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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.