Cyberlaw Central

The Seventh Circuit ruled yesterday in the case BMG Music v. Gonzalez, which involves a claim of fair use for songs downloaded from the peer to peer file sharing system, KaZaA. The district court had granted summary judgment to BMG, awarding $22,500 in statutory damages and an injunction against further infringement. Gonzalez then appealed to the Seventh Circuit.

Although Gonzalez downloaded more than 1,370 songs, the subject matter of the case is actually thirty songs that Gonzalez confirmed that she could not prove ownership of legitimately distributed copies for (i.e. she owned the CDs). How many more of the approximately 1,340 that remained she actually owned is disputed.

Her claim was that she intended only to sample music before buying it, and that this action constituted fair use under copyright. The Court went through the fair use factors of Section 107, ultimately concluding that her conduct did not constitute fair use. She copied the whole work, in this case copyrighted songs. The Court also held that her downloading affected the market for legitimate artists to make a profit from their copyrighted works. Accordingly, it could not be fair use. Further, the Court went on to point out that *all* of the downloaded songs violated the statute, it does not matter that you already own the CD. The downloading is still an unauthorized distribution of a copyrighted work. Ultimately, the district court’s grant of summary judgment was affirmed.

This case will now be cited against defendants who claim their particular circumstances are sufficiently different enough from Gonzalez’s facts to merit consideration. However, the court’s reasoning that all copies from a peer to peer service are infringements will be difficult to overcome, I believe.

Gonzalez’s argument points out a common misconception about copyrighted works: that if you own one copy of the work, like on a CD, that you own the *song.* Actually, what you own is a particular *copy* of the song. Proponents of this misconception often use the rallying cry “How many copies of _[INSERT TITLE HERE]_ do I need to buy?” I know that I have personally purchased the original Star Wars movies multiple times, at last count I have three different VHS releases, plus now the “Special Editions” on DVD. At no time did I ever receive a “lifetime copy” of the film, instead my copies are limited to the life of the media. If they should be damaged I do not have the right to pull copies off a file sharing network, but should instead be on my way to the store.

For more discussion of this case, here are some good links:

My thanks to Evan Brown who asked me to be a guest on his InternetCases.com podcast to discuss the recent controversy over RSS Hijacking. I’ve written about hijacking here and here. Also interviewed is Rick Klau, the Vice President of Business Development for Feedburner. I was fortunate to meet Rick at Blawgthink 2005.

The podcast can be downloaded from this link: InternetCases.com December 7, 2005 Podcast

In my last post on RSS Hijacking, the views there are from the point of view of the podcaster. Lisa Vaas, in a followup to her first article, has written another article for eWeek. This time, she writes about the point of view of the alleged hijacker, in this case the Podkey redirection service.

Interestingly, this appears to be a “service” that someone signed up the podcast at question to. Since Erik Marcus’ first request to Podkey was to have the service cancelled, and Podkey complied, there is no longer any contact information available as to who did the registering. Of course, Podkey would prefer us to think that Marcus or his webmaster signed up for the service and then forgot about it. We’ll see how this plays out, but if Podkey can successfully argue that consent was obtained before this alternate feed was created, then the podcaster may have little argument to present. By deleting the contact information for Marcus, Podkey may have deleted the best evidence it needed for its own defense.

Colette Vogele has a great posting on her blog about the ongoing situation regarding the RSS hijacking of the podcast of Erik Marcus. This is also the subject of an article at eWeek. Briefly, a third party has created a URL that links to the official RSS feed from Erik’s podcast. This URL has been spread throughout podcast directories as if it were the official link to subscribe to Erik’s show. If someone subscribes to this feed, it does deliver the podcast, provided that the third party interloper maintains the link back to the official feed. Now, this third party has refused to maintain the link to the official feed without a monetary payment. To add to the problem is that ITunes picked up the interloper’s URL as the feed for Erik’s podcast, so anyone who uses that program as their podcatcher cannot get the show. Erik reports that his traffic is now down 75%.

Colette reports that she is still analyzing the problem to see what the best legal theory is to apply. She has a great quote on the subject of how difficult it is to apply legal theories to new fact patterns, read her article for it. That’s what makes this area of the law so much fun to me, knowing that the conduct is wrong and trying to explain why.

Looking now at the general problem, and not the specific facts in Erik’s case, my take is that alleging copyright infringement should work, at least for purposes of a cease and desist letter. Under Section 106 of the Copyright Act there are six exclusive rights of the copyright owner. The most important right here is the exclusive right to distribute copies of the copyrighted work. I would argue that the hijacking of the RSS feed interferes with the distribution right sufficiently to constitute infringement. Another right, only for sound recordings, is “to perform the copyrighted work publicly by means of a digital audio transmission.” Section 101, Definitions, defines a “digital transmission” as “a transmission in whole or in part in a digital or other non-analog format.” To “transmit” means to “communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.” Normally, this section would protect just the unauthorized playing of the copyrighted work, but since the RSS feed is the method of the digital transmission it could also constitute infringement to interfere with its normal operation.

Interestingly, although the RSS feed itself could be copyrightable by itself if it contains sufficiently original material, this method of infringement doesn’t copy the RSS feed itself. The interloper’s site just links to the existing feed which remains intact at the podcaster’s site. The interloper just acts like any other subscriber to the feed, making it difficult to detect.

There are other possible causes of action, but since this isn’t legal advice I shall not go into them here more fully. Suffice it to say it wouldn’t be my only cause of action I would allege in a complaint.

I would be curious to obtain other’s reaction to this hypothetical copyright claim.

UPDATED TO ADD: Lisa Vaas has written another article, this time from the point of view of the alleged hijacker.

So, just what was Sony thinking? Now that the first class-action lawsuit has been filed in California, I’m sure more details on that topic will eventually emerge. Since Sony licenses the software from First 4, it may not have known all of the niceties of just how the software worked. I would not be surprised if First 4 will be required to indemnify Sony from the lawsuits over the use of its software.

So what else has happened since my last post?

As I wrote on September 30th, the battle over the expansion of the CALEA regulations (which stands for the Communications Assistance for Law Enforcement Agencies) is underway. A lawsuit filed on October 25, 2005 before the D.C. circuit asks for review of the FCC’s final order. Seven organizations, including the American Library Association, the Electronic Frontier Foundation, and the Electronic Privacy Information Center, have joined together into a coalition to request that the final order be vacated.

Interestingly, Kurt Opsahl of the EFF has reported on the views of Senator Patrick Leahy, the original sponsor of CALEA in 1994.

In relevant part, Senator Leahy said in his statement:

“Congress recognized the unique architecture of the Internet and explicitly excluded it from the scope of CALEA’s surveillance design mandates, and we did that to allow Congress to re-visit the appropriateness of such an extension as the Internet developed. Any extension of CALEA – a law written for the telephone system in 1994 – to the Internet in 2005 would be inconsistent with congressional intent.

“There are certainly legitimate law enforcement interests concerning ‘tapping’ the Internet, and they must be addressed appropriately. We need to develop suitable solutions after reaching a broad consensus. Congressional hearings are a good place to start.”

I agree that the FCC has overstepped its bounds to introduce this final rule without the congressional oversight required. Blindly applying a law designed eleven years ago to an entirely different set of technology is a scary idea.

In September, I mentioned the case filed by the Author’s Guild over the Google Print initiative. Today, the Publishers have joined in. Here is a link to the press release from the Association of American Publishers.

“The publishing industry is united behind this lawsuit against Google and united in the fight to defend their rights,” said AAP President and former Colorado Congresswoman Patricia Schroeder. “While authors and publishers know how useful Google’s search engine can be and think the Print Library could be an excellent resource, the bottom line is that under its current plan Google is seeking to make millions of dollars by freeloading on the talent and property of authors and publishers.”

Publishers, you could make millions more by cooperating with Google, and thereby selling more books. This looks like nothing more than a suit to protect an outdated business model.

Stay tuned…

The recent decision of the Delaware Supreme Court in Doe v. Cahill is interesting. Evan Brown of InternetCases.com gives a great summary of the case in his posting today.

The higher standard used by the Court before it would unmask the identity of the anonymous blogger is a good practice. The requester was required to show that he would be likely to succeed on the merits of the claim before the identity of the blogger could be revealed. Since Cahill could not prove that the statements were defamatory on their face, then the case was properly dismissed without the identity of the blogger revealed.

Looking ahead to the ramifications of the decision, I like the support given by the court to anonymous speech on the Internet. I am, however, concerned that relying on the difficulty in proving identity by technological means alone is a losing battle since the technology to identify users online keeps getting better and better. It may get to the point where there is no anonymity on the Internet when tracking cookies and statcounting code makes it possible to pinpoint the exact identity of users. It is easier in the print media to be anonymous since the technology cannot be embedded into the physical paper to track down the author.

Preserving freedoms online is always part of a delicate balancing act. The court in this case made the right call, hopefully other decisions to come will be as well reasoned.

The recent filing of a lawsuit over Google’s new planned Google Print program has raised the bar from an academic discussion of whether the program violates copyright into a full-fledged dispute.

There has been some interesting and well-reasoned discussion about it. Fred Von Lohmann of the EFF analyzed it from a fair-use point of view. Eric Goldman also has a good post on it. I fully agree with his comments about the weakness of relying on fair use in your business model. It’s not a fully fleshed-out doctrine, so your business plan may come into conflict with a new legal development faster than you can react by changing your business model.

I also can’t miss citing William Patry’s excellent discussion of the issues involved with the mere scanning and creation of the database Google will be working from. I wish I had the time to write as deeply and thoroughly about issues as he does on a regular basis.

The questions I have now are as follows:
1) Is Google’s entire business plan faulty, even for the search engine side of its business?
2) Do publishing companies have the proper rights to agree to the full-text indexing of its author’s books? Even if it is opt-in for works still protected under copyright, Google will need to make sure that the right people are providing the consent.
3) Will this case settle?

Stay tuned!

An interesting decision from the 8th Circuit, Davidson involves an appeal from the grant of summary judgment to the plaintiffs.

Davidson does business as Blizzard Entertainment, Inc., creator of popular online cooperative games like Warcraft II. In order to play a game like Warcraft II online, Blizzard’s game connects to its Battle.net servers with a secret handshake. Among other purposes, this handshake makes sure that the computer is running a legitimate copy of the game. In order to use the game, users must agree to both an End User License Agreement (“EULA”) and Terms of Use (“TOU”). Relevant to this case are the parts of both the EULA and TOU where the user agrees not to reverse engineer the software.

Defendants (two computer programmers, a systems administrator and an ISP) wanted to create their own servers where people could play Blizzard’s games. To do this, they reverse engineered the secret handshake between the game and the Battle.net server. Their version, which they released as open source software, did not authenticate the end user’s copy of the game. As a result, unauthorized copies of Blizzard’s games were allowed to play on Defendants’ servers.

At the district court level, many of the issues were resolved by a consent decree. The remaining issues were whether the reverse engineering violated the DMCA as well as several contract claims. The district court found that by conducting this reverse engineering, the defendants had violated EULA and TOU agreed to when the software was loaded. Plaintiffs were granted summary judgment on the DMCA and the contract claims, and then Defendants appealed to the 8th Circuit.

The DMCA claims involve two sections of the Copyright Act of 1976. 1201(a)(1) prohibits circumvention of a technological measure designed that “effectively controls access” to a work protected under copyright. 1201(a)(2) and 1201(b)(1) prohibits trafficking in or otherwise distributing a technological measure that “effectively controls access” to a work protected by copyright, or trafficking in technology that circumvents a technological measure “that effectively protects a right of a copyright owner.”

Defendants argued that they did not circumvent because the secret handshake is a strictly functional process that lacked creative expression, and therefore not protected by copyright. They relied on the recent Lexmark decision, in which the 6th Circuit held that there was no infringement of the code contained inside printer toner cartridges to assure they were authentic Lexmark replacement cartridges. The court disagreed with this approach. Unlike Lexmark, the secret handshake code was not freely available, in fact it had to be reverse engineered. Since the Defendants had agreed to the terms of the EULA and TOU that prohibited reverse engineering, the summary judgment on the breach of contract claims were proper.

Cyberlaw Central Comment:

This decision has been derided by several commentators, including the EFF. I’ve also read the amicus brief filed by a group of intellectual property law professors in support of the Defendants. The major grief seems to be that it harms innovation in the “add-on” software field by enforcing EULA’s that prohibit the user from using rights that would otherwise be available. My take is that this is the wrong case to argue that it is stifling innovation. The right to control where copyrighted works are publicly performed is one of the rights specifically reserved to the copyright holder under 17 U.S.C.A. §106. Davidson had every right to stop the Defendants from creating an alternate forum for playing the game. I also disagree with the criticism of EULA’s. So many software programs come with EULA’s these days that you have to agree to in order to use the software. Prohibiting reverse engineering of a commercial gaming software program isn’t one of the seven deadly sins in my book. I think it’s the right outcome, we’ll see if the reasoning used here survives scrutiny in other cases. I doubt this one is worthy of Supreme Court review.