Tag: DMCA

EFF says Section 1201 of the DMCA is Unconstitutional?

Last week, the Electronic Frontier Foundation filed suit against the federal government, naming the DOJ and the Copyright Office as defendants.  The EFF filed on behalf of plaintiffs Dr. Mitchell Green, a computer scientist and researcher at Johns Hopkins; Andrew Huang, an engineer and inventor; and Huang’s company Alphamax LLC.  The crux of the suit argues that Section 1201 of the DMCA, which prohibits circumventing technical protection measures (TPM), or trafficking in devices used for circumventing these measures that are designed to protect copyrighted works violates the First Amendment and is, therefore, unconstitutional.

The most common type of TPM consumers tend to be aware of are applications like the software on a DVD that prevents or mitigates illegal copying of the contents; but TPM are increasingly used in a broad range of devices and products because, of course, computers and software increasingly run everything we touch. For this reason, 1201 applies to a wide range of classes of copyrightable works, including software itself, and so the debate over the law invariably conflates movies and medical devices or cellphones and tractors, which means the public dialogue can be rather confusing for most of us.

We read a brief assertion in an article by Cory Doctorow—or even an opposing view—and the nitty-gritty may be ten pages of complex analysis by the Copyright Office that few people will read let alone fully understand.  Meanwhile, consumers should keep in mind that absent the provisions in 1201, products like DVDs, iPods, and Kindles would simply not exist because rights holders would not have licensed their works for distribution on these platforms. And it is characteristic of the EFF and its colleagues to focus on the restrictive aspects of a legal framework while ignoring the productive ones.

In simple terms, it is illegal to circumvent TPM, whether the copyrighted material being protected is entertainment media like an eBook or it’s the software that runs a medical device or the systems in your car. The EFF’s criticism weighs heavily on the fact that it is a violation of 1201 to circumvent TPM even if the intent is not to infringe copyright, but there are also permanent and termporary exemptions in force, recommended by the Register of Copyrights, that allow for circumvention in a number of circumstances. Every three years, the Copyright Office reviews applications for exemptions, though this process itself has been called “onerous” by the EFF and others and is likewise implicated in the question of constitutionality of the 1201 statute.

As mentioned, there are three named plaintiffs in this suit, though one can think of Andrew Huang and his company Alphamax as representing the same interests.  But in an effort to keep this post under 2,000 words, I’ll focus on the complaint regarding Dr. Green and EFF’s broad complaint that the Copyright Office triennial review process is itself stifling free speech.

That Dr. Matthew Green’s Security Research is Being Stifled

Likely, the most compelling and easiest to understand complainant is that of Dr. Green, who conducts important research into, among other things, the security systems of automobiles. This was the focus of his application for an exemption to 1201 during the last triennial session.

Dr. Green explains on his blog that because the Copyright Office failed to grant the exemptions he applied for, that a project underway in the Fall of 2015 had to be conducted in a manner less efficacious and less thorough than the best method available. He also implies that the opposition to his application from the Business Software Association might have carried undue, industry weight in the decision-making process.  But a review of the Register of Copyright’s analysis and conclusions regarding the relevant class of exemptions reveals that the Copyright Office was substantially more sympathetic to the testimony of Dr. Green and his co-applicants than it was to the opposition arguments of either the software or automotive industries.

In fact, the Copyright Office, in its Final Rule issued on October 28, 2015, recommended a broad exemption for “good faith” research like the work being conducted by Dr. Green, but it also recommended a 12-month waiting period to implement this exemption.  Although this delay may be a source of frustration for researchers and the EFF, it was not proposed due to industry opposition to the exemptions. Instead, the Copyright Office recommended the one-year delay in deference to various federal agencies that had weighed in with concerns regarding some of the proposed exemptions.

For instance, the EPA stated that certain aspects of the work to be conducted could “slow or reverse gains made under the Clean Air Act.”  How?  I have no idea.  But neither does the Copyright Office because they’re not authorized to have an opinion about the environment. So because some of the concerns raised are outside copyright’s purview, the Register proposed  the delay in order to give other federal agencies time to review. That’s what they’re supposed to do, and neither Dr. Green nor the EFF appear to acknowledge that there is an extent to which this research is being slowed by federal agencies which have nothing to do with copyright or Section 1201.

Moreover, the timing of EFF’s big play to argue the unconstitutionality of the entire law is odd in light of the fact that the Copyright Office is largely in agreement with applicants like Dr. Green. In fact, the Copyright Office could not have been more clear in its agreement that the current permanent exemptions for security research are not sufficient to protect Dr. Green and his colleagues from liability.  But when the office called for recommendations to 1201 in the beginning of this year, neither the EFF nor any of its sister organizations filed comments with a view toward amending these permanent exemptions.

So, one question worth asking is why the EFF does not use its considerable resources to seek amendment(s) to the permanent exemptions rather than work toward the less likely outcome that the entire statute will be declared unconstitutional?  After all, as a practical matter, if the real interest is enabling people like Dr. Green to work at his best as soon as possible, fixing the permanent exemptions is a far more practical enterprise than the prospect of having the Supreme Court vitiating all of 1201 several years from now. This seems especially true when the Register already agrees that the current statutes are inadequate.

That the Triennial Review Process is Stifling Speech

Roughly one-third of the EFF’s complaint focuses on the alleged inadequacy of the triennial review process itself. Their contention is that the process is so cumbersome and slow that it fails to fulfill its purpose to provide an adequate counter-balance to 1201’s restrictions and also constitutes a prior restraint on speech by delaying applicants’ ability to engage in otherwise legal, non-infringing research or publication.

Two things seem odd about this section of the complaint.  The first is that it focuses on 1201’s alleged, broad infringement of the speech of filmmakers* and teachers despite the fact that the named plaintiffs in the lawsuit applied for exemptions having nothing to do with filmmaking or teaching.  The second is that the Copyright Office actually did recommend exemptions for a large number of requests pertaining to filmmakers and teachers, though, apparently these did not go far enough for the EFF, which scorns rejections—like an exemption for “narrative filmmakers”—as evidence that 1201 is stifling speech.  Of course, considering this particular class of filmmaker begs detailed analysis because the majority of narrative film uses are not generally fair uses. So, this part of the complaint begins to sound like EFF may be making its usual free speech mountain out of a copyright molehill.

Also, with regard to the alleged onerousness of the review process, the public should note that the process is a rather large task resulting in decisions that have far-reaching implications throughout the market.  Exemptions apply to everyone, not just the applicants.  So, when the CO said that it’s cool for a K-12 teacher to “rip” film clips from his DVD collection to bring into class to teach film or cultural studies, that circumvention is now kosher for all teachers doing the same thing across the country. So, because these rulings are not narrow decisions (like fair use judgments), it seems reasonable that reviews happen triennially and that applicants bear some substantial burden to argue their cases for various exemptions.  The CO’s complete review of the last round of applications is over 400 pages long.  How frequently should the agency engage in that level of detailed analysis and make recommendations that have considerable effect in the market, and which must conform to existing laws beyond the scope of copyright?

And once again, the timing of this complaint is curious because the Register earlier this year recommended that, going forward, all successful petitions not opposed in the next review cycle need not be re-litigated.  This is relevant because the EFF specifically cites the need to re-apply for exemptions every three years as evidence of undue burden, but it ignores the fact that the Copyright Office acknowledges the issue and is making recommendations to mitigate the problem.  So, the big question reprises:  Why is EFF more eager to try to strike down the entire law than it is to work with the Copyright Office to address some of the very flaws the Register agrees exist?

Based on just the complexities I have tried to articulate here—and which only scratch the surface—it seems unlikely the First Amendment complaint will make as much progress as it will make noise. Yes, we want to protect fair use for expression and the ability of researchers to ensure our safety and security while living with our computerized products. But the record indicates that the Copyright Office is in synch with these views.  We’ll see what the courts say.

Strange Rulings at the Second Circuit

Copyright split 2The Second Circuit Court of Appeals handed down opinions on June 16th with two important implications—one that looks like legislating from the bench by ignoring Section 301(c) of the Copyright Act and another that appears to create a split with the Ninth Circuit over interpretation of what’s called “red flag” knowledge referring to § 512(c) of the DMCA.

The case Capital Records v Vimeo involves the alleged infringement of pre-1972 sound recordings that were uploaded to the platform in a manner likely to be infringing. With the passage of the 1976 Copyright Act, sound recordings that were fixed prior to February 15, 1972 remained under the protection of the state copyright laws in which the works were registered.  And as Stephen Carlisle at Nova Southeastern University points out in his in-depth analysis of the circuit court ruling, these pre-1972 recordings have never been covered by federal law, but this court just ruled that they are covered by the provisions in the DMCA (which is of course federal law), which means that Vimeo is therefore eligible for the safe harbor shield in regard to alleged infringement of these recordings.

The EFF and other proponents of the ruling have stated that the court applied common sense on the grounds that the intent of Congress with the DMCA could not have been to “leave service providers subject to liability under state laws.”  It is certainly true that a ruling in the other direction would have major implications for a site like YouTube, which could face numerous litigations under state copyright laws or would have to figure out how to keep all the possibly-infringing, pre-1972 music off its platform.  While this would arguably not be consistent with the intent of DMCA, is this fact alone reason for the appeals court to ignore the federal copyright law statute as it stands?

Keeping in mind that it was also not the intent of Congress that the DMCA would shield the volume of infringements that occur today, Carlisle’s main point is that Section 301 of the Copyright Act is explicit on the copyright status of these recordings and so writes, “Section 512 [of the DMCA] takes away my right to sue a service provider from infringing my pre-1972 sound recordings. This limits my remedies under state law. Unless Congress is going to amend 301 [of the Copyright Act] to provide for an exception for ‘safe harbor’ it cannot act in the way that this Court has just ruled that it did.”  In short, this ruling strips owners of pre-1972 recordings of the ability to enforce their rights under state law even though Congress has not yet folded them into protection of federal law—a proposal that is currently being considered.

The other important opinion in this case, according to Devlin Hartline at the Center for the Protection of Intellectual Property, is that it creates a split with the Ninth Circuit on the issue of what’s called “red flag” knowledge of infringement by the defendant OSP. One of the conditions an OSP must meet in order to retain safe harbor is to “expeditiously” remove infringing material once the provider has “actual knowledge” of an infringement or once the provider becomes “aware of facts or circumstances from which infringing activity is apparent.”  This second part of the statute is generally referred to as “red flag” knowledge, and it is just vague enough to be the basis of an ongoing tug-o-war between rights holders and service providers.  For instance, common sense would dictate that any reasonable person working at Vimeo and monitoring the platform would know that a lot of popular and famous music was not licensed to the individuals uploading it.  And that’s essentially what Capitol Records argued.  But the court disagreed.

The Second Circuit opinion held that Capitol had not presented sufficient evidence to find that the defendant had “red flag” knowledge, stating the following:

[A] showing by plaintiffs of no more than that some employee of Vimeo had some contact with a user-posted video that played all, or nearly all, of a recognizable song is not sufficient to satisfy plaintiffs’ burden of proof that Vimeo forfeited the safe harbor by reason of red flag knowledge with respect to that video.

But Hartline’s point is that the Second Circuit is applying a different standard to “red flag” knowledge than the one imposed by the Ninth Circuit and that the two courts are now split on two separate issues in this regard.  The first opinion is whether or not “red flag” knowledge has to pertain to the works-in-suit.  The Ninth says No; the Second says Yes.  The other opinion is whether or not employees at an OSP can have “red flag” knowledge without having either industry or legal expertise.  The Ninth says Yes; the Second says No.

In other words, the Ninth Circuit court has held that employees of an OSP, by seeing that numerous, famous titles are being uploaded, can intuit that infringement is probably happening, while the Second Circuit disagrees that this is sufficient.  Then, the Ninth Circuit holds that “red flag” knowledge of any infringement not “expeditiously removed” by the OSP is sufficient to void safe harbor protection, while the Second Circuit holds that only knowledge of the works-in-suit may be considered in this regard.  Hartline speculates that this split could result in the Supreme Court taking up the matter, for better or worse.

I have to say that it could not have been the intent of Congress that OSP employees should need to have industry and/or legal expertise in order to at least suspect that infringement is likely occurring on a web platform.  My nine-year-old is used to asking if stuff is legal on the web; it’s not a concept that requires a law degree or even high-school civics.  We’re taught as just regular folks that “ignorance of the law is no excuse,” and the Second Circuit’s opinion in this case seems to run afoul of this common-sense application—suggesting that a professional who works at a place like Vimeo can’t make an educated guess that UserDude8394 probably did not license that Beatles song he uploaded.

In another twist on this story, there are ten videos in contention for which Vimeo may be liable because these were made by employees themselves. The brief filed by Capitol in NY District Court in January of 2013 states the following:

“Vimeo admits that ten of the infringing videos on the schedules to the complaints in this action reside in the accounts of Vimeo employees, accessible from the user page of the Vimeo employee who uploaded them.  Almost all bore a flag (or “badge”) or other indication designating them as having been made by Vimeo employees.”

Because safe harbors apply only to videos uploaded at the direction of users, these ten videos were not considered in the appeal by Second Circuit Court.  It is odd, of course, to consider that Vimeo employees could directly infringe famous musical works while the court assumes innocent blindness regarding infringement on Vimeo’s platform.  As of March 2013, the Community Development Director at Vimeo states on Quora that “we’re quickly approaching 100 employees.” So, how much of a small workforce has to directly and consciously infringe for the courts to consider that veil of ignorance is unlikely?  Stay tuned. We may find out.

5 DMCA Myths That Just Won’t Die

DMCA MythImage from Pond5

I read several complaints on Twitter and in various blog posts from OSP representatives and copyright critics that last month’s USCO-hosted discussions in San Francisco about Section 512 were not very productive and that the rights holders are not being reasonable.  I cannot comment on tone or details as I was not there.  But I do think it is significant that the five myths described below seemed to trend rather emphatically from the keyboards of some of the usual suspects in the days immediately following those meetings.  So are the rights holders being unreasonable, or are they being asked to politely entertain fallacy as though it were productive discourse?

1. The DMCA Favors Rights Holders

This is the most persistent myth that continues to echo throughout the blogosphere and even mainstream media as though it were axiomatic.

Perception:  It’s too easy for rights holders to remove material and either purposely or inadvertently stifle free speech or fair uses.

Reality:  DMCA takedown notices are not easy to send, particularly if the OSP is Google. Stephen Carlisle describes the 46+ steps that a notice sender must go through, and Ellen Seidler has thoroughly documented the roadblocks in the notice/takedown/counter notice process.  These are not opinions but verifiable data that anyone can confirm for themselves. Anecdotally, independent rights holders consistently report that they have given up trying to enforce their rigths via DMCA because the process is too cumbersome and the rate and volume of infringement too great to address with their limited resources.  Meanwhile, safe harbor provisions presently shield OSPs to the extent that they have little to no motivation to mitigate the ever-increasing rate of infringement.

Next, if a User/Uploader files a counter notice—even in regard to a clearly infringing file—and the OSP restores that file, at that point the rights holder’s ability to enforce a claim via DMCA is exhausted. She has no recourse other than litigation, which most creators and artists cannot afford.  And if the User/Uploader is based in a foreign country, as is often the case, litigation is likely not an option at any price.

2. The Largest Rights Holders Are the Biggest Abusers

Perception:  Because the large, corporate rights holders (e.g. studios & labels) send out a high number of takedown notices via automated systems, it is logical to assume they will cause the greatest number of infringements against free speech and fair use.

Reality:  To borrow an excellent metaphor from a recent Berkeley/Columbia report (which actually skews toward OSP interests), it may seem sensible to assume that the entitites casting the biggest nets will catch the most “dolphins.” And although this is sound reasoning on the surface, the data we have to date—including this report—seems to point in the other direction.  Although a very high number of notices (tens of millions) are sent by the large rights holders, these are also the entities that can afford best practices and which have teams of legal experts to oversee the process. They also own the largest libraries of the most popular material that is universally infringed across the entire web.   Based on available information, it appears that despite the high volume of notices, it is actually quite rare that these entitites send a notice that is not targeting an infringing link or file.

Meanwhile, both quantitative and qualitative data thus far indicate that DMCA takedown errors tend to be made by smaller, less experienced, entities or rights holders and that outright abuses typically come from entities or individuals who have no grounds to use DMCA in the first place.  In fact, this is often the foundation of many attempted abuses:  that a DMCA takedown doesn’t even concern a copyrighted work. This observation is supported by the anecdotal evidence offered by organizations like EFF in its communications and in court briefs filed by EFF and similar groups.  Consistently, DMCA abuse stories involve every kind of notice filer other than the big rights holders.

3. Use of a Whole Work Can be a Fair Use

This looks like a shiny new talking point in the rhetorical arsenal of copyright critics, one that seems to be a direct reaction to proposals made at the USCO round-table discussions.

Perception:  Rights holders have proposed that a stay down amendment to the DMCA might at least focus on uploads of whole works.  But, the opposition counters that whole works can be fair uses. So how can there be a statutory provision for whole works?

Reality:  Every serious person in the conversation knows exactly what’s being discussed in the context of whole works.  We’re not talking about the fact that the Betamax case (1984) holds that it is a fair use when you record a TV show for your personal use. We’re not talking about the “use of whole works” by Google Books, judged fair based on the “transformativeness” of the application, which displays snippets but does not make whole, copyrighted books available.  And we are clearly not talking about new creative expressions, which almost never make use of whole works but only some portion of a prior work.

What we are talking about with regard to Section 512 and whole works is what happens when some jamoke uploads a whole feature film, TV show, or song to YouTube. This is not only not a fair use, but it is not even a use at all.  It is simply an unlicensed distribution. That anyone would even refer to fair use precedents like the Betamax case with regard to this kind of blatant infringement reveals precisely the kind of “reasonable discussion” rights holders are being asked to have regarding DMCA.

4. Copyright Interests Want to End Safe Harbors

This seems to be one of those errors that occurs when we play the kids’ game Telephone with the exponential power of social media to distort facts.

Perception:  Because rights holders are seeking amendment to the DMCA, particularly to Section 512 with an emphasis on some sort of stay down provision, the logical extension of these efforts will be to end the crtitical safe harbor protections for OSPs.

Realtiy:  Many rights holders depend on safe harbors.  News organizations in particular are both rights holders and OSPs and would be adamant about preserving the safe harbors in the DMCA if anybody were trying to “end” them.  What rights holders are seeking on this matter is that major OSPs meet the obligations already intended by the DMCA. Safe harbor is not unconditional.  But many OSPs have pushed the boundaries of reason and good faith vis-a-vis compliance with the statutory conditions necessary to maintain the safe harbor shield.

For example, a repeat infringer is supposed to have his/her account suspended; and if this condition were honored, this alone would have a mitigating effect on infringement without dramatically changing the law or “ending” safe harbors.  Unfortunately, the DMCA does not explicitly define the meaning of “repeat infringer,” and many OSPs have exploited this imprecision in the statute to avoid adopting or enforcing meaningful Terms of Use policies for chronic abuses of their services.  Given the OSPs’ reluctance to cancel accounts and the ability of Users to create multiple identities, the DMCA inadvertently sheilds both Users and OSPs, which may both (in some cases) monetize outright infringements of works.  Congress did not intend to provide safe harbor for willful and repeated infringements for financial gain.

5.  New Creators are Afraid to File Counter Notices

In fairness, this theme is not wholly unfounded but appears to be exaggerated in the context of the larger discussion about DMCA.  (And this one has many angles, so apologies for the length.)

Perception:  A new creator (e.g. a YouTube video maker or blogger) will make a fair use of a work but will be afraid to file a counter notice because this may trigger a lawsuit by a corporate entity with an army of attorneys.

Reality:  While the counter notice fear does manifest for some new creators, this case-by-case concern is a distraction from the more general debate about the inadequacy of DMCA to address large-scale and clear infringements by users and entities that are not creators of any kind.

With regard to creators, the consideration of use and the remedies for these concerns should be the same in the age of the internet as they were 20 years ago.  A creator of a new work has always been responsible for considering the copyright implications of his/her use of a protected work; and web-only creators are not technically any more vulnerable to litigation in a digital-age paradigm. (To the contrary, millions of infringements are let go every day.)  Just because digital technology makes it easier to infringe, this should not inherently change the burden to consider copyright when making explicit—let alone commercial—use of a prior work in a new expression.

This is not to say that a new creator’s work will never be wrongly targeted by a DMCA takedown notice. In a universe comprising trillions of uses, it is almost inevitable that this will happen.  But the remedies are no different for the creator who publishes on a web platform than any other traditional distribution. And these remedies vary depending on the parties involved. If a creator has made use of a work he believes to be fair and is unsure about filing a counter notice, he may do what every other creator has done for decades, which is to seek legal advice.

If I were making a documentary film and needed footage belonging to a major movie studio, I would not be foolish enough to distribute on a presumption of fair use without legal counsel, and I would err on the side of licensing that footage. Because, yeah, those guys have big legal guns.  Why should this consideration be any different for a blogger or a YouTuber?  Or to look at it another way, would I be more cavalier about infringing the work of a fellow filmmaker because I know he doesn’t have a legal department? That seems wrongheaded. Particularly in a case in which the work(s) used are the property of an independent author who also does not have attorneys on staff, why is the new creator any less responsible for considering copyright infringement than the original author is for considering fair use?  It seems to me these parties are on equal footing in these evaluations.

But in this latter circumstance of indie v indie, we return to the problem of Myth #1 because the new creator has the advantage provided by the counter notice procedure in DMCA, which would allow a use to persist on a web platform, whether it is infringing or not, unless the original author has the resources to litigate. If the new creator’s use really is fair, that’s probably what the original author’s attorney would advise rather than a lawsuit. If the use is actually infringing, then the liability occurred when the file was originally uploaded, and a counter notice is not actually required in order for the original author consider litigation.  Hence, it seems the “fear” of filing counter notices, while true in certain cases, is probably being exaggerated in order to avoid talking about what we’re really talking about.