Aug 222017

The following is a cross-post of something I wrote on Techdirt last week.  Some people have taken issue with the fact that I did not fully analyze exactly how VARA (see below) would specifically apply to the Confederate monuments, but that wasn’t the point.  The point was that we added something to copyright law that very easily could interact with public art controversies and in a way that is not going to make them any easier to sort out.

There’s no issue of public interest that copyright law cannot make worse. So let me ruin your day by pointing out there’s a copyright angle to the monument controversy: the Visual Artists Rights Act (VARA), a 1990 addition to the copyright statute that allows certain artists to control what happens to their art long after they’ve created it and no longer own it. Techdirt has written about it a few times, and it was thrust into the spotlight this year during the controversy over the Fearless Girl statue.

Now, VARA may not be specifically applicable to the current controversy. For instance, it’s possible that at least some of the Confederacy monuments in question are too old to be subject to VARA’s reach, or, if not, that all the i’s were dotted on the paperwork necessary to avoid it. (It’s also possible that neither is the case — VARA may still apply, and artists behind some of the monuments might try to block their removal.) But it would be naïve to believe that we’ll never ever have monument controversies again. The one thing VARA gets right is an acknowledgement of the power of public art to be reflective and provocative. But how things are reflective and provocative to a society can change over time as the society evolves. As we see now, figuring out how to handle these changes can be difficult, but at least people in the community can make the choice, hard though it may sometimes be, about what art they want in their midst. VARA, however, takes away that discretion by giving it to someone else who can trump it (so to speak).

Of course, as with any law, the details matter: what art was it, whose art was it, where was it, who paid for it, when was it created, who created it, and is whoever created it dead yet… all these questions matter in any situation dealing with the removal of a public art installation because they affect whether and how VARA actually applies. But to some extent the details don’t matter. While in some respects VARA is currently relatively limited, we know from experience that limited monopolies in the copyright space rarely stay so limited. What matters is that we created a law that is expressly designed in its effect to undermine the ability of a community with art in its midst to decide whether it wants to continue to have that art in its midst, and thought that was a good idea. Given the power of art to be a vehicle of expression, even political expression or outright propaganda, allowing any law to etch that expression in stone (as it were) is something we should really rethink.

Jul 122017

The following was also posted on Techdirt.

It’s always hard to write about the policy implications of tragedies – the last thing their victims need is the politicization of what they suffered. At the same time, it’s important to learn what lessons we can from these events in order to avoid future ones. Earlier Mike wrote about the chilling effects on Grenfell residents’ ability to express their concerns about the safety of the building – chilling effects that may have been deadly – because they lived in a jurisdiction that allowed critical speech to be easily threatened. The policy concern I want to focus on now is how copyright law also interferes with safety and accountability both in the US and elsewhere.

I’m thinking in particular about the litigation Carl Malamud has found himself faced with because he dared to post legally-enforceable standards on his website as a resource for people who wanted ready access to the law that governed them. (Disclosure: I helped file amicus briefs supporting his defense in this litigation.) A lot of the discussion about the litigation has focused on the need for people to know the details of the law that governs them: while ignorance of the law is no excuse, as a practical matter people need a way to actually know what the law is if they are going to be expected to comply with it. Locking it away in a few distant libraries or behind paywalls is not an effective way of disseminating that knowledge.

But there is another reason why the general public needs to have access to this knowledge. Not just because it governs them, but because others’ compliance with it obviously affects them. Think for instance about the tenants in these buildings, or any buildings anywhere: how can they be equipped to know if the buildings they live in meet applicable safety standards if they never can see what those standards are? They instead are forced to trust that those with privileged access to that knowledge will have acted on it accordingly. But as the Grenfell tragedy has shown, that trust may be misplaced. “Trust, but verify,” it has been famously said. But without access to the knowledge necessary to verify that everything has been done properly, no one can make sure that it has. That makes the people who depend on this compliance vulnerable. And as long as copyright law is what prevents them from knowing if there has been compliance, then it is copyright law that makes them so.  Continue reading »

Comments on DMCA Section 512: On the general effectiveness of the Safe Harbors

 Analysis/commentary, Criminal IP Enforcement, Intermediary liability  Comments Off on Comments on DMCA Section 512: On the general effectiveness of the Safe Harbors
Apr 062016

The following is Section III.A of the comment I submitted in the Copyright Office’s study on the operation of Section 512 of the copyright statute.

Question #1 asks whether Section 512 safe harbors are working as intended, and Question #5 asks the related question of whether the right balance has been struck between copyright owners and online service providers.  To the extent that service providers have been insulated from the costs associated with liability for their users’ content, the DMCA, with its safe harbors, has been a good thing.  But the protection is all too often too complicated to achieve, too expensive to assert, or otherwise too illusory for service providers to be adequately protected.

Relatedly, Question #2 asks whether courts have properly construed the entities and activities covered by the safe harbor, and the answer is not always.  But the problem here is not just that they have sometimes gotten it wrong but that there is too often the possibility for them to get it wrong.  Whereas under Section 230 questions of liability for intermediaries for illegality in user-supplied content are relatively straight forward – was the intermediary the party that produced the content? if not, then it is not liable – when the alleged illegality in others’ content relates to potential copyright infringement, the test becomes a labyrinth minefield that the service provider may need to endure costly litigation to navigate.  Not only is ultimate liability expensive but even the process of ensuring that it won’t face that liability can be crippling.[1]  Service providers, and investors in service providers, need a way to minimize and manage the legal risk and associated costs arising from their provision of online services, but given the current complexity[2] outlining the requirements for safe harbors they can rarely be so confidently assured.
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Comments on DMCA Section 512: The assumptions of economic harm underpinning the DMCA must be carefully examined

 Analysis/commentary, Criminal IP Enforcement, Intermediary liability  Comments Off on Comments on DMCA Section 512: The assumptions of economic harm underpinning the DMCA must be carefully examined
Apr 052016

The following is Section II.C of the comment I submitted in the Copyright Office’s study on the operation of Section 512 of the copyright statute.

Veoh was a video hosting service akin to YouTube that was found to be eligible for the DMCA safe harbor.[1]  Unfortunately this finding was reached after years of litigation had already driven the company into bankruptcy and forced it to layoff its staff.[2]  Meanwhile SeeqPod was a search engine that helped people (including potential consumers) find multimedia content out on the Internet, but it, too, was also driven into bankruptcy by litigation, taking with it an important tool to help people discover creative works.[3]

History is littered with examples like the ones above of innovative new businesses being driven out of existence, their innovation and investment chilled, by litigation completely untethered from the principles underpinning copyright law.  Copyright law exists solely to “promote the progress of science and the useful arts.”  Yet all too frequently it has had the exact opposite effect.

The DMCA has the potential to be a crucial equalizer, but it can only do so when the economic value of what these service providers deliver is considered by policymakers with at least as much weight as that given to the incumbent interests who complain that their previous business models may have become unworkable in light of digital technology.  Service providers are economic engines employing innumerable people, directly and indirectly, and driving innovation forward while they deliver a world of information to each and every Internet user.  We know economic harm is done to them and to anyone, creators and consumers, who would have benefited from their services when they are not protected.

But what needs careful scrutiny and testing are economic arguments predicated on the assumption that every digital copy of every copyrighted work transmitted online without the explicit permission of a copyright holder represents a financial loss.  This is a presumption that needs careful scrutiny, with reviewable data and auditable methodology.  It is quite a leap to assume that every instance (or even most instances) of people consuming “pirated” copyrighted works is an instance they would otherwise have paid the creator.  For example, it tends to presume that people have unlimited amounts of money to spend on unlimited numbers of copyrighted works, and it also ignores the fact that some works may only be consumable at a price point of $0, which is something that institutions like libraries and over-the-air radio have long enabled, to the betterment of creators and the public beneficiaries of creative works alike.  Furthermore, even in instances when people would be willing to pay for access to a work, copyright owners may not be offering it at any price, nor are they necessarily equitably sharing the revenues derived from creative works with the actual creators whose efforts require the remuneration.[4]

The DMCA does not adjust to reflect situations like these, nor does it incentivize copyright holders to correct their own self-induced market failures.  On the contrary; it allows them to deprive the public of access to their works and to threaten the service providers enabling their access with extinction if they do not assist in disabling this access. None of these outcomes are consistent with the goals and purpose of copyright in general, and care must be taken not to allow the DMCA be a law that ensures them.
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Circumventing innovation with copyright law

 Analysis/commentary, Criminal IP Enforcement  Comments Off on Circumventing innovation with copyright law
Mar 232016

As I’ve written about before, last year’s Section 1201 triennial rulemaking exposed quite a few flaws in the rulemaking procedure. The process itself left much to be desired, as did the eagerness of the Copyright Office to take it upon itself to get to decide whether and how people can be allowed to explore the computing technology they legitimately possess.

For background, Section 1201 is a provision inserted into the copyright statute that makes it a separate, independent criminal offense to bypass any “technical protective measure” (aka “TPM”) that prevents a technology use, irrespective of whether that use infringes a copyright. Because, however, this prohibition will inevitably interfere with non-infringing uses, neighboring provisions in the statute instruct the Librarian of Congress to issue exemptions to the otherwise blanket prohibition following a rulemaking process held every three years by the Copyright Office.

The most recent rulemaking concluded last year and left nearly all parties dissatisfied. At minimum it was a long, messy, expensive process, overly burdensome on everyone who participated, the public in general, and even the Copyright Office itself. It also further raised questions of whether and to what extent it was appropriate to have the Copyright Office get to decide how people are allowed to use their computing technology.

In the wake of this past rulemaking Congress called upon the Copyright Office to conduct two studies, one considering potential improvements to the 1201 rulemaking process, and the other considering the role of copyright in governing the use of software-enabled consumer electronics. These were two separate studies, but as we argued in a comment I submitted on behalf of the R Street Institute in both of them, they are inherently interrelated. While the 1201 rulemaking process itself is still unjustifiably obstructive to non-infringing uses of copyrighted works, when it prevents people from using the computing devices they legitimately possess as they would choose to use to use them, the result is particularly perverse.

And so we counseled that both studies’ questions should be considered in light of each other. After all, the essential question in both stories is, what is copyright law doing here? Continue reading »

Coke isn’t it, and why MTM v. Amazon is a trademark case to watch

 Analysis/commentary, Criminal IP Enforcement, Intermediary liability  Comments Off on Coke isn’t it, and why MTM v. Amazon is a trademark case to watch
Aug 152015

Edit 3/20/2016: In response to the petition for rehearing described below, the Ninth Circuit reversed its position and issued a new decision in favor of Amazon’s motion to dismiss. MTM sought Supreme Court review, which was denied. The matter now seems resolved.

Earlier this year the Ninth Circuit Court of Appeals issued a troubling ruling in Multi Time Machine v.  If allowed to stand this ruling will raise the risk for ecommerce and other online (and even potentially offline) businesses that their normal and reasonable operation might be found to infringe trademarks, even though such a finding would seem to be far beyond what the Lanham Act, which governs trademarks, actually allows.  In light of this unexpectedly and untenably heightened legal risk I filed an amicus brief at the Ninth Circuit on behalf of Rebecca Tushnet and other intellectual property professors in support of Amazon’s petition that this earlier ruling be reconsidered. Continue reading »

Jul 022015

It would take many, many blog posts to fully articulate all the ways that modern copyright law threatens innovation. But one notable way is through Section 1201 of the copyright statute.

As discussed previously, Section 1201 is ostensibly supposed to minimize copyright infringement by making it its own offense to bypass the technical protective measures (TPMs) controlling access to a particular copy of a copyrighted work. (Sometimes these sorts of TPMs are referred to as DRM, or Digital Rights Management.) It is a fair question whether forbidding the bypass of TPMs is at all an effective approach to minimizing infringement, but it’s an even more important question to ask whether the portion of the copyright statute that forbids the bypassing of TPMs does so at the expense of other sections of the statute that specifically entitle people to make certain uses of copyrighted works.

The answer to this latter question is clearly no, and in fact Congress anticipated that it would be “no,” when it put into Section 1201 the requirement that the Copyright Office consider afresh, every three years, whether certain types of TPM bypassing should be deemed specifically permissible, notwithstanding Section 1201’s general prohibition against it. Unfortunately these triennial rulemakings are an extremely cumbersome, expensive, and ineffective way of protecting the non-infringing uses of copyrighted works the public is entitled to make. But the even bigger problem, and the one that I will focus on here, is that Section 1201’s prohibition against bypassing TPMs is increasingly standing in the way of not just non-infringing uses of copyrighted works but non-infringing uses of computing devices as a whole.
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The unfortunate Oracle v. Google redux

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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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Oracle v. Google and the importance of the copyrightability question

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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.

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

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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.