Lecture 4 Internet Copyright Outline Statutory interpretation The

Lecture 4: Internet Copyright

Outline • Statutory interpretation: The Tasini Case • Digital Millennium Copyright Act – De. CSS • Internet copyright cases • Napster issues • Digital watermarking • International copyright

Statutory Interpretation • Technology can outpace the language of statutes • Courts must determine the meaning of statutes in new fact situations • Principles of statutory interpretation: – If the statute is unambiguous, it must be applied literally – If it is ambiguous, determine legislative intent • Look at transcripts of hearings! – Every word matters – Statutory Construction Act, 1 Pa. C. S. § 1921 – Particular governs over the general – Inconsistency: later clause (by date or position) wins!

Ejusdem Generis (“of the same kind”) • People v. Bugaiski, Mich. App. No. 194788 (6/17/97). Bugaiski shot a dog he claimed was attacking his own dog. Criminal prosecution under the dog law of 1919. Defenses: – “Any person. . . may kill any dog which he sees in the act of pursuing, worrying, or wounding any livestock or poultry or attacking persons, and there shall be no liability on such person, in damages or otherwise, for such killing. ” – “Livestock” means horses, stallions, colts, geldings, mares, sheep, rams, lambs, bullocks, steers, cows, calves, mules, jacks, jennets, burros, goats, kids and swine, and fur-bearing animals being raised in captivity. • Bugaiski claimed his own dog was livestock since it was a “furbearing animal raised in captivity. ” • No. Under ejusdem generis only animals “of the same kind” as those listed are included. Prosecution can proceed.

New York Times Co. v. Tasini, 533 U. S. 483 (2001) • Times paid freelance writers for stories, then later sold copies of the articles as part of an online database for a fee. • The writers sued, claiming copyright infringement. • “In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of [1] that particular collective work, [2] any revision of that collective work, and [3] any later collective work in the same series. ” 17 U. S. C. 201(c). • The Times claimed that the Internet copy was a “revision” under the statute. • District court agreed. Reversed on appeal. Supreme Court affirmed June 25, 2001 • Ejusdem generis says no. Clause 2 must be interpreted in the context of clauses 1 and 3, which set the upper and lower limits of the right. Use must be of the same kind, not unrestricted use.

Digital Millennium Copyright Act • Copyright Act amendments passed in 1998: – Circumvention of copy protection mechanisms – Copyright Management Information (CMI) – Limited Liability of Online Service Providers (OSPs) • Penalty: – First offense: $500 K + 5 yrs. – Second offense: $1 M + 10 yrs.

Liability of Service Providers • Service provider: “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received. ” • Transitory digital network communications • System caching • Information residing on systems at the direction of users

Liability of Service Providers • Information residing on systems at the direction of users. SP has no liability if: – No knowledge of infringement – No knowledge of facts from which infringement is apparent – After obtaining knowledge, acts expeditiously to remove infringing content – Does not receive direct financial benefit from the infringement – Has designated an agent to receive notification of infringement • Take-down provision – No liability for removing material claimed to be infringing 17 U. S. C. § 512

Liability of Service Providers • Information location tools. SP has no liability for “referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link” under same conditions as on previous slide • Subpoena to identify infringer – “A copyright owner. . . may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer. ” 17 U. S. C. § 512

Copyright Protection Circumvention • Applies to devices that – are primarily designed or produced for circumventing; – have only a limited commercially significant purpose or use other than to circumvent; – or are marketed for use in circumventing • Exceptions – – – Reverse engineering Law enforcement Encryption research Protection of minors Protection of personally identifying information 17 U. S. C. § 1201

The De. CSS Cases • Hollywood movies are issued on DVD in encrypted form using a system called CSS (Content Scrambling System) • Movies can only be played on “authorized” players (ones licensed to use CSS. Authorized players cannot copy DVDs • A teenager in Norway (Jon Johansen) figured out how to decrypt DVDs. He created a program called De. CSS that makes unencrypted disk files from DVDs • The unencrypted files can be compressed using a pirated MPEG codec known as Div. X, exchanged over the Internet and played without a DVD player • Eric Corley, a New York journalist, posted the source code for De. CSS on his website, 2600. com and linked to a download site giving an executable program and decryption instructions • The movie industry sued Corley in Federal Court (Southern District of New York) under the Digital Millennium Copyright Act (first court test of the anticircumvention provisions)

De. CSS Issues • Is De. CSS a “circumvention device”? • Does Corley have a First Amendment right (free speech) to post De. CSS code • Is Corley a contributory infringer of copyright by providing De. CSS? • Is linking to a copy of the code different from posting the code? • Every computer program is a number. Does this make printing the number corresponding to De. CSS illegal? • Does restricting dissemination of computer source code inhibit scientific research? See David Touretzky’s site. DO NOT download or run De. CSS.

Universal City Studios et al. v. Reimerdes (S. D. N. Y. 2000) • • • HELD, DMCA is not unconstitutional De. CSS is a circumvention device Corley is liable for violations of the DMCA Corley is enjoined from posting De. CSS Corley may not link to sites where De. CSS is available

Extraterritoriality • General principle: copyright law applies only to acts occurring within the borders of a country • i. Crave. TV case : Canadian corporation received U. S. TV broadcast signals in Canada containing content copyrighted in the US • More than 50% of the users were in the U. S. • U. S. copyright owners sued in Pittsburgh • Is this infringement? Who is the infringer? • See Twentieth Century Fox Film Corp. et al. v. i. Crave. TV et al. , (W. D. Pa. Nos. 00 -0120, 00 -0121, 2000 U. S. Dist. LEXIS 1013)

Copyright • Is downloading a web page an infringement? – “Practical equivalent of reading”, (N. D. Cal. ) 1995 – Fair use? Better: implied license • MP 3, Napster, Gnutella – List of thieves? Contributory infringement • Databases, lists of links • Graphic files – Morphing, clipping • Digital watermarks

Pollstar, Inc. v. Gigmania (E. D. Cal. 2000) • • Pollstar is an online index of concerts Gigmania copied the Pollstar content onto its own site Pollstar sued for copyright infringement Gigmania cites Feist, claiming the concert listings have no originality • Pollstar says concert listings are not like the white pages. They have time value from being up-to-date • No court has yet held that such information is protectible. Idea: time value does not make originality • [Gigmania was trapped by deliberate false information posted on Pollstar]

Current Cases • Recording Industry Association of America v. MP 3. com (S. D. N. Y. , filed Jan. 21, 2000). Claims MP 3. com service allowing users to access online copies of music they have purchased is infringement because MP 3. com had no license to put recordings in its online archive. MP 3. com claims that copies are for personal use only and no license is required. • RIAA v. Napster (N. D. Cal. , filed Dec. 7, 1999). Injunction against company that provides search tool for locating MP 3 music files on the Internet. Defendant does not provide or host music files itself, but suit alleges its service facilitates infringement.

Current Cases • e. Bay v. Bidder's Edge (N. D. Cal. , filed Dec. 10, 1999). Auction site sued aggregator of auction data, alleging its tools to access e. Bay's site and display information about items for auction there violate e. Bay's intellectual property rights. • Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc. , Case No. 2: 99 -CV-808 C (C. D. Utah, Dec. 6, 1999). “Linking Liability. ” In a case of first impression, District Court granted the IRI a preliminary injunction against critics of the Mormon Church finding that the defendants had engaged in contributory copyright infringement for posting an e-mail to their site which contained three links to web sites that they knew, or should have known, contained infringing copies of the Church Handbook of Instructions.

Current Cases • Los Angeles Times et al v. Free. Republic. com (S. D. Cal. , Nov. 8, 1999). Defendant republished news stories to solicit comments on media coverage. Stories are reprinted with disclaimer that they are copyrighted material. Newspapers sued for copyright infringement. Court rejected fair use defense • Realtor Association of Greater For Lauderdale v. Property America Corp. , filed 2/99: Copyright infringement suit. Plaintiffs allege that defendants are using, without permission, multiple listing service information on defendant's Web site. Defendant argues no copyright violation because the plaintiff does not own the facts about the properties.

Piracy Indexes • Streambox. com • MP 3, MP 3 fiend, MP 3 leech, MP 3 voyeur • Napster, i. Napster, Knapster, Macster, Rapster • Spin. Frenzy, Swap. Station • Cute. MX • Scour. com, i. Mesh • Gnutella (+ 37 clones) • Freenet • Zeropaid. com

Copyright • Problem: rampant piracy – Music – Movies – e. Books – Software • Example: Covers Archive • Cause: zero-cost copying (1/4 cent) + no viable micropayment mechanism • Where does it end?

Copy Protection • Prevent copying in the first place – Copy protection systems – Secure browsers • Make sure it’s paid for – IP rights management systems • Detect copying – Digital watermarking – Cybersurveillance

Digital Watermarks + Watermark Original image 46 -840 ECOMMERCE LAW AND REGULATION Watermarked image SPRING 2002 COPYRIGHT © 2002 MICHAEL I. SHAMOS

Digital Watermarks Most transformations do not affect or obliterate a spread-sprectrum watermark A big user: Corbis 46 -840 ECOMMERCE LAW AND REGULATION SPRING 2002 COPYRIGHT © 2002 MICHAEL I. SHAMOS

Cybersurveillance Countermeasure: When Cyveillance visits your site, deliver sanitized pages! SOURCE: CYVEILLANCE

Why Digital Rights Management Must Fail • All senses are analog • Media and the Internet are digital • Copy protection systems ultimately fail because – Recording medium is digital – Must be converted to analog for human sensation – The analog signal can be copied and re-digitized • (Fails to stop piracy; succeeds at generating revenue)

International Copyright • Fundamental rule: “national treatment” • Countries that have signed an international convention (e. g. International Copyright Convention, Berne Convention) • Treat foreigners as their own nationals for copyright purposes • Problem: cost of enforcement, differing rights • World Intellectual Property Organization

International Law • Example: European law recognizes “moral rights” of authors: – right of integrity (protects against mutilation or destruction) – right of attribution (“paternité” - right to be given credit for one's work, and avoid credit for a work one did not create) – right of withdrawal (“retrait” - authority to remove one's works from public circulation) – droit de suite (the right to collect resale royalties)

Q&A 46 -840 ECOMMERCE LAW AND REGULATION SPRING 2002 COPYRIGHT © 2002 MICHAEL I. SHAMOS