In this paper, I will discuss how copyright is being enforced and regulated in the private sphere. The private sphere inconsistently enforces varying levels of copyright protection and enforcement – some are in line with legal doctrine while others strip away fair use rights of end users. This legally gray area of copyright enforcement changes interpretations of and causes problems with trying to implement, create, and enforce meaningful copyright legislation in the digital age. I will start by giving a brief overview of modern copyright legislation, focusing on the Digital Millennium Copyright Act, and discussing the legislation as it relates to previous incarnations of copyright law in the United States. Then, I will present several case studies showing that this “privatization of copyright law” harms the efficacy of courts to prosecute copyright and fair use claims.
The DMCA and DRM: Where the Precedent Originates
Reacting to the alarming expansion of the digital environment, Congress passed the Digital Millennium Copyright Act (DMCA) in 1998. The legislation, although aimed at quelling illegal downloading of music and software, had other effects as well. Section 512 of the DMCA creates a “safe harbor” provision for hosting websites and Internet Service Providers (ISPs) against copyright liability.[i] To ensure this immunity is in good faith,, the DMCA requires that websites and ISPs provide a system to “expediently” remove content that may be in violation of copyright.[ii] When a site receives a complaint, it is legally required to remove the “infringing” content; the website cannot reupload it unless the accused submits a counterclaim stating their right to use whatever was taken down. The burden, in this case, is on the accused to prove innocence rather than the accuser to show guilt. The infringer needs to prove the content was not in violation of copyright to make the material available again. The other relevant section of the DMCA relates to violating coded protections placed on copyrighted works, known as Digital Rights Management (DRM) violations. DRM is a system that attempts to prevent unauthorized replication of copyrighted material. By using encryption, content copy restrictions, or other coded barriers, DRM makes it more difficult, if not impossible, to create copies of digital goods. The DMCA criminalizes circumventing DRM protections on digital software and goods, including websites, DVDs, CDs, and video games. Even in the instance of legal uses of content (most notably that of fair use), cracking or circumventing DRM code can result in criminal prosecution.[iii] For example, it is an established fair use right to make backup copies of digital works on other machines in case the original is damaged.[iv] However, since DVDs may encrypt the audio and video files to prevent unauthorized reproduction and making a valid backup requires breaking that encryption, owners are in violation of the DMCA in transforming the work to another medium. Exceptions to these circumvention rules may be granted to institutions every three years with very specific goals established by the United States Copyright Office, though not many institutions have applied for these immunities.[v] The DMCA’s goal was to place more power in the hands of copyright holders and gatekeepers to copyright content, like YouTube, to regulate their own content. What the creators of the DMCA did not realize, however, is the paths that corporations would take to protect their own content from being stolen. In short, the modern system is intrinsically anti-consumer.
To maintain DMCA safe harbors, hosts will default to removing content, and the rights of consumers are surprisingly restricted via the DRM circumvention provisions. In a curious twist of legal precedent, the DMCA enables ISPs and websites to become arbiters in copyright infringement cases. Businesses and web hosts now have to answer several questions when considering claims: is this a fictitious copyright claim? How much of the accused’s data and information ought I remove? Is my site legally liable for hosting infringing information? These legal questions have difficult answers on which trained intellectual property scholars, lawyers, and legislators cannot agree; it is unreasonable to expect website owners to make reasonable, educated decisions. In as much as Congress, and more broadly the United States, has faith in the justice system to arbitrate court proceedings and law, it seems foolish to grant outside entities such a scope of litigation. Further, the DMCA grants overwhelming authority to rights holders to determine what rights end users ought to have when using their copyrighted material. In older media, such as books and television, owners can only control the change of the work the first time it was sold. [vi] Used book markets, VCRs, and cassette mix tapes are allowed and encouraged within the “first sale doctrine.” Protections have been legally extended to DVDs and, in particular district courts, to software as well. Rights holders can also not prevent people from exercising their fair use rights with work, such as using part of a film in a class or creating parodies of the work. The DMCA authorizes holders to do all of these things previously not allowed with DRMs and criminalizes anyone’s attempt to bypass the DRMs, even for fair use! Hazy legal interpretation leads to hazy adherence, and content owners and end users alike cannot be expected to make sense of these standards. In its attempts to protect copyright holders from infringement, the DMCA convoluted copyright law and created a headache of understanding for average citizens. Because of the DMCA, online hosts and websites must force their own interpretations of copyright and act as litigious agents when trying to settle claims outside of courts.
Due to outside pressure from organizations such as the Recording Industry Artists Association (RIAA) and Motion Picture Artists Association (MPAA), hosts and ISPs have fallen victim to enforcing these erratic and often times unfair rules. One of the most confusing “blackholes” of copyright law starts with contractual agreements. Terms of Services and End User License Agreements (EULA) serve as contracts between users and producers to ensure positive atmospheres on many sites. Inside these rules, users are bound to established standards and rules, which normally include conduct standards and legal disallowing obscene, offensive, or adult content. Additionally, these Terms of Service agreements and EULAs contain information regarding copyright restrictions as well. Copyright standards in these documents enforce strange copyright restrictions and unclear standards for takedowns. One Terms of Service read that they “reserve the right to remove any pictures or content without notice to you, any other user, or any third party.”[vii] On YouTube’s upload page lays the disclaimer: “Do not upload any TV shows, music videos, music concerts, or commercials without permission unless they consist entirely of content you created yourself… By clicking “Upload Video”, you are representing…that you own all copyrights in this video or have authorization to upload it.” [viii] Numerous other websites contain similar language in their agreements. While YouTube is well within their legal right to create contractual agreements with their users, the legal status of these restrictions via one-click EULA agreements is relatively unclear. One-click contracts are often times not read or understood by the end user and often contain convoluted language. The standards are not even consistent across websites, where some are more specific than others. Second, and more importantly, YouTube misrepresents what copyright is and how fair use works in their EULA and upload procedures. Fair use is not about having “authorization” to upload; it is the ability to do specific things with content that are legally protected. A user does not need legal authorization to upload an audio reading of Upton Sinclair’s novel The Jungle, but as YouTube’s EULA would describe, the user would need a signed note from Sinclair or his agent. As YouTube, and sites similar to it, are some of the first exposures to federal copyright law many Americans will actively face, it is disingenuous for sites to create a fictitious standard of copyright. Furthermore, the ambiguity of many sites’ EULAs and Terms of Service makes it hard to avoid being taken down for copyright infringement. In recent interactions with Facebook, Ken Fisher of Ars Technica remarked, “Truly, we awoke to find that Facebook had summoned a judge, jury, and executioner and carried out its swift brand of McJustice.”[ix] No legal precedents are being set when Facebook, YouTube, or any website arbitrates copyright disputes. Yet, many sites are forced to conform to these standards because of outside pressures, as they do not have the standing to create more expansive standards nor the money to survive any legal threats against them. This leads to more restrictions on consumer’s fair use rights, all outside of the law.
Facebook and Polyvore: Fighting the Giants
In one of the most egregious examples of copyright enforcement running amok, Ars Technica’s Facebook page was taken down by Facebook for copyright violations. Ars Technica is a widely popular technology and media blog. The site is frequented by technology enthusiasts and produces several articles daily regarding media happenings. It is one of the top 1000 websites visited in the United States and has a large devoted fan base.[x] On the morning of April 27, 2011, Ars Technica’s Facebook Page was taken down due to a reported copyright violation. All Ars Technica knew was that a copyright violation had been filed against the Page – they were not informed who filed the complaint, what content was infringing, or for how long it had been live on their Facebook site.[xi] Aghast at this sudden disappearance, Ars Technica fought back, and with fan support and a barrage of emails to Facebook staff, the Page was back online by the end of the day with no damage to their fan count or previous content. This example of copyright enforcement illustrates how many holes the DMCA leaves open for content providers to manage. The first and probably most irritating of the problems is that the complaint came from a nameless, faceless entity. To this day, Ars Technica still does not know who filed the complaint or over what content the complaint was filed. Unlike court proceedings, the anonymity of copyright claims gives overwhelming power to the anonymous accuser and the vague infringements detailed by the ISP. An organization cannot possibly know what not to do in the future without specific information about the act they committed. On other sites, there may be more specificity about the content in question (like a video being removed from YouTube), but Facebook’s set-up of Fan Pages with diverse content and media necessitates specificity because it is literally impossible to know what caused the removal. This example also illustrates how badly false claims can damage a site’s viewership and be used maliciously against a target site or group. Ars Technica is lucky that it has a vocal, technically competent fan base that quickly bombarded Facebook with complaints and emails. Smaller businesses and sites, however, can be destroyed by copyright claims when their site goes down or content disappears for several days. Even if they recover from a hot legal battle or have the content restored, the downtime and sums of money spent can cripple many sites, if not shut them down. Veoh.com, a reasonably-sized online TV website, was sued by Universal and IO Group within two years for copyright infringement, and, although it won both suits, the monetary drain forced Veoh to file for bankruptcy.[xii] Even though there are provisions against false claim reporting in the DMCA, legal compensation cannot compensate for the loss of viewers and the threat of being labeled a “copyright infringer.” This gives a faceless entity the ability to shut down businesses, blogs, and online merchants, all without proof of criminal activity.
Many businesses, even those thriving as Internet havens of creativity, are guilty of setting up convoluted intellectual property standards. Polyvore.com, an inspirational fashion and shopping website, allows users to import clothing, decorative elements, and images to create fashion “mood boards” and outfit ideas. The site has over six million unique views a month, and, until recently, any images could be imported into the site from any other online source via a bookmarklet called the “Clipper.”[xiii] Recently, modifications to the Clipper began blocking images from several websites, including flickr.com, blogspot.com, and photobucket.com. To circumvent this procedure, many users save the images to their local computer and upload them to another website. Not all images on these websites are licensed for redistribution; however, all of these websites have thriving communities of works produced under the Creative Commons license that grants reproduction and distribution rights to anyone.[xiv] Unilaterally preventing specific imports restricts end users’ legal rights to redistribute works for which they possess the license. Again, this shows how private entities are restricting the rights of the consumer. In many instances, the works being imported are legal via fair use or simply a permissive license. The real problem, however, is that by circumventing the Clipper’s restrictions on websites and uploading the image elsewhere, the user violates the DMCA’s provisions on DRM by circumventing the coded DRM and now is criminally liable. Faced with the choice of not using the image or putting it elsewhere, people quit in frustration or add the image onto their Tumblr blog to upload anyways. By placing this unnecessary restriction on content, Polyvore forces their users to be less creative by not having access to legal images or to commit a federal crime to expand creativity. Not only is this detrimental to creativity on Polyvore, it clearly goes against the intent of the law and the intent of users who release their content under the Creative Commons.
Implications of Eroded Standards of Copyright
What really enables these sites to behave like this is the extended power of the DMCA over copyrighted materials and the privileges it grants owners of copyright. The creation of the DMCA provisions on DRM means that code now more than ever can be legally used to restrict legal exercises of fair use, and any violation of the DRM is illegal, regardless of the underlying reason. Eager to protect their information from pirates, copyright holders use DRM to restrict how, where, and how many times the end user may use the material without regards to fair use. It is impossible to have a flourishing system of fair use when the DMCA criminalizes legal behaviors. According to Lawrence Lessig, “rather than depend on Congress to bottle up MP3, copyright holders are increasingly likely to turn instead to more efficient code to do the same thing.”[xv] Lessig’s “code is law” mantra captures the systematic failure for legal precedent to dictate how copyright ought be applied in the digital age. Code is now substituting in place of law to determine legal applications of software without question. Outside of the websites, the trend of more restrictive DRMs is easy to see in the gaming industry. Ubisoft’s Assassin’s Creed 2, the sequel to one of the most popular video games of 2009, was released with a unique DRM- players must stay online during single-player mode to maintain connection to the game. If a player’s Internet connection drops out, all unsaved progress to the game will be lost.[xvi] There is no internet-enabled content or gameplay; it serves only as a restriction on the player. In response to Ubisoft’s unreasonable DRM, hackers quickly circumvented the DRM, making a patch available online within twenty-four hours to allow for offline play. Ubisoft alleges that internet connectivity is required to maintain a check on licenses to prevent counterfeit licenses from being used, but their solution seems rather aggressive. Unreliable connections, such as wireless and public connections in airports and coffee shops, will discourage players from playing the game at their leisure even though they own legitimate licenses to it. However, Ubisoft’s rule did nothing to stop the hackers – a workaround was produced in 24 hours, and for many titles, the technology to break the DRM exists before the game is even released. The only individuals who are harmed are the actual consumers who purchased the game. No matter what sort of protections companies place on software or applications, there will be workarounds created for them to allow for fair use of the material. DRM has yet to be shown to actually protect copyright holders; it is only an inconvenience for those who own legitimate licenses to games and other forms of digital interaction.
The DMCA and the aggressive stances of these websites are outdated and hurt the power of copyright. Section 512 of the DMCA allows for the safe harbor provision but is under constant attack from intellectual property holders, and sites are encouraged to be proactive to ensure safe harbor protections. In addition, DRM has shown to be ineffective at stopping copyright violations but effective at inhibiting the rights of legal owners of the software.[xvii] Users who are anxious to use the software will circumvent the rights protection. As the example of Polyvore shows, DRM puts users who want to use software for legal purposes in a double bind – either they do not use the encrypted/coded material to which they are legally entitled, or they illegally circumvent the rights manager and gain access to their content. Patricia Akester, in a fifteen year study, saw how students, libraries, the blind, professors, and consumer organizations (to name a few) all had natural rights restrictions because of unreasonable DRM.[xviii] Fair use in cases of the DMCA becomes a paltry defense to legislation that criminalizes what is already permissible by law. Proponents of DRM would argue that fair use claims are outliers and that they do not occur nearly as often as it seems. Still, fair use is being slighted for the ability of rights holders to maintain absolute control of their work. Stemming from DRM abuse is that these new standards of copyright chill legitimate usage of material and hinder creative expression of ideas. Fair use is supposed to allow creativity, criticism, and use by non-infringing parties but, in the atmosphere of the DMCA, there is a chill preventing such experimentation, along with legal and technological barriers to prevent it. Overall, the reaches of the DMCA encourage people to blatantly disrespect laws that trample on their rights by ignoring DRMs. In direct contradiction to the intents of the DMCA, safe harbors, and DRM, new copyright legislation dismantles respect and legitimacy surrounding intellectual property.
Most importantly, there are no legal precedents set up from private restrictions on copyrighted materials. While the DMCA may guarantee swift removal of illegal content, there is no record of the disputes, former content, or outcomes of the arbitrations. Furthermore, copyright and fair use laws in the United States are complex and are often difficult to interpret. Unlike many criminal acts, there is no clear standard when a violation of copyright has been committed. It takes a team of apt legal scholars, judges, and lawyers to interpret and apply these standards fairly. These issues require considerable familiarity with law, and the DMCA’s standards presume none of these complexities exist. Decisions of guilt are made by business owners, not by legal scholars. Taking this power out of the courts undermines their ability to set legal precedent for copyright disputes. Legal precedent is a vital part of our judicial system. Even if standards existed between companies (which they do not) that were publically available, courts have no access to these standards. Rulings become inconsistent between judges and no history of disputes is recorded. There is no legal standing to determine future interpretations of copyright law.
The question is then: why are citizens running away from the courts and allowing businesses to run rampant with their rights? Several reasons come to mind as to why few fight the copyright monoliths. First, many users are convinced they give up rights by using these sites and that YouTube, Facebook, and the like have the right to remove whatever content whenever they choose. Similar to the first, citizens may believe that copyright is a private arbitration with a business that does not need outside legal counsel. In as much as these restrictions deal with legal precedence and law, they should be addressed by courts that have the specialization to handle legal arbitration. Third, no one knows who is filing claims against them. As shown by the Ars Technica example, claims happen and are then resolved without the accuser ever revealing their identity. Although there are legal repercussions for the false filing of claims under the DMCA, few of these suits are filed. Further, the repercussions of having content taken down is much worse and more difficult to recover from, even with legal compensation. It is also overwhelmingly expensive to take someone to court over fair use violations, and the monetary and personal consequences are enormous if people lose. Individuals facing this almost insurmountable wall of fees will settle to have content taken down or pay a small fee to avoid a much larger, costly lawsuit.
Finally, the biggest problem with copyright arbitration in the private sphere is that citizens do not know their rights well enough to defend themselves against these abuses. Their misunderstanding is perpetuated by many actors with the goal of scaring people away from getting into murky legal battles. The recording industry scares people away from sharing music with threatening posters and lawsuits; YouTube scares people away by saying they can only upload content they “own;” Polyvore scares people into not uploading content from Flickr, even if there is a Creative Commons license on a photo. These scare tactics morph the opinions of copyright law and have fundamentally changed the way consumers think about the right to copyright. Siva Vaidhyanathan shows how the public understanding of copyright has changed from a privilege of monopoly to a right of ownership.[xix] He also discusses the misnomer of copyright as “an inalienable right” rather than a short-term restriction on copyright. Misunderstanding of the law prevents people from asserting their fair use rights of digital goods. All of these factors amalgamate into a giant misunderstanding of copyright law and legal precedent never being set simply because trials are never brought to fruition.
Sources of Hope in Copyright’s Future
Occasionally, solid ground is gained with intellectual property lawsuits that help to work in more reasonable interpretations of these claims over digital content. Apple removed the digital tether to iTunes from their music in 2007 and has recently increased the song sample length to 90 seconds, against the wishes of major recording labels. Google announced the creation of Google Music, a service that allows users to upload music they have on their computers and manage it between multiple devices, such as mobile phones, tablets, and TV PCs.[xx] Users will have to authorize that they own the content before uploading; after that, they can manipulate and store the music on Google’s servers for a small monthly fee. This is an audacious response to increasing pressure from the RIAA to prevent ease of access to music. Amazon has put forth interest in the same market, as they have miles of servers ready for storage. Although Google has conflicting stances on copyright across its websites, it is refreshing to see a company take a stand against DRM and ridiculous stances by other organizations.
When it comes to copyright, online websites are stuck – on one hand they try to be enablers of creativity and free speech online. One the other hand, they are bound to DMCA regulations and the necessity to save themselves from the threat of lawsuits. How can these threats of copyright be prevented from ruining copyright and fair use as two valid, complimentary sets of rights in the digital age? The obvious solution is rethinking copyright legislation and looking to adopt more user-friendly stances on copyright that accurately reflect fair use. Another is more public education on citizens’ rights as content creators and how their content fit into the landscape of copyright and fair use. Litigation for copyright could also be taken out of the private sphere and brought back to the public to ensure that legal precedents are being set. This would enable standardized practices across businesses and higher public awareness of their rights as consumers and producers of material. These options do take time, money, and a fair bit of compromise between the copyright holders and copyright users. I foresee this being the roadblock in actually approaching a reasonable interpretation of copyright law.
[ii] Urban, Jennifer, and Laura Quilter. “Efficient Process or “Chilling Effects”? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act Summary Report.” N.p., 2005. Web. 10 May 2011. <http://mylaw.usc.edu/documents/512Rep-ExecSum_out.pdf>.
[iii] Digital Millennium Copyright Act, 1998.
[iv] This practice is known as “space shifting” or transforming the medium on which the work is stored.
[v] United States. Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works. Washington DC, 2011. Web. 10 May 2011. <http://www.copyright.gov/1201/>.
[vi] This is known as first sale doctrine, established in 1908 by the United States Supreme Court and in 1976 by the Copyright Act
[vii] “Terms of Service – Polyvore.” Polyvore. Polyvore, n.d. Web. 11 May 2011. <http://www.polyvore.com/cgi/terms-of-service>.
[viii] “Upload Video File.” YouTube. YouTube, n.d. Web. 11 May 2011. <http://upload.youtube.com/my_videos_upload>. (Inaccessible unless logged into YouTube)
[ix] Fisher, Ken. “Facebook shoots first, ignores questions later; account lock-out attack works (Update X).” Ars Technica. Ars Technica, 27 04 2011. Web. 11 May 2011. <http://arstechnica.com/business/news/2011/04/facebook-shoots-first-ignores-questions-later-account-lock-out-attack-works.ars>.
[x] “arstechnica.com.” Alexa: The Web Information Company. Alexa, 11 May 2011. Web. 11 May 2011. <http://www.alexa.com/siteinfo/arstechnica.com>.
[xii] Lloyd, Howard R. “IO Group, Inc. v. Veoh Networks, Inc..” Justia.com Filings and Dockets. N.p., 27 08 2008. Web. 11 May 2011. <http://docs.justia.com/cases/federal/district-courts/california/candce/5:2006cv03926/181461/117/>.
[xiii] A bookmarklet is a small applet, accessible by a URL that allows simple tasks to be automatically performed within a website. In Polyvore’s case, the bookmarklet allows users to choose a photo to upload to their site.
[xiv] “About Creative Commons Licenses.” Creative Commons. Creative Commons, n.d. Web. 11 May 2011. <http://creativecommons.org/licenses/>.
[xv] Lessig, Lawrence. “The Code Is the Law.” Lessig.org. The Industry Standard, 09 04 1999. Web. 11 May 2011. <http://www.lessig.org/content/standard/0,1902,4165,00.html>.
[xvi] Gaylord, Christ. “Why Ubisoft DRM for Assassin’s Creed 2 has outraged gamers.” Christian Science Monitor. Christian Science Monitor, 19 02 2010. Web. 12 May 2011. <http://www.csmonitor.com/Innovation/Horizons/2010/0219/Why-Ubisoft-DRM-for-Assassin-s-Creed-2-has-outraged-gamers>.
[xvii] Akester, Patricia. “Technological accommodation of conflicts between freedom of expression and DRM: the first empirical assessment.” Centre for Intellectual Property and Information Law Faculty of Law University of Cambridge, n.d. Web. 12 May 2011. <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1469412>.