Appeals Court Says Of Course Georgia's Laws (Including Annotations) Are Not Protected By Copyright And Free To Share

Copyright

from the huge-news dept

Phew. The 11th Circuit appeals court has just overturned a lower court ruling and said that Georgia’s laws, including annotations, are not covered by copyright, and it is not infringing to post them online. This is big, and a huge win for online information activist Carl Malamud whose Public.Resource.org was the unfortunate defendant in a fight to make sure people actually understood the laws that ruled them. The details here matter, so let’s dig in:

For the past few years, we’ve been covering the fairly insane situation down in Georgia, where they insist that the state’s annotated laws are covered by copyright. This is not quite the same thing as saying the laws themselves are covered by copyright. Everyone here seems to recognize that Georgia’s laws are not covered by copyright. But here’s where the problem comes in. The state of Georgia contracts out with a private company, LexisNexis, to “annotate” the law basically giving more context, and discussing the case law interpretations of the official code. The deal with the state is that LexisNexis then transfers whatever copyright it gets from the creation of the annotations back to the state. Finally, the only “official” version of Georgia’s state laws is in the “annotated” version. If you want to look up the official law of Georgia you are sent to the “Official Code of Georgia Annotated” (OCGA), and it’s hosted by LexisNexis, and it has all sorts of restrictive terms of service on top of it. Indeed, every new law in Georgia literally says that it will amend “the Official Code of Georgia Annotated,” which certainly suggests that the OCGA — all of it — is the law in Georgia. And the state insisted that part of the law was covered by copyright.

Malamud found this obviously troubling, believing that the law must be freely accessible to anyone in order to be valid. The state of Georgia threatened him and then sued him claiming that reposting the OCGA in a more accessible fashion was copyright infringement. The district court not only found that the annotations (even if part of the official law) could be covered by copyright but further that it was not fair use for Malamud to post them online. This was a horrifying decision.

And, it’s also no longer a valid one.

The appeals court has put together a thorough ruling rebuking the lower court’s analysis, and noting that the OCGA is not subject to copyright at all. The court admits the annotations by a private company make this more complicated than the general question of whether or not laws are covered by copyright, but notes that since this is so closely tied to the law, and directed by state officials, it seems clear that the annotations cannot be covered by copyright:

To navigate the ambiguities surrounding how to characterize this work, we resort to first principles. Because our ultimate inquiry is whether a work is authored by the People, meaning whether it represents an articulation of the sovereign will, our analysis is guided by a consideration of those characteristics that are the hallmarks of law. In particular, we rely on the identity of the public officials who created the work, the authoritativeness of the work, and the process by which the work was created. These are critical markers. Where all three point in the direction that a work was made in the exercise of sovereign power — which is to say where the official who created the work is entrusted with delegated sovereign authority, where the work carries authoritative weight, and where the work was created through the procedural channels in which sovereign power ordinarily flows — it follows that the work would be attributable to the constructive authorship of the People, and therefore uncopyrightable.

The court admits that there are strong arguments in both directions on this one, but:

… at the end of the day, we conclude that the annotations in the OCGA are sufficiently law-like so as to be properly regarded as a sovereign work. Like the statutory text itself, the annotations are created by the duly constituted legislative authority of the State of Georgia. Moreover, the annotations clearly have authoritative weight in explicating and establishing the meaning and effect of Georgia?s laws. Furthermore, the procedures by which the annotations were incorporated bear the hallmarks of legislative process, namely bicameralism and presentment. In short, the annotations are legislative works created by Georgia?s legislators in the exercise of their legislative authority.

Because of this, the court doesn’t even need to do a fair use analysis. Since there’s no copyright in the OCGA, the fair use question doesn’t even matter, and Malamud (and anyone else) is free to post and access the full OCGA.

There’s a lot more details in the opinion, but the above quotes summarize the point quite nicely. Congrats to Carl Malamud, who has suffered quite a bit in facing this fairly insane lawsuit. As we noted early on, even if the state felt that it’s copyright was valid (which was still a big question) the fact that it would seek to sue a small nonprofit for daring to make their own laws accessible was shameful and disgusting.

We’ll close out this post with the concluding paragraphs of the opinion as well, which set out, once again, why the law (including annotations) is public domain and should be freely accessible to all:

The OCGA annotations are created by Georgia?s legislative body, which has been entrusted with exercising sovereign power on behalf of the people of Georgia. While the annotations do not carry the force of law in the way that statutes or judicial opinions do, they are expressly given legal significance so that, while not ?law,? the annotations undeniably are authoritative sources on the meaning of Georgia statutes. The legislature has stamped them ?official? and has chosen to make them an integral part of the official codification of Georgia?s laws. By wrapping the annotations and the statutory text into a single unified edict, the Georgia General Assembly has made the connection between the two inextricable and, thereby, ensured that obtaining a full understanding of the laws of Georgia requires having unfettered access to the annotations. Finally, the General Assembly?s annual adoption of the annotations as part of the laws of Georgia is effected by the legislative process — namely bicameralism and presentment — that is ordinarily reserved for the exercise of sovereign power.

Thus, we conclude that the annotations in the OCGA are attributable to the constructive authorship of the People. To advance the interests and effect the will of the People, their agents in the General Assembly have chosen to create an official exposition on the meaning of the laws of Georgia. In creating the annotations, the legislators have acted as draftsmen giving voice to the sovereign?s will. The resulting work is intrinsically public domain material, belonging to the People, and, as such, must be free for publication by all.

As a result, no valid copyright can subsist in these works.

This ruling also strengthens Malamud’s arguments in some of his other legal fights, concerning the concept of “incorporation by reference,” where laws reference this or that standard created by 3rd parties, and require various entities to abide by those standards. Malamud has long argued that if the law incorporates those standards, then those standards must be freely accessible for the same reason — and has been fighting that issue in a different court case. Reading this ruling certainly gives weight to that argument as well (though that one is in a different circuit).

Filed Under: 11th circuit, annotations, carl malamud, copyright, georgia, law, official code of georgia annotated, public domain
Companies: lexisnexis, public.resource.org

As Predicted, Australian Government Looks To Creep Site Censorship Into Search Censorship

Copyright

from the creep-creep-creep dept

Earlier this year, we discussed Australia’s Department of Communications asking for feedback on the effectiveness of its site-blocking policy after it had been in place for several years. The copyright industries both local and foreign leapt at the chance, making two divergent claims. Claim one: site-blocking is working really, really well and should be continued. Claim two: site-blocking is being vastly undermined by, you guessed it, Google, and the government should extend site-blocking into search-blocking as a result. We made the point at the time that this type of thing occurs like clockwork: you open the door to some censorship and those cheering it on will attempt to expand it further.

Well, after collecting its feedback, the Australian Department of Communications has come out with proposed amendments to Australian copyright law that would, you guessed it again, force search engines to censor links to so-called “pirate sites.”

The aims of the Copyright Amendment (Online Infringement) Bill 2018 are fairly straightforward.

Where existing legislation compels ISPs to prevent access to sites listed in an injunction, the amendments attempt to deal with sites that “have started to provide access to the online location after the injunction is made”, meaning that subsequently appearing mirrors and proxies can be dealt with much more quickly.

Turning to the perceived problems with search engines, the amendments will allow rightsholders to apply for injunctions that will not only target infringing ‘online locations’ but also their appearance in search results.

Again, this is plainly stupid. Search engines have one goal if they want to be successful: return the most relevant search results to a user’s query. That’s it. The problem in all of this is that the Australian public searches for infringing content. For a company like Google to kneecap its own usefulness in this manner makes no sense and, again, opens the door to force search engines to behave in all kinds of ways that governments may desire. And, yes, that’s a slippery slope argument, except we’re already inching down this particular slippery slope, making it a question of just how far down Australia will slide.

And, because of course, the requirements placed on search companies are both vague and onerous.

Companies including Google will be required to “take such steps as the Court considers reasonable so as not to provide a search result that refers users to the online location.” Search providers will also be compelled to deal with the subsequent appearance of mirrors and proxies by ensuring that these don’t appear in search results either.

In a statement published this morning, the Department of Communications offered the following summary.

“The Copyright Amendment Bill will ensure a broader range of overseas websites and file-hosting services widely used for sharing music and movies are within the scope of the scheme, and provide a means for proxy and mirror pirate sites to be blocked quickly,” the statement reads.

Let’s be clear about what this is. This new legislation is a national government requiring a useful internet tool to be less useful to the average Australian citizen that is searching the internet, simply as a favor to a few big content players in both Australia and, what will be more common, abroad. That’s a clear disservice by the Australian government to its own people.

Filed Under: australia, copyright, search, site blocking

Can't Wish Away The Mistakes In The Original 'Stairway To Heaven' Verdict

Copyright

from the probably-will-still-win,-but-needed-to-be-reversed dept

Yesterday we published the first part of an analysis by copyright lawyer Rick Sanders who wrote up a thorough analysis of the recent 9th Circuit decision to overturn the jury verdict in a case involving whether or not the Led Zeppelin song “Stairway to Heaven” infringed on another song. The first part described how the 9th Circuit might correct a problematic “test” for infringement, and this part analyzes the problems with the jury instructions.

Last time, I explained why I thought the Ninth Circuit’s recent vacating and remanding of the jury verdict in Led Zeppelin’s favor was, long-term, a good thing for copyright law (even if I kind of liked the verdict and am genuinely sorry for Led Zeppelin). The reason is that the reversal gave one panel of the Ninth Circuit an opportunity to try to fix the Ninth Circuit’s unhelpful legal framework for determining copyright infringement.

But that isn’t why the panel reversed. While the panel did make some suggestions about how to present the “inverse-ratio” rule to the jury, the way it was presented to the original jury isn’t what merited reversal. What merited reversal was the lack of another jury instruction about a basic and uncontroversial principle of copyright law that the parties agreed should have been there in some form. In short, the case is being reversed ? and the Ninth Circuit is getting a chance to fix its own weird copyright law ? because of what appears to have been a brain fart.

Jury Instructions: An Introduction

We all gasped when we heard about the reversal. Jury verdicts are hardly ever reversed. One of the few ways a jury verdict can be thrown out is if the jury was badly instructed in the law. Juries, naturally, don’t bring any knowledge about the law with them when they serve. That’s not their job, really. Their job is to weigh evidence, make credibility determinations, and so forth. But at some point, they need to be told what the law is, so they can take all that evidence they weighed and apply it to the law and render a verdict. How this is accomplished might surprise you.

There are several ways for jury instructions to be prepared and delivered to a jury, but the main way is this. First, the parties’ attorneys confer about what jury instructions they can agree on and jointly submit those instructions to the court. In this, they are aided by pattern jury instructions prepared at the circuit court’s direction. But pattern jury instructions don’t cover every aspect of every area of the law. You’d need ever-updating volumes to do that. Also, the pattern jury instructions aren’t unassailable: a party might disagree with one and explain how it should be and why.

For all other jury instructions, the parties submit their own versions of instructions they think address all of the legal issues being raised at trial, together with a short explanation of the legal authorities for their versions. The judge decides which version to use, or the judge might even craft his or her own version based on their own research.

Are the instructions then typed up, collated and distributed to the jurors in a neat binder? No! The judge reads them to the jurors, at the very end of the case, during what is called the “jury charge.” The jurors have to memorize the instructions (though they can ask to re-hear specific ones later during their deliberations).

“Selection and Arrangement”: An Introduction

In this case, the parties agreed that they needed an instruction about what to do with a work that is made up of unprotectable elements. Just because your work is made up of lots of unprotectable elements, that doesn’t mean your work as a whole can’t be protected by copyright. If you put those unprotectable elements together in an original way, then the way you put those elements together is protectable, though not the individual elements themselves. After all, you can theoretically dissect any creative work down into non-protectable elements: individual notes, individual words and phrases, individual brushstrokes, etc. It’s what you do with those non-protectable elements that counts. Courts call this “selection and arrangement,” which makes it seem more abstract than it is.

In this case, the plaintiffs hold the copyright in the song “Taurus,” which has for years been rumored as the inspiration for Led Zeppelin’s “Stairway to Heaven.” (But inspiration isn’t infringement! Well, at least, not necessarily.) When the plaintiffs finally got around to suing, Led Zeppelin argued (among other things) that any similarities between the songs were only for non-protectable elements, like the use of the chromatic scale. Plaintiffs argued that, even if that were true, the “selection and arrangement” of those elements were original (and, by implication, that “Stairway to Heaven” took that selection and arrangement).

Both parties recognized the need for an instruction on this issue. They disagreed on what it should say. They submitted competing instructions for the judge to consider. Then came the jury charge, at the very end of the case, just before the jury began deliberations. The judge began to read the instructions. Now, normally, a party would have an opportunity to object on the record to an instruction. This is a prerequisite to complaining about it on appeal. But the judge here didn’t want to hear any objections. He reasoned that, if the parties disagreed about an instruction in their submissions, it was reasonable to assume that they would object to an instruction that didn’t match what they’d submitted.

The parties waited for the instruction about what to do with works made up of unprotectable elements. It never came. This was good for Led Zeppelin, though not ideal. On the one hand, since Led Zeppelin had presented evidence that all they’d taken (if anything) from “Taurus” was not protectable, such an instruction couldn’t help their argument, no matter how it was crafted. On the other hand, it was foreseeable at the time that the missing jury instruction could imperil a jury verdict in Led Zeppelin’s favor (assuming they could focus on it with 500 other things going on at that moment.

On appeal, the strongest argument ? that trial court was correct not to give the instruction ? wasn’t really available to Led Zeppelin because even it had suggested an instruction. (Led Zeppelin tried anyway.) Instead, it had to argue that the missing instruction made no difference to the jury’s deliberations. That’s where another major goof with the jury instructions came in.

Copyright’s Broad Scope

Nearly all copyright cases will need an instruction about originality. Without “originality,” there is no copyright. Originality, however, is pretty easy to achieve. All that’s really required is that the work be expressive (i.e., not just ideas) and the product of a human mind. This last requirement not only excludes things like the “monkey selfie,” but also things like underlying facts, which exist independent of human thought; and stock “tools of the trade” commonly available to everyone in the creative field, like stock characters, computer code that everyone uses, certain three chord progressions, and so forth (what lawyers call “scènes à faire”). It also excludes material the author copied from other works (including those in the public domain), but only if the author actually copied them. Originality doesn’t mean novelty, just that it’s the author’s independent expression.

Originality is so basic to copyright law that there’s actually one of those “pattern jury instructions” about it. Pattern jury instructions aren’t law and aren’t always appropriate in every instance, but departure from them demands explanation. The court took the model instruction and added the stuff in bold and took out the stuff that’s been struck through:

An original work may include or incorporate elements taken from works owned by others, with the owner’s permission. However, any elements from prior works or the public domain are not considered original parts and not protected by copyright. Instead, [t]he original parts of the plaintiff’s work are the parts created:

1. independently by the work’s author, that is, the author did not copy it from another work; and
2. by use of at least some minimal creativity.

In copyright law, the “original” part of a work need not be new or novel.

You might detect a pattern here (as it were). The instruction about how to treat works consisting of non-protectable elements was left out. Now the instruction about originality includes a new sentence that emphasizes how non-protectable elements aren’t protectable, without telling the jury that those non-protectable elements can be selected and arranged in a protectable way.

What it Means to Create

I don’t know if copyright has a single “heart.” Perhaps, like an octopus, it has several hearts. But surely one of copyright law’s hearts is that creativity can and often does build on the work of others. This idea is echoed in fair use. And it is echoed in the non-controversial idea that not every element of a work must be protectable for the work to be entitled to copyright protection. “Selection and arrangement” is just a stilted and abstract way of saying: if you give 100 kids the same collection of 100 lego bricks, you will have 100 different original works in about 30 minutes, even though no single lego brick is protectable and even though the 100 different original works will naturally share certain techniques in common.

These two errors in the jury instructions aren’t just about technicalities of a highly technical law. Goodness knows there’s a lot of those in copyright law. No, they go to one of the basic tenets of copyright law: what it means to create.

My charitable interpretation of all this is that the court had a major brain fart that Led Zeppelin’s lawyers didn’t see coming or didn’t fully understand how perilous the consequences would be. The other interpretation is that this was a legal strategy that worked too well and backfired badly. It’s too bad. I strongly suspect that a correctly instructed jury would have come to the same verdict, but the scale of this mistake is such that we can’t safely assume that. I also strongly suspect Led Zeppelin will prevail on remand?after incurring more expense, lost time and anxiety.

Rick Sanders is a trademark, trade secrets and copyright litigator and a founding partner of Aaron & Sanders, PLLC. From 2012 to 2014, he was an adjunct professor at Vanderbilt University Law School, where he was teaching Copyright Law. He blogs at IPBreakdown and tweets at @RickSandersLaw.

Filed Under: copyright, infringement, jury instructions, led zeppelin, spirit, stairway to heaven, taurus

African Nations Rife With Illegitimate Collection Societies: Nigeria Files Criminal Complaint Against COSON

Copyright

from the collecting-crimes dept

You may recall that we have discussed the complete chaos that is copyright collection societies in Kenya over the past few years. At issue in Kenya is that the country has multiple collection societies, which are overseen by a government sanctioned body that can request to look at their books to make sure artists are being paid appropriately, and officially licenses the collection societies themselves. Some of those collection groups have apparently not felt the need to respond to requests for oversight, leading the government to pull or not renew their licenses. Instead of being the end of the story, a number of those collection societies continue to threaten people and collect royalties anyway, acting essentially as an illegal extortion outfit.

Kenya is not the only African nation going through this, it seems. Across the continent on the opposite coast, the Nigerian Copyright Commission has been going through similar issues, specifically with a collection group called COSON.

The Nigerian Copyright Commission has filed a criminal charge against the Copyright Society of Nigeria, its Chairman, Chief Tony Okoroji, and principal officers for carrying out the duties of a collecting society without the approval of the Nigerian Copyright Commission.

The NCC, in a statement signed by its Director-General, Afam Ezekude, and made available to our correspondent on Tuesday, said, “In Charge No FHC/L/338C/18, filed on October 8, 2018 at the Lagos Division of the Federal High Court, the accused persons were alleged to have performed the duties of a collecting Society by demanding and collecting royalties from Noah’s Ark of 9 Sowemimo Street, GRA, Ikeja, Lagos.”

The commission also accused COSON of carrying on the business of negotiating and granting licences on behalf of copyright owners without its approval, thereby committing an offence contrary to and punishable under sections 39 (4), (5) and (6) of the Copyright Act Cap C 28 Laws of the Federation of Nigerian 2004.

This is now becoming a trend, with collection societies in several African nations simply and rather brazenly carrying on the business of shaking down businesses for music licensing fees, even beyond the point of their being legally allowed to do so. Frankly, given the copyright collection industry, this is not a huge leap to take. These societies already have many of the hallmarks of extortion rings, with their undercover “patrons” at businesses and their threat letters that might as well begin with, “Nice business you have there. Be a shame if anything happened to it.”

But what this really shows, more than anything else, is how many of these copyright collection groups are devoid of any interest in the law, in the artists they represent, or in acting with even a modicum of ethical standards. Instead, these are money-making operations, and that money-making doesn’t stop just because the law says they have to.

Filed Under: collection societies, copyright, corruption, nigeria
Companies: coson

Stairway To Heaven Is Not Blurred Lines

Copyright

from the getting-something-right dept

A few weeks ago, we wrote about the 9th Circuit overturning the district court’s ruling in a copyright case questioning whether the song “Stairway to Heaven” had infringed on the song “Taurus” by Spirit. We were less than pleased with this result, as we felt the original ruling was correct. Copyright lawyer Rick Sanders disagreed with part of our analysis and made some really great points in a two part blog post series, which he’s graciously allowed us to repost in slightly edited form here. Part II will be published tomorrow.

Yes, the new 9th Circuit surprising reversal of the jury verdict looks like “Blurred Lines” all over again — only in reverse. Whereas in “Blurred Lines,” the jury reached the “wrong” conclusion, and the Ninth Circuit refused to fix the jury’s mistake, here it looks like the jury reached the “right” conclusion,” and the Ninth Circuit is screwing up the jury’s work. Techdirt all but said so, in an article 9th Cir Never Misses a Chance to Mess Up Copyright Law: Reopens Led Zeppelin ‘Stairway to Heaven’ Case.

I’m pleased to report that, far from taking this opportunity to further screw up copyright law, as Techdirt fears, the panel of judges is attempting to improve copyright law by replacing the Ninth Circuit’s (very bad) framework for copyright infringement with a much better one. Indeed, the “Stairway to Heaven” opinion may be seen as a rebuke to the “Blurred Lines” opinion. The pity is that Led Zeppelin must bear this burden by having to do the trial all over again.

The reason the “Stairway to Heaven” has to do with our old, misunderstood frenemy, the “Inverse-Ratio rule,” which is only tangentially related to why the case is being sent back for a second trial. I blogged extensively about the “inverse-ratio” rule in connection with the “Blurred Lines” case, and how the Ninth Circuit (correctly) amended its opinion to excise (its terrible) discussion of the rule. But here’s the deal: the inverse-ratio rule provides that the more similarity there is between the two works, the less proof of access you need, and vice-versa. It is highly beneficial when applied to the right legal framework for copyright. It is a perverse disaster when applied to the wrong legal framework.

Two Legal Frameworks for Copyright Infringement

Generally, there are two leading legal frameworks for determining when someone has infringed copyright:

1. Plaintiff must prove (a) defendant’s access to the copyrighted work, plus (b) “substantial similarity” between the two works. This framework is used by the majority of courts, so we’ll call it the “Majority Framework.” It is also a bad framework.
2. Plaintiff must prove (a) “copying” and (b) “unlawful appropriation.” To prove “copying,” the plaintiff must prove (1) access and (2) “probative similarity.” “Unlawful appropriation” is pretty much the same thing as “substantial similarity,” but the different term is used to avoid confusion with “probative similarity” (and is also more accurate). This framework is preferred by scholars and is used by one half of the Second Circuit, so we’ll call this the “Preferred Framework.”

Both of these frameworks grapple with the same thing: to infringe copyright in a work, the defendant must both copy the work and take enough of the work that, well, um, it’s too much. But the key is that copying is something that must be proved. In theory, if a magical monkey banged out Harry Potter and the Chamber of Secrets without ever have looked at a copy of Harry Potter and the Chamber of Secrets, that would not be copyright infringement. It would just be unbelievably unlikely. The need to prove copying is actually a fairly important limitation on copyright law. We shouldn’t lose sight of it.

Imagine that you saw me with a book and that I was writing something down on a pad of paper while obviously reading the book. Have you proved that I have “copied” the book? You certainly have proved access: there I am, with the book in hand! But, you haven’t. You need one piece of evidence. You need to see what I am writing. It’s possible that I’m multitasking, perhaps writing a shopping list as I read. It would take just a glance to figure that out, though, right?

Now imagine that you didn’t see me with the book. No one did. And yet my notebook is word for word the same as the book. Do you need any evidence of access? Maybe just the slightest bit, like I live in the same city as a bookstore or library that has a copy of the book. (This is sometimes known as “striking similarity.”)

Does this make intuitive sense? If so, congratulations! You understand the “inverse-ratio” rule, at least when correctly applied to “copying.” The more access, less probative similarity is needed to prove copying. More probative similarity, less access needed.

Proving copying is only step one of a two-step process, so let me hit you with another hypothetical. Let’s say that I was seen with the book at some point, and my notebook contains an extensive data table that is exactly the same as a data table in the book (but in my handwriting). There is nothing else in my notebook related to the book. The data table is otherwise unremarkable. Have you proven infringement? No! You have proven copying. I had access to the book, and the data table is too much of a coincidence to explain away. Clearly, I copied the data table. But not all copying is infringement. What I took isn’t protectable because it’s just facts. You haven’t proven the “unlawful appropriation” (AKA “substantial similarity”) element.

This hypothetical shows the difference between the two kinds of similarity: probative and substantial. (See, this is why we should re-name “substantial similarity” as “unlawful appropriation.”) You can use unprotectable elements to establish probative similarity. You can’t use unprotectable elements to establish substantial similarity/unlawful appropriation. Hopefully, this makes intuitive sense to you. With probative similarity, we’re just trying to prove copying, so we’re just looking for coincidences that, in light of the amount of access, we can’t explain away. Substantial similarity/unlawful appropriation is limited to protectable expression.

Let’s return to the “inverse-ratio” rule. Can you see why it’s appropriate in the context of copying, when we’re weighing access against probative similarity? And why it’s inappropriate if you are instead weighing access against substantial similarity/unlawful appropriation? In fact, it’s perverse. Imagine if you and I both took the same material from an unpublished manuscript, and that the case for substantial similarity is kind of borderline. I am found with a copy of the manuscript on my computer. You, however, have no connection with the manuscript except that you are the manuscript editor’s niece’s best friend (and the niece visited the editor at least once while in possession of the manuscript). We both took the same thing, but under the misapplication of the inverse-ratio rule, I’m an infringer, and you are not. That’s stupid. Considering that most courts do not correctly handle the distinction between copying and substantial similarity, you can see how the inverse-ratio rule has gotten a bad rap.

The Ninth Circuit Uses a Weird Hybrid Legal Framework for Copyright Infringement, but “Stairway to Heaven” Opinion Might Fix That.

Which of these two frameworks does the Ninth Circuit use? Neither, of course. This is the Ninth Circuit we’re talking about. Its framework looks like a combination of two. On the one hand, it follows the Majority Framework by requiring proof of access (instead of copying) and “substantial similarity.” But then is splits the inquiry into “substantial similarity” into two tests, both of which must be proven: the “extrinsic test” and the “intrinsic test.” The extrinsic test is meant to be “objective.” The jury is permitted to consider both protectable and non-protectable elements, to dissect the elements and compare those, and to consider expert opinion. You know what that is? Probative similarity, but here’s it’s pressed into the service of substantial similarity and has been separated from the inquiry into access.

The intrinsic test is just the normal test for “substantial similarity”/”unlawful appropriation” that every other court uses. Calling it a “test” is overstating it: it’s more like the jury’s gut instinct, based on the “total concept and feel” of the works. Sorry, but no one has come up with a better way of formulating the test, or how “total concept and feel” works when both protectable and non-protectable elements have been taken. To be fair to the Ninth Circuit, the distinction between intrinsic and extrinsic evidence was innovative at the time and served as an important stepping stone to the preferred legal framework. Alas, the way precedent works, the Ninth Circuit has been stuck at this half-way point for decades. It should go without saying that the application of the “inverse-square” rule to the Ninth Circuit’s framework can be ugly.

But that’s what makes the court’s opinion in the “Stairway to Heaven” case so exciting. The court straight up endorses the Preferred Framework, even using the preferred terminology:

Whether Defendants copied protected expression contains two separate and distinct components: “copying” and “unlawful appropriation.” A plaintiff must be able to demonstrate that a defendant copied his work, as independent creation is a complete defense to copyright infringement. In cases such as this one where there is no direct evidence of copying, the plaintiff can attempt to prove it circumstantially by showing that the defendant had access to the plaintiff’s work and that the two works share similarities probative of copying. When a high degree of access is shown, a lower amount of similarity is needed to prove copying. To prove copying, the similarities between the two works need not be extensive, and they need not involve protected elements of the plaintiff’s work. They just need to be similarities one would not expect to arise if the two works had been created independently.

It then tackles the plaintiffs’ argument about the missing “inverse-ratio” rule. I’ll bet the plaintiffs were wanting an “inverse-ratio” instruction that told the jury to weigh access against substantial similarity. If so, the Ninth Circuit had some bad news for it: the “inverse-ratio” applies only to copying, not to substantial similarity.

This [inverse ratio] rule assists only in proving copying, not in proving unlawful appropriation. Even if a plaintiff proves that a defendant copied his work, the plaintiff must still show that the copying amounts to unlawful appropriation. The showing of substantial similarity necessary to prove unlawful appropriation does not vary with the degree of access the plaintiff has shown.

The court then went on to suggest strongly to the trial court that an “inverse ratio” rule might be a really good idea, in a case where there’s proof of access.

But what about that intrinsic-extrinsic distinction? Surely, it’s no longer relevant, right? Well, I guess the Ninth Circuit wasn’t quite prepared to get that radical. With a little hocus-pocus, it sort of re-purposed the distinction in the service of substantial similarity/unlawful appropriation. Now, instead of being objective and subjective, it’s about making sure you have both evidence of appropriation of protected elements and that gut-feeling. OK, whatever?that might actually be an improvement, since its one way to reconcile “total concept and feel” with a need to filter out non-protectable elements.

Emphasis on “Might”

The fight’s not over. When a Circuit court takes up an appeal, it assigns a panel of three of its judges. In theory, a panel can’t overrule an earlier panel?for that to happen, you need the entire court, or in the 9th Circuit a larger panel of judges, (called “en banc”) to take up the case, which is rare (but not unheard of). Right now, later panels have the option of picking which framework they want to use: follow “Blurred Lines'” traditional Ninth Circuit framework, or adopt “Stairway to Heaven’s” newfangled Preferred Framework. Obviously, parties are going to pick the one that works best for them. We might end up with an internally-split circuit (which is essentially the current situation with the Second Circuit). Of course, the Supreme Court to step in and fix it, but let’s be serious. Indeed, it is almost scandalous that, for decades, there have been multiple frameworks for a concept CENTRAL to copyright law, and the Supreme Court has never expressed interest in the subject.

Now, as it happens, the court’s discussion of the “inverse-ratio” rule, and its related description of the Preferred Framework, is not what caused the court to vacate the jury verdict and send the case back down for a second trial. I’ll explain the twin brain farts that caused that disaster in a subsequent post.

Rick Sanders is a trademark, trade secrets and copyright litigator and a founding partner of Aaron & Sanders, PLLC. From 2012 to 2014, he was an adjunct professor at Vanderbilt University Law School, where he was teaching Copyright Law. He blogs at IPBreakdown and tweets at @RickSandersLaw.

Filed Under: 9th circuit, blurred lines, copyright, infringement, inverse ratio, jimmy page, led zeppelin, randy california, robert plant, spirit, stairway to heaven, taurus

Politicians Start To Push For Autonomous Vehicle Data To Be Protected By Copyright Or Database Rights

Copyright

from the battle-for-the-internet-of-things dept

Autonomous vehicles are much in the news these days, and seem poised to enter the mainstream soon. One of their key aspects is that they are digital systems — essentially, computers with wheels. As such they gather and generate huge amounts of data as they move around and interact with their surroundings. This kind of data is increasingly valuable, so an important question poses itself: what should happen to all that information from autonomous vehicles?

The issue came up recently in a meeting of the European Parliament’s legal affairs committee, which was drawing up a document to summarize its views on autonomous driving in the EU (pdf). It’s an area now being explored by the EU with a view to bringing in relevant regulations where they are needed. Topics under consideration include civil liability, data protection, and who gets access to the data produced by autonomous vehicles. On that topic, the Swedish Greens MEP Max Andersson suggested the following amendment (pdf) to the committee’s proposed text:

Notes that data generated during autonomous transport are automatically generated and are by nature not creative, thus making copyright protection or the right on databases inapplicable.

Pretty inoffensive stuff, you might think. But not for the center-right EPP politicians present. They demanded a vote on Andersson’s amendment, and then proceeded to block its inclusion in the committee’s final report.

This is a classic example of the copyright ratchet in action: copyright only ever gets longer, stronger and broader. Here a signal is being sent that copyright or a database right should be extended to apply not just to works created by people, but also to the data streams generated by autonomous vehicles. Given their political leanings, it is highly unlikely that the EPP politicians believe that data belongs to the owner of the vehicle. They presumably think that the manufacturer retains rights to it, even after the vehicle has left the factory and been sold.

That’s bad enough, but there’s a bigger threat here. Autonomous vehicles are just part of a much larger wave of connected digital devices that generate huge quantities of data, what is generally called the Internet of Things. The next major front in the copyright wars — the next upward move of the copyright ratchet — will be over what happens to all that data, and who, if anyone, owns it.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: autonomous vehicles, copyright, database right, eu, eu parliament, iot, juri

Epic Games Likely DMCA'd Its Own Fortnite Trailer, Showing The Problems With YouTube's DMCA Process Yet Again

Copyright

from the epic-fail dept

We’ve had plenty of stories revolving around content owners and publishers issuing DMCAs over trailers and advertisements. These stories are always head-scratching in one way or another, typically centering around the question of why anyone would ever want to take down free advertising, even imperfect free advertising. We’ve also seen plenty of examples of content owners accidentally sending DMCA notices over their own content, all of which help to highlight both the flaws in the DMCA process and just how difficult it is for even content owners themselves to know just what is infringing and what isn’t.

But when these two worlds collide, it becomes something special. We’re not yet 100% certain, but it sure looks like Epic Games DMCA’d its own trailer for the upcoming Fortnite Season 6.

A Fortnite season 6 trailer was briefly taken down earlier this week, after receiving a strike from YouTube for copyright infringement. That alone would be strange enough, since trailers and promotional videos typically secure the rights to any third-party media ahead of time. But the real kicker here is who issued the claim: according to a screengrab posted to Reddit, it was none other than Fortnite’s own developer, Epic Games.

The internet then spent the next day or so poking fun at Epic in the form of memes and in-game references, but this really isn’t much of a laughing matter. And, whatever actually happened here, it serves to show the flaws in the DMCA process relating to YouTube videos. The most likely explanation is that Epic has an automated system to flag and DMCA videos that contain game content from Fortnite. The problem here is that this was a trailer for an upcoming release, meaning that it would be odd for the algorithm to already be set to pick up on that content. Perhaps it’s simply recognizing the general game or characters and flagging it, but we don’t know for sure. And, given the vast amounts of let’s plays and other content on YouTube featuring Fortnite, it’s hard to square just why this trailer would have been flagged when other videos are not. Regardless, the end result of this would be Epic Games DMCAing its own advertisement, the very last thing it would want to do. If that doesn’t show the flaw in how the DMCA process is handled on all sides right now, it’s hard to imagine what would.

Of course, the other possible explanation here is that it wasn’t Epic that DMCA’d the trailer at all, but rather someone impersonating the company.

This system has been criticized for having little oversight and placing undue burden on those impacted by the strikes. Someone looking to cause trouble could, for example, pretend to be a company and issue a fraudulent claim. Or, as has happened in the past, a creator of a game or film could use YouTube’s system to punish negative reviews.

Yes, and with little oversight and next to nothing in terms of punishment for sending false DMCA notices in this way, there is little that would stop this from happening. While the first possible explanation registers as a flaw we can all laugh at, the latter shows the true danger in the DMCA process as a method for censoring speech. And that’s something nobody appears to be paying attention to, even as the flaw is exposed for all to see.

The DMCA isn’t perfect. What it really lacks is legislated teeth to punish abuse and fraud. Until that happens, abuse will run rampant, as will automated systems that DMCA perfectly legitimate content, such as a company’s own advertising.

Filed Under: copyright, dmca, trailers
Companies: epic games, youtube

Creative Commons Continues To Try To Help Courts Understand What Its NonCommercial License Means

Copyright

from the important-stuff dept

Over the years we’ve expressed some concerns about the NonCommercial license option from Creative Commons. Even as we’re incredibly supportive of CC, the NonCommercial license often seemed to raise more questions than answers — to the point that some have argued that it actually harmed CC’s brand and resulted in significant confusion for how CC licenses work. There have even been suggestions that CC should drop the NC license option altogether.

To its immense credit, people at Creative Commons have appeared to take these concerns quite seriously over the past few years, doing quite a bit of work to try to clarify what NonCommercial means for the purpose of the license. Our specific concern is that NonCommercial could mean all different things to different people. If you’re using a NonCommercial CC-licensed image on a personal blog and you have ads on that blog (even if you don’t make much money from it) is that non commercial? If you use it in a tweet and your Twitter bio promotes your business is that non commercial?

Two years ago we wrote about Creative Commons stepping in to file an amicus brief in a case that raised some specific issues concerning a NonCommercial license. An educational non-profit, Great Minds, sued FedEx over FedEx Office shops photocopying some Great Minds works for educational entities, even though the works were licensed under CC’s BY-NC-SA 4.0 license. Great Minds argued that because FedEx made money from copying, it’s “commercial” and thus in violation of the license. Creative Commons stepped into that lawsuit and explicitly stated that Great Minds interpretation was wrong.

In the FedEx case, both the district court and the 2nd Circuit appeals court rejected Great Minds’ interpretation and tossed out the lawsuit saying that the license in question did not limit FedEx from charging for copies. Great Minds also filed a nearly identical case against Office Depot in California, which also was dismissed, despite Great Minds claiming that this case is different than the FedEx one (specifically, it argued that Office Depot employees were “actively soliciting” schools to copy Great Minds’ works). The court didn’t buy it.

That case has now been appealed to the 9th Circuit (who, as we’ve noted all too frequently, mucks up copyright cases). And Creative Commons is back again asking the court if it can file an amicus brief again. This seems like the perfect situation for an amicus brief, given that Creative Commons certainly should understand its licenses the best. The proposed brief is well worth a read.

Creative Commons appreciates the valuable contributions to the development of open educational resources made by Great Minds, along with its use of a standard CC public license to enable broad reuse of the materials it produces. However, its interpretation of the Creative Commons license at issue in this lawsuit is incorrect. As the U.S. Court of Appeals for the Second Circuit correctly determined in Great Minds? prior suit against another copy shop, FedEx Office, the license authorizes a bona fide non-commercial user to discharge her licensed rights by directing a third party like Office Depot to make copies at her instruction. Creative Commons welcomes and respectfully seeks a similar holding from this Court:

Under the Creative Commons ?NonCommercial? license at issue, a bona fide non-commercial user may engage contractors to exercise the non-commercial user?s own licensed rights on behalf and at the direction of the noncommercial user, irrespective of whether the contractor is itself non-commercial actor.

Going into details, CC explains how Great Minds is completely misinterpreting its NC license term:

The CC BY-NC-SA 4.0 license fully authorizes the conduct that Great Minds contends on appeal is unlawful. The only licensee here is the school district. Under the terms of the license and prevailing principles of law, a school district may permissibly use Office Depot as a means by which the school district exercises its own licensed rights. The license does not restrict the school district to using only its own employees to exercise those rights; it allows the school district to engage anyone?employees and non-employee contractors alike?to do so. To establish a rule that denies a licensee the ability to use non-employee actors to exercise the rights it is lawfully entitled to exercise would contravene the plain language of the license and established precedent.

To be sure, Office Depot could not on its own initiative make copies of Great Minds? curricular materials and sell them for a profit. In that scenario, Office Depot would not be acting at the direction of a bona fide licensee, would not be shielded by any bona fide licensee?s license, and thus would itself need to rely on the terms and conditions of the CC BY-NC-SA 4.0?including limiting its conduct to non-commercial purposes when reproducing the licensed work. But that is not what is alleged here. Instead, on the facts as pleaded, the school district has, under its license from Great Minds, engaged Office Depot to make copies and paid Office Depot for the service, just as it could have paid an employee to make the same copies at an Office Depot store. In that scenario, Office Depot is not a licensee in its own right, and its own, independent purpose is analytically irrelevant.

Hopefully the 9th Circuit follows the lead of the 2nd and agrees that Great Minds is misreading the NC part of the license. This would go a long way towards further establishing that NC licenses aren’t so limiting.

Filed Under: copying, copyright, creative commons, licenses, nc, noncommercial
Companies: creative commons, fedex, great minds, office depot

Stupid Law Firm Decides To Threaten Something Awful Over Hot-Linked Hitler Picture

Copyright

from the fools-for-attorneys:-non-pro-se-edition dept

A stupid law firm supposedly specializing in IP rights enforcement has decided (again!) to jam its dangling appendages into one of the internet’s more ferocious hornets’ nests. When you’re in the business of threatening litigation over hot-linked images (yep), you probably don’t pay much attention to the URLs you target.

The law firm of Higbee & Associates should know better than to go to this well twice. But it doesn’t. Due diligence doesn’t seem to be a priority. If it was, some of its “pre-litigation” specialists might have noticed the firm went after Something Awful in 2015 for using an image from Under the Skin in its review of the movie. Obviously, this was fair use and a little bit of web searching turns up multiple uses of the same image, suggesting it had been made available by the studio for promotional purposes.

You’d think one failure to turn Something Awful (SA) into an ATM would have been enough for Higbee & Associates. Apparently not. Richard “Lowtax” Kyanka — having taken over SA’s legal department after the departure of Leonard “J” Crabs — received a demand letter from the law firm over the supposedly unauthorized use of a picture of (go figure) Hitler.

The law firm apparently thought the threat letter would result in Kyanka cutting a check to prevent being sued for up to and including $150,000. But the firm’s stupidity goes further than simply trying to threaten a site it had failed to threaten successfully in the past. The demand letter references an image not hosted by Something Awful but one posted to a forum thread by an SA member.

Here’s Kyanka’s take on the legal conundrum posed by Higbee’s ridiculous letter.

As you can clearly see, I had been given a bill for nearly $7,000 because somebody on the Something Awful forums linked to an image of Hitler, a file being hosted on the third-party site Imgur. “Now wait a minute Rich ‘Lowtax’ Kyanka,” you may be saying to nobody in particular. “How can you possibly get sued for somebody linking to an image hosted on a third party site?” The answer is simple: because Higbee and Associates exist.

This garbage dicked law firm generates nearly $5 million a year by encouraging photographers to sign up with their company, then performing a reverse image search for anything matching their client’s submitted photos. An automated system then flags the suspected offending site, spits out a super scary legal threat based off a template, and delivers it to the site owner. Upon receiving the notice of possible legal action, many victims freak out and pay these idiots the stated arbitrary amount of cash, under the looming threat of being taken to court for $150,000. Higbee and Associates operate one of the biggest dirtbag law firms to ever pollute the internet, preying on fear and dealing in bulk.

Unfortunately, in my 20 years of running this site, I’ve been forced to brush up on general copyright law, and I damn well know that linking to an image hosted on a third party image site breaks absolutely no law, even if it is digital, lossy compressed Hitler.

Kyanka’s immediate response to Higbee’s threat letter is both hilarious and profane, mostly simultaneously.

I have an even better idea: I’m not going to pay you a fucking dime and you can go fuck off to hell for eternity because I am absolutely in no way responsible for images hosted by a third party service, in this case Imgur. Go fuck yourselves and prey on some other website that hasn’t been around for two decades and knows damn well what their legal responsibilities entail, and what they’re responsible for. Your entire law firm is a straight up piece of flaming shit that tries to intimidate folks with EXPENSIVE LEGAL THREATS in the hope that your extortion scheme will work on some of them. I am not one of those people. So I cordially invite you to take your pdf, print it out, and ride it like a sybian until the cows come home. Then I invite you to fuck the cows as well.

The staff at Higbee’s was presumably not amused, nor willing to ride threat letter PDFs like marital aids for the rest of eternity. It handed over Kyanka and his angry communications to one of its “pre-litigation” people so they, too, could harvest the vitriol from the seeds the firm had planted. A few more rounds of law firm employees hoping to sound serious and threatening being greeted with disdain, mockery, and creative insults followed.

Finally, Kyanka decided to do the firm’s due diligence for it.

Oh, and since I’m such a swell guy, I’ll send you a little graphic explaining Imgur’s copyright and linking policies, which clearly dictates the copyright responsibility for each and every image is the sole responsibility of the individual who uploaded it. I’m sure it was just a freak accident that you guys somehow missed the literal first search result for “copyright law and internet image links Imgur,” but it’s not like you guys are lawyers whose sole job is to do such things as required by the law. Here’s the link as well; let me know if you require explicit, step by step instructions detailing how to click internet links.

https://help.imgur.com/hc/en-us/art…ws-article-etc-

Maybe this finally got through to the Higbee & Associates. There have been no further legal threats issued since this last salvo by Kyanka. This is the way it should be, minus all the unpleasant interactions preceding this. A hotlinked image isn’t a violation of anyone’s copyright. The violation, if any, was committed by the person who uploaded the image to Imgur, not the forum poster who linked to it. A DMCA notice sent to Imgur should have been the full extent of Higbee’s actions, but instead it decided to subject itself to public mockery by handling this like an overeager hobbyist, rather than the capable law firm it imagines itself to be.

Filed Under: copyright, copyright trolling, dmca, hitler, hotlinked
Companies: higbee & associates, something awful

Thanks To Copyright, We Already Know How Aggressive Content Moderation Works: And It's A Disaster

Copyright

from the lessons-learned dept

One of the reasons why I’m so adamant about the negative impacts on free speech from making internet platforms liable for the speech of their users, or even just by pushing for greater and greater content moderation by those platforms, is that this is not a theoretical situation where we have no idea how things will play out. We have reams and reams of evidence, just in the US alone (and plenty outside of the US) by looking at the copyright world. Remember, while CDA 230 makes platforms immune from a civil lawsuit regarding content posted by users or for any moderation choices regarding that content, it exempts intellectual property law (and criminal law). On the copyright side, we have a different regime: DMCA 512. Whereas CDA 230 creates a broad immunity, DMCA 512 creates a narrower “safe harbor” where sites need to meet a list of criteria in order to be eligible for the safe harbor, and those criteria keep getting litigated over and over again. Thus, we have quite a clear parallel universe to look at concerning what happens when you make a platform liable for speech — even if you include conditions and safe harbors.

And it’s not good.

Corynne McSherry, EFF’s legal director has put together an excellent list of five lessons on content moderation from the copyright wars that should be required reading for anyone looking to upset the apple cart of CDA 230. Incredibly, as someone who lives and breathes this stuff every day, it’s quite incredible how frequently we hear from people who haven’t looked at what happened with copyright, who seem to think that the DMCA’s regime is a perfect example of what we should replace CDA 230 with. But… that’s only because they have no idea what a complete and total clusterfuck the copyright/DMCA world has been and remains. Let’s dig into the lessons:

1. Mistakes will be made?lots of them

The DMCA?s takedown system offers huge incentives to service providers that take down content when they get a notice of infringement. Given the incentives of the DMCA safe harbors, service providers will usually respond to a DMCA takedown notice by quickly removing the challenged content. Thus, by simply sending an email or filling out a web form, a copyright owner (or, for that matter, anyone who wishes to remove speech for whatever reason) can take content offline.

Many takedowns target clearly infringing content. But there is ample evidence that rightsholders and others abuse this power on a regular basis?either deliberately or because they have not bothered to learn enough about copyright law to determine whether the content they object to is unlawful. At EFF, we?ve been documenting improper takedowns for many years, and highlight particularly egregious ones in our Takedown Hall of Shame. 

As we have already seen, content moderation practices are also rife with errors.

There are all different kinds of “mistakes” embedded here as well. One is just the truly accidental mistakes, but it happens quite frequently when you’re dealing with billions of pieces of content. Even if those mistakes only happen 0.01% of the time, you still end up with a ton of content taken down that should remain up. That’s a problem.

But the larger issue, as Corynne points out, is abuse. If you give someone a tool to take down content, guess what they do with it? They take down content with it. They often don’t care — even a little bit — that they’re using the DMCA for non-copyright purposes. They just want the content to come down for whatever reasons, and the DMCA provides the tool. Imagine that, but on steroids, in other contexts.

2. Robots aren?t the answer

Rightsholders and platforms looking to police infringement at scale often place their hopes in automated processes. Unfortunately, such processes regularly backfire.

For example, YouTube?s Content ID system works by having people upload their content into a database maintained by YouTube. New uploads are compared to what?s in the database and when the algorithm detects a match, copyright holders are informed. They can then make a claim, forcing it to be taken down, or they can simply opt to make money from ads put on the video.

But the system fails regularly. In 2015, for example, Sebastien Tomczak uploaded a ten-hour video of white noise. A few years later, as a result of YouTube?s Content ID system, a series of copyright claims were made against Tomczak?s video. Five different claims were filed on sound that Tomczak created himself. Although the claimants didn?t force Tomczak?s video to be taken down they all opted to monetize it instead. In other words, ads on the ten-hour video could generate revenue for those claiming copyright on the static.

Again, this has been an incredibly popular claim — most frequently from people who are totally ignorant both of how technology works (the “well, you nerds can nerd harder” kind of approach) to those who are totally ignorant of what a complete clusterfuck existing solutions have been. ContentID is absolutely terrible and has a terrible error rate and it is, by far, the best solution out there.

And that’s just in the narrow category of copyright filtering. If you expect algorithms to be able to detect much more amorphous concepts like bullying, terrorist content, hate speech and more… you’re asking for much higher error rates… and a lot of unnecessary censorship.

3. Platforms must invest in transparency and robust, rapid, appeals processes

With the above in mind, every proposal and process for takedown should include a corollary plan for restoration. Here, too, copyright law and practice can be instructive. The DMCA has a counternotice provision, which allows a user who has been improperly accused of infringement to challenge the takedown and, if the sender doesn?t go to court, the platform can restore to content without fear of liability. But the counternotice process is pretty flawed: it can be intimidating and confusing, it does little good where the content in question will be stale in two weeks, and platforms are often even slower to restore challenge material. One additional problem with counter-notices, particularly in the early days of the DMCA, was that users struggled to discover who was complaining, and the precise nature of the complaint. 

The number of requests, who is making them, and how absurd they can get has been highlighted in company transparency reports. Transparency reports can both highlight extreme instances of abuse?such as in Automattic?s Hall of Shame?or share aggregate numbers. The former is a reminder that there is no ceiling to how rightsholders can abuse the DMCA. The latter shows trends useful for policymaking. For example, Twitter?s latest report shows a 38 percent uptick in takedowns since the last report and that 154,106 accounts have been affected by takedown notices. It?s valuable data to have to evaluate the effect of the DMCA, data we also need to see what effects ?community standards? would have.

Equally important is transparency about specific takedown demands, so users who are hit with those takedowns can understand who is complaining, about what. For example, a remix artist might include multiple clips in a single video, believing they are protected fair uses. Knowing the nature of the complaint can help her revisit her fair analysis, and decide whether to fight back.

Another point on this is that, incredibly, those who support greater content policing frequently are very much against great transparency. In the copyright space, the legacy companies have often hit back against transparency and complained about things like the Lumen Database and the fact that Google publishes details of takedown demands in its transparency reports — with bogus claims about how such transparency only helps infringers. I fully expect that if we gut CDA 230, we’ll see similarly silly arguments against transparency.

4. Abuse should lead to real consequences

Congress knew that Section 512?s powerful incentives could result in lawful material being censored from the Internet without prior judicial scrutiny. To inhibit abuse, Congress made sure that the DMCA included a series of checks and balances, including Section 512(f), which gives users the ability to hold rightsholders accountable if they send a DMCA notice in bad faith.

In practice, however, Section 512(f) has not done nearly enough to curb abuse. Part of the problem is that the Ninth Circuit Court of Appeals has suggested that the person whose speech was taken down must prove to a jury the subjective belief of the censor?a standard that will be all but impossible for most to meet, particularly if they lack the deep pockets necessary to litigate the question. As one federal judge noted, the Ninth Circuit?s ?construction eviscerates § 512(f) and leaves it toothless against frivolous takedown notices.? For example, some rightsholders unreasonably believe that virtually all uses of copyrighted works must be licensed. If they are going to wield copyright law like a sword, they should at least be required to understand the weapon.

This gets back to the very first point. One of the reasons why the DMCA gets so widely abused any time anyone wants to take down anything is because there’s basically zero penalty for fling a bogus report. There is merely the theoretical penalty found in 512(f) which the courts have effectively killed off in most (hopefully not all) cases. But, again, it’s even worse than it seems. Even if there were a better version of 512(f) in place, how many people really want to go through the process of suing someone just because they took down their cat videos or whatever? In many cases, the risk is exceptionally low because even if there were a possible punishment, no one would even pursue it. So if we’re going to set up a system that can be abused — as any of these systems can be — there should be at least some weight and substance behind dealing with abusive attempts to censor content.

5. Speech regulators will never be satisfied with voluntary efforts

Platforms may think that if they ?voluntarily? embrace the role of speech police, governments and private groups will back off and they can escape regulation. As Professor Margot Kaminski observed in connection with the last major effort push through new copyright enforcement mechanisms, voluntary efforts never satisfy people speech censors:

Over the past two decades, the United States has established one of the harshest systems of copyright enforcement in the world. Our domestic copyright law has become broader (it covers more topics), deeper (it lasts for a longer time), and more severe (the punishments for infringement have been getting worse).

? We guarantee large monetary awards against infringers, with no showing of actual harm. We effectively require websites to cooperate with rights-holders to take down material, without requiring proof that it’s infringing in court. And our criminal copyright law has such a low threshold that it criminalizes the behavior of most people online, instead of targeting infringement on a true commercial scale.

In addition, as noted, the large platforms adopted a number of mechanisms to make it easier for rightsholders to go after allegedly infringing activities. But none of these legal policing mechanisms have stopped major content holders from complaining, vociferously, that they need new ways to force Silicon Valley to be copyright police. Instead, so-called “voluntary efforts” end up serving as a basis for regulation. Witness, for example, the battle to require companies to adopt filtering technologies across the board in the EU, free speech concerns be damned.

Over and over we’ve tried to point this out to the platforms that have bent over backwards to please Hollywood. It’s never, ever enough. Even when the platforms basically do exactly what was asked of them, those who wish to censor the networks always, always, always ask for more. That’s exactly what will happen if we gut CDA 230.

Again, it’s worrisome that the debates over changing intermediary liability rules don’t seem to even acknowledge the vast amount of empirical evidence we have in the copyright context. And that’s maddening, given that the copyright world shows just how broken the system can become.

Filed Under: ai, cda 230, content moderation, copyright, dmca 512, free speech, intermediary liability, takedowns