Tag: DRM

Copyright in Motion As Midterms Approach

While most attention will be understandably focused this week on the Senate Judiciary and the confirmation (or not) of Brett Kavanaugh, there is actually quite a bit of copyright law activity of note as the midterms approach.

Register of Copyrights Selection and Accountability Act Hearings Scheduled

Originally introduced in the House in March 2017 as H.R. 1695, this bill proposes a reorganization, favored by many copyright experts, to make the Copyright Office independent of the Library of Congress and to make the Register of Copyrights an executive appointee rather than a hired member of the Librarian’s staff. The bill passed the House in May of 2017 with a vote of 378-48 but then stalled in the Senate Rules Committee (as S. 1010). On Wednesday of this week, that committee will hold hearings on this legislation.

As described in a few posts, the formation of the USCO within the LOC dates back to 1897, when Congress could hardly have envisioned the copyright industries as we know them today; and both scholars and legal professionals have long viewed the current organizational structure as antiquated. Despite complaints by the usual assortment of critics—and they are likely to resurface after this week’s hearing—the Librarian and Register have always performed different functions predicated on very different areas of expertise; and the intervening 120 years has only increased the divergent roles of the two departments. This is a change long in development and long overdue.

CASE Act Hearings Scheduled

Following that hearing, on Thursday, the House Judiciary Committee will hold hearings on the proposed CASE Act, which would create a small claim copyright tribunal within the Copyright Office. The purpose of CASE is to provide a remedy for copyright disputes that do not easily justify the cost of federal litigation. For instance, the proposal is backed very strongly by professional photographers, whose works are infringed with a high rate of frequency online, even by business entities exploiting images for commercial purposes.

True to form, the copyright critics have predicted a litany of negative consequences that are simply not possible within the scope of the proposed statute. For instance, as a purely voluntary option, the new tribunal cannot become the “clearing house for copyright trolls” critics like EFF have alleged. Moreover, the USCO board will be experts in copyright law only, which is not true of federal judges, and there is no reason to believe this remedy would not prove to be as beneficial to defendants as to claimants. Still, the committee will be reviewing the latest version of the bill, which represents ongoing discussion among proponents and good-faith critics of the legislation.

The VidAngel Bill?

In August of 2017, the Ninth Circuit Court of Appeals shot down all the legal defenses, previously shot down by a California District Court, as presented by the movie filtering service called VidAngel. For a detailed background, see posts here and here; but briefly, VidAngel was sued by major motion picture studios for copyright infringement based on the manner in which the company was providing streamed access to movies while filtering out segments containing language, sexual content, or other material that VidAngel’s subscribers find objectionable, primarily on religious grounds.

Among its failed defenses, VidAngel asserted an unsound interpretation of the Family Movie Act (2005), which permits private use of consumer devices to make brief segments of motion pictures imperceptible during home viewing. Having lost its court fight with that statute (along with key statutes in the copyright law), VidAngel has apparently been lobbying Members of Congress, mainly its CEO’s hometown Utah Representatives, to propose an amendment (H.R. 6816) to the Family Movie Act that would theoretically enable VidAngel to perform, as a VOD service, the same task consumers are allowed to perform by means of devices at home.

Setting aside my own opinion of any consumer’s desire to edit out segments of movies on moral grounds, the legislators in this case may believe they’re simply updating the FMA for the digital-streaming market, but if so, they have failed to consider the staggeringly disruptive implications their bill would have on copyright law, contracts, and licensing agreements.  As a simple example, amending the FMA in this manner does not obligate the studios to license their films to VidAngel, which had been making public performances of these works without licenses.  And it gets more complicated from there — all for the sake of one company to profit from an activity that other companies have enabled consumers to conduct legally for 13 years.  I think this bill is likely a dead-issue, and with it VidAngel; but it will be something to watch if that’s not the case.

Doctorow & EFF Declare Perpetual War On DRM

On a slightly related note (because VidAngel violated Section 1201 of the DMCA), Cory Doctorow, in his role as EFFer, urged the organization’s followers to keep Sisyphean-like faith in “Our Apollo 1201 Project [which] aims to kill all the DRM in the world inside of a decade ….” Digital Rights Management tools, designed to protect copyrighted software from unlicensed access, copying, or tampering, has been portrayed by critics like Doctorow as a means to entrench corporate control of various markets more than as a means to protect authors of creative works.

It’s not that DRM is without such challenges or does not require constant reassessment, but Doctorow and company generally lack all deference to nuance, or integrity, when discussing the issues. For instance, they make no mention of the fact that, without DRM, many of the convenient ways in which we access works in the digital age (e.g. eReaders) would not exist. Moreover, as elaborated upon in this post, the EFF’s assault on the constitutionality of Section 1201 of the DMCA—the section prohibiting circumvention of DRM—conveys more ideological hatred than an honest portrayal of, for instance, the USCO’s position on exceptions to 1201’s prohibitions.

As noted in that post, rather than engage in the USCO’s call for reasonable changes to permanent exceptions etc., the EFF is instead hell-bent on the (dare I say perpetual-funding opportunity?) more dubious mission to eradicate the law. In this regard, it is notable that Doctorow employs the metaphor of ants steadily, if blindly, making slow progress up a hill. The presumptive “ants” (see Donors) Doctorow is addressing might want to look up the word Myrmidon.

Bitter Brew – Reactions to Keurig’s odd IP decision.

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Here’s the latest java jive:  Green Mountain Coffee manufactures the Keurig, single-cup coffeemaker, and last week the company made the announcement that it would use a DRM-like technology to prevent customers who’ve bought their machines from using any K-Cups other than the Green Mountain brand.  We all recognize this as the personal printer business model — make the machine pretty cheap then bleed the customer until the end of time on expensive ink cartridges.  This is almost certainly a dumb move on Green Mountain’s part, and it’s not a particularly attractive use of intellectual property protection, but it has next to nothing to do with copyright. Of course, that doesn’t stop pundits from crawling out of the woodwork ready to unpack their adjectives against all things copyright and IP.

Marcus Wohlsen in Wired offers the headline “Why Copyrighted Coffee Might Cripple the Internet of Things.”  I do love headlines in the digital age — so catchy, so upworthyish, so misleading.  For one thing, coffee can’t be copyrighted; maybe there’s some software linking the K-Cup and Keurig machine, but that’s probably a copyright stretch, both for Green Mountain and for its critics.  Expert copyright defenders tend to roll their eyes at this stuff, as they do with other abuses and misuses of a perfectly good set of laws they defend on behalf of actual authors of valuable, protectable works. These side shows give serious IP issues a bad rap, and writers like Wohlsen are only too happy to help.  Still, it’s a storm in a coffee cup, referencing this soon-to-be-overlooked story to predict the failure of “the internet of things.”  The internet of things is the phrase used to describe mass interconnectivity in business and domestic life to the extent that our ordinary products, like coffee makers and refrigerators, become smart.  The example used for years has been the fridge that knows when you’re low on your favorite brand of milk and orders more to be delivered.

But in order to realize the paradisiacal dream that is the internet of things, techno-utopians promote open technology because the only way we’re ever going to enjoy the privilege of having our appliances tell us what to do will be to remove proprietary technologies that are central to competition among manufacturers.  One smart article I read a couple months ago by Mike Elgan suggests that the internet of things might never come to pass, and he refers to the simple example of the basket of remotes, each remote representing a different manufacturer and a unique software link between device and its controller.  To pursue the internet of things would require a degree of non-competition among technology makers several hundred times more complex than the remote example.  And until the recent wave of techno-utopianism backed by a lot of dubious academic theory, competition used to be a cornerstone of a free market.  And in light of the fact that the internet of data has thus far created some very large monopolies, the prospect of embracing universal openness is not without its pitfalls.  If people really want a home that thinks, buys products automatically, orders services, the probability is high that this can lead to the Wal-Martization of multiple business sectors.

Of course, a very natural reason the internet of things might not happen that has nothing to do with copyright or any IP protections, is that people may not want it to happen.  60 Mintues has recently done a fair bit of reporting on the scale and scope of what’s being done with the data we share voluntarily or inadvertently via the internet, and the revelations are startling.  Did you know, for example, that there are data brokers — people who trade in your personal information like any other commodity.  And we’re not talking about traditional, semi-innocuous market research like you prefer Coke or Pepsi, we’re talking about medical information, sexual orientation or proclivities, political views, family history, all compiled and composited to create a dossier about you that is sold for profit, not entirely with your permission, without any oversight; and it’s all perfectly legal.  So far.  We’ll see what happens when a job applicant sues for being wrongfully turned down because he’s an alcoholic a decade sober.  I mean, if he wants to be a pilot, this is probably understandable, but how about a data-entry assistant at an accounting firm? Take the recent, outrageous attempts in Arizona and South Carolina to legislate gayness out of existence, and it doesn’t take a lot of imagination to consider how bad actors might abuse the most intimate information about individuals being collected and sold for profit.  Thus, it’s entirely possible that as consumers become more aware of the extraordinarily invasive business model that makes internet services so “free,” they may come to reject the internet of things, uncomfortable with the prospect that one day walls really will talk.

I’m not surprised that tech junkies will gather in Austin at a SXSW event this week to fawn over presentations by Edward Snowden and Julian Assange, both video-conferenced in from their asylums in Russia and the Ecuadoran Embassy in the UK, respectively.  After all, too many of us suffer from this bizarre delusion that somehow social media and digital connectedness is the antidote to government overreach despite the fact that the data these internet companies gather, consolidate, and sell dwarfs the capacity of the entire intelligence community, even if it were solely comprised of bad actors, which it is not.  Meanwhile, so-called defenders of “our rights” in the digital age — from funded organizations to individual pundits — make much ado about nothing over your right to make coffee the way you want because copyright because Hollywood, dammit!  Yeah, it’s a convoluted kind of logic, but if you think I’m inventing all this conflation, read Dan Gillmor’s piece in the Guardian, which segues rather quickly from the Keurig story to blasting away at the “Copyright Cartel,” as he calls it.

I remain concerned that this utopian notion of “openness” is evangelized most ardently by the interests who stand to emerge as winners on a re-designed playing field.  We need only look at the impenetrable dominance of Amazon to see how more interconnectivity can actually lead to a market that is anything but open.   Meanwhile, side show barkers keep telling people that intellectual property protections like copyrights and patents — systems which have been proven economic drivers for a couple of centuries — are standing between us and a future we may not even want.  I don’t know.  I’m off to brew a fresh pot of coffee.