Comprehensive Copyright Review – The First Steps of a Very Long Journey

House Judiciary Committee Chairman Bob Goodlatte has announced that the Judiciary Committee will conduct a comprehensive review of U.S. copyright law over the coming months. The comprehensive review is not any particular legislative agenda, but it will serve as an open invitation to content industries, technology industries, and the public in a way that likely never occurred in any of the Copyright Act’s prior legislative reforms.

Chairman Goodlatte emphasized the evolution of technology and media in his remarks:

The discussions during the early 1900’s over the need to update American copyright laws to respond to new technology were not the first time such discussions occurred and they will certainly not be the last. Formats such as photographs, sound recordings, and software along with ways to access such formats including radio, television, and the Internet did not exist when the Constitution recognized intellectual property. My Committee has repeatedly held similar discussions about new forms of intellectual property as they arose and enacted laws as appropriate. Driven by new technologies and business models, a number of changes to copyright law went into effect in 1976.

No one should expect immediate legislation. As Register of Copyrights, Maria Pallante noted in her recent congressional testimony “a major portion of the current copyright statute was enacted in 1976. It took over two decades to negotiate, and was drafted to address analog issues and to bring the United States into better harmony with international standards, namely the Berne Convention.” Even there, the effective date for U.S. adherence to the Berne Convention took until March 1, 1989.

In the decades of negotiation over copyright reform in the past, the tension was primarily between commercial interests of the content industries – film, television, music, and publishing industries with the trade unions, authors, and creative interests. But that focus has shifted dramatically with the rise of the information age.

The defeat of SOPA highlighted the tension between the technology industries – led by the ISPs, Google, Apple, Microsoft, eBay, Facebook, and Wikipedia with the content industries. In this fight, the content industries continue to lose. They could not push ACTA and they have lost in the courts over first sale in Kirtsaeng v. John Wiley & Sons, secondary liability in Viacom Int’l v. YouTube Inc. and Tiffany v. eBay, Inc., and many others.

Even more importantly, the rise of social media and the role copyright now plays – or interferes – in the daily lives of ordinary citizens means that the public’s interest in this debate will be higher than ever. Organized by social media companies like Facebook, LinkedIn, Twitter, Google and hundreds of others, the public will be exhorted to be heard every time they log on or check in. This is a great change for democracy. But we shouldn’t forget that those intermediaries are also the very technology companies that have their own stake in the outcomes.

Register Pallante has indicated some of the critical issues before the Judiciary Committee (though the explanation and approach is mine, not Register Pallente’s):

• First sale doctrine – which could include both (i) a review of Kirtsaeng (2013) which internationalized first sale, and (ii) technologies that allow for a digital forward-and-delete that mimics first sale in the online environment;
• Orphan works – questions about how to handle works for which the ownership information or the transfers of ownership have been lost;
• Library exceptions – addressing digital collections and the ability to gain far greater usage out of far fewer copies;
• Statutory licensing reform – on rate setting and rates;
• Federalization of pre-72 sound recordings – resolving the issues involving retroactive pseudo-copyright protection for these works and the implications on the public domain;
• Resale royalties for visual artists – addressing the conflict with those states which provide these rights and potentially creating national legislation;
• Copyright small claims procedure or courts – adding a mechanism for copyright to be enforceable for small scale claims; and
• Mass digitization of books – addressing the myriad of problems triggered by the intermediate copyright violations of works, the fair use of showing snippets, the procedural issues in the project, and many other concerns.

This list does not include many other potential areas for reform, including some of my preferred topics:

• Explicit free speech and human rights accommodations for the statute, since copyright and First Amendment issues increasingly intersect;
• Expanded fair use or copyright exemptions codified under Section 110 for digitization, reverse engineering, comparative advertising, and others;
• Anti-circumvention (DMCA) reform to prohibit its use for use in commercial products – such as cars, printers, garage doors, and other goods;
• Expanded registration requirements so that most of the economically insignificant works people create daily are outside of the copyright regime;
• Statutory Damage Reform to tie statutory damages more closely to actual damages and separate commercial infringers from consumers;
• Mandatory cease-and-desist system so that no one can be sued for copyright damages unless they have been notified directly the conduct is infringing and continue, after a reasonable opportunity to cure has been provided; and
• Broader non-commercial exceptions to copyright analogous to the public/private distinction of the 1909 Act.

Copyright needs to continue to adjust to address these issues. While the system is not broken, there are many strains. Again, from Chairman Goodlatte:

There is little doubt that our copyright system faces new challenges today. The Internet has enabled copyright owners to make available their works to consumers around the world, but has also enabled others to do so without any compensation for copyright owners. Efforts to digitize our history so that all have access to it face questions about copyright ownership by those who are hard, if not impossible, to locate. There are concerns about statutory license and damage mechanisms. Federal judges are forced to make decisions using laws that are difficult to apply today. Even the Copyright Office itself faces challenges in meeting the growing needs of its customers – the American public.

It will be important to be heard on these issues and to think carefully about a system that is good for today’s issues, tomorrow’s challenges and the decades of unanticipated changes the new law will cover.

Copyright Anti-circumvention provisions published; jailbreaking for phones okay but not tablets; access to DVDs for comment and criticism in education and documentary filmmaking increase

In 1998 Congress updated the copyright law with the Digital Millennium Copyright Act with hopes that it provided a forward-looking approach to the rapidly changing technologies affecting movies, music, television, publishing, the artists and all manner of creative endeavors. Among its two key provisions are the Section 512 take-down provisions[1] and the Section 1201 anti-circumvention provisions.

Section 1201(a)(1)(A) makes it a crime (and a tort) to “circumvent a technological measure that effectively controls access to a work protected” by copyright. Put another way, if a work protected by copyright is accessed through a digital lock, such as encryption or a digital authentication handshake, then the steps to get around that process violate sec. 1201. The law has some specific exemptions built in for library research, law enforcement, reverse engineering, and encryption research. But these exemptions are highly limited. As a result, Congress also called upon the Librarian of Congress, in consultation with the Register of Copyright to provide a review every three years to publish a list of additional exemptions.

The fifth such list has just been published: Section 1201 Rulemaking: Fifth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention. A copy of the final rule is here.

To be successful, an applicant seeking an exemption had to establish by a preponderance of evidence on a factual record that  “(1) uses affected by the prohibition on circumvention are or are likely to be noninfringing; and (2) as a result of a technological measure controlling access to a copyrighted work, the prohibition is causing, or in the next three years is likely to cause, a substantial adverse impact on those uses.”

In most cases, the exemptions are modification of the petitioner’s actual request. Here is a summary of approved exemptions:

1. Literary works distributed electronically – assistive technologies: Literary works, distributed electronically, that are protected by technological measures which either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies for the blind or persons with a disability under 17 U.S.C. 121.
2. Wireless telephone handsets – software interoperability: Jailbreaking of smartphones – but not tablets – to allow for apps from outside the provider app store.
3. Wireless telephone handsets – interoperability with alternative networks: phone unlocking to allow a handset to be redeployed on another phone network.
4. Motion picture excerpts – commentary, criticism, and educational uses: circumventing the DVD Content Scrambling System for the traditional fair use purposes of comment and criticism where “where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in the following instances: (i) in noncommercial videos; (ii) in documentary films; (iii) in nonfiction multimedia ebooks offering film analysis; and (iv) for educational purposes in film studies or other courses requiring close analysis of film and media excerpts, by college and university faculty, college and university students, and kindergarten through twelfth grade educators.” The exemption for motion picture capture makes fairly clear that screen capture is not a circumvention prohibited by the statute. The Register also supported the exemption because “[d]espite the commercial aspect of uses by documentary filmmakers and multimedia ebook authors, … when a short excerpt of a motion picture is used for purposes of criticism and comment, even in a commercial context, it may well be a productive use that serves the essential function of fair use as a free speech safeguard.”
5. Motion pictures and other audiovisual works – captioning and descriptive audio: permits the circumvention of motion pictures and other audiovisual works contained on DVDs or delivered through online services to facilitate research and development of players capable of rendering captions and descriptive audio for persons who are blind, visually impaired, deaf, or hard of hearing.

In addition to this list, the report specifically identified a number of categories of works that did not earn an exemption.

Works in the public domain

Of greatest note is the ongoing refusal to provide an exemption to circumvent a digital protection measure to obtain a work in the public domain. The Register correctly notes that it is not a violation of section 1201 to circumvent a technological protection measure unless there is a copyright work being sought. Therefore no exemption is required.

This is more than parsing language. To create an exemption would suggest an expansion of section 1201 that is unwarranted. As a result, the report that the exemption is not needed provides ample protection to the public.

Space-shifting for DVDs

The other significant rejection was the space-shifting of DVD content to devices without DVD players such as iPads and other tablets. The U.S. has been behind Europe in providing that non-physical versions of movies are generally offered in streaming mode rather than download format. The ability to acquire a second format of the same content is also generally sold at a premium price. An exemption to section 1201 would have put significant pressure on the motion picture industry regarding this transition. It is likely that this will become of greater economic and legal importance by the next rule-making.

Jailbreaking Limited to Phones – No Tablets, Video-Game Consoles or Computers

The report also rejected the desire to permit video game console interoperability. Much like the rejection of tablet jailbreaking, the report refused to exempt console jailbreaking so that lawful third-party games could be used on a particular platform. In both instances, the Register rejected the evidentiary record on the matter. There is likely little evidence to be developed because the practice may be quite common and the benefits of enforcement are too limited.

The report similarly rejected a desired exemption for jailbreaking computers to allow installation of unauthorized operating systems. This appears to fail for the reasons stated in the other jailbreaking proposals. In contrast to the smartphone app stores, the Register takes the position that the other categories of interoperability limitation have not developed sufficient economic concerns to merit an exemption.

Taken together, the rule-making continues to reflect a very conservative, incremental approach to the development of new technology and the appropriateness of anti-circumvention self-help. The Register has made great strides regarding fair use in the educational and documentary filmmaking environments but was probably overly conservative on iPads and tablet computers.

Conclusion

As a whole, the report is thoughtful and predictable. The process restarts with each triennial review.

In each rulemaking proceeding, the Register and Librarian review the proposed classes de novo. The fact that a class previously has been designated creates no presumption that redesignation is appropriate. While in some cases earlier legal analysis by the Register may be relevant to analyzing a proposed exemption, the proponent of a class must still make a persuasive factual showing with respect to the three-year period currently under consideration. When a class has been previously designated, however, evidence relating to the costs, benefits, and marketplace effects ensuing from the earlier designation may be relevant in assessing whether a similar class should be designated for the subsequent period.

As the Register describes the process, it becomes clear how important the evidentiary record and the economic significance of the particular issue must be. Unless Congress has itself shown a preference for a class of users, such as persons with disabilities, the exemptions are limited to very large classes of users.

Of course, if you did not get what you wanted, start preparing your petition for rule-making VI – coming in just two years.

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[1] Known as the DMCA Takedown Provisions, section 512 provide ISPs immunity from copyright liability if the ISP provides an effective method of accepting copyright infringement notice allegations and responds to those notices in a timely manner. Though highly criticized by some organizations, these provisions do not have a triennial review process.

Cybersecurity Act of 2012 Puts Focus on the Shadow Wars

On February 14, 2012, a 205 page comprehensive new Cybersecurity Act of 2012was introduced in the Senate to address the growing concerns about cyber-warfare, cybersecurity, and cyber-terrorism. The bipartisan Cybersecurity Act of 2012 is co-sponsored by Senators Joe Lieberman (I-Ct), Susan Collins, (R-Maine) Jay Rockefeller (D-WV) and Diane Feinstein (D-Cal) to address the potential gaps in the critical U.S. infrastructure. As defined in the USA Patriot Act,

[T]he term “critical infrastructure” means systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.

The proposed law expands on the USA Patriot Act and existing presidential directives to provide sector-by-sector assessment, standards and regulations to improve these assets. Presently, the DHS provides utterly circular guidance on the existing directives. Hopefully, the new proposal will at least increase the awareness within these sectors for comprehensive security.

The proposed legislation defines ‘‘cyber risk’’ as “any risk to information infrastructure, including physical or personnel risks and security vulnerabilities, that, if exploited or not mitigated, could pose a significant risk of disruption to the operation of information infrastructure essential to the reliable operation of covered critical infrastructure.” The information infrastructure is the privately owned communications systems located in the U.S., presumably including everything from telephones and cable to Facebook and Google.

 Howard Waltzman suggests that a critical infrastructure system or asset may be deemed “covered” only if damage or unauthorized access to the infrastructure could lead to:

• The interruption of life-sustaining services (e.g. food, energy, or emergency services) sufficient to cause a mass casualty event or mass evacuations;
• Catastrophic economic damage to the United States, including failure or disruption of a US financial market or sustained disruption of a transportation system; or
• Severe degradation of national security capabilities.

Ninety days following the passing of the legislation, a sector-by-sector review of the critical infrastructure will provide a prioritized list of the most at-risk systems.

There are significant exemptions in the law to protect private vendors (perhaps security software companies, search engine providers, and social media networks) so that particular products cannot be singled out. Similarly, there is a weak attempt to provide free speech protections to the system and to protect technologies based solely on their ability to be used in critical infrastructure.

The timing of the legislation is particularly interesting in light of the recent cyber attack in Israel by a Saudi Arabian hacker and retaliatory credit card hacking by an Israeli against the Saudi banks.  Attacks against Google and US defense contractors allegedly by Chinese sponsored hackers raised similar concerns.

Moreover, a stealth war with Iran appears to be heating up, including the assassinations of government scientists and public officials, increased sponsorship of terrorism targeting soft targets, and heightened war rhetoric.

As with the SOPA and PROTECT IP Act, the critical issue will be focus on the primary risks rather than political maneuvering for legislators to prove who is the toughest on the perceived threat. The costs for upgrading critical infrastructure will likely be immense; the complexity will be monumental; and the challenges significant. Where our nation is at risk, these steps must be taken. But the process must include some caution and common sense so that the process is moderated and proportional to the outstanding threats.

Research Work Act vies for worst legislative proposal of the session

Even as disputes have brought the technical copyright provisions of the  PROTECT IP Act, and  SOPA to the public conscience, another piece of legislation has been quietly making its way through Congress. Known as the Research Works Act (RWA or HR 3699), this legislation would reverse the National Institutes of Health policy that requires all research with NIH funding to be freely accessible within twelve months of publication. The legislation would create a similar barrier to limit other federal agencies seeking to tie federal research grants to the public’s access for the results of that research.

As noted by the Chronicle of Higher Education, Richard Poynder, and others, the enactment of HR 3699 would be a setback for the open access movement and interfere with the administrative agency grant process.

The bill was introduced by U.S. Reps. Darrell E. Issa, Republican of California, and Carolyn B. Maloney, Democrat of New York, presumably to support revenue for publishers in their districts.  Looking at the operative language, the proposed legislation is anything but subtle:

 No Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that–

(1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or

(2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.

While the open access approach to scholarship will improve public access to research, democratize information flow and increase academic transparency, critics are concerned about the continued investment in publishing of this research.

The legislation, however, goes vastly further – prohibiting even grants that “permit” such research. This grants a monopoly to the publisher vastly stronger than anything copyright law has permitted since the seventeenth century.

MIT Press has led a response to this exceedingly ill-conceived public policy. As reported by the Chronicle, MIT has made it clear it will not support the position of the trade association, the Association of American Publishers, which has lobbying for the legislation.

“The AAP’s press release on the Research Works Act does not reflect the position of the MIT Press; nor, I imagine, the position of many other scholarly presses whose mission is centrally focused on broad dissemination,” Ellen Faran, the press’s director, said in a statement circulated on open-access electronic mailing lists and elsewhere. “We will not, however, withdraw from the AAP on this issue as we value the association’s work over all and the opportunity to participate as a member of the larger and diverse publishing community.”

Additional publishers are recognizing the need to distance themselves from this position. Perhaps with enough backlash, trade associations will begin to advocate for good public policy rather than merely for control of content.

This would be an important lesson for all of the creative, technology and academic trade association to take to heart.

PROTECT IP Act may be open to some Reasonable Amendments

In response to concerted objections to aspects of the PROTECT IP Act, legislation sponsor Senator Patrick Leahy (D-Vt.) announced by radio and press release that the sponsors may eliminate a controversial provision requiring Internet Service Providers (ISPs) to interfere with the Domain Name System as a technique to prevent consumer access to foreign websites deemed “rogue” or havens for pirated goods.

According to the press release, the Senate is set to hold a procedural vote January 24, 2012. With over 40 co-sponsors of the bill, the position may face internal opposition, but Senator Leahy remains an influential voice on such topics and in the Senate.

According to the press release:

The PROTECT IP Act provides new tools for law enforcement to combat rogue websites that operate outside our borders but target American consumers with stolen American property and counterfeits.  One of those tools enables law enforcement to secure a court order asking Internet Service Providers (ISPs) to use the Domain Name System to prevent consumer access to foreign rogue websites.  This provision was drafted in response to concerns that law enforcement has remedies it can take against domestic websites, but does not currently have the power to stop foreign rogue websites.  I worked closely with the ISPs in drafting this provision to ensure they were comfortable with how it would work, and I appreciate their support. …

I and the bill’s cosponsors have continued to hear concerns about the Domain Name provision from engineers, human rights groups, and others.  …  I remain confident that the ISPs – including the cable industry, which is the largest association of ISPs – would not support the legislation if its enactment created the problems that opponents of this provision suggest.  Nonetheless, this is in fact a highly technical issue, and I am prepared to recommend we give it more study before implementing it.

Though described as a balanced bill, the legislation and SOPA – the even more extreme House legislation – have split the intellectual property industries, with strong support from many in the creative community and nearly unanimous opposition from the tech industries. Even within the media industries, concerns run high and I have spoken to a number of publishers and media representatives who feel that the proposals will do more harm than good.

A hearing on SOPA designed to allow critics of the legislation to be heard is now scheduled for January 18th.

Senator Leahy’s announcement may be the first step towards slowing an otherwise out-of-control legislative disaster.