ISPs, DMCA “Safe Harbors,” and Volition

LawGeek: Fourth Circuit Affirms that Passive Hosting/Viewing of Web Content without Knowledge is not Copyright Infringement

The Fourth Circuit Court of Appeals has affirmed in the Costar v. Loopnet case that ISPs and other providers are not liable for direct infringement when their servers passively copy works that have been uploaded, downloaded, or hosted by users if they didn’t have knowledge that the works were infringing. Their rationale: copyright infringement requires as active “volitional” act; setting up automatic servers to upload/download/host content is purely passive and does not include any active participation by the hosting company.

Scrivener’s Error suggests that the case was mis-specified at the outset: 21 June 2004

The problem with this case is that it actually answers almost nothing. CoStar pressed a theory of direct infringement, which did not persuade the court.

Because LoopNet, as an Internet service provider, is simply the owner and manager of a system used by others who are violating CoStar’s copyrights and is not an actual duplicator itself, it is not directly liable for copyright infringement.

Slip op. at 3 (emphasis in original). This is not a terribly surprising result. CoStar should have been pressing contributory and vicarious liability. At least, in the abstract it should have been. […]

[…] What this means in the long run is that the rhetoric in the Fourth Circuit’s opinion will be quoted out of context in cases turning on contributory or vicarious infringement, or in attempts to intimidate persons making what are essentially contributory or vicarious infringement claims. […] The parties appear to have obstinately refused to address any theory of liability other than direct; the court obliged their apparent myopia with an opinion that only Mr Magoo could love.

Reuters Saved The Best For Last

This article on the reprise of the mini-CD was a yawner for me, so I failed to get to the last two paragraphs — mistake! Digital Media Wire led me to reread Music Labels Aim to Pocket a Comeback with New CD a little more carefully:

For Universal, the move comes amid plans to phase out the sale of copy-protected compact discs in Germany, a market battered by online piracy and CD-burning.

A Universal spokesman said the decision was made to address ongoing concerns that copy-protected CDs do not play in some hi-fi devices. The company could return to some form of copy-protected discs after further fine-tuning of the technology, he added.

Or not.

Our Own Reality TV Show

In Who is Bullying Who?, Ernest Miller tracks more of the online discussion of Cory Doctorow‘s DRM talk last week.

Ernest tries to deconstruct which side of the DRM debate Microsoft currently lies, concluding that Microsoft’s interests lie with the copyright cabal, rather than their customers. Both Ernest and Cory argue that Microsoft’s customers (i.e., you and I) don’t want DRM, and that Microsoft should side with us.

However, Cory and Ernest have a mistaken, but perfectly natural, assumption at the root of their argument — you and I really aren’t Microsoft’s customers. In many respects, Microsoft doesn’t really want us as customers (that’s why you are typically sent to your computer vendor when you have a problem). There are too many of us, in too many forms, making too many demands.

After all, who really buys Windows from Microsoft? You and I might register a copy, but Dell, Gateway, IBM and Sony actually bought it. Microsoft’s real consumers are the hardware OEMs (Dell, Sony, etc.) and their suppliers (Intel, IBM, Seagate,etc.) — not you and I. And those customers believe that they will have to be able to deliver DRM in order to continue to be able to sell their products – because no one wants to incur the expense and risk of the litigation that will ensue in its absence. The stakes are too high, and the competitive marketplace really ensures that no one is going to stick his/her neck out — not to mention the free rider problem.

That’s the invisible link in this conflict — Microsoft sells to computer hardware OEMs and is trying to expand into consumer electronics OEMs. Those are the customers who are being "bullied" into DRM. They’ve looked at the legislative landscape, present and pending, and all they see are more and more guns being pointed right at their bottom lines. DRM is the straw they’re clinging to in the face of the RIAA/MPAA/Congressional onslaught.

The trick to stopping DRM is going to be finding a way to get the interests of Microsoft and the other software/OS vendors and the hardware OEMs and the consumers aligned. Right now, we’re all suspiciously eyeing each other, playing a game that’s been rigged to put us at each other’s throats, and missing/failing to focus on the real threat out there in the dark — the standard formula for every reality TV show there is.

Until we assemble the political coalition necessary to get the rulemakers to listen to us, instead of the RIAA/MPAA, we aren’t going to get anywhere. Constructs ranging from contributory liability through the DMCA’s anti-circumvention provisions and culminating in Hatch’s INDUCE Act are all set up to ensure that the OEMs and the consumers are on opposite sides — copyright has become the “wedge issue” of choice, and it’s worked really well so far. We need a little more copyright ju-jitsu like the GPL and Creative Commons to turn it around.

It really is us against them — and, like every other reality show, the first problem is making sure we know who “them” really is.

(Pursuant to the above, see I’d have to disagree with Cory Doctrow’s position on DRM — and think about the cognitive dissonance reflected in the last part of My Legal Music Library)

Ernest’s response and extension: Metaphors Gone Wild: On Pies, Ships, Regressive Taxes, DRM and Microsoft. I’m late as it is, and I’m going to have to mull this a bit, too — so see you tomorrow!

The Mind of Jack Valenti

It seems that just about every news organ is giving Jack Valenti one last curtain call before he steps from the MPAA stage. The CNet interview, Jack Valenti’s curtain call, in addition to giving Mr. Valenti one more chance to rewrite history and redefine piracy, gives us a look at the mindset of the copyright cabal today — if I could have gotten paid for something, then I should have been paid; and if I wasn’t paid, then I was robbed.

Over the years there have also been significant shifts in what might be piracy or what may not be piracy tools, the VCR maybe being the first one. The quote of yours that people always bring up is the Boston Strangler quote (Valenti testified to Congress in 1982 that the VCR was to the American people “as the Boston strangler is to the woman home alone”).

Well, but keep in mind they don’t quote what else I said. I said there would be massive piracy as a result of the VCR. And guess what, there was. We lose 3 and a half billion dollars a year. The VCR is also a great enhancement of the movies. I was never opposed to the VCR, mainly. Among other things, one of our own companies was in partnership with a Japanese company to make these things. So there’s no way I’m going to be against the VCR.

What I had to do was to get the courts to say that it infringed copyright. Then what I wanted to do was what they do in Europe right now, which is to have a modest copyright royalty fee placed on every blank videocassette, so when you bought a videocassette, there would be a small fee that would go back to the creators of the film, to the owners of the film, to partially compensate them for the pirating of their films. And I predicted mass piracy, and we have it. VCR analog today and disc piracy is over 3.5 billion dollars a year in lost revenue.

How’s that for “balance?”


I try to collect Adam Hall’s "Quiller" books — a certain kind of spy thriller that just really clicks for me. In one, Quiller (Northlight in British editions), the title-named British spy is trapped in a northern Russian town, trying to find a missing asset while carrying identity papers/travel permit (propusk, according to Hall) that are known to be compromised — and dreading an identity check.

Now, in a bit of life imitating art, our Supreme Court seems to be laying the groundwork for us to have to supply identity documents at the whim of law enforcement: Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty. (FindLaw’s HTML version) was decided in a 5-4 vote

Petitioner Hiibel was arrested and convicted in a Nevada court for refusing to identify himself to a police officer during an investigative stop involving a reported assault. Nevada’s “stop and identify” statute requires a person detained by an officer under suspicious circumstances to identify himself. The state intermediate appellate court affirmed, rejecting Hiibel’s argument that the state law’s application to his case violated the Fourth and Fifth Amendments. The Nevada Supreme Court affirmed.

Held: Petitioner’s conviction does not violate his Fourth Amendment rights or the Fifth Amendment’s prohibition on self-incrimination.

[…] KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O CONNOR, SCALIA, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which SOUTER and GINSBURG, JJ., joined.

Time to re-up my ACLU membership, even though it doesn’t seem to have mattered in this case.

The Salon news blurb includes this postscript:

Justices were told that 20 states have similar laws to the Nevada statute upheld by the high court: Alabama, Arkansas, California, Delaware, Florida, Georgia, Illinois, Kansas, Louisiana, Massachusetts, Montana, Nebraska, New Hampshire, New Mexico, New York, North Dakota, Rhode Island, Utah, Vermont, and Wisconsin.

Update: Slashdot — U.S. Supreme Court: Public Anonymity No Right

Later: To get a sense of what the opponents of this opinion are worried about, see this Boston Globe article: Logan troopers to get roving database access [pdf]

Officers in Troop F, the State Police unit at Logan, are getting wireless BlackBerry devices linked to LocatePlus’s database that includes 7 billion records containing information on 98 percent of the adults in the United States. That could include anything from unlisted phone numbers to names on a lease.

When a trooper stops a person acting suspiciously at the airport, he could enter that person’s name into the device, which would search for information about his or her identity, past associations, and activities.

[…] “A name, that’s all he needs,” said LocatePlus chief executive Jon Latorella. “He can find out who you lived with, where you lived, anything about you. We have every unlisted phone number in the country. Our stuff is instant, instead of having to wait until after the fact of a bombing.”

Other coverage: Christian Science Monitor, Court: If police ask, you must give your name; Wired News/AP: Court: Names Must Be Revealed

A FindLAw editorial: Can a State Make it a Crime to Refuse to Identify Yourself to the Police?: In a Narrow Ruling, the Supreme Court Says Yes

Kevin Murray’s SB 1506 Progresses

MI2N reports (Assembly Approves Internet Piracy Bill) that California SB 1506 was approved by the Assembly Arts and Entertainment Committee 12-0. The state senator’s SB 1506: Anti-Piracy position piece tells us how important the bill is:

The bill helps to prevent individuals from disseminating commercial works that are not their property and which they have no right to distribute, by creating a misdemeanor crime of a $2,500 fine and up to one year in jail. Minors who knowingly violate this crime would receive significantly lesser fines & penalties.

p2pnet’s writeup on the bill: SB 1506: Jail time for minors?; the recent committee action, California’s ‘True Names’ bill passes; related writeup: Terrorism and Copyright Piracy

Bill status

Irdial-Discs and Copyright

In this Monday, June 21, 2004 weblog posting, a story relating Wilco’s latest, Yankee Hotel Foxtrot, with the Conet Project (I received this press release vie e-mail this morning from Irdial-Discs)

Irdial-Discs, experimental independent music label from the UK, brought a High Court action against WEA International over their CD release “Yankee Hotel Foxtrot” by the group Wilco, which flagrantly infringes Irdial’s copyright.

“Yankee Hotel Foxtrot” bears a track entitled “Poor Places”, which contains one minute and thirty seconds of sound from “Phonetic Alphabet Nato” lifted directly from disc one of the quadruple CD “The Conet Project: Recordings of Shortwave Numbers Stations”. The Conet Project track features a female voice repeating over and over the phrase, “Yankee Hotel Foxtrot”, which Wilco took for the title of their critically acclaimed CD.

WEA International did not ask for permission to include this sound from our release in the CD “Yankee Hotel Foxtrot”, which has sold close to one million infringing copies.

The Conet Project is a historic collection of espionage “Numbers Stations”. These Numbers Stations are found on the shortwave radio bands, and are used by the CIA, MI5, MOSSAD and the rest of the world”s espionage agencies to communicate to their agents in the field.

Update: Joe Gratz wonders just how a court might have ruled if this had gone to trial. Ernest Miller’s Bravo Zulu

Later: BoingBoing continues the discussion – Who owns recordings of numbers stations?

Much later: Wired News’ coverage raises more questions: Wilco Pays Up for Spycasts

More Consolidation Coming?

EMI, Warner Music renew ‘pre-nup talks’

EMI is to make further overtures to Warner Music Group with the aim of rekindling their erstwhile engagement in the wake of the anticipated merger between Sony Music and Bertelsmann Music Group.

Unnamed sources cited by the Times claim the European Commission’s approval of the Sony-BMG deal has given EMI and Warner executives renewed hope that they too will be allowed to come together.