Ken Tabachnick's Blog

Cunning DVD Scheme

IPKAT (a great blog on European IP) has an interesting post about a scheme by Dutch DVD movie-distributors to avoid paying royalties. The scheme seems to sell and then buy back DVD-movies from consumers after they have viewed the films and thereby, since there is no sale, not have to pay a royalty.

The scheme is in limbo though because it was designed to be delivered over set-top boxes to televisions and steros and the hardware manufacturer has gone out of business.

One has to wonder how the European rental right would apply to such a scheme.

One also has to marvel at the continuing ingenuity of those wishing to withhold royalties from artists.

Privacy Surveillance

Fordham Law School professor Sonia Katyal has written an insightful article about the effect of strengthened copyright law in the digital age (the DMCA) on privacy. Professor Katyal analyzes the difference between privacy in the real world, which she posits is based upon "geographical" limits and their defense, and in cyberspace, where there are no such "geographical" limits.

Katyal claims that the increased private enforcement/surveillance powers awarded to copyright owners under the DMCA provide copyright owners with the presumptive power to limit fair use of copyrighted material and to access private information formerly protected through judicial oversight.

Furthermore, Professor Katyal proposes that the powers the DMCA grants have resulted in a panoptical surveillance system resulting in increased exposure of personal information and reduction of legitimate uses of and access to copyright protected material.

One of Professor Katyal�s more important analyses concludes that the potential effect of the DMCA and recent court cases in which she proposes that a computer user opening his or her computer to any third party (such as in peer-to-peer communication) forfeits the shield of privacy with regard to information residing on that computer's hard drive.

Given the tremendous resistance to certain provisions of the DMCA and the unintended consequences of that law, the recent hearings on H.R. 107 offer hope that Congress is revisiting this matter again.

Some choice statements Professor Katyal makes:

]]> Today, DRM technologies and other forms of piracy surveillance routinely govern and restrain one's at-home activities regarding usage of cultural products. DRM allows for the privatization of copyright enforcement; it eliminates judicial oversight and precludes an adversarial forum for the consumer's protection. These systems operate automatically and panoptically, without the benefit of a complaint, response, third-party determination, or even a modicum of judicial involvement. In other words, copyright enforcement has encroached, and integrated itself, into the home.

. . .

As the protection and control of intellectual property expands, the protection of informational privacy shrinks. As a result, speech suffers. Consumers are forced to internalize the costs of their loss of anonymity and will curb their expression by restricting their conduct to that which is unquestionably insulated from liability. This phenomenon, in turn, can reduce the number of works created and disseminated, but it also quite drastically affects the way individuals experience and use cultural products.

. . .

The underlying logic behind piracy surveillance is inextricably tied to real space principles, suggesting that intellectual property is equivalent, in both form and content, to other types of properties in real space . . . Proponents of piracy surveillance point out that comparable measures of legalized self-help (like the right repossession or defense of property) are traditionally available to property owners in real space; thus, the same should be available to intellectual property owners in cyberspace. This is true: A property owner is permitted, under the law, to take certain actions to recover stolen possessions, and is granted immunity from trespassing on others' land for that purpose.

Yet there is a crucial difference between such strategies in real space as opposed to cyberspace: Self-help methods in real space are traditionally premised on maintaining, not destroying preexisting boundaries between private and public space. For this reason, self-help strategies in real space reify, rather than erode the architecturally-created balance between spatial protections for privacy and protection of property . . .

. . .

Proponents of piracy surveillance, particularly where monitoring is concerned, contend, following Kennedy [United States v. Kennedy, 81 F. Supp. 2d 1103, 1006 (D. Kan 2000)], that a person does not enjoy any reasonable expectation of privacy in material that he or she might leave open for public view, display, or use, especially music files that can be uploaded to others. The Verizon trial court echoed this point, observing, where an ISP subscriber "opens his computer to permit others, through peer-to-peer filesharing, to download materials from that computer, it is hard to understand just what privacy expectation he or she has after essentially opening the computer to the world . . . Unlike analogies in real space, piracy surveillance does not entail formal notice, consent, or negotiation between the parties. Nor does it protect constitutional assurances of anonymity. Individuals who are caught within the panoptic Web of piracy surveillance have little protection: Any of their uses of cultural products, or expression, is subjected to the governing, extrajudicial gaze of a copyright owner.

. . .

As I have suggested, piracy surveillance involves a clear delegation to the private citizen to determine what constitutes infringement and what constitutes fair use. As a result, the DMCA creates a silent web of public and private interdependence, in which public functions are virtually ministerial, and private determinations are largely adjudicative. Given the substantial risk of strategic enforcement of infringement, the only way to balance the increasing encroachment on privacy protections is to ensure some level of hybridity between public and private enforcement.

Copyright Policy

Lawrence Lessig's Free Culture struggles with the continuing antagonism between "property" and "piracy," which Professor Lessig proposes is our historical norm, without reconciling these two opposing tendencies. Thanks to Ernest Miller, I found Timothy Wu's trenchant Copyright's Communication Policy that attempts to explain the tensions in our copyright law and the struggle Lessig describes.

Wu's observant central premise is that American copyright history has been a story of two public policies - (i) providing author's rights and (ii) managing competition between disseminators - that ebb and flow as technology develops. Wu argues that historically, entrenched technologies (used by disseminators) are threatened by new technologies (and new disseminators) periodically.

The mature technology suppliers fall back on copyright as a method of preventing the new technology from utilizing its competitive advantage by denying content through strict interpretation of copyright law. The struggle continues until the Supreme Court sides with one or the other, and then (and only then) Congress acts to set forth a communication policy vis-a-vis the new technology. Generally, this legislative solution has taken the form of a compulsory license which makes the content available at a preset cost for new technology purveyors. His arguments echoes Clayton Christensen's The Innovator's Dilemma.

In light of Lessig's struggle with the current debate and his cry for a more rational basis of determining copyrights in order to insure the original Founders' intent, Professor Wu's framework is a rational basis on which to examine public policy, but requires earlier engagement by Congress as policy makers.

Free Culture

I finally finished Lawrence Lessig�s latest book, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. Professor Lessig, a leading light in the copyfight, posits some pressing points regarding copyright and culture in a digital world. But the book's message is confusing and unfocused.

Professor Lessig proposes a simple, but probably untenable solution, for what he sees as the core problem of an ever-decreasing � even disappearing � public domain of material from which creators can draw: reinstitute a modified system of required registration to receive the full measure of copyright protection.

He leaves unaddressed, however, the complaints he raises in the bulk of the book: corporations are utilizing technology and the law to alter the balance between seller and purchaser of cultural materials; one can utilize the American legal system to one's advantage if one has money; and our laws provide inadequate protection for individuals' rights in the intellectual property area because they are not practical for the average person. The book is also marred by conflation of arguments, fuzzy analogies, and, from a law professor, shocking misstatements about the law.

Despite his professed support for copyright and free markets, Professor Lessig proposes that digital technology has changed the nature of copyright and its interaction with culture to the detriment of our society:

]]> � Digital technology provides tools that shift the balance of copyright away from promotion of the public good and into the hands of authors - or those owning the author�s rights (i.e., corporations). The result of this is that the public domain of material for creative expression is being quickly diminished and culture is now being made in a very different way.

� The Exploitation of digital technology has reduced the free expressive possibility this technology offers individuals. The Internet has set the stage for this reduction and, pushed by big media, the law has now affected it. Here, the essence of his argument is clear: large corporations utilize copyright law to increase commercial activity and eliminate free activity.

� The current arguments in copyright are framed as a battle between �property� and �piracy.� �[I]n our tradition, intellectual property is an instrument. It sets the groundwork for a richly creative society but remains subservient to the value of creativity. . . .The current debate has this turned around. We have become so concerned with protecting the instrument that we are losing sight of the value.�

Unfortunately, Professor Lessig lets rhetoric get the better of him and his argument loses clarity and strength.

� In the �good old days� before copyright lost control, �[s]cientists could build upon the work of other scientists without asking or paying for the privilege. (�Excuse me, Professor Einstein, but may I have permission to use your theory of relativity to show that you were wrong about quantum physics?�).�

Nothing prevents a scientist today from using Einstein�s theory of relativity without Einstein�s permission. The theory is only an idea, which is unprotectable under copyright.

� If �piracy� means using value from someone else�s creative property without permission from that creator� as it is increasingly described today � then every industry affected by copyright today is the product and beneficiary of a certain kind of piracy. Film, records, radio, cable TV. . . . The list is long and could well be expanded. Every generation welcomes the pirates from the last. Every generation � until now.

Similarly, Professor Lessig bemoans the apparent change in attitude today. If it was ok for everyone else to do it earlier, it is ok to continue doing it now.

� Current claims that piracy is unacceptable are inconsistent because copyright law already permits piracy. If Madonna records a song the reader has written and it gets played on the radio, the �radio station gets to �pirate� the value of Madonna�s work without paying her anything� because we only give performers a limited subset of the full copyright that authors receive.

Professor Lessig proposes a position, more consistent with the natural law theory of property prevalent in Europe, that all creators are equal and all creators deserve the same rights. Congress has taken a different position. The copyright laws offer a limited set of rights to performers. There are any number of reasons for this, perhaps including the fact that performers would have nothing to perform without the work of authors.

� Defending a copyright is really only an option for the rich and for corporate interests. Consider the story of Jesse Jordan, a teenager sued by the RIAA for $15 million and forced to settle, through a �mafia-like� choice of having to spend $250,000 to defend his rights to download and copy music, or settle with the RIAA for his entire life savings of $12,000.

On this point, Professor Lessig and I would completely agree: the legal system in America is unjustifiably expensive and the result is that people or companies with means often get an outcome they are happy with. Some might say they are able to buy justice. But this is an endemic problem to our system and has nothing to do with the copyright laws of our country.

� Impliedly, corporations have become more aggressive at influencing the outcome of social issues to their advantage.

This, too, however, is an endemic problem in our country (and a growing problem in the world at large) that is very clearly addressed in Professor Joel Bakan�s recent book The Corporation.

� Calling copyright a kind of property is misleading. �[T]he property of copyright is an odd kind of property. Indeed, the very idea of property in any idea or any expression is very odd . . . The point instead is that in the ordinary case � indeed, in practically every case except for a narrow range of exceptions � ideas released to the world are free . . . The exceptions to free use are ideas and expressions within the reach of the law of patent and copyright, and a few other domains that I won�t discuss here. Here the law says you can�t take my idea or expression without my permission: The law turns the intangible into property. (emphasis added)

Perhaps Professor Lessig lets his argument get the better of him, ignoring the fact that United States law could not be clearer on this point: In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

� Congress� recent and frequent extensions of copyright have, from a practical point of view, eliminated the limitation on Congress� power to grant copyrights for a �limited time.� As a result, �American law no longer ha[s] an automatic way to assure that works that were no longer exploited passed into the public domain. And indeed, after these changes [the extension of copyright protection to the life of the author plus seventy years], it is unclear whether it is even possible to put works into the public domain.�

Professor Lessig�s overstatement diminishes the opportunity for rational discussion of the issues at hand. First, there is no question of whether it is possible to put works in the public domain. Anybody can renounce his or her copyright by reserving no rights in the work or through one of the limited licenses currently being utilized, such as a Creative Commons license (Free Culture itself is published under such a license) More precisely, then, Professor Lessig�s point is there is no certainty that all copyrightable material will ever enter the public domain if we continue on our current course, which fundamentally contradicts the founding fathers� intentions. The issue of licensing is a critical one.

� Copyright law and its application have expanded to regulate simple acts, such as reading a book. �[Previously, n]one of those instances of use � reading � could be regulated by copyright law because none of those uses produced a copy. But the same book as an e-book is effectively governed by a different set of rules. Now if the copyright owner says you may read the book only once or only once a month, then copyright law would aid the copyright owner in exercising this degree of control, because of the accidental feature of copyright law that triggers its application upon there being a copy. Now if you read the book ten times and the license says you may read it only five times, then whenever you read the book (or any portion of it) beyond the fifth time, you are making a copy of the book contrary to the copyright owner�s wish. (emphasis added)�

Professor Lessig makes the wrong argument here. The real issue is the strengthened bargaining power owners of property have with digital technology, not changes in copyright law. Selling copies of writings used to be the most efficient distribution method of those books. Digital technology now offers the author the ability to efficiently distribute such writings without having give up all future rights; authors can now license their works instead of selling them.

But there is a simple way to address this without resorting to copyright � don�t buy (license) any ebooks (or other material) with restrictive conditions of use. Just imagine what would happen if, for a sixty (60) day period, nobody bought regionally encoded DVDs, or ebooks limiting their licensee to only 10 readings. The market is very efficient at quickly addressing such matters: much more efficient than copyright law. But Professor Lessig clearly likes the convenience of digital books, which is what the purveyors of such intellectual property depend on when they offer licenses instead of selling the work. Yes, they may use copyright law as a backstop for their greater restrictions, but what they are really doing is flexing their muscles and altering the seller/purchaser relationship.

� Purveyors of copyright material are increasingly introducing technological controls, which replace permissions granted in copyright law.

While this may be true, this is not a copyright law matter, but rather a contract law issue.

� All the changes wrought by technology would be acceptable were it not for consolidation and integration of media.

While I am in complete agreement with Professor Lessig on the dangers presented by such concentration, I also believe that this is not a copyright matter.

� �[F]air use in America simply means the right to hire a lawyer to defend your right to create. And as lawyers love to forget, our system for defending rights such as fair use is astoundingly bad � in practically every context, but especially here. It costs too much, it delivers too slowly, and what it delivers often has little connection to the justice underlying the claim. The legal system may be tolerable for the very rich. For everyone else, it is an embarrassment to a tradition that prides itself on the rule of law.�

Professor Lessig�s condemnation of the American legal system is just that - a condemnation of the American legal system, not of the state of copyright law.

Having spent many pages of excessive rhetoric and simplification to bolster his argument that copyright law is out of control, Professor Lessig turns around and is critical of the fact that most discussion on this topic is colored by rhetoric and simplification belying the true issues at hand. He characterizes the debate as a �chimera,� which he defines as �a person containing two sets of DNA.�

Analogously, in the context of p2p sharing, he says, �both sides have it right, and both sides have it wrong.� Rather than accepting either side�s arguments, he proposes that there is a middle way that recognizes the truth in both positions. Returning to an earlier complaint, he suggests that current government policy, pursuing the �extreme� position of zero tolerance, causes the loss of �many an opportunity for new innovation and new creativity.�

According to Professor Lessig, we periodically make the actions of a significant portion of our population illegal. Laws such as prohibitions on drinking alcohol, recreational drug use, speeding in your automobile, and (some would say) our entire tax system causes �a huge proportion of Americans [to] regularly violate at least some law.� He considers that our general response to such situations is to either more harshly enforcing the law or change the law and suggests that we must find a more rational method of making the choice.

Applying this to copyright, it makes no sense to pursue a policy that makes 43 million Americans criminals, we should pursue a system that achieves the legitimate objectives of our copyright system but �le[aves] consumers and creators much more free.� Thus, Professor Lessig rationally argues for a change in the dialogue from arguing about how the Internet should be regulated to eliminate file sharing to how to assure that artists get paid.

At this point in the book, Professor Lessig has expressed legitimate concerns that should make us all think. But it is not clear what the real topic of his book is. Whereas one begins reading the book thinking it is a condemnation of current copyright law and practice, it becomes a condemnation of (i) how we set and pursue policy objectives and (ii) how our legal system is used as a tool by corporations and those with means to affect their interests to the detriment of the greater public.

Returning to his conclusion that copyright is broken and we need to fix it, Professor Lessig proposes that we institute a registration requirement 50 years after a creative work is published. If an author/owner wanted to gain the remaining protection available (to life plus 70 of the author), an author/owner would need to file a registration statement and pay a one (1) dollar fee. This is not unlike the requirement for renewal of a trademark that requires a statement that the mark is still in use once every ten years in order to extend protection.

Thus, Professor Lessig advocates a quasi-return to an earlier era in copyright in which we required a registration in order to gain copyright protection and prevent a work from entering the public domain. This system was abolished when we acceded to the Berne Convention. Such a roll-back is inconceivable now, however. In joining the Berne Convention, we have signed on to the idea that globalization requires us to be on no less advantageous terms than those of our potential markets. But this is a devil�s bargain we have made that opens up markets for our companies while simultaneously strengthening their hand to control their products and our rights to use them.

Perhaps this is the real battle Professor Lessig should be fighting.

Google Privacy

EFF's Deep Links (Donna Wentworth) has a practical and useful article about protecting your privacy when using web-based mail services.

Scalia Follow Up

AP has now reported that Justice Scalia has done the right thing regarding the incident in which two reporters were accosted by federal marshals and told that the Justice does not permit recording of his speeches.

Scalia's Freedom of

A schocking story involving Supreme Court Justice Antonin Scalia was reported several days ago and I have been watching to see if it is picked up and further reported by mainstream media. Today's NY Times has an opinion piece outlining the events, but does not opine on the true import of Scalia's actions.

]]> Here is one of the most rabid supporters of state's rights using federal marshals to prevent reporters from exercising their clearly constitutional right to record a public event. This is right up there with the Bush government's attempts to isolate those exercising their freedom of speech (by protesting in public) by placing the speakers in restricted zones far away from the audience to whom the speech is aimed.

More shocking than the actions by these federal officials and agencies is the abdication of responsibility by the media to report on and fight these infringements and/or limitations on rights of speech. I am not the first to posit (nor will I be the last) that without an inquiring independent press, democracy cannot flourish - possibly not even exist.

Blogs and Privacy

On my way to DC yesterday, I picked up a copy of PC Connections, a custom publicaiton of PC Connections, Inc., which is one of the myriad "free" publications available on the shuttle.

A short piece on p.9 discusses workplace blogs and their increasing popularity. A privacy and security expert from Proskauer Rose states that "compan[ies are] liable if an employee posts libelous material. . . " The expert's analysis assumes a traditional analysis of publisher liability. But how would this play out in a "news" context, which one might argue is involved in the use of RSS or XML feeds? In other words, is there liability for simply "reporting" the statement of another? Is this publication? If I don't "report" it but link to it, am I republishing it? Are we all becoming legitimate news sources as we are publishers?

Reuters Headlines

Responding to the discussion about the copyrightability of its headlines, Reuters has jumped into the discussion. Their announcement that they do not consider use of their headlines in XML feeds to be infringement of their copyright clearly implies the underlying consensual control the copyright owner has. Under traditional law in the US, the owner is the one to control the enumerated rights for which they are granted protection. But the Reuters statement avoids the key question of whether or not a headline is subject matter that is subject to copyright. As others have stated, a title is traditionally not subject to copyright. This is a definitional fact, much as typefaces are not subject to copyright, nor are public performances. So the relevance of Reuter's statement is premised solely on an affirmative answer to the core question: is a headline protectible. If not, it does not matter that Reuters consents to not enforce its rights because it would not have any rights to enforce.