joegratz.net

Here’s a rundown of the key holdings in yesterday’s Ninth Circuit opinion in Perfect 10 v. CCBill.

1. DMCA section 512 Safe Harbor. The first issue was whether the defendants — a hosting provider and a credit card processor for sites hosting allegedly infringing material — could claim the benefit of the safe harbor from claims of secondary copyright liability found in 17 U.S.C. 512. It’s remarkable how the parties raised issues implicating nearly every nook and cranny of a rather complicated section of the Copyright Act.
   • Termination Policy. In order to get the benefit of the section 512 safe harbor, a service provider must have “adopted and reasonably implemented” a policy for terminating “repeat infringers” in “appropriate circumstances.” 17 U.S.C. 512(i)(1)(A).
     • Such a policy is implemented by having “a working notification system, a procedure for dealing with DMCA-compliant notifications, and if it does not actively prevent copyright owners from collecting information needed to issue such notifications.”
     • Maintaining a record of “most” users in order to identify repeat infringers is sufficient to meet this standard.
     • A repeat infringer policy is always “reasonable” if the service provider responds when it has “knowledge of the infringement.”
     • A service provider’s action or inaction in response to claims of infringement made by other copyright holders are relevant to show whether the service provider’s repeat infringer policy is “reasonably implemented”.
   • Takedown notices.
     • A takedown notice sent pursuant to section 512(c)(3) has effect only if it includes each of the six items required by that section as part of the same document.
     • Of particular importance is the declaration under penalty of perjury required by section 512(c)(3)(A)(vi). This is because “[a]ccusations of alleged infringement have drastic consequences: A user could have content removed, or may have his access terminated entirely. If the content infringes, justice has been done. But if it does not, speech protected under the First Amendment could be removed.”
   • Apparent infringement. A service provider loses immunity if it fails to take action when it is “aware of facts or circumstances from which infrinigng activity is apparent.” 17 U.S.C. 512(c)(1)(A)(ii).
     • Domain names that can be read to imply infringement do not make infringement “apparent.” Here, the court held that the domain names “illegal.net” and “stolencelebritypics.com” were not admissions that the photographs found there were actually illegal or stolen, but were “an attempt to increase [the sites’] salacious appeal.”
     • A poorly-worded copyright disclaimer stating that the webmaster does not “claim any rights to these files, other than the right to post them” did not make infringement apparent.
   • Standard technical measures. There’s a provision in section 512(i) stating that a service provider loses its safe harbor if it interferes with certain narrowly-defined “standard technical measures” that are “used by copyright owners to identify or protect copyrighted works.” Rather cleverly — though, I think, probably erroneously — Perfect 10 argued that accessing sites on the web is such a “standard technical measure,” and by refusing to sell an account to Perfect 10 for access to the website interfered with that measure. This issue was remanded for further factual development, both as to whether website access is a “standard technical measure” under the statute’s definition and whether CCBill blocked Perfect 10’s credit card because it was investigating infringement or because it had previously refused CCBill’s charges.
   • Transitory communications. There’s also a provision in section 512(a) providing a separate safe harbor for service provisers who are “conduits” for infringing content, providing connections without modifying the content. The paradigm case of such a service provider is a network backbone operator. Rather cleverly, CCBill claimed to be just such a conduit, since it sends credit card data from the billing site to the relevant banking systems. Perfect 10 argued that for the safe harbor to apply, the condut must carry the allegedly infringing communications. Recognizing that “[t]he Internet as we know it simply cannot exist if those intervening computers must block indirectly infringing content,” the court held that “[s]ervice providers are immune for transmitting all digital online communications, not just those that directly infringe.”
   • Information location tools. Yet another provision in section 512(d) immunizes service providers who provide “information location tools” that link users to infringing content. Rather cleverly, CCBill claimed that by including a link back to the relevant website in a confirmation email after the user has used CCBill to pay for her subscription, CCBill is operating an “information location tool” and all of its operations are immune from secondary copyright liability. The court rejected this broad reading, holding that the “information location tool” safe harbor thwarts only claims that the provision of links to infringing content gives rise to liability, and does not immunize the linker’s entire operation from claims unrelated to the link.
   • Information posted by users. Section 512 also limits the liability of service providers who provide networked storage space for information uploaded by users. At issue here was whether the defendants met the requirement of section 512(c)(1)(B), that it “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.” The court held that “direct financial benefit” in section 512 imports that term’s meaning from the common law of vicarious copyright liability. In that context, the “direct financial benefit” analysis asks “whether the infringing activity constitutes a draw for subscribers, not just an added benefit.”
2. Communications Decency Act. The Communications Decency Act, 47 U.S.C. 230, immunizes users and providers of interactive computer services from liability arising out of information posted or transmitted by another. The statute carves out an exception for “intellectual property,” so section 230 does not immunize a service provider from secondary liability for, for example, users’ violations of the Copyright Act (though section 512 does provide such immunity). The court’s important holding here is that “intellectual property” in section 230 means only “federal intellectual property.” Thus, section 230 renders users and providers of online services immune from secondary liability for a another’s infringement of any state-law IP right, such as rights of publicity, trade secrets, and state trademarks. This would also apply to pre-1972 sound recordings, the only class of works still covered by state copyright laws.

This unanimous and straightforward opinion clarifies a large number of open questions related to secondary liability for the infringing acts of others under federal copyright law and under state intellectual property laws. It shows a pragmatic understanding of the risks faced by online service providers in a way that few other appellate opinions have. Further, it shows recent Ninth Circuit appointee Milan Smith to be a clear writer and a thorough legal analyst.

The Ninth Circuit Court of Appeals today released its decision in Perfect 10 v. CCBill. The opinion deals with DMCA section 512 and CDA section 230. I’ll have more to say once I’m done reading it.

Seth Schoen has a lengthy and insightful post on the Patent and Trademark Office’s “report” on peer-to-peer file sharing I mentioned here.

The University of Wisconsin - Milwaukee sent the email reproduced below to all students, faculty, and staff this morning. Like the letter sent by UW - Madison a few weeks ago, it indicates that the university won’t forward letters it receives offering to “settle” file sharing cases brought by the recording industry, though it will comply with a lawful subpoena.

SUBJECT: Illegal File Sharing at UWM

This announcement is being sent to all known UWM faculty, staff and student e-mail addresses.

The Recording Industry Association of America (RIAA) has recently increased its threat of lawsuits against students and others who engage in illegal digital file sharing. This is in response to perceived violations of the Digital Millennium Copyright Act of 1998, which specifically addresses copyright infringement of digital materials such as music, movies and software.

As you may know from recent press reports, the RIAA is now targeting individuals who live in university residence halls or use university computing resources. Because the RIAA can only identify violators by their ISP (Internet Service Provider) identifier, they are sending letters to universities requesting that these letters be forwarded to students, faculty and staff.

The RIAA notified UWM of its plans to send settlement proposal letters for individuals on the UWM campus whom they believe are guilty of violating federal copyright laws. These letters request that a monetary settlement be made by the violator in lieu of court action by the RIAA.

After consultation with UW System, our own legal counsel and with our understanding of federal law, UWM has decided that these letters will not be passed on to individuals. However, should RIAA send UWM a lawful subpoena for users’ account information, UWM will comply.

It is important to be aware of copyright law and avoid illegal P2P (peer-to-peer) file sharing.

For more information, visit the UWM Information Security Web Site at https://www3.uwm.edu/imt/security/index.cfm.

If you have questions, please e-mail dmca@uwm.edu.

This story from Der Spiegel reports an attempt by McDonald’s to get the word “McJob” (”a low-paid job with few prospects, typically one taken by an overqualified person”) from the Oxford English Dictionary.

“Dictionaries are supposed to be paragons of accuracy. And it this case, they got it completely wrong,” Walt Riker, a Mickey D’s McSpokesman complained to the Associated Press. “It’s a complete disservice and incredibly demeaning to a terrific work force and a company that’s been a jobs and opportunity machine for 50 years.”

I’m sure the city of Shanghai would prefer that its name couldn’t be used as a verb, and Vidkun Quisling probably wasn’t thrilled to see himself nouned. But language develops in a generative way that’s not centrally controlled. Dictionaries accurately report the way people use language, not the way people should use language. If people constantly misuse, say, the word “hopefully,” it takes on the meaning that’s assigned to it, in dictionaries as on the street. Trademark ownership does not confer a right to control the development of the English language.

On the Pho listserv, Gordon Mohr proposed this syllogism. I love it.

Major premise: Peer-to-peer file sharing harms for-profit copyright piracy.
Minor premise: Some for-profit copyright piracy aids terrorism.
Conclusion: Peer-to-peer file sharing fights terrorism.

Sure, it’s glib, and it’s only true if the P2P file sharing in question diverts funds which would otherwise have gone to that presumably small percentage of for-profit copyright pirates who actually fund terrorism, but I think it has a very nice ring to it.

A student at the University of Wisconsin - Madison forwarded to me the email quoted below, which was apparently sent to all students. It makes me proud to be an alumnus of UW: the University is refusing to forward to students the vaguely extortionate “settlement” letters the RIAA has been asking universities to send to their students, and recognizes that not all unauthorized P2P sharing of copyrighted works is illegal.

From: UW-Madison Office of the CIO
Date: Mar 16, 2007 11:54 AM
Subject: UW-Madison copyright compliance notice
To: [REDACTED]

The recording industry is threatening lawsuits against those who may have engaged in illegal file sharing. They are currently targeting students who live in university residence halls. Recently, UW-Madison and other universities have been notified that they will receive settlement letters that are to be passed on to the individuals whom the senders believe to be guilty of copyright infringement. Consistent with current network management procedures and our understanding of federal law, UW-Madison does not plan to forward these letters directly to campus network users. We will, of course, comply with a valid subpoena.

However, if the UW-Madison is given cause to believe that a student, faculty or staff network user may have infringed on copyrights, it will take action. University network policies empower the CIO to terminate that person’s network access until the matter is resolved. The Dean of Students office (for students) or supervisors (for employees) will be notified and other disciplinary action may be taken, as appropriate.

Unauthorized peer-to-peer file sharing of copyrighted works is illegal in many circumstances, and a violation of the university’s Appropriate Use Policy. Please be advised of your rights and responsibilities under these rules. For more information, see: http://www.doit.wisc.edu/ security/policies/ appropriate_use.asp

Ken Frazier
Interim CIO,
UW-Madison

UPDATE, 19 March: A story in the Badger Herald has this great quote from a UW IT department spokesman:

“These settlement letters are an attempt to short circuit the legal process to rely on universities to be their legal agent,” Rust said. “It basically says, you are illegally downloading and/or sharing information; and before we take legal action, you can remedy this situation and pay for the music or movies that you’ve downloaded.”

Rust said DoIT receives about 10 to 20 cease-and-desist notices per day, which they are obligated to forward to their users. The notices are only warnings, Rust added, but the settlement letters brought on by the Recording Industry Association of America are more of a threat.

The settlements are usually around $700 per instance, but could be as much as $3,500, according to Rust.

“So you can imagine some people have probably come to that website with their credit card and paid it,” Rust said. “We do not want to be a party to that; we are not the legal agent for the recording agency, nor do we aspire to (be).”

UPDATE, 20 March: The Wisconsin State Journal has this article on UW’s rejection of the RIAA’s “settlement letters.” Also, Slashdot has run an item linking to this post.

Via 27B/6 comes news that the United States Patent and Trademark Office has published a report on the dangers of P2P filesharing. Here’s the press release, and here’s the report.

I, too, am very concerned about the dangers P2P filesharing poses to patent and trademark holders. Why, who knows what patents might be infringed by the BitTorrent or FastTrack protocols? The P2P software distributors might be marking their goods with the name of an unrelated firm, in an attempt to pass off their goods as manufactured by another! This menace to inventors and marketers has been brought into your child’s bedroom!

Oh, wait. The report is about copyright infringement, not patent or trademark infringement. And that’s what makes this whole affair rather curious. The USPTO doesn’t administer copyright law; the Copyright Office does. This matters, in part, because the Copyright Office is part of the Library of Congress, which is part of the Legislative branch, whereas the PTO is part of the Department of Commerce, which is part of the Executive branch.

The PTO has attempted from time to time — particularly under Bruce Lehman — to take over the administration of copyright law, but these attempts have been rebuffed. This report was nominally issued by the PTO’s Office of International Relations (the only part of the PTO which has any copyright-related duties, in that it advises foreign governments on all IP issues and deals with all IP treaties), but the report’s connection to any international matter is unclear. One wonders whether this is the start of yet another attempt by the PTO to gain authority over copyright law.

Via Wendy, I see that C-SPAN has introduced a liberalized copyright policy for “current, future, and past coverage of any official events sponsored by Congress and any federal agency.” There’s apparently no legalese available, but C-SPAN says they’ll “allow non-commercial copying, sharing, and posting of C-SPAN video on the Internet, with attribution.”

This is great. C-SPAN appears to be licensing all of this content, dissemination of which is so important to democracy, under the equivalent of the Creative Commons Attribution-NonCommercial license. I look forward to seeing, for example, whether they allow the creation of noncommercial derivative works.

I’m at the Copyright Office Comes to California program in San Jose. This post represents my impressions of the proceedings, not a direct quote or transcript. My comments are in square brackets. This is a copyright-wonk sort of event, so let me know in the comments if there’s something you’re interested in and don’t understand.

This is a panel called “Artistic License: A Look at Copyright and Contemporary Art.” the panelists are:

* Maria Pallante, Deputy General Counsel, U.S. Copyright Office
* Adine Varah, Deputy City Attorney, City and County of San Francisco
* Simon J. Frankel, Covington & Burling, LLP
* Christine Steiner, Law Offices of Christine Steiner
* Jared Jussim, Executive Vice President, Legal Affairs, Sony Pictures Entertainment (Santa Monica)

[I’m recovering from a cold and liveblogging panels is exhausting, so these notes will be much more skeletal than usual.]

Maria Pallante:
Rirkrit Tiravanija made this [unbelievably cool] installation sculpture that’s a pirate TV station. This came to me when I was at the Guggenheim. The artist wanted to transmit movies into the airwaves in NYC. They had to use cleared movies PD movies, or clips. He wanted a letter on the wall from her about why the work had been ruined. [I saw this work at the Guggenheim. It included a stack of pirate TV station schematics for people to take home. Loved it.]

Douglas Gordon made an installation in which the “you talkin to me” scene from Taxi Driver is played on parallel screens, and the viewer walks between.

[She defines appropriation art, installation art, etc.]

Christine Steiner:
There was a suit over Barbara Kruger’s “It’s a Small World But Not If You Have To Clean It.” Kruger prevailed, as the photo was in the public domain and the model’s publicity claim failed.

Jeff Koons gets sued pretty frequently. He lost the line of puppies case, but won the niagara (shoe photos) case.

Also, Sherrie Levine, “After Walker Evans” — she makes whole scale takings of iconic Walker Evans photographs.

And the Tom Forsythe “Food Chain Barbie” series, various Christian Marclay pieces, etc.

Simon Frankel:
Fair use is about storytelling — justifying the borrowing or showing why the plaintiff is hurt.

I litigated the Mattel v. Walking Mountain case. Mattel took a mall survey about what the work meant; the court discarded the evidence, since parody is a question of law, not of public opinion. (He tells a funny story about Harry Pregerson at oral argument, of which there are many.) More than half of Forsyth’s sales were, unbeknownst to him, before the suit, to Mattel’s investigators.

Willingness to pay a license fee does not establish market harm.

Adine Varah:
SF has lots of public art. We try to keep it out of court.

It includes the doors to the courthouse, “Facsimile” by Diller + Scofidio on the Moscone Center facade, Precita Eyes murals, the Fillmore Street “Shades of Blue” bridge (problem with bullet holes), etc.

We get a VARA waiver from our artists. (She describes the waivers.)

Jared Jussim:
These are my views, not those of Sony. “The speaker reserves the right to disclaim this speech as the ravings of a madman.”

I’m in enemy territory, but I have been assured safe conduct back to Southern California, and though I am flying the flag of parley, I still wear a metal helmet on my head.”

Nobody wants to be a philistine, so even the thinnest story about art is good for getting a judge to find fair use.

Some facts about the motion picture business. You need around 10 projects to develop before greenlighting one. One picture from 10 that are produced clears from theatrical revenues alone. You can assume around 50% of the box office gets to the studio. 6 out of 10 clear from all sources of revenue. 4 never clear at all. From the revenues, you’ve got to pay for not only the winner, but all the losers too. The big studios survive only because they have big back catalogs that they can exploit again and again. We need that money to keep it going.

The films represent not only our rights, but the rights of hundreds of other people who work on the film. No studio can use a film clip without the consent of the talent depicted as a matter of SAG union contracts. If we violate it, we pay them three times the daily rate to shoot the reproduced segment.

The studios’ ROI is in the single digits.

These artists trying to take advantage of something they haven’t paid for. These elites.

Let’s talk for a moment about Candice Breitz. (He reads from the NYTimes review.) Every actor negotiates about how it’s shot and who the creative community is for that film. You’re taking something that people have agreed on and changing it without their consent. You’re changing the work of the cinematographer and the writer without their consent.

We cleared all the art on the walls in Rocky Balboa. We did research and paid money. Their success rate on locating photos is 90-95%. We locate and we pay. They want to use it for nothing.

We clear all sorts of things. We spend a lot of money on it. We clear the albums people pick up in the record store in the movie.

When the actor gives us consent, they’re giving us consent, not you artists.

In other countries, you have moral rights. These rights are violated by this art.

Do I think you can use film clips for something? Of course. But to take it or manipulate it and abuse it I think is a violation of rights.

Let’s talk for a second about money. I represent crass commercialism.

To just go out and buy a DVD and show it publicly cuts into our ability to reap what we have sown. This is not how we run our film market. This isn’t how America became the predominant producer of motion picture.

[Outrageous!]

I’m at the Copyright Office Comes to California program in San Jose. This post represents my impressions of the proceedings, not a direct quote or transcript. My comments are in square brackets. This is a copyright-wonk sort of event, so let me know in the comments if there’s something you’re interested in and don’t understand.

David Carson and Tyler Ochoa are up to discuss recent copyright litigation.

Corwin v. Walt Disney World. Corwin is a former neighbor and sole heir of Mark Waters, an artist. One of the paintings he inherited was a painting of a proposed theme park from the 1960s. Corwin alleges that EPCOT is copied from the painting. The main issue was access. The theory of access was that Jaffray, a friend of the artist, had showed the painting to Disney and left it with them for a month. The evidence was weak — foggy recollections. [And then I left to go get a glass of water, so we may never know what happened.]

Live Nation Motor Sports v. Davis. Linking to an authorized public performance = violation of public performance right. [Totally wrong.]

Traicoff v. Digital Media. Are exclusive licenses sublicensable without the consent of the original licensor? 9th Circuit says no (Gardner v. Nike); this case says yes. An exclusive license as to one exclusive right is in the nature of a transfer, so you can further transfer it under 201(d)(1).

Phillips v. Pembroke Real Estate. This has to do with a waterfront park in Boston. They hired Phillips to do 27 sculptures for the park. There was a separate contract for him to do the stonework and accompanying metal. then the developer wants to change the park, removing the sculptures. Phillips sues under VARA, section 106A. He says it’s site specific art, so moving it would destroy it, violating the Act. Pembroke’s defense is the public presentation exception to VARA — modification which is a result of the public presentation of the work (like lighting and placement) is not actionable. The First Circuit concluded that VARA does not protect site-specific art at all.

Action Tapes v. Mattson. This is about rental rights. Rental rights apply to phonorecords and computer programs only. Rental businesses were really just subterfuges for piracy in certain areas. Action Tapes makes memory cards with embroidery designs on them. Mattson rented the memory cards to customers. The claim was that it was the rental of a computer program and that the rental right had been violated. The court held that Action Tapes had failed to prove that it had applied to register computer program copyrights before commencing the suit. But just because they failed to register on form TX isn’t a good reason to do this, because section 401(c)(1) says the classification doesn’t actually make any difference in terms of protection. As a practice note, other than for sound recordings, we don’t care which form you use. But in this case, the application claims copyright in 2D illustrations, not a computer program, so they lose.

Brilliance Audio v. Haights Cross Communications. This is also about the rental right. Are audiobooks “phonorecords” under section 109(b)? Well, they’re phonorecords, but 109(b) assumes they embed musical works, so audiobooks aren’t covered. The court turned to legislative history, finding that Congress intended to extend the rental right only to sound recordings of musical works. They also said some [nice] things about the strong policy behind the First Sale Doctrine and the traditional copyright bargain.

Wall Data v. Los Angeles County Sheriff’s Department. LA County bought 3600 licenses. There were 6000 computers, but only needed 3600 users for this software. So they made a master hard disk and imaged all of the 6000 workstations, with a password-based security system restricting the number of people who could simultaneously use the software. Wall Data sued; the County claimed fair use. The district court granted summary judgment for Wall Data; the 9th circuit affirmed. They marched through the factors. Critically, the court found that the effect on the market existed, since the department could have bargained for the right to install but not use the software on more computers, forcing the copyright holder to trust the department. The department also claimed a section 117 defense, and the 9th circuit affirmed. They said that the software was licensed, not sold, and that it wasn’t an essential step.

Bill Graham Archives v. Dorling Kindersley. DK used reduced images of 7 posters and tickets from Bill Graham’s archives. The book was published in collaboration with Grateful Dead Productions. There were incomplete negotiations to license the use. DK asserted fair use. The court said the use was transformative and some of them included commentary. They were used to document events, and were used only to enrich the presentation of facts, not to exploit the artwork by itself. Also, they were small portions of 7 pages of a 480-page book. The market factor looked only at the existing or likely licensing markets, not nonexistent or refused licensing markets.

Blanch v. Koons. Photos of feet and shoes incorporated by Jeff Koons in art.

Laws v. Sony Music Entertainment. It’s a 9th Circuit preemption case. Here’s the opinion. Laws didn’t have a state law publicity claim because the work was being used for its own essence, not because of who the artist is. The Supreme Court just denied cert, but only after keeping it on the conference calendar for six weeks.

Atlantic Recording v. XM. This is about the Pioneer Inno, which is a satellite radio and MP3 player/recorder. You only have them as long as you subscribe to XM. The record companies said it was a digital download delivery service; XM said it was like taping off the radio. XM moved to dismiss on the ground that it was immune under the AHRA. The court found that the Inno was a DARD, but that XM was not a distributor of a DARD, since they were also a broadcaster, “leasing” the music to the consumer. Looking beyond the sale of the device, the court found that XM was offering a service. Would the result have been different if there was no relationship between the seller of the devices and the broadcaster? I think so. [I think so too.]

Google v. Copiepresse. This is a Belgian case. It’s similar to the AFP v. Google case. Is taking the headline infringement? Doubtful. Is taking the first line infringement? Doubtful. There’s more going on here, as well, though. There are intermediate copies of the whole thing, and the Belgian court didn’t like that. This could cause problems in the AAP case. Failure to use robots.txt did not constitute consent (though it worked in the Field v. Google case).

Societe Plon v. Hugo. This involves unauthorized sequels to Les Miserables. It’s in the public domain, so that’s going on? Moral rights! In France, they’re perpetual, imperscriptable (no statute of limitation), and inalienable. They are, however, descendable! So Victor Hugo’s great great grandson brings suit. The French Cour De Cassasion holds that the derivative right is part of the economic rights, and that the economic rights have expired. There was no showing that the integrity right of the original was violated — it’s not as if you’re printing bowdlerized copies of the original.

I’m at the Copyright Office Comes to California program in San Jose. This post represents my impressions of the proceedings, not a direct quote or transcript. My comments are in square brackets. This is a copyright-wonk sort of event, so let me know in the comments if there’s something you’re interested in and don’t understand.

Now, Tanya Sandros on Music Licensing.

We expect House subcommittee hearings this month.

[She talks about the history of section 115 and the DPRSRA amendment.]

But back in 1995, there wasn’t a vision of how digital music now functions. iTunes is the model example of how we get DPDs, but there’s also webcasting, which has brought out a lot of unforeseen questions.

The key issue is the difficulty in licensing activities that implicate both the reproduction and the public performance right — for example, streaming. [Disagree! Streaming is just a performance, not also a reproduction!] There’s no easy way to clear rights for reproducing sound recordings as of now.

There are numerous problems with section 115 as it stands now, from the perspective of the users and the content holders. It’s hard to find copyright owners, the procedural requirements can be difficult to comply with, new technologies don’t always fit in the 115 scheme, and setting new rates (like percentage of revenue) is difficult.

There were numerous meetings with stakeholders. There was general agreement as to the need for a blanket license from a single agent. There’s no agreement on scope, controlled composition clauses, or self-licensing provisions.

The Office proposed a 114-style blanket license for all rights implicated through an “MRO”. [I talked about this here.]

This was not well-received; the parties took a different tack and got S1RA introduced. There’s a good fair use case that ephemeral copies are fair uses, but that doesn’t give the business community enough certainty. [This makes sense, but I’m still worried about licensing for ephemeral performances as evidence that Congress intends them not to be fair use.]

Then came the PERFORM Act. Would have changed all 114 rates to fair market value (including preexisting services), and would have exempted ephemeral copies, but also would have required 114 licensees to put DRM on their streams to prevent recording.

There’s also HR 5055, which has nothing to do with music licensing. It’s a sui generis fashion design protection. It’s like vessel hull protection. [It’s outrageous.] We didn’t endorse this bill. [Good.] We didn’t think the case had been made that there’s a need for the bill.

We’re unlikely to see this again, though the auto industry is pushing for protection.

I’m at the Copyright Office Comes to California program in San Jose. This post represents my impressions of the proceedings, not a direct quote or transcript. My comments are in square brackets. This is a copyright-wonk sort of event, so let me know in the comments if there’s something you’re interested in and don’t understand.

Maria Pallante, Deputy General Counsel, is up to talk about orphan works.

Orphan Works are works for which the copyright holder cannot be located.

[She discusses the history of the process, starting with the January 2005 congressional request for an inquiry and proceeding through NOI, comments, and the Office’s report.]

[She summarizes the Copyright Office’s recommendations and the Orphan Works bill.]

Almost everyone in the content industry liked the proposal, with the major exception of photographers and graphic artists, on whose works identifying information is not frequently present. They also said that this would increase the cost of enforcement.

Lamar Smith sponsored closed negotiations for four or five weeks before introducing the bill.

The 2006 bill was a bit different from the Office recommendation.

Now, in the 110th Congress, a bill will be forthcoming in the Senate in March or April of 2007. Similar but not identical to the House bill.

Continued points of interest:

• Reasonably diligent search — how to make it meaningful?
• How to define best practices
• Effective date
• Small claims study
• Limits on injunctive relief

I’m at the Copyright Office Comes to California program in San Jose. This post represents my impressions of the proceedings, not a direct quote or transcript. My comments are in square brackets. This is a copyright-wonk sort of event, so let me know in the comments if there’s something you’re interested in and don’t understand.

John Ashley is talking about the nuts and bolts of registration. These notes are pretty incomplete.

Fixation must be in a form from which someone might unlawfully copy. [I’ve never heard the requirement stated this way before, and it strikes me as incredibly sensible.]

The Office’s public information office is 202-707-5959, for questions from the public. There are also numbers for sections of the examining division for difficult, specific questions about registrations that can’t be answered by the public information office. Literary works section: 202-707-8250. Performing arts section: 202-707-6040. Visual arts section: 202-707-8202.

Why register? Well, the usual things (prima facie validity, statutory damages, attorney’s fees), but also the Customs Service requires registration before they’ll help you stop infringing importation. Also, 205(c) says there’s constructive notice of the facts contained in recorded documents (not the registration itself, which is covered by 410(c), which says there’s prima facie evidence of the facts in the registration as well as its validity).

Best practices. Avoid section 102(b) terms (categories excluded from copyright, like processes and styles) or anything synonymous. Do use terms from 101, 102(a), and 103. Avoid trademark and patent terms (novel, look and feel, etc.).

Examiners make decisions about close calls for works that might be too short or otherwise containing no authorship according to a “rule of doubt.” If it’s very close, the registration issues, unless it implicates some special public policy from 102(b). “We try to register your work.”

Works for Hire. We accept your assertions regarding corporate authors. But when an individual is named as the author and it seems a commissioned work is involved [which is usually not actually a work made for hire], we ask questions. There end up being a lot of corrections to these, so we try to head them off. Compare CCNV v. Reid with Aymes v. Bonelli, 980 F.2d 857 (2d Cir. 1992). We rely on Restatement 2d of Agency section 228 to decide whether they’re an employee. The best case on this sort of thing is Avtec Systems v. Peiffer, 21 F.3d 568 (4th Cir. 1994).

Alternative names for author or claimant. Don’t give multiple names for a single legal entity without explaining the relationship between those names. Explain using d/b/a, a/k/a, t/a (”trading as”), new name after merger, etc. Avoid designating separate legal entities as alter egos. Don’t list licensees as claimants (unless they’re an exclusive licensee filing the application.)

Derivative Works. Declare preexisting materials. It’s good to do it even if you’re borrowing even a very small amount. Especially if you have permission, you ahve to declare it. The statute says in 409 that you always have to declare and doesn’t say amount (including de minimis). We think it’s a rule of reason. When describing the new matter, be specific rather than general to facilitate examination.

Computer-aided changes to existing works. This is a problem across all subject matter. Inherently suspect terms include enhanced, digitized, scanned, cropped, burned, cleaned up, restored. These are references to craft, not authorship. We need to know what new protectible authorship resulted from these techniques. We think this sort of thing is presumptively sweat-of-the-brow, not creative authorship. You have to explain. Arguably, some photo restoration could be copyrightable (putting in missing bits, for example) — but mere copyists don’t get copyright.

Characters. We don’t register characters. We register works in which characters appear. Courts have to decide when a character is developed enough to be separately protectible.

Architectural Works. We refuse all claims created on paper before 12/1/1990 but not constructed until after 12/31/2002. This is statutory. We refuse interior design claims. The interior architecture is protected but not the interior design, says the legislative history. We don’t register selection and arrangement of rug to table to lamp, even if you claim them as compilation. The resulting “compilation” just doesn’t fit in 102(a). [That is such a cool issue. I never thought of that.]

Websites. The web designer frequently doesn’t own the content, but tries to register the overall site. We frequently send correspondence. Our current rule is that we don’t register screen format, layout, or functional design. (This may change.) If it’s only the spatial arrangement of content on the page, we reject that. This is from ML260 on book design. You have to disclaim preexisting materials. Published or unpublished? Still unresolved — you decide, just apply as if it’s one or the other and make sure you meet the requirements. We’re not challenging that decision. How to register a database or blog depends on the site’s organization. There are circulars (62 and 65) about this sort of thing.

Supplemental Registrations. You can “correct and amplify” on form CA. Always include the original certificate. This can only happen if we’ve already issued the original registration. Explain what’s going on. See whether you need to change the WMFH or transfer fields if you’re correcting the author claimant fields. If there’s an ex-post change to the facts, you have to record a document, not correct the registration.

Cancellations. Only the reasons in 37 CFR 201.7 work. Nothing else. You have to specify which reason. If the court tells the owner to cancel, then the party has to come to us. No third party cancellations, and there’s no interference proceeding.

I’m at the Copyright Office Comes to California program in San Jose. This post represents my impressions of the proceedings, not a direct quote or transcript. My comments are in square brackets. This is a copyright-wonk sort of event, so let me know in the comments if there’s something you’re interested in and don’t understand.

David Carson is talking about Copyright Office reengineering.

The registration system is changing — you’ll be able to e-file and in some circumstances upload digital works as deposits. The fee will go down to $35 for electronic filing.

Preregistration is currently a stripped-down version of what actually will happen with the eCO system. (He demos it.)

There will be an optional “description” field. Our experience with orphan works showed us that there are lots of works without titles — most photos, for example. So this helps fix that. The descriptions will be searchable.

[He walks through a preregistration. It’s pretty slick. You can pay online.]

eCO for online registrations should launch this summer.

Also, you’ll be able to attach unpublished works to the application and upload them online. That will be true with some published works, but not all that many; there’s the Best Edition Requirement, of course.

If you have to send in a deposit, it’ll tell you where to send it and you’ll print out a piece of paper with a bar code and associate the hard copy deposit with the online application.

Section 108 Study Group. (108 is library exemptions.) There’s a study group to evaluate 108 in the context of new technologies — “born digital” works, etc. Content owners will be affected. You should follow this study group — there’s interesting background and papers written. There will be a recommendation for legislative activity at the end of the year.

I’m at the Copyright Office Comes to California program in San Jose. This post represents my impressions of the proceedings, not a direct quote or transcript. My comments are in square brackets. This is a copyright-wonk sort of event, so let me know in the comments if there’s something you’re interested in and don’t understand.

First up, Copyright Office General Counsel Tanya Sandros discussing “Current Copyright Law and Policy Activities of the Copyright Office.”

We’re conducting a study, at Congress’s request, on SHVERA, the satellite compulsory licensing law. There will be a Notice of Inquiry in March; the report is due to Congress on June 30, 2008. There are also rulemakings on a number of issues — how to determine where the “headend” is, retransmission of digital broadcast signals, etc.

We now have a Copyright Royalty Board. This is different from CARPs in that the CRJs do not report to the Register or the Librarian. They just issued webcasting rates. We at the Copyright Office no longer have much to do with this, so complaining to us won’t get you anywhere; we just get to review the decision for legal interpretations. We can’t change the rates. They’re required to refer all novel questions of law to the Register for her interpretation. There were two. First, the RIAA asked whether a “mastertone” (audio file ringtone) was subject to section 115. (She plays a mastertone and a crappy polyphonic ringtone “Get Off Of My Cloud” by the Stones.) Is a “mastertone” a DPD, they asked? Yes. Does 115 apply to portions of works? Is a ringtone a derivative work? If so, does it take it outside the scope of section 115? (She plays the Pussycat Dolls “Don’t Cha wanna pick up” mastertone.) Happily, we didn’t have to grapple with individual fact questions like this. If it’s a derivative work, it’s outside 115, unless it’s in the safe harbor of the arrangement provision, 115(a)(2). The publishers argued that excerpting and using as a ringtone change the character of the work and bring it outside the arrangement provision. But type of use isn’t “character” — it really just goes to the melody. The lyric question is a derivative work question. [This wasn’t really clear to me.] Also, once a publisher licenses to one party for ringtone use, that’s a first publication for 115 purposes, and everybody else gets to license it anyhow. The Publishers challenged the decision in the D.C. Circuit — probably too early, since review is only possible after the CRJs issue a decision. The Copyright Office’s motion to dismiss is before the court.

Another novel question was about section 114 — digital retransmission. This dispute was about what’s a “preexisting service” under section 114. DMX and Sirius are the ones at issue. It’s defined in 114(j)(11) — you have to have been making transmissions to the public for a fee before July 31, 1998. The new guys got “fair market rate,” the preexisting guys got a rate scheme similar to the 1995 law. DMX is under new ownership; Sirius replaced Muzak (a preexisting service) on DiSHNetwork. Is either a preexisting service? It really depends on questions of fact, so it got flipped back to the CRJs.

Now, David Carson on the anticircumvention rulemaking. This was the major task in the general counsel’s office last year. It’s a rulemaking that creates exceptions to 1201(a)(1)(A). There were a number of exceptions — law enforcement, certin reverse engineering, and so on. But also, they ordered this rulemaking for unforeseen legitimate circumstances for circumventing access controls. The prohibition does not apply when you are circumventing works in particular classes in order to engage in noninfringing uses. To grant an exemption, we have to conclude that people are or are 50%+ likely in the next three years to be adversely affected. We consult with the assistant secretary of commerce for comunications and information and get input. There are four statutory factors the Librarian “shall examine.” It includes a catchall. This is the biggest rulemaking we engage in, and the most important in terms of its consequences. A good application has facts (I’m being prevented from doing X) and law (X is not infringing because of Y and Z). The comments and witnesses have gone down considerably in number — who knows why. My hypothesis is that in the first rulemaking proceeding, people were very worried about this law, and that owners would be overbearing with their access controls. The statute wasn’t in effect yet, but we got a lot of sky-is-falling scenarios. The sky has not yet begun to fall, and maybe people are beginning to realize that. Other people may have other theories, but that’s what I take from it. You can’t define a class of works by reference to the user or by reference to the type of use. A class of works is based on the attributes of the work itself. You start with the section 102 classes, then narrow from there. “Motion pictures distributed on DVDs protected by CSS,” for example. The proposer of the exemption bears the burden of proving substantial adverse effect on noninfringing use.

Exempted classes:

• Media studies professors’ use of audiovisual works. This doesn’t fit with the analysis I was just talking about. How could we do that? we found ourselves in a dilemma. They showed us what they do — integrating film clips into their classroom presentations. The MPAA guy brought in a fancy Pioneer player that you can preprogram to go to certain places on DVDs, but that still requires a ridiculous amount of disc swapping. The MPAA guy had, last time, showed how to camcord movies off the screen. But the film professors need to talk about technical aspects of cinematography, and the quality of camcorded clips just didn’t cut it. We were persuaded that these particular people had made the case and granted the exemption, balancing the need against the potential for harm to copyright holders. (”Imagine — if it weren’t for CSS, you might find movies on P2P networks!,” he jokes.) We unnecessarily hemmed ourselves in last time by refusing to refine types of works by users and uses. [So if you start out with a 102 class, you can then use users and uses to tailor the exemption to fit the harm presented.] My guess is that we may have opened up Pandora’s box and we’ll get narrow exemptions that make the decisionmaking process harder in the next rulemaking.
• Computer programs in obsolete formats for the purpose of archival preservation. This is the Internet Archive’s exemption request, similar to one they got last time. More narrow — it’s just for archivists, not for everybody. They may narrow the exemptions to meet the facts presented to the Office.
• Obsolete programs protected by malfunctioning dongles. You should be able to circumvent to use the software you’ve already paid for and have a right to use.
• Decrpyting ebooks in order to use screen readers. Hearing ebooks is a noninfringing use, and nobody could really tell us why ebook publishers disable this. The proponents made a very weak case this year. Hopefully three years from now they’ll get the point. You have to make the case anew each time.
• Cell phone unlocking. [Go Jennifer!] Tracfone had sued people who circumvented and obtained settlements. It’s hard to conceive of how reprogramming your phoen to move to another carrier could be copyright infringement. Representatives of cell phone companies did not come forward. Skepticism was expressed by traditional copyright holders, but that’s all. It was almost like a default judgment situation. They’d made their case, there was not much opposition. We got submissions, late, from the wireless industry — CTIA and Tracfone, answering the questions we had asked of other people and making their case that we shouldn’t grant the exemption. Our ruling was due soon thereafter. They didn’t try to explain their lateness or didn’t tell us anything satisfactory. We didn’t accept their comments and issued the rulemaking. They filed suit; we moved to dismiss; the pleading cycle just ended. Their claims in the litigation are that we violated the APA; we replied that the Librarian’ isn’t covered by the APA. They claimed that this was an unconstitutional delegation because either (1) it’s a legislative function or (2) it’s an executive function. They also claimed we violated their due process rights by not permitting them to show up at the last minute. I’m hopeful that the court will dismiss the suit; if not, we’ll see what happens.
• There was an exemption to get rid of “the notorious Sony Rootkit.” When an access control is threatening to do harm, you can circumvent it if necessary to get rid of the security threat.

HR 1201. Also known as the FAIR USE Act. Section 3 of the bill would codify the exemptions from the current rulemaking and freeze them into statutory law. That’s sort of flattering, isn’t it? Our reaction is that the point of the 1201 rulemaking is to deal with today’s problems — exemptions designed to last only three years, after which we take another look. Freezing these may not be the best way of doing things.

Kahle v. Gonzales. One after another, these Lessig cases have been dismissed. Kahle is the most ambitious, since Lessig wanted the 1976 Act declared unconstitutional. Basically, the overview of the position was this. The legislation, Lessig says, has transformed copyright law from “opt in” to “opt out,” and that’s a change to the “traditional contours.” These are policy arguments “that many of us, I’m sure, would be sympathetic to,” but which aren’t constitutional defects. “Traditional contours” in Eldred are just fair use and idea/expression. The 9th Circuit gave “very short shrift to his arguments” in an opinion that “didn’t say a whole lot.”

There was also Luck’s Music, Martignon (appeal pending), KISS Catalog (reversed on reconsideration), Golan (appeal pending), Darden v. Peters.

This will be useful to almost nobody, but someone on SFist asked about it, so here it is.

This is a Python CGI which grabs and parses the XML bus prediction data from NextBus.com for the San Francisco Muni. I wrote it so I could have easy mobile access to certain bus lines (including my beloved 21-Hayes) for which data wasn’t otherwise easily accessible. It doesn’t work for that anymore; it only works for bus lines for which the data is easily available on NextBus.com. (Apparently the rest of the bus lines will be available soon.)

Anyway, this is likely to be of some use to people who want to do cool SOAP web services stuff with the Muni bus prediction XML data. Right now it’s a CGI that provides a really light fast web interface for the prediction data, but it could pretty easily be hacked into a command line prediction script or a widget or a much slicker web interface. It’s licensed under CC-BY. Here it is:

NextBus Python Script