Information Technology and the Law

Grokster didn’t win, but I think the Supreme Court preserved one of the most important ideas from Sony: the technology itself is not illegal, it’s the way it’s promoted and used that’s illegal.

I thought the structure of the decision was interesting. We have a unanimous decision written by Justice Souter that completely ignores the Sony test. Then, there are two concurring (but totally opposite) opinions by Justice Ginsburg and Justice Breyer arguing about the correct interpretation of Sony. Fundamentally, Ginsburg and Breyer read the very text of Sony in different ways.

• Ginsburg implies, “The time-shifting and library-building(?) uses of the Betamax were found to be fair use; therefore, a significant number of [potential uses of the Betamax] were non-infringing, so Sony was not liable.” In Grokster, we have “no finding of any fair use and little beyond anecdotal evidence of non-infringing uses.” Ginsburg calls on Grokster to show that “a reasonable prospect that substantial or commercial non-infringing uses were likely to develop over time.”

  Ginsburg seems to completely eviscerate the “capable” part of the “capable of non-infringing uses” test. She seems to imply that if time-shifting and library-building were not fair use, then Sony would have been liable. After all, there is no way that Sony could have predicted the billion-dollar market success of pre-recorded home videos as a reasonable prospect of a substantial non-infringing use.

• Justice Breyer, on the other hand, reads the Sony decision as formulating the “capable of non-infringing uses” test and then applying it. Even if library-building and time-shifting were not fair use (and given that only 9% of VCR use was “authorized”), Sony would still not have been liable. Breyer likes the “capable of non-infringing uses” test because it’s forward-looking and doesn’t prematurely cut off technology.

These are totally different readings of Sony. I don’t think there’s any way to reconcile them. We could have guessed at Ginsburg’s reading when she made this objection in oral argument:

There is a statement — one could take it as clear — “capable of substantial noninfringing use.” That would be very clear, I agree. But Sony goes on for 13 more pages. If the standard were all that clear, it would have stopped there. … Or if you then read back, as a careful reader would, then you find the statement that the primary use of the Sony machine for most owners was time-shifting, a use that the Court found either authorized or fair, and, hence, noninfringing.

Well, that’s the last word. How will our world change now?

Majority opinion by Justice Souter; concurring opinion by Ginsberg (joined by Rehnquist and Kennedy); concurring opinion by Breyer (joined by Stevens and O’Conner).

Link.

The Supreme Court ruled today, by a 9-0 margin, that Grokster’s actions were illegal. I’ll post a link to the Court’s opinion here once it’s available.

The Supreme Court has said that it will announce decisions in all remaining cases, including Grokster, on Monday June 27.

Class members, feel free to post here about the decision if you get the urge.

For news about the case, and pointers to online discussions, check out my blog.

I was flipping through MSNBC.com and noticed this article posted yesterday. It seems that despite the requests of the MPAA and RIAA to reveal the identities of specific students they feel are violating copyright laws, the Universities they appeal to may have an option to not disclose who it is. In other words, revealing the person’s identity is contrary to their privacy rights! Please read below:

Schools don’t have to identify music pirates

‘CadillacMan’ and ‘hulk’ will remain anonymous, judge rules.
The Associated Press
Updated: 4:45 p.m. ET April 27, 2005

RALEIGH, N.C. - A federal magistrate has ruled that two North Carolina universities do not have to reveal the identities of two students accused of sharing copyrighted music on the Internet.

The music industry trade group, the Recording Industry Association of America, filed subpoenas in November 2003 asking for help identifying a North Carolina State University student who used the name “CadillacMan” and a University of North Carolina-Chapel Hill student who used the name “hulk.” The students allegedly file-swapped songs using the universities’ computer systems.

Both schools initially were willing to cooperate, but later joined attorneys for the students in opposing the request, U.S. Magistrate Judge Russell A. Eliason wrote in his order, which was filed earlier this month.

An attorney representing “Jane Doe,” the University of North Carolina student, said he was not concerned about allegations of music piracy but whether identifying her would violate privacy rights.

“We would never condone music piracy,” attorney Michael Kornbluth said. “What we’re interested in is the rights of the individual — privacy rights being protected.”

University of North Carolina administrators were pleased with the order but do not condone students’ downloading copyrighted information, school spokeswoman Lisa Katz said.

You can access this article at MSNBC.com, or click the following link.

The recent Cnet.com article points out that The Family Entertainment and Copyright Act has severely increased the penalty for pre-release copyright infringement. According to Cnet, the current law considers “the reproduction of 10 or more copies of one or more copyrighted works, which have a total retail value of $2,500 or more.” The rewrite is “written so broadly it could make a federal felon of anyone who has even one copy of a film, software program, or music file in a shared folder and should have known the copyrighted work had not been commercially released.”

While I understand the reasoning behind why intellectual property should be protected, I just can’t help but to wonder why the RIAA and MPAA (those most ecstatic over the bill) haven’t done something more administrative to stop this sort of “pre-release” leaking. I mean, isn’t that the problem? I may be completely wrong, so please correct me if I am, but it is not like robbers dressed in all black carrying a bag with a big dollar sign printed on it are rummaging through various Hollywood movie studios and recording studios in a Mission Impossible sort of grand theft. It is understood that many of these leaks come from employees along the different lines of distribution.

I would not put the burden of pre-release piracy on the Department of Justice, but would readily blame the different associations. It seems though that this Family Entertainment and Copyright Act has had this pre-release criminalization tacked on to a larger bill. The way our system works, however, will mean that probably only those egregious pre-release sharers will be the ones to come under fire while the rest of those minor sharers will continue to fly under the radar.

An independent consumer union in France (L’Union Fédérale des Consammateurs - Que Choisir) has recently managed to pass a ban on the usage of DRM technology with specific DVDs from the Paris Court of Appeals.* The union brought up the case against the producers of the movie Mulholland Drive, Les Films Alain Sarde et Studio Canal after receiving complaints from a consumer. The consumer had purchased a DVD featuring the movie and tried to make a private copy on videocassette so that he could watch the movie at his mother’s house. According to French law, making a private copy of a purchased DVD is fair use and thus the consumer was denied his fair use by the DRM technology used on the DVDs. However, the court used a different argument to justify the ban. Namely, the court’s decision was mainly based on findings that the DVD packaging was misinforming the user. The court explained that although the term “copying is prohibited” (copy prohibée) was on the package, it was printed out in small letters and was not explicit enough. Accordingly, the court ordered that the producers of the movie remove the DRM on the DVDs within one month. I think this case from overseas touches upon an interesting blend of issues we have discussed in class and I want to elaborate on how the American courts could have reacted to the same situation.

First of all, copying for private purposes in general would also be considered fair use under the US copyright law. However, the main question is whether the US courts would actually ban the utilization of DRM technology on the specific DVDs or not. I believe that the bare fact that a use is fair does not imply that the producers cannot utilize technological measures to control access to their works. Namely, DMCA indirectly gives the producers the right to place such control mechanisms on their products by specifying that whoever circumvents “a technological measure that effectively controls access to a work” protected under DMCA will be prosecuted under DMCA. Accordingly, I don’t think this argument by itself would be sufficient to pass such a ban in the US. On the other hand, since DRM technology is employed by the movie producers to ensure that no illegal copying of their movies takes place, the movie producers could even sue the individual who is trying to circumvent the DRM technology.

With respect to the second point made by the French court about the misleading packaging for the DVD, I also do not believe that this argument would be able to lead the US courts to a ban on the DRM technology use on specific DVDs. Namely, while discussing Davidson v. Internet Getaway we touched upon how the specific packaging used for a product can sometimes be misleading or not explicit enough. However, we generally agreed that a contract is conscionable as long as its terms are not unconscionable and it is clearly explained in some part of the packaging, giving the consumer the option to return the product if he does not wish to enter the contract. In this case the bare fact that the DVD can not be copied is written in small letters on the packaging leads the French court to decide that the information on the packaging is not explicit enough. Although, protection of consumer rights could require such decisions in certain situations, I believe this case does not merit a decision that favors the consumer to this extent. Namely, the producers have not kept it a secret from the consumer that the DVDs cannot be copied. They merely wrote the indication in small dimensions on the package. Moreover, given the current prevalence of DRM technology it should not come as a complete surprise to the consumer that the DVD he has just purchased uses this technology. However, since I have not seen the specific packaging I can not completely dismiss the necessity of reparation from the producers in this case. Yet, it is curious that the French court took a radical action and banned the DRM technology on all copies of the specific movie as opposed to requiring more informative packaging from the producers. Given this argument I find it very unlikely that a US court would pass such a ban.

This ruling by the French court has satisfied the independent union of consumers in France, leading to a declaration from a member of the organization that this judgment can apply to other cases as long as one has legally bought the original DVD. Indeed, the case is quite significant in reflecting the courts’ approach to the conflicts between DRM and fair use and casts a shadow over the future of such technologies in France.

* The original article is La justice interdit de protéger les DVD contre la copie