Building off of a post I wrote here in November, this past spring I wrote a (lenghty) paper examining the recent “Operation In Our Sites” and its implications for free speech, copyright policy, and practical enforcement of rights online. The paper now has its own SSRN page here. Hope you can all check it out and share thoughts. Thanks.
8 May 2011
11 December 2010
I’ve been meaning to write up a few thoughts on Wikileaks, but finals have kept me fairly busy. I have a bit of a break before round two of finals, so I wanted to take a couple hours to put some thoughts up here. I’m not especially interested in engaging on a broad-strokes merits argument of Julian Assange, the so-called “Cablegate” leak, Operation Payback, or the Interpol warrant. Instead I want to focus on the question that seems to be coming up in the press all month but has not been answered cleanly: How exactly does the First Amendment play out here?
I’ve spent a great deal of time considering the First Amendment implications of leaking confidential sources on the Internet. A lot of this analysis comes from the two amicus briefs I worked on while at the Berkman Center’s Cyberlaw Clinic, both dealing with websites that disclosed confidential information. (And to that end I owe thanks to the Clinic and the CMLP for helping me develop this analysis over two summers.) There are three discrete sub-doctrines of First Amendment law that inform my conclusion here, but I believe that, at least under the facts as they are currently understood, Assange and Wikileaks could not be punished in the United States for their actions.
24 September 2010
I’ve now had some time to read the Combating Online Infringement and Counterfeits Act (you can too). Reactions to follow, but first a quick sketch of the bill:
The bill gives the Attorney General specific powers to go after websites that are “dedicated to infringing activities.” (This is both the copyright and trademark context, but I’m going to focus on the former.) The statute defines “dedicated to infringing activities” as websites (1) “primarily designed” for trademark and copyright infringement, (2) lacking “demonstrable, commercially significant purpose or use” other than infringement, or (3) marketed by its operator to offer infringement. When taken together, these activities must be “central” to the activity of the website to meet this definition.
I used the word “infringement” above. It’s important to note that this is not speaking of traditional, primary infringement, or even established doctrines of vicarious, contributory, and inducement liability. It extends further than that, covering those “enabling” or “facilitating” infringement. (I would argue this to be further than the “knowing inducement” standard of contributory liability.) It also covers those offering or providing access to copyright-protected materials, including providing links to other Internet resources used to obtain copies. This too is an expansion of liability, though previously recognized in some lower-court opinions.
Under this bill the Attorney General has the power to proceed in rem against a domain name used by a website “dedicated to infringing activity.” The in rem nature of this is important: instead of having the lawsuit proceed against the person responsible for the infringing activity, the lawsuit is filed over the website itself. Thus, a judgment over the property binds the world with respect to the property, instead of just binding the defendant in the particular case.
The AG must send notice to the “registrant of the domain” (if available) and published notice of the action. The lawsuit would either be filed in the District of Columbia (if the registry is outside the United States) or the district housing the registrant or registry of the domain. All court document are to be served on the “domain name registrar,” or, failing that, on the “registry.” The remedy provided is injunctive and not monetary – a temporary restraining order, a preliminary injunction, and/or a permanent injunction. All the requirements for having a court issue this injunction are tied to Rule 65 of the Federal Rules of Civil Procedure presumably require the standard demonstrations of proof for those remedies. Should a court be persuaded that injunction is appropriate, the AG can then serve the court’s order on the registrant or registry, who is then ordered to suspend operation of the website and lock the domain name. If the registry is foreign, the AG can (with a court order) tell a “service provider,” a financial transaction provider, or an advertising agent on the website to cease serving that website, effectively creating a firewall for the average American user.
The bill does provide for modification of a court order. The owner or operator of the website may petition the court to modify, suspend, or vacate the order based on evidence that it is no longer “dedicated to infringing activities” or that the order should be vacated in the interest of justice. The AG can petition for modification to expand it to cover a migratory domain name and to include additional domain names “used in substantially the same manner” as the initial site. Should the domain name registration expire, the court order automatically ceases.
As mentioned above, the AG will maintain a public listing of domains subject to this order, as well as those that the DoJ believes to be qualifying, but for which AG has not yet filed an action. The AG also must inform our Intellectual Property Enforcement Coordinator (colloquially known as the “Copyright Czar”), who will also post the affected domain names on a public website. The AG must also publish a procedure for receiving information from public about sites “dedicated to infringing activities,” and give guidance to IP-holders as to how to provide the DoJ with information to begin an investigation.
So that’s the bill, and here are my reservations about it:
My first reaction is one shared by EFF several other groups – this is the very first time I can think of where the United States is prepared to assert its sovereign domain over the entire Internet. By proceeding in rem and going after domain name registries directly, we are leveraging the coincidental fact that most of the major top-level root domain servers are located inside of the United States, and most of the domain registration services (the GoDaddys and Dotsters of the world) are located here too. The reason for doing this is obvious: it’s expedient. The defendant may be hard to identify, located abroad, or deliberately hard to reach. Instead of going after her they can go after the severs she uses, which usually have fixed business addresses and legal departments. (I’m not quite sure if this is meant to cover to the DNS root servers or the domain name registration services themselves – more on that below.) In the rare cases where the United States does not house the addressing servers, the bill’s solution is to simply throw up a firewall, which is a pretty extreme measure.
This would not be a problem if I believed that this would only be used to go after websites solely dedicated to posting up torrents for movies, but I doubt this is the case. The terms used here seem to expand further than that. They encompass The Pirate Bay and MegaUpload for sure (and make no mistake, they are the targets of this legislation), but the bill arguably covers many more sites. This has great potential to seriously upset the balance of liability between websites and content controllers. In the Sony Betamax case we gave technology creators a wide berth, shielding from liability when a technology was capable of “substantial non-infringing uses.” Justice Breyer’s concurrence in Grokster states that the Court in Sony was looking at about 9% non-infringing use, and found that small percent to be “substantial” enough. Is 9% non-infringing use “commercially significant” enough to avoid in rem takedown here? Tumblr is a service that is largely dedicated to sharing media, often without the copyright owner’s authorization. Should they fail to show a commercially substantial use that isn’t dedicated to hosting infringing media files, could they be subject to takedown? And what about those of us that use Bit Torrent to share legally? Or use drop.io or MegaUpload simply because our email servers don’t let us send 100 MB attachments? Or use Tumblr to share media that we ourselves created? If we don’t make up a commercially significant share of the website’s population do we lose our service?
I think this liability shift is especially powerful with respect to websites driven by third-party content. We generally immunize web service providers from liability based on conduct of visitors to the site, whether it be copyright under the DMCA or libelous speech under Section 230. When proceeding in rem there is no meaningful way to distinguish between content posted by third parties and content posted by the website provider. As Public Knowledge points out, a small-scale media sharing site like a nascent YouTube could easily be taken down. Why this is so dangerous is an obvious point raised by many other critics – posting material online is an exercise of free expression, and services which aggregate many users are particularly strong forums for such expression, due to their bandwagon nature and ease of access. We should not so wantonly jeopardize these fora.
This is not to say that all is lost in this bill. I take comfort in the fact that this purely a remedy available to the Justice Department. Prosecutorial discretion will no-doubt mitigate these fears about sweeping up free expression and put any action into some form of greater utilitarian calculus. But Prof. Seltzer makes a good point about the private sector’s involvement in this bill – IP-owners are given an input into the Attorney General’s execution of the policy, but no similar mechanism is made for advocates for the websites. The weight of this legislation is clearly in favor of existing content owners. No wonder Hollywood is so excited about the prospects of this bill. At least the bill gives us transparency, which (ideally) should help us inform public debate over the merits of this bill’s eventual execution.
Two other, more minor, problems add to my general displeasure. First, I highly doubt this will be effective at stopping online piracy. If the allegedly infringing website is only using a service like Go Daddy to register their domain name, leaving content servers elsewhere, this is going to have little practical difference. Maybe you can’t type in “thepiratebay.org” and have it resolve to the Pirate Bay anymore. But if you are sophisticated enough to type in “126.96.36.199” into your address bar, you’ll still get the Pirate Bay. Cutting off the name server will not kill the website. The Internet is deliberately decentralized in that way. It would take active network filtering nation-wide to have the effect of blocking the Pirate Bay in the United States, which is a very drastic step indeed. But say we take that step – what’s to stop the pirates from creating a proxy server network to frustrate that means as well? Congress is trying to beat web-geeks at their own game. That is as sisyphean as it is stupid.
Second, in my opinion the bill suffers from some poor drafting. For example, who exactly does the AG give notice to under this bill? The bill carefully defines what it means to be “dedicated to infringing activity,” but other vital terms like “domain registry” and “registrant” get no clarity. When the bill speaks of the “registrant,” does it refer to the person who signs up with Go Daddy to get “mywebsite.com,” or is it Go Daddy, who has to go to VeriSign when it registers any “.com” domain name? Both parties are registering something from a registry, but with which one does the Attorney General interact? I can make an argument either way. The bill uses the term “operator” to define the person responsible for controlling the content of the site, so should we assume the website owner is the “operator,” the “registrant” is their domain name service, and the “registry” is VeriSign? On the other hand, “registrant” does appear in one other section in Title 18, referring there to the user of a web service. Should we impute a similar definition here? My guess, based on the way in which this bill distinguishes “registrants” from a “registry,” is that the “registrant” is the person who registers a domain name from a “registrar” like Go Daddy, but it’s far from certain. The bill has similar trouble trying to define who an online “service provider” is. The statute reflexively defines Internet “service provider” by its definition in 17 U.S.C. § 512(k)(1). The problem is, that section has two different definitions for service provider – either an ISP as we think of the term colloquially, or anyone who provides any service on the Internet. Would it have been so hard to pick one definition and include it in the bill?
I said a few days ago that I agree in spirit with the bill, and I still feel the same way today. I do not follow my colleagues who categorically reject using in rem tactics to try and stop infringing activity on the Internet. I do not think cyberspace should be categorically immune from government intervention. I recognize that there will be times when we cannot reach the person, and can only exercise power over the data the person left in a server in Virginia. But going after a website for its content should be a last resort, narrowly defined and restrained in execution. I accept the view that speech which infringes copyright is not subject to First Amendment protection, but any attempt to restrain expression should only follow a full and fair adjudication of the infringement question. It should be applicable only to those services which already fit our existing doctrines of secondary infringement liability. We should not attempt to sweep so broadly without mechanisms to better protect what might get swept up as collateral damage. It is not hard to imagine a website that has important expressive value, but nevertheless is removed from the Internet or blocked in the United States due to its inducement of copyright infringement. Hell, even the Pirate Bay runs a blog.
And there is one remedy here that I will never endorse: Internet filtering. We are seriously debating installing what can only be described as a nation-wide firewall. Consider the company we would keep doing so.
28 August 2010
Today marks the 47th anniversary of the “I Have a Dream” speech. The speech needs no introduction. I don’t need to tell you what it was or who said it. We know all that by virtue of living in the United States. It is so important to our national identity that we just know it, and many cannot identify from where they learned it (save those who experienced it firsthand).
Considering its ubiquitous nature, you may surprised to know that the speech is still protected under copyright, and any use of it (barring the frustratingly narrow world of fair use) is subject to a license from the estate of Dr. King. The speech has been subject to litigation, including a 1990s challenge where CBS used a section of the speech in a documentary and did not seek a license, whereupon the estate sued for infringement. There, the 11th Circuit rejected a summary judgment motion for CBS, holding that CBS did not prove the work was in the public domain due to publication without registration and proper formalities. This matter settled out of court, so the question was never fully resolved, but today the work is largely considered protected. The Estate treats it as such, and to other potential users, that’s probably all that matters. Dr. King published the work and registered copyright shortly after the speech in 1963 (according to this SDNY case), and his estate renewed copyright in 1991, so the work will remain under copyright until 2058.
So as you look over footage from that speech today, note how little of the actual speech you hear. Often a clip from the march will run silently, or only for a second. You will probably only see one station, at most, play it, and they will probably acknowledge that they licensed it from the King estate. Those seeking to use the speech publicly in any form will need to enter into an agreement with the EMI or Intellectual Properties Management in Atlanta to use it. Fail to do so, and the Estate could decide to sue.
I see this as a societal wrong. That speech is so vital to American identity that it should be as free as our founding documents to read aloud, share, disseminate, remix, and re-envision. No organization or entity, not even the very estate of Dr. King, should be able to restrict others’ use of the speech. It is simply too large and too significant to not be freely accessed and shared. We all should be able to broadcast the speech in our own manner, and share from it extensively and without limitation.
On the other hand, our actions should not punish Dr. King (or his heirs) for creating a work so significant that it far eclipses other cultural works. Remember that copyright in America is all about creating incentives for authors and artists to create and disseminate works. It would be a perverse incentive, indeed, to afford a writer a monopoly over a sermon, and then remove that monopoly should the writer create a profoundly important sermon. Dr. King, though his estate, is well entitled to compensation.
I see a third option to balance the rights of the copyright owner and the desires of the public: the United States, on behalf of its people, could purchase the speech and release it into the public domain.
Imagine if we created an award, given periodically and with appropriate pomp and circumstance, for works of the caliber and importance of the “I Have a Dream” speech. This award would come with a substantial cash prize, and in consideration the recipient would assign copyright interest in the work to the United States. The U.S. could then inject the work into the public domain, making it free for all to use. Over time, this would build a corpus of important American works, which could be celebrated and shared throughout the country, freely, and without hesitation. The “I Have a Dream” speech, or “This Land is Your Land” (claimed to be under copyright, though disputed), or “Happy Birthday To You” (still considered under copyright, though disputed), or “God Bless America” (likely still under copyright, and many arrangements of which are actively protected), or any other cultural artifact which transcends Romantic authorship and has become vital to our cultural identity could be shared as freely as “The Star Spangled Banner,” The Gettysburg Address, or the moon landing footage (all in the public domain).
This is not without some precedent. We have a National Recording Registry, designed to preserve the primary recordings vital to our national identity. We have a National Film Preservation Board, doing the same for works of film. The quasi-public Kennedy Center recognizes a handful of artists, musicians, and comedians for their lifetime achievements in the arts. The Library of Congress is well-equipped to handle this sort of project — consider its Gershwin Prize for Popular Song. The United States could give Nobel-Prize levels of compensation for the work and still strike an equitable bargain: a substantial amount of revenue to the copyright holder, and a comparably insignificant dent in the national budget. And with such a system we would not need to wonder if a use of King’s speech was “fair,” or likely to result in a cease and desist letter. We would be at liberty to perform the speech, incorporate it into songs, broadcast or webcast the speech, restore the work and share such restorations, or play the speech in public buildings. The work would not be abandoned by this status, but canonized, and appropriately celebrated by all.
28 June 2010
ASCAP’s HQ, a CC-licensed photo from Flickr user CosmoPolitician
I can’t believe this slipped by me last week: ASCAP has started urging its members to fundraise against Public Knowledge, Creative Commons, and the Electronic Frontier Foundation. The blog ZeroPaid has two pieces on the initial ASCAP action and CC’s response.
To do a Jon Stewart meet-me-at-camera-3 thing for a second: Hey, ASCAP. As I’m sure our fellow music industry members at the RIAA can tell you, it’s never wise to engage in a public war against people the general public overwhelmingly like. It doesn’t do our industry any favors. But what’s far worse about what you’re doing here is you are blatantly misstating the nature of things.
Creative Commons is not about destroying copyright or artist rights – quite the opposite. CC is about allowing artists the freedom to decide for themselves exactly how much control they wish to assert over copyright. As any US copyright scholar will tell you, our scheme of copyright is all about artists and authors a limited monopoly on expression in order to encourage them to create and disseminate works. The exclusivity we give comes at a cost, however: the monopolies we grant to authors necessarily prevent the general public from doing certain forms of expression. We’re okay with this because we believe (or strive to believe) that the net result of our system is that more works are created.
Creative Commons allows us to fix a deadweight loss in the system – authors who are “over-incentivized” can, at their control and discretion, give back to the public the monopoly rights they determined are unnecessary for them to create and disseminate. The beauty of CC is that the decision is left in the hands of the artist to decide for themselves.
Now I consider myself pro-artist, notwithstanding my professed leanings in areas of copyright policy. And I’ve taken heat from my friends by standing to defend your lawsuits against bars and restaurants that do not pay their PRO fees. But I do so because I believe the ends justify the means: public performance royalties are often a necessary ingredient of the royalty-mix that allows songwriters to make a living. When an artist decides for her or himself that they don’t need a public performance royalty – say, by declaring attribution is enough through a form of Creative Commons license – they signal a contrary preference, and we should respect that decision.
At my most charitable, I see what you’re doing as being over-paternalistic, deciding that artists cannot decide for themselves what rights they need to assert in order to create their works. What I truly think is going on is you’re annoyed that Creative Commons cuts ASCAP and the other PROs from receiving fees in certain circumstances, meaning you have less of a royalty pool to dish out later (and collect administrative percentages on top of). Perhaps I am being cynical, but why else would you attack Creative Commons? It’s the same reason why you decided to claim that a cell phone ringtone is a public performance: if it is, you get paid; if not, you don’t. So don’t pass this off as an artist rights issue. To act in the artists’ interest would be to allow them the choice. What you’re doing is something else entirely.
Update: More and more folks are weighing in on this one: here’s an ad hominem piece by David Israelite of the NMPA, Gigi Sohn of PK’s response, and an assessment from Wired’s (always amazing) Threat Level blog.
Coincidentally, this week I’ve been going through William Patry’s Moral Panics and the Copyright Wars again. In that book Patry talks of how use of folk devils and hyperbolic metaphors is killing our ability to have a cogent debate on this stuff, which is essential to the development of constitutionally sound copyright policy. This present fight is proving his point all too clearly.
I should also note that the contents of this blog, to the extent they are not owned and licensed by another party, are licensed under a Creative Commons Attribution Noncommercial Share-Alkie 3.0 license.
1 March 2010
Berklee College of Music runs a music business journal which addresses the problems of our beloved industry with a little more academic vigor than most other outlets. Usually, I rely on them for some valued in-depth perspective on a lot of issues. But their coverage of the Live Nation / Ticketmaster merger is simply miserable.
The journal published two articles on the subject for their most recent issue. The first is a fairly straightforward pros-and-cons piece which, aside from only getting one opinion on either side, serves as a sufficient history piece. The second is a pro-merger take by someone who I can only assume is a student at Berklee, highlighting the purported efficiencies of the transaction.
The (entirely citation-free) piece offers only conclusory statements about the “efficiency” of a merger, and seems to be confusing a lot of the details of both the settlement and the industry. The author seems confused, for example, that no mention was made in the DoJ settlement of major record companies, as if the record industry’s role would have any bearing on a live-music merger. He predicts the end of service charges on tickets, with no evidence to support it. He suggests TicketsNow (a Ticketmaster affiliate) avoided antitrust investigation for their unsavory ticket resale practices, which is totally wrong. He says TM/LN will now finally have the market power to engage in pure price discrimination, but does not even mention how that might fall under the criminal liability of the Robinson-Patman Act. The author seems to also fundamentally misunderstand the nature of Live Nation, talent agencies, and a lot of the structure of the business, and adds this structurally imbalanced suggestion as to the impact on independent actors in the music industry:
But this is not the death of all things independent. To the contrary, independent segments of the industry will survive through strategic partnerships and consolidation.
So the solution for independent businesses is to consolidate, and thus no longer be independent?
There’s substantive issues to address here, but the article takes so many sharp turns I can’t do the merits any justice. (Paradoxically at the end the author supposes that “Live Nation Entertainment will suffer eventual divestiture at the hands of a Republican administration.” Don’t look for any reasoning to back up the assertion that Republicans, historically softer on antitrust, will feel compelled to split up Live Nation once they take power.) This was a tremendously disappointing read. As one of the only academic music business journals out there, I expected a hell of a lot more from Berklee.
7 January 2010
I mentioned a few days ago that I’d be spending a good slice of this year analyzing the Live Nation / Ticketmaster proposed merger from as many angles as I could manage. (There’s an antitrust law casebook on my lap as I write this.) Anyone following along with me would probably like to know that this evening music industry expert Bob Lefsetz has posted on his very influential Lefsetz Letter his rundown on the merger.
Lefsetz approaches this from the perspective of the largest complaint we’ve heard on this merger: that this is going to impact ticket prices and make it more expensive to see shows. He attacks this in a rather sobering way, noting that not for years has Live Nation or Ticketmaster been about much other than the money. When Don Law and Robert Sillerman were making their bones buying out other promoters they were doing it for profit, and today the market (as much as there still is one) will keep the downward pressure on prices until we find equilibrium. It’s the market that dictates this merger, and the bottom line which is leading these companies to act. He also notes that artists deserve a lot more blame than they are receiving for the perpetually skyward costs in the live concert industry, and perhaps this is the product of the slow commoditization and big business-ification of our once-innocent industry.
I landed my first gig in the music industry in late 2002 (before I could drink, sign a contract, buy a lottery ticket, or even drive after midnight in Massachusetts), and have been working in and out of the business ever since. My first employer has been the one constant source of work throughout my entire career: a small in size but big in results concert promoter of the old guarde, and my longstanding mentors even through my present hiatus in law school. And so, my concern is not about ticket prices. From an industry perspective I do have faith in the free market to settle this somewhat – that there will come a time when U2 realizes they won’t fill Boston Garden at $250 a seat and the prices will sink. From a selfish angle I can still shell out $10 to see the bands I give a damn about at the Black Cat or Middle East, so no harm there.
No, my concern is the independent promoters. It’s something most concert goers do not notice or really care about, but the promoter is the catalyst that makes concerts happen. The promoter gets the venue, artist, labor, and marketing together to actually make a show come to life. The promoter assumes the risk; indeed, the promoter is the one that takes the proverbial and literal risk in the idea. Without independent promoters, my fear is that live performance market will suffer from a rather stagnant imagination. Put it another way: No Micheal Lang and crew, no Woodstock. No Dave Werlin, no Phish festivals. No Marc Geiger and crew, no Lollapalooza. No Kevin Lyman, no Warped Tour. No Barry Horgan, no All Tomorrow’s Parties. No Goldenvoice Concerts, no Coachella. The organic feel of all these festivals (in their early forms) is no happenstance. And that’s just the creativity. The innovations made in better live concert experiences (from more peaceful security to integrated medical support to clever concert swag) were made not out of concern for corporate shareholders, but with genuine desire to give fans the best experience possible. I do not, for a moment, believe that a corporate conglomerate will ever match what the independent and dispersed market has provided.
Throughout all of this ticket sale information is one of the closest guarded secrets a promoter can have. All calculations are made and most expenses flow from the volume of tickets sold at concert. At the really big shows – the festivals especially – you never want your rival promoters to know how many tickets you are selling, because a good promoter can do so much damage with that information. As healthy and strong as my relationship with my old employer was, I know my old bosses would fire me on the spot were I to start leaking that information to rival promoters.
But in America you have to sell your tickets with Ticketmaster, and thus Ticketmaster will always know how you’re doing. And in almost every market in America you are competing with Live Nation in the live promotion market: they own the venues and they have the promotion shops to make these shows happen on their own. My fear is what will happen to the independent promoters once their biggest rivals in the market know exactly how much money they are making. I’m not sure yet if it’s a fear I can characterize under the Sherman Act, but it’s a fear I have as a music lover and fan and what leads me to staunchly oppose this merger.