DMCA v. ADA: How the Digital Millennium Copyright Act Hinders eReaders in providing ADA Compliant Content

The White House recentlyannounced that individuals should be able to unlock their phones. The announcement came at the response to a We the People Petition on the White House website, which garnered over 100,000 signatures from citizens around the country. The announcement was also a response to the decision by the Library of Congress that the unlocking of a phone constituted a violation of the Digital Millennium Copyright Act (DMCA). Under that act, authors and creators of digital content have a vast and varied power to control who, when, and how their copyrighted material is downloaded and distributed. But the flip side of all that protection is that as technology has evolved, the DMCA has expanded its reach over protected content utilizing the newest forms of technology. Each expansion results in growing pains and the latest growing pain hits one of the most vulnerable portions of our society: the disabled.

The Americans with Disabilities Act of 1990 (ADA) was and is designed to protect the disabled portion of our population and guarantee access to both the basic necessities of life, as well as prevent discrimination and promote their quality of life. As such, it protects not only access to buildings, roads, education, and medical care, but also information and how that information is disseminated. And it is here, where technology and information dissemination meet in the digital world, that the DMCA and the ADA clash.

The ADA defines the abilities to hear, see, speak, read, think, and communicate as major life activities and protects them accordingly. The DMCA allows publishers, copyright holders, and other digital rights owners to lock their digital content such that without the proper technology or know-how the material cannot be converted into a format that is useable by disabled individuals. The DMCA also makes the act of conversion of this material into ADA compliant forms illegal.

Users of eReaders and iPads who legally purchase written and copyrighted material, such as books, magazines, and newspapers, are prohibited under the DMCA from converting these materials into formats which could be read to the seeing-impaired. Blu-Ray and standard DVDs distributed through the web or streamed on a user’s computer are coded in a manner which prevents researchers and developers from creating closed-caption and other ADA adaptive technologies so that disabled individuals could fully use legally purchased or streaming content. And even when subtitles are included, any hearing-abled individual can tell you that sometimes the subtitles are incorrect, don’t properly translate, or are so far behind that they only serve to confuse the reader. Bypassing such technology is often easy enough done, but the act of doing it opens the user up to DMCA violations, which would likely cost them more than it is worth to risk the conversion in the first place.

As it stands, really, both statutes need to be updated. The ADA needs to be updated to include the new technologies which provide services to disabled individuals, such as the Internet, eReaders, computers, phones, PDAs, etc. The DMCA needs to be updated to reflect the need for adaptive technologies to be an exception, such as fair use, under the DMCA so that as new technologies come along they aren’t by default restricted to only able-bodied individuals. Technology is designed to make an individual’s life easier. But if the legally purchased content is protected to the extent that disabled individuals risk punishment for adapting it so that they can perform major life functions, then technology and the laws need to adapt. The ADA should trump the DMCA when it comes to technology that is designed to make basic everyday functions easier, like reading, communicating, hearing, and thinking. But, until such time as Congress amends the ADA and DMCA to reflect the technology needs of the disabled, the usefulness of some technologies will be out of the reach of many disabled individuals.

Privacy on the Internet? “Do Not Track” Won’t Get Any Traction So Long as Compliance is Voluntary.

A quick visit to the Ads Preferences section in the personal settings of my Gmail account reveals my age, an affinity for all types of news (local, newspaper, international), an interest in the law and government, and an unhealthy obsession with coffee. Unless you’ve never Google-d anything, the search engine giant probably has very similar – and eerily accurate - information about you. But what happens when you’d like to maintain some semblance of privacy on the world wide web? The onus is largely on internet companies to be forthright about the kind of information they collect about users and how they use it.

Back in May 2011, Senator Jay Rockefeller (D. W.Va.) introduced the Do Not Track Online Act, which subsequently died in committee. Faced with the threat of regulation, many internet companies vowed to increase privacy settings, become more transparent about how personal information is used, and allow users to exercise more control over whether their information is collected at all. It comes as no surprise that very few companies actually followed through with these vows. Privacy settings on websites like Facebook are notoriously difficult to navigate and every time we click “I have read and agree to the terms of service” we give up a little slice of our private information without fully understanding what it is we’re allowing these companies access to.

Some form of a “Do Not Track” setting currently exists in many of the most popular browsers but the problem is that compliance with the wishes of internet users by internet companies is entirely voluntary. Essentially, companies are free to honor or ignore their users request to not have their information collected and used for advertising or other purposes. Since many companies don’t honor the “Do Not Track” request, many consumer advocate groups are calling for the Federal Communications Commission to step in and require companies to give users the information necessary to grant internet companies informed consent, in other words "opt-in," to use their personal data. Senator Rockefeller has reintroduced the Do Not Track Online Act that would give the FCC the authority to create rules around the collection of personal user information online.

In an Ad Week article Senator Rockefeller is quoted as saying, "[o]nline companies are collecting massive amounts of information, often without consumers' knowledge or consent . . . [and] [m]y bill gives consumers the opportunity to simply say 'no thank you' to anyone and everyone collecting their online information. Period." Senator Rockefeller’s proposed legislation does not try to do away completely with companies utilizing, or making money off of the information of their users. Instead, it requires companies to fully disclose the information they collect and how that information is used. It should be a welcome step forward for consumers.

Cameras in the Courtroom in Ohio

Permitting cameras inside of America’s courtrooms would allow the public the opportunity to see and learn more about the daily occurrences and processes of our nation’s legal system. Opponents argue that such coverage could pose harmful effects surrounding the privacy of those involved in the proceedings. Initial disfavor for banning cameras occurred after sensationalized public trials, such as the trial of Bruno Hauptmann who was accused of the kidnapping and murder of Charles Lindberg’s baby. This frenzy was furthered by the O.J. Simpson case in the 1990s. Proponents of cameras suggest that by providing insight into daily activities, the cameras would reveal to viewers that day-to-day activities are not always exciting, separating typical court proceedings from television show portrayals and dramatic public trials.

The public has a legal right to attend court and most courts are open and accessible to the public. However, many of the court proceedings occur during normal business hours so attending court may prove impracticable for most working Americans. While individuals have a right to access the proceedings, there is no First Amendment right to have cameras in the courtroom. Fundamental differences exist between attending court and having the proceedings recorded and broadcast on television or over the Internet.

There are different ways that the public can receive this information; one example being through a live-feed, or videos posted online. Live streaming video footage can be accessed on court’s websites and is more commonly used in state courts. Federal courts tend to be more restrictive and may choose to videotape the proceedings and then post those videos online. Federal courts also impose greater restrictions than state courts, including: no live streaming video (videos will be archived and posted online at a later date), only civil matters may be filmed, recordings are made by court employees rather than the media, and consent for the recording must be granted by the judge and both parties.

Many Americans are accustomed to receiving instant updates and news stories via social media outlets on the Internet. The benefit of facilitating access to courts online in a format that is user-friendly may be a wider appeal to a broader, younger audience. On the other hand, social media was not a concern when cameras were first introduced into courtrooms. Instant responses by social media and clips from trials going “viral” may occur as a result of our connectedness and globalization. With today’s ever-connected society, the reactions may divert too much attention in a way that threatens a fair trial because of adverse publicity.

Opponents point to privacy concerns as a major downfall of implementing cameras. Some have noted that cameras can be intimidating for witnesses and jurors and juror anonymity certainly should be a major concern with cameras in a courtroom. A ban on filming the jury at any point in the proceedings is one suggestion for removing any nervousness or fear of retaliation. Another issue is the security of witnesses, especially in regards to "snitches" (confidential informants), undercover investigators, and victims of sexual abuse and domestic violence.

The presence of cameras is an issue that should and will be dealt with in courts of every level; from local courthouses to the Supreme Court. Historically, cameras have been banned from the Supreme Court, but the newest members of the Court, Justices Sotomayor and Kagan, initially supported the idea of cameras during their confirmation hearings. However, once confirmed, both Justices changed their positions and supported a continued ban on cameras. They expressed concerns that Justices will play to the camera, and that the clips will be used for unintended purposes, such as political ads. Maybe it is too early to tell, but perhaps broadcast of courtroom proceedings will be comparable to C-SPAN coverage in the future, and it will serve as a useful and beneficial tool, allowing for greater access and understanding of what happens in America’s courtrooms.

Cable a la Carte? Don’t Get Your Hopes Up

Today’s cable industry provides TV subscribers with more channels than they could ever want or need, but at what cost? What if subscribers could pick and choose only the channels they know they’ll watch instead of having to pick a “bundle” of channels together? Some consumer advocates are hoping such “a la carte” cable subscriptions will be the result of a recent Antitrust lawsuit Cablevision filed in Federal court against Viacom. Cablevision alleges Viacom forces the company to carry (and pay for) fourteen “lesser watched” channels in order to have access to Viacom’s popular channels. The added costs, Cablevision says, are passed on to the consumer.

In a recent Wall Street Journal article a spokesman for Cablevision said “without the 'take it or leave it' requirements of bundled programming packages at a wholesale level, cable companies could tailor smaller and lower-priced packages that could offer flexibility and have great appeal to specific interests and audiences." While it would be nice to think that Cablevision is out championing for consumers and hoping to pass along lower prices, Viacom doesn’t see things that way, with a spokesman for the company quoted in All Things D as saying the lawsuit a “transparent attempt by Cablevision to use the courts to renegotiate our existing two month old agreement."

With many television shows readily available online some people have already “cut the cord” and unsubscribed from traditional cable. As online streaming technology continues to improve one would hope it’s only a matter of time before cable goes the way of the land-line telephone. At the end of the day, both Cablevision and Viacom are fighting to prevent that from happening. Cablevision wants to keep customers by offering competitive prices and Viacom wants to protect its bundle – because goodness knows it wouldn’t make any money on MTV3 if we all weren’t forced to subscribe to it.

A la carte programming though? Probably not in the near future, unfortunately. If a la carte programming were available it would likely be on the internet – and it’s certainly not what Cablevision is seeking from this Antitrust suit. Cablevision wants to be able to buy only the top channels from Viacom so Cablevision can turn around and bundle them all together for their subscribers. So even if Cablevision wins the lawsuit consumers will likely still have channels they don’t watch (and will never watch ), but perhaps they’ll just have fewer of them.

The Times They Are A’ Changin’: Sony Exploits Recent Copyright Term Extension, Releases 50 Year Old Bob Dylan Tapes

After a recent European Union Directive, which extended the term of copyright for sound recordings, Sony has released a collection of Bob Dylan tapes in order to take full advantage of the situation. The 2011 Directive extends the term of protection for sound recording copyrights from 50 to 70 years. But, the work must be published within 50 years of creation. Recordings by many popular British bands of the 1960s, including the Beatles, the Rolling Stones, and the Who, are right at the 50 year mark. Sony recognized that the 50 year window’s expiration was approaching and released the tapes.

If not released before January 1, 2013, the works would have been dedicated to the public domain and free for anyone to exploit without requiring permission or payment to Sony. The new release, “Bob Dylan: The Copyright Extension Collection Vol. 1,” includes alternate takes of “Blowin’ in the Wind,” “Bob Dylan’s Dream” and “I Shall Be Free,” as well songs that missed final cuts and live performances from Carnegie Hall.

The Directive, named “Cliff’s Law” after the 1960s British pop singer who campaigned aggressively for the extension, is seen as a victory for many aging superstars, including the aforementioned British invaders, as well as American artists like Frank Sinatra, Miles Davis, and Mr. Dylan, who recorded in Europe. In an interview with the BBC, The Who’s Robert Daltrey explained that the Directive ensured that artists could continue to receive royalties into their old age. “They are not asking for a handout,” he said, “just a fair reward for their creative endeavors.”

Not everyone is as pleased with the extension, however. The Electronic Frontier Foundation points to numerous reports concluding that longer terms will not benefit the smaller acts and session artists whom the Directive was designed to protect. A study by the Center for Intellectual Property Policy and Management at Bournemouth University in England calculates that 72% of the financial benefits from the Directive will accrue to record labels, and the vast majority of the remainder to superstar acts, not those musicians identified in the Directive. And many argue that restricting the public’s access to recorded works for another 20 years will hinder creativity, an outcome seemingly at odds with a fundamental aim of copyright law.

XV Enterprises: Tim Tebow Trademark

NFL quarterback Tim Tebow, as sole shareholder of XV Enterprises, has trademarked “Tebowing” both the term and the pose. The act of Tebowing, which was popularized by Tebow at the end of every touchdown play, is to get on one bended knee head bowed atop a clenched fist. This act quickly became an Internet meme and some have tried to trademark the act themselves. One such person was Jared Kleinstein, a Denver-born Broncos fan living in New York, who started the website www.tebowing.com for the purposes of submitting photos of people Tebowing, while profiting from their acts. However, the trademark office refused Mr. Kleinstein’s request saying that the material “falsely suggests a connection with Tim Tebow.”

The purpose of the trademarking was to keep it from being abused and misconstrued by others. The religious ritual that Tebow did at every touchdown play was something personal, between him and God, and was taken by society and transformed into something called Tebowing. The main reason for the trademarking was not so he could make some extra cash from lawsuits, but to “make sure it is used in the right way.”

If Tebow can trademark his praying, “can the Catholic church trademark the praying-hands . . . the Muslims trademark[] their traditional poses . . . Buddhists trademark[] the Buddhist belly?" It appears that these religious groups could trademark these acts, but the trademark office would probably not grant these rights for three reasons. The first is that these acts do not originate from an individual or one particular entity; the second being that these acts are not considered “memes;” and finally, society as a whole does not use these terms as frequently as they do with Tebowing. For these reasons, it is very unlikely that other football players’ signature moves, such as Aaron Rodger’s championship belt, Victor Cruz’s salsa dance, or even Arian Foster’s bow could be trademarked unless these acts were religiously motivated such as Tim’s Tebow.

A Look At the Internet Radio Fairness Act… and the Royal Mess That is the Copyright Royalties System That It Attempts to Address

On September 21, 2012 Rep. Jason Chaffetz (R-UT) introduced the Internet Radio Fairness Act of 2012 which would alter 17 U.S.C. §801, the statute which establishes the Copyright Royalty Board composed of Copyright Royalty Judges. Under the statute, the Librarian of Congress, as head of a freestanding entity, appoints this panel of judges who set default royalty rates and terms for webcasting digitally recorded music. While the Act enjoys five cosponsors, its senate counterpart has none thus far.

The Act proposes to make the appointment of Copyright Royalty Judges the province of the President with the advice and consent of the Senate, rather than that of the Librarian of Congress as is currently the case. The D.C. Circuit in 2011 held that the since the Librarian is restricted in the ability to remove Copyright Royalty Judges, Congress’s vesting appointment in the Librarian as head of a Department rather than the President makes limiting language of §802(i) unconstitutional as a violation of the Appointments Clause.

The Act would put the burden of proof on the party requesting a royalty to show that such royalty is reasonable. It would change the way rate proceedings are conducted by, for instance, removing the precedential effect of past royalty proceedings. Currently, rates for noninteractive broadcasting are based on interactive broadcasting rates. Much of these are based on extrapolations by expert witnesses testifying about which rates should be adjusted, using regression analysis to remove the effect of interactivity of broadcasting on precedent deals in the interactive market to guide rates to be set in non-interactive broadcasting—as in webcasting services like Pandora. Proponents argue this is problematic as a highly subjective and speculative analysis. Someone will be paying a rate based on fundamentally different market conditions from their own because of the inherent difficulty in trying to project what the non-interactive market actually is (See broadcastlawblog).

Currently, Sirius XM Satellite Radio pays about 8% of its revenue in sound recording royalties under the 801(b) standard while Pandora Internet Radio pays about 50% of its revenue in such royalties under the willing buyer/willing seller standard.

Are the uses that satellite radio makes of artists’ and producers’ copyrighted content so different from the uses used by internet radio services like Pandora as to justify such a large discrepancy in the royalties each one is to pay? SoundExchange is a non-profit tasked with collecting and distributing royalties on behalf of recording artists and master rights owners, that is, owners of recorded works. Its president is among the chorus against the Pandora-backed Act for its potential to reduce record label and musicians’ royalties. Analysts have said the bill seeks to create parity in royalties among internet, satellite, and cable TV services as a share of revenue instead of a flat rate per recording, currently at $.0011 per performance (each play of a song) per listener for an internet radio service.

Proponents of the bill argue that it would establish a fairer approach by using the 801(b) approach for all of these platforms. In theory this would close the gap between internet radio and satellite radio. It would also not allow standard AM/FM radio to pay much lower royalties than internet and satellite counterparts.

Opponents of the bill side with the willing buyer/willing seller approach. Among them is Congressman Jerry Nadler (D-NY) who has circulated a discussion draft of the Interim FIRST Act, touted as a promoting fair compensation for artists. MusicFIRST, a coalition of organizations representing musicians, performers, and producers, whose founding members include the Recording Industry Association of America (RIAA), criticizes Pandora’s lobbying against fair pay for playing authors’ works and seeking to raise profits since going public in mid-2011 when it was valued at over $3 billion at $16 per share. It is currently at $9.44 a share and has made $103 million in the second quarter of its fiscal 2013. Pandora’s opponents have suggested that it could generate more revenue with more ads on its site rather than trimming royalties on content it streams. Recording artists and musicians endorsing MusicFirst range from Jay-Z to Bonnie Raitt to Tom Waits. Which serves to better level the playing field here? Are these platforms even similarly situated? What is actually equitable here?

Proponents of the willing buyer/willing seller approach argue its approach makes an attempt to mirror the marketplace itself, while the 801(b) standard allows Copyright Royalty Judges the discretion to set rates that minimize any disruptive impact on the structure of the industries involved and on generally prevailing industry practices. It is unclear which approach ultimately provides a more equitable balance of the royalties to authors and master rights owners and revenues generated by companies using their content. The Internet Radio Fairness Act does appear to take a subtler approach to updating the current royalty system, which its proponents argue will promote greater innovation and growth in the industry by extending 801(b)’s benefits to all non-interactive broadcasters rather than a select few. The outcome will likely be more based on whose lobbying efforts prove stronger on Capitol Hill.

Music to My Ears? - Setting a Precedent for Federal Copyright Infringement

In one of the largest amounts ever awarded in an illegal file sharing proceeding, an Illinois judge has ordered defendant Kywan Fisher to pay $1.5 million to adult entertainment company Flava Works for illegally copying and sharing 10 movies on the file-sharing website BitTorrent. This case highlights a trend in the courts' increasing disapprobation for copyright infringement, and hints at the potential for an increase in the severity of punishments imposed for such crimes. In a world in which illegally downloading a film or audio file is as easy as clicking a button, users may want to think twice before they bypass copyrights or skimp on paying full price for their digital entertainment.

When Napster gained mass popularity in 1999 for allowing users to share files effortlessly and seemingly without consequences, it soon boasted over 25 million users. However, in 2001, only two years after its inception, Napster lost a copyright infringement suit and was subsequently forced to revoke the free access to mp3s that it once afforded its members. Despite indications that the legal system and record companies were attuned to the growing trend of file sharing, other sites such as AudioGalaxy, Morpheus, Kazaa and Limewire sprung up in Napster’s wake, bolstering the trend and creating even more fans of file sharing.

Predictably, however, users of these copycat sites soon saw themselves faced with lawsuits citing illegal downloading and copyright infringement. While no case has been as monumental or landmark in its consequences as Fisher, courts have, since the inception of file-sharing websites, taken seriously and not looked favorably on the activity. In 2010, defendant Joel Tenenbaum, a doctoral student in physics at Boston University, was convicted and slapped with a fine of over $67,000 for downloading and distributing 30 copyrighted songs using file-sharing software. Also in 2010, the case against Jamie Thomas-Rasset went to trial, resulting in a damages award of $2,250 per song, totaling an amount of $675,000.

Not surprisingly, many lawsuits involving illegal file sharing settle out of court, with defendants seeking to avoid costly litigation and potentially astronomical damages amounts. However, the amount of damages awarded in these types of cases has met with some controversy, with some judges deeming excessive amounts “unconstitutional,” overly “oppressive,” and greater than needed to serve the government’s legitimate interests in protecting copyright owners and preventing infringement. In an effort to assuage this controversy, Congress passed the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 which mandated that damages should not exceed $150,000 per infringement if the violation was committed willfully. In the case at hand, the judge utilized the maximum amount allowed under this statute, charging Fisher $150,000 for each of the 10 videos he copied and illegally shared.

In the thirteen years since Napster gained mass popularity, the Recording Industry Association of America (RIAA) and the U.S. Copyright Group have become increasingly zealous in their monitoring and suing individuals who utilize file-sharing sites. After initiating over 20,000 lawsuits against sharers of indie movies and other forms of digital media, the RIAA and U.S. Copyright Group, coupled with the hefty fines that usually accompany conviction, seem to have had a deterrent effect on internet users contemplating downloading an illegally shared file. Together with user’s ability to purchase individual tracks instead of entire albums on iTunes (often for as low as $.99 per song) and a similar opportunity to find songs on Napster for $.70-$.80 each, it appears as if the rate of illegal file sharing should soon be on the decrease.

The precedent set by Judge John Lee last week in Illinois that violators of federal copyright law could potentially find themselves paying millions of dollars for their transgression is a strong one that speaks loudly. In comparison to the minimal amount that it costs to acquire a legally distributed video or audio recording, the prospect of being fined such an astronomical amount will likely have a huge effect on those contemplating taking the easy way out and utilizing illegally shared files.

(Dis)Like: Facebook, Censorship, and the First Amendment

The First Amendment to the Constitution protects, among other things, the right of individuals to express themselves. In the hierarchy of protected speech, none is considered more deserving of protection than political speech. Say what you will about the election and the candidates because it is all fair game and it is all protected. Well, protected from governmental interference or censorship, anyway. Once outside of the public arena the protection afforded speech is controlled less by “the marketplace of ideas” and more by the private entity providing the forum.

One week before the 2012 presidential election, Facebook found itself awkwardly at the center of a censorship controversy concerning election memes. According to Slate, Facebook removed a meme posted by a group of anti-Obama Special Ops members on their group page, Special Operations Speaks (SOS). The meme accused Obama of calling on S.E.A.L.s when he needed Osama bin Laden, but claimed that when the S.E.A.L.s called him for backup he denied their request. After posting the meme, Facebook removed it and informed SOS that it was removed for violating terms of service, specifically the statement of rights and responsibilities. SOS re-posted the meme anyway. Facebook responded by not only removing the meme for a second time, but also freezing the SOS account for 24-hours, preventing the group from posting anything further. After conservative website Breitbart.com picked up the story, Facebook released a statement saying that the removal of the meme was not an act of censorship but rather an error on their part. Removing a meme once for violations of terms of service may be an error, but removing it a second time and freezing the poster’s account for 24-hours seems less so. SOS’s page is now up and running again and the meme, along with the story about its removal, has gone viral.

This isn’t the first time that Facebook has been accused of censorship though. Back in May a journalist posted a story on TechCrunch about a blogger’s inability to comment on a Facebook post because his comments were deemed to be “irrelevant or inappropriate.” At that time the inability to post was chalked up to an error in the code that searches for inappropriate comments and prevents them from being posted to Facebook. But while it appears that Facebook is merely trying to prevent violations of their terms of service, many users look upon such preemptive action as censorship by the social networking behemoth. In August 2012, Forbes.com reported an accusation of Facebook censorship, stating that an artist’s work was removed for being too graphic to post on the site (it depicted a “misted” image of a nude woman). Like with the S.E.A.L. meme, Facebook eventually relented and allowed the image to be posted. One Facebook user has gone so far as to document, via a website called FacebookCensorship.com, the instances where Facebook has either inquired about posts or outright prevented him/her from posting content, which includes posts as recent as the end of October 2012.

Though some may be up in arms about how Facebook’s potential censorship of material on their site violates their First Amendment right to free speech, it is wise to remember that the First Amendment only protects individuals from government interference. The Supreme Court has yet to find that private entities, like Facebook or Yahoo!, act like the government when they open their space to individuals to use as public forums for discussion. Until such time as the government sees fit to regulate websites that are the Internet equivalent of the Boston Common or your local town square, the private owners of such sites are free to censor your conduct and speech so long as it may violate their terms of service (which all users agree to abide by in order to access the site).

While it is sad that Facebook seemingly inserted itself into the election less than a week from Election Day by censoring an anti-Obama meme, the company was within their rights as a private entity to do so. Remember, private websites are a bit like the Eagles’ song, Hotel California: you can post your speech anytime you like, but they don’t have to leave it up.

Court Awards Largest Damages Award to Date in Illegal File-Sharing Suit

An Illinois federal court handed down the largest damages award to date this week in a BitTorrent illegal file-sharing case. Judge John Lee ordered Kywan Fisher, of Virginia to pay $1,500,000 in damages to adult entertainment company Flava Works in a default judgment for sharing ten of their movies on BitTorrent. This total, reaching penalties of $150,000 per movie is the maximum statutory damages under U.S. copyright law.

BitTorrent since early 2010 has been the forum through which hundreds of thousands of people have been sued for downloading and sharing copyrighted material. The most well known case involves Voltage Pictures movie studio, which sued more than 27,000 people who allegedly downloaded “The Hurt Locker.” Most cases are typically dismissed or settled, as finding evidence against alleged file sharers is generally challenging. Multiple cases relied on using the IP addresses of alleged users as evidence, however this idea was struck down by a federal judge in May, ruling that an IP address alone was not enough to accuse someone of illegal downloading. The thrust behind this holding is that IP address identifies only the location at which any number of Internet-connected devices may be located. Discovering the identity of the individual associated with the device, i.e. the subscriber to an IP address, does not necessarily reveal the identity of the true defendant, as it could be the subscriber, a member of his family, an employee, neighbor, etc.

The current case avoids this hurdle by presenting additional evidence of encryption codes inserted in the original films that Fisher bought. Flava Works has software that assigns a unique encrypted code to each member of their paid websites, so every time Fisher downloaded a copyrighted video from Flava’s website the encrypted code attached. Flava Works was able to trace the shared illegal copies of the movies back to Fisher, who copied or distributed Flava Works copyrighted property at least ten times, leading to the videos to be infringed or download more than 3,449 times. The user agreement that Fisher signed expressly forbids copying films, which allowed Flava Works to claim willful copyright infringement for 10 titles that Fisher uploaded to BitTorrent. Fisher did not assert any defenses, as he did not appear in court.

Flava Works and other copyright holders involved in BitTorrent illegal file-sharing lawsuits will embrace this surprisingly sizable verdict as a huge win for copyright holders to combat the illegal file-sharing epidemic. It is likely that this case will be widely cited by plaintiffs, especially in settlement letters. Notably this case is different from other cases in that the encryption code adds the extra evidence needed beyond IP addresses, but it also presents more options for the copyright holders and shows how seriously the courts are taking these cases. Due to Fisher’s nonappearance, the judge entered a judgment in favor of the plaintiffs for one million, five hundred thousand dollars, the greatest amount statutorily allowed by copyright laws; however, Fisher will likely attack this judgment collaterally with a jurisdictional argument.

Superman’s Heirs v. DC Comics: who owns The Man of Steel?

Heirs of Superman co-creator Joe Shuster will not be able to recapture the rights to the admirable superhero from DC Comics after a recent decision finding that copyright termination was not applicable because of a 1992 agreement which superseded its 1975 agreement between DC Comics and the co-creators Joe Shuster and Jerry Siegel. In the 1975 agreement, DC Comics agreed to provide lump sums of $75,000 to each co-creator, as well as crediting them for new Superman works, in exchange for the Superman copyrights. It is believed that DC Comics was pressured to enter into this 1975 agreement because in the original 1938 agreement, the co-creators were forced to grant Superman to DC Comics for only $130.

After the death of Schuster in 1992, his siblings Frank and Jean agreed to grant DC Comics the copyrights to Superman as long as DC Comics paid for all of Schuster’s debts, as well as paying Jean $25,000 a year for life. In addition to this deal, Jean has asked DC Comics for additional money in consideration for not reclaiming the rights to Superman. However, on eight separate occasions from 1993 to 2001, DC Comics gave Jean bonuses ranging from $10,000 to $25,000 while noting that it had no legal obligation to do so. To this day, Jean has earned more than $600,000 from DC Comics.

In 2003, Jean’s son Mark attempted to terminate the 1992 agreement by arguing that Schuster’s heirs have the rights to Superman because of the 1976 Copyright Act. Under Section 203 of the Act, authors or their heirs have the right “to terminate grants of copyright assignments and licenses that were made on or after January 1, 1978,” as long as they wait for thirty-five years after the agreement. The rationale behind this act is the belief that artists are usually disadvantaged at the negotiation table because of the lack of leverage they have. To provide relief, the act allows artists and their heirs to revoke past deals in which they deem to be unfair, unreasonable, or unsatisfactory.

Although the act seems to support artists, musicians, and other creators in retaining their rights to their respective copyrights, it is unclear as to whether these contracts may be supplemented, and if it is supplemented, does the date carry-on from the original date or from the new date? It would make sense for the original date of the agreement to carry-on if it is supplemented because it encourages both parties to negotiate; promoting fairness. If courts did not allow parties to supplement their contractual terms, it could substantially burden one party over the other.

Here, in the current case, the court looks at the 1992 contract not as a supplement, but as a new and different contract between Schuster’s heirs and DC Comics, and finds the copyright termination date to apply thirty-five years after 1992. Some may agree to the court’s decision because the agreement involves different parties; Schuster’s heirs instead of Schuster and Siegel. But opponents to the court may argue that the 1992 contract is the same contract as the 1975 agreement because it involves similar terms; DC Comics giving money to those who have the granting rights. But even if the court adopted the opponent’s position, giving Schuster’s heirs the benefit of tacking the thirty-five years at the 1975 contract, it would be unfair for Siegel’s heirs because they did not benefit from the 1992 agreement, nor did they attain special bonuses as did Jean.

A Blessing or a Curse: Microsoft’s New Default “Do Not Track” System

Microsoft’s newest operating software, Windows 8, is scheduled for release to consumers in October. But this time around, Microsoft has changes in place that will affect more than just PC consumers. Internet Explorer Version 10, which will premiere with Windows 8, has the attention of major companies, including Google and Facebook, advertisers, and the average Internet user.

Internet Explorer 10, just as other Internet browsers like Firefox and Safari, will have a “do not track” option for users. This option allows users to choose whether or not they want their online activities to be tracked, documented, and studied by companies that will use the data to tailor advertisements to the user based on their interests, habits, and projected needs. But it is the way Microsoft plans on implementing the “do not track” option that has caused such an upset: in IE 10, the option will be automatically enabled, and the user will have to customize the settings to turn this preference “off” if they wish to allow companies to track their online behavior.

Online advertising has become a $300 billion dollar industry, thanks to its effective ability to target consumers with ads that are relevant to the consumer’s desires. Because of the high-level of tailoring available in online advertising, it has become one of the most popular choices for companies both large and small, as it is cost-efficient. This is all made practical by data exchanges, which target users with cookies. Companies that compile this data and sell it to potential advertisers depend on users not opting out of the tracking system; the less data there is to track and analyze, the less effective their advertising becomes. Most users do not go to the trouble of “activating” the “do not track” option on their browser (figure estimated at 11%), and companies take advantage of this. Companies fear that with a default “do not track” option automatically enabled, even fewer users will go to the trouble of “de-activating” the “do not track” option, and the companies and online advertising will fall apart.

Microsoft is only one piece of the “do not track” puzzle. However, their choice to implement the automatic “do not track” option may begin a sort of domino effect. The FTC has already recommended that all browsers give consumers the “do not track” option; this has caused Google Chrome to just recently add the feature. But with Microsoft’s move, the FTC might see the “do not track” option as not going far enough to protect consumers, and require all browsers to make “do not track” the default setting. Other browsers may simply follow suit in order to retain customers, if consumers are attracted to Microsoft’s “pro-privacy” stand and other browsers need to maintain a competitive edge.

Some enraged data tracking companies are threatening to not honor default “do not track” preferences. The industry is self-regulated, and a user selecting “do not track” only alerts the data companies that the consumer does not wish their activities to be tracked, allowing the companies to decide how to respond. This could lead to lawsuits over what “do not track” actually means, and how these companies can be regulated to properly satisfy consumers who wish to “not be tracked” by default.

If “do not track” becomes the standard default due to competitive forces or mandated by legislation, the effects for the Internet as we know it could be devastating. The bottom would fall out of online advertising, and online companies that make their money solely from advertising could crumble. Websites might then be forced to charge users for access, depriving many of the free services that are currently available, because they have no revenue from advertising. Every site may only allow access after each user has specifically agreed to “opt in” to tracking, causing a slew of complications for users that desire easy-access and legal issues for the site itself.

Or perhaps, consumers will simply take the time to set their preferences to “tracking on,” realizing the benefits that tailored online advertising provides them as well as advertising companies. But it seems unlikely that the average Internet user, influenced by the hype surrounding “pro-privacy,” would go out of his or her way to opt-in to tracking, with slogans of “Big Brother” filling the minds of the masses. “Do not track” legislation, predictably on its way, could prove devastating to the Internet as it works today.

Major Record Company Brings Copyright Action Against Upstart Company Selling Used Digital Music

Photo titled "I love my music!" by Shiv Shankar Menon Palat

Last month, EMI, a top record company, alleged that ReDigi, an upstart company that sells used digital music, creates unauthorized copies of its songs through the operation of its business. EMI brought a copyright complaint against ReDigi, asking the United States District Court for a preliminary injunction to force ReDigi to shut down its business pending the court proceedings.

While the judge denied EMI’s request for the preliminary injunction, the resolution of the case will likely answer many of the questions facing the digital age. Some of the issues raised by the case include the meaning of “copy” for copyright purposes and whether transmitting copies of digital material count as a public performance. One of the biggest issues brought up with this case are what property rights does a purchaser of digital music through a source like ITunes really have?

Back before digital music existed through purchasing sites such as ITunes, people bought music the old-fashioned way—by going to the music store and purchasing a record, tape, or CD. Once someone purchased the music album, that particular copy was their album. The person could not duplicate the album and sell copies, but he or she could use it for a year and sell it to another individual or to a music store specializing in used music albums under the First Sale Doctrine.

ReDigi claims it does the same thing with digital music, since it scans the seller’s hard-drive and deletes the music file once the transaction of sale is complete. This act makes it impossible for the song initially purchased from ITunes and sold to ReDigi to be duplicated or transferred. Is this not the same thing as selling your physical album for some cash? Something the court may have to determine is whether ReDigi has really taken away the rights of the digital music holder when it deletes the song from their hard-drive, or if in this advanced technological age the seller could in actuality retain access; posing problems for companies like EMI.

Supreme Court Preview – Golan v. Holder: Can Congress Remove Works from the Public Domain?

On Wednesday, October 5th, the Supreme Court heard arguments for Golan v. Holder, to decide whether Article I, § 8, cl. 8 of the Constitution prohibits Congress from taking works out of the public domain. This clause, known as the Progress Clause, exists to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Essentially, the Court’s task is to decide whether Congress can restore copyright protection for works whose copyright protection has already expired. For the purposes of Golan, analyzing the phrase “for limited times” will be particularly important to the Court as they discuss whether that limited time status is revocable by Congress for certain works—specifically foreign works.

U.S. copyright laws have always been formulated to accord with the time limitation mandated by the Progress Clause. Originally, or at least commencing with the 1909 Act, copyrighted works, so long as they complied with the requirements of notice and registration, were granted with a twenty-eight year period of copyrightability, which was renewable for a subsequent term of equal duration. This Act was then superseded by the Copyright Act of 1976. Regarding the term of protection under the 1976 Act, works created prior to 1976 received an extension amounting to fifty plus the life of the author. Subsequently, the Berne Convention was held, and in 1988, a two-part implementation took place. First, signatories to the Act are required to recognize the works of authors from other signatory countries, and second, all works (with an exception) shall have copyright protection for at least fifty years after the author’s death. It was not until 1998 and the enactment of the Copyright Term Extension Act (CTEA), more affectionately dubbed the “Sonny Bono Bonus Act,” that copyright duration as it exists today was implemented. The Act extended the duration of a copyright to the life of the author plus seventy years. Additionally, it stipulated that any works created in or after 1923 were, as they were still under copyright protection in 1998, were granted additional protection until 2019 or later. As a matter of course, since works created prior to January 1, 1978 (the triggering date for the 1976 Act) would naturally lapse into the public domain, the 1998 Act included that such works were to remain protected until 2047. Often the 1998 Act is called the Mickey Mouse Extension Act, because it was largely believed that the extension was granted in order to postpone the date at which copyright protection for Mickey Mouse would enter the public domain. And it is here that the issues in Golan arose.

Golan is irrevocably tied to another Supreme Court case of note, Eldred v. Ashcroft, decided in 2003. In Eldred, the plaintiff operated a website that displayed what new works entering the public domain were every year. The 1998 Act effectively put Eldred out of business, however, since per the Act, the next time any works will enter the public domain is 2019; Eldred would have to go on hiatus for quite some time before his website could finally be updated. Ultimately, the Court upheld the constitutionality of the CTEA. Represented by copyright advocate and champion Lawrence Lessig, Eldred made several arguments essentially claiming that this extension was just one of many the public could expect in order to prevent certain works from ever lapsing into the public domain. Lessig argued that the extension violated the limited nature of the Progress Clause, and invariably became unlimited. The solicitor general, arguing on behalf of the attorney general, countered by explaining that the very act of setting a time limit—seventy years plus the life of the author—was inherently limited because it set a hard date at which a copyrighted work would no longer be protected. The Court agreed with this argument, and others, and upheld the constitutionality of the Act 7-2. The ultimate impact of Eldred was to uphold the notion that Congress, empowered through the Progress Clause, is the appropriate body for setting the relevant limit.

Returning to Golan, the result of Eldred initially doomed Golan; the U.S. District Court for the District of Colorado dismissed the primary issue of whether the 1998 Act violated the limited time element of the Progress Clause. That case, originally under the name Golan v. Ashcroft in accordance with the fact that John Ashcroft was the attorney general at the time of suit, morphed into Golan v. Holder, as Attorney General Eric Holder was attorney general in 2009 when the suit was brought again. Under this new title, a new Act was brought under scrutiny: the 1994 Uruguay Rounds Agreement Act (URAA). This Act relies heavily on the restoration provisions of the Berne Convention. Under the 1988 Act, foreign works still copyrighted in their source country but that were not in the United States were restored to copyright protection in the U.S. But, in a twist, the United States refused to sign on to this particular aspect of the Berne Convention, and the criticism it faced as a result of this denouncement was remedied by the passing of the URAA. The relevant provision of the URAA restored copyright protection to foreign works that were previously not copyrighted in the United States. It is this provision of the URAA— in addition to the restoration provisions of the CTEA—with which Golan took issue.

As Eldred did for the CTEA, Golan challenges that the URAA violates the limitedness of copyright law by restoring certain foreign works to copyright protection. This argument was not persuasive at the district court level, nor at the in the Appeals Court for the Tenth Circuit. The Supreme Court then granted certiorari on March 7, 2011 for review in its upcoming term.

While oral arguments have been made, the outcome of this case in the Supreme Court could mean many things for the right of the public to copy works that have entered the public domain by virtue of the lapse of their copyright protection. Some argue that withdrawing certain works from the public domain will stifle creativity and discourage the production of new works. Preserving Congress’s right to restore copyright protection to works of its choosing opens up the possibility for doing so for unlimited works. Perhaps if Congress deems it necessary in the future, it will restore copyright protection to works it decides are worthy of continued protection. Advocates argue that the concept of a free and open public commons, one in which artists are free to draw on other works for inspiration, is threatened by a shrinking public domain. It is believed that focusing the Court’s attention on the integrity of the public domain, indeed, the public domain which allows U.S. artists and authors to use the foreign works at issue as a foundation for their own work, is at risk.

Conversely, the government could potentially argue that this practice of restoring copyright protection to certain works is a prerogative Congress has exercised before. The natural byproduct of passing new copyright laws extended copyright protection to works that would have lapsed by for the extension. For example, works created prior to 1978 were gifted with additional years of protection; those who sought to rely on the lapsing of the copyright for those works into the public domain were, at that time, disappointed, but the constitutionality of the 1978 was ultimately upheld. The same could be said for the extensions granted under Berne and the CETA, and therefore, the government could argue, for the sake of consistency, the Court should hold that the extensions under the URAA are similarly constitutional.

This case could finally settle the right of Congress to exclusively control the setting of the limits for copyrighted works. So long as there is a limit, it is the privilege of Congress to set that limit within reason. And in light of the rapidity of technological advancements and the impact that invariably has on the creation of new types of works, not allowing Congress to exclusively control the setting of limits certainly emphasizes a clear bottom line: those who believe the creative commons should be inherently public are hereby being disabused of that notion. In other words, copyright protection persists for the purpose of protecting the rights of artists and authors to continue to create without the threat of copying, which is the basic purpose of the Progress Clause. It will be interesting to see which side prevails, and whether the Court opts to sanctify the superiority of Congress in this matter, or instead upholds the accessibility of knowledge and ideas.

For an analysis of the procedural history of Golan v. Holder, see “Today Congress Giveth, Tomorrow They Taketh Away” by Charles Glyman.

Supreme Court Says "GAME OVER" to Law Banning Minors from Purchasing Violent Video Games

Photo titled "Supreme Court Violent Videogame Trial Courtroom Drawings" courtesy of Zero-Lives on Flickr

This summer, the United States Supreme Court held that a California statute banning the sale or rental of “violent video games” to minors was unconstitutional. Justice Scalia, writing for the majority, held that video games qualified for First Amendment protection, that violent video games were not excluded from protection based on the Court’s obscenity jurisprudence, that violent video games were not unique so as to be their own category of unprotected speech, and that the California statute failed to meet strict scrutiny. Justice Alito and the Chief Justice concurred, with Justices Thomas and Breyer filing separate dissents.

The court briefly addressed whether video games as a technological medium qualified as speech protected under the First Amendment. Comparing video games to books, plays, and movies, the Court quickly held that video games were a protected form of speech.

The Court then addressed the issue of whether violent video games were considered obscenity, a form of non-protected speech. Focusing on the Court’s obscenity jurisprudence, Justice Scalia aptly noted that obscenity had been limited to certain sexually explicit content. The Court has had the opportunity to expand this definition on several occasions, including to violence, most recently in U.S. v. Stevens, but has declined to do so.

In holding that violent video games were not obscenity, the Court next addressed whether violent video games should be their own category of non-protected speech. Leaning on his originalist tendencies, Justice Scalia recounted the historical absence of banning minors from accessing violent content. The Court referenced the violence portrayed in Grimm’s Fairy Tales, Homer’s Odyssey, and Dante’s Inferno—stories that are currently, and historically have been, read to minors. Citing this historical exposure to violence, the Court found no reason to carve out a new exception for violent video games from the First Amendment.

At that point, the Court turned to a traditional strict scrutiny analysis, reiterating that a restriction of protected speech was presumptively invalid unless the state could demonstrate that the statute was narrowly tailored to serve a compelling government interest. Justice Scalia was quick to point to the lack of a causal link between minors playing violent video games and harm to minors. Without an actual harm that needed preventing, the Court logically held that the state had no compelling interest, and therefore the statute was unconstitutional.

The Court’s decision in Brown v. EMA is consistent with their First Amendment jurisprudence and is a victory for free speech, minors, and the video game industry. A full copy of the Court’s decision may be found here.

Reforming R&D Tax Incentives: Do Video Games Deserve Special Treatment?

Image Courtesy of Wikimedia

In September, the New York Times reported that video game designers have been taking advantage of tax breaks meant for other industries, often under terms more favorable than those received by many of the originally intended recipients. Electronic Arts (EA), for example, paid $98 million on $1.2 billion of operating profits over the last five years—an effective corporate tax rate of just under 8.2%. In addition, EA has set up off shore subsidiaries in tax havens and successfully lobbied Congress for new tax breaks.

Firms claiming the federal R&D tax credit elect to receive either a credit for 20% of their research costs above a base amount, or 14% of the excess above the average of the last three years’ R&D spending. I.R.C. §41. Inventive procurement of R&D tax credits has become a lucrative business for the accountants and attorneys who assist firms in obtaining these tax breaks. AlliantGroup, for example, specializes in helping clients obtain tax incentives, and claims credit for helping its clients secure over $1 billion in R&D tax incentives to date.

Claiming the R&D tax credit has become more difficult since its heyday in the 1980s, the NY Times writes, “the credit was being claimed by businesses with little technological background — fast-food restaurants, hair stylists and fashion designers.” Marketing and social science research are no longer eligible for the R&D tax credit. But previous plans to further restrict the credit to basic research have been as poorly designed as the original credit. The Clinton administration proposed restricting the credit to research producing an “actual innovation,” but the Bush administration dropped the proposal as unenforceable.

This difficulty of the enforcement rationale, however, is specious. According to Alliantgroup, more than $5 billion in R&D tax credits are given out annually. Given the amount of money at stake, significant enforcement efforts are warranted. The entire budget of the US Patent and Trademark Office is only about half the amount spent on R&D tax credits. The cost of determining the novelty for products supposedly qualifying for R&D tax credits would be worthwhile if it brought in more revenue by ending frivolous tax credits.

The actual cost, however, would be much lower than the cost of de novo assessments of novelty, as the IRS could treat R&D tax credits as it does the rest of the tax code: grant the credit, only questioning it if the application raises red flags or is part of a routine audit. The threat of being one of those randomly chosen for an audit would ensure substantial honesty from most taxpayers. In the event of an audit, a patent could be accepted as incontrovertible evidence of an “actual innovation.” An innovation subject to trade secret protection would still be eligible for the tax credit as long as the company could prove to auditors that such an innovation existed.

The real problem with the “actual innovation” requirement is that it would increase the tax burden on companies which engage in significant, valuable, but unsuccessful research. Ninety percent of new drugs, for example, fail in clinical trials. Successful research is already incentivized through market forces. There is no need to convince companies to engage in research they know will be successful. The real benefit derived from R&D tax credits is the mitigation of risks involved in R&D expenditures, by reducing total losses, so research failures must be subsidized along with successes.

Alternatively, Congress could simply make a political judgment about which industries or types of research create enough public benefit to deserve R&D tax credits. When video game developers change a few lines of code to create version 10 of their game are the really conducting “research” on something that provides public benefits beyond what the market can reward adequately? Alliantgroup argues that video games do produce public benefits, such as the use of some video games in training military personnel. But this benefit is rewarded by lucrative defense contracts. The best rationale Electronic Arts can come up with is that it donates some games to charity. This, of courses, is already rewarded by a separate tax write-off.

Making video games does create jobs, just like every industry. But making video games is profitable. There is no evidence that game producers would choose to stop making potentially profitable investments if they stopped receiving favorable tax treatment. And even if deprived of the R&D credit, they would still be eligible for the economic development credits given to every industry. R&D tax credits will continue to be just one more government handout for the already well off, unless they are restricted to research which has public value beyond what the market will reward. Those who advocate preserving or expanding the R&D tax credit for video game producers have failed to make a convincing case that there is a public benefit.

Sony’s Decree: Goliath to Fight One David at a Time

Image by FallingFifth Comics

The target of public disdain over its privacy failings just months ago, Sony is again finding itself in the crosshairs of consumer activists and its large user base. Recently, Sony amended its Terms of Service and User Agreement to exclude user participation in any class-action lawsuits against it or its entities unless users submitted opt-out declarations. Using the class-action waiver to push users into individualized arbitration, Sony should escape the majority of future consumer suits derived from its Playstation, Music Unlimited, and Video Unlimited (“Playstation Network”) product lines, significantly reducing its legal exposure in one fell swoop.

Sony finds itself on firm legal footing, and its decision to amend its Terms of Service cannot be said to have been unexpected. In April, 2010, The Supreme Court upheld a contractual clause precluding class action attack in AT&T Mobility v. Concepcion. The court went on to reject nonconsensual class arbitration, finding that it defeated the purposes of arbitration and federal law. Following its decision, large companies were expected to begin implementing similar class-action-defeating clauses into their own contracts.

Sony’s new user agreement requires individuals with disputes to utilize individualized arbitration. Arbitration clauses, of course, are matters of contract and are enforced according to their terms. Having agreed to the new terms, users of the affected product lines are very much bound by the agreement. Defeating the arbitration terms would require a showing of some traditional contract defense, including duress and unconscionability, and seem unlikely given the factual circumstances.

Also interesting is the amendment’s timing. What is clear is that Sony’s decision was decidedly future-oriented—it will not escape the class action suits that were filed in April, in response to its large-scale security breaches. Given Sony’s demonstrated exposure to network attack, however, one would be justified in questioning the urgency and nature of the change. Rather than fixing its extensive network flaws, Sony appears to have undertaken a rather artful shortcut—shielding itself from punishment should such problems occur again.

Facebook’s Open Graph API - Be Afraid or Be Very Afraid?

Illustration by Hank Grebe

Mark Zuckerberg unveiled the next generation of Facebook’s Open Graph API at the F8 conference in San Francisco on Thursday, September 22nd. The updated protocol allows third party applications to more easily utilize Facebook users’ data. The goal is to encourage users to share increasingly dynamic content more frequently. A simple example of the API in action is the inclusion of a Like button on a webpage – when a visitor clicks the Like button that information is recorded in that user’s Facebook feed.

The new version of Open Graph “allows apps to model user activities based on actions and objects.” Eventually, the old-fashioned (ha!) Like button will be supplemented with a number of other verb choices. Thus, you can receive news by emulating what your friends are reading on Yahoo! News, be exposed to new music by examining what your friends are listening to on Spotify, or challenge yourself by running the same route as your friend that uses a Nike Running application.

As happens pretty much any time Facebook changes their site in a way that implicates privacy concerns, a backlash is building. Critics’ primary concern: the availability of data to application developers for more than 24 hours, strikes me as fairly harmless considering that many applications previously circumvented this restriction anyway. Other concerns focus on the fact that Facebook has a variety of new partners that automatically fall under the ‘Instant Personalization’ category and automatically ‘personalize the experience’ for you. In other words, new users have to opt out of in order to avoid sharing information that they might not otherwise want to share by using these applications. However, all of the Open Graph features can be easily disabled.

So are there any laws in the United States that will govern Facebook’s conduct when they roll out new functionality with respect to these privacy concerns? Well, not really; not any comprehensive ones, at least. The United States has taken a very pointed approach to regulating privacy issues, addressing privacy only certain specific instances such as HIPAA (Health Information), Gramm-Leach-Bliley (Financial Information), or FERPA (Educational Records). This is to be contrasted with the European (most notably French) approach to privacy regulation where privacy is implicit in the constitution. Social networking sights such as Facebook and Google have found themselves more frequently arguing privacy issues in European states. So while we are largely at the mercy of the social networking industry giants, we can take some comfort stateside in the fact that many of these concerns are mitigated by the market forces imposed on the companies because they do not want to alienate the user base.

One last point that all these Facebook shenanigans got me thinking about – are the developers of these applications adequately protecting their copyrights? Facebook encourages independent third-party development of integrated applications. For that matter, what about users that are, in addition to just going around Liking things, generating a wide variety of copyrightable material in the form of photos, blog posts, and music? If they’re not – they will be, as new tools are popping up to facilitate this protection. The website Myows provides free tools to manage your copyrightable works and to build a case for infringement. In their own words, “Myows offers a professional one-stop copyright management solution from registration through to issuing take-down notices.” Very cool. The website DepotCode is an alternate site that provides similar tools for managing and proving copyrights in source code.

BitTorrent Pirates, Copyright Troll Lawsuits, and the Forthcoming Congressional Response

Imagine by: Cyberspace Law and Policy Centre, University of New South Wales

BitTorrent has become the tool of choice for Internet users sharing digital media. BitTorrent is a peer-to-peer file sharing protocol under which users can access the files shared on others’ computers. The genius of the technology as compared to pre-existing P2P technologies is that it allows users to “swarm” connections, i.e., upload and download pieces of large files from multiple sources at once. The BitTorrent protocol was first released in 2001 and use of the tool has increased steadily over the last decade – with over one hundred million active users of the technology and more arriving daily. This army of users is, wittingly or unwittingly, often guilty of violating the rights of copyright holders.

Needless to say, most media industries that rely on traditional distribution mechanisms are in no way “cool” with this latest wave of file-sharing technology and its tendency to enable copyright infringement. In an attempt to recoup some of the losses that they are incurring from pirates, several companies have enlisted the help of lawyers to churn out massive John Doe lawsuits. In the face of a threatening cease and desist letter (that notes the possibility of $150,000 in damages per download) the suspected infringer is urged to settle. The superficial nature of these lawsuits has earned the firms that engage in this practice the not-so-endearing term “copyright troll”. Corynne McSherry, intellectual property director at the Electronic Frontier Foundation described the practice as “a dragnet approach to litigation.”

One prominent Washington D.C. law firm calling itself the U.S. Copyright Group sued 25,000 users for downloading the movie “The Hurt Locker” in April of 2011. Jeffrey Weaver, head of the U.S. Copyright Group described the approach of his group: “We’re creating a revenue stream and monetizing the equivalent of an alternative distribution channel.” Yikes. Many of The Hurt Locker suits were dropped because of a lack of personal jurisdiction. Another massive lawsuit campaign took place over infringement on The Expendables (do you remember this incredible cinematic achievement?). 70% of the profits from these settlement shakedowns go to the lawyers, with only 30% returning to the rights holders. So at least the lawyers are happy.

More of these lawsuits are coming down the pike (for a weekly update, see http://story.albuquerqueexpress.com/index.php/ct/9/cid/63e88d54af0cf473/id/46388238/). The best way for BitTorrent users to avoid getting sued is not to download or share any copyrighted material- i.e., only share/download files 1) that are in the public domain, 2) for which you have permission to share, or 3) that are made available under pro-sharing licenses. The Electronic Frontier Foundation provides advice on what to do in the event that a cease and desist letter is received.

Meanwhile, Congress is spinning its wheels once again to create new legislation providing additional enforcement mechanisms for the rights holders. Senator Leahy’s proposed Protect IP Act is the latest attempt; many are critical of the bill’s tendency to inhibit technological innovation.

The digital piracy problem has, to this point, been unsolvable. The media establishment and Congress’s responses over the last decade feels a lot like a rearranging deck chairs. Traditional business models that create revenue streams based upon their pseudo-property rights are opposed to the very concept of the Internet as a tool for the open exchange of information. Whether the tool in question is Napster, YouTube, Google Books, BitTorrent, or some unforeseen, yet-to-be-invented piece of technology, we can be sure the opposition from IP rights holders will continue.

A Fashion Fiasco

Photo By: ChristopherMacsurak

Hollywood actresses spend thousands of dollars on couture dresses for the Academy Awards. The designers who craft these exquisite gowns spend hours of time and bundles of money to adorn such fashion-forward actresses. Yet in minutes of stepping on the red carpet, individuals are sketching these designs with plans to recreate a cheaper version of the couture for the mass-market. With the rapid use of technology, designs from runway shows in Paris and Milan are being recreated overnight and are shown in stores, such as Forever 21, in the United States within weeks. The quick snap of a camera and the instant upload to a computer can turn a couture design into a cheap knock-off.

Currently, trade dress law and policy does not cover the design of a dress but rather covers only the look and feel of the article. In the basis for a Supreme Court case, Samara designed and manufactured children’s clothing. Wal-Mart sold knock-offs or copies of these designs and generated approximately $1.5 million in gross profits. In Wal-Mart v. Samara, 529 U.S. 205 (2000), the Supreme Court held that clothing is product design and therefore secondary meaning is needed.

Similarly, copyright law doesn’t cover the overall design of a dress but it does cover a pattern. Specifically, copyright law covers the lace pattern of a wedding dress but does not extend to the wedding dress as a whole. Over the past four years, Representatives have introduced design piracy legislation into Congress only to have it die in committee hearings before reaching a vote.

Along with maintaining creativity, designers must endure the push and pull nature between copyright and trade dress law while searching for available protections for their designs. With the scarce options of intellectual property remedies for designers, design pirates are monetarily capitalizing on a designer’s creation and are usurping their creative marrow.

The question left for designers is whether the fate of their protective remedies is left with Congress or with the courts. Moreover, if either of those routes fail, then will designers be left with parsing the intellectual property principles of copyright and trade dress to protect specific aspects of their design?