Transcript INTELLECTUAL PROPERTY & THE DIGITAL ECONOMY

INTELLECTUAL PROPERTY
& THE DIGITAL ECONOMY
Pamela Samuelson,
School of Info. Mgmt. & of Law,
March 17, 1999
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CONTEXT
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Clinton Administration NII Initiative
Working Group on Intellectual Property
1995 “White Paper” & proposed cop. law
Same proposals made to int’l group
Diplomatic conference in Dec. 1996 at
World Intellectual Property Organization
(WIPO) to consider draft treaty
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MAXIMALIST DIGITAL
AGENDA AT WIPO
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Copyright control of temporary copies
Strict liability for online service providers
Copyright control of digital distributions
Fair use no longer needed because licensing
possible
• Ban “circumvention” technologies
• Protect integrity of rights mgmt. info.
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MINIMALIST WIPO TREATY
• Nothing on temporary copies
• Merely providing facilities for
communication NOT basis for liability
• Fair use still applies in digital environment
• Protection for integrity of RMI
• “Adequate protection” and “effective
remedies” for circumvention of TPS
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FRAMEWORK FOR GLOBAL
E-COMMERCE PRINCIPLES
• Private sector should lead
• Avoid undue gov’t restrictions
• When gov’t involved, “predictable,
minimalist, consistent, & simple legal
environment” (e.g., copyright)
• Recognize unique qualities of Internet
• Facilitate on global level
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ACTIONS FOLLOW
PRINCIPLES?
• WIPO Copyright Treaty consistent with
Framework principles (in spite of Clinton
Administration)
• WIPO treaty implementation legislation
proposed by Clinton Administration not
consistent with Framework principles
• Digital Millenium Copyright Act generally
OK but for anti-circumvention provisions
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DIGITAL COPYRIGHT BILLS
• Between Jan. 1997 and spring of 1998, held
up by dispute between OSPs (e.g., telcos)
and copyright industry groups
• Compromise: “safe harbors”for transitory
network communication, system caching,
information residing on systems for users,
& information location tools
• “Notice and take down” rules
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OTHER ASPECTS OF DMCA
• Temporary copying done in course of
hardware maintenance (partial fix to MAI v.
Peak)
• Study about distance education rules
• Protection for integrity of RMI (closely
tracking WIPO treaty language)
• Technical amendments (not worth
discussing)
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CIRCUMVENTION RULES
• Not clear U.S. had to pass to comply with
treaty
• Competing bills were maximalist v.
minimalist
• Maximalists = Hollywood (plus allies)
• Minimalists = Silicon Valley (plus allies)
• Administration supporting Hollywood
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ACT OF CIRCUMVENTION
• Campbell-Boucher bill: outlaw
circumvention to engage in copyright
infringement
• DMCA: ban on act of circumventing TPS
for access control, 17 U.S.C. s. 1201(a)(1)
• 2 year moratorium; study of impact on
noninfringing uses
• 7 specific exceptions
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EXCEPTIONS TO 1201(a)(1)
• Clinton bill: OK for legitimate law
enforcement, national security purposes
• House IP subcomm: nonprofit “shopping
privilege,” OK to circumvent to make fair
use of lawful copy
• Sen. Jud. Comm: exception for reverse
engineering for interop’ity; no mandate to
“read,” not broadening contrib infringement
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MORE ON EXCEPTIONS
• House Commerce Comm: encryption
research, privacy protection, parental
control; moratorium & study
• At last minute, computer security testing
exception added
• Need for “or other legitimate purpose”
exception to access control rule
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? OK CIRCUMVENTIONS ?
• Reasonable grounds to believe infringing
copy inside TPS
• Illegitimate invocation of “technical selfhelp”
• Reverse engineering for other legitimate
reasons
• Unannounced computer security testing
• News reporting about toxic spill
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ANTI-DEVICE PROVISIONS
• Illegal to “manufacture, import, offer to
public, provide or otherwise traffic” in
• Any “technology, product, service, device,
[or] component”
• If primarily designed or produced to
circumvent TPS; if only limited commercial
purpose other than to circumvent TPS or if
marketed for circumvention uses
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MORE ON DEVICE RULES
• 1201(a)(2)--devices to circumvent effective
access controls
• 1201(b)(1)--devices to circumvent effective
use controls
• Felony provisions if willful & for profit
• Generous damages & injunctions
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CURIOUS THINGS
• Only 3 exceptions to 1201(a)(1) explicitly
allow building tools to enable
• Only interoperability exception limits both
anti-device rules
• Congress meant to allow circumvention to
make fair use, but are tools to accomplish
illegal? (Ha! Ha!)
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VAULT v. QUAID
• Vault made “Prolok” copy-protection s/w
• Quaid reverse-engineered and made
“spoofing” software “Ramkey”
• Vault sued for direct infringement (copying
to reverse-engineer) and contributory
infringement (making tool to enable users
infringe copy-protected software)
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MORE ON VAULT
• No direct infringement: reverse engineering
to learn technical details OK
• No contributory infringement: substantial
noninfringing use to allow backup copies
• 17 U.S.C. sec. 117 allows owners of copies
to make backup copies
• Would the result be different now?
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VAULT POST-DMCA
• Circumventing access control or use
control?
• If former, no exception for this
• If latter, OK to circumvent to make
noninfringing uses under 1201(c)(1)
• But anti-device rules don’t speak to
illegitimate circumvention, only to
circumvention as such
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FOR SELF v. FOR MARKET?
• Quaid might bypass to make own backup
copies, but can’t do without making tool to
enable--is this illegal?
• Strict interpretation v. loose interpretation
• More likely to get in trouble if selling or
sharing with others, but what if genuinely
believe supporting noninfringing uses
• What if it’s impossible for ordinary people
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to bypass to make fair uses w/o tool?
CONSIDERATIONS
• Hollywood wanted broad anti-device rules
(more even than act of circumvention rules)
• Broad rules make it easier to sue
• No act of underlying infringement required
• Potential for infringing uses = threat
• Yet seemingly contradictory: OK to make
fair use but illegal to make tool to do?
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ANOTHER EXAMPLE
• Posit Windows 2000 as trusted system
• Intel processor ID must be on as part of
trusted system and as condition of license
• Suppose EPIC makes “spoofing” software
• Defeats access control system
• Device to defeat component of TPS for
access or use control
• Privacy exception doesn’t mention tools
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MORE CONSIDERATIONS
• EPIC software not really piracy-encourager
of sort Hollywood said this rule was about
• Sony Entertainment v. Connectix: anticircumvention claim; defeating anti-copying
scheme when users play games on iMac
with C’s emulation software
• $2500 in damages for each copy (even
though no proof of underlying
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infringement)
STUDY PROVISION
• Librarians and educators expressed
concerns about impact of TPS on access,
public domain, & fair uses
• 2 year moratorium; study by Copyright
Office of impact
• Exempt from 1201(a)(1) if negative impact
• But no defense to anti-device rules
• Another meaningless privilege?
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BROADER STUDY NEEDED
• Study other impacts of act of circumvention
rules (e.g., broader security testing)
• Study impact of anti-device rules because
overbroad and contradictory
• Potential for “strike suits”
• Potential for “chilling effects”
• Potential for other deleterious consequences
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INTERNATIONAL ISSUES
• Argument for broad anti-circumvention
rules in U.S. to promote them as
“international standards,” as proper
implementations of WIPO treaty abroad
• Only E.U. proposing similar rules so far
• E.U. and U.S. coordination in int’l arena
• WIPO treaty not yet effective, let alone part
of TRIPS (“trade with teeth”)
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CONCLUSION
• Regulation of circumvention technologies
relatively new
• Mostly been done when intent to enable
infringement is clear
• Analogy to “burglar’s tools” hides that
many technologies have dual uses
• Digital economy more likely to thrive when
copyright wears a lighter cloak
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