Transcript Management of Rights in the Digital Environment

Digital Copyright
and
the Internet Revolution
WIPO-Turin LL.M., October 31 – November 1, 2012
Giancarlo F. Frosio
Normative Reaction
TPMs
The Digital
Threat
Technological
The Digital
Opportunity
Digital
Copies and
Intermediate
Digital
Copying
Liability of
ISPs
Ethical
Internet
Revolution
Social
Linguistic
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I
Technological
Revolution
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The Internet, Digitization and the Digital Dilemma
[. . . ] information wants to be free, because it has become
so cheap to distribute, copy, and recombine - too cheap to
meter. It wants to be expensive because it can be
immeasurably valuable to the recipient. That tension will not
go away . . . .
Stuart Brand (founder of Electronic Frontier Foundation), THE MEDIA LAB: INVENTING
FUTURE AT MIT 86 (Penguin Books 1986)
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THE
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The Internet, Digitization and the Digital Dilemma
“The digital dilemma”
NATIONAL RESEARCH BOARD, THE DIGITAL DILEMMA: INTELLECTUAL PROPERTY
INFORMATION AGE (National Academy Press, 2000)
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IN
THE
5
The Internet, Digitization and the Digital Dilemma
The Digital
Threat
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The Digital
Opportunity
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The Digital Threat
“earlier generations of technology . . . have presented
challenges to existing copyright law, but none have posed
the same threat as the digital age . . . .”
John V. Pavlic, New Media Technology, 1996. John V. Pavlic is executive director of the
Columbia University Center for New Media.
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The Digital Threat
notions of security and control that may have been exercisable in
the non-networked, analog world cannot be effectively transferred
to a realm where even a single digital copy can propagate millions
of perfect clones, world-wide, almost instantaneously, and where
control over the quantity and destiny of the bits that comprise
digital media will be imperfect at best.
Philip S. Corwin, legal counsel for Sharman Networks, owner of KaZaa peer-to-peer
software, in a letter to Senator Joseph R. Biden, Jr., February 26, 2002
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The Digital Threat
Here, dissemination itself carries very substantial risk of imminent
harm because the mechanism is so unusual by which
dissemination of means of circumventing access controls to
copyrighted works threatens to produce virtually unstoppable
infringement of copyright.
Universal City Studios, Inc. v. Corley, 273 F.3d 429, 60 U.S.P.Q.2d 1953, 1968 (2nd
Cir. 2001).
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Digital Copies and Digital
Rights
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Copying in the Digital Enviroment
“[I]n the digital world copying is such an essential action, so bound
up with the way computers work, that control of copying provides,
in the view of some, unexpectedly broad powers, considerably
beyond those intended by the copyright law.”
NATIONAL RESEARCH BOARD, THE DIGITAL DILEMMA: INTELLECTUAL PROPERTY
INFORMATION AGE 140 (National Academy Press, 2000)
IN
THE
“For while it may be obvious that in the world before the Internet,
copies were the obvious trigger for copyright law, upon reflection, it
should be obvious that in the world with the Internet, copies should
not be the trigger for copyright law. More precisely, they should not
always be the trigger for copyright law.”
LAWRENCE LESSIG, FREE CULTURE 140 (2004)
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Adapting the Law to Digitization
 Reproduction
 Agreed statement concerning Article 1 (4), WCT: “The reproduction
right, as set out in Article 9 of the Berne Convention, and the exceptions
permitted thereunder, fully apply in the digital environment, in particular
to use of the works in digital form. Storage of a protected work in digital
form in an electronic medium constitutes a reproduction within the
meaning of Article 9 of the Berne Convention.”
 Including temporary (or permanent) reproduction
 By any means and in any form

Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or
permanent reproduction by any means or in any form, in whole or in part (Art. 2, InfoSoc Directive)
 Communication to the public
 by wire or wireless means,
 including the making available to the public of their works
 in such a way that members of the public may access them from a
place and at a time individually chosen by them
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Adapting the Law to Digitization
 Distribution
 authors retain the right to control and license their works, when those
works are re-compiled or re-distributed electronically in the digital
environment
 The New York Times, Co. v. Tasini , 533 U.S. 483 (2001) (Freelance writers)
 National Geographic v. Greenberg, 122 S. Ct. 347 (2001) (Freelance
photographers)
 Exhaustion
 Agreed statement concerning Article 6 (2), WCT: “Nothing in this Treaty shall
affect the freedom of Contracting Parties to determine the conditions, if any,
under which the exhaustion of the right in paragraph (1) applies after the first
sale or other transfer of ownership of the original or a copy of the work with the
authorization of the author.”
 Agreed statement concerning Articles 6 and 7, WCT: “As used in these Articles,
the expressions “copies” and “original and copies,” being subject to the right of
distribution and the right of rental under the said Articles, refer exclusively to
fixed copies that can be put into circulation as tangible objects.”
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Exceptions, Temporary Copies
 Exemption of copies from copyright infringement under
certain conditions; act of reproduction must be:
 temporary and transient or incidental
 integral and essential part of a technological process
 sole purpose is to enable:
 lawful use of a work or other subject matter or a transmission, in a network
between 3rd parties by an intermediary
 no independent economic significance
 Webcasting is excluded
 also known as "streaming", is the process of digitally transmitting musical
recordings, and radio and television broadcasts over the Internet. The process is
designed not to create permanent copies on end-listeners' computer hard drives.
 MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511
(9th Cir. 1993)
 17 U.S.C. § 117 amended to overrule this holding
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Digital Right Management
and
Technological Protection
Measures
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Digital Right Managment (DRMs)
“The answer to the machine is in the machine”
Clark Charles, The Answer to the Machine is in the Machine, in THE FUTURE OF
THE COPYRIGHT IN A DIGITAL ENVIRONMENT 139-146 (P. Bernt Hugenhotltz
ed., Kluwer Law International 1996)
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Digital Rights Management (DRM) and Technological
Protection Measures (TPMs)
Digital Right Management
(DRMs)
any of several technologies used to
enforce pre-defined limitations on the
use and transfer of copyrighted digital
content.
• viewing,
• copying,
• printing,
• altering and
• everything else that can be done with
digital content.
Technological
Protection
Measures
(TPMs)
• Use
• Access
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Anti-Circumvention Provisions
WIPO Treaties
1996
Art. 11 WCT & 18 WPPT
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Digital Millenium
Copyright Act
1998
Title I, DMCA - § 1201-1205
Copyright Act
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Directive
01/29/EC
(Information
Society Directive)
Art. 6 and 7
18
WIPO Copyright Treaty 1996
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.
(Obligations Concerning Technological Measures, Art. 11 WCT)
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WIPO Copyright Treaty 1996
(1) Contracting Parties shall provide adequate and effective legal remedies against
any person knowingly performing any of the following acts knowing, or with respect
to civil remedies having reasonable grounds to know, that it will induce, enable,
facilitate or conceal an infringement of any right covered by this Treaty or the Berne
Convention:
(i) to remove or alter any electronic rights management information without
authority;
(ii) to distribute, import for distribution, broadcast or communicate to the
public, without authority, works or copies of works knowing that electronic rights
management information has been removed or altered without authority.
(2) As used in this Article, “rights management information” means information which
identifies the work, the author of the work, the owner of any right in the work, or
information about the terms and conditions of use of the work, and any numbers or
codes that represent such information, when any of these items of information is
attached to a copy of a work or appears in connection with the communication of a
work to the public.
(Obligations Concerning Right Management Information, Art. 12 WCT)
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WIPO Performance and Phonograms Treaty 1996
Contracting Parties shall provide adequate legal protection and
effective legal remedies against the circumvention of effective
technological measures that are used by performers or
producers of phonograms in connection with the exercise of
their rights under this Treaty and that restrict acts, in respect of
their performances or phonograms, which are not authorized by
the performers or the producers of phonograms concerned or
permitted by law.
(Obligations Concerning Technological Measures, Art. 18 WPPT)
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Digital Millenium Copyright Act
(a)(1) No person shall circumvent a technological
measure that effectively controls access to a work
protected under this title.
(§ 1201 (a) (1) (A))
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Digital Millenium Copyright Act
(a)(2) No person shall manufacture, import, offer to the public,
provide, or otherwise traffic in any technology, product, service,
device, component, or part thereof, that
(A) is primarily designed or produced for the purpose of
circumventing a technological measure that effectively controls
access to a work protected under this title;
(B) has only limited commercially significant purpose or use
other than to circumvent a technological measure that effectively
controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with
that person with that person’s knowledge for use in
circumventing a technological measure that effectively controls
access to a work protected under this title.
(§ 1201 (a) (2) (A) (B) (C))
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Digital Millenium Copyright Act
(a)(3) As used in this subsection
(A) to “circumvent a technological measure” means to
descramble a scrambled work, to decrypt an encrypted work, or
otherwise to avoid, bypass, remove, deactivate, or impair a
technological measure, without the authority of the copyright
owner; and
(B) a technological measure “effectively controls access to a
work” if the measure, in the ordinary course of its operation,
requires the application of information, or a process or a
treatment, with the authority of the copyright owner, to gain
access to the work.
(§ 1201 (a) (3) (A) (B))
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Digital Millenium Copyright Act
(b)(1) No person shall manufacture, import, offer to the public, provide, or
otherwise traffic in any technology, product, service, device, component, or
part thereof, that
(A) is primarily designed or produced for the purpose of circumventing
protection afforded by a technological measure that effectively protects
a right of a copyright owner under this title in a work or a portion
thereof;
(B) has only limited commercially significant purpose or use other than to
circumvent protection afforded by a technological measure that
effectively protects a right of a copyright owner under this title in a
work or a portion thereof; or
(C) is marketed by that person or another acting in concert with that
person with that person’s knowledge for use in circumventing protection
afforded by a technological measure that effectively protects a right of
a copyright owner under this title in a work or a portion thereof.
(§ 1201 (b) (1) (A) (B) (C))
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Digital Millenium Copyright Act
(b)(2) As used in this subsection
(A) to “circumvent protection afforded by a technological
measure” means avoiding, bypassing, removing, deactivating, or
otherwise impairing a technological measure; and
(B) a technological measure “effectively protects a right of a
copyright owner under this title” if the measure, in the ordinary
course of its operation, prevents, restricts, or otherwise limits
the exercise of a right of a copyright owner under this title.
(§ 1201 (b) (2) (A) (B))
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DMCA, Copyright Management Information
(a) False Copyright Management Information.— No person shall knowingly and with
the intent to induce, enable, facilitate, or conceal infringement
(1) provide copyright management information that is false, or
(2) distribute or import for distribution copyright management information that is
false.
(b) Removal or Alteration of Copyright Management Information.— No person
shall, without the authority of the copyright owner or the law
(1) intentionally remove or alter any copyright management information,
(2) distribute or import for distribution copyright management information
knowing that the copyright management information has been removed or altered
without authority of the copyright owner or the law, or
(3) distribute, import for distribution, or publicly perform works, copies of works,
or phonorecords, knowing that copyright management information has been
removed or altered without authority of the copyright owner or the law,
knowing, or, with respect to civil remedies under section 1203, having reasonable
grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any
right under this title.
(§ 1201 (b) (2) (A) (B))
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DMCA, Exemptions
Statatutory exemptions
• Exemption for Nonprofit Libraries,
Archives, and Educational
Institutions
• Law Enforcement, Intelligence, and
Other Government Activities
• Reverse Engineering
• Encryption Research
Administrativelycreated exemptions
(last issued by the
Librarian of the
Congress in July
2010)
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Information Society Directive (Dir. 01/29)
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Obligation of
appropriate
protection against
circumvention of
TPMs
(Art. 6, Par. 1)
Obligation of
appropriate
protection against
acts preparing the
circumvention:
manufacture, sale,
etc.
(Art. 6, Par. 2)
Definition of TPMs
and effective
TPMs
(Art 6, Par. 3)
Mechanism to
ensure the respect
of copyright
exceptions
(Art. 6, Par. 4)
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InfoSoc, Anti-circumvention of TPMs
(Art. 6, §1 & 2) Member States must provide
for the legal protection of TPMs:
 prevent the circumvention of effective TPMs which
the person concerned carries out knowingly or with
reasonable grounds to know that she/he is
circumventing the TPMs & activities primarily
designed or produced to circumvent TPMs (ACDs)
 prevents manufacture, sale, etc. of devices whose
main purpose is to circumvent TPMs
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InfoSoc, Effective TPMs
 “TPM means any technology, device or component that, in
the normal course of its operation, is designed to prevent or
restrict acts, in respect of works or other subject-matter,
which are not authorised by the right holder of any copyright
or any right related to copyright as provided for by law or the
sui generis right provided for in Chapter III of Directive
96/9/EC.”
 “Technological measures shall be deemed "effective" where
the use of a protected work or other subject-matter is
controlled by the right holders through application of an
access control or protection process, such as encryption,
scrambling or other transformation of the work or other
subject-matter or a copy control mechanism, which achieves
the protection objective.”
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InfoSoc, Manufacture of Circumvention Tools
 Article 6.2 requires Member States to provide legal
protection against the
"manufacture, import, distribution, sale, rental, advertisement
for sale for rental, or possession for commercial purposes of
devices, products or components of the provision of services"
for the purposes of circumventing technological
measures, including
 encryption,
 scrambling or
 other copy control mechanisms.
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InfoSoc, Right Management Information
 Art. 7.1: Legal protection against the removal or
alteration of any electronic RMI and the
diffusion of protected material from which the
RMI has been removed or altered by any person
doing so knowingly
 Art. 7.2: definition of RMI: any information
provided by right holders which identifies:
 the subject-matter protected
 the author or any other right holder
 information about the terms and conditions of use of
the protected subject-matter and
 any numbers or codes representing that information.
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Sanctions
 Member States must take effective, proportionate
and dissuasive sanctions and remedies to enforce
rights in the directive
 Member States must ensure that right holder has
right to bring action for damages or injunction (in
compliance with Artt. 44 & 45 TRIPs) and seize the
infringing goods, etc. (in compliance with Art. 46
TRIPS).
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Tensions between TPMs and Others Rights
Privileged
Uses
TPMs
Freedom of
Expression
Competition
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Tension between TPMs and Privileged Uses
[ . . . ] it is like if we had made illegal to cut barbed wire fences
regardless if they fence private property, public property or they
obstruct a public way and if we had made the manufacture and
possession of wire cutters a crime as well.
BOYLE, THE PUBLIC DOMAIN, at 83-85
Giancarlo F. Frosio
Tension between TPMs and Privileged Uses
“Through a relatively swift transformation in the basic elements of
the network, the network is increasingly recognizing a permissions
layer, layered onto the original Internet. This permissions layer will
enforce the permission the law establishes by default. It will require,
in a physical sense, the permission that the law now requires by
rule. This will be the consequence of the set of technologies
ordinarily referred to as "DRM“ – digital rights management
technologies. DRM technologies enable fine-grained control over
how content is used in a digital environment. They control whether
the content can be copied, or how often; they control how long the
content survives; they control whom the content can be shared
with, or whether it can be altered or transformed. DRM thus uses
technology to enforce control of content, independent of
whether the law authorizes that control.”
Lessig, Lawrence, Re-crafting a Public Domain, 18 YALE J. L. & HUMAN. 56, 62 (2006).
Giancarlo F. Frosio
Tension between TPMs and Privileged Uses
 Three levels of protection:
 Copyright
 TPMs
 Legal protection of TPM
 Tension: copyright’s balance (level 1) can be
jeopardized by the legal protection (level 3) of TPMs
(level 2)
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Tension between TPMs and Privileged Uses
Consumers feared a technical monopoly over all use of
copyright works, lawful as well as unlawful.
 If a TPM is introduced which blocks all copying
 and it is unlawful to circumvent that TPM,
 right owners could technically prevent copying permitted
by exceptions or where the term of copyright has expired
 in addition, it would actually be unlawful to circumvent the
technological copy protection measures.
Users will not benefit from exceptions
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Tension between TPMs and Privileged Uses
 (Art. 6.4) Member States shall take appropriate measures to
ensure that rightholders make available to the beneficiary of
an exception or limitation provided for in national law [ . . . ]
the means of benefiting from that exception or limitation, to the
extent necessary to benefit from that exception or limitation and
where that beneficiary has legal access to the protected work or
subject-matter concerned.
 Member States should promote voluntary measures taken by right
holders, including the conclusion and implementation of
agreements between right holders and other parties concerned, to
accommodate achieving the objectives of certain specific
exceptions or limitations provided for in national law.”
 In the absence of such voluntary measures or agreements,
Member States are obliged to take appropriate measures to
ensure that right holders provide beneficiaries of such exceptions
or limitations with appropriate means of benefiting from them.
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Tension between TPMs and Privileged Uses
What if the rightsholders do not provide
the users with appropriate means of
benefiting from the exceptions and
limitations?
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Tension between TPMs and Privileged Uses
Art. 6(1) protects against circumvention of all technological measures
designed to prevent or restrict acts not authorized by the rightholder,
regardless of whether the person performing the circumvention is a
beneficiary of one of the exceptions provided for in Article 5.
Common Position No. 48/2000 of 28 September 2000 adopted by the Council, with a view to
adopting a Directive of the European Parliament and of the Council on the harmonisation of
certain aspects of copyright and related rights in the information society, 2000 O.J. (C 344) 01,
19 (December 1, 2000),
[ . . . ] for even if article 6(4) creates an obligation to provide the means
to exercise a limitation, this obligation is imposed on rights owners and
does not give users any authority to perform acts of circumvention
themselves.
GUIBAULT ET AL., STUDY ON DIRECTIVE 2001/29/EC, at 106
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Tension between TPMs and Privileged Uses
This provisions shall not apply to works or other subject-matter made
available to the public on agreed contractual terms in such a way that
members of the public may access them from a place and at a time
individually chosen by them.
Art. 6 (4) InfoSoc Directive
[ . . . ] the exclusion actually extends to any work offered “on-demand”,
covering any work transmitted over the Internet, as long as the user is
able to choose and initialize that transmission.
Guibault, Evaluating Directive 2001/29/EC, at 11.
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Tension between TPMs and Freedom of Expression
 United States of America v. Elcom Ltd. a/k/a ElcomSoft Co. Ltd,
and Dmitry Sklyarov
 Universal City Studios, Inc. v. Reimerdes, 111 F.Supp. 2d 294
(S.D.N.Y. 2000)
 "Content Control System" ("CSS") circumvented by the program DeCSS
 Universal City Studios, Inc. v. Corley, 2001 U.S. App. LEXIS
25330 (2nd Cir. 2001)
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Tension between TPMs and Competition
 The Chamberlain Group, Inc. v. Skylink Technologies,
Inc., 381 F.3d 1178 (Fed. Cir. 2004)
 Garage door opener case
 Lexmark Int'l v. Static Control Components, 387 F.3d 522 (6th
Cir. 2004)
 Lexmark locked its printers using a microcontroller so that only authorized
toner cartridges could be used
 RealNetworks, Inc. v. DVD Copy Control Association, Inc., 641
F. Supp. 2d 913 (2009)
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Tension between TPMs and the Public Domain
Public
Domain
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TPMs
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Tension between TPMs and Remix Culture
Today, the practice of free culture happens, albeit against the law. Tomorrow, the practice will
simply not happen. In a line, the code will then make the law effective by making it
effectively impossible for anyone to ignore the law. [ . . . ] This change will not break the
Internet. It will not destroy much of the value of the Internet. In fact, to the extent the Internet is
viewed as a "read-only" medium, facilitating the efficient delivery of culture created elsewhere,
these changes will actually improve the Internet. They will lower the "piracy" costs of an
imperfect market [ . . . ]. But these changes will destroy a different ecology of cultural creation:
tautologically, that ecology of creativity that cannot secure permission from the rights
holder. One part of that excluded ecology is excluded because of resource constraints (the stuff
costs too much). One part is excluded because the substance of their use is beyond the
preferences of the rights holder (the use is not the sort of use the copyright owner will allow). To
be included in a movie, or within a political ad; to be remixed with hip hop; to be rendered in a
way that criticizes: these are "uses" enabled by the technology today that will only happen
tomorrow if the technology permits. [ . . . ] For the richness of culture comes not just from its
consumption (a use that the technologies of perfect control will well supply). The richness
comes as well from a broad range of participants actively making, and remaking, the
culture. This is the use of culture that the future of DRM will not (yet) support. Such use in a
digital context triggers copyright law; DRM will connect that trigger to meaningful enforcement. If
the law remains as it is defined today, that enforcement will smother much of the potential of
digital networks to reinvigorate a democratic free culture.
Lessig, Re-crafting a Public Domain, at 63.
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Liability of Information
Service Providers
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Liability of Information Service Providers
 Legal Framework
 Role and liability of Internet Service Providers (ISPs)
 Exemptions from copyright liability available under EU
and US law
 Notice and Take-down
 Case Law
 HADOPI and Three Strike Legislation
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Information Service Providers (ISPs)
 ISPs facilitate access to
material in Internet
 Provide services:






email,
bulletin boards,
chat rooms,
DSL services,
web search engines,
hosting websites, etc.
 Such services have serious
copyright implications
 In certain cases they can
trigger liability for ISPs
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ISPs Liability Exemptions
 Exemption from copyright liability for ISPs:
 recognizing the important role played by ISPs in the
“new economy”
 facilitating the use of Internet
 E-Commerce Directive (2000/31) (EU)
 US Digital Millennium Copyright Act 1998
(DMCA)
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(EU) Hosting/Storing Exemption (Art. 14)
 ISPs are exempted from liability stemming from hosting/storing any
material, including material infringing 3rd parties’ copyright
 hosting websites,
 bulletin boards, blogs, chat rooms and
 file sharing and user-generated content platforms (eg YouTube)
 Two alternative requirements :
 ISPs do not have actual knowledge of illegal activity and is not aware of facts
from which the illegal activity or information is apparent; or
 ISPs upon obtaining knowledge or awareness, acts expeditiously to remove
or to disable access to the information.
 This exemption does not apply when ISP exerts authority and
control over users (Art. 14.2 Dir.)
 Services that can be exempted must be of “mere technical,
automatic and passive nature”, which means that such services do
not entail any discretion on the part of ISP with reference to
contents
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(EU) Mere Conduit Exemption (Art. 12)
 ISPs are not liable if they are “intermediate transmitter”
 Does not initiate the transmission;
 does not select the receiver of the transmission; and
 does not select or modify the information contained in the transmission
 The exemption applies if the transmission is nothing more than
 a “conduit”, takes place for the sole purpose of carrying out the transmission
 provided the information is not stored for any period longer than is reasonably
necessary
 Examples:
 facsimile transmission,
 telex, or telephonic transmission or
 Internet connection,
 and generally, temporary transmissions over which ISPs have no control (e.g.
P2P file sharing) (not e-mail services, which entail storage and thus falls within
storage exemption)
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(EU) Caching Exemption (Art. 13)
 ISPs are not liable for the automatic, intermediate and temporary storage of
information, performed for the sole purpose of making more efficient the
information's onward transmission to other recipients of the service upon
their request, on condition that:





(a) the provider does not modify the information;
(b) the provider complies with conditions on access to the information;
(c) the provider complies with rules regarding the updating of the information, specified in a manner widely
recognised and used by industry;
(d) the provider does not interfere with the lawful use of technology, widely recognised and used by
industry, to obtain data on the use of the information; and
(e) the provider acts expeditiously to remove or to disable access to the information it has stored
upon obtaining actual knowledge of the fact that the information at the initial source of the transmission
has been removed from the network, or access to it has been disabled, or that a court or an administrative
authority has ordered such removal or disablement.
No general obligation on ISPs “to monitor the information which they
transmit or store, nor a general obligation actively to seek facts or
circumstances indicating illegal activity” (Art. 15)
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(EU) Hosting Exemption Applied
 BREIN v. Mininova, Court of Utrecht
(2009)
 No hosting exemption recognized
 Pirate Bay case (2009)
 No hosting exemption recognized
 Dailymotion v. Carion, Nord-Ouest Production
et al., Court of Appeal of Paris (2009)
 Hosting exemption recognized
 Telecinco v YouTube, Court of Madrid (2005)
 Hosting exemption recognized
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(USA) ISPs Liability Exemptions
 Sec. 512 DMCA or “Safe Harbour” provisions
 Four exemptions
 Two general requirements. All exemptions apply
provided:
 ISP “has adopted and reasonably implemented, and informs
subscribers and account holders … of a policy that provides
for the termination in appropriate circumstances of
subscribers and account holders … who are repeated
infringers”
 ISP accommodates and does not interfere with measures
necessary to protect copyrighted works (e.g. encryption)
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(USA) Section 512 DMCA
 Four exemptions:
 Conduit (Sec. 512(a) DMCA)
 Caching (Sec. 512(b) DMCA)
 Storage (Sec. 512 (c) DMCA)
 Info Location Tools (Sec. 512(d) DMCA)
 e.g. search engines, websites linking to infringing material
 ISPs complying with the requirements (both general
and specific) are not liable for money damages
 but may still be ordered by a court to perform
injunctions
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(USA) Online Storage
The exception applies to
ISPs that store infringing
material on their networks
“at the direction of users”






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websites,
chat-rooms,
blogs,
newsgroups and
file sharing platforms
user-generated content
platforms (eg YouTube)
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(USA) Online Storage
 To enjoy the exemption, the ISPs:
 must not have the right and ability to control the
infringing activity of its users or
 if it does, it does not receive a financial benefit directly
attributable to the infringing activity;
 must not be aware of the presence of infringing material
or know any facts or circumstances that would make
infringing material apparent and
 upon receiving notice from copyright owners, act
expeditiously to remove the purported infringing material
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(USA) Linking
 US law provides a safe harbour
for ISPs for linking to infringing
material, such as
 search engines,
 websites with links,
 hypertexts links, etc.
 ISPs must stop storing the
material if it receives notice that
the material infringes a copyright,
or if it has reason to believe so
(take-down procedure)
 Exemption not contained in EU
Directive
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(USA) Notice and Takedown
ISPs have no duty to monitor its service or
affirmatively seek infringing material on its system
 Two ways an ISP can be put on notice of infringing
material on its system:
 notice from the copyright owner (“take-down notice”)
 Written notice including
 identification of the material that is claimed to be infringing
 information reasonably sufficient to permit the service provider to locate the
material
 information reasonably sufficient to permit the service provider to contact the
complaining party
 good faith belief of the complaining party that the use of the material is not
authorized
 the existence of certain “red flags”
 ISP must be “aware of facts or circumstances from which
infringing activity is apparent”
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(USA) Counter-notice
 Counter-notice and put-back procedures
 ISPs must notify subscribers if their materials have been removed
 If a subscriber provides a proper “counter-notice” claiming that the
material does not infringe (512(g) DMCA)
 the ISP must then promptly notify the claiming party of such
objection
 If the © owner does not bring a lawsuit in within 14 days, the ISP is
required to restore the material to its location on its network
 Misrepresentations:
anyone who fraudulently claims copyright infringement
or fraudulently claims that non-infringing material was wrongly removed (or that
access to it was wrongfully disabled)
is liable to anyone who suffers any damages because of that
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(USA) Hosting Exemption Applied
 IO Group Inc. v. Veoh Networks (2008)
 Exempted under § 512 (c)
 Universal Music v. Veoh (2009)
 Exempted under § 512 (c)
 Viacom v. YouTube (2010)
 Exempted under § 512 (c)
 Roadshow Films Pty Ltd v. iiNET Limited
(2010)
 Exempted under § 512 (c)
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(USA) Hosting Exemption Applied
Viacom Int’l, Inc. v. YouTube, Inc. (2nd Circuit, April 5, 2012)
 § 512(c) safe harbor requires knowledge or
awareness of specific in fringing activity
 reasonable jury could find that YouTube had actual
knowledge or awareness of specific infringing activity
on its website
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Enforcement Strategies
Private
Ordering of
Copyright
Enforcement
Against
Intermediaries
Piracy
Surveillance
Against
Primary
Infringers
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Direct Infringement and Contributory Liability
Download
Reproduction
Upload
Reproduction
Communication
and making
available to the
public
Liable is also who
encourages, facilitates,
aids, abets or anyhow
benefits from unlawful
acts
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File sharing and Peer-to-Peer
It allows multiple users to access
the same file stored in a central
server
sharing of files by a direct exchange
between end-users’ PCs…
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Finding ISPs Liability
 Contributory/Vicarious/Induced Copyright
Infringement
 United States
 Sony
 Napster
 Grokster
 Authorization of Copyright Infringement
 Other Common Law Jurisdictions
 UK
 Polydor
Australia
 Kazaa
 General Tort Rule
 Civil Law Countries
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Contributory Infringement
 Governing Caselaw
 Sony Corp. of America v. Universal City Studios, Inc., 464 U.S.
417 (1984)
 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001)
 A third party assists in the commission of the
unlawful act which causes injury
 In order to prove infringement the claimant must
show that the
 infringer knew (or had reason to know) the
direct/primary infringement provided that
 the direct infringement occurs and
 there is a material contribution to such infringement
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Substantial Non Infringing Uses
 Sony Betamax
 No contributory infringement
 If a technology is capable of
“substantial
non
infringing
uses”
 Time Shifting
 Space Shifting
 Vereniging BUMA/Kazaa B.V., Hoge Raad
der Nederlanden [HR] [Supreme Court of
the Netherlands], 19 December 2003,
AN7253, C02/186HR JMH/AT (Neth.)
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Vicarious Infringement
 Governing caselaw
 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001)
 Requirements:
 if the third party had the “right and ability to control” the
infringer’s activity
 if the third party received some financial benefit from the
unlawful act
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Inducement of Copyright Infringement
 Governing Caselaw
 Metro-Goldwin-Mayer Studios, Inc. v. Grokster, 125 S.Ct. 2764
(2005)
 RIAA v. Limewire (S.D.N.Y. 2010)
 A 3rd party distributes a device
with the aim of promoting its use
to infringe copyright
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Authorizing Copyright Infringement
 Governing Caselaw
 Amstrad Electronics plc v The British
Phonograph Industry Ltd [1986]
 Polydor v. Brown [2005]
 Universal Music Australia Pty Ltd v Sharman
License Holdings Ltd [2005]
Failing to inform users about copyright
law and failing to control/supervise is to
be considered unlawful “authorization of
copyright infringement” (e.g. library with
copying machines)
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Tortious Conduct
Civil Law Countries
 General tort rule
 responsabilite’ civile in France
 Duty to care to avoid damages to others (another tort rule)
 Stichting BREIN v. Techno Design ‘Internet Programming’ BV
(NL) (2006)
 BREIN v. Mininova, Court of Utrecht (NL) (2009)
 Injunctive relief against third parties
 Certain civil law countries allow injunctions against
persons involved in someone else’s tort
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Pirate Bay case
 The Pirate Bay, Court of Appeal of
Stockholm (2009)
 Joint criminal and civil proceedings against
4 operators of the site
 Guilty of accessory to crime against
copyright law
 “The Pirate Bay has facilitated illegal file sharing
in a way that results in criminal liability for those
who run the service.”
 SGAE v Jesus Guerra, Court of Barcelona (2010)
 Offering links to P2P services is not copyright infringement
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(France) Three Strikes Provision
 An ad hoc agency, called "HADOPI" (Haute autorité
de diffusion des oeuvres et de protection des droits
sur internet) is called:
 to monitor and
 punish online
copyright infringement
 by implementing a
“three strikes rule” or
“graduate approach”
 under judicial review
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(France) Three Strikes Provision
 On claim or denunciation of copyright holders to HADOPI:
I.
(1st Strike) An email is sent to the ISP involved in the claim.
 The ISP is required, on behalf of HADOPI, to warn the user by email
 If a repeated offence is suspected by the copyright holders, by the ISP or
by HADOPI, in the 6 months following the first step, the second step of
the procedure is started
II. (2nd Strike) A certified mail is sent to the connection owner with
similar information sent in the first mail
 On failure to comply in the year following the reception of the certified
mail, the third step of the procedure is started
III. (3rd Strike) The ISP is required (under judicial review) to:
 suspend internet access for between two months and a year, during
which the subscriber is prohibited from entering into a service contract with
any other internet service provider; or
 order the subscriber to implement security measures designed to prevent
the reoccurrence of illegal downloads, with penalty fees for non-compliance
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(UK) Digital Economy Act (Draft)
 The Code sets out inter alia a three stages
notification process to inform subscribers
of allegations that their accounts have
been used for copyright infringement
 ISPs should
infringements
inform
subscribers
of
copyright
 Propose that subscribers which have received
three notifications within a year (and have not
stopped infringing copyright)
 may be included in a list requested by a copyright
owner
 The list would be useful to copyright owners, who
will then be able to take legal action
 Powers granted to the Secretary of State
to disconnect people from Internet or
slow their connections if they ignore
warnings in case of alleged infringement
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(USA) Termination of Online Accounts
 The DMCA “safe harbour” exemption applies to ISPs
 provided they inter alia have adopted and reasonably
implemented a
“policy that provides for the termination in appropriate
circumstances of subscribers and account holders of the service
provider’s system or network who are repeat infringers” (Section
512(i)(1)(A) DMCA)
 This provision does not clarify who should finally decide to
impose such sanction.
 The ISP or a judicial body?
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Private Ordering of Online Copyright Enforcement
Disconnection of Internet access should be decided
exclusively by courts
 Emergence of recent (private) agreements between copyright
owners and ISPs
 obliging ISPs to adopt graduated response regimes envisaging the possibility
of terminating Internet access of unauthorized file sharers
 Such agreements are becoming popular, especially in the US
 Verizon/Disney agreement to forward infringement notices to users, in
exchange for receiving the right to transmit Disney’s programs
 In Ireland
 as a result of a settlement agreement between major films distributors and the
most important Irish ISP (Eircom)
 a graduate response regime has become a common rule for over 40% of Irish
Internet subscribers
The “transformation” of ISPs into copyright’ enforcement
agents imperils freedom of expression
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Effects of File-sharing on the Content Market
Media piracy has been called “a global scourge,” “an
international plague,” and “nirvana for criminals,” but it is
probably better described as a global pricing problem. High
prices for media goods, low incomes, and cheap digital
technologies are the main ingredients of global media piracy.
Introduction, in MEDIA PIRACY IN EMERGING ECONOMIES i (Joe
Karaganis ed., Social Science Research Center 2011).
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Effects of File-sharing on the Content Market
Counterfeiters are only so widespread because of the
exorbitant price of original editions, a price which in itself is the
result of privileges.
A book whose circulation will be free and which will not be
sold even a third above its [true] price, will almost never be
counterfeited. Liberty in this sphere, as in every other, has the
effect of bringing everything back to its natural price, and
everyone to his natural right.
Nicolas de Condorcet, Fragments on the Freedom of the Press
(Ambroise-Firmin Didot 1776), in PRIMARY SOURCES ON COPYRIGHT
(1450-1900) (Freya Baetens trans., Lionel Bently & Martin Kretschmer
eds.)
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Effects of File-sharing on the Content Market
The question is: in a digital world, where copying and distribution are more
or less free, what does an effective regime look like? No one doubts that a
great deal of copyright piracy is taking place, but reliable data about scale
and trends is surprisingly scarce. Estimates of the scale of illegal digital
downloads in the UK ranges between 13 per cent and 65 per cent in two
studies published last year. A detailed survey of UK and international data
finds that very little of it is supported by transparent research criteria.
Meanwhile sales and profitability levels in most creative business sectors
appear to be holding up reasonably well. We conclude that many creative
businesses are experiencing turbulence from digital copyright
infringement, but that at the level of the whole economy, measurable
impacts are not as stark as is sometimes suggested.
IAN HARGREAVES, DIGITAL OPPORTUNITY. A REVIEW OF INTELLECTUAL PROPERTY AND GROWTH 10 (May 2011) (an
independent report commissioned by the UK Intellectual Property Office), http://www.ipo. gov.uk/ipreview-finalreport.pdf
(emphasis added)
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Effects of File-sharing on the Content Market
the sky is raising
MICHAEL MASNICK AND MICHAEL HO, THE SKY IS RISING: A DETAILED LOOK
ENTERTAINMENT INDUSTRY (Floor 64, January 2012)
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AT THE
STATE
OF THE
84
Effects of File-sharing on the Content Market
[ . . . ] clear that creative output in recorded music is
as high, or higher, than it was prior to Napster
Joel Waldfogel, Copyright Protection, Technological Change, and the Quality of New Products:
Evidence from Recorded Music Since Napster (NBER Working Paper Series No. 17503, March
2011)
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Effects of File-sharing on the Content Market
[ . . . ] clear that creative output in recorded music is
as high, or higher, than it was prior to Napster
Joel Waldfogel, Copyright Protection, Technological Change, and the Quality of New Products:
Evidence from Recorded Music Since Napster (NBER Working Paper Series No. 17503, March
2011)
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Effects of File-sharing on the Content Market
Piracy has been an engine of social, technological, and intellectual innovations as often as it
has been their adversary.
See ADRIAN JOHNS, PIRACY: THE INTELLECTUAL PROPERTY W ARS
Chicago Press, 2010).
FROM
GUTENBERG
TO
GATES (U. of
[I]n essence, the behavioural incentives underpinning free music downloading are the effects
of ‘unwilling to pay’ (market substitution), ‘hear before buying’ (market creation), ‘not wanting to
buy whole album’ (market segmentation), ‘not available in the CD format or on electronic paysites (market creation)’.
Birgitte Andersen and Marion Frenz, The Impact of Music Downloads and P2P File-sharing on the
Purchase of Music in Canada (DIME Working papers on Intellectual Property Rights No. 82, June 2008)
When pirates start to appear in a market it’s usually an indication that it isn’t working properly .
. . [piracy] is how inefficient systems are replaced.”
MATT MASON, THE PIRATE'S DILEMMA: HOW HACKERS, PUNK CAPITALISTS, GRAFFITI MILLIONAIRES AND OTHER
YOUTH MOVEMENTS ARE REMIXING OUR CULTURE AND CHANGING OUR WORLD 66-67 (Penguin 2008)
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Technological Innovation,
Hold-out Power and
Competition
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Technological Innovation, Copyright and Competition
the VCR is to the American film producer and the American public as
the Boston strangler is to the woman home alone.
Home Recording Of Copyrighted Works: Hearings Before the Subcomm. on Courts, Civil
Liberties, and the Administration of Justice of the Committee on the Judiciary, 97th Cong. 97
(1982) (testimony of Jack Valenti)
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Technological Innovation, Copyright and Competition
Property owners repeatedly try to leverage their
hold-out power to block
progress.
search engines and
digital image thumbnails
Perfect 10, Inc. v. Amazon.com, Inc, 508 F.3d 1146 (9th Cir. 2007);
Perfect 10, Inc. v. Amazon.com, Inc., 487 F3d 701 (9th Cir. 2007);
Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (C.D. Cal. 2006)
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Technological Innovation, Copyright and Competition
Capitol Records, Inc. v. MP3Tunes, LLC, 07 Civ. 9931 (S.D.N.Y. 2011)
(backing up services that store their customers’ songs in the clouds and noting “[i]f
enabling a party to download infringing material was sufficient to create liability,
then even search engines like Google or Yahoo! would be without DMCA
protection. In that case, the DMCA’s purpose — innovation and growth of internet
services — would be undermined”)
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Technological Innovation, Copyright and Competition
Capitol Records, LLC v. ReDigi, Inc., 12 Civ. 95 (RJS) (S.D.N.Y.
2012)
(denying a request for a preliminary judgement in an attempt to shut down an
online marketplace service for buying and selling pre-owned legally
downloaded music, which features an innovative cloud service technology that
verifies the legitimacy of a digital music file before it can be uploaded for
storage)
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Technological Innovation, Copyright and Competition
Anne Rhodes, Infographic: Why the Movie Industry is so Wrong About
SOPA?, Matador Network, January 17, 2012,
http://matadornetwork.com/ change/infographic-why-the-movieindustry-is-so-wrong-about-sopa
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Digital Libraries, Transient
Copies and Orphan Works
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94
Orphan works
(1)
the expansion of the
traditional domain of
copyright and related
rights
(4)
the territorial nature
of copyright and
related rights
(2)
the challenge of
clearing the rights of
all the works included
in a derivative works
(3)
the transferability of
copyright and related
rights
P. Bernt Hugenholtz et al., The Recasting of Copyright & Related
Rights for the Knowledge Economy 83-137 (November 2006)
(IViR report to the European Commission, DG Internal Market),
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Orphan works
There is a risk that a significant portion of orphan works cannot
be incorporated into mass-scale digitisation and heritage
preservation efforts such as Europeana or similar projects.
Commission Communication On Copyright In The Knowledge Economy, at 5-6, COM (2009)
532 final (Oct. 19, 2009)
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Orphan works
[l]ook at the situation of those trying to digitise cultural works. Europeana, the
online portal of libraries, museums and archives in Europe, is one key example.
What a digital wonder this is: a single access point for cultural treasures that
would otherwise be difficult to access, hidden or even forgotten. Will this 12
million-strong collection of books, pictures, maps, music pieces and videos stall
because copyright gets in the way? I hope not. But when it comes to 20th
century materials, even to digitise and publish orphan works and out-ofdistribution works, we have a large problem indeed. Europeana could be
condemned to be a niche player rather than a world leader if it cannot be granted
licenses and share the full catalogue of written and audio-visual material held in
our cultural institutions. And it will be frustrated in that ambition if it cannot team up
with commercial partners on terms that are consistent with public policy and with
the interests of right-holders. And all sorts of other possible initiatives, public and
private, will also be frustrated.
Neelie Kroes, European Commission Vice-President for the Digital Agenda, A Digital World of
Opportunities, speech delivered at the Forum d'Avignon - Les Rencontres Internationales de la
Culture, de l’Économie et des Medias, Avignon, France, SPEECH/10/619 (November 5, 2010)
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Orphan works
As the problem of orphan works becomes more acute and
threatens to undermine increasing numbers of digitization
projects, it is hoped that national legislatures in Europe and
elsewhere . . . introduce legislative solutions.
Stef van Gompel and P. Bernt Hugenholtz, The Orphan Works Problem: The
Copyright Conundrum of Digitizing Large-Scale Audiovisual Archives, and How
to Solve it, POPULAR COMMUNICATION - THE INTERNATIONAL JOURNAL OF MEDIA
AND CULTURE 61, 71 (2010)
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98
Orphan works
[ . . . ] “licensing chaos” frustrates digital library development,
because rights owners are difficult to find; copyrights and
transfers are unrecorded; the number of rights to clear is
immense; compensation may be prohibitively expensive; and
ownership may be ambiguous.
Hannibal Travis, Building Universal Digital Libraries: An Agenda For Copyright
Reform, 33 PEPP. L. REV. 761, 805-810 (2006)
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99
Google books
[ . . . ] a searchable database of
books by using the Google
search engine technology to
provide storage, indexing and
retrieval of texts scanned from
printed format to digital format.
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100
Google books
[ . . . ] relational database
containing the scanned images
of books and other
publications. An index is built of
each word in the scanned text
along with its relationship to
nearby words. When a user
searches the database using
keywords, a snippet of the text
comprising the keyword sought
and a certain number of
surrounding words is returned.
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101
Google books
[opt-out policy as] contrary to the black letter requirements of
the Copyright Act [ . . . ] shift[ing] the responsibility for
preventing infringement to the copyright owner rather than the
user, turning every principle of copyright law on its ear.
The McGraw-Hill Companies, Inc. et al v. Google, Inc., 05 CV 8881, at 33
(S.D.N.Y. October 19, 2005) (Plaintiffs’ Complaint)
The Author's Guild v. Google Inc., 05 CV 8136 (S.D.N.Y. September 20, 2005)
(Trial Pleading) (Class Action Complaint)
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102
Google books
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103
Google books
[The Congress that drafted modern copyright law] didn't have
Google [Book Search] in mind. By ‘copy’, Congress meant the
sort of acts that would be in competition with the incentives that
copyright law was (fittingly) meant to establish for authors.
Lawrence Lessig, Google's Tough Call, WIRED, November 2005
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Google books
For while it may be obvious that in the world before the Internet,
copies were the obvious trigger for copyright law, upon
reflection, it should be obvious that in the world with the
Internet, copies should not be the trigger for copyright law.
More precisely, they should not always be the trigger for
copyright law.”
LAWRENCE LESSIG, FREE CULTURE 140 (2004)
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105
Google books
the most troublesome doctrine in the whole of copyright.
Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939)
(per curiam)
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106
Google books
the most troublesome doctrine in the
whole of copyright.
Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir.
1939) (per curiam)
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107
Privatization of Memory Institutions
[t]he transformation from tangible or analog preservation to
digitized cultural retrieval tends to result in partial and gradual
privatization of society's memory institutions. [ . . . ] Privatization
of memory institutions thus marks a shift from the centrality of
the political and civic spheres in the construction of
cultural/social memories to the centrality of markets in this
context.
Guy Pessach, [Networked] Memory Institutions: Social Remembering,
Privatization And Its Discontents, 26 CARDOZO ARTS & ENT. L. J. 71 (2008).
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108
Privatization of Memory Institutions
Simply relying on the market is unlikely to serve the interest of
the public in the full range of potential benefits that could flow
from digital archiving.
Zimmerman Diane L., Can Our Culture Be Saved? The Future Of Digital
Archiving, 91 MINN. L. REV. 989, 1001 (2007)
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109
Privatization of Memory Institutions
The creation of mega digital libraries and bookstores such as
the one being spearheaded by Google has only reinforced the
urgency for Europe to ensure that its rich cultural heritage and
intellectual creation is make available to researchers, scholars,
consumers and the public at large.
Commission Communication On Copyright In The Knowledge Economy, COM
(2009) 532 final (Oct. 19, 2009)
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110
Privatization of Memory Institutions
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111
Privatization of Memory Institutions
Simple as it sounds, the question is extraordinarily complex. It
involves issues that concern the nature of the library to be
built, the technological difficulties of designing it, the legal
obstacles to getting it off the ground, the financial costs of
constructing and maintaining it, and the political problems of
mobilizing support for it.
Robert Darnton, Can we Create a National Digital Library?, THE NEW YORK
REVIEW OF BOOKS, October 28, 2010
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112
Taking the Orphans to the Digital Library of Alexandria
The European example at least suggests that, as nations
around the world come to realize the enormous potential
benefits of digital preservation and access, a groundswell of
support may rise up and make it possible for the international
intellectual property community to make the changes in the
balance between property interests and the public interest that
are necessary to realize those benefits.
Diane L. Zimmerman, Can Our Culture Be Saved? The Future Of Digital
Archiving, 91 MINN. L. REV. 989, 1045 (2007)
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113
Digital Commodification
and Enclosure
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114
Digital Commodification and Enclosure
“we are in the midst of an enclosure movement in our information
environment.”
Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on the
Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354, 362 (1999)
“second enclosure movement”
James Boyle, The Second Enclosure Movement and the Construction of the Public
Domain, 66 LAW & CONTEMP. PROB. 33, 52 and 62 (2003)
“information feudalism”
PETER DRAHOS WITH JOHN BRAITHWAITE, INFORMATION FEUDALISM: WHO OWNS
KNOWLEDGE ECONOMY? (Earthscan Publications 2002)
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THE
Digital Commodification and Enclosure
There is a connection between the project of information feudalism [ . . . ] and
medieval feudalism as both involve a redistribution of property rights. In the
case of medieval feudalism, the relationship of the lord to the land and vassals
was a relationship of great inequality. The majority of humble folk were subject
to the private power that lords exercised by virtue of their ownership of the
land. This private power became in effect governmental power as lords set up
private manorial systems of taxes, courts and prisons. The redistribution of
property rights in the case of information feudalism involves a transfer of
knowledge assets from the intellectual commons into private hands.
These hands belong to media conglomerates and integrated life sciences
corporations rather than individual scientists and authors. The effect of this, we
argue, is to raise levels of private monopolistic power to dangerous global
heights, at a time when states, which have been weakened by the forces of
globalization, have less capacity to protect their citizens from the
consequences of the exercise of this power. It was the loss of Rome’s capacity
to protect its citizens that provided an important condition for the feudalization
of its social relationships.
PETER DRAHOS WITH JOHN BRAITHWAITE, INFORMATION FEUDALISM: WHO OWNS
2-3 (Earthscan Publications 2002) (emphasis added)
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THE
KNOWLEDGE ECONOMY?
Digital Commodification and Enclosure
“[T]he public domain is under pressure as a result of the ongoing
march towards an information economy. Items of information,
which in the 'old' economy had little or no economic value, such
as factual data, personal data, genetic information and pure ideas,
have acquired independent economic value in the current
information age, and consequently become the object of
property rights making the information a tradable commodity.
This so-called 'commodification of information', although
usually discussed in the context of intellectual property law, is
occurring in a wide range of legal domains, including the law of
contract, privacy law, broadcasting and telecommunications law.”
P. Brent Hugenholtz and Lucie Guibault, The Future of the Public Domain: An
Introduction, in THE FUTURE OF THE PUBLIC DOMAIN: IDENTIFYING THE COMMONS IN
INFORMATION LAW 1 (Lucie Guibault and P. Brent Hugenholtz eds., Kluwer Law
International 2006)
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Digital Commodification and Enclosure
“[i]nformation that used to be “free” is now increasingly
being privatized, monitored, encrypted, and restricted.
The enclosure is caused by the conflicts and
contradictions between intellectual property laws and
the expanded capacities of new technologies. It leads to
speculation that the records of scholarly communication, the
foundations of an informed, democratic society, may be at
risk.”
Charlotte Hess and Elinor Ostrom, Introduction: An Overview of the Knowledge
Commons, in UNDERSTANDING KNOWLEDGE AS A COMMONS: FROM THEORY TO PRACTICE 326 (Charlotte Hess and Elinor Ostrom eds., MIT Press 2006)
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Digital Commodification and Enclosure
[ . . . ] possession is nine-tenths of the law.
Mark Rose, Nine-Tenths of the Law: The English Copyright
Debates and the Rhetoric of the Public Domain, 66 LAW &
CONTEMP. PROBS. 75, 85 (2003)
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Digital Commodification and Enclosure
Since Harold Demsetz, economists have viewed
property rights as a desirable tool to internalize
the full social value of people’s actions and
therefore maximize the incentive to engage in
those actions.
See Harold Demsetz, Toward a Theory of Property Rights, 57
AMERICAN ECON. REV. 347 (1967).
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Digital Commodification and Enclosure
“the tragedy of the commons”
Hardin Garrett, The Tragedy of the Commons, 162 SCIENCE 1243 (1968)
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Digital Commodification and Enclosure
“The best prescription for connecting authors to their
audiences is to extend rights into every corner where
consumers derive value from literary and artistic works. If
history is any measure, the results should be to promote
political as well as cultural diversity, ensuring a plenitude of
voices, all with the chance to be heard.”
PAUL GOLDSTEIN, COPYRIGHT'S HIGHWAY: FROM GUTENBERG TO THE CELESTIAL JUKEBOX
236 (Stanford University Press 1994)
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Digital Commodification and Enclosure
Empirical studies have shown that common resources can be
effectively managed by groups of people under suitable
conditions, such as appropriate rules, good conflict-resolution
mechanism, and well-defined group boundaries.
See generally ELINOR OSTROM, GOVERNING THE COMMONS: THE
EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION (Cambridge
University Press 1990);
ELINOR OSTROM, ROY GARDNER, AND JAMES WALKER, RULES, GAMES,
AND COMMON-POOL RESOURCES (University of Michigan Press 1994);
ELINOR OSTROM, THE DRAMA OF THE COMMONS (National Academies
Press 2002)
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Digital Commodification and Enclosure
the comedy of the commons
Carol M. Rose, The Comedy of the Commons: Custom, Commerce, and
Inherently Public Property, 53 U. CHI. L. REV. 711 (1986)
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Digital Commodification and Enclosure
the tragedy of the anti-commons
Michael A. Heller, The Tragedy of the Anticommons: Property In the
Transition from Marx to Markets, 111 HARV. L. REV. 621 (1998)
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Digital Commodification and Enclosure
“Today, the greater capacity for the dissemination of
knowledge, for cultural creativity and for scientific research
carried out by means of the enhanced facilities of computermediated telecommunication networks, has greatly raised
the marginal social losses that are attributable to the
restrictions that those adjustments in the copyright law have
placed upon the domain of information search and
exploitation.”
Paul A. David and Jared Rubin, Restricting Access to Books on the Internet: Some
Unanticipated Effects of U.S. Copyright Legislation, 5 REV. ECON. RES. COPYRIGHT ISSUES
50 (2008)
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