Digital Copyright

The Siren Call of Digital Rights Management

Although technological protection measures seemed to promise copyright owners the tools to prevent unauthorized uses, they’ve largely failed to accomplish anything close to that. The producers of electronic games have deployed technological protections to interfere with unauthorized gameplay, and used the statutory circumvention provisions to shut down unlicensed mods. Sellers of music, movies, books, and other conventional copyrighted works have found technological protections less helpful. First, few if any technological protection measures proved to be more than modest impediments to unauthorized use: all of the DRM technologies fielded so far have been cracked in short order. The additional protection conferred by a legal prohibition is small. Circumvention lawsuits may be able to avenge the defeat of copy protection, but have not been effective in preventing it. An individual who is undeterred by the knowledge that making an unlicensed copy is copyright infringement is unlikely to be dissuaded by the further knowledge that hacking the copy-protection to make the copy is independently illegal. Meanwhile, once an unencrypted copy of the work escapes into the wild, the fact that consumers will need to copy that copy rather than make their own is not of much use to copyright owners. Some motion picture studios quietly began to save money by releasing DVDs without DRM.

While the technological protection measures deployed by copyright owners offered only pallid protections against piracy, though, they caused a bunch of annoying side effects. Periodic hardware and software upgrades in devices rendered them suddenly unable to play purchased, authorized copies. As digital devices failed in the marketplace and digital services went out of business, consumers found that they had invested in collections of now-inaccessible content.

Although record labels initially insisted that recordings distributed as digital downloads be technologically protected from copying, they soon discovered that the makers of digital music players manipulated digital rights management technology to make music downloaded from a rival service unplayable on popular devices. Attaching copy-protection to digital downloads did not have any perceivable impact on piracy, but did enable Apple to achieve a dominant market position for its iPod devices and iTunes music marketplace.[3] In 2005, Sony and BMG incorporated undisclosed technological protections into their recordings designed to disable personal computers from copying recorded music. The discovery of the maneuver led to FTC action, a recall of the protected disks, and a promise not to try something like that again.[4]

Industries outside of the entertainment and information businesses caught on to the potential usefulness of a law prohibiting their competitors from unlocking the software powering their products. Manufacturers of laser printers, garage door openers, automobiles, and medical devices sought to use the law to prevent unlicensed service or sale of aftermarket parts, with only limited success.[5]

Every three years, the copyright office launches a new rulemaking proceeding. All proponents of exemptions from the circumvention ban, including the holders of current exemptions, must present new evidence that those exemptions should be granted or renewed. In recent years, lots of energy, time, and money have been devoted both to requests for uncontroversial exemptions (everyone appears to agree, for example, that it shouldn’t be unlawful to circumvent protection in order to make works accessible to print-disabled readers, and that one ought to be able to unlock one’s cellphone to switch to a different carrier without violating title 17), and to opposition to requests for exemptions for works well outside the core concerns of copyright. (Automakers and medical device manufacturers energetically resisted requests to allow circumvention to permit repair or the use of aftermarket replacement parts in vehicles or medical devices.)

The promise of a world in which copyright owners could prevent unauthorized uses was never realistic. Some copyright owners are nonetheless convinced that they are morally entitled to a world where that promise is realized, and to a law that will empower them to enjoy it.

The Scorched-Earth Litigation Campaigns

Copyright owners continued to pursue a strategy of filing suit against new entrants with the goal of forcing them to close. Dozens of new businesses folded in the face of litigation. Others hung on long enough to be litigated into dust. Limewire, Scour, 321Studios, Sonic Blue, Zediva, Olga, Veoh, Bnetd, Puretunes, Bolt, LokiTorrent, Bleem!, Grokster, Aereo, Grooveshark, and Redigi have all disappeared.

The recording and film industries promised that once the pirates were gone, consumers would be able to enjoy awesome new authorized digital marketplaces for music and movies. But they were wary of releasing their works to the public without effective copy protection, and effective copy protection failed to materialize. Legacy entertainment businesses also worried that new options for enjoying their works online would cannibalize their conventional markets. When they finally ventured into the market with digital offerings, those options were not particularly compelling, and garnered scathing reviews.

The upshot of copyright owners’ scorched earth litigation strategy is that it temporarily cleared the field, making room both for tepid, content-industry-controlled efforts to distribute music, books, and video online, and for new entrants with the stamina and resources to survive copyright infringement suits. Apple, Amazon, and Google took advantage of that environment to grow into dominant distributors who have become obligatory partners for any serious online content distribution plan, and who insist on calling the shots on price, format, and other matters that content owners believe should rightfully be their decisions. Had copyright owners exercised more restraint, they might have tolerated start-ups long enough to permit them to explore and develop new markets and gain modest footholds. At that point, big media would have had the opportunity to purchase or grant favorable licenses to the ones it liked best, while discouraging any of them from achieving the sort of dominant market position that makes it difficult for copyright owners to exercise their bargaining power. Instead, copyright owners litigated a bunch of promising companies into liquidation, leaving a small number of very strong players who can insist on doing business on terms that suit them. Book publishers, record labels and film companies have had some modest success in playing Apple, Amazon and Google off of one another, but less success in competing with them with businesses structured to suit content owners’ preferences.[6] Frustrated with the results of the litigation campaign, some copyright owners have returned their attention to the effort to force Internet and online service providers and device manufactures to act as copyright police.

Online Service Safe Harbors

As described in chapter 9, the language of the online service provider safe harbor had been negotiated in haste and incorporated significant ambiguities. The drafters of the provision seem to have anticipated an online world in which copyright owners would detect distinct instances of infringement and ask service providers to remove them. The explosive growth of the Internet has made that view seem quaint. Copyright owners complain of thousands of infringing incidents; service providers respond that they receive millions of notices. Both large copyright owners and large service providers adopted automated solutions to identify infringements and respond to takedown requests. The automated solutions are crude, and empirical studies reveal that there is significant overclaiming.[7] They are also expensive: small copyright owners and small service providers can’t afford them. Both large and small copyright owners resent the resources they need to commit to scouring the Internet to identify infringements. Initially, the content industry argued that the online safe harbors should be unavailable to services with reason to anticipate that their subscribers would post infringing material. Courts responded that so construed, the safe harbor provisions would make no sense: every online service has reason to anticipate that its subscribers may post infringing material. Copyright owners continue to argue that once they identify an instance of infringement, a service provider should be responsible for eradicating all extant and future appearances of that work. Courts have not so far gone along.[8]

Because the expedited enforcement provisions of the DMCA applied in terms only to material stored on the service providers’ servers, courts resisted content owners’ efforts to use section 512 to force Internet service providers to identify or terminate individual subscribers engaging in peer-to-peer file sharing, which bypasses servers to enable individuals to exchange files directly.[9] Copyright owners complained that service providers were unwilling to cooperate because they were loath to lose the subscription fees they collected from file sharers. Lobbyists for the content industry insisted that Internet service providers were morally obligated to respond to the scourge of P2P by agreeing to terminate the Internet subscriptions of incorrigible file sharers. The recording and motion picture industry associations optimistically described their five-year campaign of filing suits against tens of thousands of individual users of P2P software as an effective educational crusade that made Americans aware that file sharing was unlawful. In 2008, though, they declared they were dropping the John Doe lawsuits in favor of a plan to convince service providers to cooperate in identifying file sharers and curtailing their Internet privileges.

In 2011, the motion picture and recording industry associations announced that, with the assistance of the Obama administration, they had persuaded five large Internet service providers – AT&T, Verizon, Comcast, Cablevision, and Time Warner Cable – to sign a memorandum of understanding to address the threat of peer-to-peer file sharing. The service providers agreed to implement a “six-strikes” or graduated response program under which they would send individual subscribers accused of peer-to-peer file sharing a series of increasingly severe warnings, culminating in the imposition of restrictions on their use of online services.[10] Working out the details of the program ate up a lot of time. The program finally launched in 2013. It had a new name, the “Copyright Awareness System,” with a watered-down menu of escalating warnings that the service providers would send their subscribers identified as engaging in peer-to-peer file sharing. In the first 10 months of the program, the system generated more than a million copyright alerts. A report on the initial roll-out optimistically predicted that the program would help the participants to “‘move the needle’ of user behavior in the U.S. away from copyright infringement and toward the use of the many legal sources of content available in today’s digital marketplace.”[11] In January of 2017, though, the Copyright Awareness System abruptly shut down. The program’s so-called educational efforts had apparently not moved the needle of user behavior far enough to be worth the effort and expense. The content industries seem to have accepted that peer-to-peer file sharing is an annoying but probably ineradicable feature of the current landscape.

It was clear from the outset that the scope of the voluntary agreement would be narrow, and that reprisals against subscribers who engaged in file sharing would be limited. Because service providers could rely on section 512 to shield them from liability for material they neither originated nor controlled, they had little reason to accept significant new responsibilities for policing infringement.

Frustrated with the courts’ construction of the section 512 safe harbors, the copyright owner lobbies sought relief from Congress. They championed new “rogue websites” legislation that would enable copyright owners to designate any online site as “dedicated to the theft of U.S. Property,” and require ad services and payment processors to stop doing business with the site, even if it would have qualified for safe harbor protection under section 512. As introduced in 2011, the Stop Online Piracy Act[12] empowered any intellectual property owner harmed by a site that facilitated copyright infringement to serve a notice on credit card companies or advertising services that did business with the site. On receipt of the notice, and without any judicial involvement, the credit card and advertising companies would have been obliged to cease doing business with the site within five days. By branding ordinary websites with the “rogue” and “dedicated to theft” labels, copyright owners hoped to persuade Congress to give them power to remove the sites from the Internet.

Supporters of the legislation had designed it without any input from the interests likely to oppose it. A Paramount vice president later explained to my copyright class that the proponents of SOPA had always anticipated that opponents would come forward with demands for modifications that would diminish some of the bill’s more extreme provisions, and that they would have to accede to some of those suggestions. They had drafted the bill so expansively and without the input of likely opponents on the theory that such a strategy would put them in the best bargaining position in ensuing negotiations. The strategy backfired, as students of copyright history might have predicted that it would.

Initially, SOPA’s prospects looked bright. Register of Copyrights Maria Pallante endorsed the bill as serious, comprehensive, and measured, and urged its enactment: “[I]f Congress does not continue to provide serious responses to online piracy, the U.S. copyright system will ultimately fail.”[13] The bill attracted 31 cosponsors from both parties in the House. House Judiciary chair Lamar Smith, the bill’s principal sponsor, apparently assured the entertainment industry entities that had contributed heavily to his reelection campaign that he would ensure the bill’s prompt enactment. When opposition began cropping up among Judiciary Committee members, he quashed it. In December of 2011 he powered through a marathon session devoted to marking up the bill, deflecting or defeating all proffered amendments.[14] Still, he was unable to complete the markup, and reluctantly adjourned it until January. January, though, was when a coalition of high tech companies and millions of Internet users rose up in protest of the legislation.[15] On January 18,thousands of online services, including Wikipedia, blacked out their websites to protest SOPA. The bills’ supporters backed off. Although opposition to SOPA and the resulting Internet protest had initially been organized by an ad hoc coalition of individuals, Internet civil liberties organizations and technology activists, copyright owner lobbies complained that the strong public opposition had been manufactured by an irresponsible misinformation campaign orchestrated by Google.[16]

Stung, some copyright owners returned to their efforts to persuade the courts to construe section 512 in a more copyright-owner-friendly fashion. They have recently shown some success in persuading the courts that the statutory obligation to have a policy in place leading to the termination of subscribers who were “repeat infringers” requires online service providers to cancel the subscriptions of customers who have been the subject of multiple take-down notices, even though the notices were generated by automated processes that distinguished imperfectly between infringing and non-infringing posts.[17]

The industries’ loudest complaints have targeted Google and its subsidiary, YouTube. For some copyright owners, Darth Google epitomized the unfairness of the new era. Because of the safe harbor, Google had prevailed in the lawsuit that charged YouTube with intentionally inducing infringement.[18] Google prevailed again in the suit challenging its mass digitization of library books; the court of appeals for the 2d Circuit concluded that the project was sheltered by the fair use privilege.[19] Google was earning millions of advertising dollars at least in part because consumers used its search functionality to find both licensed and unlicensed copies of copyrighted works. One songwriter complained that “Google spends millions of dollars every year fronting a campaign to crush the rights of creatives.”[20] Another composer argued: “YouTube and its parent Alphabet have obliterated the original meaning of the ‘safe harbor’ law with their bullying and coercive schemes to get their users to disrespect and ignore copyright.”[21] Larger copyright owners appeared to find vanquishing Google a top priority. A hack of Sony’s email server revealed that motion picture studios had launched an expensive secret campaign to persuade state attorneys general to prosecute Google for facilitating illegal activity online. Blog posts nominated Google as the real power behind every government decision that didn’t go the content industry’s way. When the Justice Department reviewed 60-year-old consent decrees limiting ASCAP and BMI, and declined to endorse the societies’ preferred interpretation, some copyright blogs blamed Google for the decision.[22] When the Librarian of Congress fired Register Maria Pallante (who had been complaining loudly for months that the Copyright Office did not belong in the Library), conspiracy theorists saw the dark influence of Google.[23] Copyright owners’ resentment of Google seems to be addingextra fuel to their efforts to narrow the online service provider safe harbor and to saddle service providers with the legal responsibility for preventing unlicensed uses.

Copyright owners have continued to seek to persuade the Copyright Office, the Commerce Department, and Congress to revise the safe harbor rules to shift more of the burden of copyright policing on the shoulders of online services. At least some rightsholders insist that Congress must change the law to replace the current notice and takedown regime with a “notice and staydown” regime. They have not, however, ventured an opinion on how such a system could work. Rather, they argue that if the law obliged service providers to find a solution, the service providers would develop the technology to make it possible.

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The 1976 Copyright Act has passed its fortieth birthday, and the DMCA is coming up on its twentieth. Congress is once again making noise about undertaking a comprehensive revision of the copyright law. In 2013, the Register of Copyrights called on Congress to enact the “next great copyright act.”[24] The House Judiciary Committee held 20 hearings on copyright issues during the 113th Congress in what was billed as a comprehensive reexamination of the copyright system.[25] The committee heard from scores of witnesses testifying about what they thought was right and wrong with current copyright law. As copyright owners pressed Congress to recognize or clarify a more expansive scope for reproduction and distribution rights and a narrower compass for online service safe harbors, supporters of enhanced copyright protection have deflected calls for recognition or clarification of readers’ and listeners’ liberties. They insist that readers have failed to make a compelling showing that current legal ambiguities cause them meaningful harm. Any new or expanded privileges or exceptions, they argue, would pose a grave danger of injuring the creators and owners of copyrighted works.[26]

The Copyright Office has launched policy studies on all the hot button issues that might be expected to come up in a copyright reform effort. So far, those studies have generated reports that look like the content industries’ Christmas wish lists.[27] The Patent and Trademark Office, for its part, still appears to nourish hope that Congress will decide to take the copyright office away from the Library of Congress and give it to theDepartment of Commerce instead. To audition for that opportunity, the PTO has organized its own policy studies and “multi-stakeholder forum” to tell Congress how it should improve the statute.[28] House Judiciary Committee Chair Bob Goodlatte (R-Va.) and ranking member John Conyers (D-Mich.) have invited all parties interested in copyright reform to meet directly with House Judiciary Committee staff to provide input on copyright policy, and launched what was billed as a “listening tour,” in which Judiciary committee members have been “traveling to a few locations across America to hear directly from creators and innovators about the challenges they face in their creative field and what changes are needed to ensure U.S. copyright law keeps pace with technological advances.”

Thus, Congress, the Copyright Office, and copyright-affected industries and institutions appear poised to embark on another round of negotiated copyright revision. I expect it to take a long time, to motivate many and large campaign contributions, and to eventually produce pretty much the same sort of law that negotiated copyright revision has generated in the past. We seem to be incapable of learning from our past mistakes.

Ann Arbor

February 2017.