Category: Law & Policy

DMCA Section 1201 Still Constitutional Says Circuit Court

The Electronic Frontier Foundation (EFF) was dealt a significant (possibly fatal) blow in its longstanding endeavor to have the courts abolish the entirety of DMCA Section 1201 as an unconstitutional violation of the First Amendment. The case Matthew D. Green, et al. v. United States Department of Justice was filed in July of 2016, and on December 6, the DC Circuit Court of Appeals affirmed the lower court’s denial of a preliminary injunction against enforcement of 1201 on behalf of plaintiffs Matthew Green and Andrew Huang.

Section 1201 is the provision within the Copyright Act that enables rightsholders to use computer code for the purpose of digital rights management (DRM) with two primary purposes: 1) to control access to works; and 2) to prohibit unauthorized copying of works. These purposes naturally work in tandem. For instance, Netflix requires a subscription for access and allows an account holder to download a file for offline viewing, but different code prevents copying that file for transmission to some other party. The 1201 statute prohibits unauthorized circumvention of DRM and/or trafficking in technology that enables unauthorized circumvention or copying, either of which may result in civil or criminal action.

Simply put, without DRM, the digital, on-demand market for most media would not exist, and the central purpose of 1201 to foster and sustain this market is a settled matter—both in Congress and the courts. Nevertheless, the EFF has vowed to see 1201 abolished in our lifetimes. In 2018, in a blatant appeal for donations, Cory Doctorow wrote a blog for EFF touting its “Apollo 1201 Project [which] aims to kill all the DRM in the world inside of a decade.” No mention of the fact that, at that point, the EFF’s original endeavor to “kill” DRM with the Constitution was already about twenty years old. And as of last week, it is fair to say that if DRM is to die circa 2026-28, it will not be at the clumsy hand of the EFF and its flawed arguments on behalf of inapt plaintiffs.

In the case of Mr. Green, he was seeking a preliminary injunction as a prophylactic shield in advance of publishing a book which explains (in both English and computer code) how circumvention is achieved. But the appellate court states:

Because Green intends to provide code able to circumvent technological protection measures, he believes the book would likely violate the antitrafficking provision. At oral argument, however, government counsel made quite clear that in its view, Green’s proposed course of conduct would not run afoul of the DMCA…. The government’s concession ends any “credible threat of prosecution” against Green, leaving him without standing to obtain a preliminary injunction.

As my friend Devlin Hartline mentioned during a call to discuss this case, “It was surprising to see the government concede that ground here, but even if it had not, Green’s argument for a preliminary injunction would have lost on the merits.” Writing a book about circumvention is protected speech that does not implicate 1201’s anti-trafficking provision, and the extent to which said book might be construed as a How-To manual for circumvention, that would be a fact-intensive inquiry which would still be tough to argue is a violation of the statute. This may explain why the government shrugged at it in this case.

As for Andrew Huang, he sought an injunction for intended activity that goes to the heart of 1201. Hoping to sell a DRM circumvention device called NeTVCR, along with published code so the device can be updated, Huang (the EFF) argued that computer code, even for circumvention, is protected speech. To this, the circuit court essentially said “no kidding” and notes that the government never challenged the premise that code itself is speech under the First Amendment. But as the opinion states, “We turn then to whether the DMCA ‘target[s] speech based on its communicative content’—that is, if it ‘applies to particular speech because of the topic discussed or the idea or message expressed.’”

Separating Expression from Function

“The Supreme Court’s recent free speech case, City of Austin v. Reagan National Advertising of Austin, LLC, 142 S. Ct. 1464 (2022), is virtually dispositive,” the DC Circuit opinion states. At issue in Austin, and the relevant caselaw, is the distinction between state sign regulations that are content-neutral (and likely not in conflict with the First Amendment) versus regulations that may be content-focused (and likely to conflict with the First Amendment). The City of Austin’s rules pertain to off-premise signs, which may advertise, promote, or inform readers about something unrelated to the location of the sign; and on-premise signs, which may advertise, promote, or inform readers about something specific to the location of the sign.

Without getting into the weeds on various state sign regulations, suffice to say, the SCOTUS majority in Austin held that the city’s regulations at issue are content neutral, rejecting the petitioner’s argument (and the dissent) that because enforcement necessitated reading the signs, the regulations are fundamentally content based. The majority held, “Underlying these cases and others is a rejection of the view that any examination of speech or expression inherently triggers heightened First Amendment concern. Rather, it is regulations that discriminate based on ‘the topic discussed or the idea or message expressed’ that are content based.” Making a comparison to Austin, court in Green states:

The same logic applies here. Although the DMCA requires reading computer code to determine what digital act the code carries out, it is nonetheless content neutral because, in the words of City of Austin, it cares about the expressive message in the code “only to the extent that it informs” the code’s function.

The court further states that the DMCA question presented is easier than Austin because that case concerned the regulation of speech as speech, while Section 1201 is only concerned with the functional aspect(s) of computer code. As any copyright nerd is aware, the copyrightability of code is acutely concerned with reconciling the expressive (protectable) from the functional (non-protectable) aspects of the work. And here, as elsewhere, that which is copyrightable (expression) happens to be the part of computer code that would be protected speech. The EFF wants to call locks and keys forms of expression just because they are made of code instead of steel. But, of course, the locks are made of code — because so are the works they protect against theft.

Devlin Hartline, writing about this case for Copyright Alliance in September of 2021, discussed EFF’s alternate (reverse engineered?) route to a First Amendment challenge to 1201—namely that DRM is a prior restraint on potentially non-infringing conduct. The organization has argued many times, for instance, that if the intended use of the copyrighted work may be a fair use, then 1201 prohibits this otherwise legal conduct, which is itself protected by the First Amendment. But, as Hartline plainly observes, “The First Amendment does not allow you to pick the lock on the front door of a library in the middle of the night in order to break in and make fair use of the copyrighted books in the stacks.”

One does not need to be a constitutional scholar or a computer programmer to grasp the common sense understanding that the provisions of 1201 address solely functional aspects of code. In plain terms, 1201 is silent as to what code may be used for DRM, and it is likewise silent as to what code may be written that could pick the proverbial lock. It simply states that the act of picking the lock or trafficking in lock picks is against the law for the same reasons that bootlegging was illegal in the days before digital.

To work at the EFF, it seems that one must swear a blood oath to the core belief that copyright is inherently in conflict with the speech right. And orthodoxy mixed with righteousness (and more than a little self-interest) will invariably produce convoluted logic. Since 2001, the organization and its likeminded amici have failed to find any purchase in the courts with a constitutional challenge to DMCA Section 1201. As opined in an older post about this case, if EFF et al. really cared about specific burdens on certain parties, it would put more energy into advocating relevant permanent exemptions via the Copyright Office rulemaking process. Why it persists in this boondoggle of endless, ill-fated litigation can best be explained, I think, by the “Donate Now” button.

Canada Extends Copyright Term to Comply With “New NAFTA”

As part of its commitment under the USMCA Trade Agreement, Canada has now extended its copyright term of protection from life-of-the-author plus fifty years to life-of -author plus seventy years, thereby harmonizing this aspect of its copyright law with the United States, the EU nations, the UK, and others. Canadian trade and IP expert Hugh Stephens writes on his blog, “…from my perspective, the most important benefit is that Canadian rights-holders, creators and creative industries will now play on a level playing field with their competitors in most advanced nations.”

Although compliance with the USMCA was inevitable the moment the deal was signed in 2019, copyright skeptics and critics were still rankled by the official announcement of the term extension. Mike Masnick on Techdirt called it a “scandal” and alleged that the Canadian government is plundering the public domain. “It cannot make sense to extend copyright terms retroactively,” he writes, reiterating a view held by many copyright detractors that once the incentive to create a work has been achieved, copyright rights should fade quickly after the work is made available to the market.

Both on this blog and in my book, I have summarized the story of copyright term lengths and how they got that way—though, admittedly, without trying to encompass the development of copyright law in every nation among the 181 signatories to the Berne Convention Treaty. In general, understanding duration of copyright protection can be viewed through the interwoven narratives of the domestic principles and peculiarities in each nation up to the late nineteenth century and the efforts thereafter to establish reciprocity in trade among the community of nations.

Where there is little variance among culturally comparative nations, however, is a longstanding principle that vesting the rights we call “copyrights” in authors of works is a matter of justice, and this includes a consensus that these rights may be inherited as property by a limited line of the author’s descendants. For instance, in England, this idea first took legislative form in 1837 with a proposed life-of-the-author-plus-sixty-years term, and France was the first with a similarly principled statute in 1793 that allowed for a term of ten years after the author’s death.

The life-plus-fifty-years term was voluntary for signatories to the Berne Convention Treaty between its adoption in 1886 and 1948, when the term became mandatory. The additional twenty years of protection originated in the Maastricht Treaty to form the European Union in 1993, and the U.S. Copyright Term Extension Act (CTEA) of 1998 was passed solely in response to that change—and not, as many still believe, to save Mickey Mouse from falling into the public domain.

As Stephens discusses in an excellent blog post, Canada played a unique role as a former colony, semi-colony, and independent state while nurturing its own cultural and literary identity and industry. For instance, during the nineteenth century, before the U.S. codified any copyright reciprocity with other nations, its nascent publishing industry pirated English books, which were sold into the Canadian market. Meanwhile, Canadian publishers could not do likewise as subjects of the English Crown, but they could pirate American books to sell into the American market, and famously did so with the works of Mark Twain.

Then, in the twentieth century, while the U.S. was bogged down in its thicket of copyright formalities, which delayed participation in the Berne treaty, Canada became a Berne signatory as an independent nation in 1928. And during the intervening years before the U.S. finally joined Berne in 1989, American authors often published their books first in Canada to obtain what was known as “back door Berne” protection in the international market.

Why Canada did not extend its own term of protection contemporaneously with the U.S. in the 1990s is simply because it has its own legislative, political, and economic narrative vis-à-vis the timing of international trade deals. Unlike the U.S., the EU extension was not so proximate to Canada’s joining Berne, and by the 1990s, of course, the U.S. creative sector was an economic powerhouse with a tremendous interest in arguing for the extension to keep up with Europe.

So, even if Masnick were correct to look only at the incentive part of the copyright equation, trade parity itself is a damn good reason to harmonize copyright terms, if only to avoid the shenanigans of the past. Even now, the extension prompted by the USMCA is not simply about Canadian authors and the Canadian public domain. As Stephens observes, Canadian authors will enjoy equal term of protection for their works being distributed in the EU countries and the UK, while, for instance, U.S. authors will now enjoy equal term of protection for their works distributed in Canada..

Of course, to copyright critics, nearly any term of protection is too long once the incentive threshold has been crossed, but as I have discussed, this “utilitarian” view that copyright rights exist solely to prompt authorship, and should extinguish shortly thereafter, is a cynical and exploitative view of creators that has never been widely accepted in the history of nations with copyright laws.

On the contrary, aside from the fact that “incentive” of the author encompasses a desire to leave something to one’s heirs, this principle has been extant for as long as even proto-copyright rights have existed. The 1978 World Intellectual Property Organization (WIPO) Guide to the Berne Convention states, “Most countries have felt it fair and right that the average lifetime of an author and his direct descendants should be covered, i.e., three generations.” And that consensus rests on at least three centuries’ worth of evolution in the doctrines of authorial rights worldwide.

As to retroactive copyright rights, it is true that they can create some confusion (i.e., require research) as to whether a work created under a prior act is still protected. I see these questions all the time. For instance, book authors looking to use photographs created under the terms of the U.S. 1909 Act must do some digging to learn the copyright status of the image. But this is not typically what the copyright term hawks are addressing. And more importantly, it happens to be a moot point in this instance because the Canadian term extension bill explicitly states that it does not restore copyright “in any work in which the copyright had expired before the day on which sections 276 to 279 come into force.”

So, what’s the complaint exactly? Oh, yeah. Copyright bad. Got it.

Image by: stuartmiles

In Gonzalez v. Google, SCOTUS Should Look Beyond the Term “Recommendations”

In October, the Supreme Court granted cert in two cases that may limit the immunity granted to internet platforms under Section 230 of the Communications Decency Act. Both Gonzalez v. Google and Twitter v. Tamneh, arise from plaintiffs seeking to hold platforms accountable for “targeted recommendations” of material associated with acts of international terrorism, but in this post, I will only focus on the former case. Here’s a slightly truncated background as stated in the Gonzalez petition:

In November 2015 Nohemi Gonzalez, a 23-year-old U.S. citizen studying in Paris, France, was murdered when three ISIS terrorists fired into a crowd of diners at La Belle Equipe bistro. . . . Several of Ms. Gonzalez’s relatives, as well as her estate, subsequently brought this action against Google, . . . The plaintiffs alleged that Google, through YouTube, had provided material assistance to, and had aided and abetted, ISIS, conduct forbidden and made actionable by the AntiTerrorism Act.

Doubtless, the particulars of these cases raise complex questions of liability that even many critics of 230’s too-broadly applied immunity may have difficulty defending on all merits. Google’s response, for instance, states that the “ATA claims in this case have produced a procedural morass.” Nevertheless, the Court agreed to review, having denied all Section 230 petitions in the past, leaving some to note that Justice Thomas signaled a strong interest in Section 230 immunity in a brief respecting denial of certiorari in the 2020 case Malwarebytes v. Enigma Software Group. There, Thomas wrote:

Adopting the too-common practice of reading extra immunity into statutes where it does not belong, courts have relied on policy and purpose arguments to grant sweeping protection to Internet platforms. . . . Without the benefit of briefing on the merits, we need not decide today the correct interpretation of §230. But in an appropriate case, it behooves us to do so.

I will leave it to others to discuss whether Gonzalez is the right vehicle to address the most chronic harms caused by overbroad readings of 230—or to speculate exactly what this Supreme Court is looking to achieve in light of the politicized narratives and misstatements that have attached to public discussion about the statute.

Until the Trump administration turned the White House into the Ministry of Misinformation, Section 230 was not mainstream news, and one consequence of those events is that the provision has been misrepresented as a content (i.e., political) neutrality law, which it is not. Though, as discussed in the post linked above, the neutrality rhetoric is a misconception Big Tech promoted itself years before Members of Congress started alleging “anti-conservative” bias and conflating that talking point with threats to abolish Section 230.

But I wanted to focus on the narrow question presented in the Gonzalez petition, which is whether “targeted recommendations” made by interactive computer services are properly immunized. Because whatever the outcome of this case—and if there is any chance that Congress might effectively amend Section 230—both the Court and lawmakers should reject the too-friendly term “recommendation” to describe how algorithms on major platforms are designed to attract and retain user attention.

It is now a matter of record that algorithms trained to adapt to user behavior and feed what may be our worst instincts is an often-toxic phenomenon that is not adequately described by the word “recommendation.” Interaction between the social platform and the human user is not comparable to reading a book review or hearing a friend’s suggestion to see a show or even having Netflix indicate that if you liked movie A, you might like movie B. These positive social transactions are analogized by Big Tech to describe its systems and models in the same way the industry invokes other socially constructive words like “share,” “connect,” and “democratize” while papering over hazards like IP theft, harassment, and the wildfire spread of misinformation.

Google’s Response Begs for Scrutiny

Notably, in Google’s response asking the Court to deny cert in Gonzalez, it practically admits to the insidious nature of algorithmic “recommendation” when it emphasizes the fact that the courts have held that search engines are protected by 230—and that search is comparable to “recommendation.” Here, Google inadvertently highlights the reason search sucks now—because rather than return results based on a reasonably objective definition of “relevance,” the Google search algorithm has been tweaked to return results “of likely interest” to the user based on what Google has learned about them.

I doubt I am alone in finding that search results are consistently less useful than they were just a few years ago—even to the extent that the most logical result (e.g., an entity’s website) appears on page two or three, where it used to at least be the first or second item below the top three paid placements. But on a darker note, Google’s brief practically acknowledges that if the user is an anti-vaxxer or an election denier or believer in some other conspiracy nonsense, they will be served search results likely to reinforce those false narratives. Whatever we want to call this phenomenon and its psychological influence, it is too quaint by some margin to call it “recommendation.”

But even if Google Search still functions in a way that is properly immunized by Section 230 (and I would question that as the technology changes), we confront a whole other level of insidious power to influence with the combination of Google or Facebook’s algorithms and the capacity of video to tap into emotions—especially strong emotions like anger and fear. The notion that the fundamental design of YouTube does not foster a symbiotic relationship between the potential terrorist and the recruiting video is barely plausible. But for sure, it is a phenomenon Congress did not consider in 1996 when it adopted Section 230.

Argus is Allegedly Blind

When it comes to marketing, Google et al. boast the capacity to know what a user is going to buy, how she’ll vote, or what she’ll order for dinner—even minutes before she knows these things herself. But when the conversation turns to liability, these same companies suddenly cannot know much of anything. While Google is probably correct that there are several complicating aspects in the Gonzalez complaint, it also downplays the efficacy of a platform like YouTube to convert latent emotions into dangerous action.

Whether that action is joining ISIS and murdering tourists or joining a mob and attacking the U.S. Capitol or breaking into the home of the Speaker and attacking her spouse, I think we have sufficient evidence to conclude that insane narratives are running amok and driving people to extreme behavior with deadly consequences. Google et al. may not bear direct responsibility for these events—surely, terrorism existed long before the internet—but neither are these platforms mere hapless conduits incidentally fueling the fire. And again, Google almost acknowledges this in its reply brief.

“…since the 2015 Paris attack, YouTube has overhauled its terrorism policies, as one of petitioners’ sources recognizes,” the brief states. Oddly, Google cites a WSJ story which reports that despite changes by the platform, YouTube still “Drives People to the Internet’s Darkest Corners.” More acutely, if YouTube attempted to change its algorithm and/or its policies in response to the Paris attacks, this suggests that a nexus does exist between platform “recommendation” and videos that are likely to motivate violent action. This level of interaction between user and machine, which serves the platform’s interest more than it does the public interest, was neither envisioned nor discussed at the time 230 was adopted.

Circa 1996, the analogies were limited to human publishers who make decisions about what to disseminate, cut, or edit. But those points of reference are woefully incomplete for understanding contemporary data mining and the manner in which algorithms produce real-world events. Thirty years ago, we were talking about this stuff with the expectation that the network might recognize that you’re in the market for a toaster and will show you some ads for toasters. But when toaster shopping feeds an advanced algorithm capable of intuiting that you might be interested in all the videos that will “prove” how the Jews are running the world or that Yoga is Satan worship, that is a very different creature than a “recommendation” machine.

So, as the Court considers whether “targeted recommendations” are properly immunized by Section 230, we should hope that it recognizes how tepid that term is for describing the state of the technology, which behaves nothing like Congress’s understanding nearly thirty years ago. Whatever the proper term should be, it is implausible that Congress intended to provide blanket immunity for a business model that, even occasionally, fuels riots, terrorism, harassment, nonconsensual pornography, rampant misinformation, and even genocide. Surely, these cannot be acceptable byproducts of the most ambitious or prosaic uses of the internet.