Tag: Liz Velander

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Copyright Fair Use Supreme Court

Recap of the Supreme Court’s Google v. Oracle Opinion

a gavel lying on a desk in front of booksThe following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.

By Liz Velander

The Supreme Court finally reached a determination in the decade-long dispute between two of the biggest technology companies in the world, Google and Oracle. Many have long-awaited the Court’s decision in this case, as it had the potential to provide market certainty in the software industry through its copyrightability analysis. The Court ultimately declines to give that certainty by bypassing the copyrightability issue and choosing to base its holding on a fact-intensive fair use analysis. The Court does this so as to “not answer more than is necessary to resolve the parties’ dispute,” “given the rapidly changing technological, economic, and business-related circumstances.” It emphasizes that its holding is narrow, only applies to declaring code, and does not modify its prior cases on fair use. However, by framing its opinion this way, the Court provides new arguments for infringers to use in a fair use defense in the software sphere and beyond. For this reason, the Court’s decision is not as narrow as it sets out to be. It may lead to lower court decisions that broaden the fair use doctrine and limit the copyright protection given to software.

The Court’s decision broadens fair use by using the doctrine to loosen copyright protection for certain types of code, allowing for a more expansive reading of a “transformative use,” and giving great weight to the public benefit of the use. Before it engages in its fair use analysis, the Court states that “fair use can play an important role in determining the lawful scope of a computer program copyright, such as the copyright at issue here.” Fair use “can distinguish between expressive and functional features of computer code where those features are mixed.” It can also “focus on the legitimate need to provide incentives to produce copyrighted material while examining the extent to which yet further protection creates unrelated or illegitimate harms in other markets or to the development of other products.” The Court describes fair use as a “context-based check that can help to keep a copyright monopoly within its lawful bounds.”

To highlight the ability of fair use to accomplish these goals, the Court begins its analysis with the second statutory factor, “the nature of the copyrighted work.” The Court uses this factor to discuss issues that would have come up if it analyzed the copyrightability of Oracle’s material, such as the applicability of the merger doctrine. It then moves to “the purpose and character of the use,” where it adopts an expansive reading of what constitutes a “transformative use.” The biggest impact of the Court’s fair use analysis, however, will likely come from the great weight it gives to the public benefit of the use under the market effect factor. By using fair use to determine “the lawful scope of a computer program copyright,” the Court’s holding may inadvertently broaden the fair use doctrine.

The Nature of the Copyrighted Work

The Court begins its analysis with describing “the nature of the copyrighted work.” The copyright at issue protects a portion of Oracle’s Java SE platform, called declaring code. Java SE has three essential parts: (1) implementing code, (2) method calls, and (3) declaring code. Implementing code tells the computer how to execute the particular task the programmer asks it to perform. Method calls are commands that help the computer carry out the task by choosing the correct programs written in implementing code. The declaring code is how the method call actually locates and invokes the particular implementing code that it needs to instruct the computer how to carry out a particular task.

For each task, the specific method call entered by the programmer matches up with a specific declaring code inside Java SE. That declaring code provides both the name for each task and organizes them within Java SE’s library. In this sense, the declaring code and the method call form a link, allowing the programmer to draw upon the thousands of prewritten tasks, written in implementing code. Without that declaring code, the method calls entered by the programmer would not call up the implementing code.

In this case, Google did not copy the implementing code from Oracle’s Java SE platform; it copied the declaring code. The Court draws a “critical line” between the uncopied implementing code and the copied declaring code under this factor. On one hand is the innovative implementing code and on the other, user-centered declaring code. The Court explains that the writing of implementing code requires balancing considerations as to how quickly a computer can execute a task or the likely size of a computer memory. The Court says that this balancing is “the very creativity that was needed to develop the Android software for use not in laptops or desktops but in the very different context of smartphones.”

Declaring code, the Court says, embodies a different kind of “creativity” because it is user facing. It must be designed and organized in a way that is intuitive and understandable to developers so they can invoke it. As part of a user interface, declaring code differs from most computer code because “its use is inherently bound together with uncopyrightable ideas (general task division and organization) and new creative expression (Android’s implementing code).” For these reasons, the Court concludes that “the declaring code is, if copyrightable at all, further than are most computer programs (such as the implementing code) from the core of copyright.” Therefore, the Court finds that the second factor, “nature of the copyrighted work,” points in the direction of fair use.

The Purpose and Character of the Use

The Court explains that the inquiry into “the purpose and character” of the use turns in a large measure on whether the copying at issue was “transformative,” that is, whether it “adds something new, with a further purpose or different character.” The Court finds that, even though Google copied Oracle’s declaring code verbatim, its use was “transformative” because it furthered the development of software programs.

The Court explains that what Google did is known as “‘reimplementation,’ defined as the ‘building of a system . . . that repurposes the same words and syntaxes’ of an existing system.” Google “reimplemented” Oracle’s declaring code to allow programmers expert in the Java programming language to use the “task calling” system that they had already learned. By using the same declaring code, programmers using the Android platform can rely on the method calls that they are already familiar with to call up particular tasks. Then Google’s own implementing code carries out those tasks.

The Court concludes that Google’s copying was a transformative use. “Google’s purpose was to create a different task-related system for a different computing environment (smartphones) and to create a platform—the Android platform—that would help achieve and popularize that objective.” Such use is “consistent with the creative ‘progress’ that is the basic constitutional objective of copyright itself.” Therefore, the purpose and character of Google’s copying was transformative to the point at which this factor also weighs in favor of fair use.

The Amount and Substantiality of the Portion Used

 The Court says that the question here is whether the over 11,000 lines of code Google copied should be viewed in isolation or as one part of a considerably greater whole. On one hand, those lines of code amount to virtually all the declaring code needed to call up hundreds of different tasks. On the other hand, if one considers the entire set of software material in the Java SE platform, the quantitative amount copied was small (only 0.4 percent).

The Court decides to view Google’s copying as one part of a greater whole because the amount of copying was “tethered to a valid, and transformative, purpose.” It explains that Google did not copy the lines because of their creativity but because programmers had already learned to work with the Java SE platform, and it would have been difficult to attract programmers to build its Android smartphone system without them. It describes the portion of the declaring code used at “the key that [Google] needed to unlock the programmers’ creative energies. And it needed those energies to create and improve its own innovative Android systems.” For these reasons, the Court holds that this factor weighs in favor of fair use.

Market Effects

The fourth statutory factor focuses upon the “effect” of the copying in the “market for or value of the copyrighted work.” The Court explains that this requires a court to consider the copyright owner’s potential loss of revenue, the source of the loss, and the public benefits the copying will likely produce. As to the likely amount of loss, the Court states that Oracle was ill-positioned to enter the smartphone market, so the jury could have found that Android did not harm the actual or potential markets for Java SE. As to the source of the loss, the Court finds Android’s profitability has much to do with third parties’ (programmers’) investment in the Java programs and less to do with Oracle’s investment in creating the Java SE platform. It says that the Copyright Act does not protect third parties’ investment in learning how to operate a created work.

Finally, given programmers’ investments in learning the Java SE platform, to allow enforcement of Oracle’s copyright here would risk harm to the public by operating as a lock on innovation. “The result could well prove highly profitable to Oracle (or other firms holding a copyright in computer interfaces). But those profits could well flow from creative improvements, new applications, and new uses developed by users who have learned to work with that interface. To that extent, the lock would interfere with, not further, copyright’s basic creativity objectives.” The Court concludes that the uncertain nature of Oracle’s “ability to compete in Android’s market place, the sources of its lost revenue, and the risk of creativity-related harms to the public, when taken together, convince that this fourth factor—market effects—also weighs in favor of fair use.”

The Court ends its opinion by noting that “the fact that computer programs are primarily functional makes it difficult to apply traditional copyright concepts in that technical world.” While that is certainly true, the Court made its work more difficult by basing its opinion in fair use instead of analyzing the copyrightability of Oracle’s code in the first place.

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Copyright Damages

Ninth Circuit Narrows Copyright Owner’s Ability to Receive Multiple Statutory Damages Awards

The following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.

a gavel lying on a desk in front of booksBy Liz Velander

A recent Ninth Circuit ruling limits the amount a copyright owner can be awarded in statutory damages. In Desire v. Manna, the court found that the Copyright Act only lets owners collect a single award per infringing work in cases with joint and several liability. It held that the Act does not authorize multiple statutory damages awards where one infringer is jointly and severally liable with all other infringers, but the other infringers are not completely jointly and severally liable with one another. Its decision reduced the district court’s award of statutory damages from $480,000 to $150,000.

The facts of the case are as follows: Desire, a fabric supplier, purchased a floral textile design and registered it with the U.S. Copyright Office in June 2015. A few months later, Desire sold a few yards of fabric bearing the design to Top Fashion, which it used to secure a garment order from a clothing retailer. When Desire and Top Fashion later disagreed on the price for more fabric, Top Fashion took the design to rival supplier Manna. Manna then passed the design along to an independent designer, who in turn gave it to a textile manufacturer with instructions to modify it. Manna registered a copyright in the resulting altered design with the U.S. Copyright Office in December 2015.

Manna began selling fabric bearing the altered design to various manufacturers, which used it to create garments that they sold to various clothing retailers. Desire sued Manna, the manufacturers, and the retailers for copyright infringement. As alleged, Manna infringed Desire’s copyright by selling fabric bearing the altered design to the manufacturer defendants. The manufacturer defendants then each allegedly committed a separate ac of infringement in their sales to the individual retail defendants, who in turn allegedly committed acts of infringement in their sales to consumers. Desire did not allege that the manufacturer defendants infringed in concert, nor that the retail defendants acted in concert to infringe Desire’s copyright.

The district court granted partial summary judgment for Desire. It concluded that Desire owned a valid copyright entitled to broad protection and that there were no triable issues of fact as to Desire’s ownership of the initial design or Manna’s and others’ access to it. But there remained issues of triable fact as to whether the altered design was substantially similar to the original and whether defendants willfully infringed. The district court held that if Desire prevailed on these issues, the supplier would be entitled to seven statutory damages awards with joint and several liability imposed amongst Manna, the manufacturer defendants, and the retail defendants.

A jury returned a verdict for the plaintiff, finding that Manna, Top Fashion, and one other defendant, manufacturer ABN, willfully infringed the initial design, and that two other defendants, manufacturer Pride & Joys and retailer 618 Main, innocently infringed. Desire elected to claim statutory damages in lieu of actual damages, as permitted under 17 U.S.C. § 504(c)(1). Under § 504(c), a statutory damage award is limited to $30,000 for innocent infringement and $150,000 for willful infringement.

The jury awarded Desire statutory damages totaling $480,000 after two defendants settled. The district court divided liability under its pre-trial ruling as follows:

    1. $150,000 against Manna individually, for copying the design and distributing the fabric bearing the altered design to the manufacturer defendants.

 

    1. $150,000 against Manna and Top Fashion jointly and severally, for Top Fashion’s sale of infringing garments.

 

    1. $150,000 against Manna and ABN jointly and severally, for ABN’s sale of infringing garments.

 

    1. $20,000 against Manna and Pride & Joys jointly and severally, for ABN’s sale of infringing garments to 618 Main.

 

  1. $10,000 against 618 Main, Pride & Joys, and Manna jointly and severally, for 618 Main’s display and sale of infringing garments to consumers.

The parties appealed. The Ninth Circuit affirmed in part, reversed in part, and vacated the judgment awarding Desire multiple awards of statutory damages. The court began by affirming the district court’s determinations at summary judgment that Desire owned a valid copyright and that the original design was entitled to broad copyright protection. But the Ninth Circuit concluded that the district court erred by permitting multiple statutory damages awards.

The Ninth Circuit looked at the text of § 504(c)(1) to determine whether it authorizes multiple statutory damages awards where one infringer is jointly and severally liable with all other infringers, but the other infringers are not completely jointly and severally liable with one another. § 504(c)(1) permits an owner to recover “an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally.”

The Court concluded that the plain meaning of § 504(c)(1) precludes multiple awards of statutory damages when there is only one work infringed by a group of defendants that have partial joint and several liability among themselves through a prime tortfeasor that is jointly and severally liable with every other defendant. It reasoned that “an award” clearly means one award, and the use of the word “any” means that, if all infringers in the action were jointly and severally liable with at least one common infringer, then all defendants should be treated as one unit.

In this case, Manna was alleged to be the tortfeasor lynchpin. Because “‘an award’ clearly means one award,” and Manna was jointly and severally liable with every other defendant, Desire was entitled to only one statutory damage award per work. The court concluded that its interpretation was most consistent with the Copyright Act’s goal of providing adequate compensation for infringement without giving copyright owners a windfall. However, it acknowledged that its ruling could also run afoul of the purposes of the Act if a copyright owner decided to sue separate infringers in separate actions.

The court wrote in a footnote that “if Manna were not involved at all and Pride & Joys, ABN, and Top Fashion had independently infringed, there could be three awards, even though Pride & Joys, ABN, and Top Fashion were each jointly and severally liable with others in their separate distribution chains. . . . This view treats groups of jointly and severally liable defendants that are not jointly and severally liable with other groups identically to individually liable infringers.”

In a lengthy dissent, Judge Wardlaw disagreed with the majority’s interpretation of § 504(c)(1). She explained that the majority’s decision means “a copyright plaintiff can seek only one award of statutory damages when it joins in a single lawsuit members of independently infringing distribution chains that trace back to a common infringing source. But if the plaintiff brings separate lawsuits against each infringer, or it simply cuts the common source defendant at the top of the chain out of the case, a separate statutory damages award is available against each defendant.”

The majority ultimately decided that such risk was outweighed by the potential for disproportionate awards and the fact that multiple lawsuits could still be filed (and consolidated), regardless of the Court’s ruling on this point. “But even if we are wrong in our appraisal of the multiple-lawsuit risk, as our approach is the only one consistent with the text of Section 504(c)(1), it is not our job to reweigh the merits of several possible approaches.” Given the stark differences in the majority and the dissent regarding the language of § 504(c)(1), this decision could form the basis for further splits and result in an en banc or certiorari petition.

Categories
Copyright Legislation

Senate IP Subcommittee Considers the Role of Private Agreements and Existing Technology in Curbing Online Piracy

The following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.

U.S. Capitol buildingBy Liz Velander

In mid-December, the Senate Intellectual Property Subcommittee, led by its Chairman, Senator Thom Tillis (R-NC), held a hearing entitled “The Role of Private Agreements and Existing Technology in Curbing Online Piracy.” The hearing came ahead of Sen. Tillis’s release of his first discussion draft of legislation to reform the Digital Millennium Copyright Act (DMCA). In his opening remarks, Sen. Tillis stated that reforming the DMCA is one of his top priorities in the 117th Congress, but it may take his entire second term to get a DMCA reform bill across the finish line. The purpose of the hearing was to identify voluntary steps that copyright owners and tech companies can take now to curb online infringement.

The hearing consisted of two panels. Panel I included: Ruth Vitale, CEO, CreativeFuture; Probir Mehta, Head of Global Intellectual Property and Trade Policy, Facebook, Inc.; Mitch Glazier, Chairman and CEO, Recording Industry Association of America (RIAA); and Joshua Lamel, Executive Director, Re:Create. Panel II included: Katherine Oyama, Global Director of Business Public Policy, YouTube; Keith Kupferschmid, CEO, Copyright Alliance; Noah Becker, President and Co-Founder, AdRev; and Dean Marks, Executive Director and Legal Counsel, Coalition for Online Accountability.

Sen. Tillis began the hearing by voicing his opinion on the matter, informed by a year-long series of hearings and months of feedback from creators, user groups, and technology companies. “There is absolutely more big tech can and should do to stop online piracy,” Sen. Tillis said. “Unfortunately, it seems that some in big tech aren’t serious about stopping online piracy, and I don’t know why that is. Maybe it isn’t a priority—or maybe some companies are actually profiting off the piracy on their site. It is clear as day to me that many multi-national, multi-billion-dollar companies simply aren’t using all the tools they have to stop theft from small creators. And that’s wrong.”

Mitch Glazier, Chairman and CEO of RIAA, stated that the problem is that big tech companies aren’t properly incentivized to take steps in combatting online piracy. Keith Kupferschmid, CEO of the Copyright Alliance, explained that Section 512 of the DMCA has been so misinterpreted by the courts that most service providers know that they have little risk of liability and need only do the absolute minimum required under the DMCA to avoid liability.

Mr. Glazier said that one of the most important things Congress can do is to provide the right incentives to encourage voluntary private agreements. He explained that there are two types of private agreements. First, there are individual agreements entered into by copyright owners and technology providers. These can be nimble and evolve with technology. Second, there are standards developed in the marketplace that eventually achieve broad enough consensus and use that they become required. In Mr. Glazier’s view, that is what the DMCA contemplated—a multi-stakeholder standard technical measure (STM) process where there was enough consensus and use that it would be unfair for outliers to compete without using them. Mr. Glazier said that a voluntary system only works if there exist the right incentives, which the DMCA does not currently provide.

The panelists disagreed as to whether Congress needs to reform the DMCA in order to incentivize voluntary agreements. The panelists representing big tech companies asserted that the process is working as the DMCA intended, pointing to the policies and procedures of their platforms and existing content protection technology. Probir Mehta, Head of Global IP and Trade Policy at Facebook, touted Facebook’s content management tool, Rights Manager. Katherine Oyama, Global Director of Business Public Policy at YouTube, pointed to Youtube’s Copyright Management Tools, which include a webform, Content ID, and Copyright Match. These panelists emphasized the significant amount of work their companies undertook to create these technologies, which they view as going above and beyond the requirements of the DMCA.

Members of the IP Subcommittee were very interested to hear how these tools work in practice. Ruth Vitale, CEO of CreativeFuture, testified that most individual creators are not given access to YouTube’s Content ID, nor are they given an explanation for why they are denied. Ms. Oyama stated that while Content ID has eligibility requirements, YouTube built an entirely new tool for smaller creators, Copyright Match, which runs on Content ID itself. She claimed that Content ID is such a powerful tool that, if used improperly, will erroneously take down content that is noninfringing.

Ranking Member Senator Chris Coons (D-DE) wanted to know what the panelists viewed as the path forward. Mr. Kupferschmid said that while voluntary agreements have a role, they cannot address everything. He emphasized that legislative action is appropriate in this circumstance because service providers are not being cooperative. Noah Becker, President and Co-Founder of AdRev, a digital rights management and media technology company, agreed with Mr. Kupferschmid. He explained his business’ revenue-sharing proposition is a better fit for copyright owners that do not want to use YouTube’s monetization tools. In addition to legislation, he explained that there should be some sort of support for the concept of a list of approved vendors, like AdRev, to be able to access copyright APIs on massive platforms. He urged that this would reduce the large cost and technology burden of accessing APIs, making takedowns more affordable for creators.

Sen. Tillis closed the hearing by stating that the parties need to engage with one another in order to avoid a potential legislative overreach. He said that the hearing showed that tech companies must do more to combat online piracy. Sen. Tillis stressed that they have the tools and resources but must find ways to get greater engagement and create voluntary paths to prevent Congress from paving less voluntary ones.

Categories
Copyright

Professor Shyam Balganesh on Understanding Privative Copyright Claims

The following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.

the word "copyright" typed on a typewriterBy Liz Velander

Some argue that modern copyright law is decidedly market-oriented, almost entirely justified in utilitarian terms. By promising authors a set of marketable exclusive rights in their works, copyright is believed to incentivize the production of works of authorship. In his new paper, Privative Copyright, Professor Shyamkrishna Balganesh of the University of Pennsylvania Law School explains that this view produces a clear mismatch when using copyright law to remedy noneconomic harms. This paper was work-shopped at CPIP’s Philosophical Approaches to Intellectual Property research colloquium in 2019 and subsequently published in the Vanderbilt Law Review.

“Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of an author’s personal identity. They are driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, seeking to redress a particular form of copyright harm that Prof. Balganesh refers to as “disseminative harm.” An example of a privative copyright claim is found in the recent Ninth Circuit case, Monge v. Maya Magazines.

The plaintiffs in the case were a well-known pop music star and her manager, who got married in secret. To maintain the secrecy of the wedding, the couple limited the number of witnesses and took a very limited number of photographs that were intended for the couple’s private use. Through unscrupulous means, the photographs fell into the hands of an individual who sold them to the defendant, a gossip magazine that published them. The district court found for the defendant, concluding that the publisher’s use of the photographs constituted fair use. On appeal, the Ninth Circuit reversed in a rare denial of fair use for a privative claim.

To gain a full understanding of the Ninth Circuit’s opinion in this case, the nature of privative copyright claims in general, and why courts find them troublesome, Prof. Balganesh believes that one must trace the historic evolution of privative copyright claims in Anglo-American copyright law. Modern copyright scholarship is deeply critical of privative copyright claims, believing that the dignitary interests and harms that underlie such claims are best dealt with through privacy law. Prof. Balganesh’s article challenges this dominant view, arguing that privative copyright claims form a legitimate part of the copyright landscape. He demonstrates that protecting an author’s dignitary interest and the underlying commitment to authorial autonomy that motivates these claims have remained important normative goals of copyright law despite the multiple doctrinal variations and updates that the law has gone through over the last three centuries.

Prof. Balganesh explains that in its most basic form, copyright law functions by rendering forms of expressive harm privately actionable. He identifies three types of expressive harm protected by copyright law: (1) appropriative harm, (2) in situ reputational harm, and (3) disseminative harm. Appropriative harm is the primary form of expressive harm that copyright ordinarily centers around, typically resulting from instances of copying. In situ reputational harm originates from the U.S. copyright system’s limited recognition of moral rights protection in the form of the rights of integrity and attribution. A common feature of both rights is they derive from the need to protect an author’s reputation as manifested in the work. The integrity right focuses on protecting against a mutilation or distortion of the work in the recognition that this would impact authorial reputation directly. The attribution right focuses on ensuring that a work is not wrongly attributed to an author, again with the recognition that attributions contrary to the author’s actions and intent to do harm to authorial reputation.

The third category of copyright harm forms the basis of privative copyright claims. It emerges from the mere dissemination or use of a protected work without the creator’s authorization, regardless of the objective utility or value of such actions. The dissemination is harmful not for its economic effects, but instead because of its interference with the author’s unique dignitary interests. In various situations, such as in the Monge case, individuals produce original expression that they intend to keep private or limit to very particular recipients. When fixed in a tangible medium of expression, such as a photograph, the communications become eligible for copyright protection. When such expression is made public, it amounts to a direct infraction of its creator’s personal autonomy.

Prof. Balganesh sees this infraction as two-layered. First, it repudiates the creator’s choice to control whether, how, and when the work is to be shared. Second, it forces the creator to admit to being the author of the work, since elements of the creator’s persona and identity are often apparent on the face of the work. The publication thus forces authorship on the creator, with all its social, legal, and moral implications. Central to disseminative harm is the recognition that the work is personal to its author in a rather distinctive way.

Modern copyright scholarship believes that disseminative harm is best dealt with through privacy law, not copyright law. Prof. Balganesh argues that this approach misunderstands the nature of privative claims in copyright law and the centrality of authorial autonomy that underlies them. He sees it as being drive by three primary concerns: (1) copyright utilitarianism, (2) free speech concerns, and (3) perception that privacy torts are better suited to address dignitary harms.

Prof. Balganesh addresses each of these concerns in turn. First, while copyright law today is often justified exclusively in utilitarian terms, this was not always the case. Privative copyright claims actually predate the utilitarian turn in copyright law. Prof. Balganesh argues that the overt utilitarian turn in copyright law is far from a principled reason to critique the legitimacy of privative copyright claims. To the contrary, normative pluralism has remained a hallmark of the copyright landscape, much like it has for a variety of legal institutions. The logic underlying the functioning of privative copyright claims began to take shape shortly after the passage of the Statute of Anne in 1710. In the three centuries since, they have mutated and adapted to society’s changing concepts of privacy, personal autonomy, and copyright’s coverage of new subject matter.

Second, Prof. Balganesh dismisses the concern that copyright protection for dignitary or privacy interests risks converting authorship into censorship. He explains that copyright has various devices protective of free speech that can come into play in privative claims, the most notable being fair use. Courts use fair use as a stand-in for free speech concerns and balance the fair use factors against the plaintiff’s claims. Given the robustness of these mechanisms, Prof. Balganesh sees no credible free speech concerns with privative copyright claims.

Third, Prof. Balganesh argues that privacy torts are not better suited to protect dignitary interests because the dignitary interests underlying privative copyright claims entail more than just a concern with privacy. They implicate considerations of personality and personal autonomy, in the way of authorial autonomy. Privacy torts, most notably the tort of public disclosure of private facts, focus on representational autonomy and an individual’s ability to control public representations of her persona. They view the denial of such autonomy as emanating from the subject’s choice to keep certain facets of her persona private, and then scrutinize the existence and parameters of that choice rather carefully. The nonconsensual public disclosure of such facts is seen to cast the subject into the public and in turn produce potentially emotional and reputational harm. Privative copyright claims, on the other hand, involve a combination of representational and authorial concerns that an incapable of disaggregation.

With this understanding of privative copyright claims, the Ninth Circuit’s opinion in Monge v. Maya Magazines can be seen in a new light. Recall that the plaintiffs were a celebrity couple who had taken photographs of their secret wedding and the defendant magazine somehow obtained copies of those photographs and published them. The Ninth Circuit’s finding for the plaintiffs demonstrates the difficulty courts have with privative copyright claims and why it is tempting to place them in another legal realm.

The court’s decision was predicated on an analysis of the four fair use factors. Since the fair use doctrine was codified in 1976, courts have grown to place significant reliance on the fourth factor—the potential market harm for the copyrighted work. However, examining the existence (or absence) of market harm for privative copyright claims is an obvious mismatch considering the plaintiff’s work was intended to be kept private. In Monge, the Ninth Circuit refused to acknowledge this mismatch, instead presuming an actual market for the plaintiffs’ photographs because the couple was “in the business of selling images of themselves and had done so in the past.”

The Ninth Circuit’s reasoning is puzzling because, by its own admission, the plaintiffs’ primary (if not exclusive) motivation in retaining the photographs was for their own private use. The photographs were not for sale, they were intended to remain secret. Prof. Balganesh acknowledges that such secrecy has a potential price in that the scarcity renders the information more valuable. But he finds it to be a stretch to presume an actual market for the work.

Prof. Balganesh recommends an alternative approach for courts to use when applying the fair use defense to privative claims. He argues that courts should consider the “dignitary” nature of the work under the second factor, a combination of its being (1) unpublished, (2) private, and (3) embodying expression directly implicating the author’s persona and identity. While this classification should not be dispositive in the overall fair use analysis, it should weigh heavily and influence the interpretation and application of the other factors. The fourth factor, relating to market effect, should be understood as receding in importance once the work is classified as “dignitary” in nature.

Prof. Balganesh’s article makes a strong case for courts to adopt this approach through tracing the historic evolution of privative copyright claims in Anglo-American copyright law. He teases apart the theories behind copyright law and develops a theoretical basis for understanding the workings of privative copyright claims. Privative Copyright is an essential read for a deeper understanding of copyright law.

Categories
Copyright

House Judiciary Committee Hearing Reacts to Copyright Office Report on Efficacy of Section 512

The following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.

U.S. Capitol buildingBy Liz Velander

In late September, the House Judiciary Committee held a hearing entitled Copyright and the Internet in 2020: Reactions to the Copyright Office’s Report on the Efficacy of 17 U.S.C. 512 After Two Decades. As Chairman Jerrold Nadler (D-NY) explained, the hearing sought “perspectives on whether Section 512 is working efficiently and effectively for this new internet landscape.” The hearing was guided by the U.S. Copyright Office’s Section 512 Report, released in May, which concluded that the operation of the Section 512 safe harbor system disfavors copyright owners—contrary to “Congress’ original intended balance.”

The witnesses included: Jeffrey Sedlik, President & CEO, PLUS Coalition; Meredith Rose, Senior Policy Counsel, Public Knowledge; Morgan Grace Kibby, Singer and Songwriter; Jonathan Band, Counsel, Library Copyright Alliance; Matthew Schruers, President, Computer & Communications Industry Association; and Terrica Carrington, Vice President, Legal Policy and Copyright Counsel, Copyright Alliance.

Enacted in 1998 as part of the Digital Millennium Copyright Act (DMCA), Section 512 establishes a system for copyright owners and online service providers (OSPs) to address online infringement, including a “safe harbor” that limits liability for compliant OSPs. To qualify for safe harbor protection, an OSP must fulfill certain requirements, generally consisting of implementing measures to expeditiously address online copyright infringement. Congress sought to create a balance between two goals in enacting Section 512: (1) providing important legal certainty for OSPs so that the internet ecosystem can flourish without the threat of the potentially devastating economic impact of liability for copyright infringement as a result of user activity, and (2) protecting the legitimate interests of authors and other rights owners against the threat of rampant, low-barrier online infringement.

The Copyright Office’s Report determined that the balance Congress originally sought is now “askew.” It found that “despite the advances in legitimate content options and delivery systems, and despite the millions of takedown notices submitted on a daily basis, the scale of online copyright infringement and the lack of effectiveness of Section 512 notices to address that situation, remain significant problems.” The Report did not recommend any wholesale changes to Section 512, but instead identified certain areas that Congress could fine-tune in order to better balance the rights and responsibilities of OSPs and copyright owners. These include eligibility qualifications for the service provider safe harbors, repeat infringer policies, knowledge requirement standards, specificity within takedown notices, non-standard notice requirements, subpoenas, and injunctions.

At the hearing, the six witnesses reacted to the Copyright Office’s Report in dramatically different fashions. Representatives of OSPs disagreed with the Report’s conclusions, testifying that Section 512 is working as Congress intended. Mr. Band from the Library Copyright Alliance referred to Section 512 as a “shining example of enlightened legislation for the public good” that is responsible for the “golden age of content creation and distribution.” Mr. Schruers from the Computer & Communications Industry Association criticized the Report for inadequately reflecting the interests of users and “conspicuously” overlooking the problem of Section 512 misuse. Ms. Rose from Public Knowledge stated “the Office’s analysis performed a familiar sleight-of-hand by presenting user interests as coextensive with those of platforms, effectively erasing free speech concerns from its analysis.”

Representatives of content creators painted an entirely different picture of Section 512’s efficacy. They applauded the Copyright Office for calling attention to areas of imbalance related to Section 512 and to how overly expansive or narrow interpretations of the statute have aided in skewing the balance Congress intended. Mr. Sedlik, a photographer with over 35 years of professional experience and President & CEO of the PLUS Coalition, described how service providers take advantage of his and others’ copyrighted works while hiding behind Section 512’s safe harbors. He explained that, like many other copyright owners, he must spend an exorbitant amount of time searching for infringing materials online and sending takedown notices instead of creating new works.

Ms. Kibby, a singer and songwriter, testified that Section 512 is “undermining creativity, and more alarmingly, quietly undercutting our next generation of artists. It is jeopardizing livelihoods for working class musicians, obliterating healthy monetary velocity in our creative community. It is rewarding unscrupulous services that deal in the unauthorized trade and use of our works. It is fundamentally sabotaging the legitimate online marketplace that we all rely on and that Congress envisioned.” Responding to the argument that notice-and-takedown results in censorship of user-generated content, Ms. Kibby said that Section 512’s “stripping creators of their fundamental rights, their livelihood, and ultimately their creative contributions is the real censorship.”

Ms. Carrington from the Copyright Alliance identified three main problems with Section 512: (1) the ineffective notice-and-takedown process, (2) the effective elimination of the red flag knowledge standard, and (3) ineffective repeat infringer policies. She recommended adjusting the statute to clarify the difference between actual and red flag knowledge, enacting the Copyright Alternative in Small-Claims Enforcement (CASE) Act, and transparently developing effective standard technical measures (STMs).

Members of the Committee recognized the need for reform. Chairman Nadler remarked that the sheer volume of takedown notices being sent does not seem like the hallmark of a system functioning as intended. Some Members first spoke about the importance of copyright law before questioning the panelists. For example, Representative Hank Johnson (D-GA) said “it’s crucial that these creators are able to rely on copyright law protections to make their living. This is even more true in an age where the click of a button can plagiarize a lifetime of work.”

It was heartening to hear the Representatives’ positive response to the concerns of small, individual creators whose livelihoods depend on the commercial viability of their works. It was clear that the Committee is seriously considering the recommendations in the Copyright Office Report and looking for a way to rebalance Section 512 so that it respects what Congress originally intended—a system that respects the rights of authors and artists who face widespread infringement of their rights in the online environment.

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Copyright

Senate IP Subcommittee Hearing Addresses Section 1201 Reform

The following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.

U.S. Capitol buildingBy Liz Velander

Last week, the Senate Intellectual Property Subcommittee, led by its Chairman, Senator Thom Tillis (R-NC), held a hearing entitled “Are Reforms to Section 1201 Needed and Warranted?” The hearing explored Section 1201’s operation, as well as potential reforms to improve the effectiveness of Section 1201 in the administration of the triennial rulemaking proceeding that establishes temporary exemptions. Chairman Tillis was particularly interested in hearing proposals to further streamline the rulemaking process and to amend the statute so that exemptions permit third-party assistance.

The hearing consisted of two panels. First, the U.S. Copyright Office, who administers Section 1201 rulemaking. Second, industry and academic experts who shed light on how Section 1201 has been working for copyright owners and users, and the practical implications of potential reforms. Regan Smith, General Counsel and Associate Register of Copyrights, U.S. Copyright Office, was the sole panelist on Panel I. Panel II included: Vanessa Bailey, Global Director, Intellectual Property Policy, Intel Corporation; Professor Blake Reid, Director, Samuelson-Glushko Technology Law & Policy Clinic, University of Colorado Law School; Matthew Williams, Partner, Mitchell Silberberg & Knupp LLP; Seth Greenstein, Partner, Constantine Cannon LLP; Morgan Reed, President, ACT | The App Association; and Aaron Lowe, Senior Vice President, Regulatory and Government Affairs, Auto Care Association.

Section 1201 of the Digital Millennium Copyright Act (DMCA) protects “technological measures,” also known as “technological protection measures” (TPMs), employed by copyright owners to protect their works from unauthorized access or use. Section 1201 gives copyright owners a cause of action when someone circumvents TPMs that have been employed to prevent unauthorized access or use of their copyrighted works. Common examples of TPMs include password systems that prevent nonsubscribers from accessing streaming services, code that prevents DVDs from playing on unauthorized devices, and code that prevents a purchaser from copying the text of an e-book or sending the file to others.

Congress enacted Section 1201 to foster a lawful online market for copyrighted works while providing several statutory exemptions to avoid impeding lawful uses. For additional flexibility, the law authorizes the Librarian of Congress to adopt temporary exemptions following a rulemaking proceeding administered by the Copyright Office every three years. During the triennial rulemaking, the Copyright Office solicits exemption petitions from the public and develops a comprehensive administrative record using information submitted by interested parties. Based on the evidence submitted, the Register of Copyrights provides a written recommendation to the Librarian of Congress as to which exemptions are warranted, along with proposed regulatory text. Upon the Librarian’s approval, the exemptions are published in the Federal Register and remain in effect for three years.

In the seventh triennial rulemaking (2017-2018), the Copyright Office instituted a new “streamlined” process for renewing existing exemptions. In this streamlined process, proponents of an existing exemption can petition to have the exemption renewed by certifying that they are not aware of material changes in fact, law, or other circumstances that would justify reevaluating the basis for the exemption. If the Copyright Office does not receive an objection outlining relevant new circumstances, the exemption will be renewed without going through the traditional three-step commenting process. These changes have greatly improved the efficiency of the rulemaking process.

On the first panel, Ms. Smith, representing the U.S. Copyright Office, explained the crux of the dispute about Section 1201 reform. On the one hand, “some Section 1201 stakeholders credit the subsequent explosion of legitimate digital dissemination models to the protection established by section 1201 in 1998.” On the other hand, “stakeholders express that the growing ubiquity of software-enabled products in American life—automobiles, refrigerators, medical devices, and so on—raises concerns that Section 1201 may be operating with an unintended reach that the permanent exemptions and the triennial rulemaking only partially address.” In 2017, the Copyright Office “completed a comprehensive study in the operation of the law, taking into account stakeholder perspectives throughout the copyright ecosystem.” It concluded that “while the overall framework of Section 1201 appears to be functioning as intended, the system would benefit from certain updates to the rulemaking procedures, as well as targeted legislative reforms.”

Ms. Smith listed the recommended legislative reforms in order of priority. First, for Congress to provide discretion in the rulemaking to adopt exemptions that permit third-party assistance at the direction of the intended user. Second, for reconsideration of several changes to the permanent exemptions for security testing and encryption research, “including expanding the types of permitted activities, easing the requirements to seek authorization from the owner of the relevant system or technology, and eliminating or clarifying the multifactor eligibility tests for certain statutory exemptions.” Third, for Congress to adopt new permanent exemptions, such as: “an exemption to enable blind, visually impaired, or print disabled person to utilize assistive technologies; an exemption for unlocking used mobile devices; and an exemption to allow diagnosis, repair, or maintenance of a computer program, including to circumvent obsolete access controls.” Finally, Ms. Smith recommended legislation to provide for presumptive renewal of exemptions adopted in the previous rulemaking cycle.

On the second panel, stakeholders argued for and against legislative reform. Ms. Bailey, representing Intel Corporation, testified that “the Librarian of Congress has struck the right balance between ease of use and content protection under the existing regulatory framework.” She described Section 1201 as “the bedrock on which the digital content ecosystem is built.” She urged against legislative revision, arguing that “the reliable protection provided by Section 1201 is essential to the maintenance of industry-standard TPMs and the digital content ecosystem.”

The next panelist, Prof. Reid, strongly disagreed with Ms. Bailey. He represented “people who are blind, visually impaired, or print disabled, educational disability services professionals, and security researchers.” Prof. Reid argued for expansive changes to the triennial rulemaking process, asserting that “the triennial review regularly imposes an unnecessary and unfair burden on decent, hard-working people who play by the rules and who merely seek to go about their livelihoods and serve their communities without fear of breaking a law that could subject them to ruinous liability in federal court litigation or even criminal charges.” Mr. Greenstein echoed many of Prof. Reid’s concerns about Section 1201’s overreach. He proposed a number of legislative reforms to the Subcommittee, such as allowing third parties to obtain the means to circumvent access in order to repair consumer products at the direction of the intended user. “Congress intended Section 1201 is protect copyrights, not business models,” stated Mr. Greenstein.

Senator Chris Coons (D-DE) sought feedback from other panelists about the suggestion that Congress provide the Librarian flexibility to allow consumers to seek third-party help. Mr. Reed, representing the App Association, asserted that we already have a “robust ability” to conduct authorized repair. Ms. Bailey agreed, stating “the Copyright Office has already taken steps to make the exemptions more usable.” She pointed out that “unlike anti-circumvention exemptions, which can be modified or abandoned if they prove less useful than expected, should an anti-trafficking exemption be improvidently granted, the effects on the marketplace would be permanent because the tools can’t distinguish between permissible and impermissible use.”

Senator Richard Blumenthal (D-CT) was specifically concerned about voting machine integrity, asking the panel whether they would support a permanent cybersecurity and voting machine exemption. Prof. Reid stated that such an exemption is “critical to the cybersecurity of this country and the future of our democracy.” Mr. Reed and Ms. Bailey both reiterated their position that a legislative change was unnecessary because the Copyright Office already had the flexibility to address the issue.

The hearing was cut short by a live vote, and Chairman Tillis concluded the hearing by thanking each panelist and stating that they may submit further comments to the record.

Categories
Copyright

CPIP’s Sandra Aistars Joins Artomatic Panel on Copyright Protection for Visual Artists

The following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.

the word "copyright" written on a typewriterBy Liz Velander

As part of its ongoing series about the copyright licensing process, Artomatic hosted a virtual panel for visual artists last week to discuss how to protect their creative works. The panel focused on explaining key concepts of copyright law pertinent to visual artists and sharing resources that they can use to learn more about the basics of copyright protection. It also touched on common pitfalls among visual artists when it comes to protecting their creative works, including those that befall joint authors, and common misconceptions about fair use.

The panelists included CPIP Director of Copyright Research and Policy Sandra Aistars and Jaylen Johnson, Attorney Advisor at the U.S. Copyright Office, and it was moderated by Kim Tignor, Executive Director at the Institute for Intellectual Property & Social Justice.

Prof. Aistars explained that there are three important things visual artists should know about copyright law. First, the requirements for copyright protection. Copyright law protects original works of authorship that are fixed in a tangible medium. An “original” work means that it was created independently and not copied from somebody else. Prof. Aistars noted that “this doesn’t mean the work has to be absolutely novel—if you have two artists who independently create something that is substantially similar, without copying from each other, both of those works are protected by copyright.”

Prof. Aistars also clarified the distinction between ideas and expression, noting that copyright law only protects the expression of ideas, not the ideas themselves. Visual artists cannot “copyright the idea of painting a field of sunflowers,” but they can protect “the precise rendering of that work, the nuances of brushstroke, the layering of the paint on the canvas” because those are all elements of expression. A work must also be fixed in a tangible medium of expression, Prof. Aistars continued, which could include paper, canvas, or a digital medium. If a work meets all these elements, it is protected by copyright and the visual artist obtains a variety of exclusive rights that allow her to make a living from her creative pursuits.

The second important thing to know about copyright law, according to Prof. Aistars, is that copyright protection is automatic. A visual artist does not need to register a work with the Copyright Office to receive protection. Instead, copyright protection exists from the moment the artist sets a work down in a tangible medium of expression. However, Prof. Aistars noted that it is a good practice for visual artists to register their works with the Copyright Office. Registration gives copyright owners additional benefits and makes it easier for people to find the copyright owner to license her works.

Finally, Prof. Aistars explained that it is important to understand that a visual artist retains the copyright in a work when she sells a copy of it, even if it is the only copy she has ever created. Selling a copy does not transfer the underlying rights the artist enjoys as a copyright owner. Prof. Aistars pointed out that “you’re not transferring the rights to make copies of the work, print them up on t-shirts and postcards, and sell them on the internet to whoever buys the copy of your work—unless you enter into a separate agreement with that person.”

Ms. Johnson noted that the Copyright Office is an excellent resource for visual artists who want to learn more about copyright protection. As the primary agency in charge of administering copyright law, the Office advises Congress, facilitates rulemaking, assists in litigation efforts, serves on international delegations, and administers the nation’s registration and recordation system. In celebration of its 150th anniversary, the Office recently launched a new initiative called Engage Your Creativity that pulls together a variety of resources for creators. Ms. Johnson stated that the initiative is a great way to become familiar with the many resources available to the public through the Office’s website.

The panelists also identified common pitfalls visual artists encounter during the creative process. Many occur because artists are not sure what qualifies as fair use of a copyrighted work. Prof. Aistars explained that “fair use exists so artists can build and comment on existing works in their own work, and in so doing add to our cultural dialogue and engage with one another in artistic conversations.” She advised artists to treat fair use as the Golden Rule: “Think about the way you would feel if someone uses your work the way you’re proposing to use someone else’s work, and then be very honest.”

The courts have four factors that they evaluate together to determine whether a use is fair or not. Codified in Section 107 of the Copyright Act, the four factors are: (1) the purpose and character of the use, including whether such use is commercial or educational; (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 (4) the effect of the use upon the potential market for or value of the copyrighted work. However, since these factors are neither dispositive nor exhaustive, courts typically explore fair use claims in an open-ended, case-by-case manner. This is an area where artists run into trouble, Prof. Aistars explained, because “there are no bright lines. There’s not a set rule that you can use this much, but no more. Artists are trying to make the best decisions they can, and sometimes that isn’t the decision the court would’ve made.”

The panelists noted that another common pitfall arises with jointly created works. Under the Copyright Act, the authors of a joint work are co-owners of the copyright in a work. Each author can do whatever she wants with the work, as long as she accounts to the other. This is a problem when a collaborative relationship goes south, or if one author wants to use the work in a way that the other author disagrees with. Prof. Aistars advised visual artists to put an agreement in writing prior to starting a collaborative relationship.

Copyright law may seem like daunting subject to visual artists, but it can be easily understood with the right information. In closing, Ms. Johnson emphasized the importance of making resources accessible and engaging in public outreach because “copyright is for everybody.”