Information Law and Policy: Fall 2011

By Naila AlKhalawi & Ryan McAdam

http://www.wired.com/threatlevel/2011/06/fair-use-defense/
http://arstechnica.com/tech-policy/news/2011/08/righthaven-rocked-owes-34000-after-fair-use-loss.ars

Context & Background

Fair use is a limitation on the exclusive rights – typically granted to copyright owners – which allows unauthorized use of copyrighted work. This is detailed by the Copyright Act 17 U.S.C. §107, which examines a number of aspects including restricting the portion that is used relevant to the full copyrighted work. In some cases however, such as Righthaven v. Wayne Hoehn, a full reproduction of a copyrighted work may be deemed by the Court as fair use.

The plaintiff, Righthaven, claimed copyright infringement of an editorial piece from the las Vegas Review-Journal owned by Stephens Media. Hoehn (the defendant) had posted all 19 paragraphs of the editorial, including the headline, to a discussion forum he used in order to prompt responses. Hoehn’s defense centered around his actions being protected under the fair use doctrine.

Relevance & Importance

Copyright law was intended to promote the progress of the arts and sciences, however, this may be abused by non-practicing entities (i.e., copyright trolls). In this case, a fair use defense has allowed Hoehn to counter the infringement accusations by Righthaven, a Las Vegas-based copyright litigation factory and a subsidy of newspaper publisher Stephens Media. The company’s business model is based on suing bloggers and commenters on the grounds of copyright infringement. Righthaven has sued more then 200 websites, of which more then 100 have settled out of court.

The article briefly touches on the four considerations of fair use, in addition to the notion of copyright ownership. Relevant factors include the purpose and nature of the work, as well as the portion and the market impact of the copied work.

Although the Copyright Act will normally regard the “amount and substantiality of the portion used in relation to the copyrighted work as a whole” to be a key factor in determining fair use, this is one of the fewer cases where the full reproduction of the work justified. The court did consider the fact that only 5 of the 19 editorial’s paragraphs were “purely creative opinions” of the author, but even that may have not been sufficient in other cases to claim fair use.

More importantly, the case illustrates a broad and flexible viewpoint that has been taken by the court in examining the previous activities of the third party who initiated the lawsuit. The fact that Righthaven does not own the copyright and makes its profit out of similar litigation brings forth the question of whether the copyright law is being abused for personal gain rather then its intended purpose. A previous court has found that such litigation efforts are “disingenuous, if not outright deceitful”.

Legal Questions

It is possible that copyright litigation is becoming a lucrative business model, thus raising questions about the clarity of the law. The court has found that Righthaven has no standing for a copyright infringement claim since they do not own the copyright in the first place. It also found that the damage claims are inflated since the article was republished for non-commercial purposes and was only posted for 40 days. Nevertheless, the copyright troll has been able to settle over 100 cases out of court with an unjustified claim. The question is raised: was this due to ambiguous copyright law about the ‘ownership’, or was it a result of being mislead by 17 U.S.C. §107 (4) in the way it framed the ‘portion’ factor relative to the overall work. It is also not entirely clear how important the copyright ownership has been in the courts decision, and the question remains as to whether the same decision would have been reached should the original copyright owner have initiated the lawsuit.

Case Comparisons

Courts judge the legitimacy of fair use within a specified framework. In summary, this framework includes the purpose and character of the work, the transformative nature of the work, the portion of the work used relative to the whole, and the effect of the use on the value of the original work. Within this framework the fair use statute may be interpreted with broad, flexible standards. Although the standards do not align perfectly between cases and opinions, it is likely that that the law would have been interpreted in the Righthaven v. Hoehn case in a similar manner by applying the conclusions drawn from the materials covered in class. For comparison:

As with OPG v. Diebold, Hoehn posted the op-ed pieces for the purpose of conversation and debate. Hoehn published the work on a forum for the benefit of an online community. Similarly, the Swarthmore students published the work for the public interest. Additionally, there was no evidence that Hoehn sought to profit from posting the materials on a website in which he had no commercial interest.

Although Hoehn’s post included the republishing of the original work in its entirety, the opinion outlined in the Google Library Print Project supports the validity of the ruling as fair use. The opinion paper references a similar case (Kelly v. Arriba Soft, 336 F.3d 811, 9th Cir. 2003) where the court ruled that copying a full work was transformative; thus protected under fair use. In that case, the purpose of the original images was artistic expression whereas the defendants act of indexing aimed to improve access to information on the Internet. Hoehn’s post was used as a means to initiate comments and discussion, hence falling within the categories specified by the fair use doctrine.

While the judge in the Righthaven v. Hoehn case indicated that the “original work does have some creative or editorial elements” these elements were not enough to justify the work as being purely creative. This interpretation aligns with the Perfect 10 v. Google case in which the court reiterated that creative works are given more protection against fair use than factual works.

Regarding the impact of Hoehn’s use on the value of the original work, there is no clear comparison with the week’s readings. In this matter the judge considered the duration of time (40 days) the work appeared on the website as having a de minimis effect on the original work.

Law, Technology and Society

As demonstrated by the Righthaven v. Hoehn case and the reading materials from the week, the domain of fair use continues to present exciting interpretive challenges within the context of technology and society. The interaction between individuals and corporations – and the technology these entities use to express ideas – creates a tense space for the law to determine what constitutes fair use. This is an acute representation of “the tussle”.

In an era defined by a preponderance of derivative work that includes mash-ups and remixes, the debate between what is transformative use and what is merely consumptive is one that will continue to be presented to the courts. Of central consideration is the idea-expression dichotomy. Will the value of ideas become diluted in a medium of expression that allows, and perhaps even encourages, original work to be copied, recombined and republished? Conversely, will the use of technology foster the emergence of expressions that ultimately benefit our collective ideas?

The legal response must balance the exclusive rights of copyright holders vis à vis the rights of creative expression, while also preserving the principles of advancement in arts and sciences.

By: Naehee Kim and Tristen Lall

 As the ways of creating, publishing, distributing and consuming media content have evolved, the dynamics between a copyright holder’s rights to its works and an individual user’s rights to his physical possessions have changed accordingly. Since many copyright holders want to keep or extend their control over their works, they have continuously developed methodologies to protect their rights. In some cases, these protections have been arguably excessive, and customers have been deprived of the ability to make personal, noninfringing use of that content.

Music service providers, for example, regulated users’ behavior by implementing digital rights management (DRM) technology and policy in the early 2000s. However, through a combination of litigation, consumer protest and adoption of new business models, record companies and customers have adopted a new de facto standard for consuming digital music: music lovers nowadays enjoy DRM-free music by paying reasonable prices like $0.99 per track, and enjoy full portability of the audio files. On the other hand, with encrypted content—like DVDs, HD DVDs and Blu-Ray Discs—consumers are still seriously limited in terms of using them for personal purposes.

Even though there are numerous justifiable (and even generally legal) ways to copy digital media for personal use, commercial DVDs implement a copy protection scheme that hinders this process. While a music lover can easily and legally rip their audio CD, convert the music into an MP3 (MPEG audio layer III) file, and transfer it to a device using a variety of free or commercial software (a process called format-shifting, often considered a fair use under copyright law), this process is not possible with a DVD, because it implements a form of encryption called CSS (Content Scramble System). The Digital Millennium Copyright Act (DMCA) provides that “[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title.” Consequently, so long as the CSS system is considered “effective”, it is a violation of the DMCA to override it. (Note that in Finland, a court has ruled—subject to appeal—that because CSS can be trivially bypassed using a brute force method, it is no longer “effective” as that term is defined in international intellectual property accords. Although this determination has not yet been made in United States courts, this is a possible avenue of attack for litigation opposing DMCA-based restrictions on DVD copying.)

To take advantage of the limited fair use exceptions, DVD owners are limited to making copies in a manner that does not override the CSS—for example, copying the entire file system of a DVD into an image file, while preserving the encryption. This is, however, insufficient for making a usable backup DVD with ordinary DVD-writing devices, because those drives are designed to be unable to write the encryption key in the proper place on the disc. (What results is a disc containing an accurate copy of the encrypted data, but without the key, it lacks the ability to be interpreted by a DVD player.) RealNetworks attempted to work around this problem by licensing the DVD CCA specification and implementing it in software called RealDVD that enabled users to play fully-encrypted DVD image files from the storage media of their choice. By avoiding CSS circumvention, RealNetworks believed that its product provided a legal means for users to exercise their personal use rights. Despite this promising argument, the U.S. District Court for the Northern District of California found that “RealDVD makes a permanent copy of copyrighted DVD content and by doing so breaches its CSS License Agreement with DVD CCA and circumvents a technological measure that effectively controls access”. The sale of the RealDVD software was therefore prohibited.

These inconsistent principles have put consumers in tricky situations: to make useful backup copies of their DVDs, they can only use illegal copying tools. More recent digital media like HD DVD and Blu-ray Discs have adopted another type of DRM called Advanced Access Content System (AACS), which allows consumers to make limited legal copies (managed copies) that may satisfy some users’ expectations of personal use. Notably, however, these are not true backup copies. They depend on internet-based authentication, and cannot themselves be reproduced using the managed copy technique. This raises issues related to long-term archival (e.g. due to degradation of media), and the future availability of the AACS authentication service.

As new technologies and social norms emerge, it may yet become practically and legally possible for digital media owners to make personal, noninfringing use of those resources. At present, however, the wide-ranging anti-circumvention provisions of the DMCA (and similar international agreements, like the just-signed Anti-Counterfeiting Trade Agreement) make it almost impossible to do so, to the substantial detriment of consumers.
Further Reading:

1. https://www.eff.org/wp/unintended-consequences-under-dmca
2. http://www.wired.com/threatlevel/2009/08/judge-copying-dvds-is-illegal/
3. http://arstechnica.com/tech-policy/news/2009/08/realdvd-barred-from-market-while-judge-opines-about-fair-use.arshttp://www.wired.com/threatlevel/2009/05/legalize-personal-use-dvd-copying/
4. http://arstechnica.com/tech-policy/news/2011/10/judge-suggests-dmca-allows-dvd-ripping-if-you-own-the-dvd.ars
5. http://arstechnica.com/tech-policy/news/2011/10/us-signs-international-anti-piracy-accord.ars

http://consumerist.com/2011/09/reebok-to-fork-over-25-million-in-refunds-over-deceptive-ads-for-easytone-shoes.html

Just last week, the FTC and Reebok agreed to a $25 million settlement for deceptive advertisement.  Reebok claimed in their ads that their EasyTone shoes would provide extra tone and strength to the leg and buttock muscles.  FTC then accused Reebok of false advertisement based off of no scientific evidence.  While Reebok agreed to the settlement, they stood behind their product, disagreeing with the FTC’s allegations.

We covered the topic of deception in our September 21st privacy lecture.  Our reading of the FTC Policy Statement on Deception states that “Marketing and point-of-sales practices that are likely to mislead consumers are also deceptive.”

Here’s the link to the patents episode of NPR’s This American Life, mentioned in today’s lecture: http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack. A really interesting exploration of the dysfunctional U.S. patent system.

Here’s the link to the FTC Report on Patents.  Robert Barr mentioned this in class today. http://www.ftc.gov/opa/2011/03/patentreport.shtm

Post by Elliot Nahman and Curtis Hwang

Many patents, still pending: Congress tweaks, but does not overhaul, America’s patent system

http://www.economist.com/node/21528643

Overview and relevance to Patent Law reading

Barack Obama has recently signed into law significant new patent reform called the America Invents Act. The most significant of the new reform is the way patents are awarded from ‘first to invent’ to ‘first to file’, which is the prevailing protocol for awarding patents in other countries. The new law also attempts to address complaints that the current system hindered innovation, because claims about who invented first were marathon court endeavors. Another significant change is that challenges to patents and infringement cases will first be heard by the Patent and Trademark Office level instead of directly resorting to the court system. It also opens up the hearing process to third parties in an attempt to allow more experts in the field weigh in and weed out frivolous claims. Time will tell if this benefits large companies with the resources and wherewithal to quickly file patents on a large scale, or smaller more nimble companies that didn’t have the legal resources to fight patent challenges that the previous system entailed.

What this new law does not do is address some glaring problems facing the technology industry. Currently there are a number of entities that accumulate vast libraries of patents solely for the purpose of suing for infringement. Many view these ‘patent trolls’ as inhibiting innovation by imposing a ‘tax’ on inventors for infringing patents that arguably are invalid to begin with. By not addressing these so called invalid patents that are overly broad, and often similar, ‘patent trolling’ will still continue. This law also fails to clarify what kinds of software can be patented. What kind of software are abstract ideas, which are methods, and which are patentable processes? As explained later in Bilski v. Kappos, establishing clear definitions of what constitutes a patentable process could make or break the technology industry.

Further problems this law opens up have to do with the quality of inventions submitted for patents. The Act now places emphasis on filing a patent first to garner protection for the invention, rather than patiently refining an invention until it is truly investor worthy. The argument also exists the Act does not remove red tape, just redistributes it. Now with the emphasis on filing rather than inventing, this could benefit larger corporations who have larger legal resources than smaller groups.

Another problem that the article does not touch on is that of expertise. Many people would argue that, under the previous system, a lot of bad patents are awarded, as well as patents for similar, if not the same, invention. This was ultimately due to a lack of expertise and manpower in the PTO office when it comes to the tech industry. Now that they are also charged with hearing claims of infringement, will they have the resources available to make sound rulings on a patent’s validity if they could not do so in the first place? Opening up the process to third parties can certainly help, but one also worries that it would just be a circus with experts on both sides disagreeing on prior art. In the end, the parties can always turn to the court system for a final verdict, so at least the new PTO hearing will be a way to weed out some of the cases and hopefully do so at lesser cost than going to court.

How this relates to KSR v Teleflex:

In the KSR v Teleflex case, we have two automobile parts manufacturers engaged in a lawsuit over whether KSR’s patent was an obvious invention, and therefor whether or not the invention could be patented. If the KSR v Teleflex case were to occur after the passage of this patent reform, the infringement case would not have ever gone to court (unless one party appealed the PTO’s decision). Instead, the companies would go to the PTO office and bring in third parties in the industry to support their case one-way or the other on the obviousness of KSR’s invention. This would certainly have been a much cheaper option to get a decision for both companies, and the tax payer, rather than arguing the case all the way to the Supreme Court. It would probably also benefit the industry as a whole to know if they could use KSR’s method of using a sensor on a pedal earlier rather than waiting for the final case to be heard.

How this relates to Bilski v Kappos :

Bilski v Kappos was a case decided by the Supreme Court that touched on whether or not a business method for the financial industry was patentable. The court found that in this particular case, the method was not, but did not rule out all business methods as being unpatentable. The Economist article talks about how the new law has made a couple changes with regards to patenting methods, but only in regards to the financial industry, choosing not to directly address the technology industry. These provisions of the new law, in keeping with the Bilski v Kappos ruling, may lead to further decisions on the patentability of methods that could go a long way in closing the door on frivolous patent infringement suits, eliminating patents on methods in software altogether, or ending the patent monopolies that large corporations enjoy.

GPS inventor and technologists collaborate with EFF to urge Supreme Court to require the issuance of a warrant before law enforcement may use GPS tracking. Article  elaborates on how these efforts are intended to prevent blanket surveillance of civilians by police. Relevant to Privacy Issues of the W3C Geolocation API by Doty/Mulligan/Wilde in Week 5 lecture.

Privacy policies of Social networking websites for protection of speech. Twitter is clearly the best choice when it comes to ‘good-faith’.

Read the article here.

You may also want to read the Privacy Policy of Facebook… It collects data even after you log out… Article

The Justice Department has released an internal memo from August 2010 detailing the data retention policies of the major telecom companies. The release came after a Freedom of Information claim from the ACLU. Wired has summarized the document nicely with some graphics on their security blog. As one might suspect, they all seem to keep our data longer than they need to…