Thanks for your post, Cathy. I did not know Sherwin nearly as well as you did, but there was an aura about him that convinced me he was a legitimate advocate for the greater good. And he was sharp, too. I wish I had taken the initiative of asking him for a freewheeling chat with no agenda. I just assumed he would be around longer than myself.
The first sale doctrine (and Section 109 of the Copyright Act) ensures that copies these works can be passed around indefinitely from one person to another without the consent of the copyright owner. Unfortunately, it only applies to a lawfully made "copy" -- a material object in which the work has been fixed. When that material object is a hard drive of cloud server, you can't really pass around the portion containing the bits of that particular work. I am co-inventor of a method for digitally lending content without reproduction (Patent No. 10,338,827) and of Digitally transferring content across media without reproduction (No. 10,635,328). These patents would permit digital lending without needing the consent of the copyright owner, since the reproduction right is not infringed. It's a real shame that in the world of digital accessibility, the selection of movies to watch is far less than what a well run video store would have offered. Streaming services offer only a small fraction of the movies a typical video store would have carried. Libraries used to be able to lend books until the cover fell off, and then re-bind them and keep on lending. Now, the need the publishers's permission to keep lending. It is important that we allow the benefits of the first sale doctrine to continue to flow in the age of digital delivery.
The Supreme Court has made clear that even private agreements between parties are subject to the constitutional restraints on state action if courts are called upon to enforce them. See Shelley v. Kraemer, https://scholar.google.com/scholar_case?case=12732018998507979172. That case involved an effort to enforce a private covenant not to sell residential property to a Black purchaser.
"These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. The difference between judicial enforcement and nonenforcement of the restrictive covenants is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights on an equal footing."
The bottom line is that, when a trademark holder goes to court to enforce a TM, it is fair game for the defendant to say, "If this Court enforces the TM against my actions in this case, it would infringe upon my First Amendment right to freedom of speech. It is the same as if the government took independent action against me."
I don't think it is helpful to say "you take possession of a music file under a license." First of all, you cannot "take possession of a music file" without it being fixed in some material object. There are no "music files" floating around in a disembodied state waiting to be plucked out of thin air. So the focus is properly on the material object, not the file.
Second, and I blame the 9th Circuit for adding to the confusion, the first sale doctrine is triggered by any owner of a lawfully made copy. It makes no difference at all whether the copy was lawfully made in a factory, shipped by truck, placed on a retail shelf and then bought by a consumer, or instead simply made by downloading. A copy made when an individual, with the consent of the copyright owner, downloads (reproduces) the work into a copy or phonorecord is just as lawful as one made by the copyright owner in a factory.
Even if "illegal" (by which I'm guessing you mean "infringing" of the copyright, Congress has decreed that if you do it right, it may be illegal, but you can't be sued for it. See 17 U.S. Code § 1008, https://www.law.cornell.edu/uscode/text/17/1008
When you have a couple of hours in the evening to watch a movie, the studios want you to want to watch the new release, whether in a theater, buying the DVD, ordering the download, or streaming it. They don't want you watching a movie that's on a used DVD, regardless of whether it is in the Public Domain.
One author noted that the 1960's does not exist on Netflix - presumably, some of Netflix's customers would want to watch Psycho now and then, but Netflix is unwilling to pay what the studio would want to earn for allowing Psycho to compete with Netflix exclusives or the higher-license fee studio release.
Instead of the video store of old having 30,000 titles to choose from, all bought and paid for and available without the copyright owner's permission, we now rely on a permissions-based system in which you could subscribe to Netflix plus its top 5 competitors and still not have nearly as many choices.
My point is that PD movies seem to be the least of their worries. They want to dry up the choice of unlicensed viewing, undermining the public benefits from the first sale doctrine, and replacing it with a carefully negotiated viewing by permission only.
No one ever needed the copyright owner's permission to watch a movie once released on VHS, DVD or Blu-ray. Now, those numbers are dropping, and the digital delivery environment is becoming a walled garden in which the public need not know Psycho ever existed. Perhaps the best antidote is a shorter copyright term. "Limited times" has no practical meaning when the copyright term lasts longer than a normal human's lifetime.
Back in 1909, Congress declared that it would be "unwise" for the copyright owner to have "any control whatever" over copies placed in the stream of commerce. Slicing a deep wedge between ownership of copies and ownership of copyrights, it took the judicially-recognized "first sale doctrine" one step further, applying the right to redistribute without regard to whether the acquisition was by means other than sales (such as by gift, or by license to reproduce it via download). Section 109 says that if you own the copy, you can rent, lend, gift or sell your copy without permission from the copyright owner.
That all worked great when movies were on VHS tapes and DVDs. It used to be that you could find far more titles on Netflix than practically anywhere else, and when Redbox came along offering 99-cent DVD rentals, the studios could not legally stop the practice, since Redbox owned the DVDs and was free to rent them at whatever price it wished. 99-cent rentals meant that streaming licenses for the same movie could not be too steep.
But technological advances make it more difficult to take a movie off of your shelf and lend it, sell, it, rent it, or give it away, because your "shelf" is now your hard drive. You can still give away your copy of the movie, provided you give away your entire library residing on that storage medium.
Meanwhile, Netflix began streaming. Using a pitch along the lines of "we can pay the warehouse fees and postal service, or we can pay the studio a license fee," Netflix was able to negotiate streaming rights (public performance licenses) at rates that, for the studios, might offer a better deal than the wholesale price of Netflix's DVD purchases. Streaming took off.
But then, as Netflix gained a critical mass of subscribers, it began reducing its DVD title inventory, began producing its own movies and shows that required no license fees to stream, and had every reason not to pay for the right to stream movies the addition of which were unlikely to produce enough new subscribers -- or cause enough subscribers to cancel -- to justify the license fee.
As a result, DVD sales and availability to the public has shrunk dramatically, and streaming licenses have simply not taken up the slack. Adding to the injury, "exclusives" tend to guarantee the creation of silos, such that one needs to pay several different streaming services to get even a reasonable fraction of what used to be available. Disney wants its own silo.
There is hope, though. Thanks to US and Canadian court interpretations of the reproduction right, it is clear that shifting the work from one physical medium to another without copying is not infringement. Video industry veterans (that I am honored to work with) have recently disclosed a patent-pending process that will once again let people lend, rent, gift or sell a copy without conveying their entire library, by use of a process that shifts the work from one medium to another, such that no copy is ever made.
While some copyright owners might fear a return to the heyday of video rental, when their biggest customers were video rental stores, I suspect that many more will welcome a means to get their works out there, which is the primary purpose for granting a copyright. The intent is to maximize distribution to the masses, not maximize profit from an elite segment of the population. We need secondary markets to thrive, simply because some people will never be able to watch a movie by paying the primary market prices.
And there is a significant up-side in more movies becoming available. Just as many more movies were made when it was feasible to make a movie "direct to video" without a theatrical release income stream, smaller independent filmmakers will be able to reach wider audiences without having to get thousands of video stores to buy their movie. They used to share DVDs freely within the industry, trying to get the attention of distributors who might be willing to stock, sell and ship to video stores. If demand was low, the movie would never see the light of day. With online space-shifting, filmmakers need only persuade one video store to buy them, if that video store is able to shift the movie from the DVD to the customer's hard drive a thousand miles away. With just one video store willing to cater to true videofiles rather than just focus on niche films or new releases, we can reach the entire country - or the world. Plus, movies that appeal mostly to niche audiences, such as foreign language films or movies from particular regions or cultures can finally gain more widespread access. The fan of Bollywood movies can rent them even if there is no Indian community nearby that might warrant a local merchant carrying them, so long as the online space-shifting retailer has a copy available for space-shifting. If demand is high, the retailer will buy more copies, benefitting the filmmaker.
Bottom line: the sooner that true space-shifting comes to market, the sooner that these silos can become irrelevant, and the sooner studios will offer reasonably priced streaming licenses to all licensees in order for them to compete with the space-shifting delivery, just as they used to provide more attractive streaming licenses to compete with DVD-rental delivery.
One factor contributing to my decision to cut the cord was that there was not an option to pay extra to never have to see any shopping channels, religious right channels, or channels in foreign languages I don't understand.
I get OTA television, but tire of the way they hide the schedule details, forcing you to watch hours to see the minutes of interest. I tuned in for a "coming up at 7" race that did not happen until after 10. So I took the invitation to stream for free. But no, to see the free stuff, I have to have paid a cable service for access to the identical channel I'm watching OTA. And it apparently means that, instead of watching NBC full of ads, I can pay for a cable service in order to get a "free" stream with more ads. The Olympics are turning into a network-orchestrated reality TV show rather than a public international sporting event.
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.