Cyberlaw Overview

Copyrights and the U.S. Constitution

• U.S. Constitution, Article I, Section 8, Clause 8: “The Congress shall have power…To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

• Key points:– Purely utilitarian (“promoting progress”). Not like Europe,

no “moral rights.”– Allows grant of “exclusive rights.”

Copyrights: Subject Matter (17 U.S.C. § 102)

• “(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.”

• “(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”

• Key points:– Originality required, but threshold is low; not like novelty/non-obviousness for

patents.– Protects fixed instantiations; forms of expression, but not ideas.– No protection for “useful articles” (patents are meant to cover those, if they

do).

Copyrights: When Do They Attach?

• Copyright attaches the moment a work is “affixed” in a medium.

• No need to register the work, but registration allows for statutory damages – minimum damages for infringement – that add up to be fairly significant.

• If you expect to sell your work, registration is a good idea.

Copyrights: Work For Hire (17 U.S.C. § 101)

• “A "work made for hire" is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” See also Community for Creative Non-Violence v. Reid.

• Idea is that, pursuant to an appropriate “work for hire” agreement, the employer is the author constitutionally, not the actual creator.

• Employer-employee – Agency, scope of employment.• Employer-consultant/contractor:

– Work is in one of nine categories, above.– Work was specially ordered/commissioned.– Written agreement specifying that the work is “work for hire.”

Copyrights: Public Domain

• Works in the “public domain” are owned by noone, i.e., works that could not be or never were protected by intellectual property rights, or works where intellectual property rights have expired.

• Under U.S. law, there is no way to assign copyrighted works to the public domain. Only mechanism is expiration of copyright.

• Expiration – When the term runs out, which is the lifetime of the author plus 90 years.– This is why repeated copyright extensions are controversial; they rob

the public domain, and our cultural substrate, of new works to build off of freely.

• Public domain assignment can functionally be accomplished by broad licenses/no enforcement, but author or an heir can always revoke licenses/choose to enforce.

Copyrights: Bundle of exclusive rights (17 U.S.C. § 106)

• Statutory text:– “(1) to reproduce the copyrighted work in copies or phonorecords; – (2) to prepare derivative works based upon the copyrighted work; – (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or

other transfer of ownership, or by rental, lease, or lending; – (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and

motion pictures and other audiovisual works, to perform the copyrighted work publicly; – (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and

pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

– (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”

• Licensing: Granting one or more of these rights to a non-owner.• Infringement: Violating one or more of these rights.• For the Internet, most important “rights” are reproduction, distribution,

transmission, and maybe public performance. Derivative works are crucial for “remix” culture.

Copyrights: Derivative Works (17 U.S.C. § 103) and Federal Government Works 17 U.S.C. § 105)

• Derivative works:– Derivative works are independently copyrightable.– Only the “new” material is copyrightable; copyright in

“old” material persists on its own.• Government works:

– Federal government-created works are not copyrightable.– Rationale: Public pays for government works, they should

be in the public domain (i.e., not copyrightable).– State and local governments can, and often do, claim

copyright on their works.

What’s copyrightable?

• Things that aren’t copyrightable:– The numbers in a phone book and their alphabetical organization. (Feist

Publications v. Rural Telephone)– Text or layout of software menus. (Lotus v. Borland)– Facts.– News.– Recipies.– Useful articles.

• Things that are copyrightable:– The arrangement of numbers in a data set, if not, e.g., alphabetical.– Software source code.– A novel.– A specific news story (but not the facts).– Sound recordings.– Dance choreography.

Limitations on copyright

• First sale doctrine – Original holder only has control over the outright transfer of the first physical copy; reselling is OK. Doesn’t apply to licenses (e.g., software licenses).

• Free speech – Copyright can’t be used to abridge First Amendment freedom of speech (but rarely protects infringers because First Amendment restricts government only).– This is a gross-oversimplification and great fodder for legal

academics, but almost never comes up in practice.

Fair Use (17 U.S.C. § 106)

• “Fair use” of a copyrighted work isn’t infringement.• Multi-factor analysis – “(1) the purpose and character of the

use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”

• In general, if your use is “too” commercial, it won’t be a “fair use.”

• Key point: Fair use is a DEFENSE not a RIGHT; a “license to litigate” copyright infringement.

DMCA (17 U.S.C. § 512)

• The Digital Millennium Copyright Act – Passed in the late 1990s in response to the increasing omnipresence of the Internet.

• Title I – Anti-circumvention provisions; you can’t break technological protections on copyright (e.g., DRM), subject to certain exceptions.

• Title II – Online service provider (OSP) safe harbor for content submitted by third parties; forces copyright owners to police infringement, not ISPs/OSPs.– Doesn’t protect ISPs/OSPs that post infringing content themselves.– Requires ISPs/OSPs to jump through some hoops to get the protection

(e.g., having a copyright agent).• Other provisions aren’t material.

DMCA Safe Harbor

• “Notice and takedown” – copyright holder sends good faith notice of infringing content to ISP/OSP; ISP/OSP must remove content; content poster can appeal or claim the notice was in bad faith/defective.

• ISP/OSP is safe, if it…– has no knowledge of, or financial benefit from, infringing activity on its

network.– has a copyright policy and provide proper notification of that policy to its

subscribers.– lists an agent to deal with copyright complaints and files a form with the U.S.

Copyright Office.• ISP/OSP is also safe if it’s a “dumb node” through which content is transmitted and

doesn’t retain copies.• Notice and counter-notice must specify the content at issue and meet other formal

requirements.• Weak penalties for false takedown requests.

DMCA Safe Harbor

• Why is this important?– Web innovation involving user-generated content today exists on the back of

the DMCA Safe Harbor.– This is why, e.g., YouTube, Tumblr, Quora can host copyrighted content until

the holder asks for it to be removed.• Public policy

– Tradeoff between technological innovation and protecting content creation.– Incentivize innovation over protecting old business models; assumption that

content creators will adapt (maybe painfully).– Political compromise between tech companies and content companies.– “Google could buy the entire music industry.”

• More info: http://chillingeffects.org

Other Interesting Copyright Items

• Contributory liability for making tools for infringement, e.g., VCRs, P2P software.– VCR manufacturers aren’t liable for contributing to the infringement of end-users

because of substantial non-infringing uses for VCRs, among other factors. (Sony v. Universal).

– P2P software developers ARE liable for contributing to the infringement of end-users because the primary use of the software was infringement, and they advertised/promoted it on that basis, among other factors. (MGM Studios v. Grokster; Arista v. Limewire). Result is that Grokster and Limewire both shut down.

• DRM and anticircumvention– Under DMCA, Library of Congress can make exceptions to anti-circumvention.– In Summer 2010, LoC excepted:

• Phone jailbreaking/unlocking.• Software security testing.• Obsolete DRM where the content is no longer accessible.

Defamation

• Defamation governed by state law. Basic elements (specifics vary slightly by state):– “Publication” of a statement to someone.– The statement is false but appears factual.– The statement concerns an individual.– The statement tends to harm the reputation of the individual.– If the statement is about a public figure, the statement was made with actual malice.

• Defamation per se – statement is so bad, no need to prove it’s defamatory, e.g., “X has an STD.”

• Slander = verbal/spoken defamation; libel = written/printed defamation.• Defenses:

– Truth.– Made in good faith/reasonable belief in truth.– Opinion.– Consent.– Fair comment on matter of public interest.

Defamation Online – CDA 230 (47 U.S.C. § 230)

• Issue: Are OSPs/ISPs responsible for defamatory statements made online by their users? If so, total nightmare for running a user-generated content site.

• Solution: Responsibility with end-user, not OSP/ISP.– Common law rule places burden on publishers of defamatory

information.• 47 U.S.C. § 230(c)(1): "No provider or user of an interactive computer

service shall be treated as the publisher or speaker of any information provided by another information content provider.“

• Offers complete protection against defamation or libel claims made against an OSP/ISP, message board or chat room where the statements are made by third parties.

Defamation Online – CDA 230 (47 U.S.C. § 230)

• Exception: Where the OSP/ISP has “taken on” the statements affirmatively, but this rarely happens. Standard moderation not sufficient.

• Upshot: OSPs/ISPs will almost never remove defamatory content; not their job to police it.

• No CDA 230 protection in most foreign countries, so international OSPs have different issues to deal with.

• Public policy:– Let technology companies innovate without worrying about

defamation claims; put onus on individual being defamed to police.– Underlying sense that online defamation isn’t a big deal.– Defamation in the U.S. generally is taken less seriously than, e.g., in

the UK.

Other Defamation-Related Issues

• Cyberbullying– Some states have enacted criminal cyberbullying legislation in the

wake of teen suicides. NY has an investigative system to allow prosecution under harassment laws.

– Goes beyond defamation into harassment; usually only protects children and teenagers.

• Hate speech– No laws against hate speech online, but some groups have asked FCC

to monitor it.• General trend toward more enforcement, not less; sense that people are

fed up with “junk” online, e.g., rise of Facebook and identity over anonymity.

Combating Online Infringements and Counterfeits Act (COICA)

• New legislation moving through Congress.• Allows DOJ to force ISPs to block access to websites

“dedicated to infringing activities.”• Public policy:

– Content companies are sick of infringement; lobbied Congress extensively for more government policing on their behalf.

– Would stifle technological innovation, or channel it toward a more “protected” Internet to help content-producing interests.

• Feeds into “net neutrality” debate – ISPs want to put controls in the middle of the network so they can charge incrementally for everything; controls could include anti-infringement controls.

Net Neutrality

• Principle as articulated by Tim Wu: “[A] maximally useful public information network aspires to treat all content, sites, and platforms equally. This allows the network to carry every form of information and support every kind of application.”

• Internet, as designed, is application-agnostic – allows all kinds of applications to flourish without fear of ISPs (dumb pipes) favoring one over another. Ends are important, not middle.

• ISPs: We don’t want to be dumb pipes, we want to make money off of content and controlling the middle.– Differentiated pricing for increased bandwidth use.– Differentiated pricing for different kinds of content, e.g., charging Google more

to deliver search results.• Net neutrality supporters fear what ISPs would do without net neutrality.

FCC’s Net Neutrality Proposal

• Enforce a weak form of net neutrality on ISPs, barring anti-competitive behavior (as determined by the FCC).

• Carve out wireless ISPs to some extent (Verizon asked for this).

• “Baby splitting” option that no one was happy with, so ISPs still sued FCC claiming it had no power to enforce net neutrality, and Republican Congress pulled funding for it.

• FCC proposal is vague; hard to determine impact, but leaves FCC with enforcement power if valid.– Administrative law aside – agencies must act within the bounds of

their enabling statutes.

WikiLeaks

• U.S. government has gone after WikiLeaks for violating state secrets/national defense.

• Subpoenaed Twitter and other OSPs for list of people clicking on/distributing WikiLeaks content. Subpoena was unsealed by court.

• Twitter allowed to notify individuals, who are moving to quash the subpoena.

• No use of copyright per se, though private entities could issue DMCA takedowns (copyright) or sue for, e.g., trade secret disclosure.