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05.20.2008

U.S. Implementation of the Making-Available Right

CSDP just released a new paper addressing a question that has attracted much recent attention: Does posting a copyrighted work on a website or “sharing” it over a peer-to-peer file-sharing network like KaZaA infringe the exclusive rights that U.S. law grants to copyright owners? In other words, does the U.S. Copyright Act provide the “making available” right required by the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty, and at least six bilateral or multilateral Free Trade Agreements?

This paper raised one of the more vexing legal issues that I have encountered in some time. The problem was not so much the difficulty of the underlying substantive issue. (Indeed, as the paper indicates, I think there is a very powerful case for recognizing a making-available right by adopting a plain-meaning interpretation of “to authorize” the phrase used to define the scope of all the exclusive rights granted by the Act.) Rather, the problem was that I have always thought it important that Congress and the President had both expressly and necessarily interpreted the Copyright Act to provide a making-available right when they enacted the implementing legislation for the WCT, the WPPT, and the six FTAs.

Many others with whom I have discussed this issue did not agree that these interpretations were particularly important. Our disagreements centered on a question that, does, at least in the context of international law and at the Supreme-Court level, seem to be open. Since the 1804 case Charming Betsy, the Supreme Court has held that courts should adopt any possible interpretation of a U.S. statute that would avoid a conflict with the international agreements and obligations of the United States. Nevertheless, to date, almost all cases invoking the Charming-Betsy interpretive principle seem to involve efforts to construe statutes that were enacted after a given treaty or international agreement had imposed some sort of obligation upon the United States.

The case of the making-available right reverses the temporal relationship between the relevant domestic statute and international agreements: The WCT, WPPT and the FTAs all postdate the Copyright Act of 1976 by at least thirty years. Many people found it odd that the terms of international obligations should influence the interpretation of a statute enacted about 30 years earlier. I could neither deny that such arguments had some force nor that I still found them unpersuasive, though for reasons that I could never quite articulate.

I hope that this paper can explain the source of these disagreements. I happen to have a longstanding interest in administrative law. Consequently, when I look at the Copyright Act of 1976, the implementing legislation for the WCT, WPPT, and the FTAs, and cases like Barker, I think that the resulting situation raises a question about the need for judicial deference analogous to that raised and resolved in cases like Chevron v. NRDC.

In the typical Chevron case, a governmental entity (usually a federal agency) must interpret an existing statute in order to determine how best to exercise lawfully acquired law-making powers. In such cases, courts accord so-called Chevron deference to statutory interpretation adopted by the agency: Regardless of whether the reviewing court might think some other interpretation more persuasive, it will defer to any reasonable interpretation that the agency adopted during the exercise of its law-making powers.

To be clear, I do not contend that Chevron is literally binding precedent in cases like Barker, but neither do I see why it is distinguishable as a matter of law and logic. The same factors that justify Chevron deference in the administrative-law context seem to recur here: To implement international agreements, Congress and the President must exercise their constitutionally delegated law-making powers, and to do so, they must interpret the meaning of existing statutes. Indeed, the interests in predictability and comity that justify Chevron deference seem to be both present and heightened in international-agreement implementation context. It is not clear why a case-or-controversy-bound judge should conclude that the President and Congress seven times executed the international obligations of the United States incompetently or duplicitously if a permissible interpretation of the Copyright Act would avoid the need to draw such conclusions.

Questions about the existence or scope of a U.S. making-available right will clearly be occupying many minds as the summer progresses. For the reasons set forth in the paper, I suspect that as courts begin looking closely at these questions, they will realize that their answers are less difficult to discern than they might seem at first glance.

posted by Thomas Sydnor @ 3:40 PM | DMCA , DRM & Watermarks, etc. , Enforcement & Remedies , Free Culture Movement , General , International , Internet: P2P, Search Engines... , Legislation and Legislators

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11. 6.2007

Fair Use in Filtering

Bill Rosenblatt reports on EFF's and other's support for fair use in filtering. My take: A constructive step. It remains to be seen whether an objective "fair use" standard can be developed; and then again, whether it can be technologically implemented; if not, the answer will be a combination of process for "appeals" and simple licensing mechanisms.

In particular, this is a welcome departure from the "filtering is useless" stance. Certainly, filtering can be defeated. But ultimately something posted for public consumption must be in the clear. And not everyone will encrypt, especially if they are unaware that they are infringing. By and large, it ought to be possible to get copyright filtering for entire works to work at least as well as spam filtering--that is, not perfectly, but enough to get a handle on the problem.

posted by Solveig Singleton @ 7:29 AM | Access: Commons, Fair Use, Orphan Works, Public Domain , DRM & Watermarks, etc.

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10.18.2007

Thoughts and Quotes on Google's Beta Filters

Coverage from CNET, Google Unveils YouTube Antipiracy Tool. (including comments from Bob Tur, plaintiff in another suit against YouTube).

And from ZDNET, a blog entry, "Google's YouTube Copyright Tool: Potential Annoyance, Viacom Settlement Fodder."

And Chris Castle's pointed remarks.

Meanwhile, the courts work out how strong filtering needs to be, once liability is established.

posted by Solveig Singleton @ 3:54 PM | DRM & Watermarks, etc. , Internet: P2P, Search Engines...

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09.11.2007

Investor's Business Daily on Filtering

Brian Deagon's August 6, 2007 article in Investor's Business Daily, August 6, 2007, "Technology Doomed To Failure, Some Critics Say," includes some remarks about filtering worth thinking about. The assurance of the quoted critics is convincing, but they seem to be missing a good part of the picture.

Continue reading Investor's Business Daily on Filtering . . .

posted by Solveig Singleton @ 10:11 AM | DRM & Watermarks, etc.

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09. 6.2007

Apple and Interoperability

Scholars from Northwestern University have released research on legal frameworks with which to analyze Apple's DRM and file format business strategies- Nicola Sharpe and Olufunmilayo Arewa, Is Apple Playing Fair? Navigating the iPod FairPlay DRM Controversy, 5 Nw. J. of Tech. & Intell. Prop. 332 (2007). The research addresses consumer welfare in light of controversies surrounding interoperability and Apple's business models. It proposes ways in which regulators may analyze the iPod/iTunes network in the context of the broader digital media market. The article concludes that Apple would be wise to encourage more third party interoperability with the iPod/iTunes network, for both legal and business reasons.

This is definitely not the first time Apple has been scrutinized for its non-"openness." However, I was impressed by the researchers' comprehensiveness in their discussion of antitrust, network effects and interoperability.

Continue reading Apple and Interoperability . . .

posted by Noel Le @ 6:21 AM | DRM & Watermarks, etc. , Markets: Business, Investment & Innovation

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09. 5.2007

Digital Rights Management Conference--NY on the 17th

Come to New York on September 17th to enjoy lively discussions of DRM. I'll be moderating a panel on DRM and consumer choice, with more, much more, to follow.

posted by Solveig Singleton @ 1:35 PM | DRM & Watermarks, etc.

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08.27.2007

More DRM Free, More Watermarking--for Music

DRM Watch reports on the latest developments, with watermarking ramping up and Universal going DRM Free. Walmart is also to go DRM free.

Continue reading More DRM Free, More Watermarking--for Music . . .

posted by Solveig Singleton @ 8:19 AM | DRM & Watermarks, etc. , Media: Video, Music...

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08.23.2007

Intellectual Property Baselines

IPR critics take broad swipes at copyright and patent policies. Two prominent arguments posit that 1) investments into creative productions and inventions can be appropriated by leveraging them as "advertising" for other products, such as t-shirts, 2) peer-production under alternative incentives is sufficient for innovation and continued economic growth. These arguments are fundamentally flawed, and will have drastic implications if set into regulatory policy.

A resource with which to analyze arguments against IPRs is Innovation and its Discontents, Princeton Univ Press (2004), where Professors Jaffe-Lerner outlined the basic tenets for patents. The scholars noted the relationship between innovation costs and marketing, as well as the role of commercialization. Its significant that in a book critiquing the current patent system, Jaffe-Lerner highlighted baselines for IPRs that critics have overlooked.

If there were no incentives for those who discover and develop new technology, it is likely that fewer innovations would be developed, slowing progress and the benefits it brings. Potential inventors realize that without adequate protection rivals will rapidly copy their discoveries, and that therefore innovation is at best an uncertain route to future profits. As a result, companies would be unlikely to spend significant amounts of money on R&D that is the source of new products and processes in a modern economy. They would instead choose to spend their money pursuing other activities- for example, marketing campaigns...
…
…our capitalist free-enterprise systems has demonstrated a unique ability to generate new technology: industrialized economies have increased their economic productivity more in the last two centuries than in all the millennia of previous human history. The basis for this advance is firms’ pursuit of profit, which forces them to innovate.

Society benefits from creators and innovators investing in more than selling t-shirts. Society needs innovation in IT, not ways of marketing t-shirts! Basic research-product development are high risk ventures, advertising for t-shirts is not. It’s a bit ironic that IPR critics would not have creators leverage the phenomenon known as the Internet for anything more than advertising. The difference in margins between delivering products/services online versus selling t-shirts alone suggest that enabling creators to tap the Internet would lend to more innovation and consumer welfare.

The second argument of IPR critics addressed by Jaffe-Lerner is equally problematic. FOSS, the holy grail of the peer-production movement, exemplifies why commercialization and profit motive remain important to society. The informal peer-production of FOSS has had limited success, and is only improving as it formalizes and receives commercial backing. Peer-production supporters may posit that IP holders are stifling innovation, but the argument is confused. Stifled innovation would resemble the FOSS movement but the FOSS movement is not the result of it.

While IPR critics may be passionate about their views, they would little serve innovation nor other important societal interests.

posted by Noel Le @ 3:21 PM | Academia , DMCA , DRM & Watermarks, etc. , Free Culture Movement , Patents

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08. 9.2007

Bill Rosenblatt on EMI's DRM-Free efforts

Bill is skeptical; sales are up, but not as much as some competitors. But if they aren't actually losing money, should they be worried yet? Perhaps not. We'll air these issues in Aspen in a bit. But it is some confirmation that consumers do not care much about DRM versus no DRM as they do about the nature and quality of the content.

posted by Solveig Singleton @ 8:45 PM | DRM & Watermarks, etc. , Markets: Business, Investment & Innovation

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08. 6.2007

Fake Steve Busted

Fake Steve Jobs, author of this jab at Linux and the anti-DRM crowd among other things, is really Dan Lyons of Forbes, reveals the New York Times.

Dang, that man can write.

posted by Solveig Singleton @ 11:19 AM | DRM & Watermarks, etc. , Software

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08. 2.2007

Expectations, Great, Better, and Best of all, Adaptive

posted by Solveig Singleton @ 9:13 PM | DRM & Watermarks, etc.

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