October 5, 2011
Copyright Developments In The News
There were three recent developments in copyright. The first is that the United States and seven other governments signed the Anti-Counterfeiting Trade Agreement (ACTA) last Saturday. Parties to the super-secret talks who have not signed yet include the European Union, Mexico, and Switzerland. The EU hadn’t signed as the Directorate for Finding Pens and Pencils With Which to Sign Things hadn’t issued its preliminary and final rulings on the correct writing instruments to use. Yes, that last part is a joke, but anyone who has had to regularly research European Union law will get it. Press reports indicate the EU intends to sign the agreement at some point. The announcement of the signing is available from Office of the United States Trade Representative web site. Related documents, including the text of the Agreement, are here.
ACTA represents a somewhat successful effort by the United States to export DMCA style controls such provision for digital locks on media and proscriptions on mechanisms to break those locks to other countries. Noticeably absent from the agreement are China, Russia, and India which together represent a large chunk of the world’s media consuming population. ACTA is negotiated as an Executive Agreement in the United States as it does not change existing law here.
We’ll see if ACTA does more than make media companies and governments feel good about themselves. In the history of such things the encryption codes for DVD and Blu-Ray digital locks were broken pretty easily. There’s a discussion about this on Wikipedia. Making the activity illegal will hardly stop it. Only one person need know how to hack. The rest need only know how to click a link. There are plenty of the latter out there, especially in countries not signatories to the agreement.
The second development is from non-action by the Supreme Court via an order it issued at the term which began last Monday. The Court declined to hear an appeal in the case of United States v. American Society of Composers, Authors, and Publishers (ASCAP), 627 F.3d 64 (2nd Cir. 2010). The Court of Appeals affirmed the District Court’s determination that downloading a media file was not subject to royalties as it did not constitute a public performance under the Copyright Act. Imagine, for example, someone, the distributor or a consumer, having to pay an additional fee on a straight download.
The Appellate Court made the distinction that no one sees or hears the file until after it appears on the consumer’s device or hard drive and then played. This is in contrast to a stream where the content is viewed or heard as the transmission takes place. There are probably those in the technical world who would argue that it is possible to access the content of files while they are downloading. The Court made its analysis on the language of the Copyright Act as it defines a public performance and concluded that a download generally does not meet the definition.
The third development is Monday’s dismissal of a suit brought by Ambrose Video Publishing against UCLA for copying DVDs and placing them on UCLA servers. UCLA then allowed content to be streamed to the UCLA community via password protected access. One of the allegations was that the setting was not educational as access was on-demand, including to UCLA community members overseas. The Court responded that the agreement between Ambrose and UCLA allowed a public performance and found that placing the material on the UCLA network was allowed under the agreement. It didn’t take much more for the Court to find that ripping the DVDs was allowed to place the files on the network. The other claim was that UCLA trafficked in the DVD content under the DMCA. The Court did not buy that one, at least as the Judge called the allegations conclusory and insufficient to establish a claim.
UCLA hails the ruling, though it may not celebrate so much. The District Court opinion is short on legal citations supporting its ruling. The Ninth Circuit may have something else to say. If Ambrose were smart, it would establish its own streaming servers and offer educational access through its own links. It would have better control over its content under those circumstances. The ruling, nonetheless, represents a victory for educational technology, assuming it stands. [MG]