Copyrights

Fi-ARRR-E & Fury: Why Even Reading the Pirated Copy of Michael Wolff’s New Book Is Probably Copyright Infringement

January 8, 2018
Copyrights, Ethics, Intellectual Property, Internet, Social Media

By Tim Joyce, MJLST EIC-Emeritus

THE SITUATION

Lately I’ve seen several Facebook links to a pirated copy of Fire & Fury: Inside the Trump White House, the juicy Michael Wolff expose documenting the first nine months of the President’s tenure. The book reportedly gives deep, behind-the-scenes perspectives on many of Mr. Trump’s most controversial actions, including firing James Comey and accusing President Obama of wiretapping Trump Tower.

It was therefore not surprising when Trump lawyers slapped a cease & desist letter on Wolff and his publisher. While there are probably volumes yet to be written about the merits of those claims (in my humble opinion: “sorry, bros, that’s not how defamation of a public figure works”), this blog post deals with the copyright implications of sharing and reading the pirated copy of the book, and the ethical quandaries it creates. I’ll start with the straightforward part.

THE APPLICABLE LAW

First, it should almost go without saying that the person who initially created the PDF copy of the 300+ page book broke the law. (Full disclosure: I did click on the Google link, but only to verify that it was indeed the book and not just a cover page. It was. Even including the page with copyright information!) I’ll briefly connect the dots for any copyright-novices reading along:

- Wolff is the “author” of the book, a “literary work” that constitutes an “original works of authorship fixed in any tangible medium of expression” [see 17 USC 102’].
- As the author, one of his copyrights is to control … well … copying. The US Code calls that “reproduction” [see 17 USC 106].
- He also gets exclusive right to “display” the literary work “by means of a film, slide, television image, or any other device or process” [see 17 USC 101]. Basically, he controls display in any medium like, say, via a Google Drive folder.
- Unauthorized reproduction, display, and/or distribution is called “infringement” [see 17 USC 501]. There are several specific exceptions carved into the copyright code for different types of creative works, uses, audiences, and other situations. But this doesn’t fall into one of those exceptions.

So, the anonymous infringer has broken the law.

[It’s not clear, yet, whether this person is also a criminal under 17 USC 506, because I haven’t seen any evidence of fraudulent intent or acting “for purposes of commercial advantage or private financial gain.”]

Next, anyone who downloads a copy of the book onto their smartphone or laptop is also an infringer. The same analysis applies as above, only with a different starting point. The underlying material’s copyright is still held by Wolff as the author. Downloading creates a “reproduction,” which is still unauthorized by the copyright owner. Unauthorized exercise of rights held exclusively by the author + no applicable exceptions = infringement.

Third, I found myself stuck as to whether I, as a person who had intentionally clicked through into the Google Drive hosting the PDF file, had also technically violated copyright law. Here, I hadn’t downloaded, but merely clicked the link which launched the PDF in a new Chrome tab. The issue I got hung up on was whether that had created a “copy,” that is a “material objects … in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” [17 USC 101]

Computer reproductions are tricky, in part because US courts lately haven’t exactly given clear guidance on the matter. (Because I was curious — In Europe and the UK, it seems like there’s an exception for temporary virtual copies, but only when incidental to lawful uses.) There’s some debate as to whether it’s infringement if only the computer is reading the file, and for a purpose different than perceiving the artistic expression. (You may remember the Google Books cases…) However, when it’s humans doing the reading, that “purpose of the copying” argument seems to fall by the wayside.

Cases like Cartoon Network v. CSC Holdings have attempted to solve the problem of temporary copies (as when a new browser window opens), but the outcome there (i.e., temporary copies = ok) was based in part on the fact that the streaming service being sued had the right to air the media in question. Their copy-making was merely for the purposes of increasing speed and reducing buffering for their paid subscribers. Here, where the right to distribute the work is decidedly absent, the outcome seems like it should be the opposite. There may be a case out there that deals squarely with this situation, but it’s been awhile since copyright class (yay, graduation!) and I don’t have free access to Westlaw anymore. It’s the best I could do in an afternoon.

Of course, an efficient solution here would be to first crack down on the entities and individuals that first make the infringement possible – ISPs and content distributors. The Digital Millennium Copyright Act already gives copyright owners a process to make Facebook take bootleg copies of their stuff down. But that only solves half the problem, in my opinion. We have to reconcile our individual ethics of infringement too.

ETHICAL ISSUES, FOR ARTISTS IN PARTICULAR

One of the more troubling aspects of this pirateering that I saw was that the link-shares came from people who make their living in the arts. These are the folks who–rightly, in my opinion–rail against potential “employers” offering “exposure” instead of cold hard cash when they agree to perform. To expect to be paid for your art, while at the same time sharing an illegal copy of someone else’s, is logically inconsistent to me.

As a former theater actor and director (read: professional almost-broke person) myself, I can understand the desire to save a few dollars by reading the pirated copy. The economics of making a living performing are tough – often you agree to take certain very-low-paying artistic jobs as loss-leaders toward future jobs. But I have only met a very few of us willing to perform for free, and even fewer who would tolerate rehearsing with the promise of pay only to be stiffed after the performance is done. That’s essentially what’s happening when folks share this bootleg copy of Michael Wolff’s book.

I’ve heard some relativistic views on the matter, saying that THIS book containing THIS information is so important NOW, that a little infringement shouldn’t matter. But you could argue that Hamilton, the hit musical about the founding of our nation and government, has equally urgent messages regarding democracy, totalitarianism, individual rights, etc. Should anyone, therefore, be allowed to just walk into the theater and see the show without paying? Should the cast be forced to continue performing even when there is no longer ticket revenue flowing to pay for their efforts? I say that in order to protect justice at all times, we have to protect justice this time.

tl;dr

Creating, downloading, and possibly even just viewing the bootleg copy of Michael Wolff’s book linking around Facebook is copyright infringement. We cannot violate this author’s rights now if we expect to have our artistic rights protected tomorrow.

Contact Me!

These were just some quick thoughts, and I’m sure there’s more to say on the matter. If you’d like to discuss any copyright issues further, I’m all ears.

Fi-ARRR-E & Fury: Why Even Reading the Pirated Copy of Michael Wolff’s New Book Is Probably Copyright Infringement

January 8, 2018
Copyrights, Ethics, Intellectual Property, Internet, Social Media

By Tim Joyce, MJLST EIC-Emeritus

THE SITUATION

Lately I’ve seen several Facebook links to a pirated copy of Fire & Fury: Inside the Trump White House, the juicy Michael Wolff expose documenting the first nine months of the President’s tenure. The book reportedly gives deep, behind-the-scenes perspectives on many of Mr. Trump’s most controversial actions, including firing James Comey and accusing President Obama of wiretapping Trump Tower.

It was therefore not surprising when Trump lawyers slapped a cease & desist letter on Wolff and his publisher. While there are probably volumes yet to be written about the merits of those claims (in my humble opinion: “sorry, bros, that’s not how defamation of a public figure works”), this blog post deals with the copyright implications of sharing and reading the pirated copy of the book, and the ethical quandaries it creates. I’ll start with the straightforward part.

THE APPLICABLE LAW

First, it should almost go without saying that the person who initially created the PDF copy of the 300+ page book broke the law. (Full disclosure: I did click on the Google link, but only to verify that it was indeed the book and not just a cover page. It was. Even including the page with copyright information!) I’ll briefly connect the dots for any copyright-novices reading along:

- Wolff is the “author” of the book, a “literary work” that constitutes an “original works of authorship fixed in any tangible medium of expression” [see 17 USC 102’].
- As the author, one of his copyrights is to control … well … copying. The US Code calls that “reproduction” [see 17 USC 106].
- He also gets exclusive right to “display” the literary work “by means of a film, slide, television image, or any other device or process” [see 17 USC 101]. Basically, he controls display in any medium like, say, via a Google Drive folder.
- Unauthorized reproduction, display, and/or distribution is called “infringement” [see 17 USC 501]. There are several specific exceptions carved into the copyright code for different types of creative works, uses, audiences, and other situations. But this doesn’t fall into one of those exceptions.

So, the anonymous infringer has broken the law.

[It’s not clear, yet, whether this person is also a criminal under 17 USC 506, because I haven’t seen any evidence of fraudulent intent or acting “for purposes of commercial advantage or private financial gain.”]

Next, anyone who downloads a copy of the book onto their smartphone or laptop is also an infringer. The same analysis applies as above, only with a different starting point. The underlying material’s copyright is still held by Wolff as the author. Downloading creates a “reproduction,” which is still unauthorized by the copyright owner. Unauthorized exercise of rights held exclusively by the author + no applicable exceptions = infringement.

Third, I found myself stuck as to whether I, as a person who had intentionally clicked through into the Google Drive hosting the PDF file, had also technically violated copyright law. Here, I hadn’t downloaded, but merely clicked the link which launched the PDF in a new Chrome tab. The issue I got hung up on was whether that had created a “copy,” that is a “material objects … in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” [17 USC 101]

Computer reproductions are tricky, in part because US courts lately haven’t exactly given clear guidance on the matter. (Because I was curious — In Europe and the UK, it seems like there’s an exception for temporary virtual copies, but only when incidental to lawful uses.) There’s some debate as to whether it’s infringement if only the computer is reading the file, and for a purpose different than perceiving the artistic expression. (You may remember the Google Books cases…) However, when it’s humans doing the reading, that “purpose of the copying” argument seems to fall by the wayside.

Cases like Cartoon Network v. CSC Holdings have attempted to solve the problem of temporary copies (as when a new browser window opens), but the outcome there (i.e., temporary copies = ok) was based in part on the fact that the streaming service being sued had the right to air the media in question. Their copy-making was merely for the purposes of increasing speed and reducing buffering for their paid subscribers. Here, where the right to distribute the work is decidedly absent, the outcome seems like it should be the opposite. There may be a case out there that deals squarely with this situation, but it’s been awhile since copyright class (yay, graduation!) and I don’t have free access to Westlaw anymore. It’s the best I could do in an afternoon.

Of course, an efficient solution here would be to first crack down on the entities and individuals that first make the infringement possible – ISPs and content distributors. The Digital Millennium Copyright Act already gives copyright owners a process to make Facebook take bootleg copies of their stuff down. But that only solves half the problem, in my opinion. We have to reconcile our individual ethics of infringement too.

ETHICAL ISSUES, FOR ARTISTS IN PARTICULAR

One of the more troubling aspects of this pirateering that I saw was that the link-shares came from people who make their living in the arts. These are the folks who–rightly, in my opinion–rail against potential “employers” offering “exposure” instead of cold hard cash when they agree to perform. To expect to be paid for your art, while at the same time sharing an illegal copy of someone else’s, is logically inconsistent to me.

As a former theater actor and director (read: professional almost-broke person) myself, I can understand the desire to save a few dollars by reading the pirated copy. The economics of making a living performing are tough – often you agree to take certain very-low-paying artistic jobs as loss-leaders toward future jobs. But I have only met a very few of us willing to perform for free, and even fewer who would tolerate rehearsing with the promise of pay only to be stiffed after the performance is done. That’s essentially what’s happening when folks share this bootleg copy of Michael Wolff’s book.

I’ve heard some relativistic views on the matter, saying that THIS book containing THIS information is so important NOW, that a little infringement shouldn’t matter. But you could argue that Hamilton, the hit musical about the founding of our nation and government, has equally urgent messages regarding democracy, totalitarianism, individual rights, etc. Should anyone, therefore, be allowed to just walk into the theater and see the show without paying? Should the cast be forced to continue performing even when there is no longer ticket revenue flowing to pay for their efforts? I say that in order to protect justice at all times, we have to protect justice this time.

tl;dr

Creating, downloading, and possibly even just viewing the bootleg copy of Michael Wolff’s book linking around Facebook is copyright infringement. We cannot violate this author’s rights now if we expect to have our artistic rights protected tomorrow.

Contact Me!

These were just some quick thoughts, and I’m sure there’s more to say on the matter. If you’d like to discuss any copyright issues further, I’m all ears.

Mechanical Curation: Spotify, Archillect, Algorithms, and AI

October 15, 2017
Artificial Intelligence, Copyrights, Intellectual Property

Jon Watkins, MJLST Staffer

A great deal of attention has been paid recently to artificial intelligence. This CGPGrey YouTube video is typical of much modern thought on artificial intelligence. The technology is incredibly exciting- until it threatens your job. This train of thought has led many, including the video above, to search for kinds of jobs which are unavoidably “human,” and thereby safe.

However, any feeling of safety that lends may be illusory. AI programs like Emily Howell, which composes sheet music, and Botnik, which writes jokes and articles, are widespread at this point. What these programs produce is increasingly indistinguishable from human-created content- not to mention increasingly innovative. Take, as another example, Harold Cohen’s comment on his AARON drawing program: “[AARON] generates objects that hold their own more than adequately, in human terms, in any gathering of similar, but human-produced, objects. . . It constitutes an existence proof of the power of machines to do some of the things we had assumed required thought. . . and creativity, and self-awareness.”

Thinking about what these machines create brings up more questions than answers. At what point is a program independent from its creator? Is any given “AI” actually creating works by itself, or is the author of the AI creating works through a proxy? The answer to these questions are enormously important, and any satisfying answer must have both legal and technical components.

To make the scope of these questions more manageable, let’s limit ourselves to one specific subset of creative work- a subset which is absolutely filled with “AI” at the moment- curation. Curation is the process of sorting through masses of art, music, or writing for the content that might be worth something to you. Curators have likely been around as long as humans have been collecting things, but up until recently they’ve been human. In the digital era, most people likely carry a dozen curators in their pocket. From Spotify and Pandora’s predictions of the music you might like, to Archillect’s AI mood board, to Facebook’s “People You May Know”, content curation is huge.

First, the legal issues. Curated collections are eligible for copyright protection, as long as they exhibit some “minimal degree of creativity.” Feist v. Rural Telephone Co., 499 U.S. 340, 345 (1991). However, as a recent monkey debacle clarified, only human authors are protected by copyright. This is implied by § 102 of the Copyright Act, which states in part that copyright protection subsists “in original works of authorship.” Works of authorship are created by authors, and authors are human. Therefore, at least legally, the author of the AI may be creating works through a proxy. However, as in the monkey case above, some courts may find there is no copyright-eligible author at all. If neither a monkey, nor a human who provides the monkey with creative tools is an author, is a human who provides a computer with creative tools an author? Goldstein v. California, a 1973 Supreme Court case, has been interpreted as standing for the proposition that computer-generated work must include “significant input from an author or user” to be copyright eligible. Does that decision need to be updated for a different era of computers?

The answer to this question is where a technical discussion may be helpful, because the answer may involve a simple spectrum of independence.

On one end of the spectrum is algorithmic curation which is deeply connected to decisions made by the algorithm’s programmer. If a programmer at Spotify writes a program which recommends I listen to certain songs, because those songs are written by artists I have a history of listening to, the end result (the recommendation) is only separated by two or three steps from the programmer. The programmer creates a rigid set of rules, which the computer implements. This seems to be no less a human work of authorship than a book written on a typewriter. Just as a programmer is separated from the end result by the program, a writer may be separated from the end result by various machinery within the typewriter. The wishes of both the programmer and the writer are carried out fairly directly, and the end results are undoubtedly human works of authorship.

More complex AI, however, is often more independent. Take for example Archillect, whose creator stated in an interview “It’s not reflecting my taste anymore . . .I’d say 60 percent of the things [she posts] are not things that I would like and share.” The process involved in Archillect, as described in the same interview, is much more complex than the simple Spotify program outlined above- “Deploying a network of bots that crawl Tumblr, Flickr, 500px, and other image-heavy sites, Archillect hunts for keywords and metadata that she likes, and posts the most promising results. . . her whole method of curation is based on the relative popularity of her different posts.”

While its author undoubtedly influenced Archillect through various programming decisions (which sites to set up bots for, frequency of posts, broad themes), much of what Archillect does is what we would characterize as judgement calls if a human were doing the work. Deeply artistic questions like “does this fit into the theme I’m shooting for?” or “is this the type of content that will be well-received by my target audience?” are being asked and answered solely by Archillect, and are answered- as seen above- differently from how Archillect’s creator would answer them.

Even closer to the “independent” end of the spectrum, however, even more complex attempts at machine curation exist. This set of programs includes some of Google’s experiments, which attempt to make a better curator by employing cutting-edge machine learning technology. This attempt comes from the same company which recently used machine learning to create an AI which taught itself to walk with very little programmer interaction. If the same approaches to AI are shared between the experiments, Google’s attempts at creating a curation AI might result in software more independent (and possibly more worthy of the title of author) than any software yet.

Nebraska: The State of Copyright

March 18, 2017
Agriculture, Copyrights

Amy Johns, MJLST Staffer

In this day and age, everyone should be aware of the truism that with great power, comes a great lobbying team. Nowhere has this been more evident in recent news than in the case of states that have tried to pass “right to repair” laws. Such a law has most recently been introduced in Nebraska as Legislative Bill 67. The purpose of the law is to require that manufacturers provide their service guides and other materials to the public, making third party repair services viable options for owners of all high-tech devices and allowing self-repair.

The campaign for this bill originated with farmers who wanted greater options to repair their high-tech farm equipment; in rural areas the accessibility of authorized repair shops is extremely limited and makes the cost of repairs much greater than for those in urban areas. Before submitting the bill, state senator Lydia Brasch relied on a December 2016 report from United States Copyright Office, which concluded that contract and consumer protection laws at the state level deal with these issues sufficiently, and that federal copyright issues are not going to preempt state laws in regards to right to repair.

The consequences of this bill extend much farther than just farm equipment, however. Similar bills have been introduced in eight states, and the result would be that manufacturers would lose control of repairing their devices; what independent repair shops see as a “monopoly” over device repair would be ended, as these companies would be required to release spare parts and information. Because of these far-reaching consequences, several companies have lobbied to kill this bill, most prominently Apple. These large companies’ main arguments are that hackers are going to have an easier time using this information to infringe on security and privacy, and also that it will weaken their intellectual property rights. Apple even offered to support the bill if the language excluded phones specifically from the included technology.

For the moment, this issue seems to be moot, as Nebraska’s law has stalled out under industry pressures. However, as these laws continue to arise in other states, this conflict will likely play out again. In particular, it’s worth noting that industries are not arguing that federal copyright law preempts state laws from interfering with copyright agreements on these devices. Rather, they are arguing against the practical implications of greater access to manuals and software information. While bringing up IP rights, these companies don’t use legal justification to argue that states should be prevented from passing these laws. The desirable outcomes of such laws are that consumers will pay less for the products that they need to use in their everyday lives; in response, Apple has claimed that their concern is states like Nebraska becoming a haven for hackers. These alarmist responses seem to be a smokescreen for the very obvious financial interest that Apple and other companies have in being the exclusive provider of repairs to their products. For people in areas where those repair services are hard to access, the consequences are serious, making repairs far more expensive than they would otherwise be. However, for these bills to be seriously considered, there needs to be greater clout on the side of these bills; as is, industry interests are going to outweigh consumer interests and kill these bills before they see the light of day.

Broadening the Ethical Concerns of Unauthorized Copyright and Rights of Publicity Usage: Do We Need More Acronyms?

March 9, 2017
Copyrights, Privacy, Torts Law

Travis Waller, MJLST Managing Editor

In 2013, Prof. Micheal Murray of Valparaiso University School of Law published an article with MJLST entitled “DIOS MIO—The KISS Principle of the Ethical Approach to Copyright and Right of Publicity Law”. (For those of you unfamiliar with the acronyms, as I was previous to reviewing this article, DIOS MIO stands for “Don’t Include Other’s Stuff or Modify It Obviously”, just as KISS stands for “Keep it Simple, Stupid”). This article explored an ethical approach to using copyrighted material or celebrity likeness that has developed over the last decade due to several court cases merging certain qualities of the two regimes together.

The general principle embodied here is that current case law tends to allow for transformative uses of either a celebrity’s likeness or a copyrighted work – that is, a use of the image or work in a way that essentially provides a new or “transformative” take on the original. At the other extreme, the law generally allows individuals to use a celebrity’s likeness if the usage is not similar enough to the actual celebrity to be identifiable, or a copyrighted work if the element used is scenes a faire or a de minimis usage. Ergo, prudent advice to a would-be user of said material may, theoretically, be summed up as “seek first to create and not to copy or exploit, and create new expression by obvious modification of the old expression and content”, or DIOS MIO/KISS for the acronym savvy.

The reason I revisit this issue is not to advocate for this framework, but rather to illustrate just how unusual of bedfellows the regimes of copyright and “rights of publicity” are. As a matter of policy, in the United States, copyright is a federal regime dedicated to the utilitarian goals of “[p]romot[ing] the progress of science,” while rights of publicity laws are state level protections with roots going back to the Victorian era Warren & Brandies publication “The Right to Privacy” (and perhaps even further back). That is to say, the “right to publicity” is not typically thought of as a strictly utilitarian regime at all, and rather more as one dedicated to either the protection of an individual’s economic interests in their likeness (a labor argument), or a protection of that individual’s privacy (a privacy tort argument).

My point is, if, in theory, copyright is meant to “promote science”, while the right to publicity is intended to either protect an individual’s right to privacy, or their right to profit from their own image, is it appropriate to consider each regime under the age-old lens of “thou shalt not appropriate?” I tend to disagree.

Perhaps a more nuanced resolution to the ethical quandary would be for a would-be user of the image or work to consider the purpose of each regime, and to ask oneself if the usage of that work or image would offend the policy goals enshrined therein. That is, to endeavor on the enlightened path of determining whether, for copyright, if their usage of a work will add to the collective library of human understanding and progress, or whether the usage of that celebrity’s likeness will infringe upon that individual’s right to privacy, or unjustly deprive the individual of their ability to profit from their own well cultivated image.

Or maybe just ask permission.

Your Honor, That Guy “Subconsciously” Copied My Music!

February 28, 2017
Copyrights, Intellectual Property

Meibo Chen, MJLST Staffer

Under the Copyright Act, 17 USC § 106, a copyright owner of a copyrighted work has exclusive rights to reproduce, create derivative works, distribute, perform, or display that work. The Copyright Act specifically carves out provisions that make it applicable to the music industry. Thus, it is no surprise that the music industry frequently utilized the courts to protect its respective works. While seemingly superfluous and redundant, such legal actions are justified as copyright infringement and piracy cost the US economy nearly $12.5 billion and more than 71,000 jobs yearly.

Copyright infringement, to the traditional public audience, simply would translate to: “that person downloaded my copyrighted music without my permission,” or “that person copied by song without my permission.” Here is the kicker that the average consumer or musician most likely would not know. There is such a thing called “subconscious copying” and “subconscious copyright infringement.” The illustrative case is George Harrison vs Bright Tunes Music Corp. Long story short, the second musician wrote a song that very similar to that of the first musician’s, give or take a few notes and chords. Even though the judge did not believe the second musician purposefully plagiarized, the second musician was nonetheless liable for a whopping $587,000.00 for subconscious plagiarism.

Flash forward to 2000, the 9th Circuit decided a similar case in Three Boys Music Corp. v. Michael Bolton, and put Learned Hand’s “subconscious copying” concept on the mantle. More specifically, the 9th Circuit articulated the concept as requiring (1) a chain of events established between plaintiff’s work and defendant’s access to that work or (2) plaintiff’s work has been widely disseminated.

That boils down to an almost ridiculously broken cause of action for copyright infringement. It is as if more famous musical works get more deference in an infringement case, just because more people heard it. It also takes the objective standard and throws it out the window, as this “subconscious copying” forces a judge or jury to dive inside the mind of the alleged infringer. To make it even more ridiculously broken, the fact-finder has to determine the SUBconscious.

Are News Aggregators Getting Their Fair Share of Fair Use?

January 20, 2016
Copyrights, Internet, Social Media

Mickey Stevens, MJLST Note & Comment Editor

Fair use is an affirmative defense to copyright that permits the use of copyrighted materials without the author’s permission when doing so fulfills copyright’s goal of promoting the progress of science and useful arts. One factor that courts analyze to determine whether or not fair use applies is whether the use is of a commercial nature or if it is for nonprofit educational purposes—in other words, whether the use is “transformative.” Recently, courts have had to determine whether automatic news aggregators can invoke the fair use defense against claims of copyright infringement. An automatic news aggregator scrapes the Internet and republishes pieces of the original source without adding commentary to the original works.

In Spring 2014, MJLST published “Associated Press v. Meltwater: Are Courts Being Fair to News Aggregators?” by Dylan J. Quinn. That article discussed the Meltwater case, in which the United States District Court for the Southern District of New York held that Meltwater—an automatic news aggregator—could not invoke the defense of fair use because its use of copyrighted works was not “transformative.” Meltwater argued that it should be treated like search engines, whose actions do constitute fair use. The court rejected this argument, stating that Meltwater customers were using the news aggregator as a substitute for the original work, instead of clicking through to the original article like a search engine.

In his article, Quinn argued that the Meltwater court’s interpretation of “transformative” was too narrow, and that such an interpretation made an untenable distinction between search engines and automatic news aggregators who function similarly. Quinn asked, “[W]hat if a news aggregator can show that its commercial consumers only use the snippets for monitoring how frequently it is mentioned in the media and by whom? Is that not a different ‘use’?” Well, the recent case of Fox News Network, LLC v. TVEyes, Inc. presented a dispute similar to Quinn’s hypothetical that might indicate support for his argument.

In TVEyes, Fox News claimed that TVEyes, a media-monitoring service that aggregated news reports into a searchable database, had infringed copyrighted clips of Fox News programs. The TVEyes database allowed subscribers to track when, where, and how words of interest are used in the media—the type of monitoring that Quinn argued should constitute a “transformative” use. In a 2014 ruling, the court held that TVEyes’ search engine that displayed clips was transformative because it converted the original work into a research tool by enabling subscribers to research, criticize, and comment. 43 F. Supp. 3d 379 (S.D.N.Y. 2014). In a 2015 decision, the court analyzed a few specific features of the TVEyes service, including an archiving function and a date-time search function. 2015 WL 5025274 (S.D.N.Y. Aug. 25, 2015). The court held that the archiving feature constituted fair use because it allowed subscribers to detect patterns and trends and save clips for later research and commentary. However, the court held that the date-time search function (allowing users to search for video clips by date and time of airing) was not fair use. The court reasoned that users who have date and time information could easily obtain that clip from the copyright holder or licensing agents (e.g. by buying a DVD).

While the court’s decision did point out that the video clip database was different in kind from that of a collection of print news articles, the TVEyes decisions show that the court may now be willing to allow automatic news aggregators to invoke the fair use defense when they can show that their collection of print news articles enables consumers to track patterns and trends in print news articles for research, criticism, and commentary. Thus, the TVEyes decisions may lead the court to reconsider the distinction between search engines and automatic news aggregators established in Meltwater that puts news aggregators at a disadvantage when it comes to fair use.

Digital Millennium Copyright Act Exemptions Announced

November 17, 2015
Copyrights, Data, Intellectual Property, Internet, Privacy

Zach Berger, MJLST Staffer

The Digital Millennium Copyright Act (DMCA) first enacted in 1998, prevents owners of digital devices from making use of these devices in any way that the copyright holder does not explicitly permit. Codified in part in 17 U.S.C. § 1201, the DMCA makes it illegal to circumvent digital security measures that prevent unauthorized access to copyrighted works such has movies, video games, and computer programs. This law prevents users from breaking what is known as access controls, even if the purpose would fall under lawful fair use. According to the Electronic Frontier Foundation’s (a nonprofit digital rights organization) staff attorney Kit Walsh, “This ‘access control’ rule is supposed to protect against unlawful copying. But as we’ve seen in the recent Volkswagen scandal . . . it can be used instead to hide wrongdoing hidden in computer code.” Essentially, everything not explicitly permitted is forbidden.

However, these restrictions are not iron clad. Every three years, users are allowed to request exemptions to this law for lawful fair uses from the Library of Congress (LOC), but these exemptions are not easy to receive. In order to receive an exemption, activists must not only propose new exemptions, but also plead for ones already granted to be continued. The system is flawed, as users often need to have a way to circumvent their devices to make full use of the products. However, the LOC has recently released its new list of exemptions, and this expanded list represents a small victory for digital rights activists.

The exemptions granted will go into effect in 2016, and cover 22 types of uses affecting movies, e-books, smart phones, tablets, video games and even cars. Some of the highlights of the exemptions are as follows:

Movies where circumvention is used in order to make use of short portions of the motion pictures:
- For educational uses by University and grade school instructors and students.
- For e-books offering film analysis
- For uses in noncommercial videos
Smart devices
- Can “jailbreak” these devices to allow them to interoperate with or remove software applications, allows phones to be unlocked from their carrier
- Such devices include, smart phones, televisions, and tablets or other mobile computing devices
  - In 2012, jailbreaking smartphones was allowed, but not tablets. This distinction has been removed.
- Video Games
  - Fan operated online servers are now allowed to support video games once the publishers shut down official servers.
    - However, this only applies to games that would be made nearly unplayable without the servers.
  - Museums, libraries, and archives can go a step further by jailbreaking games as needed to get them functioning properly again.
- Computer programs that operate things primarily designed for use by individual consumers, for purposes of diagnosis, repair, and modification
  - This includes voting machines, automobiles, and implantation medical devices.
- Computer programs that control automobiles, for purposes of diagnosis, repair, and modification of the vehicle

These new exemptions are a small, but significant victory for consumers under the DMCA. The ability to analyze your automotive software is especially relevant in the wake of the aforementioned Volkswagen emissions scandal. However, the exemptions are subject to some important caveats. For example, only video games that are almost completely unplayable can have user made servers. This means that games where only an online multiplayer feature is lost, such servers are not allowed. A better long-term solution is clearly needed, as this burdensome process is flawed and has led to what the EFF has called “unintended consequences.” Regardless, as long as we still have this draconian law, exemptions will be welcomed. To read the final rule, register’s recommendation, and introduction (which provides a general overview) click here.

My Body, My Tattoo, My Copyright?

December 5, 2013
Copyrights, Intellectual Property

by Jenny Nomura, UMN Law Student, MJLST Managing Editor

A celebrity goes into a tattoo shop and gets an elaborate tattoo on her arm. The celebrity and her tattoo appear on TV and in magazines, and as a result, the tattoo becomes well-known. A director decides he wants to copy that tattoo for his new movie. He has an actress appear in the film with a copy of the signature tattoo. Not long after, the film company gets notice of a copyright infringement lawsuit filed against them, from the original tattoo artist. Similar situations are actually happening. Mike Tyson’s face tattoo artist sued Warner Bros. for copying his tattoo in “The Hangout Part 2.” Warner Bros. settled with the tattoo artist. Another tattoo artist, Christopher Escobedo, designed a large tattoo on a mixed martial arts fighter, Carlos Condit. Both the tattoo and the fighter appeared in a video game. Now Escobedo wants thousands of dollars for copyright infringement. Most people who get a tattoo never think about potential copyright issues, but these recent events might change that.

These situations leave us with a lot of uncertainties and questions. First of all, is there a copyright in a tattoo? It’s seems like it meets the basic definition of a copyright, but maybe just a thin copyright (most tattoos don’t have a lot of originality). Assuming there is a copyright, who owns the copyright: the wearer or the tattoo artist? Who can the owner, whoever he is, sue for copyright infringement? Can he or she sue other tattoo artists for violation of right of derivative works? Can he or she sue for violation of reproduction if another tattoo artist copies the original onto someone else? What about bringing a lawsuit against a film company for publicly displaying the tattoo? There are plenty of tattoos of copyrighted and trademarked materials, so could tattoo artists and wearers themselves be sued for infringement?

What can be done to avoid copyright infringement lawsuits? Assuming that the owner of the copyright is the tattoo artist, the potential-wearer could have the tattoo artist sign a release. It may cost more money to get the tattoo, but there’s no threat of a lawsuit. It has been argued that the best outcome would be if a court found an implied license. Sooner or later someone is going to refuse to settle and we will have a tattoo copyright infringement lawsuit and hopefully get some answers.

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