Related to this rulemaking, here’s a fascinating take from the Copyright Office and Library of Congress on how they analyzed the evidence in the record and resolved competing fair use and policy claims relating to the new DMCA circumvention exceptions: http://www.copyright.gov/1201/2010/RM-2008-8.pdf. (Side note: The notice will be entered into the federal register tomorrow, and I hope that it will be up on the new federalregister.gov site as well, in an easier-to-read format!)

The notice, which is really worth reading in full, addresses (or at least hints at) the following questions, among many others:

Why is it that only college students/professors, and not K-12 students/teachers, are permitted to circumvent CSS to access DVD content? Why is this exception targeted chiefly towards criticism and commentary, given that a variety of other activities such as news reporting, teaching, scholarship, and research have typically been understood to be within the domain of fair use? (page 3)

Why is it permissible under fair use to jailbreak an iPhone in order to add applications to it, and why are Apple’s and NTIA’s arguments against fair use unpersuasive? (pages 4-5)

Why is it permissible for both non-profit entities and (some) commercial users to use software or firmware to retrofit old phones to connect to wireless telecom networks, and why is NTIA wrong in its argument that this exception should be limited to non-profit entities? (pages 6-7)

Why is a DMCA exception necessary to support research into security vulnerabilities of PC games, but not digital books, music, and movies? (pages 7-8)

When does a person gain the right to use self-help to circumvent an “obsolete” dongle (based either in a printer or USB port) that controls access to software? (page 9)

What proposed exceptions did the Register of Copyrights and the Librarian of Congress both decide to reject, and why? (pages 9-13)

How has copyright law failed to protect the interests of blind and print-disabled people in the digital age? Why has the Librarian of Congress rejected the arguments of the Register of Copyrights that the American Federation for the Blind failed to clear all the procedural hurdles necessary to justify a DMCA exception for read-aloud and text-rendering software circumventions? (page 14)

Overall, quite an interesting read—perhaps all the more so because it comes from a set of sources that occupy an often-overlooked place in the interpretation of copyright law.

For more information, please see the following press release: http://www.law.yale.edu/news/12077.htm

MFIA, an initiative of the Yale Information Society Project and the Knight Law & Media Program at Yale Law School, was founded by Yale Law School students to defend the public’s right of access to government information and to support traditional and emerging forms of newsgathering.   Through MFIA, Yale Law students work under the supervision of veteran media attorneys who volunteer their time pro bono on cases where private actors lack the resources to prosecute the public’s access rights. More information about MFIA follows:

• About MFIA – http://www.law.yale.edu/intellectuallife/11200.htm
• MFIA Files Amicus Urging Protection of Anonymous Online Critic – http://www.law.yale.edu/intellectuallife/11453.htm
• MFIA Files Appellate Brief on behalf of Journalist Denied Access to Court Records – http://www.law.yale.edu/intellectuallife/11466.htm

Amazon 1-Click Patent: more likely to survive after today's ruling in Bilski?

The Supreme Court today issued its long-anticipated opinion in the Bilski patent case, regarding a rejected application for patent protection over a method for hedging against the risk of price changes in the energy market. Hot off the presses: http://www.supremecourt.gov/opinions/09pdf/08-964.pdf.

And at first glance, this complex mix of opinions seems rather inconclusive. Basically, Justice Kennedy’s majority opinion—which was joined by Alito, Thomas, and Roberts in full, and Scalia in part—affirmed that the specific business method at issue in Bilski was not patentable. But Kennedy rejected any categorical rule saying that business methods in general could not be patentable processes. This conclusion was reached through a somewhat confusing attempt to read out a plain-language definition of “process” based on the different uses of this term in the Patent Act, and then a rejection of the Bilski patent on the separate grounds that it was too abstract to be patentable.

In contrast, Justice Stevens’ much longer concurrence would create a categorical prohibition on business method patents: “Methods of doing business are not, in themselves, covered by the [Patent Act].” Stevens suggests that both the USPTO respondent and the Kennedy majority failed to develop a successful overarching definition of the word “process,” despite their attempts to reconcile the various appearances of the word in the Patent Act. Stevens argues that the Patent Act simply has too “many moving parts” to be amenable to the government’s attempt to define “process” solely by how it is used in one section of the Act. On the other hand, Stevens rejects the majority’s attempt to derive an expansive plain-text understanding of the word “process.” He argues that “posit[ing] that the word ‘process’ must be understood in light of its ‘ordinary, contemporary, common meaning’ . . . is a deeply flawed approach to a statute that relies on complex terms of art developed against a particular historical background.” As a result, Stevens spends much of the rest of his concurrence reviewing the history of patent law, which he concludes “yields a much more straightforward answer to this case.”

Finally, a short concurrence by Breyer and Scalia (Part II) seems, theoretically at least, to hedge towards Justice Stevens’ idea of creating categorical conceptions of “certain things [that] are free for all to use.” It looks as if Scalia was the likely swing vote in this case, but wasn’t fully satisfied with either Kennedy’s or Stevens’ opinion. This concurrence pushes more heavily on the “machine or transformation” test downplayed by the majority opinion, and emphasizes both “the restrictive effect of the limited patent monopoly” and the costs of patents on “the public’s access to the basic tools of scientific and technological work.”

It’s similarly notable that Kennedy (in the majority opinion) succinctly describes an essential tension in the innovation incentives that patent law tries to foster: “The Information Age . . . puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles.”

Still, for all the theoretical work being done in this set of opinions, it’s hard to state with clarity what rule ultimately emerges from these general principles and dicta, and what the continued relevance of the “machine or transformation” test might be. For instance, in the sentence after his description of patent law’s “great challenge,” Justice Kennedy notes that the Court in Bilski has not actually addressed this policy question: “Nothing in this opinion should be read to take a position on where that balance ought to be struck.” As a result, I’m initially tempted to agree with some others that this is an instance of the Court punting on a set of difficult questions in an area where the clear judicial articulation of a rule might have been helpful to innovators, lower courts, and the legislative process. In the absence of a categorical rule, we will instead continue to rely on case-by-case patentability determinations regarding the scope of property rights in business methods, software, diagnostic tools, and other applications which downstream innovators hope to build upon and transform.

In some ways, Justice Kennedy’s reluctance to determine whether “software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals” should receive patent protection mirrors Justice Souter’s admonition in Denver Area that “we should be shy about saying the final word today about what will be accepted as reasonable tomorrow.” But it’s harder to maintain this position of judicial minimalism in a situation where the continuance of the status quo can so limit the scope of what can be built and transformed today, and thus also limit the scope of what has a chance to become accepted as “reasonable” tomorrow.

I’d like to take that up as the topic of my post, through a look at the little-known legal life of the light bulb.

Thanks to Zetson for the CC-licensed image, via Flickr

More than a century after its introduction, the light bulb remains the defining icon of invention.

Justifiably so, in my opinion, because this widget almost single-handedly drove the demand for electrification. The light bulb was the killer app, if you will, for electric power. Which in turn enabled a whole new era of innovation.

But the story I want to tell is not one of great inventors and the inevitable march of progress. Hardly. It’s a story of legal battles, corporate strategy, social (in)justice, and lost technological opportunities.

Now as a girl, I was taught that Thomas Edison invented the light bulb. Full stop. That simple.

My fourth-grade class even took a field trip to Edison’s estate where, we were innocently led to believe, the Great Inventor single-handedly fathered the light bulb, the movie camera, and the phonograph (whatever that is).

Only very recently did I come to appreciate the much messier truth…

Edison’s team was merely one of dozens that co-invented electric light bulb. Scientifically speaking, his team’s discoveries were neither the first, nor the most important.

Image provided by the National Archives at www.ourdocuments.gov

What Edison did better than all the other inventors took place not in the laboratory, but in the office.

His lawyers pursued, obtained, asserted, and litigated key patents on light bulb technology in order to run competing bulb manufacturers out of business.

Edison then leveraged his monopoly on bulbs to corner the market in electricity service as well. And that was where he made the big bucks. Ever hear of GE?

Now the fourth-grade account suggests that we should thank Mr. Edison for bringing us this amazing technology. Without his long hours in the laboratory – he even slept there! – we would still be in the dark.

But when you look at the history more closely, Edison’s scientific contribution starts to look pretty dispensable.

Scientists had already published instructions for producing a glowing electric bulb in 1709. The technology was already commercially viable in 1876. A few years later, London’s Savoy Theatre switched from gas lighting to electric bulbs supplied by Joseph Swan.

It was at this point, in 1879, that Edison filed for his first patent on “an improvement in Electric Lamps and in the method of manufacturing the same.” The improvement Edison claimed was the use of a certain type of filament inside the bulb.

Now, a patent is just a claim to have invented something new and therefore, to own that technology as intellectual property. It’s not proof of inventorship. Moreover, patent filers often claim ownership of ideas much more broadly than the law and facts actually warrant.

For these reasons, competing companies often end up in court to determine exactly who owns what.

For example, Thomas Swan had light bulb patents of his own, the first predating Edison’s by 19 years. He had even been granted a patent in England claiming the same discovery Edison’s team claimed to have made. But he was unable to retain the legal upper hand.

Even though it was never legally established that Swan’s bulbs infringed on Edison’s patents, the shadow of IP law made it too risky for Swan to continue competing with Edison. The two companies merged.

In the process, competition in the light bulb market — and therefore the race to roll out improvements resulting in less-expensive, longer-lasting light — was severely curtailed. It would be half a century before ordinary Americans could afford electric lights.

For that to happen, it took not only the invalidation of key patents claims surrounding the light bulb, but also a bitterly contested political battle over the entry of federal and local governments into the business of electricity generation and supply.

The story of the light bulb reveals that the relationship between patents, innovation, and the spread of new technologies is more complex than is widely understood.

Companies who stand to benefit from longer, stronger patent protection would have us believe that patents promote innovation by providing greater incentives to invention. And there is good reason to believe that is at least sometimes the case.

But often, it works the other way. Patents are claimed by parties with no unique claim to invention, and used as weapons to stifle competition.

The result can be a paradoxical delay in scientific advancement, widespread access to new technologies, and opportunities for new businesses and opportunities that build upon that technology.

For an illustration, consider the biggest technological game-changer since electricity itself: the Internet.

photograph (c) alles-schlumpf, via Flickr

Where would we be today if Robert Cailliau and Tim Berners-Lee had sought patents on the World Wide Web in 1990, requiring anyone who wanted to provide a web-based service to negotiate a license with them?

Would we have smart phones, apps, and cloud computing today? Start ups? Google? Wikipedia? Internet memes? Even online shopping?

Almost certainly not. Software-based innovation moves so fast precisely because the Internet open, its underlying technology not controlled by any one company. It’s one area where IP law doesn’t get in the way of innovation.

Ensuring that access to new technologies spreads as rapidly as possible is an issue of distributive justice and, I argue, human rights.

But it’s also critical to economic growth. Each new technology paves the way for the next generation of business opportunities. When we slow their spread, we are shooting ourselves in the foot.

For more on these ideas, check out my speech at the Yale ISP’s recent conference on Access to Knowledge and Human Rights or my article forthcoming in the Wisconsin Law Review entitled The Right to Science and Culture.

The Electronic Frontier Foundation (EFF) has written a thorough guide to help creative individuals navigate the issues surrounding posting videos and what to do if youtube takes down your video. For the more visually inclined, you can also watch this video about disputing takedowns, made after the Hitler downfall parody takedown controversy.

For those looking to read more about the mash-up and remixing culture Glee celebrates, Lawrence Lessig’s Free Culture and Remix delve deeply into the issues with fascinating examples and a serious but accessible analysis of the law.

Finally, if you’re an artist who wants to allow others to use your work more freely, you can license your work under a creative commons license. There are several different licenses available that give the public varying degrees of freedom to use your work.

If you read the fair use statute, you might think that the copyright law’s framers shared this intuition:

“[T]he fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; …”

Perhaps those who access and transform copyrighted materials in the course of educating themselves—and in the course of educating others—are engaged in use that is fundamentally and categorically fair? Even if you don’t interpret the first sentence above to set forth a definitive list of fair use activities, it’s clear that Congress sought to carve out a strong exemption from liability for educational uses of copyrighted works. Based on the fair use statute, it looks as if the question of whether a use occurs in the context of teaching, scholarship, research, or education should be a threshold question, rather than merely one single factor in a broader inquiry. Indeed, Congress later affirmed in Section 110 that the “performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction” is not infringement.

So, then, what’s the worry for glee clubs? Or for that matter, what’s the worry for students who design a wiki around an in-copyright novel; edit that wiki by adding passages from the novel, images from film adaptations of the novel, and excerpts from critical reviews; display their work at an achievement fair; offer the wiki to a teacher who proceeds to share the project with future students studying the work in question; and make the wiki available as an open educational resource to students in other locations?

In brief, the worry has less to do with the text of copyright law, which seems to carve a wide swath of fair educational use, and more to do with the ambiguous ways in which this law has been interpreted. Judges sometimes evaluate fair use claims in complex and unpredictable ways, and lawyers are able to inject ambiguity into categories like “educational purposes” & “face-to-face teaching activities.” As a result, almost every point along the chain of technological and individual actions described above is at least capable of being classified as an infringement of copyright, and thus capable of triggering a fine of up to $150,000 for each instance of infringement.

Let’s be optimistic and assume that there’s a 1% chance of a judge finding willful infringement and assessing the full damage award in each instance: that still represents $1500 worth of risk for each action. Is a school likely to assume this kind of liability? Or is the possibility, however remote, of a crippling damages award going to serve as a fairly strong deterrent for any student or educator considering bringing cultural artifacts or experiences into the learning environment?

Many student projects already require the use and integration of copyrighted content, not to mention the frequent back-and-forth distribution of the projects and software containing this content, both for purposes of collaboration and student evaluation. The formalization of a clear and broad fair use interpretation for the classroom context would dispel the institutional fear and uncertainty surrounding these actions, and would free students and teachers to spend more time exploring, understanding, and recontextualizing materials within a newly opened-up educational public domain. It would be faithful to the statutory text of the Copyright Act. And it would permit us, once again, to conceive of fair use “not as a disorderly basket of exceptions to the rules of copyright, nor as a departure from the principles governing that body of law, but rather as a rational, integral part of copyright, whose observance is necessary to achieve the objectives of that law.”

The fictional high school chorus at the center of the show has a huge problem, you see — nearly a million dollars in potential legal liability. For a show that regularly tackles thorny issues like teen pregnancy and alcohol abuse, it’s surprising that a million dollars worth of lawbreaking would go unmentioned. But it does, and week after week, those zany Glee kids rack up the potential to pay higher and higher fines.

In one recent episode, the AV Club helps cheerleading coach Sue Sylvester film a near-exact copy of Madonna’s Vogue music video (the real-life fine for copying Madonna’s original? up to $150,000). Just a few episodes later, a video of Sue dancing to Olivia Newton-John’s 1981 hit Physical is posted online (damages for recording the entirety of Physical on Sue’s camcorder: up to $300,000). And let’s not forget the glee club’s many mash-ups — songs created by mixing together two other musical pieces. Each mash-up is a “preparation of a derivative work” of the original two songs’ compositions – an action for which there is no compulsory license available, meaning (in plain English) that if the Glee kids were a real group of teenagers, they could not feasibly ask for — or hope to get — the copyright permissions they would need to make their songs, and their actions, legal under copyright law. Punishment for making each mash-up? Up to another $150,000 — times two.

The absence of any mention of copyright law in Glee illustrates a painful tension in American culture. While copyright holders assert that copyright violators are “stealing” their “property,” people everywhere are remixing and recreating artistic works for the very same reasons the Glee kids do — to learn about themselves, to become better musicians, to build relationships with friends, and to pay homage to the artists who came before them. Glee’s protagonists — and the writers who created them — see so little wrong with this behavior that the word ‘copyright’ is never even uttered.

You might be tempted to assume that this tension isn’t a big deal because copyright holders won’t go after creative kids or amateurs. But they do: In the 1990s, the American Society of Composers, Authors and Publishers (ASCAP) asked members of the American Camping Association, including Girl Scout troops, to pay royalties for singing copyrighted songs at camp. In 2004, the Beatles’ copyright holders tried to prevent the release of The Grey Album – a mash-up of Jay-Z’s Black Album and the Beatles’ White Album — and only gave up after massive civil disobedience resulted in the album’s widespread distribution. Copyright holders even routinely demand that YouTube remove videos of kids dancing to popular music. While few copyright cases go to trial, copyright holders like the Recording Industry Association of America (RIAA) don’t hesitate to seek stratospheric damage awards when they do, as in the Jammie Thomas-Rasset filesharing case.

These worlds don’t match. Both Glee and the RIAA can’t be right. It’s hard to imagine glee club coach Will Schuester giving his students a tough speech on how they can’t do mash-ups anymore because of copyright law (but if he did, it might make people rethink the law). Instead, copyright violations are rewarded in Glee — after Sue’s Physical video goes viral, Olivia Newton-John contacts Sue so they can film a new, improved video together.

So what should you do in real life if you and your friends, inspired by Glee, want to make a mash-up, or a new music video for a popular song? Should you just leave this creativity to the professionals, or should you become dirty, rotten copyright violators?

Current law favors copyright holders. But morally, there’s nothing wrong with singing your heart out. Remixing isn’t stealing, and copyright isn’t property. Copyright is a privilege — actually six specific privileges — granted by the government. Back in 1834, the Supreme Court decided in Wheaton v. Peters that copyrights weren’t “property” in the traditional sense of the word, but rather entitlements the government chose to create for instrumental reasons. The scope and nature of copyright protection are policy choices — choices that have grown to favor the interests of established, rent-seeking businesses instead of the public in general.

The Constitution allows Congress to pass copyright laws to “promote the progress of science” — a word often used in the 18^th century to mean “knowledge”. The stated purpose of the original 1790 copyright statute was to encourage learning.  So you tell me — what promotes knowledge and learning: letting people rearrange music and learn to use a video camera, or threatening new artists with $150,000 fines?

Defenders of modern copyright law will argue Congress has struck “the right balance” between copyright holders’ interests and the public good. They’ll suggest the current law is an appropriate compromise among interest groups. But by claiming the law strikes “the right balance,” what they’re really saying is that the Glee kids deserve to be on the losing side of a lawsuit. Does that sound like the right balance to you?

Yale ISP Executive Director Dr. Laura DeNardis is presenting this weekend at the Third International Workshop on Global Internet Governance at McGill University in Montreal (QC) Canada.  The workshop is being organized by the Global Internet Governance Academic Network (GigaNet), a scholarly community founded in spring of 2006 in conjunction with the United Nations Internet Governance Forum to:

*support the establishment of a global network of scholars specializing in Internet Governance issues;

*promote the development of Internet governance as a recognized, interdisciplinary field of study;

*advance theoretical and applied research on Internet governance, broadly defined, and;

*facilitate informed dialogue on policy issues and related matters between scholars and Internet governance stakeholders (governments, international organizations, the private sector, and civil society).

DeNardis, a member of GigaNet since its inception, will present on the opening panel about “What is Internet Governance research and what do different academic disciplines contribute to it?”  DeNardis will discuss the study of Internet governance from the methodological and theoretical perspectives of the field of Science and Technology Studies (STS).

There are two other main browser makers: Microsoft and Apple. Apple has not yet formally responded to Google’s VP8/WebM announcement, but it’s likely that their eventual response will be a complicated one, considering that Apple has structured much of its video ecosystem around the competing (and relatively proprietary) H.264 format, but also currently features a YouTube application on a number of its mobile devices.

Microsoft, on the other hand, appears to be both tacitly embracing and hedging against WebM. The Internet Explorer project manager writes that “when it comes to HTML5, we’re all in.” But Microsoft also notes that “some web groups have cited concerns about patent issues with similar codecs and the costs that may be associated with shipping codecs not covered by patent licenses.” And even if a successful patent lawsuit against WebM is less likely than one against Ogg, Microsoft seems unwilling, at least for now, to give the same default & native support to WebM/VP8 that it gives to H264. Thus “IE9 will support playback of H.264 video as well as VP8 video when the user has installed a VP8 codec on Windows.” In other words, the burden is on the user, not the browser maker, to install the WebM codec. Easy for users to do on desktops, perhaps (if the user has install privileges), but not so easy on mobile devices!

In general, this Ars Technica article (+ comments) spins out numerous different ways in which these patent questions might play out. Perhaps the lack of initial straightforward support from other browser makers shouldn’t be surprising, since most companies aren’t exactly willing to do awesome things first and hope the patent/copyright questions will eventually fall into place. But it will certainly be interesting to see what alliances are ultimately struck; whether the adoption of a free and open video standard will significantly shift the landscape of web video; and whether in the future we’ll have more, or fewer, points of transaction/control between video makers and users.