Leval On Fair Use And Google Books: A Sketch Of A Story

from the check-out-pierre-leval dept

Last night Judge Pierre N. Leval, a renowned fair use scholar and judge on the Second Circuit Court of Appeals in New York, delivered the Fourth Annual Peter A. Jaszi Distinguished Lecture on Intellectual Property (you can watch the recording at that link) at the law school where I teach, the American University Washington College of Law (whew). "Lecture" doesn't really do it justice, though; Leval may have spoken in front of a lectern at a law school, but what he said was hardly dry or academic. Instead, it was a bravura exercise in storytelling, which is fitting, as storytelling and narrative are some of Peter Jaszi's favorite subjects, second only to fair use.

Judge Leval recently authored the landmark opinion in Authors Guild v. Google, vindicating Google's massive digitization program which, in collaboration with research libraries all over the country, has made more than 20 million books full-text searchable and available for data-mining with the very cool Ngram Viewer. The opinion was the apotheosis of 25 years of fair use case law set in motion by Judge Leval himself in a 1990 law review article entitled "Toward a Fair Use Standard." Now here was the man himself, ready to talk about fair use in the digital age, and in honor of transformative use's most vociferous defender.

Judge Leval's lecture, like his opinion, told the story of fair use, from "rudderless" meandering after codification in 1976, to a pair of half-baked Supreme Court opinions in the 1980s, and, finally, to salvation in Justice Souter's opinion in Campbell v. Acuff-Rose, which was (though Judge Leval humbly never said so) largely a judicial endorsement of the analysis published a few years earlier in Leval's article. (As Public Knowledge's Raza Panjwani pointed out, the article is cited 16 times in the opinion.)

I'm a law professor, and a fair use obsessive. I've written a lot about this stuff in scholarly and non-scholarly contexts. So, I should have been listening to every single word Judge Leval said, parsing it like the Talmud for meaning and guidance. Instead, I got out my iPad and made cartoons. I'm sure I'll be re-watching the lecture many times for all that nuance, but the chance to live-tweet with sketches of the man himself was once-in-a-lifetime. So, I present for you below the broad outlines of the story of fair use that Judge Leval told last night, together with some of my drawings from the event.

Introductions: Peter Jaszi the rock, Judge Leval the redeemer

In his introductory remarks, Professor Michael Carroll, the director of AU's IP program, paid tribute to the namesake of the lecture, Peter Jaszi. Peter has been a mentor to many, many copyright lawyers and scholars in this town (including me!), and, as Michael said, for decades Peter was a one-man IP program at AU: For his part, Peter Jaszi highlighted the transformative (ha!) impact that Judge Leval has had on the doctrine: Act I: In which Judge Leval's fair use opinions are reversed over and over for dumb reasons and he considers mouthing off to the Second Circuit

Judge Leval began his talk the same way he began his landmark article, with a kind of mea culpa, but really an indictment of the whole judiciary and its treatment of fair use. Early in his judicial career, Leval (then a district court judge) had been reversed by the Second Circuit on appeal in a series of cases involving unpublished works excerpted in scholarly and critical books. The rationale for the reversals—that unpublished works can never be the subject of fair use because of the so-called "right of first publication"—struck Leval (and most of the rest of the world) as bizarre. In particular, it seemed like a major problem for people who want to write about history, which often involves quoting unpublished letters and other primary materials. How, other than to quote him, can one credibly show (as the defendant in one of these cases sought to do) that L. Ron Hubbard wrote awful, retrograde garbage, not gospel? But unpublished works, the 2nd Circuit said, were off-limits. When he was instructed by the Second Circuit to rehear the case with that silly per se rule in mind, Judge Leval was sorely tempted to take a swipe at their stupid rule: But, he said, he decided to cut that line, "because nobody likes a wise-ass." "It was exhilarating to be on the cutting edge of the law, even though the role assigned to me was that of the salami," he added.

Act II: In which the Supreme Court mucks things up even more, despite reaching the right outcomes

Next, Leval described how, in its two big fair use cases in the 1980s, the Supreme Court reached the right conclusions but dropped a series of silly and misleading duds into the doctrine in the process. First, in Sony v. Universal, the court rightly found that of course making and selling VCRs was not somehow a massive infringement enterprise: In the process of exonerating the technology, though, the court decided to reach out and opine on the question of whether it is fair use to tape television shows in order to watch them later. And, in the process of making this (Leval seemed to say unnecessary) determination, the Court opined that "commercial uses are presumptively unfair." What? This was kind of a shock, since several core fair uses, including news reporting and criticism, are often done in the context of a commercial enterprise. The presumption proceeded to wreak havoc for almost a decade before Campbell came along to correct it.

Then, in Harper & Row v. Nation, the Court decided (rightly, Leval figured) that the Nation had not made fair use of about 300 words from Gerald Ford's forthcoming autobiography by excerpting it in their magazine. In addition to the legitimate question of the market prerogatives of Harper & Row regarding publication of basically the only interesting stuff in their book, the Court considered and condemned the fact that the Nation had come by its copy of the book by means of a purloined manuscript. "Purloining is baaaaaad!" Judge Leval intoned in a mock condemnation, and "'Fair use,' Justice O'Connor wrote for the majority (citing an earlier case), 'presupposes good faith and fair dealing.'"

Hogwash, said Judge Leval. "If conduct does not break any law, or violate anyone's rights, it does not become illegal or actionable because the actor had an evil heart." Imagine the facts had been different, Judge Leval suggested. What if the Nation had "purloined" a document that proved Nixon had bribed Ford with millions of dollars for the pardon? Surely the purloining would not undermine the fair use of this clearly newsworthy information.

Once Judge Leval got going about the purposes of copyright, it became clear that he had arrived at a particular phrase to summarize that purpose: "the enrichment of public knowledge." He had used it several times in the Google Books opinion, but it really tripped off his tongue during the talk. I guarantee he said it at least ten times: Act III: In which Campbell saves fair use, and Google Books follows logically therefrom

Judge Leval passed humbly over what happened next, but I won't: his article, "Toward a Fair Use Standard," was published in the Harvard Law Review. That article contains, at greater length and with plenty of caselaw, the very same story of fair use that had so far occupied the talk: First there was the fair use doctrine, which was kind of a mess; then there were Judge Leval's opinions, which were not crazy but also mostly "from the gut"; then there was this silly rule about unpublished works; then there were these two SCOTUS cases that had really made a mess of things, even if the outcomes might have been right. Judge Leval proposed a solution in his article: to decide fair use cases in a coherent way, courts should focus on whether a use is justified by serving the underlying public interest goals of copyright, namely (drumroll) the enrichment of public knowledge, without serving as a market substitute for the works they use. When a use does this (enriching PK and not substituting for the original), Leval proposes we call it "transformative."

Leval skipped right past the fact that he had personally proposed the solution, instead heaping voluminous praise on Judge Souter, who wrote the majority opinion in Campbell v. Acuff-Rose, adopting Leval's framework almost completely. This brought to an end "250 years of rudderless drift" in fair use case law. In that 1994 case, the Court reversed a lower court's ruling that 2 Live Crew had infringed on the copyright in Roy Orbison's "Oh, Pretty Woman" by using the core hook and melody of the song in its rap song "Pretty Woman," which was a decidedly raunchier ode to a woman walking down the street. The lower court had applied Sony and found this commercial use to be presumptively unfair, a presumption that the Crew did not overcome. But the SCOTUS majority in Campbell noted that the new song was very different from the original in terms of its meaning, and indeed could be seen (though this is debatable) as a parody of the original, and this was precisely the kind of enrichment of public knowledge that fair use should permit. Campbell embraced the transformative use framework, abandoned the commerciality presumption, cautioned against searching for presumptions, rolled back some of the harmful stuff about good faith, and suggested that injunctions were not necessarily an automatically great idea for any alleged infringement.

Leval was over the moon. Indeed, he paid tribute to the opinion in a keynote speech at Cardozo Law School shortly after the opinion was issued.

Now, 20 years later, along comes Google Books. Judge Leval went straight from Campbell to Google Books, and argued that Campbell had provided a flexible doctrine that could easily accommodate technological uses like Google's.

After describing in minute detail how Google Books was created and how it worked, Leval mentioned that initially his Court was asked to hear an appeal of the question of class action status. The Authors Guild and some of its members purported to speak for all authors of copyrighted books in demanding that Google seek permission before scanning and indexing their books. Judge Leval wondered whether some authors (and publishers) might not be perfectly happy to have their books discoverable in Google Books, even without their affirmative consent: But rather than try to pick apart that sticky issue, Judge Leval said he had a sneaking suspicion that if they could decide the fair use issue, the rest would be moot. So, the Second Circuit sent it back to the district court, who dutifully decided the use was fair, teeing the issue up for appeal.

Leval noted that some aspects of Google Books might have seemed novel to a court hearing the case in 1994. In particular, the use of entire works, indeed of multiple entire works, might seem like a stretch given the concern with "amount" in the statute. However, with the transformative use framework at hand, courts were able to recognize the use of entire works can serve radically new purposes, and avoid serving as market substitutes. This was especially true in cases involving technology, like A.V. v. iParadigms, in which Leval said "A student whose plagiarism was detected by this machine had the chutzpah to sue!" The use was fair, of course, because the purpose was transformative ("to provide information about the original") and valuable and the software was not offering substitutes for whatever market there might be for student papers. "Because the public had virtually no access to the original books, our case was very similar," Leval explained, at least regarding creating the database on the back end. "Snippet view" might pose a harder question, but Leval explained in detail why this function was not a market substitute for the books. "Our decision was very much pinned to highly specific facts of how Google restricts the snippet function." The evidence showed a searcher would find it essentially impossible to reconstruct a market substitute from searching the book for sequential snippets.

From here I actually tuned in a little more closely, and didn't do so much drawing. While much of this part of the talk was a recapitulation of the opinion, there were some interesting asides. For instance, he mentioned with approval the opt-out option that Google provides to authors (and other rights holders) who don't want their works to appear in Google Books. This feature had been pooh-poohed by many critics as a fig leaf, but Judge Leval found it to be a compelling protection against unwanted exposure. "If this had been true from day one, our decision might have been very much briefer," he observed, suggesting the fair use case would be open-and-shut.

Conclusion: "Fair use is neither incomprehensible, nor is it explained by arcane rules"

This was where Judge Leval brought it home, with wisdom that is especially poignant given that this was a lecture in honor of Peter Jaszi, who has spent much of his career empowering ordinary people to exercise their fair use rights. Q&A: Off the record!

Judge Leval asked that the question and answer period be done off-camera, but I did capture a couple of the questions that were asked:



Hopefully some of the policymakers in the crowd were listening to Judge Leval's observation that statutory damages reflect a Victorian view of morality divorced from the public interest purposes of copyright, which might favor allowing infringement so long as reasonable actual damages are paid. I think the Judiciary Committee staffers in the room could hardly stand up from their seats before the advocates in the room descended upon them to hammer that point home.

I was personally gratified by his answer to one of the last questions, which suggested (in the mode of devil's advocate) that the statute had embodied a "balance" in 1976 that had been upset by the subsequent "expansion" of fair use. Judge Leval explained something I have always strongly believed, namely that the four statutory factors that allegedly govern fair use (roughly: purpose and character of the use, nature of the work used, amount, and market effect) are almost completely meaningless on their face. They don't embody anything, in particular - not a "balance" or an "imbalance." They're just placeholders for the broader idea that some uses should be allowed without permission when they serve, and do not undermine, the purposes of copyright. Without knowing what kinds of purposes are favored, which sorts of works should be used, how to tell if the amount is appropriate, etc., the factors are just a mess. That's why you need to get outside the statute and look at the overarching purposes of copyright, and once you do that, you can begin to apply the doctrine in a fairly coherent way. And that's what the courts have done.

I must say, I found Judge Leval to be a charming, funny, smart, and generous speaker. As someone told me after the lecture, it is always so nice when someone whose ideas you admire from a distance turns out to be a warm and interesting person in real life, too.

Filed Under: copyright, fair use, google books, pierre leval

House Judiciary Committee Hears Concerns From Silicon Valley About Copyright Law

from the now-what? dept

Yesterday afternoon, for about two and a half hours, members of the House Judiciary Committee took part in what they're calling they're "Copyright Review Listening Tour" for a roundtable in Silicon Valley. There were 20 participants in the roundtable, mostly made up of people who work in and around the technology industry. Today, the Representatives will host a similar roundtable down in LA, which will be mostly made up of entertainment industry folks. Unfortunately, this aspect of the tour seems to reinforce the silly idea that copyright law is a battle between "Silicon Valley" vs. "Hollywood" -- and that what's good for one is bad for the other.

Reps. Blake Farenthold, Darrell Issa, Jerry Nadler. Photo by Parker Higgins, EFF, CC BY
That whole line of argument is ridiculous and counterproductive -- as a few of the panelists at yesterday's hearing made clear. Good copyright law enables new platforms to rise up and that provides more opportunities for content creators to create, to distribute, to build a fan base and to monetize. Bad copyright law recreates a gatekeeper-based system where only the elite can choose what content is allowed to reach the public. In short, the innovations that are being created are actually helping content creators and are living up to the Constitutional requirements for copyright: that it "promote the progress." But it's frequently not copyright that's doing that job -- it's the technology innovations.

Panelists Timothy Vollmer, Brianna Schofield, Zoe Keating, Michael Keller & Brewster Kahle. Photo by Parker Higgins, EFF, CC BY
And the key thing that we heard yesterday was how copyright was actually counterproductive in that it has frequently blocked innovative services from existing or from providing the best services for content creators. There were a few key themes that became clear throughout the hearing:

1. Statutory damages are an absolute disaster and create massive chilling effects for free speech and innovation. Multiple panelists discussed how much of a problem statutory damages are for innovation. They highlighted how frequently they are abused to stifle innovation and to create fear among people for doing something most people think should be legal. The disconnect between the actual "infringement" and the punishment is a major problem. Somewhat surprisingly (in a good way!), the members from Congress seemed quite interested and concerned about the problems of statutory damages. Rep. Jerry Nadler, who historically has basically supported the RIAA position on all copyright-related issues, surprised me by agreeing that statutory damages seem like a real problem, and noting that basically all other torts require a showing of actual damages. Rep. Darrell Issa admitted that it was unlikely Congress would be able to dump statutory damages "in the next decade," but asked for ideas on ways to "bend" the system in a more reasonable way. The panelists made a few suggestions -- including a personal use exemption and a "good faith" defense for sites (and users, I guess) where they don't believe what they're doing is infringing. Such a defense, if successful, would take away statutory damages, and only allow actual damages. A potentially better alternative was requiring the copyright holder to prove "bad faith" to move from actual damages to statutory damages. That Congress even seems open to this is a huge step in the right direction.
2. Fair use is important and shouldn't be cut back. Lots of good discussions from panelists about the importance of fair use and how bad decisions create real chilling effects on innovation. When the one "Hollywood" person on the panel, CreativeFuture's Ruth Vitale, made a slightly nonsensical argument that increasing fair use was bad for creators, other panelists quickly pointed out that's not even close to true, and tons of content creators regularly rely on fair use to create content. Rep. Nadler (again, long a supporter of expanding copyright law) noted that he believes fair use needs to be made "less dangerous" for people to embrace it. That was really encouraging.
3. The problem of bogus DMCA takedowns is massive and there needs to be real punishment. Brianna Schofield, from Berkeley, pointed to research showing that companies that actually review DMCA takedowns are now rejecting between 40 and 60% of them as bogus takedowns, designed to censor content, rather than legitimate copyright claims. And Alex Feerst (and some others) suggested that what's really needed is real teeth to Section 512(f) of the DMCA, which is supposed to punish those who send bogus DMCA takedowns, but, as we've seen, is entirely toothless based on the way courts currently interpret it. Rep. Issa actually asked if there should be criminal punishment for bogus takedowns, which I think took people by surprise, and probably goes too far.
4. The DMCA's 1201 anti-circumvention provisions are a disaster and the idea that people need to re-apply every three years just to fix products they own -- because of copyright law -- is messed up. Again, it was nice to see that the Representatives really seemed to get this fact and seemed interested in looking at ways to fix Section 1201 -- such that you couldn't use digital locks and DRM for anti-competitive purposes or to control other aspects of your business.
5. Orphan works are a problem and the Copyright Office's solution is a disaster. Multiple panelists pointed out that the orphan works problem remains a big, big problem -- and they're concerned that the most recent suggestion from the Copyright Office (which requires "registration" to use an orphan work) is an absolutely terrible solution. People suggested going back to the previous Copyright Office proposal from a few years ago, that just required a diligent search for the copyright owner -- but that plan died when photographers freaked out after misreading the proposal. The Internet Archive's Brewster Kahle even brought up the suggestion of fixing the orphan works problem by returning to a system of "formalities" in which a copyright holder is required to register to get the copyright (rather than automatically getting it) and then would need to renew the copyright every five years with another payment. As Kahle pointed out, this would also help solve some of the concerns Congress has over funding the Copyright Office. This is a suggestion that many have made over the years that had been mostly ignored -- but at least a few on the panel seemed interested in the idea, with Rep. Issa rightly pointing out that the patent office already works this way.
6. Modernizing the Copyright Office: The panelists went back to this issue multiple times, in part because it's hot in DC right now, though much of the tech industry has basically avoided the discussion. Both the Copyright Office and the Library of Congress (which is where the Copyright Office is housed) are antiquated, with terrible and broken technology. Hollywood is strongly pushing to take the Copyright Office out of the Library of Congress and set it up as its own independent agency to try to give it more power (and because they don't like that the Library of Congress actually takes into account things like what's good for the public...). Ruth Vitale kept arguing for a separate Copyright Office, but when pressed on why, the only thing she could come up with was that the Library of Congress needs more room to store all of its books. Really. Michael Keller, the University Librarian at Stanford, rightly pointed out that pulling the Copyright Office out of the Library of Congress wouldn't fix anything -- it would just create more "chaos" and leave us with two dysfunctional organizations, rather than one.

There were some other points made, but overall, it was surprisingly encouraging in that most of the hearing didn't focus on red herrings and the usual boring talking points in copyright debates, but rather really did focus in on specific key issues. And, most surprising of all was that many of the Congressional Reps who were there not only seemed really engaged and mostly on point concerning the issues raised, but actually seemed open to looking at real legislative proposals on these issues. Of course, going from there to actually getting proposals before Congress is still going to take a Herculean effort -- because almost all of the good proposals listed above would almost immediately be fought hard by the big Hollywood studio lobbyists, who still seem to think of this as a zero sum game -- where any improvement to fair use is an attack on them, or any attempt to make sure the DMCA isn't abused is somehow a direct assault on the film business.

The biggest point that went totally missing from the debate was the TPP and other existing trade agreements. It's worth noting that for all the talk of fixing DMCA 1201 or solving the orphan works problem, doing so would almost certainly violate what the USTR just put into the TPP agreement that Congress needs to ratify (or not!) in the next few months. It was a little disappointing that no one raised this issue, and the fact that if Congress doesn't want to give up its power to make these kinds of fixes, it should vote down the TPP. Similarly, ideas like Brewster Kahle's return to copyright formalities requirements would violate the Berne Convention, and other changes suggested would violate a variety of other existing trade agreements. Of course, Congress should be willing to do exactly that in order to fix a terribly broken copyright system, but with at least the TPP currently on Congress's docket, it seems important to remind them that, in many ways, the TPP can bind Congress's hands in addressing many of the problems brought up at the hearing.

Filed Under: 512f, copyright, copyright reform, darrell issa, dmca, dmca 1201, dmca 512f, fair use, house judiciary committee, jerry nadler, orphan works

TVEyes Hit With Incredibly Restrictive Permanent Injunction By Court

from the so-much-for-the-fair-use-'win' dept

The last time we checked in with the long-running TVEyes case, the TV monitoring company had scored another partial victory for fair use. The company packages clips of news stories from TV broadcasts and makes them available to paying subscribers -- which include journalists and government officials.

It had scored a much larger fair use win earlier, when the court found that even the storage of clips by TVEyes fell under fair use, despite Fox News' protests to the contrary. A year later, some of TVEyes' fair use victory was scaled back. The court took another look at the end users' ability to download and store clips and found these actions weren't covered under the fair use ruling. Users could privately share clips and create archives only they could access. What wasn't covered was public sharing and downloading of clips.

In order to comply with the court's decision, TVEyes would need to additionally restrict access to its compiled content. The court didn't say specifically what TVEyes would have to change to comply with the ruling at that point. Those instructions appear to have arrived.

An injunction issued by the court contains all sorts of new restrictions, as Eriq Gardner reports.

Here's a list of things that are now forbidden:

Enabling users to download to their own computers video clips of content telecast on the Fox News Channel or Fox Business Network.

Enabling users to view FNC or FBN content by searching by date, time, and channel.

Enabling users from sharing video clips of FNC or FBN content on social media websites rather than by personally directed emails, with further limitations.

Those further limitations?

If a TVEyes client wants to email a clip, he or she can only do so to five or less recipients. The client also has to register their work email with TVEyes instead of using Gmail or another free web email service. Those being sent the clip will also have to submit their own email address to ensure they are the intended recipients.

These new restrictions could do some serious damage to TVEyes, which charges subscribers ~$500/month for access to a wide variety of news clips. Where high-profile subscribers like Reuters, Bloomberg, the White House (yes, THAT one), the Dept. of Defense and others will go if they find the new restrictions unworkable isn't exactly clear, but it's a safe bet that Fox's litigious efforts will see a few of these entities finding the service no longer worth the investment.

And that's not the full extent of the restrictions in the permanent injunction. TVEyes will also be required to create and implement a social media blockade solely for Fox News content to prevent the public sharing of its clips. Any Fox content circulated by TVEyes will also have to carry a warning that the content has not been purchased or licensed by the company and that unauthorized sharing is considered copyright infringement. So, for $500/month, TVEyes' subscribers will now have the privilege of being blasted with anti-piracy warnings as if they were lowly, DVD-purchasing peasants.

This order can be appealed and most certainly will be, as it imposes a ton of restrictions on content originating from a single source. Fox News gets its own new set of rules and everyone else plays by the old ones. The court's decisions haven't exactly added up to a fair use win, because a real fair use ruling would apply across the board, not just to everything but this one particular litigant's content.

Filed Under: archiving, copyright, downloading, fair use, search, tv, tv news
Companies: fox, tveyes

Library Of Congress Releases DMCA Anti-Circumvention Exemptions... And It's A Hot Mess

from the because-of-course dept

Well, the Library of Congress has now released its official exemptions to the DMCA's 1201 anti-circumvention rules, the ridiculous process known as the triennial review, and as was pretty much expected, it's a total mess. We'll have a more thorough look at it later, but after an initial read through of the document, it appears that the Library of Congress tried to please everyone and will likely end up pleasing no one. If you're unfamiliar with the process, under the DMCA, there's a part of the law, section 1201, which says that it's copyright infringement to bypass any kind of "technological protection method" (TPM) to access something, even if the reason you're circumventing the TPM is totally non-infringing. Basically, this says that if you put a digital lock on something, even if the lock is weak or stupid or for something totally unrelated to copyright law (such as blocking competition), you can use copyright law to stop anyone from getting around it. The concept is so stupid and so broad that even Congress realized it would be abused. But rather than fix it, it gave the Library of Congress this weird authorization to declare "exemptions" once every three years. So, basically, every three years people ask for exemptions (and each exemption granted in the past needs to be re-requested, and re-supported every three years). Then the Library of Congress climbs a mountain, thinks on it for a bit, and comes down the mountain declaring what is legal and what is not. It's an insane process.

Three years ago, things went really haywire when the Library of Congress took away the exemption it had previously granted for cell phone unlocking. This resulted in widespread protests, and eventually Congress stepping in with a bill that didn't actually fix the underlying problem, but just reinstated the previous exemption and told the Library of Congress to be more careful next time.

You can see in the latest exemptions that the Library of Congress has taken Congress's mocking a bit to heart -- as it seems totally gun shy on just about everything. It refers repeatedly to Congress's decision to bring back the unlocking exemption and reads more into it than is necessary. But, because of this, it seems to want to tiptoe down the line, allowing exemptions, but putting all sorts of weird restrictions on them. For example, one of the most talked about requests was the one for accessing vehicle diagnostics. You may recall that GM, John Deere and even the EPA said the Library should reject these requests, because people might get access to diagnostic info... and then break emissions controls and pollute the environment or something. Apparently, only the automakers should be allowed to do that by themselves.

Here, the Library of Congress sort of grants that exemption, but with all sorts of caveats:

Computer programs that are contained in and control the functioning of a motorized land vehicle such as a personal automobile, commercial motor vehicle or mechanized agricultural vehicle, except for computer programs primarily designed for the control of telematics or entertainment systems for such vehicle, when circumvention is a necessary step undertaken by the authorized owner of the vehicle to allow the diagnosis, repair or lawful modification of a vehicle function; and where such circumvention does not constitute a violation of applicable law, including without limitation regulations promulgated by the Department of Transportation or the Environmental Protection Agency; and provided, however, that such circumvention is initiated no earlier than 12 months after the effective date of this regulation.

Even more bizarre, in the description about this exemption, it appears to say that this exemption can only be used if you are doing the circumvention yourself -- and not for hiring someone to do it for you. Absolutely ridiculously, it points to the language of the bill Congress passed to smack the Library around last time on the phone unlocking exemption:

Moreover, by passing the Unlocking Act—which amended section 1201 to allow unlocking of cellphones and other devices to be carried out by third parties “at the direction of” device owners—Congress indicated its view that extending the reach of an exemption to cover third-party actors requires a legislative amendment.

Wha....? In the fight over the Unlocking Act, there was serious concern that early drafts of the bill would cut out companies that help individuals unlock their phones. And thus to make sure that such things weren't excluded, Congress made it explicit that it covered third parties unlocking phones "at the direction of" device owners. And yet... now the Library of Congress is ridiculously interpreting this to mean that it cannot grant such an exemption without Congress stepping in.

That's... wrong. And ridiculous.

And that's not the only problem with this. The one year delay in implementation is ridiculous as well. The Library of Congress notes that this is to allow other agencies to weigh in, but we just had a whole year for agencies to weigh in and many of them did. Yet, now, they want to delay the implementation of a three year exemption by one whole year in case more of them want to weigh in after the fact? Clearly this is because the Library of Congress is gunshy about what happened with unlocking last year, but to totally upend the process and delay a necessary exemption is no way to do that.

Similarly bizarre: the Library of Congress seemed to think it's perfectly fine to weigh outside factors in determining this issue, even though it's supposed to be judging things entirely based on the copyright issues. So, for example, with this same exemption on car repair and diagnostics, it allows the Copyright Office to review copyright-related factors, but then seemed to indicate that it was just fine for it to also review things that have nothing to do with copyright. It notes that "serious safety and environmental issues... weigh against an exemption." But that's not a copyright issue. We should not be using copyright law to regulate other things. We already have safety and environmental laws, and the Copyright Office explicitly endorsing the use of copyright laws to add some sort of additional environmental law (especially one that gets it so backwards) is patently ridiculous.

There are other problems in the rules as well. Michael Weinberg takes a look at the similarly problematic rules on 3D printing, where the same basic thing happened. The overall rule seems like it's going in the right direction, but is so full of weird and unnecessary and troubling caveats that it mostly erases the good parts of the rule.

There are similar issues in other parts as well. For example, an exemption is added for MOOCs (Massive Open Online Courses) that want to use small snippets of locked up content (usually movies or news clips) as part of their classes: classic fair use. And the Library of Congress says that's okay... kind of. It only applies to "accredited nonprofit educational institutions." That sounds reasonable at first, until you realize that many MOOCs are actually run through for-profit entities. For example, Coursera is one of the most popular MOOC platforms out there, but is a for-profit venture. So, the exemption here wouldn't be usable by National Geographic, who runs its MOOC via Coursera. And there are lots of others who would be similarly blocked, even if the use is clearly fair use. (Update: Actually, it appears this would be allowed).

It really seems like the Library of Congress has made things increasingly more complex for the sake of trying to "split the baby" on things, and in part because it got slapped down so hard three years ago. But the end result is that you get a split baby that seems to go way beyond what the law was intended to allow and pisses off everyone (especially the baby). Laura Quilter, the Copyright and Information Policy Librarian at UMass Amherst summarized the mess of these rules this way:

The prolixity of this rulemaking puts it into its own special hell of inaccessible, unintelligible, crazy-making meshugaas.

This isn't how law should be made, and it's unclear why this is still allowed.

Filed Under: 1201, 3d printing, anti-circumvention, cars, copyright office, diagnostics, dmca 1201, dmca triennial review, epa, fair use, library of congress, repair, software, triennial review

Appeals Court Gives Google A Clear And Total Fair Use Win On Book Scanning

from the move-on-already dept

The Authors Guild's never-ending lawsuit against Google for its book scanning project has been hit with yet another blow. The 2nd Circuit appeals court has told the Authors Guild (once again) that Google's book scanning is transformative fair use. This is not a surprise. Though this case has gone through many twists and turns, a few years ago it was also before the 2nd Circuit on a separate issue (over the appropriateness of it being a class action lawsuit) and the 2nd Circuit panel ignored that question, saying that it shouldn't even matter because it seemed like this was fair use. Thus it was sent back to the district court, where Judge Danny Chin correctly said that the scanning was fair use. That ruling was appealed, and the AG trotted out some truly nutty legal theories (arguing that it wasn't fair use because someone like Aaron Swartz might hack into Google's computers and free the books).

These arguments did not work. The 2nd Circuit has affirmed the lower court ruling and given another nice appellate ruling establishing the importance of fair use -- and a reminder that, yes, commercial uses can still be fair use:

Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works or derivatives of them. The same is true, at least under present conditions, of Google’s provision of the snippet function. Plaintiffs’ contention that Google has usurped their opportunity to access paid and unpaid licensing markets for substantially the same functions that Google provides fails, in part because the licensing markets in fact involve very different functions than those that Google provides, and in part because an author’s derivative rights do not include an exclusive right to supply information (of the sort provided by Google) about her works. Google’s profit motivation does not in these circumstances justify denial of fair use. Google’s program does not, at this time and on the record before us, expose Plaintiffs to an unreasonable risk of loss of copyright value through incursions of hackers. Finally, Google’s provision of digital copies to participating libraries, authorizing them to make non-infringing uses, is non-infringing, and the mere speculative possibility that the libraries might allow use of their copies in an infringing manner does not make Google a contributory infringer. Plaintiffs have failed to show a material issue of fact in dispute.

There are some really great statements in the ruling, which isn't a huge surprise, given that it was done by Judge Pierre Leval, who has written some of the most thoughtful things about fair use. For example, he clearly and directly notes that the purpose of copyright is to benefit the public:

The ultimate goal of copyright is to expand public knowledge and understanding, which copyright seeks to achieve by giving potential creators exclusive control over copying of their works, thus giving them a financial incentive to create informative, intellectually enriching works for public consumption. This objective is clearly reflected in the Constitution’s empowerment of Congress “To promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their respective Writings.” U.S. Const., Art. I, § 8, cl. 8) (emphasis added). Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.

This, of course, is the same argument that we've made here in the past many times (often mocked by copyright extremists). Notice that the section of the Constitutional copyright clause that Leval chose to highlight is the ever-important "to promote the progress" language. In a footnote, Leval similarly notes that UK copyright law actually comes with a similar preamble: "for the Encouragement of Learning."

From there, Leval has a short discussion on the history of fair use, and the key Supreme Court rulings on it, before jumping into the necessary four factors, which is carefully written and nuanced. It's worth reading in its entirety, but a few snippets. First, the court finds that the use of search here makes the Google books program transformative:

the purpose of Google’s copying of the original copyrighted books is to make available significant information about those books, permitting a searcher to identify those that contain a word or term of interest, as well as those that do not include reference to it. In addition, through the ngrams tool, Google allows readers to learn the frequency of usage of selected words in the aggregate corpus of published books in different historical periods. We have no doubt that the purpose of this copying is the sort of transformative purpose described in Campbell as strongly favoring satisfaction of the first factor.

Then there's the question of whether Google's snippet view is fair use, and again, the court finds that it is:

Google’s division of the page into tiny snippets is designed to show the searcher just enough context surrounding the searched term to help her evaluate whether the book falls within the scope of her interest (without revealing so much as to threaten the author’s copyright interests). Snippet view thus adds importantly to the highly transformative purpose of identifying books of interest to the searcher. With respect to the first factor test, it favors a finding of fair use

But, you say, Google is a big for-profit business, and doing this to make money, so how can that be fair use? By this point, we've debunked the "commercial use can't be fair use" myth so many times on Techdirt it almost doesn't seem worth repeating, but since people always bring it up... here's what the court says:

While we recognize that in some circumstances, a commercial motivation on the part of the secondary user will weigh against her, especially, as the Supreme Court suggested, when a persuasive transformative purpose is lacking... we see no reason in this case why Google’s overall profit motivation should prevail as a reason for denying fair use over its highly convincing transformative purpose, together with the absence of significant substitutive competition, as reasons for granting fair use. Many of the most universally accepted forms of fair use, such as news reporting and commentary, quotation in historical or analytic books, reviews of books, and performances, as well as parody, are all normally done commercially for profit.

On the second factor (the nature of the work) the court notes that it's somewhat unimportant here, but still leans towards fair use.

While each of the three Plaintiffs’ books in this case is factual, we do not consider that as a boost to Google’s claim of fair use. If one (or all) of the plaintiff works were fiction, we do not think that would change in any way our appraisal. Nothing in this case influences us one way or the other with respect to the second factor considered in isolation. To the extent that the “nature” of the original copyrighted work necessarily combines with the “purpose and character” of the secondary work to permit assessment of whether the secondary work uses the original in a “transformative” manner, as the term is used in Campbell, the second factor favors fair use not because Plaintiffs’ works are factual, but because the secondary use transformatively provides valuable information about the original, rather than replicating protected expression in a manner that provides a meaningful substitute for the original.

Factor three (the amount of the work) is obviously one that the Authors Guild leaned heavily on, but the court is not convinced that it weighs against Google here either, noting that because the use is transformative, copying the entire work is necessary. The argument here is that the real intent of factor three is to see if the defendant copied more than is necessary for the transformative use, and that's not true with Google books:

As with HathiTrust, not only is the copying of the totality of the original reasonably appropriate to Google’s transformative purpose, it is literally necessary to achieve that purpose. If Google copied less than the totality of the originals, its search function could not advise searchers reliably whether their searched term appears in a book (or how many times).

On the question of snippets, the court again finds for Google noting that it's only displaying a small portion of the work -- again, no more than necessary. The court notes that if snippets were done differently, it could impact the fair use analysis, but that Google does a good job of not revealing too much.

Without doubt, enabling searchers to see portions of the copied texts could have determinative effect on the fair use analysis. The larger the quantity of the copyrighted text the searcher can see and the more control the searcher can exercise over what part of the text she sees, the greater the likelihood that those revelations could serve her as an effective, free substitute for the purchase of the plaintiff’s book. We nonetheless conclude that, at least as presently structured by Google, the snippet view does not reveal matter that offers the marketplace a significantly competing substitute for the copyrighted work.

Google has constructed the snippet feature in a manner that substantially protects against its serving as an effectively competing substitute for Plaintiffs’ books. In the Background section of this opinion, we describe a variety of limitations Google imposes on the snippet function. These include the small size of the snippets (normally one eighth of a page), the blacklisting of one snippet per page and of one page in every ten, the fact that no more than three snippets are shown—and no more than one per page—for each term searched, and the fact that the same snippets are shown for a searched term no matter how many times, or from how many different computers, the term is searched. In addition, Google does not provide snippet view for types of books, such as dictionaries and cookbooks, for which viewing a small segment is likely to satisfy the searcher’s need. The result of these restrictions is, so far as the record demonstrates, that a searcher cannot succeed, even after long extended effort to multiply what can be revealed, in revealing through a snippet search what could usefully serve as a competing substitute for the original.

Finally, the all-important fourth factor (the impact on the market). Again, the court finds in favor of Google, noting how unlikely it is that Google's book project is a substitute for actually getting a book:

Especially in view of the fact that the normal purchase price of a book is relatively low in relation to the cost of manpower needed to secure an arbitrary assortment of randomly scattered snippets, we conclude that the snippet function does not give searchers access to effectively competing substitutes. Snippet view, at best and after a large commitment of manpower, produces discontinuous, tiny fragments, amounting in the aggregate to no more than 16% of a book. This does not threaten the rights holders with any significant harm to the value of their copyrights or diminish their harvest of copyright revenue.

Yes, the court notes, it's possible that it might lead to some lost sales, but that's not enough to find against fair use -- especially since in those cases, it probably means that the amount of information sought was not protectable by copyright in the first place:

the type of loss of sale envisioned above will generally occur in relation to interests that are not protected by the copyright. A snippet’s capacity to satisfy a searcher’s need for access to a copyrighted book will at times be because the snippet conveys a historical fact that the searcher needs to ascertain. For example, a student writing a paper on Franklin D. Roosevelt might need to learn the year Roosevelt was stricken with polio. By entering “Roosevelt polio” in a Google Books search, the student would be taken to (among numerous sites) a snippet from page 31 of Richard Thayer Goldberg’s The Making of Franklin D. Roosevelt (1981), telling that the polio attack occurred in 1921. This would satisfy the searcher’s need for the book, eliminating any need to purchase it or acquire it from a library. But what the searcher derived from the snippet was a historical fact. Author Goldberg’s copyright does not extend to the facts communicated by his book. It protects only the author’s manner of expression.

I'd also argue that if we're talking about the theoretical rare cases where it leads to a lost sale, it should be noted that it's probably just as likely that Google Books leads to more sales as people find snippets of books that make them want to buy the full book (I've personally bought a few books because of snippets found through Google's book search.) But the court doesn't go there.

The court then takes on the question of whether or not Google has deprived the Authors Guild of a derivative right to create or license their own search and snippets features. The court dismisses this argument with ease, reminding the Authors Guild of the important fact that fair use is not infringement, and nothing in copyright includes a special right to limit the ability to search or create snippets:

There is no merit to this argument. As explained above, Google does not infringe Plaintiffs’ copyright in their works by making digital copies of them, where the copies are used to enable the public to get information about the works, such as whether, and how often they use specified words or terms (together with peripheral snippets of text, sufficient to show the context in which the word is used but too small to provide a meaningful substitute for the work’s copyrighted expression). The copyright resulting from the Plaintiffs’ authorship of their works does not include an exclusive right to furnish the kind of information about the works that Google’s programs provide to the public. For substantially the same reasons, the copyright that protects Plaintiffs’ works does not include an exclusive derivative right to supply such information through query of a digitized copy.

Finally, the court laughs off the argument that an Aaron Swartz like hacker might free all of the files in Google's database:

While Plaintiffs’ claim is theoretically sound, it is not supported by the evidence....

Google has documented that Google Books’ digital scans are stored on computers walled off from public Internet access and protected by the same impressive security measures used by Google to guard its own confidential information. As Google notes, Plaintiffs’ own security expert praised these security systems, remarking that “Google is fortunate to have ample resources and top-notch technical talents” that enable it to protect its data. JA 1558, 1570. Nor have Plaintiffs identified any thefts from Google Books (or from the Google Library Project). Plaintiffs seek to rebut this record by quoting from Google’s July 2012 SEC filing, in which the company made legally required disclosure of its potential market risks.26 Google’s prudent acknowledgment that “security breaches could expose [it] to a risk of loss . . . due to the actions of outside parties, employee error, malfeasance, or otherwise,” however, falls far short of rebutting Google’s demonstration of the effective measures it takes to guard against piratical hacking. Google has made a sufficient showing of protection of its digitized copies of Plaintiffs’ works to carry its burden on this aspect of its claim of fair use and thus to shift to Plaintiffs the burden of rebutting Google’s showing. Plaintiffs’ effort to do so falls far short.

Similarly, the court is unimpressed by the Authors Guild's claim that even if Google's own security is good, the fact that it shares scans with libraries who donate books to be scanned, opens up a new line of attack.

Although Plaintiffs describe the arrangement between Google and the libraries in more nefarious terms, those arrangements are essentially that each participant library has contracted with Google that Google will create for it a digital copy of each book the library submits to Google, so as to permit the library to use its digital copy in a non-infringing fair use manner. The libraries propose to use their digital copies to enable the very kinds of searches that we here hold to be fair uses in connection with Google’s offer of such searches to the Internet public, and which we held in HathiTrust to be fair uses when offered by HathiTrust to its users. The contract between Google and each of the participating libraries commits the library to use its digital copy only in a manner consistent with the copyright law, and to take precautions to prevent dissemination of their digital copies to the public at large.

In these circumstances, Google’s creation for each library of a digital copy of that library’s already owned book in order to permit that library to make fair use through provision of digital searches is not an infringement. If the library had created its own digital copy to enable its provision of fair use digital searches, the making of the digital copy would not have been infringement. Nor does it become an infringement because, instead of making its own digital copy, the library contracted with Google that Google would use its expertise and resources to make the digital conversion for the library’s benefit.

As the court points out, sure it's possible that a library might use such files in an infringing matter, but if that happens, then the copyright holders can go after that library. They can't go after Google for the theoretical possibility that someone else might infringe a copyright at some future date.

And, in case you were wondering, there was no dissent at all. This was a unanimous decision by all three judges on the panel, giving yet another complete victory to Google saying that its book scanning project is fair use -- and, as an appeals court ruling, is useful in creating precedent in the all important 2nd Circuit (with some pretty damn good quotes for future cases). This is a big and clear win for fair use. It's likely that the Authors Guild will try to appeal to the Supreme Court, but without a clear circuit split, it's unclear if the Supreme Court would bother to take up the case.

Filed Under: book scanning, copyright, fair use, google books
Companies: authors guild, google

Just About Everything About Twitter Suspending Deadspin And SBNation Accounts Is Ridiculous

from the copyright-law-is-ridiculous dept

Yesterday on Twitter, there was a big discussion over the fact that Twitter had disabled two well-known sports media Twitter feeds, both for supposedly infringing on copyrights by posting GIFs of sports highlights. Almost everything about this story is ridiculous and highlights just how screwed up copyright law is today. Let's count the ways:

1. The idea that these GIFs were infringing seems ridiculous. There's a very, very, very strong fair use argument here. They were showing tiny (sound-free) tidbits from college and professional football games. No one is using these in place of watching the actual games. In fact, these GIFs almost certainly act as strong advertising for getting people to actually watch games.
2. The idea that Twitter suspended these accounts is somewhat understandable, but still ridiculous. Yes, the DMCA in 512(i)(1)(A) requires service providers to implement a "repeat infringer policy," and that policy must "provide for the termination" of said repeat infringers. So, for this bit of ridiculous, we can blame the DMCA that sort of forces this on Twitter.
3. Even so, we can still blame Twitter somewhat for not standing up to the NFL and XOS Digital (which has the broadcast rights for a bunch of college football games) and saying "this is fair use."
4. Even given the requirement to terminate repeat infringers, doesn't it seem totally screwed up that a major channel for major media properties can simply be disappeared? This is, again, an example of why the Section 230 safe harbors are so much better than the DMCAs. Deadspin and SBNation weren't "pirate sites." They were doing something that tons of professional media have done for ages -- and suddenly they lost their accounts? That's ridiculous.
5. What the hell are the NFL and XOS Digital thinking? The NFL has claimed that it never asked for the accounts to be shut down -- it just wanted the tweets with the GIFs to be taken down. But, of course, that makes no sense. Under the DMCA, again, if the tweets are infringing, at some point it will hit the "repeat infringer policy" so the NFL's statement is meaningless, and suggests a lack of knowledge of copyright law. Given that this is the same sports league that flat out lies at the end of every game with its copyright message that claims you can't even repeat "accounts of the game" without "express written permission," perhaps it's not a surprise that it wouldn't understand this part of copyright law either.
6. What the hell are the NFL and XOS Digital thinking, part II. Who the hell is this helping? I'm assuming that both will make vague references to protecting their copyrights and about how valuable broadcast deals are. But, again, no one who put more than 3 seconds into thinking about this thinks that people are suddenly going to give up on their expensive cable package because they can watch GIFs on Twitter. That's not how this works. And really, if their broadcast deals are so fragile as to be undermined by GIFs on Twitter, perhaps there's a bigger problem there to address.

All in all, the whole thing is yet another example of the ridiculous things that come about because of our dopey copyright system.

Filed Under: copyright, dmca, fair use, football gifs, gifs, repeat infringer policy, takedowns
Companies: deadspin, gawker, nfl, sbnation, twitter, vox, xos digital

Wikileaks Releases Final Intellectual Property Chapter Of TPP Before Official Release

from the and-it-sucks dept

Last weekend, negotiators finally completed negotiations on the Trans Pacific Partnership (TPP) agreement. However, as we noted, there was no timetable for the release of the text (though some are now saying it may come out next week). Once again, it was ridiculous that the negotiating positions of the various countries was secret all along, and that the whole thing had been done behind closed doors. And to have them not be ready to release the text after completion of the negotiations was even more of a travesty. Wikileaks, however, got hold of the Intellectual Property Chapter and has released it online.

Much of what's in there is (not surprisingly) the same as the previous leaked version, which was from May of this year. The newly leaked version, of course, confirms what New Zealand's announcement had revealed earlier this week: multiple countries caved in so that TPP requires signatories to extend copyright to life plus 70 years -- even though the US itself had been exploring reducing copyright terms (that now won't be allowed). Similarly, it locks in dangerous anti-circumvention rules that have hindered innovation and freedom.

The final report shows that many of the problems we found in the May draft are still in this document. This includes the fact that while the agreement does at least make a nod to the public's rights such as fair use (which it calls "limitations and exceptions") it does so in a ridiculous way. All of the moves to make copyright stricter are mandatory in the TPP. They require signing countries to do things like extend terms and ratchet up punishment. But when it comes to fair use? Then it just says countries should explore the issue:

Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system, inter alia by means of limitations or exceptions that are consistent with Article QQ.G.16, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled.

Shall endeavor? Every other clause is a flat out "shall." But when it comes to fair use it's "eh, maybe consider it." That's ridiculous, given just how important the public's rights are and how things like fair use protect those rights.

There's also the issue of the public domain. As we noted in the May draft, the US and Japan actively opposed including "acknowledging the importance of preserving the public domain" in the section for "Understandings in respect of this Chapter." And it looks like the US won -- as that phrase is no longer in that section -- though there was a compromise. Further down in the document, a new section has been added acknowledging the public domain:

Article QQ.B.x: {Public Domain}

1. The Parties recognize the importance of a rich and accessible public domain.

2. The Parties also acknowledge the importance of informational materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain.

That's better than nothing, but it is notable that this is no longer included in the section of "objectives." Because, of course, this document has no objective to celebrate the public domain. The copyright extension terms show that the objective is to destroy the public domain. And, as the EFF notes in its analysis, by moving where this discussion of the public domain occurs, the negotiators made it a happy platitude rather than a required part of any intellectual property policy:

That paragraph on the public domain, for example, used to be much stronger in the first leaked draft, with specific obligations to identify, preserve and promote access to public domain material. All of that has now been lost in favor of a feeble, feel-good platitude that imposes no concrete obligations on the TPP parties whatsoever.

Also, with the May release, we noted that the US and Japan, in particular, opposed any language that allowed for punishment for abusing patents. Australia had proposed some language that said that a country could cancel, revoke or nullify a patent if "the patent is used in a manner determined to be anti-competitive, or abusive..." The US and Japan vehemently opposed this language and guess what is nowhere to be found in the document? You guessed it... The US and Japan also opposed a pretty simple statement that "Each Party may adopt or maintain measures to discourage vexatious or unreasonable proceedings as a result of the use of the exclusive rights of a patent."

And yet, in the final document, the only time "unreasonable" appears is in relation to "unreasonable" delays in granting patents. It really makes you wonder, why is the US so against a simple clause allowing countries to stop the abuse of patents? What possible rationale could they have other than knowing that they're helping companies abuse patents.

It also appears that negotiators did not heed the warnings from KEI and others that the last draft would go against a number of US laws that include exceptions for damages for infringement, including orphan works and sovereign immunity by state governments. In short, this would completely undermine the US's plans for dealing with the orphan works problem, because the TPP requires there be damages for infringement, even as the proposal to solve orphan works is to create an exception for damages if the work is an orphan work and certain conditions have been met.

The good folks at KEI have been listing out many other problems with the final text, some of which we'll explore as well. For example, the TPP says that patents can be available for "new uses of a known product, new methods of using a known product, or new processes of using a known product" which of course can lead to perfectly common products getting extra patent protection and limiting competition, and driving up prices. There is significant concern over this issue in the drug space.

On the question of extra protection for "biologics" (which was apparently the final sticking point), the agreement says 8 years or something that can deliver a "comparable outcome in the market" via "other measures." This is problematic and will drive up healthcare costs and will almost certainly mean that people will die because they can't afford these medicines. Australia had been holding out for five years, but apparently lost. As we noted a few months ago, this also undermines some fundamental principles of science in locking up important data.

The other tidbit that is potentially a big deal is that it appears that the Intellectual Property Chapter may not be subject to the corporate sovereignty chapter, meaning that companies would not be able to make use of the special "ISDS" (investor-state dispute settlement) tribunals to argue that new IP regulations somehow deprived them of expected profits from investment in those countries. If that's true that would be quite interesting, but the details of the corporate sovereignty chapter have not yet leaked...

All in all the document is pretty much what was expected, which means... it's problematic. The USTR should not have negotiated this, as it directly harms the interests of the American public as well as the entire internet sector. Congress should not pass this. This is a bad agreement, which is basically what you'd expect for something negotiated behind closed doors where only large industry lobbyists had full direct access to the text and the negotiators.

Filed Under: biologics, copyright, data, fair use, intellectual property, patents, public domain, tpp, ustr

Cox Points Out That Rightscorp Is Either A Mass Infringer Itself... Or Admits That Downloading Songs Can Be Fair Use

from the oops dept

Remember Rightscorp? This is the company that is trying to be sort of a "light" copyright trolling operation, sending threatening letters to individuals, but letting them "settle" for lower dollar amounts than the more traditional copyright trolls (in the $10s of dollars rather than in the $1000s). The scheme hasn't been working all that well. Late last year, Righstcorp, along with two music publishing clients, BMG and Round Hill Music, decided to sue broadband ISP Cox, to test the (nutty) theory that the DMCA already requires ISPs to kick users off the internet if they receive multiple takedown notices. The whole lawsuit, beyond the questionable legal theory, appeared to be an attempt to force Cox and others to hand over subscriber info.

Either way, going after Cox may be proving to have been a serious strategic mistake. Both companies have filed motions for summary judgment and the contrast between the two is somewhat stunning. BMG/Round Hill Music's is readable here* and basically focuses on the argument that Cox is somehow unable to make use of the DMCA's safe harbors. While many of the details are redacted, the basic argument is the same as initially filed. That because Cox doesn't kick customers off its service entirely, it fails to meet the requirements of the DMCA's safe harbor:

Cox does not qualify for a safe harbor because, at least since 2010, it has never had nor implemented a policy to terminate repeat infringers in appropriate circumstances. Instead, Cox has created a notification system designed to limit the circumstances in which Cox will learn of infringement on its system. Cox has [REDACTED] more than 95% of the millions of infringement notices sent to it by copyright holders without taking any action.

Of course what it's ignoring is that what Cox was complaining about was that the policies that Rightscorp wanted here included sending blatantly misleading information to end users and sharing information back with Rightscorp. That's not required under the DMCA.

Meanwhile, the motion for summary judgment from Cox is quite a read, with the folks over at TorrentFreak posting an initial summary.

The real kicker: Rightscorp is only working with the publishers, who certainly appear to hold a legitimate copyright interest in the publishing/compositions. But that's different than the copyright in the actual sound recordings. That's held by someone else, who does not appear to be partnered with Rightscorp. And yet, Rightscorp itself claims to have downloaded the various song files to help it find infringers. Yet... if it doesn't have authorization or a license from the copyright holders of the sound recordings, that sounds like Rightscorp just engaged in massive copyright infringement.

That, alone, would be a pretty strong point -- but then Cox's lawyers twist the knife. They point out that the only way in which Rightscorp's own actions would not be infringing is if they were to claim fair use in the downloading of all those song recordings. But if that's the case, then isn't Rightscorp clearly admitting that many of the people its threatening and shaking down would also have a legitimate fair use argument?

Oh, and one final knife twist: given that courts have held that those issuing DMCA takedowns need to take into account fair use before sending those takedowns, this would act as evidence that Rightscorp failed to do that.

In its work for Plaintiffs Rightscorp downloaded files of thousands of sound recordings over the BitTorrent protocol, evidently to create evidence of infringements over Cox’s network.... But copyrights in sound recordings are separate from copyrights in musical compositions.... Rightscorp either committed massive infringements of the sound recording copyrights or must have relied on the fair use doctrine. If the latter, that fact is an admission that activity over BitTorrent may constitute fair use, but there is no evidence that Rightscorp considered the possibility of fair use in generating millions of notices of claimed infringement. Because fair use is not infringement, Rightscorp’s notices contained fraudulent misrepresentations about detections of infringement. See Lenz.... Thus, because Rightscorp acting as agent for Plaintiffs either was an infringer itself or engaged in misrepresentations, Plaintiffs have unclean hands.

Ouch. It will be fun to see these companies try to twist themselves out of that one. The rest of the filing is worth reading as well, and we may do some followup posts on other aspects included. But, in short, Cox points out that the legal theories here make no sense, that the company abused the DMCA process, there there is no evidence of actual infringement and that the publishers failed to actually mitigate any of the damages. You never know how the courts will eventually rule on these things, but from a first glance, Rightscorp's chances aren't looking too good right now.

* Correction: I originally got confused and posted the wrong document here -- but the right document has now been posted.

Filed Under: bittorrent, copyright, copyright infringement, copyright trolling, fair use, sound recordings
Companies: bmg, cox, righscorp, round hill music

Carl Malamud's Response To Georgia's Lawsuit Over The Copyright Of Its Annotated Code

from the it-ain't-covered-by-copyright dept

We've written a couple of articles about the decision by the state of Georgia to sue Carl Malamud for posting its "Official Code of Georgia Annotated" online for people to read. As we noted in a later post, while the legal issues here are potentially complex, the basic moral issues are not: why would you ever want the "official" code of laws to be covered by copyright?

The legal argument in favor of saying the OCGA is covered by copyright is that it's just the "annotations" (which discuss the caselaw related to the legal statutes), and it's developed by a private third party (LexisNexis) which then assigns the copyright to the state. But the very fact that the state repeatedly refers to and points to the annotated copy as its "official" law, and the fact that such annotations help the public more clearly understand the law, makes the argument fairly weak. And now, Malamud has filed his answer and counterclaims to the lawsuit, basically saying: (1) this is not covered by copyright in the first place and if it is then (2) it's fair use and if it's not fair use then it's (3) copyright misuse -- and finally if all that (and a few other things) fail, that stopping Malamud from posting such things would be "inimical to the public interest."

The response also takes at least some issue with the fact that the State of Georgia called Carl Malamud a "terrorist" for daring to publish a copy of its laws. Again, while the specific legal arguments here are interesting, I'm still at a loss as to why the state of Georgia thinks this is a wise use of taxpayer dollars. Even if it "wins," it does not come out of this lawsuit looking good. Bullying the guy who's helping to make your legal code more accessible doesn't seem like a good plan for government.

Filed Under: annotated code, carl malamud, copyright, copyright misuse, fair use, georgia, law
Companies: public.resource.org

Big, Confusing Mess Of A Fair Use Decision Over DMCA Takedowns

from the wait,-what? dept

Some potentially good news this morning -- which may be undermined by the fine print. After many years of back and forth, the 9th Circuit appeals court has ruled that Universal Music may have violated the DMCA in not taking fair use into account before issuing a DMCA takedown request on a now famous YouTube video of Stephanie Lenz's infant dancing to less than 30 seconds of a Prince song playing in the background. Because of this, there can now be a trial over whether or not Universal actually had a good faith belief that the video was not fair use. This case has been going on forever, and if you've watched the video, it's kind of amazing that a key case on fair use should be focused on that particular video, where you can barely even make out the music. The key question was whether or not Universal abused the DMCA in not first considering fair use before sending the takedown. This is fairly important, because, of course, DMCA takedowns suppress speech and if fair use is supposed to be the "pressure valve" that stops copyright from violating the First Amendment, it has to actually mean something. Section 512(f) of the DMCA says that the filer of a DMCA notice may be liable for damages for "misrepresentations," but historically that has been an almost entirely toothless part of the law (in part because of earlier rulings in the Lenz case). People hoped that would change with this ruling, and while the beginning of the ruling suggests 512(f) is getting teeth, the end yanks them all away.

The ruling in the 9th Circuit starts out great, but starts getting iffy pretty fast.

Her claim boils down to a question of whether copyright holders have been abusing the extrajudicial takedown procedures provided for in the DMCA by declining to first evaluate whether the content qualifies as fair use. We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.

Sounds good, right? Anyone sending a DMCA notice needs to take fair use into account before sending a takedown. That may be trouble for all of those automated takedown filing systems out there, many of which we've written about. The court also reiterates that fair use is not "allowed infringement," but rather it's not infringement at all. This is also important (even though it says that directly in the law, many people pretend that it's just an "allowed" infringement). The court is not impressed by Universal Music's defense in the case, in which it argues that fair use is "not authorized by law" because, as Universal falsely claims, it is merely a "defense" to infringement. The court says that's wrong:

Universal’s interpretation is incorrect as it conflates two different concepts: an affirmative defense that is labeled as such due to the procedural posture of the case, and an affirmative defense that excuses impermissible conduct. Supreme Court precedent squarely supports the conclusion that fair use does not fall into the latter camp: “[A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use.”

So, that's all good. But... the details matter, and from that point on... they're weird. The court points to the earlier ruling, saying that the copyright holder "need only form a subjective good faith belief that a use is not authorized." Thus, as long as the issuer can come up with some sort of argument for why they didn't think it was fair use, they're probably safe.

As a result, Lenz’s request to impose a subjective standard only with respect to factual beliefs and an objective standard with respect to legal determinations is untenable.

And because of that, the court leaves a big out for just about any copyright holder. It says the court has no place in questioning how the copyright holder decided whether the use was authorized or not:

To be clear, if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages under § 512(f). If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief even if we would have reached the opposite conclusion.

The court says a copyright holder can't just "pay lip service" to the idea that it checked on fair use, but in the same paragraph admits that, well, it basically can. Even worse, it says that forming a "good faith belief" doesn't require actually investigating the details:

In order to comply with the strictures of § 512(c)(3)(A)(v), a copyright holder’s consideration of fair use need not be searching or intensive. We follow Rossi’s guidance that formation of a subjective good faith belief does not require investigation of the allegedly infringing content.

So.... huh? (1) You need to take into account if it's fair use or not and you need to show a "good faith belief" that it's fair use, but... (2) you don't actually have to investigate anything, and the court cannot review your reasons for having a good faith belief. That's not a loophole. It's a blackhole that collapses 512(f) in on itself.

From there, it actually notes that automated takedowns... may be fine:

We note, without passing judgment, that the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use. Cf. Hotfile, 2013 WL 6336286, at *47 (“The Court . . . is unaware of any decision to date that actually addressed the need for human review, and the statute does not specify how belief of infringement may be formed or what knowledge may be chargeable to the notifying entity.”). For example, consideration of fair use may be sufficient if copyright holders utilize computer programs that automatically identify for takedown notifications content where: “(1) the video track matches the video track of a copyrighted work submitted by a content owner; (2) the audio track matches the audio track of that same copyrighted work; and (3) nearly the entirety . . . is comprised of a single copyrighted work.”

So, uh, what? Automated takedowns may be fine because that's sort of a way to consider fair use because... no reason given. That is not at all helpful.

On a separate note, the court confirms that the trial cannot move forward by arguing that Universal had "willful blindness" about the likelihood of fair use in the case, because Lenz didn't really show that Universal had willful blindness. So that's another dead end.

Finally, the court rejected Universal Music's claim that Lenz had to show monetary damages in order to recover damages under 512(f). The court says 512(f) spans more than just monetary damages. Of course, that's almost entirely meaningless in a world in which everyone has an out through "subjective good faith" that doesn't even require investigating anything.

So this is a ruling that looks good up top, but gets bad as you read the details. There is a dissent, from Judge Milan Smith, pointing out some of the problems with the majority ruling, and the loophole that it creates. As the dissent notes, stating that something is infringing when you haven't done any fair use analysis is a misrepresentation, and 512(f) covers misrepresentations. So, in the end, a possibly important ruling is undermined with a massive loophole, which likely will lead to a continuing barrage of DMCA takedowns, including automated takedowns that suppress speech. That seems... wrong.

Filed Under: 512(f), 512f, 9th circuit, automated takedowns, copyright, dancing baby, dmca, fair use, free speech, good faith belief, stephanie lenz, takedowns