The DMCA Reaches Academia

This blog has discussed the notice and takedown system for the Digital Millennium Copyright Act (DMCA) a number of times.  Most of the time, the industry sending the takedown notices involves entertainment: music, movies, and occasionally literature.  However, there is an emerging use of this system for academic research.  An article from TechCrunch details how the publisher Reed Elsevier has begun sending takedown notices to authors who republish materials on open source article sharing websites or their own personal websites.  Many of the authors cede publishing rights when they have their work published in academic journals, but the academic community usually recognizes the value of shared information.

The legal issue here is pretty straightforward.  From a pure copyright standpoint, these academics infringed when they republished works to which they’d ceded republication rights.  As long as their decision to contract away the republication rights was knowing, then Reed Elsevier’s republication rights are likely valid.  

This situation presents some major policy issues.  One is an interesting conflict between the interests of academia and the goals of copyright law.  As the article points out, academia places a high degree of value on the ability to share knowledge for research purposes.  That makes sense, since any scientific or academic field requires the experts to share the newest information in order to advance the field as a whole.  However, copyright law seeks to promote the creation of such works by providing broad protections to the creator.  The idea is that by providing a government supported monopoly that allows for the creator to profit from their work, there is more incentive for people to continue working on the creation of intellectual or artistic works.

There are a few issues with how this copyright argument applies in this case.  The first, and most obvious issue, is that in this case the authors are receiving the takedown notices.  The entity with the republication rights is not the original author, but an academic journal publisher.  The value that such an entity brings to this exchange is debatable.  Getting published in a prestigious journal certainly has some value.  It can allow for a researcher to build their reputation, helping to make their career as a result.  These journals also allow for other experts in the field to find other articles in their field that represent the state of the art.  They act as a gatekeeper of sorts, sifting through many papers to find the best.

The value of such gatekeepers is increasingly questionable in the internet age.  Experts in various fields can share their research directly, or place their works on any number of sites.  Researchers can simply turn to Academia.edu or SSRN if they wish to find new and interesting research.  The only real issue is that they may spend lots of time sifting through articles of questionable value.  Academics can even build their reputation through their online presence, operating their own websites or contributing to any number of well-known websites to get their name out to the public.  While getting published in a prestigious journal still clearly helps, it isn’t quite as useful as it once was.

The case with Reed Elsevier illustrates a case where copyright directly conflicts with the goals of academic research.  The major incentive copyright protection provides, in this case, is to the publishers.  Reed Elsevier wish to jealously guard their republication rights in order to maintain these journal’s value.  The researchers themselves do not require copyright’s bundle of rights to encourage them to continue publishing and researching.  The only incentive these takedown notices seem to provide is to discourage researchers from publishing in Reed Elsevier’s journals in the first place.

I’ll be on vacation for the next two weeks, in celebration of the holidays.  As a result, there won’t be a new blog post until Wednesday, January 8.  So have a Merry Christmas and a Happy New Year’s.  I’ll see you all in 2014.

Dating Site Privacy

James Holmes, the Aurora, Colorado movie theater shooter, recently lost in an effort prevent the prosecution from using Holmes’s dating site information in the case.  The prosecution wanted to use some information from Adultfriendfinder and Match.com in the case.  Holmes made an argument that the Fourth Amendment should prevent the state from acquiring dating site information.  

The court looked at two different categories of information: Holmes’s profile information and his subscription information.  The profile information comprises what Holmes put on his profile, while the subscription information data supplied to the website (such as addresses, billing information, and his IP address).  The subscription information also included log times (when he logged onto the site and for how long), along with other administrative information.

The court rejected any Fourth Amendment protection for the first category.  An individual’s profile information is, by its nature, public.  There isn’t a reasonable expectation of privacy (the standard for reasonableness in this case) if you make the matter an issue of public record.  The court also further elaborates that various media outlets (like TMZ) published Holmes’s profiles on their websites.  These two factors in tandem makes any expectation of privacy unreasonable.

The other category of information require more interesting analysis.  The court mostly focuses on the third party doctrine in regards to the subscription information, which states that there’s no reasonable expectation of privacy in information provided to someone else.  Since there isn’t a great deal of precedent dealing with online dating, the court analogizes this case to one involving Twitter (In re § 2703(d) Order) from the Eastern District of Virginia.  In that case, the court found that since Twitter requests to log IP addresses as part of the Terms and Conditions, there can’t be a reasonable expectation of privacy.  The court goes on to say that, since information such as IP addresses and log times get willingly conveyed to administrators of the two sites, Holmes can’t have a reasonable expectation of privacy in that information.  Now there is one major caveat when it comes to this line of reasoning.  The burden of proof for reasonableness falls on the defendant, and Holmes failed to present any evidence or testimony to support his assertion that he had a reasonable expectation of privacy in this information.  That potentially skews the judges analysis, since he has to rely on a limited (and potentially unhelpful) body of case law with no counter-argument.      

This line of reasoning is unsatisfactory.  The opinion fails to account for at least one high profile case that criticized the application of the third party doctrine in the digital world.  Sotomayor’s concurrence in US. v. Jones explicitly states near the end that the third party doctrine doesn’t have much meaning in a world where users have to share information with third parties to carry out mundane tasks (it is very hard to email people without sharing some identifying information, for example).  There is also quite a bit of criticism from others in viewing the third party doctrine as being unfit for a predominantly digital world.  It is disappointing that the judge did not even address these issues, even in passing.  I suspect that the lack of evidence on Holmes’s part limited the scope of the judge’s opinion, but having at least having the judge address some argument that certain kinds of information should fall outside of the third party doctrine would be an improvement.  The lack of a discussion on why items such as log times don’t have a reasonable expectation of privacy was particularly disappointing.

There is an obvious moral to this story, which is to remember than anything voluntarily posted online can come back in court.  The second, less obvious moral, is that judges should consider how the particularized technology affects their analysis.  Administrative logs from a website are not the same as call logs from a telephone, and judges should account for those differences in their rulings.

    

The Aereo Case Moves Forward

There was a major recent development in the ongoing litigation against Aereo.  Aereo, for those just learning about this case, is a service that allows for users to rebroadcast their television shows to a laptop or tablet (this post contains more details on how the service operates, as well as legal analysis).  In addition, Aereo does not pay retransmission fees that other broadcasters (like cable and satellite companies) have to pay.  These broadcasters sued Aereo for copyright infringement, with Aereo arguing that their technology is not a “public performance” and thus does not violate copyright law.  After losing at the Second Circuit Court of Appeals, these broadcasters appealed to the Supreme Court.  Aereo recently announced that they embraced the idea of a Supreme Court case in their response to the broadcaster’s appeal.

This response is odd because normally parties that win at the lower court level argue against the Supreme Court hearing the appeal.  The reason for that is pretty straightforward: if you’ve won at the lower level, you don’t want to risk having that victory potentially erased on appeal.  Aereo, however, makes it very clear in their response that they are not agreeing with the plaintiffs’ arguments as stated in their writ of certiorari (the legal motion asking for Supreme Court review of a lower court’s ruling).  In fact, Aereo spends the entire response arguing why the Second Circuit’s findings were correct.  Their response allows them to tweak the “question presented” section in a more favorable manner and to make their arguments again (and emphasize why the Second Circuit found in Aereo’s favor in the first place).    

Why does Aereo agree to allow for a Supreme Court appeal?  Well, as the Ars article cited at the beginning points out, Aereo benefits from a clear Supreme Court ruling extending Cablevision’s holding (where the use of a DVR was not held to be a “public performance”).  The Second Circuit case is not the only court case that the American Broadcasting Companies is running against Aereo.  The plaintiffs probably also hope that drawing out the litigation will bankrupt Aereo and discourage similar companies from entering the fray.  Aereo probably hopes that a clear Supreme Court ruling removes that danger entirely.

Aereo also worries about other companies getting to the Supreme Court before them (specifically FilmOn, who has a pending appeal waiting in the Ninth Circuit).  FilmOn provides live streaming of TV, with the recent addition of an app/antenna service (similar to Aereo’s) that allow the user to stream FilmOn feeds to their mobile devices.  FilmOn’s case in the Central District of California resulted in an injunction against their mobile retransmission service.  The Ninth Circuit Court of Appeals upholding that injunction against FilmOn would result in a circuit split, and allow the cable and television companies suing both companies to include both in their complaint to the Supreme Court (who might have to take the case to resolve the split).  Aereo hopes that their clear win in the Second Circuit will allow them to present a stronger case to the Supreme Court.

All that remains now is how the Supreme Court case goes for Aereo.  

 

A Few Updates

Today’s post will be fairly short, since there aren’t any major new issues at the moment (DC being shut down for the past two days due to snow and ice probably helps there).  I’ve instead decided to provide updates on two previously discussed issues: the Beastie Boys-Goldieblox case and the Trans-Pacific Partnership (TPP).  

First, there is a new development in the Beastie Boys-Goldieblox case.  The Beastie Boys opted to counter-sue Goldieblox for copyright infringement.  Goldieblox originally sued for declaratory relief (more or less asking the court to say that their use of “Girls” constituted fair use in anticipation of a lawsuit by the remaining Beastie Boys).  Since last writing about this case, Goldieblox received a number of accusations about the timing of the lawsuit.  The company’s decision to remove the offending video from their YouTube channel after they sold all of their merchandise prompted accusations of using the lawsuit as a form of advertising.  The theory is that Goldieblox intentionally sued the Beastie Boys to increase brand recognition (due to all the articles written about the lawsuit).  This debate even extended to Etsy’s counsel, Sarah Feingold writing her own Beastie Boys parody discussing her feelings about the case.  It now seems that, unless the case settles, we will get a judge ruling on whether Goldieblox’s commercial constitutes fair use.

Second, the Huffington Post published a number of documents detailing the positions different countries hold on different issues while negotiating the TPP.  The most useful of these is a chart illustrating where different countries stand on various issues.  The chart seems to indicate that the US is pushing a number of section in the intellectual property chapter, including: patentability criteria, supplementary patent protection, extension of patent protection to controversial new subject matter (such as plants, animals, and surgical techniques), extending copyright terms, and parallel importation for copyrights.  Most of the aforementioned topics of discussion have either only US acceptance or have only been accepted by a handful of the countries (none of the aforementioned issues have more than three of the 11 countries accepting, according to the chart).  

That should do it for today.  Stay dry and warm everyone!    

Patent Trolling

The House of Representatives recently passed the Innovations Act, a bill aimed at curbing the behavior of patent trolls.  Patent trolls, for those unfamiliar with the term, are entities that own patents (that are often vague or dubious) and use those patents to sue a multitude of companies they believe infringe.  Usually the purpose of these suits is less to win, and more to extract a settlement from the companies being sued.  Patent suits are long and expensive, so there is a strong incentive to settle.

What does the Innovations Act do to curb or discourage patent trolls?  First, the bill requires the loser of the case to pay the fees.  The goal is to allow for smaller defendants to fight to the very end if they have a high degree of confidence in the final outcome.  Patent cases tend to involve a lot of discovery and supplemental investigation (prior art potentially includes all knowledge in the science, so sifting through all that prior art takes a lot of time), so the cost of going through patent litigation is very expensive.  This caused a number of smaller companies to settle, since the settlements were often cheaper than the legal fees.

There are a few other, more minor changes in the bill. The Innovations Act requires greater transparency in terms of patent ownership.  Entities filing the lawsuit have to disclose the assignee of the patent (the entity the original owner assigned the patent to), entities with a commercial stake in the patent, and the ultimate parent entity of the plaintiff.  Using shell companies to file suit had become relatively common, particularly in the tech world (mostly for public relations reasons).  There was even a recent, high-profile example of this trend when Rockstar Consortium (owned by Microsoft, Apple, RIM, and a few other mobile phone companies) sued Google over alleged violation of patents Rockstar acquired from Nortel (addressed in detail here).  The Innovations Act now requires Rockstar, for example, to disclose these larger companies’ interest in the patent suit.  Finally, the bill also creates a “customer suit” exception that allows for customers to get their case stayed if the manufacturer offers to take over the defense.  That section potentially allows for smaller companies to avoid dealing with the litigation, and potentially allows for the ultimate target of the suit to consolidate the case.

This bill still has some disappointing omissions.  The major one was not allowing for the US Patent and Trademark Office (USPTO) to review the patent prior to the case.  Currently, the USPTO can only conduct a review for a very small number of patents (basically, just business method patents) before going through a trial.  Allowing for more patents to undergo review before a trial potentially avoids expensive litigation, saving the parties involved time and money.  Since patent trolling relies on the length and expense of litigation to successfully extract settlements, such a review process potentially reduces the incentive to sue when the patent troll possesses a questionable patent.  Still, the Innovations Act provides a strong foundation for making our patent system function in a more equitable manner.  Now, on to the Senate.  

Updates and Digital Lockers

Last Friday, I could not write the normal entry on Friday due to illness.  I feel much better now, so I’m going to resume writing these blog entries on the normal schedule.  Sadly, there isn’t too much in the way of news today.  I’m going to briefly discuss a rather interesting settlement: the Hotfile case.

The Motion Picture Association of America (MPAA) recently sued Hotfile, a digital locker service.  Hotfile, rather than taking the matter to court, decided to settle shortly before the start of the jury trial.  Despite a number of high profile motions (like one stating that the MPAA could not use terms like ‘piracy’ or ‘theft’ to describe infringement at trial), Hotfile opted to settle with the MPAA for $80 million.  In some ways, it’s kind of a shame Hotfile opted to settle.  Digital lockers (sometimes referred to as cyberlockers) represent something of a gray area when it comes to tech law.  These sites allow a user to store files on a server run by the site, limiting access to those files to the user and those with whom the user chose to share the unique link.

However, there are a lot of issues to sort out regarding their compliance with the Digital Millennium Copyright Act (DMCA).  The trial did delve into safe harbor issues, ruling that Hotfile did not qualify for safe harbor protections.  The court noted that Hotfile rarely terminated the accounts of repeat infringers and that the company put incentives in place to encourage downloading.  Finally, the court noted that storage of the files is not secure since a user need only the correct URL to download the file stored on Hotfile’s servers.  These incentives, in the court’s judgment, caused Hotfile to go from a storage service to a distribution service.

Does this ruling provide any insight into whether digital lockers receive DMCA protection?  At minimum, Hotfile’s case seems to provide some ground rules for operating a digital locker service while maintaining some safe harbor protections.  The first is implementing some system to deal with repeat infringers, likely by terminating their accounts on the site.  The court made a big deal about how Hotfile only terminated 43 accounts, despite receiving 10 million DMCA notices.  The court also felt that there was no system in place, since the records showed that the 43 accounts only got a closer look due to the threat of litigation (at page 18 of the ruling).  While they theoretically had a policy in place of suspending accounts that received two or more DMCA takedown notices, there were over 47,000 active accounts that met this threshold while remaining active.  The distinction made by the court between a “storage service” and “distribution service” is also rather interesting.  The court seems to imply that there is a higher bar for internet services that distribute content, instead of simply store content.  Digital lockers may, if this ruling holds sway or courts find it persuasive, need to ensure that files stored on the site must be difficult to share between users.  It’s unclear how this affects other online storage sites that allow for some sharing between users, but through methods that are more difficult than simply posting a link (Dropbox immediately comes to mind).

Here’s hoping that the next case involving digital lockers that inevitably pops up will answer these questions in a bit more detail.