When HVBA’s webmaster emailed Sony Music to explain that the use of music clips in the lecture videos was fair use, Sony’s representative responded that the label had “a new company policy that uses such as yours be subject to a minimum $500 license fee,” and that “if you are going to upload more videos we are going to have to follow our protocol.” Sony’s representative didn’t say that she believed the video was not a fair use. Instead, she implied that even a fair use would require payment, and that Sony would keep using YouTube’s Content ID system against HVBA until they paid up.
A software pirate is facing the most unusual punishment ever seen in a copyright infringement action. The man lost a case brought by an anti-piracy group but couldn’t pay damages, so instead agreed to star in PSA showcasing his life as a pirate. If that film doesn’t get 200K hits on YouTube, he’ll be required to pay a large fine.
The ISP under legal pressure to block The Pirate Bay in Sweden has criticized efforts to make the provider an accomplice in other people’s crimes. In a joint statement two key executives of Telenor / Bredbandsbolaget warn that folding to the wishes of private copyright holder interests could mark the beginning of the end for the open Internet.
We’ve been writing a lot about the Trans Pacific Partnership (TPP) agreement over the past few years. There are many, many problems with it, but the two key ones are the intellectual property chapter and the investment chapter. Unlike some who are protesting TPP, we actually think that free trade is generally a good thing and important for the economy — but neither the intellectual property section nor the investment chapter are really about free trade. In many ways, they’re about the opposite: trying to put in place protectionist/mercantilist policies that benefit the interests of a few large legacy industries over the public and actual competition and trade. We’ve already discussed many of the problems of the intellectual property chapter — which is still being fought over — including that it would block the US from reforming copyright to lower copyright term lengths (as even the head of the Copyright Office, Maria Pallante has argued for).
And, last week, Wikileaks leaked the investment chapter, which is focused on corporate sovereignty provisions, officially known as “investor state dispute settlement” or “ISDS” (named as such, in part, because the negotiators know it sounds boring, so they hope the public won’t pay attention). As people go through the details and the fine print, they’re finding some serious problems with it. Sean Flynn has a very in-depth look at how the combination of these two chapters — the IP chapter and the investment chapter — could very likely threaten fair use (and, with it, undermine the First Amendment).
The full details as to how are a bit tricky to understand, because it involves digging through the leaked versions of both chapters, and understanding some of the subtle language choices, but it’s a serious concern. Flynn’s article also goes through the history of how such corporate sovereignty provisions have been expanded and increasingly used over the past decade or so. But the key part is this: the investment chapter certainly can (and will) be read to cover intellectual property as well, including the idea that a company can invoke the ISDS process if it feels its “intellectual property” has been “expropriated” in some manner. The word “investment” in the investment chapter is defined incredibly broadly and explicitly includes “intellectual property” as well as “other tangible or intangible, movable or immovable property.” It also, importantly, notes that an investment, for the purpose of ISDS, covers:
every asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk.
Now, it’s no secret that the legacy entertainment industry is no fan of fair use (even if they often rely on it themselves). While fair use is officially part of the law in the US, the entertainment industry just recently fought very hard to block it in the UK and Australia, arguing (ridiculously) that fair use would harm innovation.
Even where there are very strong arguments for fair use — such as in helping the blind access works — the entertainment industry has twisted the so-called “three step” test from the Berne Agreement to argue that that is the most that is allowed for fair use. The three step test is actually really about limiting fair use, rather than enabling it. It is in the Berne agreement (as a relatively recent addition) as one possible “exception” to copyright, but not the only one. However, the haters of fair use like to pretend that it is the only one allowed under that agreement.
Under the three step test, “exceptions” to copyright occur when there are:
limitations and exceptions to exclusive rights to (Step 1) certain special cases (Step 2) which do not conflict with a normal exploitation of the work and (Step 3) do not unreasonably prejudice the legitimate interests of the rights holder
And, of course, in the US, fair use goes way beyond that already. And, as Flynn points out, it appears from the leaked text of TPP, the US would now be opening itself up to an ISDS challenge from a foreign owned company (remember: Universal Music is owned by a French company, Sony Music is owned by a Japanese company and Warner Music is owned by Russians…) that the fair use doctrine itself “expropriates” its “intellectual property” rights by going beyond the three steps test. Here’s Flynn:
And here is a major one lurking in the shadows. Many copyright intensive industries are hostile to the U.S. fair use doctrine and many of the decisions of courts emanating from it. There have been arguments raised from time to time that the doctrine or its applications are contrary to the so-called Berne 3-step test requiring that limitations and exceptions to rights be limited to certain special cases, not conflict with a normal exploitation of the work and not unreasonably prejudice the legitimate interests of the author (see this rebuttal from Gervais et al.). No other country has attempted to sue the U.S. or the nearly dozen other countries around the world that have fair use. But will the content industry be so reticent with such challenges in the future? With the TPP ISDS chapter, they will not have to in 40% of the global economy.
And this isn’t so far fetched. As we’ve been discussing, under existing ISDS/corporate sovereignty provisions in NAFTA, Eli Lilly is currently suing Canada for $500 million because Canada refused to grant it some patents. Eli Lilly is arguing that this “expropriated” Eli Lilly’s “intellectual property” and took away its “expected profits.”
Is it that difficult to believe that a recording studio or movie studio might make a similar argument on a fair use determination on one of its copyright-covered works?
And, if fair use is undermined, so is free speech. As we’ve noted, the Supreme Court itself has long argued that current fair use doctrine is a necessary “safety valve” in making sure that copyright does not violate the First Amendment. In other words, fair use is a key part of your First Amendment rights.
And yet… the USTR is basically putting in place a plan and system to undermine this, because the big copyright players are among the very few people who are allowed to see the negotiating text and to “advise” the USTR on what should be in it. Once again, it would seem like the most obvious way to deal with this would be for the USTR to release the negotiating documents, so that the public would be aware of what’s being negotiated, and could discuss the possible consequences — like how the current rules have the potential to undermine fair use and free speech. But, for reasons that the USTR still will not explain (perhaps because they reveal the USTR’s true reasoning for such provisions), it refuses to do so.
Following intense pressure from the Australian government, ISPs were warned that they had to come up with a solution to online piracy or face a legislative response.
In collaboration with some rightsholders, last month a draft code was tabled by ISPs which centered on a three-strikes style system for dealing with peer-to-peer file-sharers using systems including BitTorrent.
In a response to the code just submitted by the Australasian Music Publishers Association (AMPAL) – which counts EMI Music Publishing, Sony/ATV Music Publishing, Universal Music Publishing and Warner/Chappell Music among its members – the companies accept that the proposals are moving in the right direction but suggest boosting them in a number of ways.
Firstly, in an attempt to plug the so-called ‘incorporation’ loophole, the publishers say that all Internet subscribers should be subjected to the graduated response scheme, not just residential customers. While that suggestion could cause all kinds of problems for businesses and providers of public wi-fi systems, that’s just the tip of the iceberg.
AMPAL says it recognizes that the code requires rightsholders to do their own online monitoring of file-sharers. It’s a practice employed around the world in every jurisdiction where “strikes” systems are in place. However, the publishers would prefer it if the draft code was amped up to the next level.
“The Code does not place a general obligation on ISPs to monitor and detect online copyright infringement,” the publishers write. “AMPAL submits that ideally the Code should include such a duty using ISPs’ monitoring and filtering techniques.”
The publishers don’t elaborate on their demands but even in this form they are troubling to say the least.
While rightsholders currently monitor only file-sharers distributing content without permission, in theory and to meet AMPAL requirements ISPs may have to monitor the activity of all customers. Not only that, the ‘filtering’ aspect would mean that ISPs become much more than mere conduits of information, a real problem for those seeking to avoid being held liable for infringing activity.
But AMPAL’s plans for ISPs go further still. Not only should they be pro-active when it comes to monitoring and warning subscribers, ISPs should also use technology to actively block access to infringing content on other levels.
Despite its current difficulties in maintaining an efficient online presence, The Pirate Bay remains the world’s most hounded website. Entertainment industry companies around the globe have made the notorious site their number one anti-piracy target and legal action continues in many regions.
Perhaps one of the most interesting at the moment is the action filed last November by Universal Music, Sony Music, Warner Music, Nordisk Film and the Swedish Film Industry. It targets Swedish ISP Bredbandsbolaget (The Broadband Company) and effectively accuses the provider of being part of the Pirate Bay’s piracy machine.
The papers filed at the Stockholm District Court demand that Bredbandsbolaget block its subscribers from accessing The Pirate Bay and popular streaming portal Swefilmer. In December the ISP gave its response, stating in very clear terms that ISPs cannot be held responsible for the traffic carried on their networks.
Last month on February 20 the parties met in the Stockholm District Court to see if some kind of agreement or settlement could be reached. But the entertainment companies’ hopes have been dashed following the confirmation that Bredbandsbolaget will not comply with its wishes.
“It is an important principle that Internet providers of Internet infrastructure shall not be held responsible for the content that is transported over the Internet. In the same way that the Post should not meddle in what people write in the letter or where people send letters,” Commercial Director Mats Lundquist says.