SAN FRANCISCO, May 13, 2010 — A 12-year-record of abuses and misuses of a law designed to prevent digital piracy shows definitively that it isn’t working as intended, said a digital rights group in a new report released Thursday.
“In the years since the DMCA’s passage, section 1201’s harmful effects on copyright’s core goal to “promot[e] Progress” have become unfortunately clear,” write Pan C. Lee, Daniel S. Park, Allen W. Wang and Jennifer M. Urban, a group of legal researchers at Berkeley Law School. “It is in need of an update to restore the balance.”
“I think we’ve seen more and more examples of the [Digital Millennium Copyright Act] being used more broadly than was probably intended,” said Sherwin Siy, Public Knowledge’s deputy legal director. “I think it happens a little too often, a little too easily.”
The Washington, D.C. public interest group wants lawmakers to recalibrate a controversial section of the digital copyright law back to a legal standard established by a landmark 1984 Supreme Court ruling. The Sony v. Universal ruling established that manufacturers of devices that are capable of substantial non-infringing uses could not be held liable for copyright infringement.
Lawmakers should update the DMCA to allow for non-infringing uses of copyrighted content, recommend the report’s authors. Currently, it doesn’t distinguish between legal and illegal purposes of circumvention.
These changes wouldn’t undermine the law’s goal of preventing digital piracy because people who break the locks, and who make tools to break the locks with the intent to pirate content would still be liable, they argue. A decision finding file-sharing company LimeWire liable for massive levels of copyright infringement because of its past marketing tactics and its knowledge of the activities of its users buttresses this argument, notes Public Knowledge’s Siy.
Lawyers for the entertainment industry trade-groups have argued that the DMCA is working as intended, but public interest groups such Public Knowledge and the Electronic Frontier Foundation, as well as many academics, say that it skews the balance of the law too much in favor of rights-holders. That comes at the expense of other innovators, researchers, educational institutions and consumers who want to manipulate or manage their media for personal uses.
The DMCA criminalizes the act of picking the locks on digital content, as well as the distribution of tools to break those locks. Violators face a jail term of up to five years or fines up to $500,00.
One of the most dramatic incidences involving the law concerned a Russian programmer who the FBI arrested in Las Vegas in 2001. He was charged with distributing a software program that could unlock the copy-protection scheme on electronic books.
People can petition the copyright office for exemptions when it holds its triennial review, but the Berkeley Law School authors of the Public Knowledge report say that this process doesn’t go far enough to right the imbalance.
Since the law’s enactment, the Copyright Office has granted a few exemptions. College professors are allowed to access and clip DVD content for classroom use. Blind people can break through the locks so that they can hear books read aloud. Security researchers now won’t be hunted down by the FBI for breaking through the locks on CDs for research purposes. Nevertheless, both Public Knowledge, the EFF and others argue that the law still goes too far.
The EFF has compiled a list of incidences that highlight the law’s shortcomings. In 2009 for example, Apple used the DMCA to try to shut down a discussion on BluWiki about reverse-engineering the iPOD to allow software other than iTunes to play music. And some security researchers are still hamstrung by the law. In 2009, for example, Alex Halderman, a University of Michigan professor, had to petition the Copyright Office for an exemption for his research about the security system for the popular Electronic Arts game Spore.
The examples are just two of dozens of incidences over the years of companies using the law in contexts other than piracy. Some companies have unsuccessfully tried to use it to block competitors from making compatible products.
“It gets fought out in court, and eventually the right side prevails, but in the meantime, they get injunctions against the use of their devices, and that can cause massive amounts of harm,” says Siy.
Public Knowledge Celebrates 20 Years of Helping Congress Get a Clue on Digital Rights
February 27, 2021 – The non-profit advocacy group Public Knowledge celebrated its twentieth anniversary year in a Monday event revolving around the issues that the group has made its hallmark: Copyright, open standards and other digital rights issues.
Group Founder Gigi Sohn, now a Benton Institute for Broadband and Society senior fellow and public advocate, said that through her professional relationship with Laurie Racine, now president of Racine Strategy, that she became “appointed and anointed” to help start the interest group.
Together with David Bollier, who also had worked on public interest projects in broadcast media with Sohn, and is now director of Reinventing the Commons program at the Schumacher Center for a New Economics, the two cofounded a small and scrappy Public Knowledge that has become a non-profit powerhouse.
The secret sauce? Timing, which couldn’t have been better, said Sohn. Being given free office space at DuPont Circle at the New America Foundation by Steve Clemmons and the late Ted Halstead, then head of the foundation, was instrumental in Public Knowledge’s launch.
The cofounders met with major challenges, Sohn and others said. The nationwide tragedy of September 11, 2001, occurred weeks after its official founding. The group continued their advocacy of what was then more commonly known as “open source,” a related grandparent to the new “net neutrality” of today, she said.
In the aftermath of September 11, a bill by the late Sen. Ernest “Fritz” Hollings, D-S.C., demonstrated a bid by large copyright interest to force technology companies to effectively be the copyright police. Additional copyright maximalist measures we launched almost every month, she said.
Public Knowledge grew into something larger than was probably imagined by the three co-founders. Still, they shared setbacks and losses that accompanied their successes and wins.
“We would form alliances with anybody, which meant that sometimes we sided with internet service providers [on issues like copyright] and sometimes we were against them [on issues like telecom],” said Sohn. An ingredient in the interest group’s success was its desire to work with everyone.
Congress didn’t have a clue on digital rights
What drove the trio together was a shared view that “Congress had no vision for the future of the internet,” explained Sohn.
Much of our early work was spend explaining how digitation works to Congress, she said. The 2000s were a time of great activity and massive growth in the digital industry and lawmakers at the Hill were not acquainted well with screens, computers, and the internet. They took on the role of explaining to members of Congress what the interests of their constituents were when it came to digitization.
Public Knowledge helped popularize digital issues and by “walking [digital information] across the street to [Capitol Hill] at the time created an operational reality with digitization,” said Bollier.
Racine remarked about the influence Linux software maker Red Hat had during its 2002 initial public offering. She said the founders of Red Hat pushed open source beyond a business model and into a philosophy in ways that hadn’t been done before.
During the early days of Public Knowledge, all sorts of legacy tech was being rolled out. Apple’s iTunes, Windows XP, and the first Xbox launched. Nokia and Sony were the leaders in cellphones at the time, augmenting the rise of technology in the coming digital age.
Racine said consumers needed someone in Washington who could represent their interests amid the new software and hardware and embrace the idea of open source technologies for the future.
Also speaking at the event was Public Knowledge CEO Chris Lewis, who said Public Knowledge was at the forefront of new technology issues as it was already holding 3D printing symposiums before Congress, something totally unfamiliar at the time.
In Google v. Oracle, Supreme Court Hears Landmark Fair Use Case on Software Copyright
October 12, 2020 – The Supreme Court on Wednesday publicly struggled with the copyrightability of software in a uniquely contested case between Google and Oracle, the outcome of which could play a significant role in the future of software development in the United States.
The oral arguments were the culmination of a battle that started 10 years ago, when tech company Oracle accused Google of illegally copying its code. Oracle owns the copyright to the Java application programming interface that Google utilized to establish a new mobile operating system.
The company has sued Google for more than $9 billion in damages.
Yet Google claimed a “fair use” defense to its copying. Google copied less than 1 percent of the Java code. Even though the law generally treats computer programs as copyrightable, Google’s attorney before the Supreme Court, Thomas Goldstein, said that by adapting Oracle’s code to serve a different purpose, Google’s use was “transformational,” and entitled to fair use protections.
Goldstein said that this form of unlicensed copying is completely standard in software, and saves developers time and lowers barriers to innovation.
He referenced a famous Supreme Court precedent about public domain works, Baker v. Selden, which in 1880 declared that once information is published to the public, the public has a right to use it.
“Google had the right to do this,” said Goldstein.
Still, Oracle attorney Joshua Rosenkranz asserted that the Java code is an expressive work eligible for copyright protections. Rosenkranz further argued that Google’s use of the code was not transformational.
Justice Sonia Sotomayor appeared to suggest that jurors in the lower court case properly found Google’s use to be transformational because it took the APIs from a desktop environment to smartphones.
“Interfaces have been reused for decades,” said Goldstein. Google had to reuse Oracle’s code to respond to interoperability demands.
“It has always been the understanding that this purely functional, non-creative code that is essentially the glue that keeps computer programs together could be reused, and it would upend that world to rule the other way,” he said.
Supreme Court observers said that the high court appeared leaning toward upholding the 2016 jury verdict vindicating Google’s fair use defense.
Fair Use is Essential But its Enforcement is Broken, Says Senate Intellectual Property Subcommittee
July 28, 2020 — “Fair use” is an essential doctrine of copyright law that is unevenly applied, said participants in a Senate Intellectual Property Subcommittee hearing Tuesday.
The hearing, “How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use,” saw participants discuss whether the Digital Millennium Copyright Act still permits fair uses of copyrighted content that would be otherwise infringing.
The DMCA, passed in 1998, criminalizes the manufacture, sale or other distribution of technologies designed to decrypt encoded copyrighted material. This ban on anti-circumvention tools does not appear to account for fair use.
The fair use exception to copyright law allows the republication or redistribution of copyrighted works for commentary, criticism or educational purposes without having to obtain permission from the copyright holder.
However, Joseph Gratz, partner at Durie Tangri, said that fair use often clearly applies but is not enforced, leaving users of the legally obtained content to deal with automated content censors.
“Fair use depends on context, and machines can’t consider context,” he said. “A video, for example, that incidentally captures a song playing in the background at a political rally or a protest is clearly fair use but may be detected by an automated filter.”
When an automated filter detects a song on a platform like YouTube, it redirects advertising revenue from the creator of the video to the creator of the song, often erroneously.
Rick Beato, who owns a music education YouTube channel with over one-and-a-half million subscribers, said that he does not receive ad revenue from hundreds of his videos.
“One of my recent videos called ‘The Mixolydian Mode’ was manually claimed by Sony ATV because I played ten seconds of a Beatles song on my acoustic guitar to demonstrate how the melody is derived from the scale,” he said. “This is an obvious example of fair use, I would argue.”
Grammy-winning recording artist Yolanda Adams testified that she sees the problems of fair use employment as about more than simply receiving money.
“As a gospel artist, I’m not just an entertainer,” she said. “I see my mission as using my gift to spread the gospel — so for me, fair use is not just about money. It’s about access.”
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