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May 29, 2004

The Piano Roll Defense

An article in today’s issue of the Canada’s National Post outlines one legal strategy being pursued by Kazaa in its defense against suits from record companies:

An Australian court has heard a defence against charges of copyright infringement submitted by Kazaa — the wildly successful file-sharing software — relying on a precedent set over 100 years ago.

The 1899 British decision allowed the reproduction of perforated player piano rolls, ruling they did not infringe on copyright law protecting sheet music.

Robert Ellicot, who represents Sharman License Holdings, which controls Kazaa, submitted the argument in response to litigation brought against Sharman by Universal Music Australia and its affiliates.

The controversial legal gambit argues Sharman isn’t infringing on copyright because, like player piano rolls, MP3s are not copies of sound recordings.

Boosey v. Whight, the 1899 English case referred to in Mr. Ellicot’s defence, exempted the perforated [player piano] rolls from copyright law because they formed part of the mechanism of the player piano.

“It will be our submission in this case that we are exactly in that position now in relation to sound recordings,” Mr. Ellicot reportedly told the Australian Federal Court this month.

“That is to say that, however you describe an MP3 file on a computer hard drive — it is not a copy of a sound recording.”

This explains why I had to clean coffee off my monitor this morning, after doing a spit-take at that last line.

(The article is not available for free online, but is available through Westlaw at 2004 WL 79303684.)

If presented under U.S. copyright law, this argument would definitely, unequivocally fail. In White-Smith v. Apollo, 209 U.S. 1 (1908), the U.S. Supreme Court came to the same conclusion as the court in Boosey. In fact, the White-Smith opinion quotes Boosey extensively. Here’s the key language from Boosey, as quoted by the Supreme Court:

The plaintiffs are entitled to copyright in three sheets of music. What does this mean? It means that they have the exclusive right of printing or otherwise multiplying copies of those sheets of music, i.e., of the bars, notes, and other printed words and signs on these sheets. But the plaintiffs have no exclusive right to the production of the sounds indicated by or on those sheets of music; nor to the performance in private of the music indicated by such sheets; nor to any mechanism for the production of such sounds or music.

But is this the kind of copying which is prohibited by the copyright act; or rather is the perforated sheet made as above mentioned a copy of the sheet of music from which it is made? Is it a copy at all? Is it a copy within the meaning of the copyright act? A sheet of music is treated in the copyright act as if it were a book or sheet of letter press. Any mode of copying such a thing, whether by printing, writing, photography, or by some other method not yet invented, would no doubt be copying. So, perhaps, might a perforated sheet of paper to be sung or played from in the same way as sheets of music are sung or played from. But to play an instrument from a sheet of music which appears to the eye is one thing; to play an instrument with a perforated sheet which itself forms part of the mechanism which produces the music is quite another thing.

This was all quite true based on the copyright laws in force when the case was decided. Making a piano roll wasn’t copying the sheet music, since it didn’t look anything like the sheet music and wasn’t readable for human performance in the same way as the sheet music. Making a piano was copying the music itself, but, as the court says, there was no independent protection for the music itself apart from the sheet music in which it was fixed.

The United States changed that in the 1909 Copyright Act, in which it struck a compromise between composers and the player piano industry. I describe this compromise and its ramifications in a forthcoming paper for the Future of Music Coalition; what follows is a brief summary of the story. The composers wanted to be able to sell the right to produce piano rolls of their compositions; the player piano industry didn’t want to pay, and convinced Congress that if it allowed an exclusive right to reproduce the music “mechanically” — by piano roll — one piano roll company, Aeolian, would buy up the rights to all of the popular music and would eliminate competition in the industry. Congress gave composers an exclusive right to “mechanical reproduction”, on the condition that they allow anyone to make piano rolls at a rate set by Congress — at that time, two cents a copy. This new law made White-Smith moot.

So let’s say Kazaa brought this defense in the United States. (I know the Kazaa case described in the article is being brought in Australia, but this is bound to come up in the U.S. eventually.) The article is sketchy about the argument, but I suspect it would go like this: Current law says a copy of a sound recording (known in the law as a “phonorecord”) is the “material object” in which the sounds are fixed and from which they can be played back. But there is no separate material object in which the MP3 is embodied; it’s on the hard drive, all jumbled up with other data. This argument is a loser because there’s no requirement that there’s nothing else embodied in the phonorecord, or that it has no other use other than as a phonorecord. Congress recognized this in its definitions of “digital musical recording” in the 1992 AHRA, which is much more restrictive than the definition of “phonorecord”, specifically excluding music stored on the same medium as computer programs. By some standard canons of statutory interpretation, you get pretty quickly to the conclusion that by making a new, more specific definition instead of just saying “phonorecords”, Congress means that an MP3 on a hard drive, commingled with computer programs, is a phonorecord.

So it’s a loser in the U.S. How about Australia? Australian copyright law is governed by the Copyright Act 1968, as amended. The Australian-law analog to the “phonorecord” is the “record”, which is defined as, “a disc, tape, paper or other device in which sounds are embodied”. Copyright holders have the right “to reproduce the work in a material form”. So for the Kazaa argument to work, an MP3 on a hard drive must not be a “matetial form”. “‘[M]aterial form‘”, in relation to a work or an adaptation of a work, includes any form (whether visible or not) of storage from which the work or adaptation, or a substantial part of the work or adaptation, can be reproduced”. Could they possibly be arguing that a hard drive is not a “form (whether visibe or not) of storage”? This is a losing argument — even more so under Australian law than under U.S. law.

Novel, though.

May 19, 2004

I’m Off . . .

I’m now on day three of the big drive out to California for my internship this summer at the Stanford Center for Internet and Society. I’ll be back and blogging in a few days.

(Incidentally, I’m blogging from the $2 WiFi hotspot at the Flying J Travel Plaza near Salt Lake City. WiFi and truck stops go together so well.)

May 12, 2004

Allan Swift on Home Taping

In today’s hearing on the DMCRA, former congressman Allan Swift delivered this testimony. He’s been home taping since before the introduction of the LP. Some choice quotes:

Look at the history of the recording industries. They have always distrusted new technology. If Hollywood had been given its way the video tapes and DVDs, from which they now make a great percentage of their profits, would have been smothered in their bassinettes. This Committee reported out a perfectly absurd bill that – the industry claimed – was essential to prevent the Digital Audio Tape (DAT) machines from destroying the recording industry. Now you can hardly find a DAT machine – except for commercial purposes.

This is a clear opportunity to draw a balance between protecting the legitimate copyright interests of the industries involved and the legitimate rights of the average American consumer – who, let us remember, is not in the wholesale pirating business. Others do that. The American consumer is no threat to these industries. Instead, they are the industries’ source of wealth. I own 3,000 CDs at an average price of say – conservatively – $13 each. You do the math. You will find not only that my hobby spending is out of control. You will also find that I am – like other American consumers – a profit center for these businesses. It is about time they treated us with a little respect.

May 11, 2004

Harry Potter Ballet Scotched

J.K. Rowling’s agent denied a request by a bunch of 3-year-olds to perform their original Harry Potter ballet at a benefit for a children’s hospital.

All right, it sounds bad. Really bad. But Rowling’s agent didn’t have any choice; Rowling sold the dramatic rights to Warner Brothers, and you can’t grant rights you don’t have. The agent’s quotes in the article have a definite tinge of “This is going to make us look like real blackguards, and we’d really, really like to say yes, but if we did Warner Brothers would quickly eviscerate us, so no,” which is nice to see.

Here’s the interesting sidelight: the ballet was to be presented for the benefit of the Great Ormond Street Hospital, which is trying to use copyright law to stop publication of a new book by Emily Somma which uses the Peter Pan characters, who are in the public domain. The hospital does important work and deserves generous funding, but it seems like some sort of cosmic justice that while the lawsuit over Somma’s book is ongoing, they’re losing the revenue from this ballet benefit because of similar actions by another copyright holder.

Lessig’s Testimony

Larry Lessig will be delivering this testimony (pdf) at tomorrow’s congressional hearing on the DMCRA (which will begin at 10 AM EST). Larry even indulges in a little bit of classic inside-the-beltway rhetoric:

Fair use has been a central aspect of American copyright law. It is less familiar within other legal traditions. Indeed, this difference may well account for the relatively anemic understanding of fair use offered by trade associations, including the RIAA. As every major label in that trade organization is now owned by foreign corporations, it is not surprising that those labels find our tradition to be alien.

May 10, 2004

Copyright Maximalists Are Not Fascists

I’m with Ernie: this artwork using Nazi imagery to protest copyright maximalism is pretty stomach-turning.

Copyright maximalism is bad. It trammels the development of culture and the ability of citizens to express their ideas.

But it’s not book burning. It is not state repression or fascism. Jack Valenti is not a Nazi.

It’s ironic that the comparisons to Nazism arise in this debate in particular, since Mike Godwin, progenitor of Godwin’s Law, works for Public Knowledge, a legislative advocacy group for balanced copyright laws.

Sony’s Missteps

Today, Sony made its second major misstep along a path to failure in the digital music space. The first was Sony Connect, YAPDDS (Yet Another Proprietary Digital Download Store), selling tracks in ATRAC format. Then, today, they introduced the VGF-AP1, a 20GB iPod-like digital music player. But it only plays Sony’s proprietary, DRM’d ATRAC format, not MP3 or AAC or WAV or anything else. So, in order to get their MP3s onto this new player, users will have to re-encode their collection into ATRAC format. Re-encoding always introduces additional compression artifacts, making the tracks sound worse.

Why would you buy one of these when you can buy an iPod, which will play MP3s too? I realize that ATRAC is and has always been a better codec than MP3; I have a Sony MZ-1, the first MiniDisc machine (MiniDiscs use ATRAC), and it still sounds fantastic. But requiring consumers to re-encode is just stupid. (What? You expect us to buy all of our tracks on Sony Connect? I don’t think so.)

This is an attempt at format lock-in, but happily it’s so ham-handed that it won’t work.

May 9, 2004

The WIPO Copyright Treaty and the DMCRA

As I described in the last post, the DMCRA rolls back the anti-circumvention provisions of the DMCA, turning a law that was a disaster for consumers and artists into a mere inconvenience.

“But wait!,” interrupts my inner copyright geek. “Section 1201 was enacted in order to comply with obligations under Article 11 of the 1996 WIPO Copyright Treaty. I know that Article 11 was included at the behest of American copyright holders who needed a back-door way of forcing the United States to enact draconian new paracopyright laws without having to deal with the legislative process, and we’ve been pretty lax about our compliance with Berne and all, but it’s a treaty obligation nonetheless. What gives?”

Here’s the text of Article 11:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

Here’s the argument that the DMCRA brings us out of compliance with the treaty. (*puts on his RIAA SWAT team jacket*) It says we need to provide “adequate legal protection” against the circumvention of certain “technological measures”. The focus is on the purpose of the technological measures — the Digital Rights Management systems — not on the purpose of each individual act of circumvention. Which systems are protected? All systems that “are used by authors in connection with the exercise of” some copyright-related right. There’s no back door for fair use here; if it’s used to enforce some valid right, whether or not it is overinclusive in its effect, the measure must be given legal protection. The DMCRA strips protection against some acts of circumvention, and thus the DMCRA, if enacted, would violate Article 11 of the WIPO Copyright Treaty.

(*takes off the RIAA jacket and puts on his EFF cap*)

Here’s the argument that the DMCRA doesn’t violate our treaty obligations under Article 11. First and most importantly, the treaty requires only “Adequate legal protection”. Allowing circumvention for fair use is well within the range of “adequate”, especially given that such use reduces the effect of DRM systems which restrict acts specifically “permitted by law,” like fair use. Second, the intent of Article 11 is to give effect to authorial measures to enforce their rights under copyright, not to grant them entirely new rights. It is no accident that the text refers to “rights under this Treaty or the Berne Convention” and applies only to those systems that restrict acts “not … permitted by law.” Read as a whole, Article 11 binds signatories to prevent circumvention of DRM systems when those systems protect the author’s existing legal rights, not to prevent all circumvention of any technological measure that prevents infringement of copyright but also prvents a whole range of otherwise legal uses of the work.

So who wins? I’m persuaded by the argument for the DMCRA. Congress has never really felt restricted by copyright treaties in the past, and “adequate protection” is a pretty broad standard.

Let’s hope WIPO agrees.

Support the DMCRA

Reps. Rick Boucher (D-VA) and John Doolittle (R-CA) have introduced the Digital Media Consumers’ Rights Act, or DMCRA. A hearing has been scheduled for May 12th. This is the first time in twelve years that there has been such public legislative support for consumers’ rights to use the digital media products they buy.

The bill has three parts. First, it requires all copy-protected CDs to bear a warning label indicating that they might not play in all CD players and might not be able to be ripped by a computer. Second, it amends the 1998 Digital Millennium Copyright Act to allow researchers and consumers to get around copy protection systems for legal purposes. Third, it codifies the Supreme Court’s “Betamax” holding that devices with a substantial noninfringing use are legal to manufacture and distribute, even if consumers can also use them to commit copyright infringement.

Here are the changes to the relevant sections of the DMCA.

Secion 1201(a)(2) is amended to read:

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that – (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title unless the person is acting solely in furtherance of scientific research into technological protection measures

Section 1201(b)(1) is amended to read:

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that – (A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof unless the person is acting solely in furtherance of scientific research into technological protection measures;

Section 1201( c ) is amended to read:

( c ) Other Rights, Etc., Not Affected. -

(1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title and it is not a violation of this section to circumvent a technological measure in connection with access to, or the use of, a work if such circumvention does not result in an infringement of the copyright in the work.

[ ... ]

(5) It shall not be a violation of this title to manufacture, distribute, or make noninfringing use of a hardware or software product capable of enabling significant noninfringing use of a copyrighted work.

Write your congresssional representative and tell him or her to support the DMCRA. This bill reverses much of the damage done by the DMCA while still allowing copyright holders to continue their (unwise) efforts to lock up digital content behind technological protections.

May 8, 2004

Summer Plans

This summer, I’ll be interning at the Stanford Center for Internet and Society, working on cases like Golan and Kahle under the direction of Larry Lessig, Jennifer Granick, Elizabeth Rader, and Chris Springman.

If I happen to have any readers in the Bay Area, we should get a cup of coffee while I’m there. Drop me an email.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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