Legal Circumvention

One of the criticisms people have about the Digital Millennium Copyright Act relates to Section 1201, Circumvention of Copyright Protection Systems. Generally, if a digital work has some kind of technology stopping someone from copyright it or otherwise using it in similar ways, it is illegal to circumvent that technology- even if that particular use would be legal in other circumstances. Fair use*. Education. Libraries & Archives. Personal use. And so on. If there’s a digital lock on it, you can’t go around it except in some very specific circumstances. If you work at a library, archives, or nonprofit educational institution, for example, you can circumvent protection in order to evaluate whether or not you want to purchase the item. But otherwise, if you have a legitimate need to go around these measures, you have to rely on the Section 1201 Rulemaking procedure.

The Section 1201 Rulemaking procedure was intended to provide exemptions to this part of the law for legitimate uses. Reading the Congressional testimony on the DMCA is troublesome. If you’re interested in how the law came to pass, I highly recommend Jessica Litman’s 2001 book, Digital Copyright, particularly the chapter called “The Bargaining Table.” The chapter goes into some detail about content industries used their lobbying and access privileges to get the law past, generally at the public’s (and fair use’s) expense. (More on this and the role of cultural institutions later.)

During this procedure, the public and other interested parties have the opportunity to present arguments for the creation of exemptions. Opponents also have the opportunity to respond to these arguments. The Register of Copyrights and the Copyright Office make a report with recommendations about which exemptions should be made. The Librarian of Congress makes his or her decision about the exemptions. These exemptions last three years.

The latest Rulemaking provisions were delayed. They should have been released in 2009, but were instead extended, and the new exemptions were published today.
Section 1201 Rulemaking on Anticircumvention

There’s some good news, particularly for educators. I just contributed to a paper involving a film and media studies project, where educators and students pretty much need to rely on fair use for what they’re trying to do. The exemption that was previously very narrowly constrained to film and media professors has been broadened to include professors and students. That’s good. That being said, I still think that people will have to rely on fair use in the long-term, though, for reasons I’ll discuss below.

Edit: Neat- the circumvention also covers “noncommercial use;” I expect this will be debated in very strong terms in the near future. ^_^

The big news that’s being published on the tech blogs is that it is now legal to jailbreak your iPhone. I wonder, though, about how this will affect licensing terms in the near future…

There were other exemptions granted, such as for security testing of DRM on video games.

An interesting thing I noticed this time around was that one provision was considered but not recommended by the Register, but ended up being recommended by the Librarian: circumvention for the blind. The exemption allows circumvention of DRM when all existing electronic versions of a work prohibit the read-aloud or screen-reader functionality. The Register was sympathetic to the argument, but didn’t recommend it mainly due to the procedural requirements.

There are problems with the 1201 Rulemaking procedure. One, people have to present evidence that the exemption is needed every three years, and proponents of the exemption have the burden of proof. This process can certainly ensure that potentially legitimate exemptions are lost. That’s why we can’t circumvent site-blocking censorship lists anymore. That’s also why the Register didn’t recommend the exemption for the blind- her office felt that they didn’t meet the burden of proof required by the statute. The procedure is complicated, cumbersome, and can be expensive- and has to be repeated every three years. These circumstances don’t particularly favor the public interest.

Of course, this rulemaking actually refers to the circumvention itself- it doesn’t really address the distribution of material used for circumvention, which is also prohibited by 1201.

*The text of the law actually says that nothing in the law should affect fair use. While I do appreciate this inclusion in the text of the law, it doesn’t actually seem to have affected much. Litman’s “Digital Copyright” also notes that content owners have successfully argued that fair use can not be a defense against circumvention. There’s a bit of scholarship on the issue- check out Thomas J. Loos, Fair Use and the Digital Millennium Copyright Act, 13 Mich. Telecomm. Tech. L. Rev. 601 (2007), for one example.

Empirical Copyright Research is Hard

From the “No kidding?” department, apparently, the GAO agrees that doing this type of research is tough in their new 41 page report. ^_- I actually think they did fairly well in pointing out some of the problems in these research methodologies.

Three widely cited U.S. government estimates of economic losses resulting from counterfeiting cannot be substantiated due to the absence of underlying studies… no single method can be used to develop estimates. Each method has limitations, and most experts observed that it is difficult, if not impossible, to quantify the economy-wide impacts. Nonetheless, research in specific industries suggest that the problem is sizeable, which is of particular concern as many U.S. industries are leaders in the creation of intellectual property…

…We determined that the U.S. government did not systematically collect data and perform analysis on the impacts of counterfeiting and piracy on the U.S. economy and, based on our review of literature and interviews with experts, we concluded that it was not feasible to develop our own estimates or attempt to quantify the economic impact of counterfeiting and piracy on the U.S. economy.

Leaving aside some of the possibly questionable assumptions inherent in the type of questions Congress wanted the GAO to examine, let’s look at the numbers. So, already existing government numbers?

Three commonly cited estimates of U.S. industry losses due to counterfeiting have been sourced to U.S. agencies, but cannot be substantiated or traced back to an underlying data source or methodology.

Well, those are some favorite cited numbers- what else do we have? How about the BSA?

While this study has an enviable data set on industries and consumers located around the world from its country surveys, it uses assumptions that have raised concerns among experts we interviewed, including the assumption of a one-to-one rate of substitution and questions on how the results from the surveyed countries are extrapolated to nonsurveyed countries.

MPAA Studies?

It is difficult, based on the information provided in the study, to determine how the authors handled key assumptions such as substitution rates and extrapolation from the survey sample to the broader population.

At least there was one academic paper cited in this area.

The study indicated that downloading illegal music can have a positive effect on total consumer welfare. However, as explained by the authors, this experiment cannot be generalized; the data consist of a snapshot of undergraduate students’ responses, which is not representative of the general population.

Yup. Possible positive effects, but you can’t necessarily extrapolate those findings to the public. That’s important when looking at these types of studies- they’re not necessarily generalizable. That’s pretty much a constraint of ANY study of this type, including the others mentioned that had highly questionable assumptions and equally questionable methodologies. The lack of generalizability doesn’t mean that the study isn’t useful- you can still plan courses of action at least informed by such studies, and of course you can plan to do additional research.

I think that it’s really important that people use real numbers when making arguments about what law and policy should accomplish. The problem is, people don’t really seem to have any kind of incentive to do that. Law and policy seem to be made on talking points related to the horrible numbers and other appeals to emotion not based on evidence, and that is a shame.

SCO Loses Another Case Regarding Unix Copyrights

Appropriately enough as my students are reading the Open Source Module (previously the Unix & Linux module), Novell has won the jury trial, and did not transfer the copyrights in Unix to SCO. Groklaw continues to be a valuable resource in its coverage of this case and other issues.

This decision hopefully removes what little cloud hung over Linux. The cloud was small because of the lack of evidence of infringement, Caldera’s (then-SCO) licensing Linux under the GPL, and the likelihood that the allegedly copyrighted material could be coded around. It’s still a good thing that Novell won, because SCO could would have caused problems with increased litigation and threats of litigation in any alternative scenario.

Even with the loss, SCO, of course, plans to continue its litigation campaign as it can. I am afraid to predict the death of the organization, because I thought that these issues should have been settled years ago, but somehow it just keeps on going and going and going…

And that wasn’t an April Fool’s joke. Here’s an interesting one from the Austin Chronicle, though:
The End of UT Football
“Governor, Lege order budget cuts; ‘Students must come first,’ says Powers”

which is all the more wonderful/terrible because all of the numbers in the various articles are pretty much accurate.

Common Copyright Assignment Mistakes

The instructors of INF 312 find some common problems in student submissions to one of our assignments. Here’s some advice to students. I expect that it may be useful to others.

  • Just because it’s educational does not mean that it’s automatically a fair use. I mention this fact in the copyright module, bolded. The educational purpose of your assignment is part of a fair use argument, but it can’t be the sum of a fair use argument.
  • The public domain is awesome. The public domain can also be a little bit tricky. Consider classical music- Vivaldi’s Allegro is in the public domain. The London Philharmonic 2002 recording of Vivaldi’s Allegro is not in the public domain. A new expression of an underlying work in the public domain might have its own copyright associated with it. This doesn’t mean that you can’t use the work, but you have to have a different justification for doing so, or you have to use the original work that is actually in the public domain.
  • Works created by the federal government are in the public domain- but not every work on a government website was created by the government, including portraits. Images might have copyright associated with them even if you find them on an official federal government site. Unless it specifically says otherwise, don’t assume that you’re free to use it. Again, you can make a fair use argument- and chances are, a pretty strong one- with such works, but you actually have to make that type of argument.
  • Not every Creative Commons license is identical. Some of them specifically require you to use “Share-Alike” when you license your derivative work. Some of them specifically mention that they don’t allow derivative works. You need to pay attention to the specific terms of the license when licensing your own content.
  • Just because you have a picture of yourself does not mean that you have copyright in the picture. You may have some rights of publicity in the picture, but that doesn’t mean that you can do anything you want with it. If you took the picture yourself, then you have copyright in it. If you didn’t, then someone else does. Saying that “it’s a picture of me” or that it’s a picture of you that you have at your house/on your computer is not a copyright argument.

That’s a bit on the restrictive side of a copyright argument. We also see problems in the other direction. I’ll talk about those in a later post.

New Rule When Discussing Copyright

At least, it’s one I’ll hope to adhere to in the future.

-Whoever uses the word “entitlement” in his or her argument loses.

Notes Fest

I’m teaching a course, INF 312 this semester. It’s going to be great, but certainly keeping me busy. ^_^ Between working full time, teaching, going to class and working on a couple of research projects, it’s going to be a fascinating semester. ^^

But now for some brief notes. ^_^

  • Dinosaur Feather Colors – Perhaps a strange thing to start with, but cool nonetheless. ^_^
  • Copyright and Cultural Institutions – An incredibly useful book for libraries, archives, and museums in the US involving copyright. Really, one of the best new resources out there. One of my copyright idols (and that goes on the list of ‘phrases you never expected to use’), Peter Hirtle is one of the authors. Creative Commons licenses and also freely available, but I’m going to buy a hard copy when I get a chance.
  • The Google lawsuit settlement moves ahead full steam. Pamela Samuelson has a number of really great articles on the Huffington Post about them. These articles are one of the reasons I still look at the Huffington Post despite all of it’s bs supporting anti-vaccination and homeopathy.

William Patry, Back in Blog

I’m very excited: the always-worth-reading William Patry is blogging again at Moral Panics and the Copyright Wars! His new book of the same title just got added to my Amazon Wish List.

He is currently having a relatively pleasant disagreement with Ben Sheffner of the Copyright & Campaigns blog. Sheffner is an advocate of strong copyright laws, and his blog is generally quite informative from that particular viewpoint.

X-Posted at librarycopyright.net.

From the damned-if-you-do department…

Techdirt is discussing the very strange lawsuit against text-sharing site Scribd. The strangest part of this particular lawsuit involves Scribd’s copyright protection measures. Because Scribd has to have a copy of the work at some point and in some form in order to make sure that the infringing file can’t be uploaded for public viewing, the lawsuit is apparently claiming that their protection itself violates copyright.

If Scribd is found infringing in this manner, the decision has some potentially far-reaching implications for the implementation of copy protection technologies, and (following the money) the businesses that create such technologies.

Careful, Educators…

Cross-posting a post I made at the Copyright Advisory Network.

The Copyright Alliance (not to be confused with the Library Copyright Alliance) is one of, if not *the* largest promoters of strong copyright in existence. It’s membership list mainly consists of copyright and entertainment industries. I’ll occasionally look at their cited scholarship when I feel like being depressed about the state of copyright scholarship. They’ve recently created the nonprofit Copyright Alliance Education Foundation to educate K-12 educators and students about copyright.

Unsurprisingly, I have problems with the materials found on that site. It’s not all bad, but one should be very careful before using any materials “as-is.” The materials stress the importance of permission, the vagueness of fair use, and a fear of technology. Believe it or not, I started reading the document with a sense of hope- creating copyright materials for K-12 is not easy. The organization has dedicated a lot of resources to this important subject; I had at they would acknowledge some of the purposes behind copyright law and the areas that are controversial. Sadly, it was not to be. In simplifying a complex subject (and this is even for the teachers, not only for the students), the organization has made their elements a lot less useful for educators who are actually interested in getting copyright right.

My biggest gripe is that they offer a simplistic and binary view of how copyright works, in and out of the classroom. In the guide for educators, they claim that the use of copyrighted materials requires fair use (characterized as scary, vague, uncertain) or permission. My first question: how in the world can you offer a copyright guide specifically for educators without talking about educational exemptions to copyright? We have actual exemptions specifically for educators in copyright law! Their guide specifically denies such exemptions. In the FAQ, they state that there are no special privileges for educators. That statement is completely incorrect. Sections 110(1) and 110(2) offer teachers ways to use copyrighted material that are not covered by fair use. Furthermore, their coverage of fair use could use a great deal of work. They don’t appear eager to have students attempt to use fair use, and in my opinion really minimize its importance.

As I was writing this message, Tim sent a message about EFF‘s new site: http://www.teachingcopyright.org/
The EFF talked about a “balanced” copyright system. The Copyright Alliance doesn’t. The EFF site walks people through the decision making process in determining whether or not a use is fair, and discusses different situations in which a use was determined to be fair. The EFF site isn’t perfect (and I’ll write to them with a couple of suggestions), but it’s a much more appropriate and realistic introduction, in my opinion.

Would that everyone could work together. The people in the copyright industries aren’t bad people. But there really are some fundamental differences in beliefs about public good and fairness in general that have made compromise difficult (and it seems to be the public side that is willing to compromise). I’ll write about this later when revisiting the government’s Section 108 report.

I believe that copyright is useful and important. I also believe that copyright exemptions are vital to creativity and innovation. Teachers, please be aware that there are problems with the Copyright Alliance’s approach. It’s very one-sided about issues that are not one-sided. I’m not saying reject it out of hand, but be careful. Not all of the true/false statements they offer can be evaluated by a true/false statement.

Ars Technica on the Theater of the Absurd

http://arstechnica.com/tech-policy/news/2009/05/big-contents-theater-of-the-absurd-at-dmca-hearing.ars

Wendy Seltzer characterized the process as the theater of the absurd, and she’s very much correct. This really is theater, and bad theater. The Digital Millennium Copyright Act prohibits bypassing any technological measure that protects copyright on media; for example, most DVDs are protected by programs, and you’re not allowed to circumvent those programs even for uses that should be legal. Every three years, the Copyright Office has hearings to decide who should be allowed to circumvent those protections under what circumstances.

The process is something of a farce. The industries provide no *evidence* that they’ve been harmed or that they will be harmed by allowing these exemptions. They seem to have a knee-jerk reaction that any sign of compromise is weakness. They won big with the Digital Millennium Copyright provision, to the detriment of public interest, in my view. They can afford to be magnanimous in these instances. But they refuse.

No, they insist that if any type of getting to the material is available, then there’s no need to circumvent, no matter the situation, no matter the cost. Their big solution for professors that wants to use film clips: take a camcorder and film the TV. That’s complete drek. As Jonathan Band (representing the American Library Association) pointed out, if that was good enough, why have the DMCA at all?  The easy answer is, it’s not good enough. In my time working tech support, working with digitization, working with libraries and academics who study preservation and digitization and culture and all of the related subjects, I can say with confidence that it’s not good enough. And in the long run, it is the public that is going to suffer.

This is upsetting to me. The exemptions requested would not harm the industries in the least. More importantly, they would not harm the creators in the least. Quite the contrary, there is every possibility that creative people and educators could be greatly helped by allowing some of the exemptions.