Tech Law Prof Blog

Court Says Fair Use is a Factor in Sending DMCA Notices

The Fair Use doctrine will get a day in court thanks to a decision by United States District Judge Fogel.  Universal issued a DMCA take-down notice to YouTube over a 29 second video of a baby dancing to a barely audible recording of of Prince's Let's Go Crazy.  After a bit of back and forth, the video was restored, but the mother and videographer, Stephanie Lenz, sued Universal for sending the take-down notice in bad faith.  Universal tried to get the suit thrown out on several grounds, many of which are creative to say the least.

The judge framed the issue as whether copyright holders must take fair use into account when issuing notices.  Universal said no.  In the company's view, fair use is an "excused" infringement rather than an "authorized" use from the copyright owner or by law.  Note the (heavy handed) theme that legal use is characterized as an infringement.  The judge said otherwise pointing to the fair use language in section 107 of Title 17.  "Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright."

Universal argued further that by having to evaluate each potential infringement for fair use the company would lose the ability to respond quickly to all suspected infringements, or, in essence, it's too much work.  The Judge rejected these arguments noting that there is guidance in the statute as to what is fair use.  While some situations will be hard to analyze, the majority will not, such as the baby video.

That's not the end of the case, however.  While Lenz may have a moral victory in her case, the judge suspected that she would not be able to prove that the take-down notice was sent in bad faith.  Nonetheless, two important developments come from this opinion.  One is that a court has stated that copyright owners must take fair use into account when sending a take-down notice.  The second is that Lenz and the lawyers at the EFF (who is representing her) get access to all kinds of interesting documents relative to how Universal manages its rights under the DMCA. 

The opinion is at the EFF web site here. [MG]

China Says No to iTunes

iTunes is blocked in China because of a pro-Tibet compilation album for sale on the store.  So, instead of twisting Apple's arm to surgically remove the offending content (We must obey local laws in order to do business in China), the whole site becomes unavailable.  Oh well, do the Chinese really need to hear Fleetwood Mac's greatest hits?  More from the San Francisco Chronicle.  [MG]

FCC Issues its Comcast Order

The FCC issued its order prohibiting Comcast from interfering with specific network applications and requiring the company to disclose its network practices to its customers.  A good portion of the order (pages 6 through 23) defends the Commission's jurisdiction to proceed against Comcast.  Specifically, the Commission cites section 230(b) of the Communications Act of 1934 as amended, its Internet Policy Statement, and ancillary jurisdiction under six additional provisions of various telecommunications act.  The Commission also cites National Cable & Telecomms. Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005) as authority that the Supreme Court recognizes its jurisdiction.  And if that isn't enough, the order cites Comcast statements to a federal district court asking that it hold a suit on the very same issue in abeyance because the Commission had jurisdiction over the issue.  The staff that drafted the order certainly must have had the D.C. Circuit Court of Appeals in mind when setting character to screen.

From The Commission's Order (footnote references omitted):

51. For all of the foregoing reasons, it is our expert judgment that Comcast’s practices do not constitute reasonable network management, a judgment that is generally confirmed by experts in the field. Comcast’s practices contravene industry standards and have significantly impeded Internet users’ ability to use applications and access content of their choice. Moreover, the practices employed by Comcast are ill-tailored to the company’s professed goal of combating network congestion. In sum, the record evidence overwhelmingly demonstrates that Comcast’s conduct poses a substantial threat to both the open character and efficient operation of the Internet, and is not reasonable.

52. There is still one more factor we have yet to address: Comcast’s failure to disclose its network management practices to its customers. Although we have not adopted (and we decline to adopt today) general disclosure requirements for the network management practices of providers of broadband Internet access services, the anticompetitive harm perpetuated by discriminatory network management practices is clearly compounded by failing to disclose such practices to consumers. Many consumers experiencing difficulty using only certain applications will not place blame on the broadband Internet access service provider, where it belongs, but rather on the applications themselves, thus further disadvantaging those applications in the marketplace.  On the other hand, disclosure of network management practices to consumers in a manner that customers of ordinary intelligence would reasonably understand would enhance the “vibrant and competitive free market . . . for the Internet and interactive computer services” by allowing consumers to compare and contrast competing providers’ practices.

53. Comcast’s claim that it has always disclosed its network management practices to its customers is simply untrue. Although Comcast’s Terms of Use statement may have specified that its broadband Internet access service was subject to “speed and upstream and downstream rate limitations,” such vague terms are of no practical utility to the average customer. Of course there are “limitations” on the speed and bitrate of a customer’s Internet connection, but even the best-informed customer would not have inferred from these or Comcast’s other terms of service that peer-to-peer protocols were disfavored on Comcast’s networks. And although Comcast eventually disclosed some elements of its network management practices to customers, Comcast’s first reaction to allegations of discriminatory treatment was not honesty, but at best misdirection and obfuscation.  If Comcast actually believed its practices were reasonable, it should not have behaved in this manner. A hallmark of whether something is reasonable is whether a provider is willing to disclose to its customers what it is doing. To the extent that Comcast wishes to employ capacity limits in the future, it should disclose those to customers in clear terms.

The remedy:

Specifically, in order to allow the Commission to monitor Comcast’s compliance with its pledge, the company must within 30 days of the release of this Order: (1) disclose to the Commission the precise contours of the network management practices at issue here, including what equipment has been utilized, when it began to be employed, when and under what circumstances it has been used, how it has been configured, what protocols have been affected, and where it has been deployed; (2) submit a compliance plan to the Commission with interim benchmarks that describes how it intends to transition from discriminatory to nondiscriminatory network management practices by the end of the year; and (3) disclose to the Commission and the public the details of the network management practices that it intends to deploy following the termination of its current practices, including the thresholds that will trigger any limits on customers’ access to bandwidth.246 These disclosures will provide the Commission with the information necessary to ensure that Comcast lives up to the commitment it has made in this proceeding.

Comcast for its part still isn't sure how it's going to manage the network at this point.  Reports surfaced that it would slow down the heaviest users for up to 20 minutes during incidents of peak congestion.  That approach would not be aimed at specific applications or protocols.  What if that peak user was streaming a high definition video from a legal and commercial outlet?  That user experience would be, what's the word, degraded.  Between this and Congress getting angry over deep packet inspection for purposes of targeting advertising, how can the average ISP make any money?  Deep packet inspection is OK for rooting out terrorists and pirates, but apparently not OK to sell them products related to their web activities.  Another lost market opportunity  [MG]

Will Digital Television Make It To Cell Phones?

Now that the transition to digital television is getting close, there is one market in the United States that is getting shut down before it even gets a chance to fly, and that is free TV on a cell phone.  Sure, some carriers offer a number of television signals and shows via their handsets, but that comes with a fee.  Other countries take a different route when it comes to analog signals. South Korea and Japan, for example, have cellphones that receive free analog television on their screens.  China is keeping its analog signals around until 2015 just to keep that market going.  Instead of merging (only) music players with phones, they merged those cheap hand-held TVs that are popular with sports fans.  We never got that far here as carriers control what handsets are allowed on their networks, and something free should never be allowed to compete with something that has a fee.

That may change with the FCC's rules requiring carriers to accept open devices as a condition for using soon to be vacated broadcast spectrum.  The current crop of digital televisions are beautiful.  I'm always amazed at the clarity of,say, a WGN Cubs game broadcast in high definition on a large screen.  But why settle for this as only a living room experience?  While digital converters for analog televisions are large, they represent the infancy of this technology.  The standards group that handles digital signals is already working on a receiver standard for hand-held devices.  Broadcasters are thrilled to extend their ad presence, though carriers might not care to have something compete with their paid service.  It might not matter if someone developed a small, hand-held, digital television and that same company or another (Apple?) figured out that it would be a great feature to merge into a cell phone.

Yahoo News has more information on this issue.  [MG]