the DMCA does enough to take those away; that’s the easiest place for courts to say that technological inconvenience doesn’t matter.  Unless the SC brings in statutory fair uses–the ones we typically think of with VCRs, back-up copies, etc.–we might be pretty stuck. Or, the SC would have to bring more of those into Constitutional fair use, which is also an uphill battle.

2.  One thing that occurs to me: this argument would work best with something like Felten’s case.  That most certainly is scholarship and criticism.  Though I think Felten’s case dealt with trafficking, future cases might involve declaratory relief to make the fair use.  Moreover, it was someone who the courts respected.  One reason I suppose the EFF did not appeal Corley was that the SC might have said “they’re hackers!” and left it at that.  The key is getting a fair user that courts will look at favorably and can be most easily fit into typical fair uses.  It’s got to be something ordinary enough that courts would be more likely to lump it into traditional contours.  (Interoperation with garage door openers might be tougher, but what if it were with car tires – something that just wouldn’t make sense to the justices.  Of course, they could defer to anti-trust law, and that could get pretty tricky.) This is still a tough route, but it’s our best bet.

Of course, there’s some debate as to whether the DMCA even reaches scientific research.  Read with Eldred and Congressional hearings on the DMCA, courts might limit the DMCA rather than strike it down. Though not a total victory, it would save somebody some legal fees.

3.  That’s why I don’t really think of this discussion as people naively reading too much into the Eldred opinion.  I look at it as a starting place for the next person who gets sued.

[updated 6/19 to include the link to Edelman and to clarify where I think the dichotomy is useful.]

Filed by Derek Slater at 1:20 am under General news
Comments Off on After Eldred – Summing, Agreeing, Concluding, Continuing

[updated: 11:08] Before I head to the MeetUp, I want to make two minor points about Seth’s follow-up:

1.  Regardless of how many pages Corley spends on fair use, let’s make a slight clarification: Eldred is the SC precedent here.  If there’s any conflict between the two, Eldred’s controlling.

2.  Seth does have a point that Ginsburg’s support of fair use might be disregarded later.  As I’ve said before, courts might skip right over the “traditional contours” part and move right onto the strong deference to Congress.  And there’s plenty of leeway regarding how high the bar is for altering those contours.

Interpretations that set that bar at impossible levels are inappropriate, however, because it would render Ginsburg’s argument totally meaningless.  I reject the argument that the “traditional contours” argument is just a “vague phrase” without any meaning.  It’s not just that one phrase; it’s a thread that runs through her entire argument.  If none of that argument is important, then she would not have said that the lower court had erred in any way – her opinion would be equal to a categorical first amendment immunity for all copyright legislation.  Given that she specifically said no such immunity exists, I don’t see how one can ignore the traditional contours portion of her argument.

Filed by Derek Slater at 9:52 pm under General news
Comments Off on More on After Eldred

Professor Larry Solum has an interesting article up called, “The Layers Principle: Internet Architecture and the Law.”  This post does not cover the entire article.  I’ve described some bits (in outline form) and then pointed to one particularly interesting point.  I will probably come back to the other parts of the article later (I might also clean up this post a little, because it’s kind of fragmented).

The Layers Principle – respect the layers
 What are the layers?  A little different than Benkler’s, made for the narrow context.  These are the content, application, transport (TCP), internet protocol (IP), link (between user’s computer and physical layer), and physical layers.  Communications move from highest to lowest layers,  then back up again.
 What does it mean to respect the layers?
  1.  Keep them separate.
  2.  If you’re making policy to affect one layer but you are directly altering the functions of another layer, minimize the distance between the two layers. (Ex. Say you’re blocking amazon.com.  You’re trying to affect the content layer, but you go after the IP layer.  You can block amazon.com in many different ways, but you’re impairing the functioning of IP.)
 Why?
  Briefly: Fit between means and ends (otherwise, overbreadth and underinclusion), and transparency on the Internet

Reviewing features of Internet
 Lessig’s code thesis
 E2E principle
 Tranparency – network does not “associate data packets with application file types”
 
Solum is positing that layers, not E2E, is the key feature that brings about transparency.
E2E does follow from layer separation, but layer separation does not flow from E2E.
Transparency is a direct result of how the layers treat each other – if layers are separated, accepting and not modifying the info, then it will be transparent.

“Layers principle and its corollaries should be viewed as establishing a framework for analysis of alternative policies for Internet regulation that incorporates a strong presumption against regulations that violate the layers principle.”
 Wants to stop incrementally violating principle more and more (“incrementalism”).
 But, doesn’t want this to be an absolute rule.

There’s a lot of justification here, and a lot of interesting ideas about how this principle could work into legislative and judicial analysis.  There’re also some great case studies.  I won’t go into that right now – the article is quite long, and I’ve got other stuff to describe for you.

Solum moves back to Benkler’s formulation at the very end, because there are some regulations aimed at Benkler’s layers that need to be compared to regulations in Solum’s framework.

Take the DMCA, for example.  This is a regulation targeting the content layer by going after a lower layer (code).  Solum says the transparency requirement doesn’t apply in the same way, because Benkler’s layers are more descriptive categories rather than “an implementation of design principles.” 

Then Solum moves into “A Layers Approach to the Substantial Non-Infringing Uses Doctrine.”  He notes that the Sony principle can be associated with the idea of ensuring a good fit between means and ends that applies when using his layers principle.  You can also think of as e2e, Solum argues, because “unless there is near identity of the problem and the technology, the law should not target the lower technology layer in order to regulate the problems at the upper layer.”  But, he says that these principles should be distinguished from the layers principles because, unlike with TCP/IP, substantial innocent use is not an inherent design feature of all of Benkler’s communications layers.  Additionally, he repeats that there’s no transparency requirement.

The point Solum then makes is pretty interesting.  Problems of fit between means and ends are “even more profound than the problems of fit that undergird the Sony rule. To these problems of fit are added the even more compelling problems identified by the transparency thesis. In other words, the underlying rationale of Sony applies more strongly to layer-violating regulations in the TCP/IP layers than it does on the facts of Sony itself.”

Thus, you can find this layers principle already embedded in case law – that’s a neat idea.  It’s particularly interesting if it actually has weight in other areas, outside the copyright context.  As noted, Solum does suggest ways that the layers principle could become part of judicial reasoning, and this seems like a good in.

This point is particularly interesting to me because it comes from the same professor who has helped me understand the importance of distinguishing between a case’s dicta and its holding.  When you try to glean precedent from a case, your assessment will radically change depending on whether you look at just the narrow holding, a broader version of the holding, or the general reasoning itself.

Whether or not this reasoning would actually work, it’s interesting to think about how “the normative basis for the layers principle is already anchored in the deep structure of American law.”  I wonder: where else, outside of Sony, can we find it?

Filed by Derek Slater at 9:35 pm under General news
Comments Off on Solum’s Article

I love how you can tell they have no idea what Congress is doing simply by their hearings’ titles.

Filed by Derek Slater at 6:47 pm under General news
1 Comment

First up, Samuelson’s article.  You should check it out if only because it’s a nice overview of what was going on in copyright law before Eldred.  It also has a mountain of footnotes. These articles in particular caught my eye:

• Alfred C. Yen, Eldred, the First Amendment, and Aggressive Copyright Claims, Houston L. Rev. (forthcoming 2004).
  
• Michael D. Birnhack, Copyright Law and Free Speech After Eldred v. Ashcroft, 76 S. Cal. L. Rev.(forthcoming 2003);
  
• David McGowan, The Code-Speech Conundrum, 64 Ohio St. L.J. (forthcoming 2003) (criticizing Corley)
  
• 
  

  Edward Lee, The Public’s Domain: Evolution of Legal Restraints on the Government’s Power toControl Public Access Through Secrecy or Intellectual Property, 55 Hastings L. J. (forthcoming 2003)

After a lengthy intro to the issues, she gets into the meat of the article: “six challenges to intellectual property rules with constitutional overtones.” She didn’t number them, but here’s a rough approximation, some of which will be familiar from the Volokh piece.

1.  Dastar.  The article was written before the decision, but, as she notes, a pro-Dastar decision gives some hope that the public domain cannot be destroyed using non-copyright means.

2.  Golan (which, as of yesterday, is now fully briefed) and other cases regarding the restoration of expired copyrights. Eldred does not say that you can take stuff out of the public domain, and the Graham and Bonito Boats precedents apply more directly to restoration (they were part of the Eldred argument, too, if I recall).  The result of Dastar is in Golan’s favor
But, one tricky part of Golan remains: the treaty making/foreign policy powers.  The Court doesn’t like to get into this area. If we get a pro-Golan result, that means treaties entrenching the DMCA can be targeted. An anti-Golan result that reaches the treaty power issue would make us totally screwed.  IP law will continue to be an international treaty issue, and the Internet probably will increase this trend.

3.  Database law.  The Feist creativity-standard for copyrights is a problem here, as well as the importance of the idea/expression dichotomy as reflected in Eldred (see Volokh, below)
Another tricky issue: can you get around this using Commerce Clause?  Maybe.  The government can’t do trademark under IP (see Trademark Cases), but you can do it under commerce.

4. Challenge to DMCA in full.  This is what everyone has been talking about.  The main problem I saw with Kerr’s argument is that he doesn’t consider Eldred.  But let’s talk about Corley for a second, because it came down before Eldred.  Say other courts believe Corley got it right during its time – what has time/experience and Eldred changed?

Let me discuss this briefly now and return to it after I read some more Corley articles (this is what the summer does to me – adds even more stuff to my reading list!).  The court said “we note that the Supreme Court has never held that fair use is constitutionally required.”  That was suspect then, and it’s even moreso now.  The SC clearly sees fair use as part of the “traditional contours” necessary in copyright law.  As for the rest of the opinion, I doubt Eldred is much help.  The court said that 2600 couldn’t be a fair user because it was just trafficking and that the DMCA did not preclude fair use simply because it made it technologically difficult.

This is where Frank’s write-up turns on the light bulb – his points relate to a  big thread within Corley.  The court clearly had trouble figuring out how to treat technology in relation to expressions.  It refused to differentiate between object code and source code.  This part in particular reminds me of what Frank’s getting at:

“Unlike a blueprint or a recipe [regulated as “pure speech”], which cannot yield any functional result without human comprehension of its content, human decision-making, and human action, computer code can instantly cause a computer to accomplish tasks and instantly render the results of those tasks available throughout the world via the Internet.  The only human action required to achieve these results can be as limited and instantaneous as a single click of a mouse….[The] momentary intercession of human action does not diminish the nonspeech component of code, nor render code entirely speech, like a blueprint or a recipe.”

That’s splitting the technology from the expression, divorcing the use of code from actual human experience.  The court is trying to find a middle ground, speech with a non-speech component; it’s trying to grasp how the tech is not just an intermediary between human and expression, but embedded inherently in the experience.  But, in reaching its conclusion, the court fails to go far enough.  Though this is in the context of considering code by itself, this reasoning placed in IP context fails to “[confront] the fact that the distributed artifact is not a creative expression without access to the technology implicit in the artifact’s design.”  A DRM wma file is not the same creative expression without “without human comprehension of its content, human decision-making, and human action.”  And it’s the DRM that’s restricting the human aspect.  We have to be able to interact with the technology in order to interact with the expression.  (…this is shaky, I’ll see what I can do.  Note, I’m not really trying to deal with this as legal line drawing.  Just trying to map their legal reasoning to their larger vision of how we interact with code.)

And this sort of thinking bears heavily on the the whole issue of whether simply making fair use inconvenient via DRM is enough to strike the law.  I suppose you can make those technologically inconvenient fair uses, in the abstract.  But it’s greatly altering the way you experience the content.

5. Experience and time might help with these points from Corley, along with the court’s last point, that no content users have been harmed by the DMCA (bah!). Samuelson suggests that even if we couldn’t mount an attack on the entire DMCA, we could see more successful challenges by particular defendants.  They might have more success as fair users rather than traffickers (think Felten).

Samuelson also brings up conflict between Bunner and Corley, for Bunner does allow the publishing of source code.  True, it’s not a DMCA case, but it is related to the strength of the First Amendment in copyright claims.

6.  Two final impacts.  First, from non-copyright to copyright impact – how will a case like Bunner affect copyright cases?  And, vice-versa – how will copyright cases affect patent cases, for example.  Finally, Samuelson notes that Eldred puts cases like Bowers in doubt.

Now: I’m not sure I need to say anything about Kerr’s argument, because it’s been covered elsewhere.  But, as for Balkin’s DMCA=unconstitutional arguments – how should one frame an argument that the DMCA’s burden on fair use is too severe?  Again, I think it’s going to be critical to determine what fair use we’re talking about – constitutional or statuatory, and what constitutionally mandated fair use actually is.  The burden on commentary, criticism, and parody is far less than on time-shifting, space-shifting, etc.  The technological difficulty argument is much easier to make when it comes to being able to copy and paste versus retype quotations from something you’re criticizing.  Maybe one would have to consider the tradition of protecting general purpose tools – but, that comes from the statutory construction of the 1976 Act in Sony.

Oh, and as for Seth’s argument about the “DMCA does not limit fair use” clause – I don’t buy it.  Corley, for good reason, did not read that clause to mean that the DMCA provided a fair use exception.  Its designers did not intend such an exception.

Filed by Derek Slater at 11:25 pm under General news
2 Comments