The First Amendment issues have sometimes been raised by a defendant in a civil suit, and never in the full-throated way they should be. Although this lawsuit necessarily alleges very specific facts pertaining to things people want to do but can't, it is a fundamental challenge to the entire scheme. The plaintiffs have the high ground here, because the DMCA emperor has been running around naked long enough, and this case allows the plaintiffs to explain precisely why the DMCA scheme (and the regulatory mis-implementation by the LOC/CO) exceed the government's authority. Even child pornography and obscenity get more favorable First Amendment treatment than non-infringing uses that require circumvention.
A look at the fundamentals gives me reason to be more optimistic than Mike Masnick is:
a. There is a “copyright clause” of the Constitution that authorizes Congress, if it so wishes, to grant exclusive rights to authors, so long as it is to advance the progress of science and the useful arts. Whether to even have copyright protection is discretionary.
b. We later amended our Constitution to provide that no law may abridge freedom of speech. First Amendment protection is not discretionary.
c. That could have meant that the copyright clause has been superseded, but for reasons I have not explored, we never went there, and instead came up with the requirement that there be First Amendment “safeguards," such as the idea/expression dichotomy, fair use, and the like.
d. Even so, it is absolutely the case that (leaving aside obscenity and child pornography) all copyright-non-infringing speech is fully protected by the First Amendment. This means that all uses of copyrighted works that are (i) not within the narrow set of exclusive rights set out in 17 USC § 106, plus any uses that are within the limitations and exceptions set out in §§ 107-122, are non-infringing, and to the degree that they are an exercise of “speech”, those uses are 100% protected by the First Amendment as a matter of law.
e. That means that if, in exercising its right to grant certain exclusive rights, Congress uses a sledge hammer where a tack hammer would more than suffice, it is unconstitutional. It also means that if the DMCA suppresses speech without regard to whether copyrights are infringed, it goes too far.
f. In this suit, I see two stories emerging. One is that the DMCA itself goes too far. At a minimum, there is a court split, where the Chamberlain (garage door openers) court rightly required a “copyright nexus” to apply exist in order to support a DMCA claim (the immediate upshot being that TPM’s that protect business models rather than copyrights should be ignored, and the logical extension is that circumvention for non-infringing use should not be made unlawful — otherwise copyright owners get to leverage their limited rights into unlimited control just by using TPM). The problem is that other courts have said no such nexus is needed. So non-infringers who must circumvent to speak walk in fear of being sued in the wrong court.
g. The second story is that the triennial rule-making for the Librarian of Congress to allow exemptions is flawed in its architecture and its implementation. It is flawed in its architecture because it violates a fundamental First Amendment right to speak without prior restraint, and to have an opportunity for meaningful prompt judicial review of any suppression. Having to ask permission through a lengthy process that occurs once every three years is a total failure, particularly since the permission is good for only three years. It is flawed in its implementation because the Register of Copyrights set out completely arbitrary conditions that imposed unnecessary barriers to obtaining permission, including improperly placing the burden of proof on the party seeking permission to speak rather than on the government seeking to prove it has the right to suppress speech.
h. To suggest that the burden of proof should be on the person seeking the exemption would be like authorizing Congress to prohibit all political speech unless an exemption is obtained. Scary thought. It should be just as scary when it means needing permission to circumvent a TPM that prevents making First Amendment-protected non-infringing use.
Let's hope we finally get some logical sense back in to the system. I recall, during the DMCA lobbying days, that an example of its application would be that if you agreed to pay for a song download, the copyright owner might legitimately prevent access until payment was processed. And, since you would not want the download to fail after payment, having a TPM coordinate the success of the download and the payment made perfect sense. No one was lobbying for the nefarious use of TPM that simply extends copyright holder control beyond the Copyright Act's express limits.
Google is a corporation. The concept of right or wrong doesn't' work for them. Dogs sniff each other's butts and bark. It may be annoying, but they are doing what dogs do. Corporations regularly do things take are not in the best interests of humanity -- including things that would be totally wrong for a human to do. It's wrong for humans because we have a conscience, and a moral compass. But the only guide to right and wrong for a corporation is what the charter says, coupled with what the law says. By that measure, advocating for something that will benefit the corporation's shareholders at the expense of humanity is never wrong unless it is (a) illegal or (b) contrary to the corporation's governing documents (which is like saying (a) again, but from a shareholder perspective). Google is not alone in this any more than my dog is alone in sniffing butts and barking at annoying times. It's what corporations do, and if they don't do it, shareholders might get restless. Google is neither good nor bad; its lobbying position is neither right nor wrong; Google is just a corporation - less than the inanimate object I'm sitting on, because at it has a body. It's up to us humans to control them. (Hmmm. Maybe a shock collar?)
Notably, there is no effort at all to identify the specific "accident" by which the warrant was issued. It's sort of like, "Your Honor, this was an accident! We were placing an online order for carryout and did not realize that the computer had switched from the "sushi menu" tab to the "subpoena" tab on our browser. Our sushi chefs happen to be named Ryan and Lowery, lol."
The police should be grateful that they got off that easy. (They won't be. Their employer is the one paying, not them.)
It is a common misconception that "The First Sale Doctrine stipulates that a rights holder is no longer entitled to control the distribution of a good once it has gone through a legitimate first sale." That is half right. But no "first sale" has ever been required since Congress first codified the doctrine in 1909. Since 1976, the Copyright Act establishes this as an entitlement belonging to the owner of a lawfully made copy. It does not limit how ownership comes about. So 17 USC § 109(a) applies to one who gains ownership by gift as well as one who already owns the material object (such as a piece of paper, a CD, or an iPhone) onto which the work is fixed by authority of the copyright owner of authority of the Copyright Act. Accordingly, if Microsoft authorizes you to download its work onto your laptop, you still own your laptop and may sell it without Microsoft's permission.
With respect to a Nest device, the question is who owns the gizmo, not who owns the software (as in the intangible work of authorship copied onto the gizmo). Under the Copyright Act, Nest has no greater right to erase or disable the operation of the work on the gizmo than J.K Rowling has of rendering the pages of my lawfully made Harry Potter book unreadable.
The issue that most troubles me about the First Amendment / copyright coexistence is the lack of any compelling explanation of why First Amendment principles do not apply with full force and effect to copyright. Sure, the Supreme Court has come up with quotable (but baseless) stuff like calling copyright the engine of free expression, and has pointed to First Amendment "safeguards" built into the Copyright Act, but that still does not explain why the ordinary operation of an amendment should not take full effect. Article 1, section 8, empowers Congress to create exclusive rights belonging to authors. Later, we amended the Constitution to provide that, notwithstanding the aforementioned power, Congress is prohibited from enacting any law abridging the freedom of speech. Copyright is an option; the First Amendment is an imperative. Congress' task then, is to decide whether to exercise the non-mandatory option of creating something in the nature of exclusive rights, and if it chooses to do so, to craft it carefully to avoid abridging freedom of speech. The notion of "balancing" the two or "accommodating" the latter is simply not an option. When in conflict, the First Amendment question should trump copyright to the same degree it would, for example, Maryland's right to issue or not issue license plates bearing characters in an order it disapproves. See Mitchell v. Md. Motor Vehicle Administration - Case No. 10, September Term, 2016, http://www.courts.state.md.us/coappeals/petitions/201604petitions.html. Perhaps it would be a hard task, but no harder than any other speech restriction.
Wow! When I went from disposing of the personalized junk mail delivered by the U.S. Postal Service to disposing of personalized junk mail delivered by my Internet Service Provider, it never occurred to me that I could patent the use of a computer to dispose of it. Even a small fraction of a penny for every licensed press of the "delete" key all over the U.S. would make me richer than Trump. But if the USPTO gives a patent for preparing incoming personalized spam using a computer, it must be duty-bound to issue my patent for getting rid of it using a computer.
The WIPO Copyright Treaty says this: "Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law."
The DMCA says this: "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."
The DMCA literally ignores the requirement of a copyright nexus (which some courts are slowly recognizing as essential), and totally ignoring the fact that the WIPO treaty only intended to apply to circumvention for infringing purposes -- not non-infringing uses permitted by law.
Sure, the DMCA also says, "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title." That should mean that the prohibition on circumvention should never be interpreted to allow the copyright owner to control uses beyond the limits of the copyright, but courts have been ignoring this, completely.
You are partially right. No license is needed to do what the law allows. But still, it is perfectly normal -- for centuries -- to treat sales of copies and licensing of works as not mutually exclusive. The common law on that point was codified in 1909 (and currently appears at 17 U.S.C. § 202). Another example, outside the scope of 117, would be, "I sell you this disc in which my work is fixed, and I license you the right to authorize two non-owners of this disc to reproduce the work onto their respective hard drives."
Also, in my prior example, a license to make a copy onto a backup DVD "for archival purposes" converts that into a lawfully made copy free from the limitation in 117(a)(2), so such EULA-licensed archival copy may be sold without infringing the copyright, wheras the 117(a)(2) archival copy may not.
Vernor v. Autodesk was horrible in that it created a false dichotomy of "licensed OR sold" with respect to "software". Adobe and Microsoft are big fans of claiming infringement of their copyrights in "software," but the Copyright Act does not even use that word. What is does talk about are "computer programs," which are literary works. Just like "books," these works can be licensed (e.g., I license you the right to make a copy of my literary work, and recite it in public), or sold (e.g., I bough a copy of your literary work). Copies are, of course, material objects in which the work is fixed. It is perfectly sensible to sell a disc along with a license -- e.g., I sell you this disc in which my work is fixed, and I license you the right to make two copies onto computer hard drives and one copy onto a backup DVD.
Christenson unfortunately failed to clearly state when it was referring to "software" as the intangible literary work and when it was referring to the tangible copy. But at least the context made that clear enough. It certainly seems to trash the Business Software Alliance's mantra that "software is licenses, not sold."
It would be nice for the Ninth Circuit to finally acknowledge the existence of Section 202, which makes perfectly clear that copies and copyrights are two different things. Ownership of a copy has no bearing on copyright ownership. Ownership of a copyright has no bearing on ownership of the copy.
My view is that the Ninth did indeed move the needle. There are active cases in the district courts in which Adobe is trying to claim that it only sells licenses for its "software". It muddies the waters, and some judges seem to take a first glance at Vernor as standing for the proposition that software is always licensed, not sold (though Vernor does not go that far, and Augusto certainly focused on ownership of the copy -- uh, phonorecord).
But I think Adobe knows its charade is on shaky ground. I mean, seriously, do its corporate assets include millions of discs and computer hard drives in millions of homes all over the world? Does it own my hard drive because I downloaded (reproduced the work onto my hard drive under license) it onto my hard drive, converting it into a copy of Adobe's literary work? For that reason, Adobe is placing more emphasis on a "license to use" the literary work -- a right found nowhere in the Copyright Act. It uses "serial number license keys" to purport to control who may "use" (privately perform?) its works, and where.
Our courts really need to step it up, and not let Adobe and its BSA cohorts redefine the Copyright Act. A vibrant first sale doctrine is essential to prevent those who depend on secondary markets from being disenfranchised from the promise of progress of science and the useful arts.
When I think of the "IP" bag, I include trade secrets. Although not created as a statutory right of "exclusion" (monopoly) like patents, copyrights and trademarks, Mike's framework still fits, and is perhaps better illustrated: Spilling the beans on a trade secret may get me in trouble because i spilled the beans, but the beans are not protected.
Even with copyright, Mike is right that we must look only to the contours of the right. The private performance of a movie, for example, is never infringing. It is perfectly legal to watch a movie, and to privately perform a movie. The fact that I do so from a stolen DVD makes no difference. The fact that I do so from an infringing copy makes no difference. So, I'm caught watching a movie using a DVD that I stole from a homeless man, that he found in the trash, that was illegally made from an illegal cam-cording of a movie being illegally shown in a theater using a reel that was stolen at gunpoint in order to finance a terrorist group? Watching it is perfectly legal, and protected b the First Amendment.
If a Republican Congress says it prefers to make antitrust laws the preferred way of dealing with something, what it really means is it doesn't want to deal with something. Ever since Reagan teamed up with the Chicago School Kool-Aid makers, "antitrust law" has been that weird uncle everyone tries to ignore during Thanksgiving dinners - a mere shadow of what it was 50-60 years ago.
If we have self-driving cars, the last thing I want is for Verizon to be doing deals with BMW and Apple to make sure their cars never crash into each other, while Comcast threatens Nokia and Chevy with slow accident-avoidance response times if they don't pony up what BMW and Apple are paying Verizon.
You have it exactly backwards. The Copyright Act specifically says that the right of the author to distribute copies of the work is "subject to" the right of the owner of the copy to distribute it without permission from the copyright owner. That is, you can't get a copyright without it being subject to the superior right of the copy's owner to lend it, sell it or give it away. And that makes perfect sense. It is quite common for us to own the tangible medium (paper, USB, computer hard drive) before the copyrighted work becomes embodied in it, making it a "copy" under the Act. If I own a piece of paper and you license me the right to reproduce your poem onto it, I still own the paper, and have the right to sell it. It should make no difference that I happened to be in Ontario at the time I reproduced it onto my paper.
It would not affect your sale of the taco itself, but it would affect the sale of any wrapper containing copyrighted text or images. Crazy, I know. Some video games have a copyrighted disc made in the USA and copyrighted packaging made abroad.
Ah, but you can copyright a recipe. See John T. Mitchell, Copyrighted Recipe for Scrambled Eggs, 2007 (Trademark Registration No. TX0007357813). And, "prior art" relates to patents, not copyrights. The devil is in idea/expression dichotomy.
It is incorrect to say that "obscene pornography" is illegal. Obscene material is not protected by the First Amendment to the U.S. Constitution (so held a 5-4 majority in the Supreme Court), but whether it is illegal depends on what specific jurisdiction you are in, what jury is judging it, and when. One court held that what may have been obscene 9 months earlier it not the same as what is obscene today, since obscenity is judged by the "contemporary" community standard, which may change rapidly.
On the question of "Whether the District Court erred by concluding that making a copyrighted work available for download on an online file-sharing network is insufficient to constitute a 'distribution' under 106(3) of the Copyright Act," I've always wondered whether the copyright owner position might backfire, and harm all copyright owners. Given that the 106(3) right is expressly made subject to 109(a) (the first sale doctrine), one would think that any expansion in the reach of 106(3) to cover making available a copy for reproduction over the Internet would necessarily expand the reach of 109(a) as well. Although the plain language of 106(3) clearly applies to "copies and phonorecords" distributed in tangible form (as those two are defined as tangible objects, if plain English can make leaving your copy out where someone can copy it a violation of the distribution right, then wouldn't anyone who legally reproduced a work from a copy or phonorecord that the copyright holder made available over the Internet necessarily have the right, without the consent of the copyright holder, to make that copy or phonorecord available to others? I know it sounds silly, but no sillier than saying I "distribute [tangible] copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership [of the physical object], or by rental, lease, or lending [of the physical object]" whenever I allow someone access to my copy sufficient to allow them to reproduce it.