May 272015
 

This is not the first time I have written about this case, but with any luck it won’t be the last because hopefully the Supreme Court will agree to review it and reverse the Federal Circuit’s unfortunate (and statutorily-questionable) ruling finding that software APIs could be subject to copyright.

Unfortunately the odds of the Supreme Court even taking up the case this may have dropped this week following the submission of a brief by the Solicitor General to the Court urging it not to (the brief is embedded at the bottom of this Techdirt post). In this brief the Solicitor General, acting on behalf of the Obama Administration, stated its belief that the Federal Circuit had been correct in the first place and that there was no need for the Supreme Court to revisit its analysis.

This brief is itself unfortunate, in part because its analysis is fairly incomplete (ignoring relevant precedent) and under-theorized. There’s always tension in copyright law between the idea-expression dichotomy. In other words, while expression can be copyrighted, ideas cannot be (for good reason), and it can be difficult to figure out which side of the copyrightable line certain types of works, like software (or their APIs), fall on. Unfortunately the government’s brief sheds little light on how these sorts of difficult questions should be resolved, or why.

It’s also unfortunate that the view in support of the Federal Circuit’s ruling is the government’s view. One would hope that the US government would support the statutory interpretation that most promotes innovation. Unfortunately that is not the view of the Federal Circuit, which in fact tends to run counter to an innovation-promoting policy goal. To further explain why this is so I am cross-posting the article on the subject I wrote last year for Al Jazeera explaining why the Federal Circuit’s interpretation of copyright law with regard to APIs is so destructive to future innovation.
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Mar 242015
 

A few months ago an advisory committee for the California State Bar promulgated an interim ethics opinion addressing when lawyers’ blogs should be subject to applicable bar rules governing lawyer advertising.

The impetus behind having bar rules addressing lawyer advertising is generally a reasonable one. The nature of the lawyer-client relationship, the relative imbalance in their respective expertise, and the stress inherent with the sort of situation that would require a lawyer’s assistance makes it important to ensure that lawyers are not misleading or overly aggressive in their solicitation of business. The applicable bar rule regarding lawyer advertising in California is also not especially onerous (although the same may not necessarily be said about similar rules in other jurisdictions).

But a blog is speech, and applying regulation to speech is something that constitutionally can only be done in very limited ways and in very limited circumstances. Yet there is nothing limited about this recommendation. It promulgates a standard that would ultimately catch many, if not most, legal blogs in the California bar’s regulatory net, despite it being unnecessary and chilling to speech that should be beyond government’s reach.

It’s also simply not a good idea that serves the public interest.
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Mar 152015
 

I was asked by someone to comment on an opinion article lambasting the recent FCC action to regulate Internet broadband under Title II. Some of the rhetoric surrounding Net Neutrality is so polarized, he observed, that he couldn’t tell fact from hyperbole and was hoping I could demystify what is going on. As I started writing down my thoughts, they began to take the shape of a blog post, which follows here.

The infrastructure allowing people to connect to the Internet is, by and large, in the hands of a few private commercial entities who have figured out that it might be profitable for them to prioritize certain network traffic over other traffic if those originating this content pay them for this prioritization. The worry here is that content prioritization inherently also amounts to content discrimination. If this practice is allowed to continue, such that the only content Internet users can effectively access is that which is produced by moneyed players able to pay for its prioritization, all the grassroots voices or start-up businesses that also depend on the Internet to have their content disseminated, but cannot afford to pay for the broadband carriers for it, will effectively be drowned out.

Of course, not everyone believes that this sort of scenario is something to get worked up over, and this view shows up in the net neutrality debates. But increasingly the attitude of “Net Neutrality? Who cares?” seems to be largely marginalized. Public opinion (especially ever since the John Oliver soliloquy) seems to be of the view that for the Internet to remain the valuable resource it is, entities providing access to it should allow for the transmission all content equally. President Obama has also come out publicly in support of this view, and at least the three FCC commissioners who ended up voting for the Title II classification appear to share it as well.

Essentially the debate has now moved from “should we have Net Neutrality?” to “how do we achieve Net Neutrality?” The problem now is, though, that while we may want a free and open Internet, it’s not entirely clear how we get it.
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Google v. Garcia oral argument summary

 Analysis/commentary, Intermediary liability, Regulating speech  Comments Off on Google v. Garcia oral argument summary
Feb 212015
 

Back in December I traveled to Pasadena to observe the oral argument in the en banc appeal of Google v. Garcia, a case I filed an amicus brief in on behalf of Techdirt and the Organization for Transformative Works. (Actually, I ultimately wrote two briefs, one in support of the en banc appeal being granted and one as part of the appeal once it was.) After the hearing I wrote a synopsis of the arguments raised during the appeal on Techdirt (originally titled, “Celine Dion And Human Cannonballs“), which I’m now cross-posting here: Continue reading »

The NSA and the Fifth Amendment

 Analysis/commentary, Privacy from government  Comments Off on The NSA and the Fifth Amendment
Sep 162014
 

In addition to the amicus brief in Smith v. Obama, a few weeks earlier I had filed another one on behalf of the National Association of Criminal Defense Lawyers in Jewel v. NSA, another case challenging the NSA’s telecommunications surveillance.

Unlike Smith v. Obama and other similar cases, which argued that even collecting “just” telephonic metadata violated the Fourth Amendment, in Jewel the surveillance involved the collection of communications in their entirety. It didn’t just catch the identifying characteristics of these communications; it captured their entire substance.

The Electronic Frontier Foundation originally filed this case in 2008 following the revelations of whistleblower Mark Klein, a former tech at AT&T, that a switch installed in a secret room at AT&T’s facilities were diverting copies all the Internet traffic passing through their systems to the government. This, the EFF argued in a motion for summary judgment, amounted to the kind of “search and seizure” barred by the Fourth Amendment without a warrant.

Like in Smith v. Obama, this surveillance necessarily implicates the Sixth Amendment in how it violates the privacy of communications between lawyers and their clients. But because the surveillance involves the collection of the content of these communications it also inherently violates the Fifth Amendment right against self-incrimination as well. Continue reading »

The NSA, metadata, and the Sixth Amendment

 Analysis/commentary, Privacy from government  Comments Off on The NSA, metadata, and the Sixth Amendment
Sep 152014
 

Last week Durie Tangri and I filed an amicus brief on behalf of the National Association of Criminal Defense Lawyers in the appeal of Smith v. Obama. Smith v. Obama is one of the many lawsuits being brought against the government following revelations of how the NSA has been spying on Americans’ communications. Like several of the others, including First Unitarian Church of Los Angeles v. NSA and Klayman v. Obama, this case is about the government’s wholesale collection of telephonic metadata – or, in other words, information reflecting whom people called, when, and for how long (among other details).

In the Klayman case, which is now on appeal at the D.C. Circuit Court of Appeals, the district court judge found that this wholesale, warrantless, collection of people’s call records indeed violated the Fourth Amendment. In Smith v. Obama, however, the district court had reached the opposite conclusion. Despite finding the reasoning in Klayman persuasive, the district court judge here felt bound to follow the precedent set forth in a 1979 Supreme Court case called Smith v. Maryland.

In that case the Supreme Court held that it did not violate the Fourth Amendment for the government to acquire records of people’s calls. The government only violates the Fourth Amendment when it invades a “reasonable expectation of privacy society recognizes as reasonable” without a warrant. But how could there be an expectation of privacy in the phone number a person dialed, the Supreme Court wondered. How could anyone claim the information was private, if it had been voluntarily shared with the phone company? Deciding that it could not be considered private, the court therefore found that no expectation of privacy was being invaded by the government’s collection of this information, which therefore meant that the collection could not violate the Fourth Amendment.

The problem is, in the Smith v. Maryland case the Supreme Court was contemplating the effect on the Fourth Amendment raised by the government acquiring only (1) specific call information (2) from a specific time period (3) belonging only to a specific individual (4) already suspected of a crime. It was not considering how the sort of surveillance at issue in this case implicated the Fourth Amendment, where the government is engaging in the bulk capturing of (1) all information relating to all calls (2) made during an open-ended time period (3) for all people, including (4) those who may not have been suspected of any wrongdoing prior to the collection of these call records. What Smith is arguing on appeal is that the circumstances here are sufficiently different from those in Smith v. Maryland such that the older case should not serve as a barrier to finding the government’s warrantless bulk collection of these phone records violates the Fourth Amendment.

In particular, unlike in Smith v. Maryland, in this case we are dealing with aggregated metadata, and as even the current incarnation of the Supreme Court has noted, the consequences of the government capturing aggregated metadata are much more harmful to the civil liberties of the people whose data is captured than the Supreme Court contemplated back in 1979. In U.S. v. Jones, a Fourth Amendment decision issued in 2012, Justice Sotomayor observed that aggregated metadata “generates a precise, comprehensive record” of people’s habits, which in turn “reflects a wealth of detail about [their] familial, political, professional, religious, and sexual associations.” One of the reasons we have the Fourth Amendment is to ensure that these associations are not chilled by the government being able to freely spy on people’s private affairs. But when this form of warrantless surveillance is allowed to take place, they necessarily will be.

While it’s bad enough that any associations are chilled, in certain instances that chilling implicates other Constitutional rights. The amicus brief by the Reporters Committee for Freedom of the Press addressed how the First Amendment is undermined when journalists can no longer be approached by anonymous sources because, if the government can easily discover evidence of their conversations, the sources effectively have no anonymity and will be too afraid to reach out. Similarly, the brief I wrote discusses the impact on the Sixth Amendment right to counsel when another type of relationship is undermined by this surveillance: that between lawyers and their clients. Continue reading »

Oracle v. Google and the importance of the copyrightability question

 Analysis/commentary, Criminal IP Enforcement  Comments Off on Oracle v. Google and the importance of the copyrightability question
May 212014
 

Earlier this week I published an op-ed at Al Jazeera America on the latest news from the Oracle v. Google litigation. Of note, a few weeks ago the Court of Appeals for the Federal Circuit ruled that Google had infringed on copyrights Oracle apparently had in its APIs for Java. My column explains in more depth what’s so problematic about this ruling – particularly as it bears on future innovation – but I want to highlight one particular point I made in more depth here:

[T]he court left open the question of whether Google’s use of the APIs was permissible under the doctrine of fair use. But having to hope that fair use might provide a defense for copyright infringement creates a chilling amount of uncertainty for the innovator. As noted copyright academic Lawrence Lessig famously observed, “Fair use is the right to hire a lawyer.” In other words, the costs to innovate dramatically expand when you need to defend what you’ve developed on the basis of fair use. It is much better for all who depend on APIs to innovate for them not to be copyrightable at all, as there will never be a need to defend one’s use against claims of infringement for something that couldn’t be infringed in the first place. (emphasis added here)

I decided I wanted to hammer home this point after I saw this post I saw at the Volokh Conspiracy analyzing whether posting cease and desist letters potentially violated copyright. The problem was that the analysis went from this:

A. Letters are indeed presumptively protected by copyright. Generally speaking, pretty much anything that’s at all original (not necessarily innovative, but just the author’s own writing) and longer than several words is indeed copyrighted the moment it’s written down.

immediately to this:

B. But this presumption can be rebutted if the person copying the work shows (among other things) that his use is a “fair use” of the work. Here’s a quick run-through of the four fair use factors, and how they apply to such uses of cease-and-desist letters…

My point here is not to pick on Eugene Volokh. His ultimate conclusion of non-infringement is reasonable and well-supported by his fair use analysis. The problem, though, is that in getting to that conclusion I think he made a mistake many others are inclined to make: fair use does not rebut a presumption of copyrightability; it only potentially rebuts a presumption of infringement.

This distinction between presumptions of copyrightability and infringement is important because, as the op-ed says, if there is no copyright there can be no infringement. Thus it’s extremely important not to short circuit that initial analysis as to the former. Copyright can be an extremely potent weapon, but only when it actually exists. Failing to fully consider whether it does would be as foolish as defending against a gunman it turns out is only armed with a twinkie. Although as Volokh suggests copyright can very easily apply to many if not most original works, as the Oracle case discussed, it definitely doesn’t apply to all of them. Like the lower court had found in that case, copyright statute and doctrine explicitly exempt certain original works from copyright and for very good reasons, reasons that we undermine when we presumptively credit a work with more copyright than it may deserve.

Apr 162014
 

On Monday I filed an amicus brief in a case sometimes referred to as “Garcia v. Google.” The case is really Garcia v. Nakoula, with Garcia being an actress who was duped by the defendant to appear in a film he was making – a film that, unbeknownst to her, turned out to be an anti-Islam screed that led to her life being threatened by many who were not happy with its message and who sought to hold her accountable for it.

There’s little question that Nakoula wronged her, and likely in a way that the law would recognize. Holding him accountable is therefore uncontroversial. But Garcia didn’t just want to hold him accountable; Garcia wanted all evidence of this film removed from the world, and so she sued Google/YouTube too in an attempt to make it comply with her wish.

Garcia is obviously a sympathetic victim, but no law exists to allow her the remedy she sought. In fact, there are laws actively preventing it, such as 47 USC Section 230 and the Digital Millennium Copyright Act (DMCA), and, believe it or not, that’s actually a good thing! Even though it may, in cases like these, seem like a bad thing because it means bad content can linger online if the intermediary hosting it can’t be forced to delete it, such a rule helps preserve the Internet as a healthy, robust forum for online discourse. It’s really an all-or-nothing proposition: you can’t make case-by-case incursions on intermediaries’ statutory protection against having to take down “bad” content without chilling their ability to host good content too.

And yet that is what happened in this case when Garcia sought a preliminary injunction to force Google to delete all copies of it from YouTube (and prevent any new copies from being uploaded). Not at the district court, which denied her request, but at the Ninth Circuit Court of Appeals earlier this year when two out of three judges on the appeals’ panel chose to ignore the statutes precluding such an order and granted it against Google anyway.

Google has now petitioned for the Ninth Circuit to review this decision, and a few days ago nearly a dozen third parties weighed in with amicus briefs to persuade the court to revisit it. Most focused on the method by which the court reached its decision (i.e., by finding for Garcia a copyright interest in the film unsupported by the copyright statute). I, however, filed one on behalf of two intermediaries, Floor64 Inc. (a/k/a Techdirt.com) and the Organization for Transformative Works, intermediaries who both depend on the statutory protection that should have prevented the court’s order, arguing that by granting the injunction in contravention of these laws preventing it, the court has undermined these and other intermediaries’ future ability to host any user-generated content. As the saying goes, bad facts make bad law, and tempted though the court may have been in this case with these facts, if its order is allowed to stand the court will have made very bad law indeed.

For more detailed analysis read the brief and the TechDirt article about it. Additional amicus briefs and relevant case filings are also archived here, and Eric Goldman has a nice summary of the briefs as well.

Protecting Internet Intermediaries (cross-post)

 Analysis/commentary, Intermediary liability  Comments Off on Protecting Internet Intermediaries (cross-post)
Feb 202014
 

The following was posted on Project-Disco.org earlier this week:

What would the Internet be without its intermediaries? Nothing, that’s what. Intermediaries are what carry, store, and serve every speck of information that makes up the Internet. Every cat picture, every YouTube comment, every Wikipedia article. Every streamed video, every customer review, every online archive. Every blog post, every tweet, every Facebook status. Every e-business, every search engine, every cloud service. No part of what we have come to take the Internet for exists without some site, server, or system intermediating that content so that we all can access it.

And yet, if we’re not careful, we can easily lose all the benefits these intermediaries bring us. Thankfully, in the United States we have some laws that help ensure they can exist, chief among them 47 U.S.C. Section 230. As my recent paper on the state of the law regarding intermediary liability explains, this law stands for the proposition that intermediaries are only responsible for what they themselves communicate through their systems – not what others use them to say. For example, newspapers that post articles online are only responsible for the content of the articles they publish, not the comments readers then post to them. Similarly consumer review sites are only responsible for the information they supply to their sites, not the user reviews themselves. This same principle also means that people who link to content (as search engines do) are not legally responsible for that content, even if that content should happen to be illegal in some way (like by being potentially defamatory).

The reason Section 230 has been so helpful in allowing the Internet to thrive and become this increasingly rich resource is that by relieving intermediaries of liability for the content passing through their systems it has allowed for much more, and much more diverse, content to take root on them than there would have been had intermediaries felt it necessary to police every byte that passed through their systems out of the fear that if they didn’t, and the wrong bit got through, an expensive lawsuit could be just around the corner. Because of that fear, even if those bits and bytes did not actually comprise anything illegal intermediaries would still be tempted to over-censor or even outright prohibit scads of content, no matter how valuable that content might actually be.

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Copyright’s Not Getting its Job Done (cross-post)

 Analysis/commentary, Criminal IP Enforcement  Comments Off on Copyright’s Not Getting its Job Done (cross-post)
Jan 182014
 

I wrote the following for the Electronic Frontier Foundation’s blog as part of “Copyright Week” – a push to raise awareness of the key principles that should guide a healthy, constructive, and effective copyright policy.

People sometimes treat copyright law as though it’s a fixed constant in the universe, like gravity. First the Earth cooled, then the dinosaurs came, and then we got copyright. But that’s not the case at all, and it’s important to remember this when we think about what’s gone wrong with the law and how to make it right. Copyright is a relatively recent invention, born out of a particular cultural background and designed to solve a specific problem at a particular point in history. While we might continue to value what it purports to do we aren’t slaves to its precepts: when copyright law no longer ably solves the original problem, or, indeed, when it creates new ones, we need not wring our hands in frustrated woe. If a law has turned into something that no longer works for us then we should feel free to come up with something else that does.

In order to figure out how to move forward it helps to look to the past. Copyright as we know it is only a few hundred years old. It traces its roots to the “Statute of Anne,” a law passed in the early 18th Century England to replace an earlier law that gave the government complete control over everything that was published. Naturally this earlier law led to a great deal of censorship, and the push for democratic reform near the end of the 17th Century led to demands that it be changed to something less stifling to the marketplace of ideas.

The result was the Statute of Anne, a law described as “[a]n Act for the Encouragement of Learning.” While the law it replaced had been designed to limit what knowledge was available to the public by giving permission to publish to just a few publishers approved by the king, this new law was designed to stimulate the dissemination of knowledge by giving everyone the ability to control how what they wrote was published themselves.

The statute did this by granting authors a “copy right” so that they could have first crack at exploiting the market for the works they created and not be at the mercy of publishers who might otherwise help themselves to these works and keep all the profit for themselves. A common rationale for copyright is that people won’t create if it won’t ever be worth their while to, so if we want to make sure we do get a lot of creative output we need a system that makes it at least theoretically economically viable to create.

But as we look at our modern copyright law, the distant progeny of the Statute of Anne, it is worth questioning the assumptions wrapped up in it. For one thing, it’s worth questioning whether and to what extent people create only when there is a profit motive. The reality is people create all the time, even when there’s no guarantee or expectation of ever being paid for it, and often these works can be just as good, if not better, than the ones created by people who are being paid. Furthermore, despite what some advocates for stricter copyright law suggest, copyright has never been a promise of financial success. In fact it’s sometimes been a barrier to it, and there are many authors and artists whose influence and commercial appeal took off only after the copyrights on their works had expired and the public could finally get affordable access to them.

It’s also important to recognize that the Statute of Anne sought to achieve its stated goal of encouraging learning in a way that very much reflected the Western European tradition of disseminating knowledge through the written word, and in response to the monopolistic power publishers had at the time to be gatekeepers over that knowledge. But it’s not the only way to skin this particular cat: in other parts of the world oral traditions and norms that encourage copying have allowed cultures to flourish in their own local idiom, without the need for copyright. So when we think about this law we need to recognize how much it reflects the unique time and place from where it arose and not deprive ourselves of the lessons of openness these other approaches teach us. Copyright is not the only solution to promoting the progress of arts and sciences, and it should not be treated as sacrosanct and immune to reform of its increasingly rigid rules, particularly when its current form is no longer reliably achieving its desired end.

The idea behind the Statute of Anne, which was echoed in the US Constitution a few decades later, is that society is better off when it has access to as many works of authorship as possible. But as EFF and many others have described this week, the monopolies copyright law grants have gotten broader in their scope and application, longer in their duration, and ultimately less effective, if not completely counter-productive, in encouraging more creativity and enabling the public’s access to the fruits of that creation. The irony is that as a result, like with the period before the Statute of Anne, we find ourselves in a time when government regulation is actually constricting dissemination of knowledge, rather than enhancing it.

But law is not immutable; indeed, the very existence of the Statute of Anne shows how much it can change when it needs to. When, as now, a law no longer fulfills its objectives, it’s time to reshape it into something that does. It’s time to fix copyright law so that it can finally get the job done that it was always intended to do.