What has changed May 27, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Digital Rights Management, Fair Use, Technologies , 1 comment so farCourts in the U.S. have asserted for years that our copyright law is compatible with the First Amendment guarantee of free speech by citing to principles — fair use and the rule that copyright protects only expression and leaves the underlying ideas free for all to appropriate, reuse and build upon. Both of these safeguards are still in place, yet I have twice claimed in this space that we need to look again at the relationship between copyright and free expression. So the question presents itself, do I just not get it, as at least one commenter seems to think, or has something changed to make reliance on fair use and idea/expression inadequate these days?
Although I am not convinced that the two principles usually cited were ever adequate, especially as the scope of copyright’s monopoly expanded, what has clearly changed, in recent years, is that Congress adopted the Digital Millennium Copyright Act in 1998. The DMCA added two provisions to the copyright act that have had a negative impact on free expression.
First were the legal protections provided for technological protection measures, or DRM (digital rights management) systems. It is ironic that content owners decided to move toward technological locks because they felt that legal protections were inadequate, and then found they needed legal protection for those locks when they proved insecure. But the combination of digital locks and “anti-circumvention” rules has been devastating for free speech; even use of public domain works can now be locked up, and the law will prevent access.
Lest we forget the power of DRM, here is a note about the Motion Picture Association of America “reminding” a court that it is illegal to circumvent DRM systems even for a use of the material that would be perfectly legal. So when digital locks are used, one of the safeguards our courts have relied on to preserve free speech — fair use — is apparently useless. As the EFF attorney mentioned in a blog post linked above says, it is by no means certain that fair use is entirely trumped by DRM, but there is a case that held that, and the content owners certainly believe that fair use is now obsolete.
An extensive study done by Patricia Akester, a researcher with the Centre for Intellectual Property and Information Law at Cambridge University, lends weight to that argument that what she calls “privileged uses” (like fair dealing in the UK and fair use in the US) are adversely impacted by DRM systems. There is a report of her study here, and the full text (over 200 pages!) is here. Akester may have done the first empirical study of these adverse effects, and her conclusions are sufficiently gloomy to lead her to suggest a legislative solution. She proposes that a “DRM Deposit System” be established where content owners are required to deposit either the key to their lock or an unencrypted copy of the work. Then a user could make an argument or meet a set of requirements for access when their proposed use was clearly within a privilege. If the content owner declined to deposit with the system, circumvention for access for privilege uses would be allowed. Some such system, similar to the “reverse notice and takedown” proposal discussed here over a year ago, is clearly needed if fair use is to continue to function as a safeguard of free speech.
The other provision of the DMCA that imperils free expression is the notice and takedown procedure itself, which was created to protect Internet service providers (ISPs) from liability for infringing activity that happened over their networks. In one sense, this “safe harbor” has been good for fair use, allowing the creation of user generated content sites like Flickr and YouTube where lots of fair use experimentation can take place. But that take down procedure is being abused, with bogus notices being sent to prevent legitimate and even socially necessary criticism and parody. ISPs are quick to takedown sites that are named in these takedown notices, and the process for getting them restored subjects the original poster to an increased risk of liability. It is very costly, after all, to defend free speech even against a bogus claim. So abusive takedown notices have now become a favored way to suppress criticism and comment that is unpopular with a major company or content owner. The long tradition of “I Hate BigCo, Inc., and here is why” web site, which courts have often held to be fair use of copyrighted and trademarked content, is now much riskier than it was before. In fact, the Electronic Frontier Foundation has even created these six steps to safegaurd a gripe or parody site, recognizing that free speech is not longer sufficiently protected by traditional provisions within the copyright law alone.
How fair use was born May 21, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , 1 comment so farThe history of copyright law is a fascinating study. Really, it is. One truism about that history is that copyright protection (as a body of law distinct from the earlier privileges granted to printers) arose at the same time that romatic ideals of original authorship did. The continued influence of that romantic, and highly fictionalized, view of authorship is evident in the ill-informed and self-serving comments of author Mark Halpern in this Wall Street Journal op-ed and in the new book he is flogging. But I was reminded, by this blog post criticising Halpern from Copycense, of an article that really deepens and complicates the history of authorship, originality and copyright. In “The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright,” Oren Bracha argues that the romantic ideal of authorship was in a continuous tension with market forces and social values from the inception of the law and throughout its development in the US. He mines this tension for rich veins of insight into the nature of originality, the “work” that copyright protects and the rules about who should own the rights created by copyright law. It is in the c0ntext of his discussion of how the protected work was defined that I found a fascinating perspective on the origin of fair use.
It is hard to believe that in the mid-19th century a copyright holder did not have the right to authorize an abridgment or translation of a book, or to object to such unauthorized efforts. Yet in 1847 Justice McLean held, in Story v. Holcombe, that an abridgment did not infringe the rights held in the original, even though he admitted that it was a market substitute for that original. Six years later, Justice Grier found that a German translation of Uncle Tom’s Cabin was not an infringement of Harriet Beecher Stowe’s rights in her original novel (Stowe v. Thomas, 1853). Both an abridgment and a translation are clearly derivative works under today’s law, the exclusive rights to which are reserved to the copyright holder (see our last post about a translation law suit in Argentina). So what were these justices thinking? As Bracha points out, there was a shift in progress from looking primarily at the new work’s “usefulness to the reading audience” to primarily protecting the market value of the original in all its potential forms. These two cases are on the trailing edge of that shift; the last gasps of the older notion of allowing free adaptations when there was a clear social benefit.
The remarkable point, to me, is that the development of fair use occurred within this same transition. As Bracha sees it, fair use was “a vehicle for the radical enlargement of the scope of copyright.” Throughout the middle of the nineteenth century, the scope of copyright was dramatically expanding from a limited “printers” right to prevent near-verbatim reproductions to a full-blown notion of ownership over an “abstract intellectual essence” that could find express in a myriad of forms, all of which were under the control of the author. Fair use, created by the same judges who were overseeing this expansion, became a substitute for all of the socially beneficial uses that were previously outside the scope of copyright. Fair use is the bete noir of rights holders and copyright maximalist, yet Bracha argues effectively that it really developed in order to make judges more comfortable with a vast expansion of copyright’s scope, precisely to provide an economic windfall to rights holders.
Bracha offers a nice summation of the tension between economic protectionism and a social ideal of broad dissemination of knowledge and information that is, he says “inherently built into a modern copyright system.” As he phrases it, such a system “creates private exclusion power over information in the name of maximizing the free dissemination of information.” Would we actually be better off, to ask a radical question, if rights holders did not have control over translations, as they did not in 1853? Perhaps the students of that Argentinian professor that I wrote about last week would be. And it does not seem that fair use would do those students or their professor any good at all, even if they were in the US. It is hard to imagine a US judge today finding that fair use would permit an unauthorized translation even in a situation where no commercial translation was availabile. So the addition I would make to Bracha’s fascinating history is this observation: the massive expansion of copyright’s scope and its term of protection has forced fair use to do work it was never intended to do, and it is no longer an adequate safeguard of social interests; perhaps, instead of comforting ourselves with the fiction that fair use is good enough, we need to go back and look critically at the scope of copyright itself.
Enforcing scarcity May 15, 2009
Posted by Kevin Smith in : Copyright in the Classroom , 3commentsFor those in academia who take comfort in the comparative dearth of copyright infringement lawsuits against professors, this news out of Argentina will come as a rude awakening. Just as we have gotten used to the idea of academic presses suing academic institutions, as in the Georgia State University case, now we have a professor being charged with infringement in a criminal case (which is not really unusual in South American copyright suits).
So what did Professor Horacio Potel do? He made Spanish language translations of some 20th century classic works in philosophy (Heidegger, Derrida and Nietzsche) available to his students. He asserts that such versions simply are not available for purchase to his students.
Unfortunately for Professor Potel, lack of availability is not really a defense against copyright infringement. In a country with a fair use provision (US, Japan, Israel), such unavailability might help with the forth fair use factor, the impact (or lack thereof) on markets for the original. Rights holders, however, often point out that this factor includes potential markets, and asset that it should be their option whether and when to exploit a particular market. Thus the answer to Professor Potel’s dilemma from those who hold the rights in these works is basically that his students are out of luck. For those following the debate about whether copyright laws do more harm than good at The Economist, this instance where copyright is being used to enforce the unavailability of educational resource ought to weigh heavily on the harm side of the balance. (By the way, the voting on the motion showed 71% agreeing that the law did do more harm than good, while 29% felt it was more beneficial).
It is worth noting, while looking at an international infringement case, that the principle international treaty on copyright law, the Berne Convention for the Protection of Literary and Artistic Works, does not contain the same broad exclusive right for “derivative works” that is found in US law. This is probably a good thing, since it is sometimes very difficult to define exactly what is a protected derivative work. Leaving that definition up to individual countries seems like a good idea, but it really won’t help Professor Potel. The Berne Convention does mandate that its members protect two specific derivatives — translations, in article 8 (sorry, Professor) and cinematic adaptations in article 14. I have little doubt that Argentinian law includes those exclusive rights, so Prof. Potel must, I fear, base his defense on social utility and lack of market harm, two claims that don’t seem to carry much weight these days.
Click-wrap and illusory promises May 12, 2009
Posted by Kevin Smith in : Licensing, Technologies , add a commentAt the end of my last post I returned to a frequent theme, the unfairness of “clickwrap” licenses and the fear that they are over-enforced by courts, in spite of the inability of users to negotiate the terms or avoid enforcement of these one-sided deals.
So I was rather pleased to find an exception — actually a series of exceptions– to this over-enforcement in a recent case out of the federal district court in the northern district of Texas. While this line of cases does not accomplish what I have wished for, a ruling that copyright law and its exceptions should preempt non-negotiable contracts, they do show that, in some circumstances, courts will reject a clickwrap agreement when the seller takes too much advantage of its powerful position.
Cathryn Harris agreed to a clickwrap license when she signed up for a particular online program run by Blockbuster. Such licenses, of course, condition service or access on agreeing to a set of terms that is wholly non-negotiable; all the user can do is click “I Accept” or forgo the service entirely. I have complained about enforcement of a similar licenses in the Turnitin case by a court in Virginia, where the students were compelled by their school to sign up with Turnitin. In this case, when a dispute arose and Ms. Harris filed suit against Blockbuster, the company tried to enforce the clause in the clickwrap licenses that sends all disputes to arbitration (which is much less expensive). Ms. Harris opposed the motion to compel arbitration, and the Texas court sided with her, ruling that the entire agreement, including the arbitration provision, was invalid.
The reason the court rejected the license was that it contained a provision saying the Blockbuster could change the terms of the agreement at any time, without notice. Such provisions are not uncommon in clickwrap licenses, because the nature of the agreement makes it impossible for the seller to contact everyone who agrees to the terms of use. But here the court said that such a clause makes the contract “illusory.” Contracts, after all, are an exchange of promises, and a one-sided, “we can change the terms anytime” clause really means that the side that drafted the agreement has not made any promise at all that it is bound to stick to. When an apparent promise really is just statement of discretion — “I will pay you $20 to wash my car if I decide it was worth it” — courts call those contracts illusory because there is no real exchange of promises.
As this analysis of the case shows, there have been several cases in which such clauses allowing one-sdied changes have caused a clickwrap agreement to be found illusory. It is interesting that they are all about arbitration. I suspect this is because arbitration is something that must be based on mutual agreement, and courts are reluctant to limit a person’s access to the legal system based on a promise they could not undertake voluntarily.
For the purposes of our concerns here, this case is a small indication that clickwrap licenses must be drafted carefully, and that the fact that users seldom read such agreements is not an excuse to overreach too far. When the issue is important enough, a court will occasionally void a one-sided agreement rather than enforce terms that put one party at too great a disadvantage. Perhaps we will soon see such a willingness to reexamine clickwrap agreements when the disadvantage caused is a loss of those user rights that Congress so clearly intended when it drafted the copyright law.
Learning from ambiguity May 6, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Copyright in the Classroom, Fair Use , add a commentI have long believed that one of the most important skills one can develop in life is the ability to tolerate ambiguity and to learn from all side of a complex and irresolvable situation. Perhaps that philosophy helps explain how I can tolerate being a copyright lawyer in the current IP environment. But I continue to have an especially ambivalent reaction to the case involving the plagiarism detection software called Turnitin. I wrote about the district court decision over a year ago. Now the appeal has been decided — a win for Turnitin on ever front, upholding the major parts of the district court ruling and reversing only that aspect that disfavored iParadigms, the Turnitin parent company — and I still find myself feeling rather torn. So now I am trying to learn from the ambiguity.
The heart of the case, and the major issue affirmed by the Fourth Circuit Court of Appeals, is that Turnitin makes a fair use of submitted papers when it copies and stores them to be compared with later submissions. On this issue, I have been convinced; the 4th Circuit opinion has put to rest my earlier doubts. I still don’t think Turnitin is a particularly useful tool, especially for higher education, but the reasoning of the court on the fair use issue is so clear and compelling that I cannot resist their conclusion. Besides, I really wanted to agree with them on this point all along.
There are two important points that I want to emphasize in the appellate decision that really help explicate fair use. First, the Court is very clear that a work can be transformative, and so a favored candidate for fair use, even when the second work does not add anything to the original, but merely copies it for a different “function or purpose” that that for which the original was created. Here is the conclusion of the Court:
“The use of the copyrighted work need not alter or augment the work to be transformative in nature. Rather, it can be transformative in function or purpose without altering or actually adding to the original work.”
The Ninth Circuit has made similar rulings regarding Internet indexing in Kelly v. Arriba Soft and Perfect 10 V. Amazon, but it is nice to see this conclusion, which really broadens the scope of the transformative use analysis, arise in another circuit as well (especially in the one in which I live and work). This is a significant advance in the analysis of transformative uses over its original discussion by the Supreme Court in the “Oh Pretty Woman” case, and it offers grounds for hope that many of the innovative uses of copyrighted materials that new technology make possible could be considered transformative.
Even more exciting to me, is this remark made by the Court as it considered the second fair use factor, the nature of the original copyrighted work:
if the disputed use of the copyrighted work “is not related to its mode of expression but rather to its historical facts,” then the creative nature of the work is mitigated… the district court concluded that iParadigms’ use of the plaintiffs works “related solely to the comparative value of the works” and did not “diminish the incentive for creativity on the part of the students.”
This specific holding would benefit only a fairly limited class of uses, I think, but it is significant to me because it involves the Court’s recognition that the incentive structures for different kinds of works differ. Since the incentive structure for academic work is significantly different from that of commercial production, I would argue, the scope of transformative fair use for academic work should be broader than it might be for Disney films or songs by U2. The reasoning of the Fourth Circuit here, its willingness to ask how this specific use impacts the incentive for these specific authors, takes a step toward that kind of argument.
In general this decision is a very comprehensive and cogent fair use analysis that deserves to be widely read. So why am I still feeling ambivalent? Because the Court never did address the issue that troubled me most in the lower court’s ruling, the assertion that the “click-wrap” license that the plaintiffs had to agree to in order to get access to the site was valid and enforcable, even thought the plaintiffs were minors and took steps to indiccate that they did not agree to the non-negotiable terms. The appellate ruling, based as it was on fair use, never needed to address this holding, but I continue to think it was a mistake. The fact that courts will give such weight to contracts that users can neither negotiate nor avoid suggests to me that this is a problem in need of a legislative solution. I would like to see the copyright law ameded to state that non-negotiable contracts do not preempt copyright law; that is, that consumers cannot give away their statutory rights as users of copyrighted content unless they have a meaningful chance to do so intentionally and with forethought. If we could add such a provision to the federal law, my ambivalence about the Turnitin case would vanish altogether.
