This Week in Law 270 (Transcript)
Denise Howell: Denise Howell here, and you are about
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This is TWiL,This Week in Law with Denise Howell and Evan Brown, episode 270, recorded August 8,
2014.
3D Nato and the
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Hi folks, Denise Howell here, and you are
joining us for This Week in Law. Happy summer to you! We are so glad
that you are taking the time out to join us today because we have a slew of
great topics to discuss and some really wonderful people to chew through these
difficult topics at the intersection of technology and law. Returning to
the show, the Vice President of Public Knowledge and 3D printing expert extraordinaire
is Michael Weinberg. Hello Michael, great to see you.
Michael Weinberg: Hello, great to see you, too.
Denise: Great to have you back. Lots going on in Washington these days.
Michael: Lots going on in Washington these days. Everyone is busy. Everyone who is in town is busy. Everyone who is away is just on vacation
hanging out.
Denise: Alright, well, I'm not sure how much
hanging out you can be doing when you are getting pestered by Public Knowledge
to come and help deal with some of the heady issues that you guys are plowing
through here in the month of August. Also in Washington DC, probably not
too far from Michael, is Matt Schruers, who is the VP of Law and Policy at
the Computer and Communications Industry Association. That's CCIA for
those of you into acronyms. He's also a professor at Georgetown Law and
its program on Communication, Culture, and Technology. He writes for a
really wonderful blog. For people who watch the show, follow the show,
you have probably already come across the Project DisCo Blog, which has great
coverage of the kinds of things that we like to talk about each week. So
Matt, great to have you on the show…
Matthew Schruers: Thanks. Good to be here.
Denise: How are things at Georgetown these days?
Matthew: Unlike Washington, which never actually
gets quiet in the summer, the nice thing about academic calendars is that it
actually does get quiet in the summer. This is when all of the full time
go off and do symposiums and conferences. Those of those who are just
adjuncts and pretend to be faculty in the evening get back to our day jobs.
Denise: Wonderful. What are you teaching in the fall?
Matthew: In the fall I will be going back to my
Intellectual Property Survey Course, which I always enjoy a lot. It's Intellectual Property for non-lawyers
in the Communications and Technology Program in the grad school. It's one of a hand full of programs that is
trying to familiarize non-lawyers with legal subjects that are increasingly
unavoidable in the business marketplace. You just can't get away from IP
in so many aspects of business today. It's a good idea to try and
familiarize folks with issues that they may encounter even if they are not
practicing law but might have to negotiate none the less.
Denise: Well, you couldn't be a more perfect fit
for our show because that's exactly what we try and do here is get people to
understand what is going on; highlight issues that if they haven't
already come to their attention, will soon, and are important to them. Also returning to the show, one of our favorite friends and guests,
Vankat Balasubramani. Hello Venkat.
Vankat Balasubramani: Hey Denise. Hey everybody.
Denise: Great to see you.
Venkat: Likewise. Thanks for having me.
Denise: Venkat writes for Eriq Goldman's Technology
and Marketing Blog, and is a lawyer at Focal. He's up in Seattle. Anything else going on
with you these days Venkat?
Venkat: No, but I did have the opportunity to
convene with Eriq Goldman, my co blogger, in Whistler, British Columbia. That was super fun. You have these online exchanges that span a
long time. I've
met him before, but it's always fun to meet people face to face that you chat
with over Skype or online. I thought I would mention that.
Denise: Yeah, that's really cool. I think that I am in the same boat that I
feel like I know Eriq well and consider him a great friend, a great friend of
the show for sure, and I don't believe I've ever met him in person. So
that's the world we live in today. Let's go right into some interesting
copyright stories.
(Music intro plays)
Denise: We always love talking about 3D printing
when Michael is here with us. It's a great opportunity, because he is one
of the foremost experts in the world on the legal issues effecting 3D printing.
So let's go there first. There are a few different things we could
touch on. First of all, the government is trying to make 3D printing files
more widely available. Can you tell us about that Michael?
Michael: This is a really exciting thing that is
happening right now. A couple of months ago an office in the White House, the Office of
Science and Technology Policy, helped put out a memo from the White House to
the entire government that basically said take steps to put any 3D files online
and if you have stuff that could be scanned then scan it and put it up online.
This is great, both because its Federal Government stuff, which means it's
not protected by copyright. Basically it's ours already. And also,
the Federal Government has a lot of stuff. So you could see a world full
of all of these 3D printable objects that could just explode and expand the
number of things that you can do with a 3D printer. In the months since
we have seen something of a scramble among different pieces of the Federal
Government to get their stuff online. We are seeing the Smithsonian
Institution get their stuff online, the NIH get their stuff up online and NASA
get some of their stuff up online. It's neat to watch them because they
are all doing it kind of differently. Often, people think of the Federal
Government as kind of a big, monolithic place. But actually it's very
sprawling in a lot of ways. These folks are in touch with each other, but
they are essentially running independent shops in trying to figure out how to
do this. So you've got the Smithsonian Institution that has a massive
physical archive that is working on scanning those things and putting them up
online. So you have Abraham Lincoln's death mask, or you have Amelia Earhart’s
flight suit, or airplanes, or whale bones, or wholly mammoth skeletons. And
then you have the NIH, which has this combination of medical things that have
been generated from data sets, so they have these super intense visualizations
of bacteria. Or they have learning models, kind of simplified versions
for people like me who don't know what bacteria really should look like.
And then even some lab tools. Then NASA has all sorts of stuff.
They have scans of asteroids. They have renderings of satellite
dishes. All of these are available for free for download, and they are
all trying to put more stuff up. So it's a great time to watch this
happen with the Federal Government.
Denise: It's really, really cool. I hadn't even thought about all of the
things that they might be able to make available. Thanks for giving us those examples. On the receiving end, does anyone really
have a 3D printer yet that could print out a wholly mammoth skeleton?
Michael: I don't know that anyone has easy access to
one that could happen at scale. Although there are programs that could
slice it up and print it in tiny little pieces. There is actually a great
project called “We the Printers” that people are doing. They are taking a
bust scan, the first one they were doing was George Washington. They took
a full size, actually more than full size bust of George Washington from a
library museum in Baltimore and they chopped it up into a bunch of 4 X 4 inch
squares. They had people all over the world print out their own 4 X 4
inch square and send it to them, and then they kind of pieced it all together.
So I guess you could do the same kind of thing with a wholly mammoth
skeleton, but for now I think you are mostly talking about printing out smaller
replicas if you are on your own and you have limited amounts of time.
Denise: As Lego projects go that sounds like
definitely in the 14 and up category. Alright, well, another thing that
you recently highlighted on Twitter that I though was really cool; about things
you could do with 3D printers. Maybe this is something we could see rolling
off of NASA in a more detailed and to scale version. But there is a Mars
Rover on Thingiverse now. I believe it is a toy Mars Rover, right?
This isn't to scale?
Michael: Yeah. There is a toy Mars Rover. This is cool for a couple of reasons. One, it's up on the screen there, and it's
a really detailed version of it. You print it out and assemble it.
You see there, all the different pieces are broken up. So you don't
print it as one model, you print it in pieces and assemble it. Actually,
they released probably three or four years ago, a different model of the Mars
Rover that was much less intricate. It basically was as good a model as
you could print on a desktop 3D printer a couple of years ago. To see
this one, the improvement is incredible leap of quality even at the desktop
level. In addition to being just neat in and of itself, it's a good way
to track the evolution of what is possible with the desktop 3D printer.
It is just getting so much better and so much faster.
Denise: Are there national security and or trade
secret considerations that come in to place as far as what the government will
release? Obviously, there must be.
Michael: I'm sure there are. There are plenty of physical objects that
the government has that I don't think that they will be scrambling to release.
You won't be printing out weapons systems from the Department of Defense
anytime soon. There are plenty of things in that other category that are fine. You can just kind of go down the list
and imagine all of the samples that the EPA has, for example. The
Department of Interior, they have probably both artifacts, and they probably
have scans of huge areas. It's not hard to imagine. The technology
is certainly out there to scan all sorts of National Parks, or the Grand
Canyon, or something like that. Then be able to render that, and take it,
to print it at home or imagine it being in a classroom. As you start
thinking about all of the nooks and crannies in the Federal Government, of
places that they may already have this data for various reasons, it's a huge
treasure trove of information.
Denise: You touched on the fact that because these
are government properties they are in the public domain. Are there some nuances to that? Some things where the government, or
someone retained by the government, might assert a copyright in these kinds of
items?
Michael: Generally speaking I want to say just no. There are no nuances what so ever. The government is not eligible for
copyright protection. Unfortunately, it can get complicated if something is the creation
of a contractor. The person is not actually part of the Federal
Government. We and a number of people have been talking to the Federal
Government about finding a better way to label those things. It should be
if you go to a government website and you find some kind of government resource
that it should be part of the public domain and you can do whatever you want
with it. But because you sometimes have to worry, there should be
a better way to figure it out. I was working with some people who were
just trying to download all of the headshots of the members of Congress.
And they were a little bit worried that if Congress had brought in an
outside contractor then they couldn't assume they were in a public domain.
We got in touch with the General Services Administration, and they walked
us through it. They said it was fine, but it's a shame that it had to go
that far. It would be so much easier if there was some sort of mark,
almost like a creative comments public domain kind of mark, that would go on
these materials so that people would just know and be confident that they are
available and in the public domain. Most of the stuff
on these sites; for the Smithsonian, for NIH, and for NASA is in the public
domain. So go print download / print it. Have fun with them.
Denise: Have you ever paid attention to the White
Houses' Flickr stream and copyright notice that they applied there?
Michael: Yes! I'm so angry about that. I've have an angry blog post about that.
Denise: Tell us about that.
Michael: The White House does this and many parts of
Congress, especially committees, do this. They have this weird disclaimer on it that
doesn't explicitly claim copyright on that. It just lists a bunch of restrictions on
what you can do. They say this is only for personal use or news gathering
purposes. You can't use it for this whole other list of things or to
imply endorsement. The result is kind of a chilling effect for people who
should just be able to use it. On one hand, you understand why someone in
the government should decide to list all of these restrictions, but you take
that to the extreme. There are all sorts of things you can't do with an
official OIS photograph. You can't use it as part of mail fraud.
That doesn't necessarily mean that you should put a warning up on a site
and say, oh yeah, you can't use this for mail fraud. You can't use it for
an elaborate assault on somebody. You should just say, look, this is in
the public domain and you can use it as you see fit. So we have also been
talking to the White House and some of the Congressional Committees that have
both photographs and videos of their proceedings to make it super clear to
people that these are in the public domain and you can do whatever you want
with them of course subject to existing criminal statutes and other random
things that would apply just generically across the board.
Denise: Here is what it says now. As far as the copyright notice goes, they
have a link to the US Government Works page that explains what a US Government
Work is. But then, it looks like for every picture they have text in the
description of the picture that says, "This official White House
photograph is being made available only for publication by news organizations
and for personal use. Printing by the subjects the photograph may not be
manipulated in any way, and may not be used in commercial and political
materials, advertisements, emails, products, promotions that in any way suggest
the approval or endorsement of the President, First Family, or the White
House." That seems like not consistent with actual Government Work
copyright page that they link to.
Matthew: I have a thought on that.
Michael: Go ahead.
Matthew: This is the copyright views.
Sometimes people refer to it as copyright views; sometimes they call it
copyright fraud. I don't think that this as an egregious as example.
You can open just about any published book and you can often find an
extended paragraph in the fore matter that attempts to control what you do with
the book. Including things like, "Do not introduce into an
electronic retrieval system." Which is essentially what we have
found out from Federal Courts is lawful under copyright because of the Google
Books litigation or all sorts of other crazy things. The sports leagues have all sorts of things
that they say you cannot do. Just because the demand is made doesn't mean
that the demand is enforceable. I think that an example is that the
copyright law is supposed to work as an incentive. But here the White
House has totally understandable desires about information control. They
don't want people to say use photos of the First Family to imply endorsement of
some product. Copyright law isn't really the mechanism to achieve that.
So you have this language that has sort of been crafted to imply that
that is still controlled by the Copyright Act as opposed to say some other
provision of the law.
Denise: Right. Is it too much to expect precision on
copyright law from the White House? I don't know, maybe it is.
Matthew: It should not be.
Denise: It's a nice example for the rest of the
country.
Matthew: Years ago we actually complained about
this. I had
some dealings with the FTC and generally a lot of the folks who were engaging
in this type of activity were like, well, it's just too complicated to explain
to everybody how these things work, so we will just use some very officious
language and hope that people don't do anything wrong.
Michael: We will just scare everyone away.
Matthew: Right.
Denise: Well, that is a sad thing. But I'm glad, Michael, that you are paying
attention to how the government is rolling out its 3D resources. That
seems like we are at just the tip of the iceberg on how great these resources
are going to be. Let's talk about Amazon's 3D Printing Store, which
people may not be aware there is one on Amazon now. They are calling it
Shop the Future. It's like Thingiverse, but you pay for things, right
Michael?
Michael: It's sort of a hybrid between Thingiverse
and what a company called Shapeways does. Amazon got into 3D printing a couple of
months ago when they started selling 3D printers and equipment for 3D printers.
Now they are dipping a toe even further in. It's not quite like
Thingiverse is where there is a huge range of stuff. There is sort of a
limited universe of things, but those things are all customizable. So you
can go, you can find, you can change the design on things, you can change the
colors and patterns. And they will print them out and ship them to you.
It's a good step for 3D printing. It will be interesting to see as
Amazon gets more engaged with 3D printing how they will decide to go about it.
It's certainly a suggestion that their first 3D printing store was
successful enough to justify building a second version of it.
Denise: And Kat, what do you think about the copyright
compliance that Amazon will have to do in determining what they are allowing
for sale in its 3D printing store?
Verkat: That's a good question. I imagine they will take the route of
standing behind their DMCA Policy. That should offer them some level of
protection, but not necessarily 100%. I imagine they are selling designs
that third party would offer. I haven't taken a close look at their store
to the extent of how they do that. It's probably somewhat similar to
their existing marketplace that deals with Trade Mart and other claims in
addition to copyright claims. I think that some sort of a notice take
down is what they will do. It will be interesting to see in the future
what sorts of claims people assert and to what extent the take down regime
allow Amazon to escape liability. I must confess I have a very limited
understanding of the scope of IP protection over 3D printing so if Michael
wants to chime in I am very curious to hear his thoughts on that as well.
Michael: I think that for them this is a slow
process, so it's a much curated marketplace. I would be surprised if
they didn't have a business relationship with everything that is featured.
The question about what happens as those marketplaces' scale becomes
interesting. It depends on who does the printing. As a virtual
space, on some level they do have DMCA protection. But if they are then
manufacturing the object, it becomes an interesting question as to if the DMCA
protection, that would protect them if they were YouTube and streaming a video,
would extend to them if they are printing and sending an object.
Verkat: Right. And I think that a case that involved
CafePress recently sort of didn't touch directly on this issue but talked about
online vs. offline protection for the DMCA. It kind of raised these
interesting issues. Some people filed an amicus brief that I actually
helped write as well. I think that area of the law is very interesting
and 3D printing will definitely have a lot of nuances.
Denise: Matt, your colleague at Project DisCo,
Sarah Feingold, who I am pretty sure we have had on the show before, has a
great article on copyright compliance and Etsy, which faces similar kinds of
issues. They are dealing with a whole vast universe of people submitting
items for sale. There is only so much vetting they can do, and only so
many terms they can get people to automatically click through without reading
and not necessarily understand as their obligations as submitters. Do you
think that Amazon is opening a can of worms here?
Matthew: No, not particularly. I think the CafePress is sort of a similar
situation here. I don't
think we see CafePress as being particularly rebellious in their legal
activities. They
are providing a service at the other end of the network. I see 3D
printing as a natural evolution of that. For that reason, it would make
sense that the DMCA would apply. Having a DMCA Policy at the platform
would solve the sorts of problems that we might expect to arise here.
Amazon, or anyone who is offering sort of third party hosted 3D printing,
is going to have to rely on claims by rights holders' saying that, I own this
and it needs to come down. It's simply not possible for any intermediary
to vet and validate who owns what when you are dealing in such large amounts of
content. If you go back and read the legislative history of the Digital Millennium
Copyright Act, which I'm sure everybody does, you know that they...
Denise: Every weekend!
Matthew: Right, you know, I've got mine by my bed.
Michael: I will see you tonight, Matt. It's our group reading Friday night.
Denise: Your book clubs in D.C. must be pretty
funny.
Michael: Oh, they are hot.
Matthew: But there is this part in there where
Congress is saying, you know there is 800,000 links in Yahoo. How could
anybody possible police that? It was 1998 and they were worried about
800,000 links. Now the indexable web is in the billions. You simply
need to have this kind of system where the intermediaries are reactive.
They do what they are told to do when they are told to take things down.
I think Amazon will have to be in the same position. I'm sure they
are up on their DMCA compliance or they wouldn't be launching this.
Venkat: I think one point that is worth
highlighting for viewers is that the DMCA applies to copyright claims.
Trademark claims have followed suit, and most intermediaries have implemented
a notice of take down, and for the most part have achieved similar protection
even though there is no special statute that protects intermediaries. I
don't know to what extent 3D printing will implicate just copyright claims.
I assume the designs themselves will have copyright protection, but
presumably whatever the objects produced could have other; I would assume
patents will figure in as well as other rights. So that's worth
clarifying for everybody. The DMCA deals with copyright. That's a
big chunk of it, but it's not the entire story.
Michael: It's really interesting to watch, you are
right. DMCA only
applies to copyright. All of these companies that are doing the printing,
and even somebody like Etsy, they are getting trademark claims. In 3D
printing you are definitely starting to see more patent claims. Those trademark
owners and those patent owners, they tend to just sort of do a quasi DMCA
process where they send a letter and the site complies and gets taken down.
It's kind of been grouped into the social norms of rights holders in
websites. It's an open question; you certainly start to hear people talk
about it, whether or not at some point that will need to be formalized into the
DMTA or DMPA that formally builds a notice of take down structure around
trademark complaints or patent complaints. In the absence of that, it's
just kind of interesting. I don't know that I would have expected it to
be so engrained into lawyerly social norms. That they just send what look
like properly formatted DMCA take down requests for patent things and trademark
things.
Denise: It's sort of wishful thinking probably.
Matthew: It's not always wishful thinking, in the
sense that a lot of services do honor what they perceive to be valid complaints
even though the complaint compliance is not required by the DMCA. So there are platforms that will honor
trademark related take downs if they think that the complainant is within their
rights. You also don't necessarily want mandated DMTA, for example.
You could imagine what you see a lot of the luxury goods vendors doing in
Europe happening here in the U.S. Where they decide that high priced
handbags or leather goods, I'm not an expert in these things, but they always
seem to be the plaintiffs in these cases, shouldn't be sold online or shouldn't
be sold second hand. There was a long attempt by certain luxury goods
owners to go after EBay. EBay ultimately prevailed in that litigation.
They certainly didn't want their goods being sold online. They
wanted to be able to control aftermarkets for their own goods.
Fortunately, I think those efforts largely failed. You could see
them recurring if you had something institutionalized like legally required
notice of take down. Right now we sort of have an informal practice; you
might even call it a gentleman's agreement, among these industries. They
seem to honor legitimate ones in some cases. In a lot of environments
that's not going to work. You wouldn't want to see Disney running around,
for example, filing take downs on the basis of people
selling used Disney lunchboxes.
Denise: No. We wouldn't have an internet left if you
had to take down all of the Disney and various other things that are being
resold. I was unaware that there had been a big scuffle with luxury
manufacturers and EBay. That's fascinating. Of course it sounds
like the right legal decision for EBay to prevail, but it makes perfect sense
that there's at least attention paid there. Obviously, you said that you
aren't a big expert on the leather goods. I'm not a big expert on them
either, but I do, from time to time, go into a department store and it just
floors me that you can buy a handbag for $10,000.
Matthew: Just think how much money as a vendor you
are afraid you are losing from those secondary sales. Even if only on of ten of those goods that
are bought used might have been purchased as a primary sale, that's still a non-trivial
amount of sales that you could make. If you could reach out into the
aftermarket and control all of those sales and stop all of those transactions
you could make a lot of money. It would basically mean that people who
bought their stuff don't really own their stuff because they can't sell it.
Fortunately, U.S. law is pretty hostile to that notion.
Denise: Well, I think we will have a chance to talk
about that a little more when we talk about cell phone unlocking later in the
show. Right now, let's wrap up our copyright stories and have Matt tell
us about your session with the House, right? You were in a House Hearing
this week, I think, on copyright damages?
Matthew: That's right, yes. A number of folks, including Michael's
colleague Sherwin, and I were testifying before the House Judiciary Committee,
which has had a long string of hearings now. Somebody told me that they
were up to fifteen or sixteen hearings exploring various aspects of U.S.
copyright law. This particular hearing was focused on remedies.
Primarily, two issues, I should say three, came to the fore front in the
hearing. One was about the so called felony streaming issue.
Another one, which I was principally focusing on, was about statutory
damages. The third issue was about a proposal to have a small claims
court for copyright. They are all very different issues but fell under
this common heading of remedies under the Copyright Act. So the committee
decided to bundle these subjects up and bring a bunch of folks in to talk about
it. Each one is kind of a different kettle of fish.
Denise: Right, exactly. Tell us about felony streaming.
Matthew: Due to a quirk in how, I shouldn't say
this, you could characterize it as a quirk or you could characterize it as
intentional policy. Right now for criminal copyright enforcement, the
felony penalties are only available for reproduction and distribution.
Let's step back a little bit. The Copyright Act isn't just the
right to make copies; it's a bundle of rights: reproduction,
distribution, the right to make derivative works, the right to publicly
perform. Those bundles are really what the copyright holder controls.
That means a lot of different things. It means the right to make
copies of the book, but also to sell copies in the bookstore, to have the
Hollywood adaptation, or even the lunchbox. Those are all exercises of
the copyright. When our felony copyright penalties were
created they only applied to the reproduction and distribution rights. Which sort of makes sense, because at the time that was
most of what was happening with respect to criminal piracy enterprises. They were making unauthorized copies of things and selling them.
But now, the concern is that more criminal enterprises are unlawfully
streaming things online. One of the big complainants in this area are
folks that do pay per view streaming of things like niche sports like these
cage matches where they put two guys in a cage and they beat the pulp out of
each other. The primary business model there is streaming. If those
streams are getting hijacks and restreamed by an infringing site, then that's a
big problem and yet, under the current interpretations of the law, only
misdemeanors can apply. These online streaming folks are saying, hey, why
shouldn't we get as much protection as the publishers who publish Harry Potter?
That's sort of the issue that is before Congress now. It's being
kicked around. It came up during the ill-fated Stop Online Piracy Act
debate a couple of years ago and crashed and burned when that bill went down as
well. That's just sort of coming back.
Denise: Okay. Let me ask you this before we go more into
the details of the hearing. Overall, does the fact that there is this stream of hearings going
on mean that we are going to see some movement on copyright reform?
Matthew: No. That is my short answer. I don't. Here's why.
Denise: Now I feel sad.
Matthew: I think that there are a lot of aspects of
how we structure the current copyright system that could be improved. We could also make it far worse. If you look at how hard it was for Congress
to fix something that was ridiculous, the cell phone unlocking problem you
talked about, which was not Congress' intent. They had no desire to
control people's ability to resell their phone, but now that was an unintended
side effect of the DMCA. Yet, it took years to get a tiny, imperfect fix
into the statute. So given how long it took to solve that one problem,
I'm not optimist that Congress in its current condition can effectively resolve
the numerous issues that are out there. Their sixteen hearings, fifteen, have
dealt with far more than that number of issues. There are as many
complexities in music licensing as there are in the remedies area. I see
a comprehensive reform as unlikely. I do think there will be an effort to
fix some narrow issues, and it's possible that those items could be broken off and
legislated separately. If I had to bet on it, I would be against a
comprehensive reform at least anytime in the near future.
Denise: Yeah. There seems to be consensus on that point. Let's look at why, Matt, I need to know why
Michelle Shocked did a nonexistent song named after you. Tell us about
that.
Matthew: I know. It was 45 seconds. So it was my 45 seconds of fame there.
Denise: What happened there?
Matthew: A number of folks put together a briefing
for Hill Staff about the ASCAP and BMI, which are the big performing rights
organizations here in the United States that more or less control about 90% of
the performance rights. So when things get played on the radio, or television, or certain
online services, these are the entities that collect the money and hand it out
to artists. So basically, you have two organizations that have acquired
all most all of the rights in the country and they pretty much set prices.
The Department of Justice didn't take kindly to that in the mid twentieth
century. So they sued these guys for being cartels, essentially. On
the other hand, they also acknowledged that they were serving an important
role. What's happening now is they are operating under Anti-Trust Consent
Decrees. So they are functionally constrained on what they can do and
what they can't do. They continue to do the transaction cost reduction
that needs to happen for music to be played on the radio or other services.
But also do so in some way that is supervised by anti-trust. So
these Consent Decrees are out, and they are both kind of dated by now.
ASCAP's was updated about twelve or thirteen years ago. They are
not functioning particularly well. There have been a number of cases
brought where Federal District Courts have said that, yeah, these PROs are
acting noncompetitively notwithstanding the consent to create. So the
Department of Justice, on its own accord, said that they were going to take a
look these Consent Decrees. So we put together this panel on The Hill to
brief folks. At some point along the way, some fellow got upset, made a
scene, threw some t shirts at us, stormed out, and he later blogged about it.
A number of the details were wrong and the whole thing got billed as a
Congressional Hearing, which it wasn't. So Michelle Shocked read this and
decided that those of us who had participated in the event and a bunch of other
completely random folks, general councils for companies, some fellow who writes
for Yahoo Music; we were all the bad guys, the twelve horsemen of the
music apocalypse or something. We are all now title tracks. I'm
still waiting for her to come to me and ask for a publicity right's
license.
Denise: Right. There is some precedent for what she did.
She didn't actually put anything in these tracks. They are silent.
Matthew: It's a crafty idea. I think that some other artists have done
this before. They
basically put silent tracks on an online service, in this case it was Spotify,
and when those tracks play Spotify has to pay. They basically pay out for
the performance rights. What she said was that if people play this music
it will fund my tour. The idea is that because its silent music you could
just leave it playing on overnight and indefinitely and Spotify will compensate
folks. Someone else did this, but I think that Spotify took issue with
it. That wasn't what they quite had in mind in offering their service.
So it came down. I haven't checked if you can still listen to 45
seconds of Matt Schruers in silence on Spotify.
Denise: Someone please check for us. I think that the other band that did this,
or the one that we talked about on the show, was called Wolfpeck, maybe? Wolfpack or Wolfpeck.
Matthew: Right. I think that they actually did make some
money off that. It was
an inventive technique for getting their tour funded.
Denise: It is certainly inventive. Let's talk about the copyright ability of a
couple of things near and dear to people's hearts. The first being
Tweets. This is something that has come up again and again on the show
with the teeing of the issue being could you have a copyright on something so brief
and oftentimes informational rather than creative? Of course there are so
many different creative uses of Tweets. I was just reading in Wired magazine yesterday about a guy, I'm forgetting his
name now, who published an entire short story by having his friends initially
Tweet sentences of the story and then he would retweet them, so it looked like
he was gathering them from around the web. Certainly, this seems like a
very creative use and something that might be able to trigger a copyright.
Maybe other Tweets might now. Over at Techdirt, Gabriel Miller, who
writes there, decided to do an experiment. Back in January he had an
exchange about an A.O. Scott, who is a film critic for the New York Times.
A.O. Scott got upset because a couple of lines in one of his Tweets were
pulled out and used by a film promoter as part of a full page ad promoting the
film. I have the feeling this kind of thing happens all of the time.
It's one of the hazards of working for the New York Times. You
positively review something then people are going to pull out and want to use that
to advertise their wares, whatever they may be. Here there was a
discussion about whether you could actually use copyright, getting back to
maybe using copyright law for more purposes than it was intended, to pull down
the Tweet under the DMCA. You could go back and forth on that issue.
The experiment that Gabriel did was take one of his own
Tweets, pay $35, send it in to the Copyright Office, and try and get it
registered. I'm not sure how long this process took. He said 7
months and $35 dollars later. I don't think the request was pending quite
that long. He got a rejection from the Copyright Office saying, no, sorry;
your Tweet is not copyrightable. What can we conclude about the copyright
ability of Tweets from this, Venkat?
Venkat: I think that it depends, to give the
typical answer. The Copyright Office rejected, it was a great blog post
and a great experiment, by the way, and well worth reading, rejected his
attempt to copyright a Tweet. They cited the circular that talks about short
phrases and expressions not being copyrightable. He filed a short
response, or submission, because the copyright registration process allows you
to include comments along with the registration that sort of explained why he
thought that Tweet number 452 should be eligible for copyright protection.
But, that didn't change anyone's mind. There is an appeal's
process. I don't know exactly what it is called. He decided not to
spend the money to further push the envelope and see if he could get somebody
to change their mind. I'm with you; I think that short phrases and
expressions is just a short hand to say things that are not of a certain length
we don't think of as being copyrightable. But, that's not always the
case. I think we can think of creative expressions that are just five
words long or around that length. There is no reason why there should be
an absolute bar. I think it was an interesting anecdotal look at whether
or not something that short can be copyrighted. My recollection is that the
law is somewhat mixed. There are examples of short phrases being afforded
copyright protection.
Denise: Matt, this kind of example makes me think
about whether our whole registration system jives with technological realities
these days anyway. I remember back when I first started blogging in the early 2000's
there was a flurry of people and hand ringing around whether we have to
copyright each and every blog post. Send it in, $35 fee, register it, and
you know, this is just a more compressed version of that. Obviously, you
don't have to. Well it's not obvious. For people who are not
lawyers it is not all that obvious. You do not have to physically
register and pay that fee in order to enjoy copyright protection. But if
you ever hope to follow up on your DMCA take down notice and bring litigation
about the thing that you are complaining of; you have to have registered the
copyright. Do we need to rethink this whole process?
Matthew: You are sort of getting to the primary
tension in copyright law, which is that we want to have the bar low enough that
the incentive to create is a meaningful incentive in the cases where it is
necessary. But we have also chosen to have the bar there, to some degree,
for a variety of reason, including that you don't want to have frivolous
disputes. You want someone to assess whether or not something was
creative before necessarily launching a federal case. Just like the
patent system, there is a good argument to be made of having a list of all of
these federal entitlements that the government is handing out. It's just
a very challenging time. My argument would be that it’s never been easier
to have a low cost registration system. We could even have a mandatory
registration system. There are problems with the fact that every Tweet is
potentially copyrightable, that every email is potentially copyrightable, every
photo taken by a non-primate is copyrightable, right? That is kind of a
problem in the sense that there are potential liabilities attached to every piece
of communication on the internet. I also appreciate the concern as a
blogger myself. It's true that by not registering every post I make I
forfeit some potential benefits under the law. The Copyright Office has
been working to try and solve these sorts of issues. Particularly in
issues where like photographers, they have been rolling out files for batch
filing large amounts of works because photographers will take thousands of
shots in a shoot perhaps. $35 for each one of those is just implausible.
My view is that, in fact, the registration system is more important now
than ever. Trying to figure out a way to get people to register what they
think requires protection in a low cost easy way is something that should
happen in a copyright reform. It's also something that is unlikely to
happen because it would be such a radical shift from how we do things now.
Denise: I will run this by Venkat to fact check
myself. If you
do decide, okay, this one particular thing that I haven't registered is the one
that I'm going to maybe have to sue over. Then you register that right
before you file suit. That's still perfectly okay, right?
Venkat: It is, yep.
Matthew: In fact, it doesn't even have to be
registered. You can
file the form with the copyright office, and you don't have to wait for them to
get back to you before you initiate the litigation. It might turn out
that during the litigation that the Copyright Office comes back to you can
says, hey, you know what, that's not protectable, and now you are in trouble.
But, your only obligation before going to the Federal Courthouse is to
file the form VA on your selfie. That only costs $35.
Denise: Michael, any thoughts on this before we
move on?
Michael: Just that I think that Matt is right. We are in a world where whether or not a
Tweet can be copyright protected, a lot of things can be. There is a huge
value in making sure that we do have a list of central registry of what is
protected. It should be super easy, especially when you think about
photographers and things. There is no technical reason why a low cost
registration couldn't be built into the work flow. There is not technical
reason why, if you are a photographer, every time you save your photograph in
Photoshop that it automatically registers it with the Copyright Office and you
pay whatever it is, $100, $200, $500 a year to do that. Or even a
blogging platform. There is no reason that WordPress couldn't have a plug
in that connected directly to the Copyright Office. If you were a blogger
and you were worried about suing someone in the future, you pay some sort of
flat fee to connect. Every time you publish a post it's automatically
submitted for registration. There are a lot of "easy" technical
solutions to the problem of registration as a barrier. We can have a long
conversation about what should or should not be protected by copyright.
But as long as it's protected, there are huge benefits for everyone
knowing what it is and who the owner is.
Denise: I'm worried that as more and more people
are creating, and I'm using the word creating in a legally significant way,
works, and they are people who don't consider themselves authors or
photographers. But yet, they are out there using the tools that exist to
create things. I wonder whether being given the option to pay $200 a year
associated with your Instagram fee is something that people would really jump
on.
Matthew: It's sort of the problem that we have now
with patents, right? People come up with inventions and innovations which they may well
be disclosing to the public without necessarily realizing. But we don't
bestow upon that inventive activity legal protection unless they have gone
through the formalities of filing the patent and prosecuting it, which can cost
a lot of money. I've always thought it very strange the hostility that
we have towards registration isn't also directed towards the Patent and
Trademark Office.
Denise: Right. God knows I don't want to open the
floodgates of copyright litigation though an automatic registration system,
which is certainly what would happen. Especially if we had a small claims
option.
Michael: That's not where to fight that battle
though, right? It's
not that you have the registration, it's because the thing is already eligible
for copyright protection. If you are worried about people having too many
copyrights, the solution for that isn't to make it really hard how to identify
who owns them. The solution is to dial back how easy it is to get non
registered copyright protection. But once you come to terms, I'm not
saying I have come to terms, but once you have come to terms the boundaries of
what is going to be protected by copyright, it feels like there is a lot of upside
to what's in there.
Denise: Sue the writer is asking in IRC, "Why
should I have to pay to get a right that I supposedly have upon creation of the
work?" You aren't paying to get the right is the problem. It's
kind of a technical distinction, because in order to enforce the right is when
you have to pay. Maybe it's a distinction without a difference.
Matthew: Well, you certainly do have to pay today,
yes. You
just have to pay to get into the courthouse as opposed to get it automatically. But you
still are going to be out $35 if you intend to enforce.
Michael: But it's a potentially huge benefit, right?
Denise: Because the damages are so high. Alright, well, speaking of things that are
copyrightable and subject to high damages, let’s trying to figure all of this
out. Whether
or not you are a primate, aren't we all primates actually anyway? I don't
know. We will have to get a zoologist in here. Way back in July
2011, for those of you who are long time listeners of the show, you will
remember when we discussed the delightfully cute selfie that was taken by a
monkey when the photographer left the camera there intentionally or lost the
camera. Maybe that's significant for the copyright analysis. The
monkey took a photo of itself that is just wonderful. I'm sorry that I
didn't put it in our rundown to quickly be flashed up on the screen.
Someone will do that, I'm sure, and let you know what it looks like, for
people that are watching. There you go, he's so cute, or she. I'm
not sure if we have a female photographer or a male monkey photographer here.
We wound up talking about this story because the person who owned the
camera, and claims to be the photographer, even though the monkey took the
picture, has made various efforts to enforce his copyright. Back in 2011,
there was not any actually any DMCA take down notice submitted to Mike Masnick
at Techdirt, but more like an informal letter from Cater's News saying that it
represented David Slater with respect to this photo. Mike refused to take
it down. He went through a whole thing saying I cannot figure out how you
have copyright in this photo. The photographer was the monkey. So
Mike stuck to his guns, did not take it down, and that is what Wikimedia had
now done, too. The photo file has been up there for people to use all of
this time. When recently they were asked to take it down, they took that
position that it was in the public domain. We are going to go ahead and
make "Monkey Selfie" our first MCLE pass phrase for this episode for
This Week in Law. Because how can we not? If you are listening to
the show for continuing legal education credit we drop these phrases into the
show so that you can demonstrate that you have watched or listened should you
have to. Michael, what do you think about the monkey's copyright, or
anybody else's in this photo?
Michael: Yeah, I mean, you know, every lawyer's joke
that could be made about this has been made. I think my favorite point that I have seen
has reemerged besides talking about if you incentivize creation is it a first
step towards Planet of the Apes type takeover? Somebody who works here in
Washington, Brandon Butler, who is now at American University, was the first
person who flagged this for me. He suggests that perhaps this was just a
good story gone badly where the photographer actually took the photograph and
then decided that he would get more attention by saying that it was a monkey
selfie. When he was unable to take it down and it went viral he was kind
of stuck in his own trap of lies. I have no idea if that is true or not,
and if he is litigious I hope I don't get a notice of being sued for
defamation. It's a version of the story that does not feel crazy on its
face. Maybe it is a fake selfie and he never gets to claim it because he
missed that opportunity, which is a lesson for children, to always be honest.
Denise: Yes, definitely. We have a law professor
with us. Can you
shed any light Matt?
Matthew: Well, so, I think Mike Masnick's and Wikimedia's analysis here is entirely correct. The copyright office
circular on this is pretty unambiguous. It would apply to other things as
well, not just monkeys. If you have a machine that generates random
patterns or random data then that's not protectable. There have been
cases where businesses have attempted to secure copyright on randomly generated
data that hasn't been deemed sufficiently creative. It's built into the
statute that it needs to be a body of originality implicit in that it comes
from a person. This got misreported as the monkey owns the copyright, and
then there are all of these questions about well, can I hire thousands of
monkeys with thousands of typewriters? That's wrong; it's actually that
there is no right, which sort of confounds people, the notion. A number
of people have said this; the notion that no one owns it strikes people as
foreign. I think that is the right outcome. This is sort of like
the copyright law's equivalent of Schroeder's cat. Everybody is going to
love to talk about the monkey selfie indefinitely. We will never get away
from it.
Denise: Have you put it in a law school exam yet?
Matthew: I have not. The problem is that everybody is going to
do it, and then it will be like a duck question.
Denise: That's right, so unoriginal now. Venkat, any
thoughts?
Ventkat: No, just a fun story, definitely. Even coming back a couple of years later
it's still as interesting as it was the first time around. It's fun to hear all of the theories and
speculation about it.
Michael: I will say we had a fight here at the
office about like, if you had a camera set up and you pushed a lever to take a
picture, then you have the copyright. But then, further down the list, what if
you trained the monkey, like you taught the monkey how to do it? Then do
you have the copyright? What if you put electrodes into the monkey's
brain, so that you were actually controlling the monkey? How far do you
go down this scale of control before you are no longer allowed to say you are
the right's holder? It is an interesting thought experiment as you anamorphize technology.
Denise: What if the monkey is wearing Google Glass
and just nods his head? I don't know. You have to
tap it, not nod. It's
fun to think about. I had to update you all that were listening back in 2011 to let
you know that Wikimedia has weighed in on the public domain front. Let's
take a break really quick to thank our sponsor for this episode for this week
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Let's move on to some more copyright related issues on the entertainment
front.
(Intro sound effect plays)
Denise: The Aereo decision came out, goodness; let's see, almost two months ago now. We've
had just a minor development in that case this week when Aereo filed some documents. Eriq Gardner over at THR,
ESQ. got hold of them. I think their motion was withdrawn. I don't
know if those documents are part of the public record any further. But,
in those documents Aereo was pleading with the court
to give it some kind of relief and sympathy because there were statements in
there about it bleeding to death and having dire financial trouble in light of
the Supreme Court's decision. Matt, you wrote a really, really nice
detailed post the day after the Aereo decision came
down over at SCOTUSblog analyzing the decision.
Just amazing impressive how long that decision was and how quickly you
had such a dead on analysis on the web for people to be able to try and grock the case and figure out what is going on. You
talked about a couple of things in there that I thought we could pull out here
because we really haven't talked about it on the show yet. One of the
points that really struck me in reading through your analysis was this
possessor language that the court used in trying to save cloud services in its
efforts to limit the case to area situations only and not to something like
Dropbox. The court used language that if you were the owner or possessor
of the media in question then you would not trigger liability by uploading it
to something like Dropbox. I'm paraphrasing and probably getting it
wrong. I thought this possessor language was really interesting because
it brings into question, the whole lockering discussion brings into question, things that have been resolved in copyright
cases before. Perhaps the Aereo decision
actually breaks some of those open. The original MP3 Tunes Case that was
very famous, at the time had, I think, the largest copyright's damages decision
at that time. I think other things have blown by it since. MP3
Tunes got in trouble because they were letting people rip and then locker their
music. Actually, MP3 Tunes matching process, so maybe it's not quite a
one to one correlation. I'm thinking that under the Aereo decision, ripping and lockering, if they are carving
that out, might be just fine. What do you think?
Matthew: I think you are, on the specific question,
yes. It was mp3.com. MP3 Tunes is still in litigation about a
number of very technical issues. The mp3.com case was twelve or thirteen
years ago now? They were sued, although the lawsuit was filed before the
service went live. They were doing the matching on the back end.
It's not quite the same that is happening now with common cloud services.
MP3 Tunes was actually uploading content on their end, and then when you
came in to access that content, if you could prove you owned it with a CD then they
could give you access to content in the cloud. It was essentially going
to be one copy for many users, and as we sort of know from many cases now, that
won't work. The cloud model of everyone has access to a copy that they
have created is sort of generally accepted. Aereo was an example on the edge of that hypothetical where it was being created
virtually, remotely, when you would gain access to the file by virtue of
renting a broadcast antenna. I don't think mp3.com would have come out
differently under this situation, I'm sorry, under the Aereo case, although, I do, as you point out, I think that the most important
takeaway is that there is some ambiguity although also some encouraging language
around that phrase "owner" or "possessor". It does
seem to suggest that the court thinks putting stuff, your stuff lawfully
acquired in the cloud is okay. Of course, I think, as most copyright
lawyers will immediately start thinking, well wait a minute, a lot of times
people may possess stuff but they are more accurately described as licensees.
You don't own a lot of the media you now have at your fingertips.
You are a licensee of it. Is that covered? I think the answer
is probably yes. It certainly ought to be yes. It was language that
I suspect was chosen because of this very poorly conceived hypothetical that
came up in the oral argument about a valet service for cars. The
plaintiffs for the broadcasters went in there with this valet example saying if
you bring your own car it’s okay for somebody to valet
it for you, but if you show up without a car they can't give you one.
That was sort of an effort to describe Aereo which fell apart at all sorts of detail levels. But, I think it actually
influenced the court's thinking. That's where we got the language in the
opinion.
Denise: We are going to have to call this episode
"A Few Years Ago in Law" instead of "This Week in Law"
because we are talking about all of these old cases today. The other one that came to mind in reading
your analysis of Aereo, Matt, was the IVTV case that
was in about the 2011-2012 time frame. IV,
unlike Aereo, did not have tiny antennas.
Instead, they were giving you software that would allow you to do live
video streaming of free over the air broadcast television signals. IV
wanted a compulsory license and was shut down at both the trial court and Court
of Appeals level. Does IV somehow spring back to life in the wake of Aereo, do you think?
Matthew: That's my opinion. It's hard to read the Supreme Court's
decision as saying something other than that. I have never said it.
I've always said IVI. They took the position that they were a cable
company and tried to get the compulsory license on under the Copyright Act.
The court said no, you are not a cable company. The Appellate Court
opinion stood until the Aereo Case, where, of course, Aereo was shot down on the basis that they looked
like a cable company. Now Aereo, this emergency
motion where they said they were bleeding to death essential is an effort to
expedite a determination that they are, in fact, a cable company and that they
can get a license that the Supreme Court says they are entitled to. My
view was that the IV Case was effectively overturned sub silentio by Aereo. We will need lower courts to confirm
or deny that construction.
Denise: We will see if IV, somehow, comes back
around and decides to exploit this. In the meantime we have got Aereo supposedly bleeding to death and now we are a cable
company, too. So we
will somehow cobble together the fees to pay that compulsory license and let us
survive. But, in some of the coverage I've read of that whole issue;
there’s been an indication that the copyright office has telegraphed that they
don't agree. Michael, have you been paying attention to that? Do you
know what the copyright office's position has been?
Michael: I believe that there was a request made by Aereo to the copyright office. In their response, it was an informal
response, Matt probably remembers this better than I do, the copyright office
general counsel’s office gave an informal response kind of acknowledging
receipt of the request where it was read as being very dismissive of Aereo being a cable system for their purposes. This is one
of the major problems of the Aereo decision where the
Supreme Court is saying that you are a cable system so you cannot do what you
want to do. Then Aereo tries to say, okay, we
will be a cable system. Then basically, the copyright office says, no, you are
not a cable system which would allow you to do what you want to do. So
they are in this position where they can't catch a break. There is
nothing to do right because at every turn whatever the status, cable system or
not cable system that they would need to be to move forward that the person
deciding that, totally in a vacuum totally related to the other decisions,
decides against them.
Denise: Matt, do you think that Aereo will be in kind of this rock and a hard place position where courts are telling
them whichever way they go that they have no business model? Not a legal
one, anyway.
Matthew: That's my current concern with the
copyright office's response and their inability to get a decision promptly out
of the courts is that it is sort of a rock and a hard place. I've characterized it as which shell is the
ball under? IV is told, you are not a cable system, so Aereo says ok we are going to design a system that works
this way and then they go to the Supreme Court and they say, ah, you are a
cable system. So then Aereo goes back to the
copyright office and they say, no, you are not a cable system. It’s like, will you make up your mind? Because you
have two different decision makers here you can essentially have conflicting
views. There are differences of opinions about how determinative the
FCC's views are here as well because they have some overlapping regulatory
authority but not actually the ability to decide what is a cable system.
That's not something that the Telecom Act has a VPDE. Technical
terminology here. I think what the copyright office's letter might
be read to be doing is sort of lateral the issue to the FCC for resolution.
It's fair to say that the copyright office was not supportive of their
effort. They also did not reject the application.
Denise: Before we move on from Aereo,
the krux of the analysis was Matt, that the court
tried really hard to say, cloud services, you are going to be just fine. There is no way to insure that that will be
the case. What do
you think likely will happen?
Matthew: Well, in the short run I think what I have
referred to as traditional cloud services, where we think of as cloud lockers
putting your regular files in Dropbox or Microsoft SkyDrive or Google Drive and
so on. Those
services are fine. Those companies can rely on the owner possessor language.
The court is very vague, but determined in an effort to say that they
didn't have anything to worry about. I worry more about newer
implementations of cloud services; side loading, certain streaming
functionality that we may see built on once as bandwidth improves. Old
fashioned file storage is probably not a problem. Even there, I can't be
certain because the language is somewhat ambiguous in the court's opinion.
I have great concerns about newer features being rolled out. All of
the research and evidence that I've seen from scholars talking to investors and
innovators is that folks want to stay away from services that touch media
because of the potential copyright exposure. I am concerned about the
future of new cloud functionality because of this opinion.
Denise: Alright, well, we've been in wait and see
mode on that. I guess
we will continue to be. One thing we haven't been in wait and see mode because we actually
got a determination, and the passage of a bill, and the signing of a law is
cell phone unlocking. Let's look at some law and policy issues around
that.
(Intro sound effect plays)
Denise: Guys in Washington, help us understand. The cell phone unlocking bill was passed,
but it's kind of a pyrrhic victory, if that's the right phrase for it, because
it's temporary. This is something that enabled a DMCA exemption that will
only last possibly for a year because the Register of Copyrights gets to
revisit those exemptions every three years. Next year is the next time
they all come up for renewal. Should we be happy about this? We've
already heard from Matt that the chances of real copyright reform are not that
great. Can we at least pop a tiny little bottle of champagne about this?
What do you think Michael?
Michael: The answer to that is yes. If nothing else, we will get to the
substance part of it. This is a situation where the Copyright Office made a bad
decision. People
actually went to the White House petition site to elevate this issue and say
that this is really important. Then we saw the White House get engaged.
Ultimately both parties in both houses came together on some sort of compromise
to address this. It is an imperfect solution, but from where we are
sitting in Washington right now any time we see any type of responsiveness to
what is really any type of pure consumer desire, it should be celebrated.
We had people who not only signed the petition, but were calling Congress
and calling the White House. This is an example of an issue where the
only people who wanted this really were consumers. The big industry
players in town were not excited about this. There was a collection of
people who said, no, this is important and we want to do it. And it
actually happened. That is the good news part of this. The reason
that it is not a kind of flawless victory is that you can always describe a
bigger win. There are two kinds of bigger wins. The good news is
that you can unlock your phone. You can get someone to help you unlock
your phone, which was in play for a while. The not as good news, the bad
news is that it's not a permanent exemption. So we are going to have to
work at the end of this year and next year to make sure that it happens again.
We will hope that the Copyright Office gets the message from Congress
that this is the kind of exemption that they should be granting. The real
victory in this would really be a blanket exemption that says, right now you
are not allowed, and it’s a separate offense to break a digital lock.
It's a DMCA offense to break a digital lock that protects copyrighted
work. Now you can talk about DVD encryption. Regardless
of whether or not you are allowed to access it, that work should be protected. What a great victory would look like for this would be an exemption that
said if you need to break a digital lock in order to make a legitimate use of a
copyright protected work, if you want to take a DVD that you have and you want
to take out a couple of clips to make a political point about what's going on,
you are allowed to break that digital lock because the underlying cause of that
digital work is not illegal. So as long as your underlying use of that
copyrighted work is legitimate, then the fact that is protected by a lock
shouldn't prevent you from doing it. That's the real version of the win
in this. Digital locks don't get in the way of what is allowed in
copyright. That's a longer fight. It's still a good win. We
will take them when we can get them.
Denise: This was one unlocking cell phone bill that
passed. There was another one, the Unlocking Technology Act, that would
have folded this in as well as a lot of other considerations including looking
at the whole DMCA exemption process and reviewing the DMCA in general.
That has not passed. Is it still alive Matt?
Matthew: I suppose, to be technical, all bills are
alive until Congress adjourns. I think the probability of this issue being revisited once this
piece of legislation has gone to the White House and everyone has declared
victory is low. The odds of any legislation are low at any point in time.
Particularly once an issue is addressed by congress it tends to cast a
long shadow, even if the result isn't necessarily good. Look at patent
reform. We had a major patent reform bill pass a few years ago and there are
still perceived problems. You always have people saying you just passed
legislation on this. Let's see how that works. Let's give it time
to play out. Frankly, there is always fatigue from any issue. Not
to pour cold water on things, but I don't think revisiting that issue anytime
soon is likely. I certainly think it ought to be revisited in the context
of overall copyright reform. The issues that Michael pointed to, that you
can violate the DMCA when what you are doing doesn't violate in any way the
copyright holders' interest in the work seems pretty strange. I always,
when I explain this to students every year, I just get universal views of
bafflement. Why would that be the case? There is a least some
willingness to accept, I think, that if you have a digital lock and it is
preventing you from engaging in piracy then maybe that is a valid policy objective.
But, if it is preventing academics from engaging in media literacy or it
is preventing you from using your own hardware that you bought then the law
tends to lose credibility in those circumstances. Some of the really big
cases were examples like that. They involved a garage door opener where
someone tried to use an aftermarket remote on their opener or printer toner
cartridges. These are not cases about piracy.
Denise: This seems like a bigger problem, perhaps,
to address. If we
are looking at the way that government processes work than some sort of
streamline copyrighting legislation. If you have got more and more
devices out there be they garage door openers, or
printers. Or recently in the news; we have talked about them on the
show; the ReNo battery in the car where the
battery stops working if you haven't made your payments or having k cups that
are not conforming or not manufactured by Keurig in your coffee machine. This
is just the tip of the iceberg, a flood of litigation over devices that have
software in them that have locks that cannot be undone. Venkat, do you think that we are going to see some reform
on this? Or are we going to see a whole lot of pain first?
Venkat: I don't have a great view. Being in the Pacific Northwest I'm not so
close to the discussions. My guess is that reform would be slow coming. My impression is that things seem like they
take a long time. This wait and see attitude is
probably a typical response that might come up. On the other hand, I
think that it is curious to see public pressure and to what extent public
pressure plays a part in sort of mediating these issues. I know with the
Keurig Coffee replacement canisters that there was a fair amount of public
pressure in response to that. I don't know to what extent that actually
effected the company's behavior, but these issues are more and more seeing the
light of day. I think the internet as a whole is playing a bigger role in
exerting pressure against companies. So, I think that might increasingly
be a factor going forward in mitigating against abuses
of this sort.
Denise: We should underscore, and I should have you
explain maybe more Matt, that if you do circumvent a digital lock under the
DMCA without an exemption that there can be felony liability for that, correct?
Matthew: There are, yeah. Just like in regular copyright, we have
both civil and criminal penalties. Generally, the criminal penalties only
operate when there is some sort of commercial impact or motive. Although,
we have seen over the years that the threshold for when that operates has sort
of functionally been reduced. There is a famous case years ago where a
guy was running a swap website, basically not for profit, but he was able to
access this stuff of his site. He beat a felony prosecution.
Congress promptly modified the rules so that wouldn't happen again to
close a perceived loophole. If one is unlocking for profit then certainly
the potential for criminal exposure is there. These are the things that
worry me about the general credibility of the copyright system. People
will say, well it's my phone and I should be able to do with it as I chose.
That's kind of hard to argue with. It doesn't help the legitimacy,
the perceived legitimacy of the system. That is true. There are
relatively few DMCA criminal prosecutions. Mostly they tend to be in
cases that you think they should be brought. Criminal
enterprises doing large scale sale of mod chips and selling batches of games
for profit, right? That is pretty much a run of the mill piracy
operation. It would also violate the unlocking if you were modding the chip inside of game consoles, for example.
In other cases, whether its phone unlocking or selling people attachments
so that they can use aftermarket k cups, having potential criminal exposure
there is not the right way for the copyright system to go.
Denise: No. It doesn't seem that way. Michael, any thoughts
before we start talking about net neutrality?
Michael: Oh no, I'm always ready to move quickly to
net neutrality.
Denise: Let's move quickly then to net neutrality.
During its initially comment period the FCC got
more than 1.1 million comments from people concerned about this issue.
Where do things stand now, Michael?
Michael: Procedurally where things stand is that the
comment period has closed and now we are in the reply period that ends on
September 10th. Then, in theory, the FCC has all of the information it
needs, it sits down, and it writes a rule. In practice, they just told us
today that they are going to do a series of roundtables here in Washington after
the reply comment deadline, so in September and probably October as well.
What we are looking at is a situation where two things are happening.
One is, the day when a decision rules may come out is probably moving at
least toward the end of this year. The question is what are the rules
going to be? I think the good news, what we are seeing right now, is that
when this proposal first surfaced this time around, back in April or May, it
looked like it was going to be a very bad proposal. You may remember that
there were a lot of stories about how the rules that were reported to be net
neutrality rules were going to allow fast lanes and slow lanes online and ISPs
to charge edge providers to get better service. What we've seen is a slow
and steady evolution towards an understanding that that is a real problem.
We've seen President Obama come out this week on how fast lanes and slow
lanes are a problem. We've seen members of Congress in both the House and
the Senate step up and say this is a problem. Even today, there was a
press conference where Chairman Wheeler has said that this is a problem.
I think that if you were talking to somebody in Washington, this was
surprising to me that in January of this year there was an evolving wisdom that
four years ago people cared a lot about net neutrality but that it was an issue
that's time had passed and there wasn't that much public interest. I
think what has become crystal clear to everyone involved, you said that 1.1
million comments, it's been all over the place. This is something that
people really, really care about, and doing this right is going to be largely
what the FCC is judged on, in whether or not they actually create rules that
are strong and protect net neutrality and they do it in a way that will actually
survive court challenge so that we don't have to do this again in two or three
years.
Denise: So Michael, what do you think about the
recent statement from the cable companies that it's really not they who are the
gatekeepers, but large sites like Google who control all of our access to
things? And that they are the real net neutrality threat?
Michael: This is something that they trot out every
time. You can
have a conversation on whether or not there are websites out there that have a
lot of sway and have a lot of influence as to what people do. First of all, the nature that influences
fundamentally different that connects you to the entire internet. If I
want to do a search and I don't want to go to Google I can immediately go to
Bing. If I want to connect to the internet I may have only one option.
If I have more than one option then it will be a huge process to make the
switch. But more importantly, net neutrality is all about that last mile
termination monopoly. So the issue at hand when we are talking about this
is the company, that one company that controls your access to the entire
internet. There is no routing around them. If they make a decision,
that's what your internet looks like. We hear all sorts of bogus arguments
from the cable companies about this. That is one of them that I will
include in the bogus argument list.
Denise: Matt, do you think that there is any way if
the FCC moves forward with its proposed rule, and obviously we've got a lot of
comments, and hearings and discussions before that actually becomes a done
deal, if it does. Do you
think that there is any way that companies are going to be able to do
preferential paid deals with providers and that ends up being a good thing?
Matthew: We have seen some of that thus far. Certainly, there are circumstances where a
particular preferential arrangement with one service and one broadband provider
may provide short term benefits to customers. Its co located closer and
so on. If those are the exception to the rule, then it's not nearly as
problematic if those become the rule. A few, here and there, if they are
sort of ancillary to the general thrust of the marketplace I don't view as
problematic. It's apparent that that can be done, and in a way that it's discriminatory.
My sense is, and I'm admittedly not as much of a telecom expert as some
other folks, you have to take my opinion with a grain of salt. My sense
is that the regulatory framework doesn't inhibit that. The deals we have
seen getting struck are permissible under the current regulatory apparatus.
The FCC needs to think very seriously about whether or not that is
something that they want as an industrywide practice.
Denise: Well, yet another thing that we are going
to be seeing more on this in the next month or two. Stay tuned. Venkat, you have some really interesting stories
in the technology and marketing blog that implicate first amendment issues and
cyber bullying laws. I'd like to get to those before we wrap up the show
today. The first of those has to do with a public school teacher who was
blogging, not anonymously, but pseudonymously. You could probably put two
and two together and figure out from the pseudonym the teacher was using who
the teacher was and saying not very nice things about students in the posts.
How did that decision come out?
Venkat: Predictably, she lost. She was a public employee, and public
employees have a pretty difficult road when they allege that they were fired
for something they said. I think Eriq's follow-up
comments; she was venting and said you know, and I'm paraphrasing, in the old
days I used to spend a lot of time and energy on grades. And now I just
wished I could really be honest. She was kind of losing energy for her
teaching. She called her students and her parents a bunch of names on
this pseudonymous blog that a reporter found and starting digging around.
Somehow the school district put two and two together, perhaps based on
context, and found out that she was the author of the blog. She brought a
first amendment claim saying that her firing was retaliatory. The court
said that you have to show as a plaintiff you are speaking out on a matter of
public concern. There is kind of this wishy washy balancing test where the court asks if the public's right to know and
your right to speak is outweighed by the interest in efficiency. Here the
court said that her blog was really not a matter of public concern in the first
place. There are tons of these kinds of cases, and they are always fun to
blog because people seem to vent. They love venting about their job.
People get fired all of the time, both public and private employees.
For the most part, it is rare that an employee in this circumstance wins
their claim against the employer. This case is no exception. I
liked Eriq's follow-up comments that, as a teacher,
do we really want to have people teaching that have, everyone has a dark side,
but here the teacher's dark side really made one question her fitness for
teaching. I think that there were other examples of adjudicators, and
nurses, and healthcare workers all who sort of say similar things. They
all pretty much end up when they sue they don't fare particularly well.
Denise: Matt, do you think that this was rightly
decided, or do you think that there should have been a stronger acknowledgement
that a teacher, when off hours, even if they are calling kids jerks, and rat
like, and thunderhead, and whiny simpering grade rubber with an unrealistic
high perception of their own ability level (pretty insulting stuff about the
kids)? Do you think that there is any sort of first amendment issue
triggered there?
Matthew: You know, speaking strictly in my personal
capacity, I don't even hold myself out as a first amendment lawyer. I do
consider myself a first amendment zealot. Nevertheless, I don't really think that
this is what the first amendment was principally focused on. First of
all, no educator should ever be using that language about their students.
Whether it's first amendment or not, it certainly shows
a lack of judgment. I'm inclined to defer to the courts here.
I'm just another bystander with an opinion.
Denise: The name of the blog was "Where are We Going and Why are We in this Hand Basket?" Clearly, the teacher here has another
career ahead of her as a writer of snark online. She's good at that. Let's move on to another case that you
wrote on the Technology and Marketing Law Blog Venkat where the first amendment did prevail. In this case it undid a criminal
cyber bullying statute in New York. What happened here?
Venkat: Basically, a student created a Facebook
page and posted details of their classmates and their sexual practices.
He was prosecuted under the Cyber Bullying Statute. The conviction
was overturned because the statute the court said violated the First Amendment.
These types of court cases are also somewhat typical. There are
ton of cyber bullying statutes out there in various state levels. Every
month or every couple of weeks we always see a case, Eriq and I, which involve an application of that statute that is ill suited and
creates a lot of First Amendment problems. I think cyber bullying and
harassment in the old days what might have been conversation between
classmates, often harsh conversation, now often gets turned into cyber bullying
or a violation of a cyber-bullying statute by an overzealous prosecutor.
That's exactly what happened here. The particular part of the
statute that was problematic was that it gets at communications that are
intended to harass or annoy someone. There's a little bit of gray area as
to whether you can criminalize or prescribe somebody when then intend to cause
distress. I think harassment law and First Amendment law have a well-recognized
tension, but this falls well outside the bounds of that. When you start
getting into saying that annoying speech can be criminalized or ever prescribed
I think that most people recognize that as problematic from a First Amendment
standpoint. Even the government did in this case. They virtually
acknowledged that the statute violated the First Amendment.
Denise: Thank you for bringing us up to speed on
that. I think that it's time for us to move to our tip and resources of
the week. Our tip of the week is right in line with what we were just
discussing. And that is that although this particular statute in New York
was invalidated as unconstitutional under the First Amendment, there are various
other states with similar statutes that where these are perfectly viable.
California is one of them. The tip has to do with if you are
someone who is prone to making prank calls, I know that we have some jokesters
who listen to the show, or if you might know children who might be prone to
making taunting or annoying phone calls, we have a lot on the books in
California that criminalizes that activity under certain circumstances.
It involves penalties of up to six months in jail and a $1000 fine.
It's a misdemeanor liability. It's going to depend on whether you
encounter a prosecutor who is going to enforce this law. But it is on the
books, and has to do with harassing or annoying conduct on the phone. The
way it works, basically, is that there are a couple of components to it.
If the calls are repeated, and they are harassing and annoying, then that
would be sufficient under this statute, it appears. Also, if they cross
the line from annoying and harassing to obscene then they don't even need to be
repeated, so the language of the statute goes. So, if you are a Jerky
Boys fan or anyone else who is a fan of prank or annoying phone calls and you
are in California, or perhaps there are other states - I have not done a fifty
state survey of these kinds of laws - other people have. I do know that
here in California we do have a law on the books that attempts to, and does
impose misdemeanor liability for prank phone calls. Or harassing or
annoying phone calls. So that is our tip. Our resources are
twofold. One is Michael, if not it was Matt, who pointed this out in
their Twitter feed, was this great timeline from the Copyright Office, that is
the history of copyright. Every significant event as far as the United
States Copyright Office is concerned anyway. Who wants to take credit for
finding this? Matt or Michael?
Matt: Everybody gets credit for finding things on
Twitter, right? I think
I did point to that. Just watching that move, that was quite popular. It's a
really fun toy to play around with, and there is a lot of great stuff there.
I look forward to pointing my students to that.
Michael: Can I just plug? It's actually built on an open platform
that the Knight Foundation has done. It is so easy to make a timeline
that looks that good. It's just Timeline JS. I know we used it on
viewer website whatisnetneutrality.timeline.
It's basically the same timeline, but for net neutrality. To make
this thing, if you are thinking about doing it yourself, all you need to be
able to do is type things into a Google spreadsheet. It's so easy.
Denise: That would be useful for educators
anywhere. For
anyone interested in copyright law or copyright principles this would be a
great thing to take you through how we got to where we are and a reminder of
copyright terms when they first came into play were fourteen years long and not
life plus seventy. There's quite a bit of good stuff in here for anyone
interested in those issues. Also, for anyone interested in the issues
that we discuss on this show. Venkat's co-blogger, Eriq Goldman, does a very good job
obviously of teaching his internet law courses at Santa Clara University and a
good job of making a whole bunch of his teaching materials available and transparent.
Right now, his 2014 Internet Law Syllabus and Updated Casebook is available
for $8 in a DRM free PDF format. Eriq makes his
exams available, too, which are always a hoot and a half. This is just an
incredible resource for anyone interested in internet law whatsoever.
He's got all kinds of cool things in here including, new this year, a cheat
sheet on the DMCA, how the DMCA online copyright Safe Harbor has failed, how
the Silk Road ruling will hurt online commerce, all of the cases that are used
in his course, and analysis of these cases. So it's a really cool tool,
and if you are interested, it's just $8. Go check that out. Also,
I'm reminding myself as I look at our spreadsheet that we need a second MCLE
pass phrase before we go ahead and wrap up the show. Let's make that
"Jerky Boys". For anyone who even remembers who they are.
Michael: I remember those. All my shoes and all my
glasses, so I have them.
Denise: We will just mention, too, that if we are
interested in continuing legal or other professional credit for watching the
show, head on over to wiki.twit.tv. We've got a page there under the "This
Week in Law" show of course with lots of information on how you can bring
that about for yourself. What else? That pretty much does it for
use guys. I will ask you to please, please get in touch with us between
the shows. I'm denise@twit.tv. My cost host, Evan, who will be back
next week, is evan@twit.tv. You can send us tweets; I’m @dhowell on twitter. Evan is @internet cases there.
That's his blog. Let us know things that pop up on your attention
radar, so that we can think about putting them on the show. Let us know
about guests that you think we could have on the show. Let us know your
thoughts about things like monkey selfies and who has the copyright in them and
other things you think we should be paying attention to. We also have
Facebook and Google Plus pages that you should check out. You should also
go to twit.tv/twill if you want to go to shows years and years ago and try and
figure out the difference between MP Tunes and mp3.com. We will try to
keep that straight ourselves as we go forward. It's always fun to see how
stuff that was resolved decades or more ago can still have currency today as we
try and figure out all of these issues related to technology and the law.
We couldn't do this show without the help of our great panelists who come
each and every week. This week has been no exception. Just a wonderful discussion. Venkat, thank you so much for
joining us again.
Venkat: Thank you.
Denise: Enjoy the rest of your summer in Seattle. Please come join us again soon.
Venkat: Thank you.
Denise: And, Michael Weinberg, again so great to be
able to pick your brain on all issues related to free printing, and net
neutrality, and all the other great stuff that you guys pay attention to at
Public Knowledge. Any particular issue or place you want to point people
towards where they should be taking action or looking at an issue that they may
not realize is very important to their daily lives?
Michael: I would say that if you haven't weighed in
on net neutrality yet, definitely go to publicknowledge.org and click on
"act now". We've actually got a cool new tool that makes it
super easy to call your member of Congress and tell them what you think about
net neutrality.
Denise: That's wonderful. Thank you so much Michael, and enjoy the
rest of your summer.
Michael: Thank you very much. You too.
Denise: Great to meet you Matt Schruers. I'm
envious of all of your seasons at Georgetown. Seems like you would be a
great person to hang out with for a semester, too.
Matthew: Oh, well thanks. I hope my students would agree. Good to be here.
Denise: Tell us a little bit about the program on
communication, culture, and technology that seem like a great thing to be able
to take advantage of while at Georgetown.
Matthew: It's an interdisciplinary program in the
grad school. It
attempts to bring together a variety of different educational resources and
backgrounds to give students a more robust tool set for, whether it's going on
to do further academic work in the form of a PHD. I've also run into
graduates of the program working for companies, and agencies, and institutions
here DC. So, as I said, it’s sort of interdisciplinary multipurpose
degree exposing students to all sorts of interesting facets, communication,
tech law, tech policy, technology in society from a variety of different
angles. I work with a lot of great faculty members there.
Denise: Do you write regularly at SCOTUSblog or was your area piece a one off for them?
That was a one off. I write regularly at Project DisCo. I imagine they saw me ranting at length there and said, well, he
obviously has an opinion on the subject, why don't we give him some space when
the case comes out?
Denise: Right. Absolutely. That was a good call on their part.
For anyone who is already not reading Project DisCo,
you need to be doing that. It's a great blog. Alright guys, this
had been really, really fun. We so appreciate your time and your
insights. We appreciate the time of everyone who has joined us today.
We will be back next week for "This Week in Law" and we will
see you then! Everybody take care.