Category: Intellectual Property

The EFF Campaign Against DMCA Section 1201 Perishes in the DC Circuit

section 1201

The First Amendment protects the right to read books but not the right to break into a bookstore for the purpose of reading—not even if the goal is to quote a passage from a book in a manner that would be fair use under copyright law. The hypothetical, lawful use of the book’s contents to produce protected expression does not make the law prohibiting trespassing into the store a violation of the speech right. Most reasonable people can understand this distinction, but for about 18 years, the Electronic Frontier Foundation (EFF) has tried to prove that common sense is wrong.

Ever since literary works, sound recordings, audiovisual works, etc. went digital, the concept of “digital locks” used to protect lawful access to these materials has vexed the EFF, which launched a campaign and lawsuit in 2016 to prove that the law against breaking said locks is unconstitutional. Filing suit on behalf of researcher Matthew Green and product developer Andrew Huang, the EFF has argued that Section 1201 of the Digital Millennium Copyright Act (DMCA) violates the speech right because circumvention of technical protection measures (TPM) may sometimes be done to achieve forms of protected expression that would be defensible under the fair use exception.

TPMs generally consist of code used to enforce lawful access to digitally distributed works like eBooks or streaming services, and §1201 prohibits circumventing TPM and/or trafficking in devices primarily designed for circumvention. By law, the Librarian of Congress (really the Copyright Office) conducts a triennial rulemaking proceeding to consider applications for, and grant exemptions to, §1201 for purposes such as research and certain educational or journalistic uses of the encrypted works. You can read posts here and here for background on the EFF’s case, but the bottom line is that the appellate court last week soundly rejected the claim that 1201’s “legitimate sweep” functions as a “speech licensing” law.

Among the court’s determinations, it held that the government’s interest in preventing “digital trespass” properly restricts a wide range of conduct that has no expressive purpose; the First Amendment does not guarantee unfettered access to expressive works; the plaintiffs in name make no showing that their protected expression is being chilled; and the various hypothetical examples presented by the EFF are answered by legal forms of access to works that do not require circumvention of TPM. More than a few of the court’s responses demonstrate why the EFF has tried inaptly to portray an anti-trespass law as a speech law. For example…

A trespass law undoubtedly affects some expressive conduct, as when political protestors trespass to stage a demonstration where it might have maximal impact. Similarly, the DMCA’s anticircumvention provision might preclude a student from circumventing technological measures to cut a high-quality clip of a copyrighted feature film to use in his class presentation. But trespassing is not “necessarily associated with speech,” because laws prohibiting trespass also “apply to strollers, loiterers, drug dealers, roller skaters, bird watchers, soccer players, and others not engaged in constitutionally protected conduct.”

As the court explains, §1201 likewise applies to a range of parties with an interest in circumvention for both lawful and unlawful purposes, but expression is not the basis on which the law operates. Going back to the bookstore, it is simply illegal to break in at all, regardless of whether the intent is to read, cite a book, or ransack the place. The fact that the vandal will face charges not attributable to the reader has no bearing on the trespass violation they both committed.

I also want to highlight the court’s response to the allegation that the §1201 rulemaking process is itself an unconstitutional prior restraint on speech as indicative of EFF’s chronic misstatements about fair use. The court writes, “An irony of appellants’ challenge to the DMCA is that the triennial rulemaking exemption scheme—which identifies in advance and immunizes categories of likely fair uses—may be less chilling of the fair uses to which it applies than the after-the-fact operation of the fair use defense itself.”

In other words, arguing a fair use defense requires litigation and uncertainty in contrast to a rule by the Librarian that a given use has been granted an exemption. The Library has granted a broad range of exemptions to §1201, and as this opinion notes, an exemption granted to a single petitioner (e.g., a documentary filmmaker or teacher) applies to all parties in that class with the same interest in circumventing TPM.

Finally, the court concludes that the rulemaking proceeding is not above judicial review—that a petitioner who believes the Library has made a content- or viewpoint-based decision may still bring a First Amendment complaint to the courts on that basis, but this does not alter the finding that the law itself withstands constitutional scrutiny. Never say never, I guess, but I predict this alleged controversy is now a settled matter—that EFF has wrung all the value it can from this campaign and will need to find a new anti-copyright windmill on which to break its lances.

Udio Answers Record Labels’ Complaint in Gen AI Lawsuit

As mentioned in my last post about the record labels’ lawsuits against GAI companies Suno and Udio, I will generally focus on the latter case. Both cases are almost identical, but because UMG et al. v. Ucharted Labs Inc. is at the SDNY (in the Second Circuit), those proceedings may be followed by other courts with considerably less copyright law precedent.

Udio’s answer filed on August 1 relies substantially on the premise that there is no cause of action whatsoever. The developer intends to show that “This lawsuit…seeks a genuinely unprecedented result: a ruling that it is actionable copyright infringement, not fair use, to have copied Plaintiffs’ works as part of the process of developing a new technology, even though the ultimate outputs of that new technology are themselves non-infringing.”

The list of counter-factual evidence Udio forecasts is too long to summarize, but the heart of its legal argument at this juncture is that 1) statute explicitly bars protection of musical style; 2) its AI training process entailed learning about music rather than copying protected sound recordings; and 3) because the product’s outputs are largely (or entirely) non-infringing, the purpose of producing “new” music is “what copyright law is designed to encourage, not prohibit.” The defendant also alleges that the recording industry’s claim is invalid on the basis that it has “misused copyright law” as part of a longstanding tradition of stifling competition. So, we have a ballgame that’s going into extra innings, and there will be plenty to say about the details as they emerge.

For now, I take issue with a few premises inherent to Udio’s answer. The first, which I have already stated a few times, is that even if every song output by Udio is “new” as a matter of law, the fact that none of these outputs is a work of “new authorship” as a matter of law militates against Udio’s implication that its product expands the purpose of copyright in general. And as stated, if that is correct, this should militate against a finding of fair use.

Second, despite the fact that Udio can and does point to uses of its product by creators who are plausibly engaged in authorship is, at best, a difficult basis on which to argue that the primary purpose of the product advances authorship. For one thing, the business model appears to be based largely on providing a music toy for consumers, not a tool for creators. Next, even where Udio may be used by professional music creators, the extent to which this fosters new authorship is a case-by-case consideration—one that relies on still-developing doctrine around the use of AI and authorship.

Third, even if Udio could prove allegations of relevant, anti-competitive practices among all the record labels (and I do not mean to suggest they can), the court must remain focused on the interests of individual creators—especially the next generation of music makers. The labels’ argument that the outputs compete with demand for existing sound recordings could be read as protectionism of existing catalogs but should be considered as to whether Udio competes with, or even obviates, the need for new human authorship in music. If so, this is categorically not what copyright law is designed to foster.

As stated in a few posts, and in comments to the Copyright Office, the unique challenge presented by GAI is that rather than pose a threat to the interests of specific authors’ works, it poses a potential threat to authorship itself. In this light, Professor Jane Ginsburg, in a new paper about the state of fair use jurisprudence, discusses two points that stand out for me at the moment. First, she describes the nature of a use-based fair use analysis (as applied in Warhol), which should not “untether” the fair use protection for a use other than the one narrowly ruled on by the court. Second, she notes that the courts may look beyond the “explicit direction” of the fair use statute to consider a factor like broad effect on authors’ careers—or even the potential for other unlawful uses like forgery or fraud.

With regard to use-based analysis, Ginsburg forecasts the uncertainty in adopting a per se fair use rule for machine learning because the consideration of fair use of the inputs may turn on the nature of the outputs. “If an AI system ingests multiple images of apples, including Cézanne’s depictions (let’s assume Cézanne’s works were still under copyright) its training data will enable the system to “know” both what an apple looks like, and what a Cézanne apple looks like. The fair use inquiry may depend on whether the user asks for an apple, or for a Cézanne apple,” Ginsburg writes.

Perhaps more directly applicable to the labels’ case against Udio, Ginsburg states in regard to image-generating AIs and fair use factor four, the effect of the use on market value:

… even under a solely work-based interpretation of section 107(4), one may observe that the wholesale copying of an artist’s works into training data in order to enable stylistically similar outputs jeopardizes not only the artist’s future employment or commissions, but also devalues the actual works copied, because the image-generation program can produce outputs that compete with already-created works as well.

That same rationale would seem to apply to the labels’ evidence that Udio can output sounds which are substantially similar to famous and protected sound recordings. So, while the defendant is correct to say that copyright does not protect style and that music production relies substantially on mixing and matching a finite combination of styles, arrangements, etc., that premise, both statutory and judicial, is derived from a copyright history that has only ever included human artists in “competition” with one another. Consequently, the courts have latitude to find that it is in fact the AI developer who is seeking the novel conclusion that its machine furthers the purpose of copyright law.

As I say, there will be plenty of details to follow and plenty of considerations to nerd out on, if one is so inclined. And for better or worse, I am so inclined. Stay tuned (pun intended).

COPIED Act Introduced in the Senate with Focus on Content Provenance

copied act

On July 11, Senators Cantwell, Blackburn, and Heinrich introduced a bill called the Content Origin Protection and Integrity from Edited and Deepfake (COPIED) Media Act. One of many AI related bills in Congress, the heart of COPIED is transparency in artificial intelligence through implementation of content provenance information (CPI). COPIED requires development of industry standards to create “machine-readable information documenting the origin and history of a piece of digital content, such as an image, a video, audio, or text.”

The Commerce Committee press release announcing the bill states endorsement by News/Media Alliance, National Newspaper Association, Rebuild Local News, NAB, SAG-AFTRA, Nashville Songwriters, Recording Academy, RIAA, music publishers, artists, and performers. Senator Heinrich, who sits on the Senate AI Working Group, stated, “I’m proud to support Senator Cantwell’s COPIED Act that will provide the technical tools needed to help crack down on harmful and deceptive AI-generated content and better protect professional journalists and artists from having their content used by AI systems without their consent. Congress needs to step up and pass this legislation to protect the American people.”

In a nutshell, the bill calls for advanced, hard to remove, watermarks (or metadata) which would be permanently attached to digital content. In what sounds like a combination of copyright management information (CMI) and a chain of title concept, the development of CPI would enable tracing and validating the source of digital content with a variety of goals, including mitigation of deepfake or modified news stories and use of protected creative content without permission.

The COPIED Act would require the Under Secretary of Commerce for Standards and Technology to oversee the development and implementation of CPI in collaboration with the Register of Copyrights and the Director of the U.S. Patent and Trademark Office. If passed and effectively implemented, the law would prohibit removal, alteration, or tampering with attached CPI for deceptive or adversarial commercial practices; and one part of Section 6 of the bill begins, “It shall be unlawful for any person, for a commercial purpose, to knowingly use any covered content….” [emphasis added] This focus on use of material with attached CPI will be of greatest interest to creative professionals concerned about the myriad ways in which their work is used without permission for the development and commercialization of GAI.

Of course, there are miles to go before we see if and when this bill makes progress, at which point it may provoke some familiar arm flapping by the Electronic Frontier Foundation (EFF) recycling the same rhetoric it used to complain about digital rights management (DRM) technology. EFF lost its campaign to prove DRM under §1201 of the Copyright Act is unconstitutional, while this bill’s proposal for CPI is more reminiscent of §1202 under which it is unlawful to remove copyright management information (e.g., a watermark) for the purpose of copyright infringement. It strikes me that a similar approach would apply to removal of, or tampering with, content provenance information. After all, if it is designed to be as robust and tamper-proof as the bill projects, this would suggest its removal takes some effort and expertise, which itself implies a purpose that is likely to be unlawful.

Stay tuned. We shall see where this goes, but the aims of the COPIED Act strike me as a well-founded good start.

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