Transmission + Reproduction != Distribution

Posted by Fred von Lohmann

Last week, EFF filed an amicus brief on behalf of Tenise Barker, one of the more than 19,000 Americans who have been sued by the record labels for file sharing. Ms. Barker, represented by Ray Beckerman, is fighting back in court.

EFF's brief makes one narrow but important point: P2P file sharing does not infringe a copyright owner's "distribution right."

The major record labels have been suing file-sharers for infringing both the reproduction right (for downloading) and the distribution right (for uploading). Because most of these lawsuits settle or go undefended, simply alleging infringing copying should be enough. So why sue on both grounds?

Answer: the record labels are hoping to quietly expand the "distribution right" to include Internet transmissions. In other words, the major labels are trying to rewrite the rules on the backs of people like Tenise Barker, hoping to get new leverage in other contexts.

The labels are aiming to stretch the distribution right in two ways. First, they are claiming that "merely offering" to upload a file infringes the distribution right, even if no one ever takes you up on the offer. In other words, the labels are hoping to fool a court into conjuring a brand new beast: attempted copyright infringement. Judge Patel rejected exactly this notion in the Napster case.

But even more importantly, the labels are hoping that the courts will extend the distribution right to include transmissions over the Internet. When a file-sharer uploads a file, the file is transmitted and a copy retained at the other end. While that may look like a "distribution," the Copyright Act does not give a copyright owner control over all distributions, but rather only distributions of physical, material objects ("copies and phonorecords"). So, unless a file-sharer has unscrewed her hard drive and handed it to another person, she is not infringing the distribution right, because that right only extends to distributions of physical objects.

Why does it matter? If transmission plus reproduction equals distribution, then suddenly lots of people start looking like distributors. When XM and Sirius sell you a receiver that can record their broadcasts, or Comcast provides DVRs to subscribers, they might find themselves running afoul of this new, expanded "distribution right." This, in turn, would give the movie and music industries another weapon in their fight against new technologies.

After decades of lobbying in Congress, the entertainment industries already have plenty of weapons at their disposal. Bullying individual file sharers shouldn't get them new ones.

UPDATE: The Computer and Communications Industry Association (CCIA) and U.S. Internet Industry Association (USIIA) have also filed an amicus brief in Elektra v. Barker addressing the question of the proper scope of the 106(3) distribution right.

UPDATE: The United States has filed a brief in the case supporting the record labels, arguing that transmissions are covered as distributions under copyright law.

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Yahoo!'s New Advertising Policy Shortchanges Customers

Posted by Corynne McSherry

In the interests of expanding its big brand advertising base, Yahoo! has turned its back on consumers. SearchEngineWatch reports that Yahoo is sending emails to all advertisers warning that, as of March 1, Yahoo will forbid them from bidding on keywords with competitive trademarks. In other words, Coke can no longer bid to use "Pepsi." Yahoo! insists that the purpose of the policy is to "more easily deliver quality user experiences when users search on terms that are trademarks."

That's nonsense. It's as if Walgreens decided generic aspirin manufacturers could no longer bid for shelf space next to the more expensive name-brands. Putting the generics near the name-brands promotes generic aspirin sales, of course, but it also helps consumers by saving them the time and effort of hunting around the shelves for cheaper alternatives. As SearchEngineWatch notes, Yahoo!'s more likely goal is to attract big brand advertisers that want to prevent consumer traffic from being redirected to competitive sites.

Ironically enough, Yahoo!'s new trademark policy undermines the fundamental purpose of trademarks: to improve consumer access to accurate information about goods and services. Trademarks are just shorthand terms that designate the origin of a product. If I buy a soft drink with "Coke" on the label anywhere in the United States, I know it will taste exactly the same because it was made from the same Coca-Cola formula. Comparative advertising simply uses that shorthand term to provide more information about the trademarked product and competitive products. That's why comparative trademark use is clearly protected under U.S. trademark law. If it weren't, Pepsi wouldn't be able to tell consumers that more people think its cola tastes better than Coke, and Sony wouldn't be able to explain why Playstation beats the pants off any Xbox.

If Yahoo! really wants to "deliver quality user experiences," it should promote comparative advertising so that users have easy access to as much information as possible. After all, isn't providing more and better information the main purpose of a search engine?

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Blogging WIPO: The Development Agenda - Where to From Here?

Posted by Gwen Hinze

The first meeting of WIPO's Provisional Committee on Proposals Related to a Development Agenda (PCDA) has just ended, amidst a last-minute flurry of activity. The question on everyone's mind is where to from here? The answer is not so clear.

After four days of discussions about interesting proposals from Chile, the Africa Group, Colombia, the United States of America and the 15 countries in the Group of Friends of Development, late yesterday the Chair asked countries to "cluster" the 50-or-so proposals currently on the table under five headings, with the goal of shaping discussions at the next PCDA meeting on June 26-30. That meeting must produce recommendations on a Development Agenda for the WIPO General Assembly.

Now we have two lists of proposals: a set of 66 detailed proposals from the Group of Friends of Development, and a list of 45, including proposals from the Africa Group, Chile, Colombia, and the United States. [UPDATE: The combined list of 111 proposals is now posted on WIPO's website.]

Reflecting the hostility underlying the Genevois diplomatic exchanges this week, the Group B developed countries immediately requested a recess for inter-country consultations on receiving the document from the Group of Friends of Development. When the session resumed, the Chair announced that he would hold informal consultations with Member States before the June meeting on a consolidated list of proposals. So now we wait for June.

We'll be blogging the NGO Coalition's notes of today and the rest of the proceedings here shortly.

Updated, 3/10 - we've now posted notes from days 3-5. See also our reports from days 1 and 2.

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Blogging WIPO: Understanding the Public Domain

Posted by Gwen Hinze

In the afternoon of Day 2 of the WIPO Provisional Committee on Proposals Related to a Development Agenda we finally got down to business: discussing Chile's thoughtful proposal on the Public Domain. Chile had actually put forward three suggestions, but it was the proposal for WIPO to undertake a study of the value of "a rich and accessible public domain" that drew comments from a slew of Member States, the Committee Chair and public interest non-governmental organizations. And rightly so. As Chile's proposal notes, the public domain is essential for ensuring access to knowledge, and provides the foundation for technological innovation.

Intellectual property rights are supposed to promote the same goals, but you'd never know it from the comments of some participants who seemed to fundamentally misunderstand the essential relationship between IP and the public domain. Apparently under the mistaken impression that the public domain is the opposite of intellectual property, these participants claimed that the proposal was outside WIPO's mandate.

The copyright and patent regimes have historically recognized that the creation of intellectual property requires a robust public domain. Material from the public domain forms the building blocks on which new creations are built. As the Chilean delegate eloquently put it: "Our starting premise is that nothing is created out of nothing. The greater the works in the public domain, the greater the creation." The public policy underlying the grant of time-limited exclusive copyright and patent rights is that the public domain will be continually enriched, to the benefit of all society.

Precisely because of the public domain's importance, recent encroachments upon it - such as Technological Protection Measures, new sui generis database rights for non-copyrightable data, exclusive rights for test data in the patent arena, and extensions of copyright and patent terms - deserve careful scrutiny.

Chile also proposed that WIPO analyze complementary systems to intellectual property that incentivize creative activity, innovation and technology transfer, including free and open source software and creative commons licences, and a study or set of case studies assessing the appropriate level of intellectual property protection based on different countries' development status.

The NGO coalition's notes of day two's proceedings are after the jump. There are also great summaries of the debate at the blogs of IP-Watch, Georg Greve, and Karsten Gerloff of Free Software Foundation Europe, FGV Brazil, and Thiru Balasubramaniam of Consumer Project on Technology.

[Read the entire post]

Perfect 10 v. Google: More Smooth Than Crunchy

Posted by Fred von Lohmann

While you wouldn't know it from the headlines, I think yesterday's preliminary injunction ruling [1.3mb PDF] against Google will be remembered as a little bad for Google, but a lot good for the Web. (Full disclosure: EFF filed an amicus brief supporting Google in the case.)

First, the court firmly rejected the notion that in-line linking of images directly infringes a copyright owner's public display right. That's a huge victory for the World Wide Web, which has long relied on in-line linking. Had Perfect 10 won on this point, every in-line link could potentially trigger automatic liability unless you got prior permission for the link. (Some may remember EFF's amicus brief in Kelly v. Arriba Soft, involving the Ditto.com image search engine, where we helped persuade the Ninth Circuit to withdraw some very bad language on this point.)

Second, the court rejected Perfect 10's secondary liability arguments. Basically, Perfect 10 argued that because Google "created the audience" for infringing websites, it should be held responsible for the infringements on those sites. Imagine that -- because you help someone find a site, you're held responsible for what happens on that site? That would have been a catastrophe not only for search engines, but for linking generally.

Third, the court reasoned that merely visiting a website that includes infringing material does not make you an infringer. When you visit a website, your browser makes a copy of images in its cache. According to Perfect 10, that means every person who views a webpage that includes an infringing image becomes an infringer. Yup, simply reading a webpage would make you a pirate! The court rejected that argument, pointing out that most people don't treat their browser cache as a repository for infringing goodies, and concluding that copies made automatically by your browser are probably fair uses.

So that's three major victories for the Web at large. Now what about the bad fair use ruling?

[More on that after the jump.]

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Blogging WIPO: New Proposals as Development Agenda Talks Restart

Posted by Gwen Hinze

The first meeting of the newly-created WIPO Provisional Committee for Proposals Related to a Development Agenda (PCDA) started yesterday, and runs until February 24. The PCDA is tasked with reviewing the 50 or so proposals put forward by WIPO member countries and coming up with concrete action proposals for the September 2006 General Assembly. No easy task indeed.

And then there's the politically-charged atmosphere. The meeting began almost three hours late after intense negotiations to elect a Chair that was acceptable to all countries. But when talks finally got underway in the afternoon, and countries presented their new proposals, the real issue at stake here - how to create intellectual property laws that protect human rights like access to knowledge and medicine - took center stage.

Four new proposals are on the table, along with the yet-to-be discussed Africa Group's proposal. Chile's proposal is full of thoughtful insights about recent global trends that have extended exclusive rights, redrawn the traditional balance in global intellectual property law, and whittled away the public domain. Noting that Technological Protection Measures have been used to restrict access to public domain material, Chile asked WIPO to undertake a study of the benefits of a rich public domain and ways that it might be protected from such encroachments. (Deeplinks readers will remember that the U.S Copyright Office declined to grant EFF's 2003 proposal for a DMCA exemption that would have allowed consumers to access public domain movies on DVDs.)

Chile also asked WIPO to consider current global developments in alternative and complementary non-intellectual property-based approaches to fostering creativity and technological innovation, including an Access to Knowledge treaty (and of course, free and open source software and Creative Commons licenses).

Talks on the proposals put forward by the Africa Group, Group of Friends of Development, Colombia and the United States continue today. As usual, EFF will be blogging events together with a coalition of international NGOs. There's great summaries at Thiru Balasubramaniam's blog and at IP-Watch. The NGO coaltion's notes of day one are after the jump.

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Copyright Criminals Remix Contest

Posted by Fred von Lohmann

What better way to get the word out about the documentary, Copyright Criminals: This is a Sampling Sport, than to sponsor a remix contest?

This new contest challenges artists to mix tracks under 4 minutes and use provided voice samples from Ben Franzen and Kembrew McLeod's forthcoming film, "Copyright Criminals." Samples from the film include voiceovers from George Clinton, De La Soul, DJ Qbert, members of Public Enemy, Matmos, Coldcut, members of Negativland, and others. The best overall winner will be included prominently in the film and the top 11 other entries are to be included on a companion CD.

You've got till March 14 to get your entries in.

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DMCA Used to Block Cellphone Secondary Market

Posted by Fred von Lohmann

Here we go again, another example of the DMCA being used to block competition in secondary markets. First we had the lawsuit to block refilling of Lexmark toner cartridges. Then the lawsuit to block interoperable clickers for garage door openers. Then the lawsuit to block independent service vendors from servicing enterprise data storage systems.

Now we have TracFone, "the largest provider of prepaid wireless telephone service in the United States," invoking the DMCA [complaint, PDF] against a company that reprograms locked TracFone handsets so that you can use other network providers. (The Wireless Alliance has asked the Copyright Office for a DMCA exemption for cellphone unlocking, thanks in part to lawsuits like this.)

TracFone gives away locked Nokia handsets at below cost, hoping to make it back by selling you minutes. The rest is obvious to anyone who paid attention when vendors tried the same thing with CueCat bar code scanners and Ritz digital disposable cameras. A competitor jumped in, bought the below-cost handsets, unlocked them, and started selling them.

So TracFone has called in the lawyers, hoping the DMCA will shut down the secondary market and prop up their business model (there are also trademark, unfair competition, and tortious interference claims).

Reasonable minds may differ about whether the defendant here, Sol Wireless Group, deserves to be punished for its business practices. But it is hard not to conclude that this is another unintended consequence of the DMCA, and another example of the DMCA impeding competition in a realm far removed from movies and music.

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Time to Settle Up with Sony BMG

Posted by Rebecca Jeschke

If you were upset about Sony BMG's dangerous digital rights management (DRM) released in millions of CDs last year, now is the time show that you care. The settlement process has begun in EFF's class action lawsuit against the entertainment giant. Music fans who bought the affected CDs can submit claims for clean CDs. Some customers are also eligible for extra downloads.

There are two big reasons you should take the time to fill out the claim forms. First, it will get you what you thought you were buying in the first place: music that will play on all your electronic devices without installing sneaky software. But this is also a way to show Sony BMG -- and the entire entertainment industry -- how important this issue is to you. If you take the time to claim the product you deserve, maybe other music labels will think twice before wrapping songs in DRM.

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Who Wants to Kick Macrovision's Tires?

Posted by Fred von Lohmann

In the wake of the scandals regarding the XCP and MediaMax CD copy protection mechanisms used by Sony-BMG and several independent labels, EFF asked EMI if it would allow security researchers to examine the Macrovision copy protection technologies that it uses. The goal would be to verify that Macrovision's CD copy protection software does not create security vulnerabilities for music fans. Although EMI and Macrovision claim confidence in the security of the technology, there's nothing like independent testing to verify such claims. And unless EMI and Macrovision waive their DMCA and EULA claims, researchers could face legal action for certain kinds of security testing.

Responding to our open letter, EMI has invited security researchers interested in doing security testing on its CD copy protection technologies to come forward:

However, without knowing more details about - among other things - the type of research intended, by whom and for what purpose, we cannot accept your invitation to give a public, blanket declaration in the manner you suggest. Again, we are happy to assist in advancing legitimate, focused research, but we cannot provide protection to unnamed and uncounted "security researchers."

We at EFF would like to take EMI up on its offer "to assist in legitimate, focused research." If you are a researcher interested in doing security testing on Macrovision's CD copy protection software, please contact fred@eff.org.

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