WIPIP at BU session 5

Brad Abruzzi, Copyright and the Vagueness Doctrine

A vague law is offensive because it provides inadequate notice; traps the risk-seeking and risk-neutral; delegates excessive enforcement authority to the government, including courts; chills the risk-averse from lawful conduct. Ordinarily a law is vague for saying too little—“disturbing the peace” as applied to wearing a jacket with an offensive patch. Laws may also be vague because they say too much and are too complicated—Citizens United & Wisconsin Right to Life. Court there found vagueness because a multifactor test with its open-ended rough & tumble of factors virtually guarantees an appeal. If vagueness by prolixity applies to political speech, no reason it wouldn’t apply elsewhere. Remains to be seen where if anywhere this doctrine will go.

Collateral factors: does the law burden key rights (speech), impose criminal or quasi-criminal remedies, and/or have a mens rea requirement? Those are factors that increase the need for clear laws.

Copyright: even at a microlevel, doctrines are vague—substantial similarity and fair use, which are the doctrines that supposedly rescue copyright from First Amendment overbreadth. Substantial similarity applies idea/expression at the point of determining orginality. Courts have been very clear that the test is vague and that results in one case are not helpful in determining results in the next case.

Same with fair use: invites factor-specific review at which the SCt has looked askance recently.

Given the collateral factors—copyright burdens speech, has criminal and quasi-criminal penalties (statutory damages, which courts say serve punitive purposes), and has no mens rea requirement.

One judge, responding to a wholesale copier of software, wrote that copyright is vague, but that’s okay. Time to try again with a more sympathetic plaintiff?

What can we do to provide more notice? Courts have tried to add definition to substantial similarity, but have only added complications. Bright lines in fair use are probably also a bad idea because open-endedness is speech protection—don’t want to trade vagueness for overbreadth. Hard to imagine what to do to fix copyright, given the tradeoffs. So he proposes a 3-tiered remedy structure keyed to defendant’s level of fault, at least when plaintiff’s use is expressive. Injunction could be available on a strict liability basis. Actual damages should require some level of fault, at least negligence—defamation law is an analogue; Gertz held that some level of fault is required for defamation. Statutory damages should require wilfullness.

Conclusion: makes this argument on theoretical and practical basis. Has to grapple with fair use issues all the time in practice; vagueness imposes real costs. Invoking vagueness lends constitutional weight to reform arguments.

Gordon: Gertz?

A: Private figure defamation—did not require specific test beyond a fault requirement.

My questions: what’s your response to the strategic/interpretive claim that fair use is not as uncertain as all that, made by the Best Practices folks and by people like Pam Samuelson who group cases, or even in Beebe and Sag’s empirical research?

A: there are core fair uses in the case law; systematizing case law can allow us to draw conclusions, but open-endedness—e.g., Google cases involving indexing content for search engines was unanticipated by the drafters—law had to figure it out. We can extrapolate, but it’s really difficult for a speaker.

Silbey: say more about why bright lines won’t work.

A: we can’t agree on them; efforts to date haven’t worked. We have some outright exceptions already, like §110. But they’re largely incomprehensible. We don’t call them fair use, but maybe we should.

Boyden: suggestion that punitive/deterrence purposes of statutory damages makes them quasi-criminal—has that law been applied elsewhere? Any cause of action with punitive damages would therefore raise vagueness concerns.

A: we’ve increasingly seen scrutiny of procedural safeguards for punitive damages, if not outright full criminal protections.

Boyden: are criminal copyright prosecutions unconstitutional then? That’s worth a lot.

A: criminal copyright law puts so much weight on scienter that willfulness requirement does do a lot of the constitutional work of saving us from vagueness. They usually focus on exact copying.

Q: why are you comfortable with strict liability for injunctions?

A: Can work more harm than damages if you’re ordered to withdraw a book; if anything, settling on strict liability had to more with incrementalism and not being too disruptive. In practice, we see this anyway with the DMCA; everyone seems happy with ceasing the activity w/out damages. Will be rarely invoked.

Jim Gibson: depends on context. Political speech/documentary/etc.—classic situation in which property rule allows owner more leverage than actual damages.

A: true, if your interest is censorious, that might not be the right answer.

Gibson: not just censorious—if you catch them at the right time, they’ve already invested and you can extract extra value.

A: true, was looking to ways to keep the existing system.

Another question from me: Why commit to substantial similarity—why not say, pure or near-identical reproduction, plus a clearly defined derivative works right?

A: Hand’s black-letter rule—must protect against more than literal infringement. But we could say that literal plus de minimis changes are what’s covered, not more; it expanded over time. First Amendment history: Hand was able to throw around the world “vague” in a way that didn’t invite the constitutional claim; copyright has been grandfathered in. Wants copyright to provide more notice, but the question is whether we can do enough. (My thoughts: Look at Citizens United: some groups get to use the First Amendment to explode decades of regulation. If that’s going to happen, why don’t we demand that the First Amendment get used to explode other regulations?)

Zoe Argento, The Scope of the Trafficking Provision in the Digital Millennium Copyright Act

Issues in circumvention remain even after the recent exemption rulings: trafficking. Does manufacture cover making something for one’s own personal use? Definitions include production by hand. Legislative history repeatedly says that the legislation was designed to target “black boxes.” A device used to get around the law. Since the manufacture of these black boxes was industrial enterprise, it does seem more large scale manufacture was what they had in mind. Should “manufacture” be interpreted alongside the other words in the statute with it—noscitur a sociis?

“Trafficking”—generally involves both transfer and commercial gain, as per Black’s Law and other sources. Legislative history suggests concern with commercial transfer.

What about noncommercial transfer, then? Remeirdes: Corley posted DeCSS on his website. Court used a 30-year-old compact dictionary and interpreted “traffic” as “engage in dealing,” which involves awareness of nature of subject, but interpreted “otherwise trafficking” as being like offering to the public/providing, so that making available the tech for the purpose of allowing others to acquire it was the prohibited action.

She thinks Corley’s conduct was not good, it’s just that Congress wasn’t thinking about it; commercial purpose should not be an absolute requirement.

Child pornography cases also bar trafficking: courts have been asked whether filesharing counts. Court’s conclusion: Definition of trafficking also includes bartering; this can satisfy the financial gain element. Reasoned that using filesharing was a form of bartering because one shares files in return for receiving others; also looked at legislative intent, where Congress found that child pornography leads to revictimization with each viewing.

But not all uses of anticircumvention technology are harmful. Rather, the exemptions for various groups show that circumvention can be expressly allowed. Comparisons indicate that some forms of filesharing shouldn’t be considered trafficking.

Gordon: consider that the documentary filmmaker may want to download tech not just make it him/herself. Should also group people overcoming rights protections, who have the right to do so by statute—how can they do that if they can’t make or even copy from the internet? You end with saying, if the statute allows you to bypass (as it does via exemption and for everyone who is bypassing a rights protection), that must imply you have the tools to do so—that has to be in the very beginning.

Matwyshyn: look at DeCSS t-shirts—are they prohibited? There is a commercial purpose in transferring the code on the t-shirts, but not the same type of intended conduct.

My suggestion: also rely on the statutory exclusions as well as the exemptions to show that not all uses are bad. (Check DMCA hearings—it is an open secret that the exemptions rely on the wide availability of circumvention technology; it’s basically a joke.)

Q: are these other words in the statute instances of trafficking? Providing and offering to the public are instances of trafficking, even without commercial elements.

Abruzzi: what about telling people who are entitled to use the exemption about how they might circumvent? That is communicative; how can we distinguish software code from that kind of activity?

A: that’s actually in one of the cases (RT: as I recall, this was taken up in cases about exporting code).

Bruce E. Boyden, Distinguishing Red Flags from Fuchsia Flags: The Tort Law Roots of Section 512

512(c)(1)(A) requires ISP not to have actual knowledge of infringement, not to be aware of facts or circumstnaces from which infringing activity is apparent, and, upon obtaining such notice or awareness, must act expeditiously to remove or disable access to the material. (Also needs not to receive financial benefit directly attributable to the activity when it has the right and ability to control it, and to have a notice and takedown procedure.)

Wants to steer a path between extreme interpretations on both sides. Statutory parts of interest basically parallel test for contributory liability, as in the canonical statement from Gershwin that one who with knowledge of infringement induces, causes, or materially contributes to the infringement can be held liable. Causes/materially contributes is duplicated in the requirement of “material that resides on a system or network controlled or operated by or for the service provider.”

Tort law guidance from the Restatement of Torts: “acting in concert” with a tortfeasor means that you know the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself. Concept of tortiously allowing someone else to use your land/chattels—if you allow this knowing that they’ll be used to commit a tort, you’re contributorily liable—lines up well with Gershwin.

Knowledge: should be understood as credible evidence of genuine existence; constructive knowledge is included to address the situation where the actor has all the info a reasonable person would need but unreasonably fails to form the natural conclusion—the ordinary reasoning process has gone awry.

“Reason to know”: a term of art in tort law: the person has no duty to go out and figure out whether the facts in question exist; different from “should know.”

Looking at Restatement 877c, which gives the elements for liability for permitting conduct—comments say that this liability is subject to general rules of negligence and proximate cause—you weigh the costs of imposing liability versus the benefits of making people take precautions.

In a typical tort case where there’s a single, high probability event, the obvious choice is not to do the dangerous/permitting thing; not much spillover and not much reason to inquire whether the burdens of taking precautions outweigh the benefits of same. Not so with mass activity—multiple people, each with low probability of doing something that harms the plaintiff; secondary actor could predict that one of them would do harm but not which one.

Courts are thus trying to grapple with the knowledge requirement. General knowledge is not enough; must be specific. He concludes that this is too blunt of an instrument for weighing the costs on either side for a certain precaution or different behavior. In typical “general knowledge” case, the costs of not supplying the entire population with the service is very high, as are the costs of searching the pool to find infringement. But it’s not necessarily always high-cost. We should read balancing costs back up into contributory liability and thence into 512(c)—if you have certain knowledge that one of the people will engage in harmful conduct, and there is an easy fix, then you should be obligated to do it. So maybe if you have a filter working already, you have to add plaintiff’s works to it, and if it’s easy to block further uploads of the same material, then you have to do so.

Heymann: knowledge of what? Even if it’s a complete and exact duplicate, might be fair use, or authorized (see: Viacom!). So when we think about 512, we need to consider that as well—not just the evidence, but what the evidence tells you. We’re not talking about knowledge so much as prediction: what are the odds of what a court would say about this material; this is not quite the same.

A: should drill down on technical details. When a reasonable person would conclude that there’s infringement. He knows that’s mushy. (And, now knowing what we know about underground promotions by Viacom etc., what does a reasonable person conclude about content with no apparent ties to the producer?)

Gordon: reading the statute raw, one way to interpret these sections is a general statement instantiated by takedown. If you have info you should act; now we tell you when you have info, which is essentially: when you have a takedown notice. Rather than as seeing this as setting out a large ground for potential liability.

A: 512(c)(1)(C) addresses liability for failing to comply with takedown; if that was intended, why would you even need the other stuff? (For the same reason that there’s a provision explaining that you can’t dodge if you have constructive knowledge, I would say.)

Gordon: copyright statute in particular is not without surplusage; tells you one way and then tells you again. This is a structure for setting up notice and takedown.

A: but (A) is about contributory liability and (B) vicarious (me: but then 512 does nothing that the common law didn’t, right?). He thinks Congress was attempting to alter the contours of vicarious liability—there’s some suggestion about direct financial benefit in the legislative history. (But to me, that has implications for the methodology of borrowing from tort law generally.) He thinks that that doesn’t affect the idea of passing through tort theory, including the limits on liability imposed by negligence/causation principles. Doesn’t like the idea that the only way to get content down is through notice and takedown. (Gordon adds: or in the extraordinary case!)