Lecture 7 Internet Copyright Outline Digital Millennium Copyright

Lecture 7: Internet Copyright

Outline • Digital Millennium Copyright Act – De. CSS • Internet copyright cases • Napster issues • Digital watermarking • International copyright

Effect of the Internet • Copyright used to be a matter for publishers • Now everyone can be a publisher • Reproducing works used to be expensive • Now it’s cheap, almost zero cost • Carrying around works used to be difficult • Now it’s easy CREATIVE NOMAD 30 GB JUKEBOX PRICE: $200 HOLDS 8000 SONGS 2. 5¢ PER SONG

Effect of the Internet • Everything is digital – – Text, Music Photographs Movies, Video Animation • Broadband carries huge amounts of copyrighted content into homes and office • High-speed wireless brings more content • National borders are meaningless

Napster A A searches F -- A downloads F -- B shares F B Napster -- Napster B HAS FILE F F IS OFTEN DIGITAL MUSIC B IS WILLING TO “SHARE” THE FILE A HAS FILES TO SHARE ALSO A B F SOURCE: MICHAL FELDMAN 45 -848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Napster A A searches F -- A downloads F -- B shares F B Napster -- Napster File index A B A & B JOIN NAPSTER A & B TELL NAPSTER ABOUT THEIR FILES NAPSTER MAINTAINS INDEXES F SOURCE: MICHAL FELDMAN 45 -848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Napster A A searches F -- A downloads F -- B shares F B Napster -- Napster A ASKS NAPSTER: WHO HAS FILE F? Where is F? A B F SOURCE: MICHAL FELDMAN 45 -848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Napster A A searches F -- A downloads F -- B shares F B Napster -- Napster NAPSTER SAYS B HAS FILE F Where is F? B has F A B F SOURCE: MICHAL FELDMAN 45 -848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Napster A A searches F -- A downloads F -- B shares F B Napster -- Napster A ASKS B TO SEND FILE F Where is F? B has F A Get F F B F SOURCE: MICHAL FELDMAN 45 -848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

A&M Records, Inc. v. Napster, Inc. , 114 F. Supp. 2 d 896 (N. D. Cal. 2000) aff’d 239 F. 3 d 1004 (9 th Cir. 2001), aff’d after remand, 284 F. 3 d 1091 (9 th Cir. 2002) • Napster distributed file-sharing software and maintained an index of MP 3 music available on various PCs • Music files were not stored on Napster servers • Napster knew that large-scale distribution of copyrighted songs was taking place • Napster never copied or distributed one song • Napster is useful for many legal purposes • A&M Records wanted an injunction • Held, Napster users engage in direct copyright infringement • Held, Napster is a contributory infringer. Injunction granted

UMG Recordings, Inc. v. MP 3. com, Inc. , 92 F. Supp. 2 d 349 (S. D. N. Y. 2000) • MP 3. com maintained a database of MP 3 s of copyrighted music constructed from tens of thousands of CDs • Subscribers could access the MP 3 s from anywhere in the world over the net but first: – Had to prove they already owned the CD by insterting it into their CD reader for a few seconds; or – Had to buy the CD from an MP 3. com affiliate • UMG, a copyright owner, sued for infringement • MP 3. com argued fair use. No charge for subscriptions; users already owned the CDs • “The complex marvels of cyberspatial communication may create difficult legal issues; but not in this case. Defendant's infringement of plaintiff's copyrights is clear. ”

Ka. Zaa A S 2 S 1 A searches F -- A downloads F -- B shares F B S 1 S 2 -- BASED ON “SUPERNODES” SUPERNODES HAVE HIGH BANDWIDTH ANYONE CAN BE A SUPERNODES ARE NOT CONTROLLED BY KAZAA A SOURCE: MICHAL FELDMAN 45 -848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Ka. Zaa A S 2 S 1 -- A downloads F -- B shares F B F A A searches F B S 1 S 2 -- A & B DOWNLOAD Ka. Zaa SOFTWARE A SENDS ITS SUPERNODE HASHED FILENAMES B SENDS ITS SUPERNODE HASHED FILENAMES SUPERNODES DO NOT KNOW ACTUAL FILENAMES SOURCE: MICHAL FELDMAN 45 -848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Ka. Zaa A S 2 S 1 A searches F -- A downloads F -- B shares F B B S 1 S 2 -- A ASKS ITS SUPERNODE: WHO HAS F? F QUERY A SOURCE: MICHAL FELDMAN 45 -848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Ka. Zaa A S 2 S 1 A searches F -- A downloads F -- B shares F B S 1 S 2 -- S 1 DOESN’T KNOW S 1 ASKS ITS NEIGHBORS QUERY A SOURCE: MICHAL FELDMAN 45 -848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Ka. Zaa A S 2 A searches F -- A downloads F -- B shares F B S 1 S 2 -- QUERY HIT: B has F S 1 B F S 2 FINDS F IN ITS INDEX S 2 RETURNS THE INFORMATION: B HAS F A SOURCE: MICHAL FELDMAN 45 -848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Ka. Zaa A S 2 A searches F -- A downloads F -- B shares F B S 1 S 2 -- QUERY HIT: B has F S 1 B S 1 TELLS A: “B HAS F” F A SOURCE: MICHAL FELDMAN 45 -848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Ka. Zaa A S 2 S 1 GET F A searches F -- A downloads F -- B shares F B B S 1 S 2 -- A ASKS B TO SEND F F A SOURCE: MICHAL FELDMAN 45 -848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Pollstar, Inc. v. Gigmania, 170 F. Supp. 2 d 974 (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 (& other claims) Gigmania cited Feist, claiming the concert listings have no originality • Pollstar said 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 caught by deliberate false information posted on Pollstar]

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. ” • Allows: – 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

Kelly v. Arriba Soft Corp. , 114 F. Supp. 2 d 1116 (C. D. Cal. 1999), aff’d in part, reversed in part, remanded 280 F. 3 d 934 (9 th Cir. 2002) • Arriba Soft ran a search engine that displayed images obtained by spidering the web. It downloaded full-size images, reduced them to small thumbnails, then discarded full-size. (See, e. g. , Google. ) • Users could search for images; Arriba would display thumbnails • Clicking a thumbnail would access the original web page but display only the image • Kelly had copyrighted photos on his website; 35 appeared on Arriba • “Copyright management information” was on Kelly’s site but was not displayed by Arriba • Kelly sued for copyright infringement & violation of the DMCA • District court held for Kelly; Arriba appealed • Held, no copyright infringement for the thumbnails • Reversed, as to infringement of the public display right for the fullsized images

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 111 F. Supp. 2 d 194 (S. D. N. Y. 2000) aff’d 273 F. 3 d 429 (2 nd Cir. 2001) • • • 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

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 45 -848 ECOMMERCE LEGAL ENVIRONMENT Watermarked image SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Digital Watermarks Most transformations do not affect or obliterate a spread-spectrum watermark A big user: Corbis 45 -848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 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)

Major Ideas • The Internet has brought down the value of works • The cost and ease of copying makes protection of IP more difficult • Instrumentation of the Internet makes it easier to detect violators • File-sharing is a huge risk to content owners because it is distributed and difficult to stop • Alternative: fair pricing of digital content, easy micropayment collection methods

Q&A 45 -848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS