WIPIP session 5: Anti-Circumvention

Charles Duan, Property v. Property

1201 met connected devices—computers are everywhere. Allowed producers to control coffee machines by putting software in them; can prevent use, resale, using unsupported coffee. Harms: speech, consumer protection (false advertising/disappointed expectations), competition/antitrust, innovation/fair use, interoperability, accessibility, security and privacy, environmental harms of unrepairable devices.

Project: frame these as interferences with tangible property rights (don’t even have to get into digital property claims). Interference with alienability/resale—Molly Van Houweling’s work on interference w/numerus clausus, creation of servitudes. Right to exclude: to prevent others from entering onto our property—1201 interferes w/that, as w/the Sony rootkit (or the Polish trains). Usufructuary rights—use and benefit from property; interference w/right to repair and w/right to use it with other stuff by preventing interoperability. Right of possession: They can break devices remotely. Amazon went into users’ Kindles and removed copies of Orwell’s 1984.

Why: Useful way of organizing concerns and showing how they interfere with specific property rights.

Takings?

Property v. property: TM v. domain names; land v. chattels; IP v. consumer goods.

Cathy Gellis: conflicts b/t two types of property validates propertizing IP, which she doesn’t want to do.

A: there are disagreements.

Gellis: don’t concede too much.

Eric Johnson: right to possess seems difficult—removing 1984 from Kindle seems like interference w/right to exclude. Not necessary to argument.

[RT: Takings might be better reframed as trespass; Eric Goldman will hate this, but some courts are willing to say that having these unwanted bits constitutes a trespass.  1201 is not a property right; it allows these intrusions in defense of a putative property right—self-help? That is, the state has both legalized a certain kind of self-help that would otherwise be illegal and criminalized self-help on the physical property owner side that would otherwise be legal. Maybe that’s a way to frame the takings issue?]

A: takings: Sony rootkit is installed, and you’re not allowed to remove it because of the power of the state; similar to Loretto v. Cablevision. [voluntariness seems like a problem here]

Doing this without privity means that even if it could all be done w/contract, 1201 goes beyond what contract could have done.

Q: virtual goods—contracts completely control and avoid the property questions, so you don’t even need 1201

[I think the Blizzard litigation suggests that 1201 does provide an advantage, at least in remedies]

Boyden: It’s not an accident that we have different intuitions about streaming DVD than controlling your coffee maker—these are legally dubious interpretations of 1201 in the first place.

A: Chamberlain highlights that these are abuses, but you have conflicting precedent w/Blizzard and the Copyright Office saying no, 1201 is absolutely supposed to cover these situations. Highlights that Chamberlain and other cases are about personal property versus 1201’s use of copyright.

Pam Samuelson: don’t forget 1202. You’re forbidden to remove/alter information at pain of $2500/violation. Include some discussion about remedies, b/c 1201 and 1202 violations don’t depend on registration and no one focused on the remedies.

Cathy Gellis, Jawboning in Plain Sight: The Unconstitutional Censorship Tolerated by the DMCA

Prior restraint problem: mere accusation of infringing content online can cause censorship even before any adjudication. The sanction is applied to the expression itself, and in the wake of BMG v. Cox, the sanction is applied to the speaker, even in advance of a finding of wrongfulness.

Safe harbors are important. Prior restraint creates constitutional problems. “Jawboning”: a way for gov’t to do end run about 1A by masking attempts to affect speech with otherwise seemingly legitimate policy actions. Threats to split up FB unless it moderates content in a certain way: tries to intimidate FB, a classic example of jawboning.

Apply this to 512: notice and takedown incorporates prior restraint; mandatory termination provision; subpoena mechanism. 512(f) is an insufficient constraint. Cox case is alarming b/c takedown notices were often so bogus that © claims got dismissed, but they’re still held liable for ignoring bogus notices. It matters b/c it’s censorship. Jawboning is often directed at specific content, more than DMCA, but still procedurally prior restraint, and still makes all speech vulnerable in a way that undermines free expression. Metastasizing of takedown concept to other areas of disfavored speech.

Eric Goldman: Jawboning might not be right analogy—think about gov’t instructions to private speakers, but DMCA notices come from private individuals. The mechanisms are analogous but the terminology might not be helpful. Question: if there was strict liability for publishing infringing speech from a third party, then would a safe harbor be a harm to speech? If it’s fair to have strict liability, why isn’t it fair to have notice and takedown safe harbor? Or is the argument that it’s an unconstitutional condition?

RT: Compare reasoning in Disney case: if you actually retaliate for Disney’s speech, there’s no claim. Jawboning as a concept may be too nakedly political to apply in any coherent way. Bigger specific problem: Shelley v. Kraemer & NYT v. Sullivan—previously, we saw courts unwilling to apply Shelley beyond restrictive racial covenants; also unwilling to apply Sullivan beyond defamation. Is there anything but Sullivan that makes private causes of action into state action? Courts don’t think they’re violating the 1A—Schedule A defendant cases, same set of problems.

Gibson: doesn’t think Cox as a DMCA case at all—those weren’t really DMCA notices because conduits don’t have takedown obligations; they were faux DMCA notices sent w/o any of the few safeguards that exist under the DMCA. They’re making failure to monitor repeat infringers into its own independent basis of liability—so it’s not really a DMCA case, but a conflation of common law and DMCA theories of liability.

Linford: are you arguing in favor of a right to trespass on someone else’s property to speak? Courts won’t want to hear that. Does a strong form of your proposal prevent YT from agreeing to have Content ID, given that the backdrop is the DMCA [and also a huge amount of pressure from lawmakers to expand Content ID, by threatening to amend 512].

Tyler Ochoa: Zacchini is an example of applying Sullivan principles to the ROP.

Bruce Boyden: Privacy cases about the privacy torts also do so.

Blake Reid: © Infringement and Noninfringement Doctrines are Lousy General Purpose Governance Regimes for Solving Every Single Social Problem Involving Creative Works and Uses Thereof

Why does © show up at so many socially important issues and take pride of place? Accessibility, cybersecurity, physical property—making a hash of other areas. AI: © has taken a dominant role despite a wide range of policy concerns. Adjudicating noninfringement is procedurally unfair, and often results in wrong decisions for copyright values, but the bigger problem is that © is fundamentally unsuited to these tasks.

Governance seam between fixation and use: at point of fixation a work is of no particular value to anyone but author; for a work to flourish it needs to be experienced by others, which requires copying, distribution, display, performance, etc. That friction creates a governance seam suited to ©: regulatory benefit on creator/assignee and regulation of downstream uses/users.

Copyright summons its values, institutions and objects to the imagined regulatory scene. Mostly utilitarian in the US. Institutions: courts, Copyright Office, Congress. Centers objects: the work, the infringing/circumventing activity, the rights holder, the infringer.

Even before an action is instituted, © makes a powerful set of preliminary judgments: rightsholder is the hero of the story/presumptive beneficiary of scheme. The work’s existence benefits the public. The downstream user is presumptively an infringer. Secondary assessments might lead to noninfringement, but noncopyright values haven’t entered the story at all. Doctrines of noninfringement are likewise going to give primacy to © values, and so the threshold noninfringement defense is to appeal to © values like the expressiveness of the accusing work. Must invoke limitation or exception on copyright’s terms, only in the context of ©’s chosen institutions. In fair use, 3 of 4 factors center on the copyrighted work, while the first attends to the use, but not to the policy implications of the use or the moral/political status of the user. Instead, vibe check on legitimacy of use. To the extent it considers noncopyright values, funneled through vague concept of transformativeness.

Specific limitations and exceptions are no better, and hard fought over years through (captured) regimes like WIPO or Copyright Office triennial review. At most user can get use declared outside of copyright’s scope, which can be enough if all the user wants is use w/o © liability.

But other regimes might want more outcomes than that—they might seek to afford benefits to creators beyond mere ability to structure transactions. They might have a distinct value system w/radically different regulatory goals.

Inaccessible works: © asks is it ok for a third party to make the work accessible? Reluctantly said yes, but accessibility law sees inaccessibility and the persistence of inaccessible versions as a harm and a barrier to full participation. Might want to compel creators to create accessible works in the first instance, rendering remediation irrelevant.

Generative AI: a wide range of other laws are relevant—transparency, labor law, antidiscrimination, privacy and data protection. Largely absent from © noninfringement determination. ©’s occupation of the governance scheme reinforces ©’s values even when there’s a noninfringement finding that use/user are in ©’s periphery. Frames wrong questions, diverts resources, yields results hostile to core values of other regimes.

One set of fixes: non© bodies of law shouldn’t concede the governance seam—creation and copying of works that are likely to give rise to other policies. Need stable legal/policy foundations in advocacy groups—disability law; budding law of repair. Those policy agendas are necessary for researchers, remixers, librarians, fan authors.

BJ Ard: Why is it occupying this seam? Access to knowledge mobilization as a response.

A: lots of reasons, including constitutional foundation/mythology. We have a lot of interests that haven’t developed stable law & policy communities or their own political forces to rely on. © gets away with a lot b/c there’s no one there to push back from outside of copyright’s institutions.

RT: Are privacy, defamation also at the seam even though they are not applicable to many works? Accessibility: always applicable. Repair: ??? A distinct set of works. Librarians/archivists/educators as representing a broad social sector?

A: not arguing that © should never be at the seam, or noninfringement never part of the discussion. Fanworks is a good example where fair use is important. But even there, thinks about rights of access. Communities who show up at the triennial review care about access to the work, even more than use in many cases. A right of access might solve more problems than a right of circumvention.

Yes, privacy, defamation, and property are at the governance seam. More than one body of law there at the seam. What happens when multiple bodies of law are there? Unfamiliar territory that needs mapping. Maybe order of operations is the issue: © should fight it out with defamation, property, privacy and see what happens.

Van Houweling: Politics of this—© is something we have, and Congress is something that doesn’t work. Where can one intervene? An FCC-enforced right of access is not going to happen. What about state law?

A: even in tumultuous legislative times, we’ve had accessibility laws and policies pass, even in Congress. Repair gives him some heart. Right of repair started at Copyright Office but people realized that wasn’t enough so legislation bloomed at the state level; White House and FTC got interested.

Zahr Said: where there isn’t an express conflict, maybe you cede ground too quickly. Think about revenge porn—Bambauer v. Tushnet debate, what is the purpose of © policy? We might not know. Work on disability might allow you to embrace disability rights as part of the purpose of ©! Conceptualize it differently as not being outside. Reminds her of “law &” debates: is economics outside law or better conceived of as within it?

A: happy to go where doors are open, but as someone working on triennial review for a long time, the internal approach looks appealing and has low barriers to entry, but over the long term it doesn’t deliver what you want in full.