Category: Copyright

Packingham Ruling Likely Not Instructive to DMCA

Photo source by spaxiax

Another Supreme Court First Amendment decision this past Monday was a source of excitement for parties who consistently argue that copyright enforcement in cyberspace cannot help but infringe First Amendment rights.  I’ll say at the outset that I fully agree with the decision in this case but very much doubt any proposal that the opinion in Packingham v. North Carolina contains the DMCA implications certain copyright critics are hoping it does.

The case itself has nothing to do with copyright. In fact, Packingham begins with the highly-sensitive issue of registered sex-offenders and a North Carolina law designed to prohibit anyone who is so registered from using social media sites.  The eight justices (minus Gorsuch) held unanimously that the State law was far too broad in scope to achieve its purpose–that it infringes the speech rights of people who have already served their sentences by unduly denying them access to the contemporary equivalent of a library, public forum, employment resource, etc.

“With one broad stroke, North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. Foreclosing access to social media altogether thus prevents users from engaging in the legitimate exercise of First Amendment rights. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives.”

It is just that kind of language that “digital rights” activists love to hear in general, but more specifically, some of the usual suspects have theorized that this decision may have constitutional implications for DMCA Section 512(i), which stipulates that, to remain shielded from liability for third-party copyright infringement, internet service providers must have policies in place that will ultimately result in account termination for “repeat infringers.”  Critics of online copyright enforcement are hopeful that the Supreme Court’s decision in Packingham establishes the precedent to advocate that restricting web access under any circumstances is always a First Amendment violation, which would gut one of the few remedies in DMCA that may actually be effective.

Reading Between the Rhetoric

The opinion, written by Justice Kennedy, does contain quite a few buoyant pull-quotes that internet advocates are going to save for future cases—if not make into hats, mugs, and bumper stickers.  “While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be,” the opinion says. While there can be little doubt that Packingham affirms that cutting a citizen’s access to the internet begs careful scrutiny in context to the First Amendment, it may not be quite so fatal to DMCA 512(i) as is being suggested.

For all of its praise of the web, the opinion also contains caveats such as, “…this opinion should not be interpreted as barring a State from enacting more specific laws than the one at issue. Specific criminal acts are not protected speech even if speech is the means for their commission.”  It is a matter of settled law that copyright infringement is not protected speech; so qualifiers like this quote would seem to reject the prospect that citing Packingham will be particularly instructive to the constitutionality of Section 512(i).

Further, Justice Alito, joined by Justice Thomas, agrees with the decision, though not with the opinion.  Specifically, Alito sharply criticizes the broad rhetoric employed by his colleagues, concerned that these platitudes may foreclose a State’s right to tailor a far more narrowly-defined law that would seek to keep sexual predators away from access to children via social media. Observing that the internet unquestionably creates new opportunities for committing criminal acts, Alito seeks to temper the slightly techno-geeky ebullience of the opinion with comments like the following:

“The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks. And this language is bound to be interpreted by some to mean that the States are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers. I am troubled by the implications of the Court’s unnecessary rhetoric.”

“The fatal problem for §14–202.5 [the North Carolina statute] is that its wide sweep precludes access to a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child.”

So, for all the web-endorsing statements made in the opinion in this case, the copyright enforcement critics may be grasping at straws here for the simple reason that both the intent and application of Section 512(i) is narrowly tailored to restrict access to individuals who are specifically abusing that access to repeatedly commit a specific crime.  (Stay tuned for people to muddle this by contrasting sexual predation with copyright infringement, but that’s not a comparison anyone is making.)

An Analogy Regarding Users

With a little revision, the language employed by the Court to describe the internet might be transposed to describe the automobile at the dawn of its entrance into American society.  The essential right to travel by car to work, to the store, to a doctor, to take a vacation, or just to go anywhere without purpose, is affirmed in the American triad of inalienable natural rights described as the Pursuit of Happiness. It is a declaration that predates the First Amendment by fifteen years and a whole revolution.

Yet, despite all that, the Supreme Court is unlikely ever to rule that a State may not revoke a driver’s license under statutes narrowly tailored to the purpose of maintaining safe and legal transportation on the highways. Similarly, if a user were to lose some form of internet access as a result of ISP compliance with DMCA 512(i), this remedy is narrowly focused on that user’s consistent abuse of the system itself.

Actual Practice 

The main flaw in the view that Packingham implicates anything about the DMCA is that compliance with its conditions is not mandated. The DMCA is law, but its provisions are voluntarily adhered to in order to qualify for the “safe harbor” liability shield for infringements committed by users. As such, provisions like Section 512(i) are broadly written in order to give ISPs discretion to design their own policies, although that discretion—as we see in the Cox case—has been interpreted by some providers to mean that they can avoid enforcement of a repeat infringer policy until they lose the safe harbor.

In reality, a user has to try pretty damn hard to have an account canceled by a service provider for repeat copyright infringement.  At the very least, a user will receive several warnings that his chronic infringement will lead to account termination. In general, though, it is unclear that any major service providers actually enforce repeat infringer policies at all.  This, of course, does not stop the pundits from repeating unsubstantiated claims of rampant “DMCA abuse.”

What Packingham does suggest to me is that the opinion would serve a plaintiff quite well, if he were to sue an ISP or edge provider for wrongful termination. But the potential for “wrongful” termination implies that there can be legitimate reasons for termination, whether these are based on compliance with statutes or they are stated in the company’s own Terms of Service.

Service Providers are Not State Actors

“Even extensive regulation by the government does not transform the actions of the regulated entity into those of the government.” (Jackson v. Metropolitan Edison Co 1974)

As stated repeatedly on this blog, regardless of the many free speech invocations made by the internet industry, the First Amendment only prohibits the government from infringing speech.  Google, Facebook, Amazon, Twitter et al may do pretty much whatever they want, including proscribing any form of content they deem unfit for their platforms; and the First Amendment has nothing to say about it. And, of course, site owners do control content on their platforms as suits their business interests.

The counter-argument being made is that Packingham comes close to asserting that any type of user access is constitutionally protected by the First Amendment and, therefore, a provision like 512(i) must be unconstitutional.  While it is certainly true that SCOTUS articulated the significant relationship between the web and the First Amendment, I believe this opinion stops well short of closing that particular circle of reasoning.  In fact, my legal expert colleagues tell me that this logic doesn’t usually carry much weight in court as it would imply that the moment any of us obeys the law, we become “state actors.”

In the end, the Supreme Court said some nice things about the internet–all true, I think, and all good grist for the PR mills.  But it seems highly doubtful that this opinion says much, if anything, about DMCA or online copyright enforcement.  To the contrary, the more the Court analogizes the web to parks and other physical, public spaces, the more likely it seems they will view cyberspace as a place where the rule of law still applies.

Slants Trademark Decision May Have Other IP Implications

In 2010, the Oregon-based, Asian-American band had its application for a trademark in the name The Slants rejected by the US Patent and Trademark Office. The denial was based on a statute in the 1946 Lanham Act prohibiting registration of marks “which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”  In other words, the USPTO rejected The Slants because the word slant can be used as a pejorative to disparage Asian people, which is precisely why the band adopted the name in the first place.  (Readers may have seen headlines stating that the Supreme Court ruled in favor of the trademark status of the much-debated offensiveness of the Washington Redskins name; but in fact, the Redskins matter is settled by virtue of the holding in this case Matal v. Tam.)

When artists or other speakers, who represent particular ethnic groups, reclaim disparaging terms, it usually serves as a very powerful way to diminish the harmful force of the words themselves.  For instance, as important as it is to respect the serious history of the ultimate pejorative for African Americans, the way in which a comedian like Richard Pryor weaponized the N-Word* (or for that matter how Mel Brooks satirized it in Blazing Saddles) cannot be overstated for the capacity of those expressions to alleviate social barriers by transposing genuine animosity into self-reflective satire.

The Slants are presumably following in this tradition, which does not mean that some people still won’t be offended by the name; but as Monday’s Supreme Court ruling affirms, an agency like the PTO may not consider the prospect of offense when registering a trademark without violating the First Amendment. As a result of this case, the disparagement clause (§1052(a)), which has been part of the Lanham Act since its passage 71 years ago, has now been declared unconstitutional.  Whether this has further implications for other clauses in the act remains to be seen.

The outcome in Tam has reasonably been viewed as a First Amendment victory, a reminder that the government has no business making judgments about private speech, and also a recognition that a trademark can absolutely be a form of expressive speech.  In past cases, the courts have held that the denial of a trademark is not a violation of speech because the lack of registration does not prevent a party from using a desired mark as expression.  A key difference in this case is that the government sought to argue that registering trademarks is analogous to government subsidies (e.g. grants from the NEA), and, therefore, the reistration of trademarks is a form of government speech.  All eight justices disagreed (Justice Gorsuch was not part of the ruling).

In circumstances like federal or state grants, the parties responsible for administering those subsidies may impose judgments regarding potential disparagement; and in fact, we would generally hope that they do so.  It is also not a violation of law for the government to spend public dollars to communicate a one-sided message, like an anti-drug or consumer safety campaign.  In fact the Court observes in this decision that demanding neutrality of government in speech would render it dysfunctional.  And although most of us wouldn’t want to see public dollars spent with the purpose of ridiculing or provoking bigotry against a particular race, culture, religion, nationality, etc., it cannot be denied that government officials and agencies have done all of these things at various times in our history.

Regardless, the PTO’s argument in Tam that the registration of a trademark is tantamount to government speech by way of subsidy was first rejected by the District Court and then upheld by the Supreme Court. From the decision …

“Contrary to the Government’s contention, trademarks are private, not government speech.… for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.”

Or as it was stated in a slightly more amusing fashion …

“It is thus farfetched to suggest that the content of a registered mark is government speech, especially given the fact that if trademarks become government speech when they are registered, the Federal Government is babbling prodigiously and incoherently.”

There’s probably a website somewhere insisting that the government is speaking in the coded language of Cheetos®, Tide®, and Red Bull®; but tinfoil hats aside, the decision in this case may have broader implications for other IP, particularly copyright. Specifically, the Court seems to have indirectly weighed in on a somewhat novel proposal from the libertarian right that intellectual property is a government subsidy.  In fact, the District Court in this case, made a direct comparison to copyright law in stating, “…the government would be free, under this logic, to prohibit the copyright registration of any work deemed immoral, scandalous, or disparaging to others.”

In other words, arguing that the registration of trademarks is a form of government speech through subsidy would, by extension, empower the government to censor speech through the copyright registration process.  Nevertheless, it has been in vogue for a few years now to describe copyright as a government-granted subsidy to authors; and then, by logic of the straw man, to assail the regime as a “federal regulation” that is holding back “innovation.”  It is an idea that appears to convene allies among the anti-corporate left and the anti-regulatory right; and lately, when I see that kind of agreement between ideological opposites, I tend not to conclude “strange bedfellows” so much as to assume that both sides are just wildly misinformed and not considering the implications of their position.

Of course, this “government subsidy” idea goes back to that larger debate over IP as natural right vs. IP as a purely utilitarian legal framework.  For now, though, in upholding Simon Tam and his friends’ right to trademark their band name (offensive or not to some people), the Supreme Court has provided an important lesson in the nature of American free speech and placed the government in its proper role as neutral provider of public services available to all citizens on equal terms.

See also:  Terry Hart’s Copyhype post from 2016.

*On a side note, the rap band N.W.A trademarked its name.

EU Court of Justice Ruling – A New Chapter?

Photo by alexskopje Pond5

This week, the Court of Justice of the European Union concluded what any rational observer would conclude about websites that make large volumes of unlicensed copyrighted works available to the public — that their owners know exactly what they’re doing and why they’re doing it.  A Netherlands-based foundation that protects copyright interests argued in the nation’s Supreme Court that two ISPs could be ordered to block access to The Pirate Bay.  That court referred the case to the EU Court of Justice for interpretation under the EU Copyright Directive.

Among the long-standing defenses employed by pirate site owners attempting to thread their operations through statutory imperfection, is the claim that they do not upload infringing copies of works to their servers. Their users upload the files.  Even if you’re the most pro-piracy individual in the world, there is nothing about that kind of reasoning that should pass the smell test, and now the EU has wrinkled its nose and declared that making works available in the manner that The Pirate Bay does “may constitute an infringement of copyright.” A decision published two days ago states the following:

“Whilst it accepts that the works in question are placed online by the users, the Court highlights the fact that the operators of the platform play an essential role in making those works available. In that context, the Court notes that the operators of the platform index the torrent files so that the works to which those files refer can be easily located and downloaded by users. ‘The Pirate Bay’ also offers — in addition to a search engine — categories based on the type of the works, their genre or their popularity. Furthermore, the operators delete obsolete or faulty torrent files and actively filter some content.”

If it walks, talks, and looks like an infringing enterprise, it’s probably an infringing enterprise.  Further, the EU Court decision offers a statement that may have considerable ramifications for site owners who have consistently sought to appeal to safe harbor provisions, based on the assumption that they are ignorant about what users do on their platforms.

“… it is clear from the Hoge Raad’s [Supreme Court of the Netherlands] decision that the operators of ‘The Pirate Bay’ cannot be unaware that this platform provides access to works published without the consent of the rightholders. [sic]”

Not only does this have implications for sites like TPB that are dedicated to piracy, but also to service providers and search engines that provide access to those sites as well as legal platforms that earn “unintentional” revenue from infringement. Most prominently, of course, I’m referring to YouTube, which has unquestionably profited from hosting unlicensed material while remaining shielded by safe harbors. The EU Court’s rational conclusion that site owners cannot be nearly so deaf, dumb, and blind as they claim, may prove to be a major threshold moment for counter-piracy efforts around the world.

In fact, the day before that decision was published, a new global initiative was announced by 30 major content creators, including old names like MGM and new names like Hulu.  The Alliance for Creativity and Entertainment (ACE) calls itself a “new global coalition dedicated to protecting the dynamic legal market for creative content and reducing online piracy.”

Stressing the importance of legal frameworks to foster the growth and maintenance of new platforms for accessing a diverse range of filmed entertainment, the Alliance states in its press release that it will “conduct research, work closely with law enforcement to curtail illegal pirate enterprises, file civil litigation, forge cooperative relationships with existing national content protection organizations, and pursue voluntary agreements with responsible parties across the internet ecosystem.”

While piracy advocates continue to claim (and not without precedent) that they will always find a way to keep infringing, 2017 may prove to be the year when we start to see much better cooperation among major rights holders and the major online platforms. It has certainly been the year when many parties (e.g. advertisers) have finally rejected the traditional claim by the internet industry that the web operates best as a self-governing universe.  And it seems that many users are coming to realize that platforms are already governed plenty by their owners in the service of their own financial interests.

Not Just About Piracy

Google and other platforms have strongly resisted demoting, removing, or de-indexing links to content that is defamatory, illegal, or otherwise harmful—even when courts have ordered companies to do so. “Digital rights” organizations have consistently taken what can be described as a maximalist position in blindly defending liability shields in both the DMCA and the CDA—even to the extent that the EFF apparently saw no reason for exception in the face of evidence that Backpage.com may have been supporting the trafficking of minors in the sex trade.

As levels of violence and extremism continue to grow, both American and European leaders have already indicated a desire to make online platforms more responsible for policing their sites; and this pendulum can absolutely swing too far in the wrong direction. As technologist Jaron Lanier warned this week on NPR, we do not want to give private corporations like Google too much power to “police” the web because they are not subject to oversight as government agencies are.  This is a much larger topic for future posts, but at the same time, it is known that enterprise-scale piracy intersects with other forms of criminal activity—particularly the malware trade.

Historically, whenever trends like those we’re seeing this year begin to write a new narrative, government turns to the industry in question with an ultimatum—that they can clean up their own act or Congress will do it for them. Given the present chaos in Washington, including specifically at the Department of Justice, predicting where exactly U.S. policy on countering illegal online activity is heading is a murky prospect at best.  Nevertheless, this EU Court decision; the recent mood of major advertisers toward Google; this new ACE coalition; and a perceptible shift in sensibility among users who feel that platforms need to be more proactive to counter hate crime, harassment, and violence all suggest that the internet industry may be about to become better partners in addressing some of the negative effects their business models have created.