Monday, November 12, 2012

Copyright: Week 11 - Different Faces of Infringement

This is not legal advice. Leave audio feedback at (512) 686-6329.


November 6 – Moral Rights (Casebook pp. 392-411; see also Supplement pp 357-360)
November 8 – The Different Faces of Infringement: Direct, Contributory & Vicarious Liability (Casebook pp. 469-489)
November 8 – Liability of Online Service Providers (Casebook pp. 489-513)

Another three-class-week this week.

It is often said that the US does not have moral rights, and this is true in the sense that we do not have a European conception of author's rights. Tom and I spoke about moral rights with Manuel a little over year ago. With the pointer to the discussion with Manuel, I move on to the DMCA.

The DMCA is kinda a big deal. It added 17 U.S.C. §§ 512, 1201–1205, 1301–1332 and 28 U.S.C. § 4001. It also amended 17 U.S.C. §§ 101, 104, 104A, 108, 112, 114, 117, 701.

Unfortunately, as our textbook reads on page 503, "because the legislation resulted from bargaining between interest groups, it is quite complex". Thus, this article will only be able to focus primarily on §512 of the Copyright Act.

THESIS FOR REBUTTAL/CRITIQUE: The DMCA does more good than harm. 

Now, it's possible I'm getting ahead of myself because it's not until Week 14 that we get to DRM, an important part of the DMCA. I actually plan on coming back to the DMCA at the expense of contract law in Week 14, so if you are sick of hearing about the DMCA after reading this, please let me know! Our book spends 19 pages on the DRM parts of the DMCA but only ~2 pages on the part that seems most important to me. Perhaps this is because in music DRM has mostly gone away. Maybe it's because I've more-or-less taken a vow of celibacy against commercial music. Maybe I'll change my mind after Week 14.

§512 itself is nine pages long in our statute book and has sub-sections (a) through (n). A complete overview of the statute and the relevant case law would require more than a single post. Luckily, Brian will be doing a follow-up post! Anyway, to get us started, here are the titles of the sub-sections.

a) Transitory Digital Network Communications
b) System Caching
c) Information Residing on Systems or Networks at Direction of Users
d) Information Location Tools
e) Limitation on Liability of Nonprofit Educational Institutions
f) Misrepresentations
g) Replacement of Removed or Disabled Material and Limitation on Other Liability
h) Subpoena To Identify Infringer
i) Conditions for Eligibility
j) Injunctions
k) Definitions
l) Other Defenses Not Affected
m) Protection of Privacy
n) Construction  

The definitions section only has two definitions and is probably worth reproducing here (additionally, there's a defintion of "standard technical measures" in sub-section (i) for some reason): 
(k) Definitions.—
(1) Service provider.—
(A) As used in subsection (a), the term “service provider” means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.
(B) As used in this section, other than subsection (a), the term “service provider” means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).
(2) Monetary relief.— As used in this section, the term “monetary relief” means damages, costs, attorneys’ fees, and any other form of monetary payment.

The section most relevant for my thesis that the DMCA does more good than harm is §512(c), so that's where I'll spend the bulk of my discussion. It's worth noting that Viacom v YouTube had the potential to eviscerate the protections of §512(c) and thus was a very important ruling. While some have claimed the case was a victory for Viacom, in the long run it was not. Viacom may end up getting damages on remand (if they don't settle) but the protections of §512(c) remain. 

While YouTube (via Google) could probably afford to do more policing of its site, sites such as Jamendo and Free Music Archive could not (we'll leave aside the jurisdictional issues with Jamendo being based in Europe). Free Music Archive is a 501(c)(3) non-profit and while non-profits can have sizable budgets, let's get serious about our comparison to Google. Of course, the volume on FMA is not the same as YouTube either, but with 9885 current artists and 53826 tracks, they are no slouch. Those numbers are no comparison to Jamendo's numbers, but the FMA is curated, unlike Jamendo. When Music Manumit became an FMA curator, we had to sign (actually sign, not a click-through) forms saying we wouldn't upload content we were not authorized to upload. One might think that this would absolve FMA of liability, but without 512(c) that's unlikely. To understand why that's unlikely you need to understand contributory and vicarious liability, subjects I don't have time to cover this week and require knowledge of tort law for complete understanding.

And even if Google could afford to do more policing, is that really want as a society? Sure, that's a job Google could pay someone to do, but what is that job giving society? It would be better if Google was able to spend that money bringing better services or not getting rid of services, as it often does.

And if you don't like Google, think again of the FMA. I'd like someone at FMA to work full-time on curator projects. That seems a much better thing to do for them than to hire a copyright enforcer. I can think of plenty of other projects that the FMA could do, but this is not a brainstorming session for the FMA. The point is merely that while there is a job creation possibility for the MAFIAA to have their way, not all jobs are created equally, either for the individual or for society.

While sub-section (c) is long, it is probably worth reproducing here in full
(1) In general.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—
(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
(2) Designated agent.— The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:
(A) the name, address, phone number, and electronic mail address of the agent.
(B) other contact information which the Register of Copyrights may deem appropriate.
The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, and may require payment of a fee by service providers to cover the costs of maintaining the directory.
(3) Elements of notification.—
(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(i) Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent.
(ii) In a case in which the notification that is provided to the service provider’s designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).
Some have claimed that the take down provisions chill speech. While there is undoubtedly some truth to that, Flickr, YouTube and competitors such as Vimeo and MediaGoblin simply would not exist without the DMCA. Talk about chilling speech! Chilling speech is bad and I am not arguing the DMCA is perfect. Clearly, whatever promotion of science and the useful arts copyright gave in 1789, in the Internet Age, copyright itself chills some speech. As far as music is concerned, we are at a point where pop/rock music can be recorded with minimal financial investment. However, once you have an orchestra, paying performers can get expensive quickly. Without copyright, people are still going to pay to go to live performances. We are social creatures.

While certain types of music will for the foreseeable future be able to rely on live performance for income, that is not true for all types of art. Major Hollywood movies simply would not exist without copyright, or at least not in current form. Actor/actress wages are ridiculous and maybe with that calmed, budgets could shrink, but the truth of the matter is that it takes an enormous amount of people to bring anything but the smallest production to market.

The DMCA, like all of copyright, is a bargain. The Internet and widespread technology have changed the relevative positions of those at the bargaining table. The SOPA/PIPA debates last year certainly showed that to anyone that hadn't already figured it out. As long as courts interpret §512(c) in a reasonable way, the bargain on the whole is good for society.

Lawcast News and Notes

I'm not sure if I mentioned this in an earlier post, but I had been planning on taking "Music Law" next semester. Due to a variety of reasons, I don't think I'm going to be doing that. I plan  to bring my thoughts from my "Copyright Licensing" course. 

Additionally, I'd like to thank Jon Livingston for all the help he's given Music Manumit over the past month or so. 

Lastly, for those of you that heard our sister site, was going away, you can dry your tears. We have a new writer for the site, so we will be staying alive over there for at least a little bit longer!


DMCA in the news.
DMCA on This Week in Law.
What about Moral Rights or Economic Rights in Orphaned Works?
Stanford on ISP as Copyright Cop
The Five Exclusive Rights and Moral Rights from Life of a Law Student (I realize I've linked to this episode for each of the posts on infringement, but it continues to be a valuable resource)
Sacked by Copyright: DMCA Takedowns and Free Expression with Wendy Seltzer
Viacom v YouTube on Wikipedia (I can't find a date for the remand or any information about a potential settlement)
EFF's take on Viacom v Google (as they call it)

Textbook Publisher Pearson Takes Down 1.5 Million Teacher And Student Blogs With A Single DMCA Notice