Tag: DMCA

Some Good Copyright News From Down Under

G’Day! Since there’s so much gloomy news here in the States, I thought I’d take a moment to note that Australia did a couple of pretty cool things recently.  They legalized same-sex marriage, so good on them for that.  And on the 6th of this month, they introduced a safe harbors provision to their copyright law that would exclude platform providers like Google and Facebook.  The new copyright liability shield would extend to carriage service providers, academic and cultural institutions, and organizations for the disabled.  If the bill passes as is, the legislation could prove instructive if and when the U.S. resumes debate on revision of its own safe harbor provisions.

The internet giants have strenuously lobbied the Australian government to adopt blanket safe harbors akin to those in Section 512 of the U.S. DMCA. Naturally, they’ve repeated the standard arguments that the liability shield against copyright infringement, established in this country in 1998, remains essential for free speech and the continued innovation of web platforms.  (What other argument do they ever make?)

Rights holders in the U.S., perhaps most prominently independent musicians, have tried for years to describe how the DMCA’s safe harbor provisions have had the unintended consequence of enabling the major—otherwise legal—platforms to profit from mass copyright infringement.  As described in detail in several posts, the most obvious example is YouTube, which grew to its monopsony position partly on the backs of creators whose works were constantly uploaded to the platform without license.

Because copyrighted works are uploaded by users, a platform like YouTube remains shielded from liability but still free to reap the rewards of traffic driven by the high volume of infringement. The fundamental flaw in the policy should be obvious:  where a corporation has both financial incentive and zero liability, it’s probably going to make some effort to profit from whatever conduct was supposed to be mitigated by the policy.  Both the harm done to creators and the untouchable market dominance of YouTube are unintended results of the safe harbor provisions in the DMCA.

Although presently overshadowed by more serious policy issues (and the circus), when Congress first took up review of the Copyright Act in 2013 and the Copyright Office last year began review of the DMCA, many independent artists and rights groups began to amplify the message that revision of Section 512 is long overdue.  In response, the internet industry and the familiar network of “digital rights” groups began promoting the counter-message that the status quo of the safe harbor is essential to (say it with me) free speech and innovation. And this is on top of the widely-promoted fallacy that the DMCA has predominantly been abused by rights holders to stifle speech, even where no infringement exists.

The Australian bill may yet change, but if their more narrowly tailored safe harbor provision becomes law, it could be instructive to the American creative community, if we resume discussion about Section 512 of the DMCA.  At the moment, it feels quaintly optimistic to imagine standing on the other side of so much political chaos with a still-extant republic in which to debate copyright law, but one must keep hope alive I suppose. In the meantime, what’s intriguing about Australia’s legislative process on this matter is that their bill reflects an effort to balance the intent of safe harbors with effective copyright protection—but with a contemporary understanding of online infringement that simply did not exist in the U.S. in the 1990s.  At the very least, it’s encouraging to see legislators draw a sharp distinction between public-serving, cultural institutions and the world’s largest, for-profit tech giants.  For far too long, we in the States have allowed Google & Friends to blur those lines.

The Internet is Not a VCR

That may seem obvious, but if you’re an internet service provider who fails to uphold your end of the DMCA bargain, you’d sure like the courts to think of your service as analogous to the VCR. Certainly, this is fundamental to the appeal filed in the case of BMG v. Cox Communications, for which oral arguments were heard at the 4th Circuit on October 25.

In December of 2015, a jury awarded BMG $25 million in damages after finding Cox guilty of contributory copyright infringement committed by its customers. As a result of evidence demonstrating that Cox had taken affirmative action to avoid implementing a repeat-infringer policy,* the ISP was deemed to have nullified its “safe harbor” under the DMCA, which broadly protects ISPs against liability for copyright infringements committed by their users. Counsel for Cox has argued on appeal that had the jury been instructed to apply what’s known as the Sony-Betamax standard, the outcome might have been different.

Cox asserts that it cannot be held liable for contributory infringement for the same reasons that Sony Corp could not be held liable in 1984 when it was sued by Universal Studios for the production and sale of the Betamax video tape recorder. Specifically, Cox relies on the Supreme Court holding that because the Betamax could be used for “substantial non-infringing purposes,” Sony could not be held liable for contributory infringement even though the company knew that some customers would inevitably use its product to infringe.

Needless to say, internet access is used substantially for non-infringing purposes by millions of consumers, but that’s more or less where the comparison between the Betamax and an ISP ends. Cox is not the first internet service to try to make the Sony argument, and for good reason: because if it worked, no online service provider could ever be held liable for contributory copyright infringement. What’s funny about this, however, is that it was the ISPs themselves (ATT, Verizon, et al) who in the 1990s fought for the liability shield provisions in the DMCA that are at issue in this case. In other words, by Cox’s logic, those ISPs negotiated a statutory “safe harbor” provision against a liability that allegedly did not exist based on a Supreme Court decision in 1984.

The Sony Standard Has Already Been Defined

Unfortunately for Cox, the Supreme Court has largely answered the interpretation of Sony that they hope to apply in their defense. In MGM Studios v. Grokster (2005), the Court, for instance, clarified that the Sony standard does not preclude consideration of any evidence that may indicate knowledge of, or intent to induce or facilitate, infringement—even if the defendant’s product or service may be used for substantially non-infringing purposes.

In other words, the whole “non-infringing use” thing is not a blanket defense. In Sony, the knowledge of infringement was generalized (i.e. somebody somewhere would use VTRs to infringe); whereas in Grokster and other internet-based circumstances, the knowledge can be both specific and actively ignored or facilitated by the service provider. Hence, an important distinction in the Betamax ruling, which does not apply to ISPs, was that Sony’s relationship with its users ended with the purchase of the video recorder. Sony had no way of knowing, controlling, or influencing the infringing or non-infringing uses made by those customers, and so could not reasonably be held liable for contributory infringement.

But an ISP is exactly the opposite. The relationship with customers is continuous and interactive such that the ISP can know precisely how its service is being used by each individual. Were this not the case, the compromise proposals in the DMCA, which include a provision that ISPs maintain a policy for addressing repeat infringers, would not exist. And I repeat, these provisions were largely proposed by the ISPs themselves.

During oral arguments at the 4th Circuit, Judges Wynn and Shedd did grill BMG counsel rather strenuously on the subject of what defines a “repeat infringer.” In truth, this is a flaw with the DMCA, which actually fails to define a number of its terms, and these ambiguities  have inadvertently resulted in both ISPs and edge providers straining the intent of the law. A major reason for the lack of clarity in the statutes is that, constituent to the passage of the DMCA, Congress ordered both the ISPs and the rights holders to collaborate in good faith to develop technical solutions to mass infringement. That was a year before Napster provided a road map for just how lucrative third-party infringement could be for a platform that learned to exploit the imperfections of the DMCA. Enter YouTube.

As a matter of plain common sense, it ought to be clear to anyone without the slightest knowledge of copyright law that the internet is not a VCR. The Betamax and its subsequent VHS followers were devices with very limited applications, whether infringing or not. By contrast, nearly everyone uses the internet all day long for everything from checking the weather, conducting business, grocery shopping, streaming the news, and talking with friends and family.

Some have argued that our universal dependence on the internet means that nobody should ever be denied service for any reason, including repeat copyright infiringement. This is technically a separate debate which has been attached to the Cox/BMG case and asserted in other contexts by the EFF and similar “digital rights” organizations. Personally, I would argue that, at least in terms of of the DMCA and BMG’s claim, that the omnipresence of the internet only serves to vitiate Cox’s appeal to the very narrow Sony-Betamax standard, which was predicated on the very narrow purpose of that particular technology.

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* §512(i) of the 1998 Digital Millennium Copyright Act (DMCA) requires that ISPs implement policies to address repeat infringement, including account termination in reasonable circumstances.

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.