Category: Law & Policy

Busy Copyright Week Update

Though most people can be forgiven for missing it, two Supreme Court Decisions and a District Court granting a motion for summary judgment made a fair bit of copyright news this week.  In a pair of unanimous decisions the Supreme Court settled two statutory disputes relevant to a rightsholders’ ability to enforce his copyrights.  And pursuant to findings at the Ninth Circuit Court of Appeals, the District Court for the Central District of California granted a motion for summary judgment against VidAngel for its infringement of major Hollywood motion pictures.

“Registration” Means USCO Approval 

In Fourth Estate Public Benefit Corp. v. Wall-Street.com, Justice Ginsburg wrote the opinion holding that there is no way for the Court to read the copyright statute §411(a) other than to mean that the Copyright Office must grant Registration of a work before a rightsholder may litigate to remedy an alleged infringement.  

This decision resolves a court split over the issue, with the counter argument contending that filing the application is tantamount to “registration” and that a rightsholder should be allowed to proceed with legal action while the USCO is processing the application. Ginsburg and the other eight Justices found that reading of the statute unpersuasive, but the opinion also recognizes the practical challenge faced by rightsholders given that it takes an average six to seven months to receive a Certificate of Registration.  

This is especially acute in a time when online infringement may be almost instantaneous, and it is not impossible that there may be some legislative response to address these issues, not the least of which would be increasing resources for the USCO.  That said, the House Judiciary Committee does seem a little busy right now.  (See further discussion here.)

“Full Costs” Means Less Full Than Some Hoped

From the opposite ideological end of the bench, Justice Kavanaugh wrote the opinion in Rimini Street v. Oracle USA, another unanimous decision settling yet another statutory interpretation, this time §505 pertaining to the meaning of the term “full costs.” At issue was the question as to whether recoverable legal costs under the copyright statute may extend beyond the six categories of “taxable” costs that a court may award to a litigant in a copyright case. 

After Oracle prevailed in its copyright infringement suit against Rimini Street, it sought $12.8 million to recover its costs for expert witnesses, jury consulting, and e-discovery, which are not enumerated under Title 28 federal statutes pertaining to the types of costs a claimant may recover.  For context, I recommend Kevin Madigan’s analysis posted at the Center for the Protection of Intellectual Property, in which he contends that this decision is an incomplete reading and, as a practical matter, may disadvantage defendants as well as complainants in copyright cases. 

VidAngel’s Flight Seems All But Over

Finally, in the major motion picture studios’ case against VidAngel, a California District Court, finding no triable issues of fact, granted the studios’ motion for summary judgment this week.  As described in posts here and here, VidAngel is the VOD service that provided unlicensed streams of major motion pictures with options to “filter” out the naughty bits—sex, swearing, blasphemy, etc.—its base of customers preferred not to see or hear.  

Although filtering is permitted by law with devices designed for that purpose to be used in one’s own home, VidAngel endeavored to construct a convoluted business model in order to contend that its process of copying, filtering, and streaming films to customers for what amounted to rental fees was nothing more than an extension of the individual consumer’s right to filter.  All of the sanctified streamer’s defenses failed, and the company is held to have infringed the studios’ exclusive rights of reproduction and public performance as well as violated the anti-circumvention provisions under §1201 of the DMCA for decrypting DVD and Blu-Ray disks in order to create the files necessary for its service.

I may write a more extensive post about the outcome in VidAngel, which is an instructive case on a number of levels, but one that sticks out at the moment is the company’s attempt to assert fair use in defense of its circumventing DRM pursuant to the DMCA.  As the District Court notes, there is no fair use defense for violating §1201, though one could easily make this mistake based on the confusion and debate surrounding this statute.  

The distinction is that the Copyright Office has granted exemptions from the provisions of this section of the DMCA for specific uses (e.g. education, commentary, research) that are likely to be fair uses.  This is not the same thing as asserting a fair use defense for circumventing DRM for a purpose not already exempted by the USCO.  And VidAngel’s purpose in making entire motion pictures available (minus a bit of skin and a few curse words) does not come anywhere close to being considered for such an exemption.

The Internet is Not (and never was) Paradise

I was reading an editorial the other day written by Stephen Witt for NPR shortly after the passing of John Parry Barlow in 2018; and it occurred to me that internet activists seem to fit one of two profiles—Mourners and Evangelicals. And both are full of shit.

Witt does an excellent job summarizing the early barefoot wanderings of the college-dropout, Grateful Dead lyricist, turned techno-libertarian prophet who would eventually co-found the Electronic Frontier Foundation …

It was 1985, and Barlow, not a computer person, did not know what “online” was. But he wangled an Internet account out of a Stanford academic — they were not available to the general public at the time — and began to anonymously visit Deadhead forums on Usenet, one of the earliest hosts for Internet discussion. Despite an apparently fatal lack of any STEM education, Barlow grasped the technology’s potential. “I had a religious experience upon encountering what was a very small online environment,” he said. “I felt that what I was looking at was something profoundly different than anything that had happened in the history of the human race.

The spirit of Witt’s article Tech Utopianism And Our Walled Gardens: Is It Time For A Jailbreak? places it among the many laments for the internet as a paradise lost.  Like other articles of its kind, Witt’s homage to Barlow harkens to an ideal that never existed—a cybernetic Eden, where the purity of human mind and spirit might have remained unsullied had it not been for the original sin of commerce that cast us into the hyper-monetized, surveillance-capitalized, barely-civilized landscape dominated by today’s billion-dollar platforms.  

Not surprisingly, Witt alludes to the fact that copyright infringement was a foundational rite of the new cyber-religion evangelized by the prophets; and it is just a little too perfect that, as an ambassador of the Dead (the most famous band to encourage bootlegging its live performances) Barlow and disciples viewed intellectual property theft as a pathway to the promised land …

… if information was instantly reproducible at no cost, only by creating barriers to open communication between private individuals could the now-artificial scarcity of copyright be maintained.  A true cyberlibertarian — and perhaps we should call him an anarchist — Barlow took the extreme position, denying that the state had the authority to limit peer-to-peer communication. This necessitated an abandonment of the concept of intellectual property, even if that proved corrosive to both the profit margins of large corporations and the meager income streams of small songwriters, including Barlow’s own.

I will admit that my cynicism here is colored by the fact that a world resembling an endless Dead show is my own version of Hell, but personal taste is also germane to the broader point that utopias always fail because they presume to impose a monolithic world view on everyone.  (One man’s Paradise is always another’s Purgatory.)  And that presumptuousness is certainly a running theme wherever digital activism embraces the anti-copyright agenda—too often insisting that all artists must adopt the “sharing” attitude espoused by The Grateful Dead, overlooking the nagging bugaboo that choice is the foundation of liberty.  

So, in regard to the internet writ large, Witt’s elegy fits the profile of the Mourner’s view of cyberspace—a resignation to the fact that utopia is gone and can never be rediscovered, and that any hope of building Paradise anew should be abandoned.  We cannot return and so might as well unplug. 

But while the Mourners have discarded the hope of returning to the Eden that never existed, their idealistic rhetoric remains in Activist 2.0—the Evangelicals, who now defend the status quo of the corporatized internet despite the fact that it allegedly destroyed the original garden in the first place.  The Evangelical is easy to spot.  She still clings to that original Barlowian sacrament of “sharing” content and responds to any proposal to protect copyright owners by declaring that [Insert policy here] will destroy the internet as we know it! 

Of course, the whole narrative is a lie—from Barlow’s catharsis to the present battle over the “soul” of the web.  As investigative reporter Yasha Levine states very pointedly…

…the truth is that EFF is a corporate front. It is America’s oldest and most influential internet business lobby—an organization that has played a pivotal role in shaping the commercial internet as we know it and, increasingly, hate it. That shitty internet we all inhabit today? That system dominated by giant monopolies, powered by for-profit surveillance and influence, and lacking any democratic oversight? EFF is directly responsible for bringing it into being.

Hence, the too-common refrain that we might “destroy the internet as we know it” is an odd rhetorical tactic insofar as it is not at all clear, from any point of view, why the internet we have is something worth preserving.  As a general observation, why is it rational to assume that the function of the internet, which has largely been ceded to the management of Google, Facebook, Twitter, et al, is exactly perfect as is and should never be changed?  By what measure, other than Big Tech’s profits, have we supposedly achieved our digital apotheosis?

Never mind the fact that protests against any type of copyright proposal invariably resort to hyperbole and disinformation (see claims that Article 13 will “kill memes”), but even if some new proposal were to change the internet, so what? As naive as I think the Barlow-worshipping purists were/are in the first place, we can at least all agree that their internet is not the internet we have, that the internet we have is dominated by big corporations and, therefore, hardly sacred.

That being the case, contemporary digital activists should drop the quasi-religious overtones when debating policy—stop talking about the internet as though it were holy ground that cannot be disturbed.  It is worth keeping in mind that every time the artists and creators have inveighed against their rights being trampled by the big internet platforms, the digerati have presumptuously lectured them that “change is good.”  Indeed it can be good.  And right now, what needs changing is the internet as we know it.

Can U.S. States Infringe Copyrights with Impunity?

If the Supreme Court agrees to hear Allen v. Cooper, copyright owners and constitutional scholars will both be watching closely.  The practical matter for copyright owners is whether a U.S. State, or agents of a State, may freely use copyrighted works without permission and remain immune from claims for infringement.  As of now, the Fourth Circuit Court of Appeals contends that a State entity (e.g. a university) may use or make available an author’s music, photography, film clips, etc. without compensation or permission, and the rightsholder has no remedy whatsoever.  First, some background as condensed as I can make it …

June 10, 1718, the pirate Edward Thatch a.k.a. “Blackbeard” grounds his flagship Queen Anne’s Revenge off the coast of North Carolina at what is today called the Beaufort Inlet.  Fast-forward past the Revolution to the tenuous founding period when the newly-independent States separately debate ratification of the Constitution.  

For instance, July 1788, nearly 300 delegates from the counties of North Carolina gather for several days  in Fayetteville and devote more than two of those days debating Article III and the fears that the the federal judiciary will preempt the authority of state courts.  September 17, 1789, the U.S. Constitution is ratified including, of course, Article I, Section 8, Clause 8, granting Congress the power to write federally uniform IP laws, and the first Copyright Act is passed in May of 1790.

But …

In 1793, anti-Federalist fears are realized in Chisolm v. Georgia, when the estate of Alexander Chisolm of South Carolina successfully sues the State of Georgia in the U.S. Supreme Court for monies owed for supplies provided during the war for independence.  State obligations for the war debts are already a heated issue, and now a citizen of one State has sued the government of another State in the brand new federal court system, thereby vitiating the State’s authority over its own courts.  In response, we get the Eleventh Amendment on February 7, 1795, establishing the doctrine known as state sovereign immunity, to wit …

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

As an interesting side note, North Carolina Federalist, James Iredell, serving as Supreme Court Justice was the one dissent in Chisolm; and in the aforementioned 1788 debate in Fayetteville had declared, “The propriety of having a Supreme Court in every government must be obvious to every man of reflection. There can be no other way of securing the administration of justice uniformly in the several states. There might be, otherwise, as many different adjudications on the same subject as there are states.” 

Fast way-forward to November 1990.  Congress passes the Copyright Remedy Clarification Act (CRCA) to affirm that, indeed, States, instrumentalities of States, and officers and employees of States acting in their official capacity, are subject to suit in Federal court by any person for infringement of copyright… 

Then …

On November 21, 1996, an exploration company called Intersal, Inc. locates the wreck of Blackbeard’s Queen Anne’s Revenge, and the State of North Carolina engages Rick Allen’s Nautilus Productions to produce documentary motion picture material of the wreck, its recovery, etc.  At some point, a dispute arises between Nautilus and the State over certain uses of the footage, and the State settles the claims for a fee of $15,000.  But subsequent to that settlement, in 2015, North Carolina passes a remarkably narrow law “requiring that all recordings and other documentary evidence of a derelict vessel or shipwreck in the custody of any agency of the North Carolina government be a public record,” to quote Hugh Stephens from his excellent coverage of this case.  This law is colloquially referred to as “Blackbeard’s Law.”

Next …

North Carolina resumes infringing uses of the documentary footage, and Rick Allen files suit.  The District Court finds for the plaintiff, but on appeal, the Fourth Circuit reverses, holding that the 1990 CRCA is unconstitutional, finding that state sovereign immunity means that no copyright owner may hold any State (or its agents) liable for copyright infringement.  

P.S.  That this particular case happens to involve a literal pirate is almost as nerdishly satisfying as the fact that the name of Blackbeard’s ship Queen Anne’s Revenge shares the eponym with what is typically considered the first authorial copyright law, England’s Statue of Queen Anne of 1710.

Copyright Owners Should Be Concerned

Copyright infringement by State actors is an ongoing and growing concern, especially in a time when university librarians et al seem too eager to make everything available via the internet. Although the Fourth Circuit holding is consistent with precedent rulings, an amicus brief filed in this case argues that the Supreme Court should grant cert in Allen, in part because those precedent rulings are deeply flawed.

“If the Fourth Circuit’s decision stands, there will be few (if any) remedies available to compensate authors for their losses. This is not what Congress intended,” states the brief written by David Nimmer* in collaboration with Professor Ernest Young and book author Michael Bynum.  Bynum is an exemplary victim of the growing State infringement problem.  After he provided an advance-copy of a new book to the Athletic Department of Texas A&M for the purpose of fact-checking, the university instead made the work available on the internet and claimed sovereign immunity in its defense. 

The Nimmer brief is excellent reading for any copyright/constitutional law geeks out there who want an overview of the various components related to this case, which I cannot adequately summarize here.  But one point the brief makes that may strike many readers as especially compelling is the argument that, at the nation’s founding, the Framers recognized the necessity for a uniform, federal copyright law concurrent with the need to protect the individual right of free speech.  And because there is evidence in both the record of the founding period, and in subsequent caselaw, that copyright is meant to be an “engine of free expression,” the Nimmer brief argues quite rationally …

“The Framers could not have intended for States to retain immunity against claims for copyright infringement, as such immunity deters the creation of artistic expression and allows States to interfere with the author’s speech, including how he wishes to publish and use his work.”

This is an aspect of copyright that many casual critics often overlook:  that by forcing an author to make work available in a manner anathema to her intended expression—including her right to express nothing at all—the use may abridge her speech right.  When that kind of use is made by a citizen or private entity, the First Amendment is not implicated; but when such a use is made by a State actor, the First Amendment is absolutely implicated.  This is just one of several reasons why it is nonsensical to conclude that the Eleventh Amendment could ever have been intended to prevent an individual citizen from exercising a constitutionally-protected right when that right is infringed by a State actor.  As the Nimmer brief states quite succinctly, “Sovereign immunity should not be a license to steal.” 

Also see Nautilus Productions’s own blog post on this case.

* David Nimmer is the co-writer, with Melville Nimmer, of the authoritative treatise Nimmer on Copyright.