Jul 162015
 

Cross-posted from Techdirt.

Earlier this week the Ninth Circuit heard oral arguments in the appeal of Lenz v. Universal. This was the case where Stephanie Lenz sued Universal because Universal had sent YouTube a takedown notice demanding it delete the home movie she had posted of her toddler dancing, simply because music by Prince was audible in the background. It’s a case whose resolution has been pending since 2007, despite the fact that it involves the interpretation of a fundamental part of the DMCA’s operation.

The portion of the DMCA at issue in this case is Section 512 of the copyright statute, which the DMCA added in 1998 along with Section 1201. As with Section 1201, Section 512 reflects a certain naivete by Congress in thinking any part of the DMCA was a good idea, rather than the innovation-choking and speech- chilling mess it has turned out to be. But looking at the statutory language you can kind of see how Congress thought it was all going to work, what with the internal checks and balances they put into the DMCA to prevent it from being abused. Unfortunately, while even as intended there are some severe shortcomings to how this balance was conceptualized, what’s worse is how it has not even been working as designed.
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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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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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Feb 132013
 

Last week the BBC contributed its thoughts to the W3C committee contemplating the Encrypted Media Extensions Proposal to the HTML standard, which would allow for more standardized video viewing across multiple platforms.  After establishing its bonafides as a source of Internet video broadcasting, it got to the point.  The proposal, it said, was was overall a helpful one as far as the standardization was concerned.  Technological fragmentation is a problem for someone who wants to make sure their video is viewable to a wide audience. Despite that enormous benefit, however, the BBC could only support the Proposal if it incorporated a DRM standard such that the BBC could pointedly control the retail market for its programming.

It’s worth questioning whether manipulating markets ultimately enlarges them — or, instead, potentially reduces them — but that’s not a subject for these pages right now.  The problem was how the BBC required the proposal to be changed in order to ostensibly enable such manipulation:

The proposed Encrypted Media Proposal looks to be a useful starting point. However, the BBC is unlikely to be able to use any such mechanism unless we feel that it is sufficiently secure that there would be the possibility of legal action in the event of bypassing it.

This is not an easy qualification: the W3C is an international body, and laws on bypassing technical protection measures vary significantly from country to country. In this instance the BBC would be looking for such a mechanism to be secure enough in the UK that it would be a “effective technical protection mechanism” under section 296zb of the Copyright, Designs and Patents Act 1988 (as modified by the Copyright and Related Rights Regulations 2003). We expect that other providers will look for similar assurances in their own territories, such as the anti-circumvention provisions in the Digital Millennium Copyright Act in the United States. (emphasis added)

To summarize, the BBC, “the world’s leading public service broadcaster,” “established by a Royal Charter” and “primarily funded by the licence fee paid by UK households” with a “mission […] to enrich people’s lives with programmes that inform, educate and entertain,” has just lobbied an international technical standards organization charged with “lead[ing] the World Wide Web to its full potential by developing protocols and guidelines that ensure the long-term growth of the Web” such that it enables “involves participation, sharing knowledge, and thereby building trust on a global scale” to make its standards such that people could be imprisoned for using that very technology in a way the BBC did not like.

True, perhaps the BBC was only contemplating there being civil penalties, which is problematic as well. But both the DMCA and section 296zb of the Copyright, Designs and Patents Act 1988 allow for state criminal enforcement when people circumvent technologies designed to control access to content, regardless of how legitimate that access would be.

Jan 292013
 

In 1998 the Digital Millennium Copyright Act amended U.S. copyright law in a few key ways.  Of most relevance here is the additions it made to 17 U.S.C. §§1201 et seq., which includes the provision:

“No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”  §1201(a)(1)(A)

If one does, they can be liable for damages, §1203(c), or, more saliently for this blog, fines of $500,000 and/or 5 years imprisonment for the first offense and $1,000,000 and/or 10 years for subsequent ones.  §1204(a).

The question here is, why?

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