Category: Intellectual Property

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

Pirate Sites Calling Themselves Libraries are Pirate Sites

I know I’m arriving late to this party. It’s almost Thanksgiving, but it was back on November 3 that two Russian nationals—Anton Napolsky and Valeriia Ermakov—were arrested in Argentina at the request of the United States on charges of criminal copyright infringement, wire fraud, and money laundering. Concurrent with the arrests, authorities seized 241 domains controlled by the book piracy enterprise the pair allegedly operated called Z-Library. According to TorrentFreak, the repository has migrated, at least in some form, to the dark web.

The indictment against Napolsky and Ermakov was unsealed in a Brooklyn, NY court on November 16, and while they await likely extradition to the U.S., author and publisher organizations and other creators’ rights advocates applaud the efforts of the law-enforcement agencies involved with the investigation. My friend Neil Turkewitz notes, “I have been operating in the copyright world for nearly four decades, and I could probably count on one hand the number of times that a piracy story focused on individual creators rather than the much maligned ‘Big Media.’”

True. Not that “Big Media” piracy is justified, but it is substantially harder to fool oneself that book piracy does not directly harm individual authors, who generally make less than a living wage for their writing. In a statement released by the Authors Guild (AG) praising the interdiction of Z-Library, CEO Mary Rasenberger states, “We owe a tremendous debt of gratitude to the U.S. Attorney’s Office for the Eastern District of New York and to the FBI for all of their hard work in not only shutting down the site but also finding and apprehending the perpetrators. We also thank the U.K. Publishers Association and international authorities who assisted in the investigation, as well as the authors who assisted us by filing statements reporting piracy of their books on Z-Library.”

I will decline to wade again into the morass of rationalizations for piracy that predictably erupted on social media when Z-Library was taken offline. That story never changes. Though, perhaps the rhetoric of the pirates themselves changes—at least a little. “There is a growing — and disturbing — trend of pirate operations masquerading as libraries to manipulate and evade the law,” states Lui Simpson, Senior VP, Global Policy for the Association of American Publishers (AAP). “This action [against Z-Library] sends a clear message that industrial scale infringement will not be tolerated, no matter what the perpetrators call themselves.”

Maybe “library” is the new “sharing service”? Simpson is right, of course, that it doesn’t matter. A pirate operation by any name will still smell like a criminal enterprise, and in case you’re curious about when copyright infringement may be deemed “criminal,” the basics are as follows:  The infringement must be willful and for purposes of commercial or private financial gain; or the works infringed must have a retail value of $1,000 in any 180-day period. That’s not a very high bar, though criminal copyright indictments are typically brought against large-scale, blatant operations like Z-Library, whose estimated 8 to 11-million books it made available obviously exceeds $1,000 by orders of magnitude.

Further, traditional online piracy models demonstrate that the infringer does not have to profit directly from trade in the infringed works themselves. One can copy and distribute works without license and either cross the $1000 threshold (easily), or one can commercialize the traffic generated by “giving away” unlicensed works, which creates a nexus between the infringing activity and commercial/financial gain for the infringer. Historically, the pirate sites made most of their revenue from the online advertising system, but when some of those avenues were closed off by the legit ad industry, the site operators pivoted to various all-you-can-eat subscription models and malware as sources of revenue.

Of course, one does not need to operate a Russian pirate network to engage in illegal copying and distribution of books while telling the public the enterprise is a “library.” Internet Archive calls part of its operation an “Open Library,” even though it does not meet the definition of a “library” under the statute and, more importantly, despite the fact that it does not license in-copyright eBooks but instead produces unauthorized eBooks and makes them available without permission. And it does this under a model that is legally unfounded and operationally so murky as to make anyone wonder exactly how the money flows throughout the organization.

From the author’s perspective, the potential harm caused by IA’s “Open Library” is hardly distinguishable from the harm caused by a Z-Library. So, while IA may not be engaged in criminal copyright infringement, its broad-based efforts to undermine copyright are perhaps even worse. An enterprise like Z-Library will cause harm until it is shut down. What Internet Archive and its friends want to do is to strip copyright rights from authors forever. And I would call that criminal in the colloquial sense, if not in the legal one.