joegratz.net

Today, Google, the Authors Guild, and the Association of American Publishers announced the signing of a settlement agreement in the ongoing copyright litigation over the Google Library Project.

I’m proud to be a member of the legal team representing Google in this matter.

Class members can get information about the settlement here, and members of the public can get more information from Google here.  If you’re looking for more detail than those sites provide, the proposed class notice (39 page PDF) goes into greater depth, as does the brief in support of plaintiffs’ motion for preliminary settlement approval (48 page PDF).  And if you’re interested in the real nitty gritty, the proposed settlement agreement is available here.

Judge Neil V. Wake of the District of Arizona today issued this opinion in one of the RIAA file-sharing cases, Atlantic v. Howell.  The RIAA had argued that even though there was no evidence that the defendant’s file sharing software had ever actually sent out any infringing files, the fact that the defendant made those files available for download was an independent infringement of the distribution right, 17 U.S.C. 106(3).  Some courts have (erroneously) so held, but Judge Wake rebuffed the RIAA’s attempt to lower its burden of proof:

The court agrees with the great weight of authority that § 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public. The statute provides copyright holders with the exclusive right to distribute “copies” of their works to the public “by sale or other transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 106(3). Unless a copy of the work changes hands in one of the designated ways, a “distribution” under § 106(3) has not taken place. Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder’s exclusive right of distribution.

Much of the credit goes to an outstanding amicus brief filed by Fred von Lohmann of the EFF.

Techdirt has a post on a rather triumphal press release put out by a law firm claiming that “[t]he US District Court for the District of Idaho has found that copyright law protects a lawyer demand letter posted online by the recipient.” That’s one way of interpreting the judge’s ruling, but I don’t think it’s the right way.

Here’s what happened. An anonymous poster (”Tom Paine”) said some things on a message board that a company called Melaleuca didn’t like. Melaleuca’s lawyers sent a letter to the message board’s administrators asking them to take down the posts to which they objected. Then, a second anonymous poster (”d2″) posted Melaleuca’s cease-and-desist letter to the message board.

Melaleuca wanted to know Tom Paine’s identity so that they could take some action against him. But bringing a John Doe lawsuit would be expensive and time-consuming. Then Melaleuca had a clever idea: because section 512 of the Copyright Act allows pre-litigation subpoenas to uncover the identities of anonymous online copyright infringers, they could get Tom Paine’s identity by (1) accusing d2 of infringing the copyright in their cease and desist letter, then (2) claiming that d2 and Tom Paine were the same person.

Well, it almost, sort of worked.

They were successful in getting d2’s identity, because the court found the test for issuance of a section 512 subpoena to be a lenient one: If the Copyright Office issues a registration, the court found, that’s all the copyrightability analysis a court must undertake in order to enforce a pre-litigation subpoena under section 512. The court did not say that the C&D letter was copyrightable, or that posting it was not fair use. Instead, the court merely said that Melaleuca had met the low bar of showing a prima facie case of infringement. As the court put it:

[T]he Court will not go into an in-depth analysis of the merits of a copyright infringement claim in determining whether to quash this subpoena. It is sufficient in this instance that Melaleuca has registered the Sheppard Letter with the Copyright Office.

Unlike the Patent and Trademark Office, the Copyright Office (for various very good reasons) does not perform an in-depth examination of each registration. As the lawyer who put out the press release notes, “a US copyright registration is usually ‘rubber stamped’ and obtained on an expedited basis in about five business days.” Close cases, such as an attempt to register a virtually purely functional work such as a legal demand letter, usually result in the issuance of a registration, the validity of which is later contested in court. The district court in this case decided that the validity of the copyright should be determined after the plaintiffs actually filed their lawsuit for copyright infringement. It did not, as the press release implies, make a conclusive determination of copyrightability.

Melaleuca was thwarted in its ultimate goal of unmasking “Tom Paine.” The court found that Melaleuca had presented insufficient evidence that “d2″ and “Tom Paine” were one and the same, and quashed that portion of the subpoena which sought Tom Paine’s identity. (The edited version of the decision on the web site of the lawyer who put out the press release conveniently leaves that part out, but it makes up a substantial part of the court’s decision, which is available here.)

In an opinion published today in Leadsinger, Inc. v. BMG Music Publishing, the Ninth Circuit held that Leadsinger’s karaoke devices, which contain copies of lyrics for display on a TV screen, are not eligible for a license under 17 U.S.C. 115 because they are “audiovisual works,” not “phonorecords.”  This holding is the same as the Second Circuit’s holding on the same question in ABKCO Music, Inc. v. Stellar Records, Inc. 96 F.3d 60, 65 (2d Cir. 1996). This means that companies marketing karaoke versions of songs, when they display the lyrics, must separately negotiate licenses with the relevant music publishers rather than relying on the statutory license that would be available if the karaoke versions were marketed without the ability to simultaneously display lyrics.

Perhaps more interestingly, the court affirmed the dismissal with prejudice of the plaintiff’s declaratory judgment claim asserting noninfringement based on the fair use doctrine.  The court held that resolving the fair use inquiry on a motion to dismiss is proper when the facts alleged in the complaint, if true, resolve the fair use inquiry.

The world has a new good cause. A group of writers and academics with ties to the fanfic community has founded the Organization for Transformative Works.  As befits an organization with its roots in a deeply postmodern art form, the organization is a bit of a pastiche: part EFF, providing legal support to the fanfic community; part Participatory Culture Foundation, creating and disseminating software that furthers its policy goals; and part academic society, publishing a peer-reviewed journal on “fanworks and practices.”

I’m exicted to see what they do. They’re certainly well-represented on the legal side, as Rebecca Tushnet, the leading legal scholar on fanfic, is on the organization’s founding board.

As commented upon by Michael Madison, the Romantics have filed suit against Activision, alleging that the version of “What I Like About You” included in the Guitar Hero Rocks the ’80s video game (for which Activision got a license from the songwriters) sounds too much like the original recording.

In their complaint, available here as a PDF, the Romantics allege three counts: violation of the right of publicity, a somewhat vaguely outlined Lanham Act claim, and unjust enrichment. They can’t allege copyright infringement, since the defendants licensed the underlying musical work, and the copyright in a sound recording does not extend to recordings that merely consist of sounds that “imitate or simulate those in the copyrighted sound recording,” under 17 U.S.C. § 114(b).

The publicity claim would seem to turn on whether the Michigan common law right of publicity protects against vocal impersonations, as the Ninth Circuit held California law did in Midler v. Ford Motor Co. – and whether the court feels like having another crack at the thorny preemption issues raised by the interaction between such a common-law right and Section 114(b) of the Copyright Act.

UPDATE (20 December 2007): The Detroit Free Press reports (via Bill Patry) that the Romantics’ motion for preliminary injunction was denied. No written opinion is available as of this writing. The denial of a preliminary injunction doesn’t mean the case is over, only that Activision can keep selling the game while the suit is ongoing.  Perhaps the court felt that pulling Guitar Hero off the shelves this holiday season would cause too much strum und drang.

Yet another “reconstructed copyright deposit leads to great sorrow” case, this time from Puerto Rico, via the First Circuit Court of Appeals: Fernando Torres-Negrón v. J&N Records. (Via Bill Patry.)

Judge Ponsor of the District of Massachussetts has decided Mass MoCA v. Büchel, a case featuring the thrilling combination of an improperly-bisected house, a suspended spider-hole, and a huffy Swiss artiste.

The story, in brief: Christoph Büchel is an installation artist. Mass MoCA, an art museum, commissioned Büchel to create a large installation. Büchel worked with museum staff to physically create the artwork. When the work was nearing completion, Büchel left the project, maintaining that the museum was unwilling to adequately fund the project. (Incidentally, the piece itself seems pretty brilliant, if a little overtly polemical; it’s called “Training Ground for Democracy,” and presents a manufactured vision of American life featuring the above-mentioned house, through which a cinder-block wall was constructed, apparently in the wrong place, and the spider-hole, which was supended in the air, apparently against the artist’s wishes.) Museum staff continued their work for a while, based on their best guess as to what Büchel would have wanted — at least until relations between Büchel and the museum turned permanently icy.

So the museum was left with a garden-variety breach-of-contract case — and with a hangar-sized gallery full of an almost-finished installation. What to do with it?

The museum wanted to exhibit the unfinished work as an unfinished work, explaining the circumstances of its creation, but not calling it a work by Christoph Büchel. The artist wanted it destroyed, and wanted damages for the museum’s “mutilation” of the work (by working on it after he left the project).

The key legal issue here is the interpretation of the Visual Artists’ Rights Act, a statute situated within the Copyright Act but having nothing to do with copying. VARA protects certain one-of-a-kind or limited-edition “works of visual art” from misattribution, intentional mutilation, or (if the work is one of “recognized stature”) intentional destruction.

So, interesting questions arise: is it possible to “mutilate” an artwork that isn’t even finished yet? Is it misattribution to show an unfinished, unattributed artwork, when many in the audience already know who the artist was? Is a museum staffer “mutilating” an artwork when he modifies it under the artist’s direction? When he modifies it against the artist’s wishes, but from the artist’s own drawings? When he modifies it without direction from the artist but believing, albeit mistakenly, that he is realizing the artist’s vision?

These were the issues before the court in Mass MoCA v. Büchel. Büchel’s brief is here; the museum’s brief is here. They make for interesting (if occasionally needlessly vitriol-filled) reading.

Sadly, there’s no written opinion — the judge ruled from the bench on Friday. But we know from the notice of appeal to the First Circuit that the judge held in favor of Mass MoCA, holding the Visual Artists’ Rights Act (and, apparently, the Copyright Act) inapplicable to Büchel’s installation. It’s too bad the details are so sketchy. I’d really like to know how the judge reached the conclusion that the Copyright Act, which covers any expressive, tangible work, didn’t cover a warehouse-sized sculpture, which — whatever else it is — is certainly tangible and certainly expressive.

I find it easier to swallow the idea that the VARA might not apply. The statutory language just doesn’t tell us what to do about unfinished works. Büchel tries to import a concept from general copyright law: because a work is copyrighted if it is fixed in a tangible medium of expression, whether or not it is finished, Büchel argues that the VARA applies to all works of visual art, whether or not they are finished. But, as the museum argues in its brief, this leads to absurd results. The VARA rights are waivable only in writing, not orally, so if VARA applies to unfinished art works, it’s hard to see why an assistant who modifies the work at the artist’s direction wouldn’t be liable. A reading of VARA that causes it to apply only to art works that have been declared finished by the artist would seem to fit with legislative intent; after all, it requires that limited-edition works to be signed by the artist, something that’s generally done to signify that a work is finished.

While I don’t think Büchel ought to be able to use copyright law (or a copyright-like law like VARA) to prohibit the exhibition of the unfinished work, I do think that the museum is making a mistake. As many have pointed out, norms are more important than laws in the art world, and by pressing the legal question, the museum may be disregarding the moral one.

At any rate, I expect a fascinating opinion out of the First Circuit. Continuing coverage is likely to be found on The Art Law Blog, written by Donn Zaretsky, who was responsible at least in part for Büchel’s excellent (if unsuccessful) summary judgment brief.

Yesterday, a unanimous three-judge panel of the United States Court of Appeals for the Tenth Circuit awarded a major victory to the public domain in Golan v. Gonzales.

In 2003, the Supreme Court ruled in Eldred v. Ashcroft that a copyright law could be reviewed under the First Amendment as a restriction on speech only if it constitued a change to the “traditional contours of copyright protection.” Yesterday, the Tenth Circuit ruled that the permanence of public-domain status is such a “traditional contour” — that is, when something enters the public domain, we expect it to stay there. Accordingly, the 1994 Uruguay Round Agreements Act (URAA), which granted “restored” copyright protection to a large number of works in the public domain that had been created outside the United States, was a change to that traditional contour, and required review as a restriction on speech.

The court reached its decision by careful attention to history. The government’s best argument was that Congress had pulled works from the public domain several times in American history, so no “traditional contour” had been changed. The court conducted a detailed analysis of each of those (rather obscure) historical situations, such as wartime copyright laws enacted in 1919 and 1941 which excused authors’ inability to comply with copyright formalities due to wartime shortages and disruptions. The court found that each was by definition an unusual event prompted by exigent circumstances, and that such temporary enactments did not set copyright’s “traditional contours.” The court took an even more scholarly approach to the question of whether the 1790 Copyright Act, which was the young nation’s first copyright statute, removed works from the public domain in certain states which did not have copyright laws up until that time. Reviewing a number of primary sources and law review articles, the court found that it was “probably not just unclear but also unknowable” whether the first Congress thought it was removing works from the public domain due to the scarcity of historical evidence.

The Tenth Circuit remanded the case to the district court. Its instructions on remand are a little curious. It asks the district court to determine whether the URAA is a content-based or a content-neutral restriction on speech. I’m not sure why, for two reasons. [UPDATE: I want to emphasize that I think the court was right to reach this analysis, since it found that the URAA was subject to First Amendment scrutiny. I’m just not sure why it needed to remand on these grounds rather than deciding that the regulation was content-based, anouncing the proper standard, then remanding.] First, whether a law is content-based or content-neutral ought to be a pure question of law; there aren’t any facts to find, so I’m not sure why the district court gets first crack. Second, I can’t imagine a way to find that any copyright law is content-neutral. If I stand on a soapbox in the middle of town and recite a certain poem that begins “Shall I compare thee to a summer’s day?,” the law does not punish me. If I stand on the same soapbox and recite — at the same volume, in the same tone of voice — a different poem that begins “Oh baby baby, how was I supposed to know?,” the law punishes me. That’s the very definition of a content-based restriction. We’ll see what the district court does.

Or maybe we won’t. The government can petition for certiorari before the case gets remanded. Because of the Ninth Circuit’s decision in Kahle v. Gonzales, there’s now a circuit split regarding how courts decide when a law has changed copyright’s “traditional contours,” making Supreme Court review more likely. A chance for the Court to revisit its “traditional contours” comment could be a great boon to culture, or might shut off all future opportunities to place First Amendment limits on copyright laws.

This ruling is an extremely satisfying development for me personally. During the summer of 2004, I worked on the Golan case with Larry Lessig, Elizabeth Rader, Colette Vogele, and Chris Sprigman. I had the chance to do some of the factual, legal, and historical research that supported the plaintiffs’ claims. I’m proud of the work the team has done since the case was filed back in 2001, and hope that this victory is only the first.

On this week’s Technology Liberation Front podcast, a number of IP luminaries discuss the UMG Recordings v. Augusto case, in which an eBay seller is defending against a copyright infringement claim based on his resale of “promotional” CDs given away by UMG.

Full disclosure: I’m proud to be a member of the team representing Mr. Augusto.

On July 17, Chief Judge Spencer of the Eastern District of Virginia issued an opinion in Tavory v. NTP. This case is a follow-on to the NTP v. RIM patent litigation, and features a number of copyright claims by Tavory, alleging that he had written some of the software at issue. The patents in suit contain source code that Tavory claims to have authored, and Tavory claims that the reproduction of the patents themselves is copyright infringement.

Tavory had a problem, though. He hadn’t registered his copyrights at the time he wrote the software, and no copy of the relevant version of the software existed. Copyright registration, a prerequisite for an infringement suit, requires the deposit of a copy (although in the case of software the requirements are very odd). So what did Tavory do? He tried to reconstruct, from memory, what the relevant version of the source code would have been, and deposited the result.

Turns out you can’t do that.

In explaining why, Judge Spencer sets forth the following gorgeous passage on the doctrinal necessity of the deposit requirement:

In one sense, the deposit requirement serves a gatekeeping function. Effective registration of a copyright is predicated on the submission of some objective indicia of an individual’s authorship. In another sense, the requirement serves an evidentiary function. The copies that are submitted in connection with an application for registration then become part of a record by which claims of infringement are tested. The utility of these functions, as well as our confidence in the integrity of the copyright system, breaks down when recollection is tolerated. That is because memories are inherently unreliable. They are susceptible to influence and subject to change. Time is especially corrosive, and the more time that passes, the more our memories fail. These are simple facts of life, and the Copyright Act deals with these facts by not dealing with them at all. For the purpose of the deposit requirement, the degree to which the registrant relied on his memory does not matter. The Copyright Act does not countenance the validity of any deposit copy that was made with even the slightest reference to recollection.

Accordingly, the court held that Tavory’s copyright registration was invalid, and that the court lacked subject matter jurisdiction.

But the lack of subject matter jurisdiction didn’t keep the court from saying a number of other smart things. The most interesting relates to the copyright “litigation privilege” — the relatively ill-defined idea that infringement that occurs in the course of litigation is sometimes not actionable, either as a fair use or under some independent equitable doctrine. Tavory claimed that NTP’s reproduction of the patents-in-suit in connection with the litigation itself constituted infringement; NTP asserted that copying incident to litigation was fair use.

The court found that NTP’s copying was fair use, holding that, while a categorical rule might be inappropriate, “where, as here, the works produced before the Court are material to the litigation, and where the party offering production of the work has done so without notice or knowledge of another’s claim to copyright, the equities are in favor of fair use.” That would seem to cover nearly all of the prima facie “infringement” that goes on in the course of litigation, and provides needed guidance in a tiny, seldom-litigated corner of copyright law.

UPDATE: My initial post failed to recognize that this opinion contains one of the finest sentences in the Federal Supplement 2d:

In 1993, MTV aired Beavis and Butt-Head, an animated series that centered on two Texas teens and their penchant for petty vandalism, music videos, and “chillaxin’.”

Wondering why it’s relevant? See Kodadek v. MTV Networks, 152 F.3d 1209 (9th Cir. 1998), in which the plaintiff deposited with the Copyright Office drawings he made in 1993, after seeing the allegedly infringing TV show. The plaintiff asserted that the drawings were just like ones he’d given to Mike Judge, Beavis auteur, in 1991.  Turns out you can’t do that.

I’m at the Business Success Using Open Source Software panel at the ABA Annual Meeting in San Francisco. The participants are:

• Katherine Spelman (moderator, Cobalt LLP)
• Pam Samuelson (Boalt Hall)
• David Kappos (IBM)
• Karen Copenhaver (Choate Hall & Stewart; fmr. GC, Black Duck Software)
• David Marr (Sun)

As with all of my liveblogging, these are my impressions of the proceedings and are not for attribution to the participants, and certainly not to me.
David Kappos:

OSS has come a long way in the 20 years it’s been on the scene. It started as a set of programming tools put out by the FSF; we lawyers eventually came to understand and like the GPL, turning copyright law into a tool of inclusion rather than exclusion.

OSS has now grown in an amazing way; there are more than 150,000 OSS projects, dozens of license agreements, Wikipedia, world-class programming tools, Firefox, Linux, and a myriad of business models that make OSS as a development paradigm not only profitable but preferred.

We can’t find a software start-up in the Valley that isn’t using OSS. If you don’t think your clients are using OSS, you have a surprise coming.

And now governments are permitting and even mandating the presence of OSS in their bidding processes.

This brings us to some questions: How does business get profitably conducted around free software? What are the roots of OSS? Can it apply to other fields? Why haven’t other fields adopted open development models? How does the OSS model that works so well for copyrights work for patents? What are the limits of the OSS model, and what’s coming in the future?

A number of business models have emerged around OSS:

• Support and service. This is the Red Hat model. Software is distributed under an OSS license, with services offered for a fee.
• Building block model. This is the TiVo model. Companies are using OSS as a component of their business — embedded Linux, etc.
• Add-on solutions model. This is the IBM model. Using OSS (typically Linux) and offering solutions that build around that and integrate it into larger situations. This is an extremely successful business and scales well.
• Proprietary extension model. This involves developing proprietary software that links to OSS in conformance with the GPL, then donating that proprietary software to the community as its competitive advantage fades. IBm does this with WebSphere.

Most of those business models leverage shared infrastructure. This is all about avoiding spending money on unproductive effort and spending it close to customers’ needs.

Can this work outside of software? Yes. IBM instituted an organization called power.org, where we put a giant amount of architecture information about the power architecture (which is a microprocessor architecture) into the public domain. It’s working: there’s a vibrant community.

What about pharma? An organization called CAMBIA in Australia licenses bio innovations under open principles.

And it works for information, too: Wikipedia and, indeed, the GPL3 process itself. Open development will work wherever there is commonality of problems, opportunity for profit or reputational gain from contributions, and call for open standards for interoperability.

It can work for patents as well as copyrights. IBM donated 500 software patents for free use in OSS. We wanted to make patents less threateing to OSS — and even a tool to promote OSS. Many other companies, including OBM, have announced more pledges since then. Then there was the formation of OIN. Google just joined as a licensee. This is rationalizing the discoursein the OSS/patent area.

Also, Peer-to-Patent is bringing the two areas together. It’s allowing experts from all over the world to submit and comment on prior art. It’s apparent that this is going to be the wave of the future — “the USPTO meets the 21st century.”

So what about efforts to capture the millions of lines of OSS as prior art? We’ve been working on that — there’s lots still to do, but the idea is to categorize the code by patent classes so that they can easily be used by patent authorities.

OSS is on its way to turning patents to a positive force for OSS.

OSS is going to continue to flourish and grow in areas other than software. We had a CodeJam to help solve major world problems, and taking the IP stress out of the system allows people to collaborate better.

OSS is here to stay; it will grow; it will spread to other problems. It is showing that, like copyrights, patents can not only coexist with OSS but fuel its growth. The OSS model with thrive alongside proprietary development, and will create plenty of legal issues along the way.

Pam Samuelson:

I’ll be talking about OSS and competition. I got interested in this when I taught a class with Mitch Kapor. I’ve also written a paper on it.

Two perceptions:

• Proprietary software and OSS are in a deadly war, and one will strangle the other. (This is hyperbole. Eben Moglen writes about “triumph” over proprietary software; Craig Mundie writes similarly harshly about OSS. Pay no attention.)
• FOSS is hostile to IP. (This is also false. Some people who like OSS are also hostile to IP, but nothing inherent in OSS is outside the standard IP narrative.) The specifics of the license don’t matter that much to the developers. It’s a social constitution, a social norm. Not only will you get sued if you violate the license, but you’ll be shunned — and that’s sometimes worse.

I agree with David that FOSS and proprietary software can coexist in the same products, and will increasingly do so. Also, there are some sectors where one or the other will just prevail: avionics software will probably always be mostly proprietary.

But some places, there is head-to-head competition. IE v. Firefox. Linux v. various server OSes. You get more innovation in such situations, and that’s great. Firefox is driving innovation in IE, and vice versa. MySQL has put price pressure on Oracle. And so on.

OSS has significant development advantages: spreading out common work, a supportive community, and it can be (though it is not necessarily) cheaper. It’s certainly easier to modify internally, by its nature.

There are some risks. One is, “who do I call if it breaks?” For this reason, support services can be sold. Forking can lead to incompatability. Patent risks are still real. Linux may now be in a really good place, but not all projects have companies throwing patent licenses at them. And it’s not easy to transition a proprietary product into a successful OSS project. (Netscape had to be rebuilt substantially to make it into an OSS product.)

Overall, OSS can be less risky: less investment than proprietary development, and somewhat less chance for financial reward.

David Marr:

I’ll be talking about the GPL. The area that can be most difficult for us as lawyers — copyleft. Ask them:

• What GPL code is being used?
• What form are the bits in — binary or source?
• What has been done with the bits?

Then you get three hard questions:

• When is the source obligation triggered?
• What must we release?
• How must we release it?

[He has very good slides that explain the answers to these questions, including an amazing slide with a spectrum of situations drawing the line when copyleft attaches. I’ll try to get a copy and post them.]

Karen Copenhaver:

Design that Matters is a company that started a number of years ago. You could graduate from an engineering school without having anything you designed get manufactured. These kids got this idea that people should put their designs up against manufactured products — and that they could put together a portfolio of products that NGOs around the world needed and use them as student design projects. Then the students could put their designs back into the portfolio, if they wished.

The first product was an IV clamp. (They were quite non-intuitive.) The second was a projector for schools. (Turns out school is at night, and there’s no light for books.) The third is a baby incubator. (Existing incubators required consistent electricity and frequent changes to the filters.)

Building a world where it’s easy (but not mandatory) to share — with an open source design model — was the goal. It’s a wonderful story. We’re five years into it, and we’ve never had an IP issue. The sharing rate is very high. The students realize the joy of being permitted to share.

When I think about OSS, I think about making things possible, like Wikipedia, that could not have been imagined before.

The idea I wanted you to get was that world-leading companies are embracing this model as a way to find efficiency — not just as a legal curiosity or a project for hairy geeks. None of us is alone, and OSS is a very sophisticated acknowledgement of our interdependence.

It has restored competition to the software industry, and the compeititon is perfect, due to the ability to fork any project. There’s more and more infrastructure that none of us wants to build alone. It is providing, and is going to provide, a platform for innovation.

[Then some very interesting questions and answers, which went too fast for me to write down.]

It would be my guess that the readers of this blog know more than the average bear about copyright law. So you, like me, have probably been mildly annoyed at times when presented with a copyright warning that goes well beyond a notice of an assertion of exclusive rights granted by the Copyright Act. You know the ones I’m talking about: “This film is protected by copyright law. If you so much as hum a tune found herein, the FBI will burn down your house.”

Well, it seems the Computer and Communications Industry Association is even more annoyed than the rest of us. Wednesday, the CCIA filed a complaint with the Federal Trade Commission alleging that overly-enthusiastic copyright warnings constitute unfair and deceptive trade practices. The complaint points in particular to the NFL’s well-known admonishment that any public use of “pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited” and Major League Baseball’s requirement of the Baseball Commissioner’s “express written consent” to disseminate any “accounts and descriptions” of the game. Of course, that’s all hooey: repeating facts about a sporting event has nothing to do with copyright law, since facts themselves are never copyrightable. Likewise, Harcourt Books’ warning that “No part of this publication may be reproduced or transmitted in any form” just isn’t true; limited portions (and, sometimes, the whole thing) may be reproduced or transmitted for purposes of fair use, and the whole thing may be reproduced or transmitted under certain circumstances under 17 U.S.C. 108.

I’m not entirely sure that this sort of misbehavior is all that harmful: the Commissioner of Baseball could claim he was Marie of Roumania, and it wouldn’t make it so. Misinformed consumers might refrain from lawful activities that they otherwise would have enjoyed, but I’m not convinced that many consumers are cowed by scary legalese. Consumers — rightly or wrongly — do whatever they want and know they won’t get caught; businesses, who will get caught, are sophisticated enough to figure out that these warnings are baloney. If anything, consumers probably identify the exaggerated copyright warnings for what they are, then lump legitimate copyright notices with the hooey, to the overall detriment of consumer copyright compliance. The relief the CCIA requests would no doubt be a good thing: it would enjoin copyright notices that lie about the scope of copyright. But I’m not sure that would have much practical effect other than achieving the (concededly Right and Noble) goal of shielding copyright geeks like me from annoyance.

So my favorite band, The New Pornographers, is coming out with a new album, Challengers, on August 21st. In advance of the release, the NPs’ record company, Matador, is offering a product called “Buy Early, Get Now.” If you order a copy of the album for delivery on the release day, they’ll give you a password to stream the album from the Matador site now, along with allowing access to some MP3 B-sides and live tracks. They’re also offering a 4-CD box set, which upon delivery will include one pressed copy of Challengers and 3 screen-printed, sexily packaged CD-Rs, on which the buyer will be instructed to burn various B-sides, live tracks from the tour in support of the new album, tour photos, music videos, and other material released on the password-protected album website after the record comes out. (That’s right, they’ve figured out a way to include tracks from the future in the box set.)

Matador knows all these rarities will be available on filesharing networks eventually. But they still have something to sell: convenient downloading and sexy packaging. Even though waiting for the material to be posted, downloading it, and burning it will take some time, it’s “certainly less time than you hunting around for it yourself.” Matador knows what it can and can’t control, and this is one of the best strategies I’ve seen for making fans happy while still making money on the deal.

Aaron Perzanowski has started a blog called Substantial Similarity, and it’s a really fun read. My favorite part of his post on Perfect 10:

Since Campbell, parody has been at the top of the fair use hierarchy. Any putative fair use that failed to take the piss out of the original, even if fair, has been seen as somehow less fair. And as for a use as utterly un-ironic as caching or indexing? Well, that’s hardly funny at all. How can it be fair?

The Op-Ed pages of today’s New York Times contain an essay inveighing against the current copyright term. The writer, Mark Helprin, finds the current term unjust, taking away vital resources from our children and grandchildren because of a rule better suited to an earlier time. The essay quotes Jefferson and opposes what the writer considers unwarranted regulatory interference.

More or less what you’d expect from an essay arguing for a shorter copyright term, right?

The funny thing is, though, that this essay is arguing for a longer copyright term. A term that lasts for seventy years after the author’s death is too short, Helprin argues, because property should not be “stripped from [his] children and grandchildren.” Instead, like other property, it should exist in perpetuity. In Helprin’s opinion, the Framers would have allowed a perpetual copyright term if they had “imagined that services and intellectual property would become primary fields of endeavor and the chief engines of the economy.”

The reasons Helprin is wrong as a matter of policy are numerous. Just a few:

• One additional year of copyright protection — the 71st year after the author’s death, let’s say — has an infinitesimal economic value today, literally on the order of a few cents even for the rare work that will continue to earn millions in that 71st year after the author’s death. That added value is simply not enough to lead an author to create a work he otherwise wouldn’t. Because the purpose of copyright is to act as an incentive to spur the creation of new works, a perpetual copyright term would have no effect other than giving an irrational author the warm fuzzy feeling that his heirs will reap the fruits of the sweat of his brow. The author’s grandchildren would be better off with a dollar invested today and passed on to them than with a perpetual copyright term.
• While the author’s heirs would reap the same amount as a few pennies invested today, the public will suffer. While Helprin may not be familiar with any uses for public domain works other than “price-reduced non-copyrighted” books at Barnes & Noble, the benefits of a robust public domain flow not only to “various business who will continue to profit from” works in the public domain, but also to the public itself. Archive.org, Project Gutenberg, and LibriVox are just a few of the nonprofit projects helping the public benefit from the public domain. In a hundred years, if Helprin’s works are mostly forgotten and no publisher finds it profitable to keep them in print, would Helprin want the works to be out of print forever, or would he want them to be available for free on the Internet — maybe even as an audio book?
• Helprin’s argument requires as a premise that no benefit to the public is great enough to justify depriving his grandchildren of a few pennies of net present value. This is not irrational, but it is unreasonable and mean-spirited.
• Finally, Helprin’s argument fundamentally misunderstands the American copyright tradition. Copyright are granted not because an author is naturally entitled to the fruit of his labor, but because granting copyrights gives incentives for the creation of new works. Helprin argues that this tradition is outdated, having arisen from an agrarian society where “[w]riters and inventors were largely those who obtained their sustenance from their patrimony or their mills.” But the importance of copyrights to the economy only strengthens the argument that copyright should be an economic right, not a moral one. If copyright is economically important, we should judge its effectiveness in economic terms.

Let us reflect, too, upon the irony that an argument in favor of perpetual copyright is being made by an author whose most successful work bears a title and a conceit appropriated from a work in the public domain.

Larry Lessig has set up a wiki on which the community is writing a response.

Yesterday, the Ninth Circuit Court of Appeals decided Perfect 10 v. Google. The case encompasses numerous issues, from section 512 to fair use to the bounds of secondary copyright liability. Here’s a summary of the most interesting parts to me (not to be confused with the most interesting parts to the litigants or to the court):

1. Preliminary Injunctions and Fair Use. The court held, for the first time, that in order to get a preliminary injunction in a copyright case, the plaintiff must not only demonstrate a substantial likelihood of proving his prima facie case, but must also demonstrate a substantial likelihood of overcoming any defenses raised by the defendant. First, “the defendant is responsible for introducing evidence of fair use in responding to a montion for a preliminary relief,” then the plaintiff must “show it is likely to succeed in its challenge to the alleged infringer’s evidence.” Slip op. at 5767. The availability of preliminary injunctions in cases where the plaintiff’s prima facie case is easy to prove but the defendant has a strong fair use defense chilled speech, when it didn’t ban it outright. This holding is likely to mean that plaintiffs will rarely get preliminary injunctions in many of the cases copyfighters care about — cases where copying is obvious and the real question is fair use.
2. Preliminary Injunctions and Section 512. The court also held that a plaintiff seeking a preliminary injunction must demonstrate a substantial likelihood of overcoming a defense under 17 USC 512. Section 512 contains its own rules about injunctions, but the court held that because “the DMCA does not change copyright law,” general principles apply. Accordingly, if the defendant raises a section 512 defense, the court first decides whether the defendant is likely to qualify for protection under section 512, then applies the appropriate injunction rules depending on the answer.
3. The “Server Test.” In analyzing whether the copyright holder’s display right has been violated, we are told that the “displaying” is performed by the web server, not by the user’s computer. Displaying is “show[ing] a copy;” here, the copy being shown resides on the server, and is shown by transmitting it over the Internet to the user’s computer for display. In a slightly weird turn, the court says that a computer owner displays a work when she “uses the computer to fill the computer screen with the photographic image stored on the computer, or by communicating the stored image electronicallly to another person’s computer” (so the server is doing the displaying in the web context because it stores the image). What’s weird is that right in the middle of this analysis, the court cites MAI v. Peak, which held that copies held in RAM are sufficiently “fixed” to be copies for copyright law purposes. If RAM copies are “fixed” (which they aren’t, but we’ll argue about that another day), why isn’t the user the one displaying the work by “us[ing] the computer to fill the computer screen with the photographic image stores on the computer”? I have to imagine that the fact that web browsers store transmitted images in RAM before displaying them wasn’t before the court.
4. In-Lining Images Is Not a Display. Well, it’s not direct infringement, at least. IMG tags and links are just HTML instructions, the court says, and “[p]roviding these HTML instructions is not equivalent to showing a copy.” This is because the HTML doesn’t represent the photographic image; you can’t display the image solely by knowing the URL, because the server the URL is pointing to has to actually serve the image.
5. Framing Is Not a Display. Having another site’s content display inside a frame is not infringement, because the content itself is being served by the original website. It might confuse consumers, but the court rightly notes that confusion is dealt with by trademark law, not copyright law.
6. Linking is not Distribution. Because the data itself is coming from some other server, linking to infringing content is not a “distribution” of that content. Connectedly, the “deemed distribution” rule from Hotaling (the bad Hotaling, not the good Hotaling) doesn’t apply because Google doesn’t have a copy of the allegedly distributed full-size images, and you can’t distribute something you don’t even possess. (I expect that some will see this as an adoption of the Hotaling rule by the Ninth Circuit, but I think it’s dicta. Napster is bad enough.)
7. Art. I, sec. 8, cl.8 Gets Teeth. The court says that courts must be “flexible in applying a fair use analysis,” and that the four fair use factors must be “‘weighed together in light of the purposes of copyright’” (quoting Campbell). And then comes the best part. “The purpose of copyright law is ‘[t]o promote the Progress of Science and the useful Arts,” and to serve the welfare of the public” (internal quotations and citations omitted). So courts must weigh the factors together, balancing the benefit to the generation of knowledge that comes from greater protection against the public interest in making fair use of copyrighted works. Excellent. (I’m hoping for summary dispositions in really egregious fair use cases that just say, “The district court failed adequately to consider the Progress of Science and the Useful Arts. VACATED and REMANDED.”)
8. Superseding Use. Use that displaces sales of the copyrighted work has rarely been held to be fair use. But here, the court held that even if the defendant’s use supersedes some of the copyright holder’s revenue-generating uses, it can still be fair use if the value to the public from the defendant’s use outweighs the “significance” of the superseding use. This is perhaps the most important holding, in part because it helps to get rid of the circular argument that the copyright holder wanted to license uses like the defendant’s. Even if the copyright holder could have garnered some meager licensing revenue by prohibiting uses like the defendant’s, the “market harm” factor won’t weigh against the defendant if the benefit to the public outweighs the superseded benefit to the copyright holder.
9. Evidence of Harm. In order for the “market harm” factor of the fair use analysis to tip in the plaintiff’s favor, the plaintiff must come forward with evidence of actual market harm. Market harm cannot be presumed, and “hypothetical” harm isn’t good enough. This will help to erode further the circular “I could have licensed this use, therefore it is not fair use” argument; on the other hand, it makes the sham “licensing” of use that’s actually fair use all the more pernicious, because it makes the use less likely to be found to be fair use in the future.
10. The User’s Local Cache Is Fair Use. The court held that the user’s local web cache is a fair use copy because it is a transformative use — presumably because it is using the image data not as a photograph, but as a means toward faster web-browsing performance. The effect on the copyright holder’s rights is minimal — who’s going to license the image for use in their own local cache? — and the public benefit is significant, so it’s fair use. The court also expressed some doubt that “such automatic copying could constitute direct infringement,” presumably under a CoStar v. Loopnet volitional copying theory.
11. Substantial Noninfringing Use. The court held that substantial noninfringing uses for a product defeats a claim for secondary copyright liability based on an infringement-facilitating product design, but does not immunize a defendant from other sources of secondary liability. Thus, for example, if Sony had sent letters to each VCR owner exhorting them to duplicate and sell movies they rented from the video store, Sony would be subject to contributory copyright liability for sending the letters, even though it is not subject to liability for the infringement-facilitating design of its product.
12. Imputed Intent. The court held that intent is an element of a claim for contributory copyright infringement. Then, the court effectively read that element back out of the doctrine by holding that intent may be imputed if the defendant knew that infringement was “substantially certain” to result from her action. (Just like in Torts class.)
13. Contributory Liability. The court announced a new formulation of the contributory liability doctrine for internet sites: in order to be liable, the defendant must have actual knowledge that specific infringing material is available, and must then fail to take simple measures which would have prevented further damage. The court also called those “simple measures” “reasonable and feasible means.” Recall, however, that compliance with section 512 makes this analysis go away; it removes secondary liability for service providers if its procedures are followed. The district court hadn’t reached the section 512 analysis, so the court remanded this issue.
14. Vicarious Liability. As with all forms of secondary liability, a claim for vicarious liability must be based on some underlying act of direct infringement performed by someone. Here, that direct infringement was the unauthorized display of Perfect 10’s images on websites unaffiliated with Google. For a plaintiff to prevail on a claim of vicarious liability, he must show that the defendant has the right and ability to control the direct infringement, but fails to do so. Here, the court found that Google had no right nor ability to control the display of Perfect 10’s images on the unauthorized websites, since Google didn’t run those websites and couldn’t shut them down even if it wanted to. Perfect 10 argued that Google could have shut down the sites’ AdSense accounts, depriving them of revenue, but the court pointed out that doing so would not remove the images from the third-party websites.

It’s a big opinion, with a lot of holdings, but most of them make sense and apply the law correctly. The case now goes back down to the district court for further factfinding and analysis. There’s a dispute over the adequacy of Perfect 10’s section 512 takedown notices, and after Perfect 10 v. CCBill, Google will have a much easier time prevailing on that issue.