Tag: EFF

How to Protect Your Digital Rights from the TPP

By now, you know that the Trans Pacific Partnership (TPP)—a really big-ass global trade agreement among twelve nations including the United States—is at this point pending delivery to Congress for debate and presumptive ratification.  And this means we can expect to see various organizations and corporate interests dial up the rhetoric regarding key provisions in the deal.

Although the TPP is a voluminous package of agreements covering a wide range of trade sectors—and there may yet be things not to like about the treaty—the Electronic Frontier Foundation has openly announced that it is their intention to turn the TPP into the “new SOPA” principally because of the copyright provisions in the agreement.  Their stated strategy is to “Overwhelm Congress members … demanding they vote down the TPP…” and to “…turn the TPP into a household name for toxic digital policy, much like we did with SOPA.” In short, the EFF is hoping they can scare the hell out of us—again—by convincing us that the “digital rights” we have today will be adversely affected by the passage of this trade agreement.  But, if you are worried, here are some steps you can follow if the TPP is ultimately ratified:

Step 1:  Live your life.

Step 2:  Use the Internet.

Step 3:  Use social media platforms like Facebook and Twitter to share your experiences, ideas, opinions, observations, etc.

Step 4:  Try not to launch a business based on infringement of copyright, trademarks, patents, or trade secrets.

Step 5:  Return to Step 1.

If it sounds like I’m suggesting that your “digital rights” might be exactly the same after passage of the TPP as they are right now, that’s because they will be.  And we can have confidence in this assumption for two reasons.  The first is that, like all prior U.S. Fair Trade Agreements enacted over the last 15 years, implementing TPP will require no material changes to existing U.S. IP laws.  And the other reason is that the EFF seems to know this is true based on the language they use in their various warnings.  In fact, their primary concern appears to be that the TPP would be one reason US IP law will not change.  To quote:

All signatory countries will be required to conform their domestic laws and policies to the provisions of the Agreement. In the U.S., this will further entrench controversial aspects of U.S. copyright law—such as the Digital Millennium Copyright Act (DMCA)—and restrict the ability of Congress to engage in domestic law reform to meet the evolving needs of American citizens and the innovative technology sector.

That is a purposely vague (and frankly insulting) way to raise a red flag about a threat to our rights.  Because what that statement says, in its opaque way, is that if the U.S. becomes a signatory to the TPP, this might prevent Congress from amending “controversial” aspects of existing copyright law. So, while spreading the message that our “digital rights” are threatened by the TPP’s IP provisions (i.e. implying change), the message the EFF is really selling is that copyright law as it stands is already affecting your “digital rights”; and if Congress ratifies the TPP then it may not be able to “fix” copyright.  (By the way, this happens to not be technically true, even if we all agree about what needs “fixing” in the law. Note that even if Congress ratifies TPP, it will not consequently abandon the copyright review process currently underway.)

The general assertion that the status quo of copyright’s contours fails to “meet the evolving needs of citizens or stifles innovation” has, in my view, not yet been clearly demonstrated for as many times as this mantra has been repeated by various parties. But even if there is merit to this general argument, it’s really a debate about utilitarian aspects of copyright and business applications, which is not technically a conversation about broader civil rights, as the EFF likes to imply when they endeavor to frighten citizens with the pitchfork-wielding urgency of calling Congress to stop the TPP.

Where the EFF might almost have a point is with regard to the length of copyright terms.  Since the length of terms we have today—life of the author plus 70 years—was last extended to maintain parity with trading partners, it is not unreasonable to assume that a trade agreement like the TPP could, as they say, “entrench” the length of terms at their present state, which some people consider inappropriately long.

At the same time, other trading partners, who presently have terms of Life + 50 could extend those terms another 20 years to match other TPP signatories.  And while length of copyright terms is indeed a sticking point for many people (despite not knowing much about how they came to be where they are), there is surely no metric anyone can produce to determine the threshold where copyright terms will uphold, rather than infringe, our “digital rights.” I mean, if we roll back terms in the U.S. to Life + 50 and they have a big ol’ EFF party over it, will our “digital rights” magically be 30% more secure? This is an exercise in vagaries and illusions; and there’s a reason I keep putting the words digital rights in quotes:  it’s because I have no idea what they are.

I know what my rights are as a citizen of the United States. They’re spelled out in the Constitution and in subsequent laws based on that framework.  But there is no separate bundle of cybernetic rights that kick in while we’re using Facebook or Twitter or Buzzfeed. There are no digital rights; there are simply rights.  And if someone uses digital means to infringe your rights, whether that’s your privacy, your safety, your property (including your copyrights), your consequent right to remedy that infringement is no different than it would be in a non-digital context. Or to quote U.S. Assistant Secretary of State Michael H. Posner in a statement from 2012:

“We do not need to reinvent international human rights law, or our enduring principles, to account for the Internet. No deed is more evil — or more noble — when it is committed online rather than offline. You can’t sell child pornography in Farragut Square or Tahrir Square, and you can’t sell it on the Internet, either. You can’t break into a theater and steal the movie reels and you can’t steal movies online, either. You can’t beat up and gag a peaceful protestor and you can’t jail her for a blog post criticizing a government policy, either.”

Issues like copyright reform and trade negotiations are conversations about details, many rather boring details that most of us citizens can be forgiven for not bothering to review.  As a result, the EFF and similar organizations have a pretty easy time frightening people with harsh yet rather vague declarations about the ways in which copyrights threaten our broader civil liberties on the Internet.

You might recall Guideline #4 from the recently posted Guide to Critiquing Copyright in the Digital Age:  Make some crazy shit up.  Well, the EFF recently posted some fifty or so bullet points describing grave concerns various constituencies should consider if the TPP with its IP provisions should pass.  None of these points are on particularly solid ground, but several of them are Prime USDA, Grade A made up crazy shit. And you don’t have to be in IP attorney to know it.  Here’s one of my personal favorites:

• Those who put on a themed party or cosplay based on a character from a favorite show or movie could be forced to pay a penalty or have images from it removed from the Internet. Again, the risks and penalties are much higher if it happens on a “commercial scale.”

I double-dog-dare anyone to say that out loud with a straight face.  If Congress passes the TPP in its present form, and then my teenage daughter and her friends have a cosplay party, take pictures at said party, and post their pictures on Facebook, the EFF really believes these kids could face a fine or have their pictures removed?  Daa-am, that’s some high-test, made up crazy shit right there, presumably trying to scare people because Anime-producing Japan would be a party to the TPP. There is nothing in U.S. copyright law to support an argument that such a scenario would constitute an infringement, and any takedown of those hypothetical pictures would be wrongful and, therefore, remedied through existing counter-notice procedures.  And no, Japanese Anime producers are not going to sue your kid for cosplay. Odds are, this came up in discussion among these rather sophisticated trading partners.

Certainly it’s true that if I wanted to launch a new product or open a retail establishment, and I used copyrighted Anime characters in a party to promote that launch, then I might be infringing.  But the boundaries and limitations of copyright in this circumstance are broadly the same today as they were before we were on the Internet and the same as they would be after ratification of the TPP.  To say otherwise is just making crazy shit up.  Here’s another one:

• If you stream some copyrighted gameplay with commentary to friends and other fans, the video may get taken down or the user may be forced to pay a fee.

The top-earning YouTube star (at $12 million a year) PewDiePie, a Swedish citizen, does exactly what’s described in this scenario; and quite a few other game commentators and critics around the world do essentially the same thing.  In general, these creators are either left to their own devices or occasionally form partnerships with game companies that recognize the promotional value of their contributions.  Once in a blue moon, a game developer has been foolish enough to use DMCA takedown provisions in an attempt to censor a vlogger game critic; and the unofficial remedy for this misuse of DMCA has often been publicly shaming the company into proper behavior, to say nothing of the actual legal remedies available to the video creator.  Again, the legal framework pertaining to this example is already in place and will not be changed as a result of passing the TPP.

Review the list, if you have nothing better to do. But if you pay close attention to the language the EFF uses in many of its most dire warnings, they don’t really assert that the TPP will impose new restrictions on us as Internet users. And with good reason.  What the litany of doom actually contains is a mundane assortment of hypothetical cases of infringement claims that could arise with or without the TPP; and each of these examples implies exactly same remedies available to all parties that have existed for years.  What the EFF is really saying, of course, is that they are opposed to anything that might validate or uphold the status quo of copyright law, which is an entirely different conversation, and one they should present more frankly.

Google et al Seek Ruling with Fair Use Axe to Grind

What do a bunch of puppies, a pretty woman, a dancing baby, Demi Moore, some Rastafarians, and 20 million books all have in common?  They all refer to prominent, copyright-related cases* from which a content creator could—if he has nothing better to do—learn something about fair use doctrine. But even if an independent artist were to study Rogers v Koons (1992) right through the most recent ruling by the 2nd Circuit Court of Appeals in Google v Authors Guild, I suggest that what he is most likely to discover is that fair use is a highly subjective component of U.S. copyright law.  In fact, the subjectivity is part of what makes the principle, and the cases in which it is argued, so interesting—at least to me.

As many readers know, fair use was codified into law in 1976. Functioning as a limitation to copyright, its initial intent was to allow the use of a protected work, regardless of the author’s permission, for the purpose of commenting in some manner on the work itself.  Although the doctrine has evolved to include uses that transform works for purposes other than commentary (e.g. Google Books), the underlying need for the fair use limitation was to maintain balance between free speech and copyright. If an author were able to enforce his copyright in order to stifle a use necessary to comment on his expression or that transforms his expression in some useful way, then free speech may be chilled or copyright may fail in its purpose to promote expression or progress. But drawing these contours is, of course, only possible on a case-by-case basis. When a defendant argues  fair use in a copyright infringement suit, a panel of judges will consider these four factors:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit purposes.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole and relative to the purpose of the new work or use.
  4. The effect of the use upon the potential market for the value of the copyrighted work.

Even a casual glance at these criteria should tell independent creators what their attorneys would tell them, if they had attorneys—that there are no bright lines in fair use defenses.  Each case is distinct and highly susceptible to human interpretation. For example, I bet most laymen—me included—would have a tough time squaring the 1992 decision rejecting artist Jeff Koons’s fair use defense for his use of Art Rogers’s “Puppies” photograph with the 2013 decision affirming Richard Prince’s fair use defense for his use of Patrick Cariou’s Rastafarian photos. The reason I cite these two cases is that when considering the fourth factor in the latter, the panel determined that because Prince’s market is the fine art world and Cariou’s market is not, the potential market harm to the original photographs would be unlikely.  Aside from the fact that this contemporary ruling places judges in the undesirable role of cultural critics, the point I’m making is that the same distinction could have been made between Jeff Koons and Art Rogers, but it was not.

Forgive that detour, but I’m trying to underscore that, although there are some fairly simple circumstances in which a rights holder might make a reasonable assessment about a fair use of her work, case law demonstrates that there is nothing universally objective about the doctrine—perhaps especially when the use is artist to artist.  In fact, my colleague Terry Hart tells me that between 1978 and 2005, 33.8% of District Court fair use decisions were overturned on appeal. And there’s a reason why the landmark case involving 2 Live Crew’s parodic version of the song “Pretty Woman” went all the way to the Supreme Court:  because fair use is complicated.  So, the suggestion that a non-attorney, creator can be expected to make an “objective” assessment of a possible fair use defense prior to sending a DMCA notice to take down an otherwise infringing use of her work online is an exercise in metaphysics, if not outright sorcery.

My apologies at this point for the amount of amateur legal analysis in this piece—something I normally avoid—but there’s no other way to tell this story.

The reason I’m stressing the subjective nature of fair use is that this week an amicus brief was filed on behalf of Google, Twitter, WordPress, and Tumblr asking the Court of Appeals for the 9th Circuit to overturn—not its decision—but its rationale in the 2004 case Rossi v MPAA.  And it appears, based on the number of references to fair use in the brief, that they are seeking this revision because it might strengthen the Internet industry’s position regarding the ruling just last month in Lenz v UMG, a.k.a. the “Dancing Baby” case. (This involves the temporary takedown from YouTube of a home video depicting Ms. Lenz’s baby dancing to Prince’s “Let’s Go Crazy,” which occurred in 2007 and has been litigated by the EFF ever since.)

The recent Lenz ruling by this same court affirmed that a rights holder, prior to sending a DMCA takedown notice, must consider whether or not a use would be judged fair but that the consideration may be “subjective,” thereby rejecting the EFF’s argument in that case for an “objective” standard. So, it’s interesting that the Internet companies named in this brief are seeking a revision to the rationale in Rossi, in which the court also applied a “subjective” standard, but in a lawsuit that had nothing whatsoever to do with a fair use defense.  So, why seek the new ruling in Rossi instead of Lenz?  Because in a weird way, it might work.  But not necessarily.

In Rossi v MPAA, Michael Rossi claimed that the Motion Picture Association wrongfully used the DMCA to shut down his site internetmovies.com.  The takedown was issued because the site had advertised that full-length movies could be downloaded from the portal, though this turned out not to be true.  Rossi was lying to users (presumably in order to generate traffic), and the MPAA did not confirm whether or not his platform actually made movies available before they sent the takedown notice.  As a result, Rossi sued MPAA for a variety of injuries stemming from its alleged abuse of DMCA, but the court held that MPAA had acted in good faith in accordance with the DMCA and so rejected all of Rossi’s claims.

This new amicus brief filed on behalf of Google et al, states that the outcome of Rossi is correct but that the court should “take this opportunity to clarify the law and hold that that the good faith requirement in Section 512(c)(3)(A)(v) encompasses an objective standard with respect to whether use of a copyrighted work is ‘authorized by law.’” In theory, if these Internet companies can convince the court to affirm an “objective” standard in Rossi, the revision could perhaps be applied to the decision in Lenz and then more broadly assert that any rights holder must “objectively” consider fair use before issuing a takedown notice, or risk possible litigation for wrongful takedown.

But even if the court were to revise its ruling to affirm an “objective” standard in Rossi, any reasonable person should recognize that the additional burden on the MPAA in that case would be a consideration that is, in principle, objectively possible (i.e. they might have been able to confirm whether or not Rossi’s site was actually making movies available illegally).  But, in a given situation in which a rights holder contemplates issuing a takedown notice, there are almost no objective criteria (i.e. evidence) by which he can consider whether or not the recipient of the notice might present an effective fair use defense. (As addressed in this post about an artist friend of mine, fair use confuses people with the best intentions.)  The dynamic and interdependent nature of the four factors alone should demonstrate to any reasonable individual that fair use is a highly subjective, case-by-case doctrine.

More specifically, the “subjective” ruling in Lenz refers to the automated notice and takedown procedure, typically used by major rights holders like UMG, coupled with an algorithmic (i.e. imperfect) process to assess likely fair uses. The court held that this “subjective” automation meets the standard of a good faith effort, which seems only reasonable in light of the tens of millions of rightful DMCA takedown notices that are sent out by major rights holders every month. And that brings us to the heart of the matter …

Can we address takedown abuse without improperly burdening rights holders?

Ostensibly, the aim of this amicus brief is to address the problem of abusive takedown; and the authors state their broad concern about the “subjective” standard thus:

“… the more misinformed or unreasonable the copyright owner, the broader the immunity he would have from liability under Section 512(f). This reading of 512(f) would effectively encourage copyright owners to remain ignorant about the limitations on their exclusive rights under the Copyright Act, see 17 U.S.C. §§ 107–123, because the less they know, the more leeway they would have to send takedown notices.”

Perhaps there is some merit to this anxiety, but I am doubtful that the solution will be found in seeking the “objective” standard revision in Rossi. After all, the takedown of Ms. Lenz’s video did not occur due to ignorance of the law; the video was restored to YouTube according to DMCA procedures; and it was the EFF that decided to spend the last eight years suing UMG because the case appears to have provided a pathway to reshape the law behind the PR veil of “big mean corporate rights holder picking on an innocent baby.” As I’ve said in the past, there are better examples of DMCA takedown abuse, but not so many with headliner names like Prince.

No question that DMCA takedown abuse does happen, though it is dramatically outweighed by the number of legitimate takedown notices that are sent and resent in a nearly futile attempt to stop countless incidents of actual infringement. The amicus brief cites several exemplary takedown abuses—many of which would likely merit a fair use defense—issued by individuals or entities who either don’t understand copyright or who know exactly what they’re doing and are abusing copyright in an attempt to censor criticism or commentary. But these examples are not an indictment of the purpose of copyright; and rights holders with legitimate claims should not be made to bear the burden of mitigating abuse by a minority of bad actors—least of all with the purpose of making DMCA procedures easier or cheaper for OSPs. In fact, the weakness of the stated motivation for this amicus brief is written in the document itself and stated thus:

“Google receives hundreds of notices that suffer from similar defects, often repeatedly from the same vexatious submitters, and devotes substantial human and machine resources in an attempt to identify these abusive notices among the tens of millions of DMCA notices that Google processes each month”

Out of tens of millions of notices, Google identifies hundreds of potentially abusive ones from a consistent group of “vexatious submitters.”  Does that not sound on the face of it like an exception to a rule, one that begs for a targeted solution rather than a broad revision of legal standards that may place undue burden on many rights holders?  The Internet industry regularly criticizes proposals for remedies and legal frameworks for being “overly broad.” Yet, the pursuit of this revised standard, seems to be asking the court to use a sledgehammer to swat at flies.  Hundreds of abusive notices out of tens of millions is somewhere in the universe of .003%, and the Internet industry wants us to believe that this is the real problem with DMCA.

It seems to me that the public interest would be best served by Congressional revision of the DMCA in order to mitigate both takedown abuse and safe harbor abuse (though you may hear a collective gasp from Silicon Valley at the suggestion of the latter). In fact the amount of energy and resources the Internet industry has devoted to rewriting Lenz into a story of “abuse” is both revealing and appalling. After all, it is unreasonable to argue that a rights holding entity must be held to a stricter standard of consideration of the legality of a particular use while inadequacies in the antiquated safe harbor provisions necessitate the automated issuing of tens of millions of takedown notices per month.  In other words, if Google et al want rights holders to more carefully consider each infringement, then Google et al should be required to more aggressively reduce the volume of infringement on their platforms down to a manageable scale. Meanwhile, I believe neither the courts nor Congress should amend standards that can in any way increase the challenges already faced by individual and small-entity creators to enforce their copyrights in the digital marketplace. In fact, making that enforcement easier just might benefit everyone.

* In order as referenced: Rogers v Koons; Campbell v Acuff-Rose; Lenz v UMG; Leibovitz v Paramount Pictures; Prince v Cariou; Google v Authors Guild.

Aurous has nothing to do with SOPA

The recording industry last week filed suit against a new music platform called Aurous.  With a Spotify-like interface, the app is designed to search, retrieve, and play music files, whether they’re stored on legal platforms or on BitTorrent sites around the world. And according to early reports, the primary function is the sourcing of pirated media on BitTorrent sites, leading some to refer to the app as “The Popcorn Time for Music.”  The RIAA suit charges Aurous founder Andrew Sampson and 10 unidentified collaborators with inducement to infringe as well as contributory and vicarious infringement.  “The defendant’s business model is new,” states the RIAA, “but it’s business plan is old; illegally profiting from piracy.”

Sampson himself has already made a number of smug and dismissive public statements about the case despite a general consensus—even among parties likely to be sympathetic to Aurous—that he stands on pretty shaky legal ground.  In fact, Mike Masnick on Techdirt writes, “I fully expect that Sampson will lose the lawsuit (and lose easily) if the case gets that far. However, that doesn’t mean that parts of the lawsuit aren’t concerning.”  What Masnick means by “concerning” is that several of the remedies sought by the RIAA are, he claims, remedies called for under SOPA, which we all know did not become a law.

As surprised as I am that Andrew Sampson thinks the market can actually use yet another way to source or pirate music at this point (I mean how much freer can it all get really?), it’s no surprise at all that it has become SOP to say “SOPA” among the same consortium of activists about every case in which any plaintiff seeks injunctive relief from third-party providers like search engines, ISPs, or registrars.  In fact, when the lawsuit was first announced, The Trichordist rather humorously (though not at all facetiously) announced an “office betting pool” as to how soon the Electronic Frontier Foundation would file an amicus brief on behalf of Aurous.  And while no serious IP attorney may reasonably defend Aurous against the infringement claims, that hasn’t stopped the EFF from repeating the latest mantra of Internet industry defenders:  That [insert plaintiff here] is behaving as though SOPA became law.  Although the EFF has not filed an amicus brief or anything so official on behalf of Aurous, here’s the tweet they sent out, as Ellen Seidler reports on Vox Indie:

Once again, @RIAA asks a court to order the entire world to block & filter an app they don’t like. https://t.co/Qwg138pFPB#SOPApower

While, all this SOPA chatter may be pretty good spin—and a great way to belabor the narrative that rights holders are just insidious, draconian, evildoers hating on freedom—the references to SOPA are entirely specious. I mean not even close.

Bottom Line:  Aurous is a Domestic Business 

SOPA/PIPA were exclusively written to target foreign-based piracy sites that are beyond the reach of U.S. jurisdiction for criminal proceedings, with the objective of starving these sites of both U.S. traffic and U.S. revenue. Far from the menacing, web-killing legislative sledgehammer they were made out to be, these bills were a limited variation on existing domestic law based on the reasonable notion that American Company A should not facilitate or incidentally profit from the foreign-based theft of American Company B. But regardless of all opinions about piracy itself, the remedy in which plaintiffs may seek injunctive relief from third parties was neither unique to the proposals in SOPA, nor unprecedented in U.S. law.

As explained in my post about the Equustek case in Canada, it is a well-established procedure that when a court enjoins a defendant (e.g. Aurous) from continuing to operate pending the outcome of a case, it may also enjoin third parties from aiding the defendant (even if that aid is not intentional) in the activities central to the case.  This is both common-sensical and common legal practice that has been applied—yes, even on the Internet—both in the U.S. and abroad. And this type of relief has been granted repeatedly without resulting in any of the supposed harms to civil liberty or the vital functioning of the Internet that was predicted to occur if SOPA had passed. Moreover, it’s worth noting that with regard to web entities like Google, a court order in such a case probably enjoins the service from being used in a manner already proscribed by the site’s own Terms of Service.

This was one of the ironies about the protest against SOPA—that Americans were duped into opposing legal remedies already in force in U.S. law, all using the not-broken Internet and uninhibited free speech to do it. As the language in the SOPA bill effectively says, if the foreign site in question would be subject to criminal charges or civil liabilities in the U.S., then by court order, U.S.-based third parties could be enjoined in the same manner as if the infringing site were domestically based. It’s a subtle distinction that the SOPA bell-ringers would rather not mention, but all SOPA aimed to do with regard to third parties was to apply a commonly used remedy in regard to a specific category of websites whose owners cannot be brought into a US court; but it imposed no new liabilities on the third parties than if the target websites had been domestically based. In fact—and this is what’s particularly funny about Masnick, EFF, and Sampson himself invoking SOPA here—enjoining a third party to take similar measures under SOPA would have been far more restrictive, involving more procedural protections, than civil procedure requires in a domestic case like Aurous.

One may argue the merits of enjoining third parties in these cases until doomsday, but the invocation of SOPA does not apply to Aurous for the simple reason that it is a domestic company with domestic owners and, therefore, well within the reach of U.S. courts.  Assuming the RIAA suit proceeds, the third-party injunctive relief being sought is fully consistent with the law, since long before most of the people who so vigorously protested SOPA were even born.

Of course, all legal technicalities aside, who isn’t sick of the infantile and tediously repetitive story that keeps playing out in these cases? It seems clear that not even Aurous’s natural defenders will attempt to claim it isn’t trading in pirated music.  And even though the logical contortions that “digital-rights activists” go through to defend on principle these predatory applications do beg in-kind rebuttal, they more reasonably inspire outright dismissal. It really is like arguing with a six-year-old who’s built an elaborate yet flimsy defense for not putting on a jacket or some damn thing. At a certain point, every parent reaches the limits of his tolerance for juvenile debate and explodes with ultimatum. And then there are tears. So, bring on the tears and get it over with already.  Then, we might begin to more effectively grow a more sustainable 21st century creative economy, and we can also stop the nauseating repetition of an absurd argument that defies common sense.