A Copyfighter’s Musings

Start here, read Kerr and Balkin, then Solum, and then turn to Frank (who’s got something going here on a really good, non-legal level, even though I’m not sure if it’s totally what Balkin was getting at – see here for the links and my criticism, taking into account what I mentioned here in reference to the Volokh article).

I’ll try to have a post on all this tomorrow – I want to discuss what’s going on in these posts, but I also need to read this IP after Eldred article by Pam Samuelson (via copyfight).  And, I will at some point, get to this Benkler wireless article once I read critiques like this one.

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Eugene Volokh’s latest article goes into much more than that, but that’s as far as I’ll focus here.  This post will be part cliff notes, part commentary.

Volokh starts by arguing that copyright, trademark, and the “right of publicity” are content-based, rather than content-neutral.  The hardest sell is copyright law, but even it prohibits producing and distriubting works that are substantially similar to the content of prior speech.  He also notes that the fair use exception is based in part on content, and, following analogous cases, this implies that copyright law as a whole is content based. (As Alex suggests, you might want to think about this in terms of Bunner.)

Next, Volokh explains that, even if you treat copyright laws as content-neutral, they don’t pass typical restrictions that focus on time, place, and manner of speech and require “ample alternative channels.”  Copyright law bars entire use of certain words.  Even if you can say different words to express a similar meaning, you’re never going to get exactly the same expression.

So, if copyright laws generally won’t pass muster under the first amendment, how are they constitutional?  Obviously, because of the copyright clause.

Volokh then turns to Eldred (without delving into the case’s first amendment reasoning, probably because the court went into very little detail).  Though Eldred stands for copyright as exempt from most first amendment scrutiny, it provides two exceptions: restrictions on the ideas/facts (as opposed to expression), and laws that eliminate constitutionally protected fair use.

What can we derive from this?  First, copyright law provides no help for fact based laws (eg, database protection laws, property right in private info).  Sometimes the facts will matter, like in a contributory infringement context when pointing to infringing material might be enough to get you in trouble (even though you’re just publishing the factual location of the material). But this is pretty iffy, especially when you throw the DMCA into the mix.

Second, as explored by Professor Balkin, the fair use exception might poke a hole in the DMCA.  To make this argument work, you’d have to say that First Amendment protects certain types of conduct, since that’s what the DMCA regulates; Volokh makes an analogy with arguments that say restricting news gathering is basically the same as restricting news reporting, which is largely unconstitutional.  But the court hasn’t said a lot about this issue.

Third, if you’re going to use copyright law as an analogy for trade secret law, you’d have to note the fair use exception and the right to publish facts.  This would show dissimilarity between the two laws. Think about Bunner here.  If you try to analogize that trade secret prohibition to copyright law, then you’ve got to ask, does the trade secret argument have no exceptions?  If it doesn’t, then the analogy fails. 

Volokh suggests that this only binds constitutionally protected fair use.  According to Volokh, the judiciary has only extended this as far as “for scholarship and comment, and even for parody.”  The wide-range of fair uses we know and love extend from statute, not the constitution.  I think the DMCA would probably not be found unconstitutional along these lines because it was passed after the Copyright Act of 1976, and thus they’d try to read the DMCA as affirming a limit on that statute – they’d accept the latter statute over the earlier one if they contradict each other.  Remember: those constitutional fair uses are the closest thing you have to fair use rights. The others can be snatched up by Congress whenever they please.

Or maybe not – how far would the Court allow them to take it?  Would they really let copyright law control every single way you make personal, private, non-commercial use of content?  Volokh mentions the uncertainty regarding other fair uses.  Probably, the buck would have to stop somewhere further than scholarship, comment, and parody. But it wouldn’t go to much further, because the Court would be hesitant to make too broad of a statement on an issue that’s largely supposed to be Congress’ domain.

One could also argue that Volokh is wrong to imply that the “traditional contours of copyright” does not include what came out of the 1976 Act. Indeed, Ginsburg cites title 17 section 107, not the constitutional caselaw, first.  But, what sort of First Amendment analysis would come from that?

I wonder: as Balkin suggested, there might also be a public domain exception. I know, I know – that sounds totally un-Eldred.  But think of it this way: Congress still doesn’t have the power to pass an infinite copyright.  One could argue that the public domain is part of copyright’s traditional contours and then, cringing, you could say that Eldred affirms that the traditional contours are still important by saying that infinite copyrights are not legit.  You still have to signal that a work will fall into the public domain at some point in the future, even if you back away from that deadline later.  By effectively creating a perpetual copyright, the DMCA violates this traditional contour. [Update – Note: I know, I’ve brought this up before and expressed my doubts. But, Volokh’s article made me want to restate the possibility.]

In the next section, Volokh delves into what this means for procedural rules in copyright cases.  First, he argues that the standard should be the same as in other first amendment cases.  He sees no reason for treating non-fair uses different than obscenity or libel law.  In the latter cases, the burden is on the plaintiff; however, in copyright infringement cases, the burden is on the fair user to make his affirmative defense.

Now that’s an interesting point.  This would totally change fair use arguments.  It’d be less of a longshot for people, because they wouldn’t have to shoulder all the burden.  I’ll try to think more about this and read up on what could change. (Volokh cites a Neil Netanel article on the subject, among other interesting sounding Netanel pieces.)

Volokh made one other point that caught my attention.  He asserts, “If [Eldred is] seen as arguing that the copyright exception is legitimate because copied speech is substantially less valuable than other speech—then the text seems mistaken.”  The end of Ginsburg’s opinion implies this.  Both copies and detrivate works obviously can have quite a lot of values for the speaker and potential listeners.  Hopefully, the Court will heed Volokh’s concerns.

Filed by Derek Slater at 1:46 am under General news
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Just wanted to let you know that I’ll be at the MeetUp next Tuesday.  If you live in the area, come hang out!

Filed by Derek Slater at 12:39 am under General news
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Hoping to get to Professor Volokh’s latest copyright piece later in the week, and I’ll post on it as soon as I can.  For now, I want to return to the story that just won’t go away: Apple iTunes and the new digital retailers.

It’s one thing when CNet is writing about iTunes every other week. It’s another thing entirely when the NY Times seems to be doing a new Apple story every week.  This marketing bubble has yet to burst.

And then comes word in the LA Times that more companies are trying to get into the business with Apple-like services.

We’ve discussed the potential for success from many different angles. Is Apple’s DRM too strict?  Too lax (see iTunes streaming)?  Can you compete with free?  Some scholars, particularly Professor Fisher, say that the price has to come down much, much further – perhaps to as low as 15 or 20 cents per song. 

Let’s say the DRM’s fine and that this newfound competition drives the price down to 15 cents.  Say the services also start incorporating independent labels and artists (see Apple’s recent discussions, which, I think, are incredibly important.  Again, people aren’t going to want to switch between many different music services. These services have to be fairly comprehensive). 

What else needs to happen?

One angle that I haven’t fully considered is that there simply are not enough broadband subscribers to support these services.  I don’t have a clear sense for whether broadband rollout is getting any better – I know that the prices are still largely unsatisfactory.  As Declan points out, aspects of broadband pricing are a total political mess.  And I still don’t understand why cable is classified differently. Here’s a little bit from this report:

“By contrast, when an entity offers transmission incorporating the ‘capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing,or making available information,’ it does not offer telecommunications. Rather, it offers an ‘information service’ even though it uses telecommunications to do so. We believe that this reading of the statute is most consistent with the 1996 Act’s text, its legislative history, and its procompetitive, deregulatory goals.”

Ugh. I’m still trying to work through what the hell this means.

I saw this Jupiter report on Apple’s growth and price, and I’ve seen some reports on broadband growth.  Anyone have a sense for whether there are enough customers out there?  What sort of numbers would be necessary?  Even this estimate, which used numbers twice Apple’s pace, doesn’t guarantee a profit. And that’s with 1 dollars per song!

So, the scenario of these services failing not because there’s no demand or because they’re not cheap enough but because getting broadband is too difficult – that scenario will make things very tricky.  If these services fail, extremists on both sides are going to seem way more credible.  The wait-and-see approach would be virtually dead. 

Moreover, we might not see DRM regulation. We might see more broadband deregulation that puts the wires in the hands of even fewer companies, if that’s possible. Maybe they’ll offer it cheaper.  But they’ll also probably have concentrated control of the wires and the content.  If that’s the case, the DRM angle matters far less.

Or, maybe it’ll all turn out ok.  Then, I wonder what happens to the movie industry. At what point do all of its claims seem totally ludicrous in light of the music industry’s changes?  If you’re interested in this angle, check out the Intertainer lawsuit.

Filed by Derek Slater at 8:27 pm under General news
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I’ll be back tomorrow with an actual post, but for now:

Eric Eisenhart explains why Blubster probably doesn’t protect anonymity.

Cory Doctorow asserts that contracting around copyright is “contrary to the balance of copyright, and is probably a good place for contract regulation.”

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Verizon is basically screwed. 

At the end of the NY Times article, one of Zeropaid’s founders claims that P2P apps will keep getting better at protecting privacy, making this ruling irrelevant.  We’ve discussed anonymity on P2P networks briefly before (make sure to see the comments), and I’ve mentioned Blubster, which has an interesting bit of anonymizing.  Coincidentally, Zeropaid has a report on an app with even more privacy protections: Earthstation5.  That’s an impressive list of features (if they work). When will services like KaZaA be more like this?

Filed by Derek Slater at 3:17 pm under Big Ideas
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So, EMI is suing Bertelsmann for funding Napster. Hurray. I was looking over the contributory and vicarious infringement suit against Hummer Winblad.  I’m not sure if the Bertelsmann suit is only one type of infringement – I’m not sure why it would be.  It seems like its going to be vicarious infringement since it has to do primarily with deriving a financial benefit. But, if you need the right and ability to control part to cement that infringement claim, you might as well go after a material contribution claim.

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Aaron Swartz’s summary of the Aimster hearing mentions that the judges discussed whether Aimster might be liable for vicarious, but not contributory, infringement.  Some scattered thoughts on the matter:

To start, let’s get an idea of what the distinction is in terms of purpose and definition.  One key difference is that you don’t need to have knowledge of infringement to be vicariously liable, but you do for contributory liability.

That difference could produce some circumstances where a service is liable under one doctrine but not the other.  Indeed, that’s an issue in Aimster: does Aimster need specific or general knowledge of infringement? If specific, what does that constitute exactly? It’s probably something more than just screenshots, but perhaps something less than notices about individual files transfers. 

Aimster thinks its encryption system for each transfer provides it protection, but I find that highly doubtful. You can still see the songs up on the index, thus violating the distribution right (as argued in Napster). Moreover, as in Napster, the company’s owners discuss and even boast about the potential for illicit file sharing – Club Aimster does not help there case here.  While I disagree with the district court’s reasoning that the encryption is not a valid defense because they can simply remove it, I generally agree that the encryption doesn’t prevent all liability.

How you define specific knowledge will affect the viability of contributory and vicarious liability used in conjunction.  In most cases, it will be rather easy for copyright holders to take screen shots and send legal notices to system operators.

But there’s another part to contributory liability that affects the knowledge requirement – a capacity to act on the knowledge (at least, that’s what the courts noted in Sony and Napster, and what the EFF argues in Aimster.) Here’s where the liability lines blur.  A capacity to act sounds a lot like a right and ability to control. Perhaps this point fits more closely to “material contribution,” for providing the “site and facilities” generally means you have a capacity to act directly on the P2P system. As put in Grokster, “The question, however, is whether actual knowledge of specific infringement accrues at a time when either Defendant materially contributes to the alleged infringement, and can therefore do something about it.”

One potential for application of only one liability doctrine: say the P2P system is run strictly non-profit. That’s pretty unlikely, generally speaking.

So here’s where I think we end up: in most cases, copyright holders will send infringement notices to P2P operators.  Thus, they will still be able to proceed on both infringement grounds.  With some exceptions, P2P operators will also derive at least some financial benefit from the infringement, because infringement will be a “draw” for users.  The only question then is, is there a difference between material contribution with a capacity to act, and right and ability to control.  In Napster, I doubt you could make this distinction. Providing the index and logon servers was the material contribution, but it was also the means to control.

In what circumstances would the right and ability to control not go hand in hand with a material contribution?  Perhaps if Morpheus had extensively communicated with customers, provided technical support, and really directed people to infringe copyrights, that would have made a difference. They could stop materially contributing in that way. But that still wouldn’t have provided a capacity to act on the direct infringement.

Filed by Derek Slater at 8:32 pm under General news
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James Speth wrote to the pho list:

“I whipped up a crappy little application called 401(ok) that combines a few hacks to restore internet-wide sharing to iTunes 4.0.1.   I know I really liked the ability to access *my* music from anywhere, and I didn’t like that the 4.0.1 update removed that feature. Steve giveth, and Steve taketh away.
You can download it from:
http://prdownloads.sourceforge.net/icommune/401ok-0.1.sit?download“

I can’t vouch for whether it works or not. If someone wants to try it out, tell me how it works, I’d love to know.

Filed by Derek Slater at 2:46 pm under General news
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This case gets trickier every time I think about it.  As I consider the case, I want to emphasize something that might already be obvious to you: the narrow point of Aimster’s liability is far less important than the overall reasoning the Court uses.

In Grokster, the judge would have had a hard time getting the reasoning right while ruling against Grokster and Morpheus.  Reading Sony with Napster protects those companies from contributory and vicarious infringement liability.  They had no relationship with their users, they did not control their systems, they provided no “site and facilities” for infringement, and they had no way to block particular users or files.  The big question (I thought) was whether the judge would look at the program’s architecture as it is rather than examining how the software could be reengineered.  Surely, Morpheus could be reengineered to inhibit infringement, but that would be a completely different program.  Such a ruling would sweep far too broadly. Luckily, Judge Wilson focused on the actual architecture of Morpheus and Grokster.

In Aimster, the court will hopefully correct the District Court’s errors regarding the Betamax standard.  The EFF has done a wonderful job on these points.  The 7th Circuit will also have to reconsider the lower court’s reasoning that, if the encryption is in the way of monitoring infringement, Aimster should simply turn the encryption off.  Looking through the injunction order, it is surprising how different the District Court’s reasoning is from Judge Wilson’s Grokster.  They’re applying completely different standards.  It seems much of Judge Aspen’s reasoning evolves from a distrust for Johnny Deep, considering the encryption part of a mischievous willful ignorance.

But, even if the Court of Appeals corrects the lower court’s errors, Aimster might still lose. As I read the briefs, I felt like I was hearing about two completely different services.  One has a central index of files and knows who is logging onto the service, one doesn’t. If an injunction is served, one service can be shut down, one can’t.  I can’t tell you whether this system is more like Napster or Gnutella.  I wish the judges luck in figuring it out.

One thing to consider, then, is that Aimster losing might have little impact on future P2P development.  That is, if the court’s “factual” findings show that Aimster has a central index and can block infringing material, then that doesn’t mean that future uses of encryption are banned in P2P.  It just means that services operating like Napster are still liable.

This is not to say that the facts are irrelevant.  But, they’ll be more important as they’re fit into the court’s reasoning.  For instance, the way the court treats Club Aimster and Deep’s boasts that Aimster is the next Napster will be significant.  If the court sees these actions as inducing and contributing to infringement, it must carefully describe what triggers that contribution on a general level.  That is, it won’t be enough to know that P2P developers shouldn’t pursue the exact same actions as Aimster.  Instead, the court must lay down some sort of rule that will apply to far different circumstances. 

The problem then becomes, how can such a rule be clear? It will likely be too vague to apply to other P2P developers.  Thus, from muddled facts we will get a muddled ruling with muddled general reasoning, left to be reinterpreted anew, predictably out of context in future cases. 

Similarly, a vague standard might evolve if the court focuses on Aimster’s primary, advertised use, rather than it’s substantial non-infringing uses. If the court determines that the Aimster is liable because it is primarily used and marketed as a piracy tool, the facts will then become much more significant.  Again, what makes a use primary?  What direction will this provide for future developers?

Another important issue is whether Aimster has sufficient knowledge of infringement.  Aimster (and the EFF) argue that generalized knowledge of infringement is not enough for liabliity.  More specifically, Aimster argues that it has no specific knowledge of infringement and that it cannot identify specific infringers.  Even if the court accepts specific knowledge as the standard, what constitutes specific knowledge?  Given that simply uploading the song title to the index could constitute infringement, I figure Aimster has specific knowledge that infringement is occurring.  Even though encryption hides the actual file transfer, it does not cover the song on the index.  Then the question is: does Aimster contribute to and can it control this infringement?  Again, from the facts, I’m not sure if Aimster can.

I wish I had something more conclusive to say about this case.  Really, the most important thing the 7th Circuit can do is correct the lower court’s reasoning.  The 7th Circuit should affirm what was said in Sony, Napster, and Grokster.  What it does past that, well, I can’t really say if it’s good or bad, right or wrong, because I can’t figure out the facts of the case.

…This in some ways calls for a discussion of Napster, which, to tell you the truth, I still can’t get myself to completely disagree with.  The ruling leaves a lot open-ended, and, hopefully, cases like Grokster will provide the necessary clarifications.  But, I can’t say that Napster was incorrect about Napster itself.  I’d like to read some articles debating this – if you know of any, send them along.

Filed by Derek Slater at 3:57 pm under General news
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I will have a longer post later on Aimster, but for now, dial-up is holding me to this:

1.  Mikael Pawlo has put up a petition for the Eric Eldred Act. Update: Actually, he didn’t put it up. Professor Lessig and eldred.cc did.  I got confused because Mikael sent a link and description to the pho list, and I misread the message.

2.  Non-commercial webcasters finally have a deal; Kurt Hanson gives it the thumbs up.

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I finally read most of Harvard JOLT’s fall issue, including Yochai Benkler’s article on wireless (which I’ll get back to once I’ve read some counterarguments). 

There’s also this very interesting article called, “Cable Modem Service and the First Amendment: Adventures in a ‘Doctrinal Wasteland.'”  It’s a fascinating read. First, he goes through the basic history of cable modem regulation, including AOL’s position switch. He then compares two divergent lower court opinions, shows how they match up with what the FCC’s said, and discusses which ruling is probably correct.  Sometimes I wasn’t quite sure whether he was making normative or deductive claims.  I’ll try to review it later, see what I was missing.

One point that caught my eye:

“Some proponents of mandated access claim that cable modem service consists of two discrete elements: a “pipeline” and the services transmitted through that “pipeline.” The FCC, however, concluded that cable modem service is an “integrated service” combining “the transmission of data with computer processing, information provision, and computer interactivity, enabling end users to run a variety of ap-plications.” This meant that the FCC would not target the transmis-sion function as a “telecommunications service” subject to Title II regulation, while leaving the other elements unregulated. As will be shown next, viewing cable modem service as an integrated combina-tion of content and “pipeline” strongly supports the First Amendment rights of cable operators.”

This is later related to one court opinion, which the author says is correct given what the FCC’s said.

Intuitively, this strikes me as plain wrong.  Apparently, the “content” (as described in the article) seems to be merely the start page ISPs provide to their customers. Perhaps it’s more, but, even if it is, it still seems like you can separate the content from the pipeline.

This points to another problem in our classification system. It’s one John Palfrey has mentioned many times: how we define an ISP or a “telecommunications” service provider?  We don’t know, because they seem to be defined many different ways. 

I haven’t read near enough about the growing control in the “physical” (and, hence, the “logical” and “content”) layers.  I’ve understood the basic outline for awhile, but I haven’t investigated too deeply.  I should probably go back and look at the recent changes in DSL rules (is it still right to think that DSL is less problematic than cable in turns of content control?).

Filed by Derek Slater at 12:47 pm under General news
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1.  Matt would appreciate this: “Copyright Category Confusion and Its Consequences: Online Transmissions and the Rights of Exclusive Use Under Copyright.”  I like this bit in particular:

” The first sale doctrine is not triggered, however, until a distribution occurs; if an online transmission is deemed a reproduction but not a distribution, the first sale doctrine would not apply to the user’s copy. No rental for profit would then be permissible without the permission of the website copyright owner.”

2.  The other day, I considered renting a movie from MovieLink.  I always like to see how these new DRMized offerings work – I like playing around with them, seeing what actions produce error messages, experiencing the service’s (dis)ease of use.  Experiencing the service first hand gives me a feel for its potential for success and the current state of the industry. 

Plus, I was tired of studying, and I didn’t want to pay the two dollars back and forth on the subway.  I didn’t want to pay 5 dollars just to rent a 3 dollar video.

So I access the website, and they’ve got the perfect movie for brains fried by studying: JackAss the movie.  I click on it, and what do I see?

A price tag of five dollars. Five dollars. To rent a movie. Over the Internet. Their price is higher than Blockbuster’s.  Not to mention the DRM.

The movie execs should know better. Supposedly, they’re the lucky ones, because they get to learn from the music industry’s Napsterization. The MPAA can avoid the RIAA’s mistakes. And, the MPAA knows where it has to end up – closer to iTunes, farther from PressPlay.  Right now, the movie industry is in PressPlay territory. Sigh.

Filed by Derek Slater at 1:08 pm under General news
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Here’s one of the biggest semi-myths about copyright: video stores are only allowed to rent out movies because the MPAA has given them permission.

It’s a myth because of the first sale doctrine.  Video stores can do what they wish with the particular copies they purchase.  (Interestingly enough, this is not true for sound recordings and computer programs.)

I’d say it’s only a semi-myth because (I think) most video stores do enter into licensing agreements these days.  Check out this article for a brief history of the video rental industry (with comparisons to libraries).  In the 1980s, the movie industry tried various licensing schemes to hamper the video rental industry.  Today, the two industries enter into mutually beneficial agreements, like this one.

So, a couple of issues come to mind.  First, how was the movie industry able to price discriminate against rental stores in the first place?  How did they determine who was purchasing copies in order to rent them out?  How does anti-trust law look at this sort of price discrimination? (Perhaps I should try to find this at my library.)

Second, look at page 12 of the Universal-Blockbuster agreement linked to above. Section g states, “No First Sale: Blockbuster agrees that the license of a Copy … under this Agreement … shall not be deemed a ‘sale or other transfer of ownership’ within the meaning of Section 106(3) of the Copyright Act, … and shall not render Blockbuster an ‘owner’ of the Copy … within the meaning of the Section 109(a) of the Copyright Act…. Blockbuster expressly agrees that as license it has no right to ‘sell or otherwise dispose of the possession of any Copy … except as expressly provided in this Agreement.”  This seems like something similar to Bowers. It’s a contractual agreement that nullifies the public’s rights in copyright.  Unlike Bowers, it’s an agreement with a quid pro quo that is clearly acceptable and acknowledged by both parties.  Blockbuster agreed to this not because it had to, but because it wanted this special arrangement.  But is this difference significant enough?  If the Supreme Court takes this case, and reverses, how will it draw the line?

Would this sort of license be ok in a typical consumer context, say, when purchasing a CD?  If you were given the option of purchasing a CD for 10 dollars with no restrictions, or purchasing the same CD but without the ability to copy for 5 dollars, would that be ok? Proponents of DRM repeatedly cite the benefits of this sort of price discrimination.  Is this active undermining of fair use as a right bad?  Is it only bad because of unfair conditions within the current marketplace?  Or is it bad generally, because we should have a right to copy? Should we follow the lead of the Lofgren bill in this regard, nullifying such contracts?

Filed by Derek Slater at 12:45 am under General news
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Professor Volokh just finished a draft of an article entitled “Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, Saderup, and Bartnicki.”  He’ll be posting it soon.

Filed by Derek Slater at 11:24 pm under General news
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