Ignorance of the Law, an Excuse?

Throughout my childhood my father used to tell me, “Ignorance is no excuse for the law.”  It didn’t matter whether I was jaywalking or learning the hard way that glass jars of pickles don’t bounce; ignorance was no excuse.  Well it looks like there may be one time when ignorance is an excuse.  But I’m in doubt.

Criminal Charges under US Copyright Act Dropped

Many readers may have been following the USA v. Crippen case on other sites.  - Wired has a fairly detailed running account of the case. – This is the case in which California resident Matthew Crippen was criminally charged for violations of the US Copyright Act.  It was to be the first criminal case addressing a violation of the Copyright Act’s restriction against circumvents technical protection measures (TPMs) designed to protect copyrighted works.  “Was” because this past week the prosecution dropped the charges.
The many reports on the prosecution’s decision list a number of factors leading to the decision to drop charges.  Rumors of prosecutorial misconduct and concerns about the jury learning of crimes committed by the prosecution’s witnesses are two of the reasons mentioned.  (See Wired, above, and TechSpot for more on these reasons.)  But it seems like the main reason, which is related to both of these, is Judge Gutierrez’s decision that the prosecution would need to prove that Crippen knew he was violating the law.  (“The government said it would have dropped the case if that more onerous standard was required.” Wired.)

Looking for “Knowledge”

I’m still trying to figure this one out.  According to Wired (specific article link), “Gutierrez ruled that the government had to prove Crippen knew he was breaking the law by modding Xboxes.”  Maybe there’s a nuance that got missed or misinterpreted somewhere between the judge and Wired.
Crippen was modifying X-Boxes, allegedly so that they would play pirated games.  From what I can gather, the statute Crippen was charged for violating was 17 USC 1201.  I am not sure if it was part (a) for “circumventing a technical measure” or part (b) for “circumventing protection afforded by a technical measure.”  However, the rest of the provisions in each section are parallel so we can look into the knowledge element without knowing with which specific provision Crippen was charged.

Subsections (A)

The first requirement, in § 1201 (a)(2)(A) and (b)(1)(A), is that the main purpose of the service be to circumvent a measure that effectively controls access to the work.  This could have a  knowledge element, requiring the defendant to know that the changes he was making would give access to works that were previously not accessible.  But knowing you’re getting access to something you couldn’t access before is not the same as knowing you are breaking the law.  So our knowledge of committing a crime being an element isn’t here.
-- NOTE: There’s a number of elements within this each Subsection.  I am only looking at potential knowledge elements.  For a great in-depth look at each element of the crime, see this post on bunnie studios by someone who was called as an expert witness in this case. --

Subsections (B)

The next subsection, (a)(2)(B) and (b)(1)(B), requires that any commercially significant purposes aside from allowing access to previously restricted items are limited.  No knowledge element there.

Subsections (C)

The last subsection requires that the service be marketed for use in circumventing a TPM.  This requires the same sort of knowledge element as subsection (A), the knowledge that the service is providing access to restricted works.  Again, there doesn’t appear to be anything suggesting that in order to violate this law the person circumventing the TPM needs to know that circumventing TPM is illegal.

So Where’s the Knowledge

Is there a knowledge element elsewhere in the DMCA or in the US Copyright Act that applies to this section?  What am I missing?  Do any of our readers have an idea why the judge would require the prosecution to prove that the defendant knew he was breaking the law?

Viacom lodge Google appeal

Viacom will appealed in the $1 billion copyright infringement lawsuit it brought against Google's YouTube in 2007, which a federal judge dismissed earlier this year. U.S. District Judge Louis Stanton ruled in June that YouTube should be considered a service provider under the provisoins of the Digital Millennium Copyright Act (DMCA), and therefore not liable for copyright infringements committed by users of the service under the 'safe harbour' principle. Judge Stanton also noted YouTube's good faith efforts to remove copyrighted videos when presented with valid takedown notices from copyright holders (http://the1709blog.blogspot.com/2010/06/youtube-wins-viacom-copyright-suit.html) It is understood that Viacom's appeal, argues that Judge Stanton ignored the fact that YouTube knew it was hosting copyrighted material, but did nothing because that copyrighted content was attracting more viewers than its user-generated videos.

http://www.dmwmedia.com/news/2010/12/03/viacom-files-appeal-1-billion-youtube-copyright-lawsuit and see the IPKat at http://ipkitten.blogspot.com/2010/06/breaking-news-google-wins-1-billion.html

The Gaga Files: German hackers face trial

Two young German computer hackers have been accused of stealing pre-release recordings from artists including Lady Gaga, Justin Timberlake, Ke$ha and Kelly Clarkson and selling the tracks online, in a number of instances forcing record labels to rush release singles to enjoy some returns from legal downloads. Dusisberg's chief prosecuter said that a 17 year old school boy and a 23 year old unempployed man (indentfied only as Deniz A and Christian M) were under investigation for using trojan malware to hack into artist's computers. It seems trhey remained undetected for over twelve months. It is also alleged that they also accessed a compromising photograph of one artist with a plan to extort money from the featured musician. One of the pair, who both lived at home, used the online name 'DJ Stolen' and they attached the Trojan to MP3 files sent to artists, their labels and their management companies. Police were alerted after a fan of Kelly Clarkson alerted her management to unreleased songs being sold online. The pair are said to have earned over $13,000 from sales of the songs and the accused face up to five years in prison and large fines if convicted. It is not known what songs were stolen or the losses suffered by the artists and their labels from the unschedlued 'releases'. The Dusiberg prosecuter said that investigations would be completed in January.

http://www.dmwmedia.com/news/2010/12/03/hackers-steal-lady-gaga-timberlake-mp3s-sell-them-online

Picture Nick Cordes at Glastonbury 2009 (C) 2009

Machinima – mixed messages about alternate universes

If your copyright is infringed, you can object, ignore or approve.

‘Machinima’ are homemade movies put together using imagery from computer-games. The gaming industry, seeing the promotional value of these derivative works, seems to approve. World of Warcraft, for example, sanctions machinima in its ‘Letter to the Machinimators of the world’. Along with the approval come conditions, the most important of which is that machinima must be non-commercial.

This is a copyright story with a happy ending but that doesn’t mean to say it isn’t interesting, as Gaetano Dimita revealed to a Blaca meeting last month.

‘Letter to the Machinimators of the world’, for example, is a copyright licence – though not a contract as the user is not providing any consideration. It has an uneasy relationship with the End User Licence Agreement (EULA). While the Letter says ‘you are permitted to create machinima productions’ the EULA says ‘you agree that you will not, under any circumstances … create derivative works based on the Game’. In copyright terms, this appears to be a direct contradiction – you are allowed and not allowed. From the perspective of contract law, the Letter is not a contract, so is unenforceable by the user, while the EULA is a contract, so is enforceable by the computer-game company.

If your copyright is infringed, you can object, ignore or approve – or a combination of the above.

OHIM is becoming a ‘true IP agency’

The President of OHIM delivered a speech at the Brussels IP 2010 summit today setting out his vision of transforming OHIM into a ‘true IP agency’ and not just a registration office. It seemed that he was primarily talking about OHIM playing a more active role in the enforcement of trade mark and design rights but could there be implications for copyright? He alluded to involvement in the Commission’s Counterfeiting and Piracy Observatory, which collects data about all intellectual property infringement.

‘Community trade marks and designs are very successful,’ he said, ‘and we have built up a substantial surplus. We have an obligation, and potentially the resources, to do some things to make the whole IP system work better, and that’s what we will be looking into.’

The speech is here: http://oami.europa.eu/ows/rw/news/item1682.en.do

The Internet, it’s a Copyright Feature, Not a Bug

Looked at in terms of copyright, the Digital World was perceived as a bug. The ease of copying led to rampant infringement that harmed creators. In contrast, again looked at in terms of copyright, I submit that the Networked World should be embraced as a feature.  ~ Tom Rubin, Chief Counsel for IP Strategy at Microsoft

It seems like a point that ought to be obvious, the internet is a good thing.  But, Mr. Rubin is talking about the internet solely through the eyes of copyright law, and here, it is hard to argue that the internet has been treated as a problem.  The Digital World doesn’t fit neatly into existing copyright law and, for the past two decades the most common approach has been to try to jam it in forcefully, hammering the new round peg into the old square hole.

Mr. Rubin explored this issue as part of the Intellectual Property in the International Arena: WIPO Comes to Stanford conference hosted at Stanford Law School last month.  As part of the panel “Copyright in a Networked World,”  Mr. Rubin discussed two main needs for a working copyright system in the digital world.  First: speed and scalability.  Content users need to be able to find and license works quickly.  Second, and related to the first: working information sources and databases.  Content users need to be able to find out who owns the rights to a work quickly and easily. 

Mr. Rubin’s full recount of his participation on the Copyright in a Networked World panel is available at the Stanford CIS blog.  Full reading of this short and interesting piece is encouraged.

(over the) Pond Life

The U.S. government has seized control of dozens of websites it says are offering unauthorized copyrighted or counterfeit content. The Department of Homeland Security's Immigration and Customs Enforcement (ICE) division took over 82 domains including Torrent-Finder.com, RapGodFathers.com, DVDProStore.com, Cartoon77.com, NFLJerseySupply.com and Handbag.com. The seizure orders come from courts in eight states and take place shortly after a U.S. Senate Committee approved the Combating Online Infringement and Counterfeits Act (COICA), which aims to empower the Justice Department to use tactics similar to those just employed by Homeland Security and ICE.

Wired.com report that EMI Records has asked the federal judge overseeing the label's copyright infringement lawsuit against music locker service MP3tunes to bar digital civil liberties group the Electronic Frontier Foundation (EFF) from submitting a "friend of the court" brief in the case saying that the EFF brief is "a pure advocacy piece, not a 'friend of the court," and also that the brief is "duplicative," "contains unsupported speculation," and exceeds the court's page length restriction. EMI also argues that, should EFF's brief be allowed, parties supporting EMI's position should be allowed to submit additional briefs.

TorrentFreak reports that the US Copyright Group, which has filed copyright infringement lawsuits against tens of thousands of internet users who have allegedly illegally downloaded movies such as "Far Cry" has been hit with a class action lawsuit by over 4,500 of those sued. The retaliatory class action lawsuit alleges "extortion, fraudulent omissions, mail fraud, wire fraud, computer fraud and abuse, racketeering, fraud upon the court, abuse of process, fraud on the Copyright Office, copyright misuse, unjust enrichment and consumer protection violations" and says that the offences were committed by US Copyright Group in its efforts to extract settlement fees from alleged file-swappers. The claim also says that the producers of "Far Cry" did not secure a copyright registration for the film until after it began collecting information on peer-to-peer traffic, and argues that this fact invalidates any earlier claims of infringement.

In case you missed it, there is a war of words going on over in the USA all about a letter sent to PC Mag by the major record labels and other music industry trade groups in response to a PC Mag story about the demise of Limewire, which the labels say was promoting unauthorized copyright infringement by naming alternatives to the now defunct Limewire. Apart from the fact it seems that the original story was actually published by PC World (a competitor of PC Mag) the accusations stirred up a hornets nest, in particular over the magazine’s right of free speech with PC Mag saying “PC Mag's job is to cover all aspects of technology, which includes the products, services and activities that some groups and individuals might deem objectionable. We covered these Limewire alternatives because we knew they would be of interest to our readers. We understand that some might use them to illegally download content. We cannot encourage that action, but also cannot stop it. Reporting on the existence of these services does neither.” Not content with that, the letter goes on to say “It worries me that the music industry took this action, because it reeks of desperation. The RIAA and other music industry organizations have spent the better part of the decade fighting the digital transition, with only a shrinking business to show for it. In recent years, though, the fist of anger has turned into at least one open hand as the music industry embraces the once shunned digital music industry. Unfortunately, that warm embrace, and the change that comes with it, are not happening fast enough. Clearly the music industry is still losing money to music piracy and even the recalibrated profit margins brought on by legal music sharing services. It's time for these music execs to pull their collective heads out of the sand and fully acknowledge and accept all the ways their industry has changed. They also have to understand that nothing will stop technology's inexorable march forward. Things will continue to change. Music downloads and sharing will never go away. These execs have to find a way to use all that technology allows and make a business”.

A US teenager has failed in her appeal to have her damages for illegally downloading overturned because she didn’t know what she was doing was illegal. As a 16 year old Whitney Harper had used the then popular Kazaa service to download 37 tracks and she was sued by the RIAA and faced damages of $27,750.00. Harper argued that she was not aware that the file-sharing program on her computer was dealing in stolen property saying she thought the songs could be downloaded for free, just like listening to the radio on the Internet. The Supreme Court disagreed (with one judge dissenting) and upheld the 5th Circuit Court of Appeals who ruled in February that Harper could not pay a reduced minimum fine of $200 per infringed track -- instead of $750 -- as an "innocent infringer." The federal appeals court cited a provision that says infringers should know they are breaking the law since a copyright notice "appears on the published phonorecord."

Now on to Sarah Palin, who has secured much needed publicity for her new book after HarperCollins, the publisher of "America By Heart: Reflections on Family, Faith, and Flag", reached a settlement in their a lawsuit with Gawker.com. The website had published several leaked pages of the book and was ordered to take them down by a New York City judge earlier this week. "In settling the case, Gawker has agreed to keep the posted material off its website and not to post the material again in the future" HarperCollins said in an official statement.

And finally to Bradford Cox, the artist behind Deerhunter and Atlas Sound who had a rather unusual weekend after Sony Music issued a DMCA takedown notice against his blog on Friday, it seems in connection with two albums of his own bedroom-made demos which he had uploaded for his fans to download for free. This was somewhat confusing because Cox is not and has never been signed to any Sony Music label so the album's cannot be their property. Deerhunter are signed to Beggar's 4AD while Atlas Sound release via indie label Kranky according to the CMU Daily. The major has now admitted to Billboard that it had made a mistake and that it had made Cox, his manager and music server Mediafire aware of this fact. Which brings us full circle to the first story and the risks we all run when content owners are given legal powers to have allegedly infringing websites taken offline – what happens if they get it wrong?

http://www.pcworld.com/businesscenter/article/211832/courts_shut_down_82_sites_for_alleged_copyright_violations.html

www.techdirt.com

http://www.courthousenews.com/2010/11/29/32147.htm

How originality is reinventing itself

On Friday Mrs Justice Proudman handed down her judgment in NLA v Meltwater and PRCA, [2010] EWHC 3099 (Ch), a judgment that examines the way European law is transforming English copyright law and the effectiveness of website terms in controlling how content is accessed and used.

Meltwater provides an online media monitoring service to business customers. Customers choose search terms and Meltwater sends them ‘Meltwater News’ – reports of articles containing those search terms. Meltwater News includes the headline of an article (which hyperlinks to the article), the opening words of the article and an extract showing the context in which the search term appears.

The Newspaper Licensing Agency has recently started two licensing schemes, one for media monitoring organizations and the other for end users of those monitoring services. The Agency and several newspapers have sued Meltwater and the professional association for PR companies (PRCA). The issue for the court in this judgment was whether Meltwater’s end users, such as PRs, should require a licence from NLA – would they be infringing copyright if they did not have one? The conclusion reached was that without a licence, end users are infringing the publishers’ copyright.

Copyright infringement

The starting point was that end users are making a copy of Meltwater News on their computers. Were the headlines and extracts in Meltwater News infringing copyright? Headlines, Proudman J found, are sometimes independent literary works and, in that case, copying them is automatically copyright infringement. The text extracts, on the basis of the ECJ’s Infopaq judgment, are theoretically capable of being substantial enough for the purposes of s. 16(3) CDPA and, in practice, in many cases the text extracts did contain elements that are the expression of the intellectual creation of the author. Although Infopaq had changed the test for the part of a work from substantiality to originality, this made little difference in the present case.

European law has challenged the traditional analysis of whether copyright in parts of works has been infringed in two significant ways. Firstly, the CDPA says copyright is infringed when a ‘substantial part’ is copied. The Information Society Directive just says you need to copy ‘a part’. However, Infopaq says that the part must be the ‘expression of the intellectual creation of the author’ – which arguably implies a higher level of originality than has previously been required under English law. Proudman J’s argument becomes a little hard to follow at this point: it was wrong in principle for the court to assess if the extract was itself novel or artistically worthwhile but a part must ‘demonstrate the stamp of individuality reflective of the creation of the author’. This latter statement does seem to raise the bar for originality.

One point that wasn’t touched on is that the InfoSoc Directive provides that sanctions and remedies in respect of infringements should be appropriate and proportionate. Could proportionality provide an alternative mechanism to substantiality to avoid overreacting to small infringements?

Database copyight

End users were not infringing newspapers’ s. 3 CDPA database right. Although newspapers’ websites are ‘databases’ (collections of independent works, systematically arranged and individually accessible), Meltwater’s end users are copying the articles, not their arrangement within the database. (Compare and contrast with Football Dataco v Brittens Pools, currently before the Court of Appeal.)

Was it an infringement of copyright for end users to click Meltwater’s hyperlinks through to the publishers’ sites?

The judge thought it was infringement, more likely than not. The terms of publishers’ sites sometimes say customers of commercial monitoring services require a licence to use the content and they always say they cannot be used for commercial purposes. Nevertheless, the judge was somewhat unimpressed that the claimants were here complaining about users visiting their sites while elsewhere they were complaining that Meltwater’s customers didn’t click through, so depriving the sites of traffic.

Exceptions

End users’ uses failed to fall within any copyright exception: temporary copies, criticism/review or news reporting. Article 10 of the Berne Convention did not persuade Proudman J to take a relaxed approach to quotation: ‘Berne cannot displace the express provisions of the InfoSoc Directive or override what was said by the ECJ.’ She didn’t buy the defendants’ argument that Meltwater benefited from the criticism or review exception because it was letting end users decide whether material was likely to be of interest. And it was tortuous to say that copying to spot mentions of clients in the press fell within the news-reporting exception. In any case, even if exceptions applied, there was no fair dealing and no author acknowledgment.