A movie about Trusted Computing is a superb bit of cinematic agitprop, at least for those of us already concerned about so-called Trusted Computing.
I just wish they had explained a bit more how people will be impacted, it might have done a better job of explaining to people why they should care. (You should care because it will keep you from doing many useful legal things you might want to do with your computer and other electronic equipment.)
Since I posted this yesterday, I've seen two well-thought-out posts suggesting that the case is a closer one under the DMCA than I gave it credit for. Here's why I think it isn't. One of the things I said yesterday was that if there's a technological protection measure here, it looks like “copy protection rather than access protection, which puts defendants in the clear.” I'll try to unpack that now.
The DMCA contains three key prohibitions. First, it prohibits you from “circumvent[ing] a “technological measure” that “in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to” a work protected by copyright. Second, it prohibits you from manufacturing, providing, or otherwise trafficking in any technology designed or marketed to do the same thing. Third, it prohibits you from manufacturing, providing, or otherwise trafficking in any technology designed or marketed to circumvent a technological measure that, in the ordinary course of its operation, prevents, restricts, or otherwise limits folks' ability to copy, publicly display, publicly perform, or make derivative works based on a work protected by copyright.
We don’t need to worry about the second two prohibitions today, because the law firm wasn't providing anybody with circumvention technology. Rather, the question is: Did the law firm's banging on the Internet Archive with requests for the page circumvent a “technological measure” that in the ordinary course of its operation “require[d] the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access”?
I don't think so. This language describes technology that mediates access — that allows access to some people and not to others, depending on whether the person seeking access had properly applied “information, or a process or a treatment,” so that the copyright owner authorized him to get access. Think pay-per-view. Think DivX. The Internet Archive server that the law firm banged on, by contrast, was running code designed to prevent anybody from downloading a copy of the pages in question. Distributing software designed to circumvent that code would fit within the third DMCA prohibition I listed — so if you think that making repeated requests for something can constitute circumvention, then the DMCA might prohibit a person from distributing user-friendly “Internet Archive-banging” software. But nothing in this case implicates the first prohibition.
Some folks have filed a really silly lawsuit against the Internet Archive and another law firm (news report; complaint). Here's the story:
A couple of years ago, a law firm called McCarter & English, representing a New Jersey company called Healthcare Advocates, sued a Pennsylvania firm called Health Advocate for trademark infringement. Defendant's lawyers — a firm called Harding Earley — used the Internet Archive to pull up plaintiff's old web pages, to help in the defense. It appears that Healthcare Advocates had recently put up a robots.txt file with instructions to block public access to its old pages, but the folks at Harding Earley made a whole bunch of requests, and the pages sometimes displayed anyway.
Healthcare Advocates, represented by McCarter & English, is now suing both the Harding Earley firm — for copyright infringement, violations of the DMCA and the Computer Fraud and Abuse Act, and state-law torts — and the Internet Archive, for breach of contract, promissory estoppel, breach of fiduciary duty, negligence and misrepresentation.
This is silly. The copyright claim against Harding Earley is silly. Setting aside anything else, if there ever were a textbook example of fair use, reproducing a once-publicly available web page because its content was relevant to the proper disposition of a lawsuit would be it. The DMCA claim is, if not silly, at least wrong. It's hardly obvious that sticking a robots.txt file on your server counts as a technological protection measure within the meaning of the DMCA, since web crawlers are free to ignore such markers if they choose. If plaintiff's robots.txt file were a TPM, its instruction to the Internet Archive to withhold the file looks to me like copy protection rather than access protection, which puts defendants in the clear. And finally, as Bill Patry has noted, it's an unworkable reading of the DMCA to say that if you click on a link once and don't get anything, then you're illegally “circumventing” by clicking a bunch more times to see if your luck changes.
The silliest claims are the ones against the Internet Archive itself. Take it from me: The Internet Archive didn't have an obligation under the relevant laws to make sure that that there were no glitches in its implementation of its decision to respect robots.txt.
Sigh …
The Supreme Court handed down the Grokster decision this morning. Full background at EFF's MGM v. Grokster page.
The Court remanded for trial on Grokster's infringing intent. The key passages of the unanimous opinion seem to be these. First, the court says that it holds
that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. We are, of course, mindful of the need to keep from trenching on regular commerce or discouraging the development of technologies with lawful and unlawful potential. Accordingly, just as Sony did not find intentional inducement despite the knowledge of the VCR manufacturer that its device could be used to infringe, 464 U. S., at 439, n. 19, mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct,
Yes, footnote 12 does say that,
Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor.
But the text finds the evidence against Grokster developed so far to be quite strong. So while this isn't a disaster for copyright law, it's not good news for Grokster.
Note that the Ginsburg concurrence, for herself and two other Justices, would set a much tougher standard that would mean you get in trouble for making a popular product regardless of your own conduct:
Even if the absolute number of noninfringing files copied using the Grokster and StreamCast software is large, it does not follow that the products are therefore put to substantial noninfringing uses and are thus immune from liability. The number of noninfringing copies may be reflective of, and dwarfed by, the huge total volume of files shared.
The Breyer concurrence, also for two others, leans the other way, emphasizing the endurance of the Sony standard.
My bottom line: Grokster loses, but the grounds are narrow enough that — in my best guess — Bittorrent survives.
You can compare this to what the real experts will be saying at the SCOTUSBlog Grokster discussion page.
Big Copyright beat up on Jorge Cortel and his university caved. Lecturer censored in Spanish University (UPV) for defending P2P networks:
This what happened to me when trying to defend the legal use of P2P networks in Spain.
I have been teaching “Intellectual Property” (although I dislike the term) among other subjects at a Masters Degree in the Polytechnic University of Valencia UPV (Spain) for over 5 years. Two weeks ago I was scheduled (invited by the ETSIA Student Union and Linux Users' Group for the celebration of “Culture Week”) to give a conference in one of the university's buildings. During that conference I was to analyze the legal use and benefits of the P2P networks, even when dealing with copyrighted works (according to the Spanish Intellectual Property Law, Private Copy provision, and many research papers, books and court rulings). I was even going to use the network to “prove” that it was legal, since members of the Collecting Society “SGAE” had appeared on TV and newspapers saying that “P2P networks are ilegal” (sic) just like that, and to that extent I even contacted SGAE, National Police, and the Attorney General in advance to inform them about it.
The day before the conference, the Dean (pressured by the Spanish Recording Industry Association “Promusicae” as I found out later, and he recognized himself in a quote to the national newspaper El Pais, and even the Motion Picture Association of America, as another newspaper quotes) tried to stop it by denying permission to use the scheduled venue. So I scheduled a second one, and that was denied again. And a third time. Finally I gave the conference on the university cafeteria, for 5 hours, in front of 150 people.
And so the University fired him later that day (he was untenured). And then they tried to pretended he'd never even been teaching there at all (spotted via Boing Boing).
This is the sort of story I think about every time I read a suggestion that we consider abolishing tenure; this is why tenure matters.
Prof. Dan Hunter of Wharton has started a web site, Open Access Law Reviews, “to share information, resource, ideas, and commentary about open access to law review articles.
Jotwell Blenderlaw