Transcript Copyright

Lecture 4:
Internet Copyright
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Outline
• Statutory interpretation: The Tasini Case
• Digital Millennium Copyright Act
– DeCSS
• Internet copyright cases
• Napster issues
• Digital watermarking
• International copyright
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Statutory Interpretation
• Technology can outpace the language of statutes
• Courts must determine the meaning of statutes in
new fact situations
• Principles of statutory interpretation:
– If the statute is unambiguous, it must be applied literally
– If it is ambiguous, determine legislative intent
• Look at transcripts of hearings!
– Every word matters
– Statutory Construction Act, 1 Pa. C.S. §1921
– Particular governs over the general
– Inconsistency: later clause (by date or position) wins!
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Ejusdem Generis (“of the same kind”)
• People v. Bugaiski, Mich. App. No. 194788 (6/17/97). Bugaiski
shot a dog he claimed was attacking his own dog. Criminal
prosecution under the dog law of 1919. Defenses:
– “Any person . . . may kill any dog which he sees in the act of
pursuing, worrying, or wounding any livestock or poultry or
attacking persons, and there shall be no liability on such person, in
damages or otherwise, for such killing.”
– “Livestock” means horses, stallions, colts, geldings, mares, sheep,
rams, lambs, bulls, bullocks, steers, cows, calves, mules, jacks,
jennets, burros, goats, kids and swine, and fur-bearing animals
being raised in captivity.
• Bugaiski claimed his own dog was livestock since it was a “furbearing animal raised in captivity.”
• No. Under ejusdem generis only animals “of the same kind” as
those listed are included. Prosecution can proceed.
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New York Times Co. v. Tasini, 533 U.S. 483
(2001)
• Times paid freelance writers for stories, then later sold copies of
the articles as part of an online database for a fee.
• The writers sued, claiming copyright infringement.
•
“In the absence of an express transfer of the copyright or of any rights
under it, the owner of copyright in the collective work is presumed to
have acquired only the privilege of reproducing and distributing the
contribution as part of [1] that particular collective work, [2] any revision
of that collective work, and [3] any later collective work in the same
series.” 17 U.S.C. 201(c) .
• The Times claimed that the Internet copy was a “revision” under
the statute.
• District court agreed. Reversed on appeal. Supreme Court
affirmed June 25, 2001
• Ejusdem generis says no. Clause 2 must be interpreted in the
context of clauses 1 and 3, which set the upper and lower limits
of the right. Use must be of the same kind, not unrestricted use.
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Digital Millennium Copyright Act
• Copyright Act amendments passed in 1998:
– Circumvention of copy protection mechanisms
– Copyright Management Information (CMI)
– Limited Liability of Online Service Providers (OSPs)
• Penalty:
– First offense: $500K + 5 yrs.
– Second offense: $1M + 10 yrs.
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Liability of Service Providers
• Service provider: “an entity offering the transmission, routing, or
providing of connections for digital online communications, between
or among points specified by a user, of material of the user's
choosing, without modification to the content of the material as sent
or received.”
• Transitory digital network communications
• System caching
• Information residing on systems at the direction of users
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Liability of Service Providers
• Information residing on systems at the direction of
users. SP has no liability if:
– No knowledge of infringement
– No knowledge of facts from which infringement is apparent
– After obtaining knowledge, acts expeditiously to remove
infringing content
– Does not receive direct financial benefit from the infringement
– Has designated an agent to receive notification of infringement
• Take-down provision
– No liability for removing material claimed to be infringing
17 U.S.C. §512
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Liability of Service Providers
• Information location tools. SP has no liability for
“referring or linking users to an online location containing infringing
material or infringing activity, by using information location tools,
including a directory, index, reference, pointer, or hypertext link”
under same conditions as on previous slide
• Subpoena to identify infringer
– “A copyright owner ... may request the clerk of any United
States district court to issue a subpoena to a service provider for
identification of an alleged infringer.”
17 U.S.C. §512
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Copyright Protection Circumvention
• Applies to devices that
– are primarily designed or produced for circumventing;
– have only a limited commercially significant purpose or use
other than to circumvent;
– or are marketed for use in circumventing
• Exceptions
–
–
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–
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Reverse engineering
Law enforcement
Encryption research
Protection of minors
Protection of personally identifying information
17 U.S.C. §1201
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The DeCSS Cases
• Hollywood movies are issued on DVD in encrypted form using a
system called CSS (Content Scrambling System)
• Movies can only be played on “authorized” players (ones licensed
to use CSS. Authorized players cannot copy DVDs
• A teenager in Norway (Jon Johansen) figured out how to decrypt
DVDs. He created a program called DeCSS that makes
unencrypted disk files from DVDs
• The unencrypted files can be compressed using a pirated MPEG
codec known as DivX, exchanged over the Internet and played
without a DVD player
• Eric Corley, a New York journalist, posted the source code for
DeCSS on his website, 2600.com and linked to a download site
giving an executable program and decryption instructions
• The movie industry sued Corley in Federal Court (Southern District
of New York) under the Digital Millennium Copyright Act (first court
test of the anticircumvention provisions)
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DeCSS Issues
• Is DeCSS a “circumvention device”?
• Does Corley have a First Amendment right (free
speech) to post DeCSS code
• Is Corley a contributory infringer of copyright by
providing DeCSS?
• Is linking to a copy of the code different from posting the
code?
• Every computer program is a number. Does this make
printing the number corresponding to DeCSS illegal?
• Does restricting dissemination of computer source code
inhibit scientific research? See David Touretzky’s site.
DO NOT download or run DeCSS.
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Universal City Studios et al. v. Reimerdes
(S.D.N.Y. 2000)
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•
•
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HELD, DMCA is not unconstitutional
DeCSS is a circumvention device
Corley is liable for violations of the DMCA
Corley is enjoined from posting DeCSS
Corley may not link to sites where DeCSS is available
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Extraterritoriality
• General principle: copyright law applies only to acts
occurring within the borders of a country
• iCraveTV case : Canadian corporation received U.S. TV
broadcast signals in Canada containing content
copyrighted in the US
• More than 50% of the users were in the U.S.
• U.S. copyright owners sued in Pittsburgh
• Is this infringement? Who is the infringer?
• See Twentieth Century Fox Film Corp. et al. v. iCraveTV
et al., (W.D. Pa. Nos. 00-0120, 00-0121, 2000 U.S. Dist.
LEXIS 1013)
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Copyright
• Is downloading a web page an infringement?
– “Practical equivalent of reading”, (N.D. Cal.) 1995
– Fair use? Better: implied license
• MP3, Napster, Gnutella
– List of thieves? Contributory infringement
• Databases, lists of links
• Graphic files
– Morphing, clipping
• Digital watermarks
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Pollstar, Inc. v. Gigmania (E.D. Cal. 2000)
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Pollstar is an online index of concerts
Gigmania copied the Pollstar content onto its own site
Pollstar sued for copyright infringement
Gigmania cites Feist, claiming the concert listings have
no originality
• Pollstar says concert listings are not like the white
pages. They have time value from being up-to-date
• No court has yet held that such information is
protectible. Idea: time value does not make originality
• [Gigmania was trapped by deliberate false information
posted on Pollstar]
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Current Cases
• Recording Industry Association of America v. MP3.com
(S.D. N.Y., filed Jan. 21, 2000). Claims MP3.com service
allowing users to access online copies of music they have
purchased is infringement because MP3.com had no license to
put recordings in its online archive. MP3.com claims that copies
are for personal use only and no license is required.
• RIAA v. Napster (N.D. Cal., filed Dec. 7, 1999). Injunction
against company that provides search tool for locating MP3
music files on the Internet. Defendant does not provide or host
music files itself, but suit alleges its service facilitates
infringement.
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Current Cases
• eBay v. Bidder's Edge (N.D. Cal., filed Dec. 10, 1999). Auction
site sued aggregator of auction data, alleging its tools to access
eBay's site and display information about items for auction there
violate eBay's intellectual property rights.
• Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc.,
Case No. 2:99-CV-808C (C.D. Utah, Dec. 6, 1999). “Linking
Liability.” In a case of first impression, District Court granted the
IRI a preliminary injunction against critics of the Mormon Church
finding that the defendants had engaged in contributory
copyright infringement for posting an e-mail to their site which
contained three links to web sites that they knew, or should have
known, contained infringing copies of the Church Handbook of
Instructions.
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Current Cases
• Los Angeles Times et al v. FreeRepublic.com (S.D. Cal., Nov.
8, 1999). Defendant republished news stories to solicit
comments on media coverage. Stories are reprinted with
disclaimer that they are copyrighted material. Newspapers sued
for copyright infringement. Court rejected fair use defense
• Realtor Association of Greater For Lauderdale v. Property
America Corp., filed 2/99: Copyright infringement suit. Plaintiffs
allege that defendants are using, without permission, multiple
listing service information on defendant's Web site. Defendant
argues no copyright violation because the plaintiff does not own
the facts about the properties.
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Piracy Indexes
• Streambox.com
• MP3, MP3fiend, MP3leech, MP3voyeur
• Napster, iNapster, Knapster, Macster, Rapster
• SpinFrenzy, SwapStation
• CuteMX
• Scour.com, iMesh
• Gnutella (+ 37 clones)
• Freenet
• Zeropaid.com
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Copyright
• Problem: rampant piracy
– Music
– Movies
– eBooks
– Software
• Example: Covers Archive
• Cause: zero-cost copying (1/4 cent) + no viable
micropayment mechanism
• Where does it end?
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Copy Protection
• Prevent copying in the first place
– Copy protection systems
– Secure browsers
• Make sure it’s paid for
– IP rights management systems
• Detect copying
– Digital watermarking
– Cybersurveillance
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Digital Watermarks
+
Watermark
Original image
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Watermarked image
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Digital Watermarks
Most transformations do not
affect or obliterate a
spread-sprectrum watermark
A big user: Corbis
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Cybersurveillance
Countermeasure:
When Cyveillance visits your site, deliver sanitized pages!
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SOURCE: CYVEILLANCE
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Why Digital Rights Management
Must Fail
• All senses are analog
• Media and the Internet are digital
• Copy protection systems ultimately fail because
– Recording medium is digital
– Must be converted to analog for human sensation
– The analog signal can be copied and re-digitized
• (Fails to stop piracy; succeeds at generating revenue)
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International Copyright
• Fundamental rule: “national treatment”
• Countries that have signed an international
convention (e.g. International Copyright Convention,
Berne Convention)
• Treat foreigners as their own nationals for copyright
purposes
• Problem: cost of enforcement, differing rights
• World Intellectual Property Organization
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International Law
• Example: European law recognizes “moral rights” of
authors:
– right of integrity (protects against mutilation or
destruction)
– right of attribution (“paternité” - right to be given
credit for one's work, and avoid credit for a work
one did not create)
– right of withdrawal (“retrait” - authority to remove
one's works from public circulation)
– droit de suite (the right to collect resale royalties)
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Q&A
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