Blame Congress’ Patriot Act not the NSA or FBI

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Prism-1When self-proclaimed whistle blower, Edward Snowden disclosed a PowerPoint presentation allegedly detailing the Prism computer system[1] at the heart of foreign data collection program, he set off a firestorm of debate over the role of  clandestine electronic surveillance on individuals outside the United States and the U.S. residents who communicate with them.

In the week that has followed, some clarity has emerged. First, the Prism system is not a code name for a clandestine operation, but the name of the computer system used to collect and store the data. According to the Director of National Intelligence, that computer system operates under Section 702 of the Foreign Intelligence Surveillance Act (FISA) (50 U.S.C. § 1881a).

Section 702 provides that “the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” The reasonable belief focuses on the location of the target, not the threat posed by the target. Most of the other limitations emphasize that this should not be used if the purpose is to target someone inside the U.S.

Nowhere in Section 702 is there a requirement that the information is relevant to an investigation at some level – “specific articulable facts giving reason to believe,” or “reasonable suspicion.” Probable cause is likely not within the realm of possibility. The law allows and even encourages broad, general sweeping of data, which can then be analyzed for patterns and anomalies.

The Section 702 directives are the subject of quasi-judicial review. The FISA Court is comprised of 11 federal judges assigned this additional duty by the Chief Justice of the Supreme Court. This internally appointed judicial panel has operated since 1979. In that time, according to the Wall Street Journal, it has rejected 11 applications for various surveillance requests. During that time, the number of approved surveillance requests has been in excess of 33,900 or an approval rate of  99.97 percent. Without knowing anything more, it is inconceivable that any review process with over 99 percent approvals can constitute a meaningful review.

Harvard Law Professor and former U.S. District Judge Nancy Gertner highlighted the structural problem of the FISA Court.

It’s an anointment process. It’s not a selection process. But you know, it’s not boat rockers. So you have a [federal] bench which is way more conservative than before. This is a subset of that. And it’s a subset of that who are operating under privacy, confidentiality, and national security. To suggest that there is meaningful review it seems to me is an illusion.

The problem, therefore, is not a secret or rogue NSA plot but instead a widely supported provision of the Patriot Act designed to be used precisely as the NSA has been doing. It has executive, legislative and judicial support. But because it is operated by a close-knit association, the separation of powers has proven irrelevant as a limitation on its operation.

Moreover, the Patriot Act has other sections equally potent at eavesdropping on private information. As summarized by the ACLU, FISA Section 215 “allows the FBI to order any person or entity to turn over ‘any tangible things,’ so long as the FBI ‘specif[ies]’ that the order is ‘for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities.’” Section 215 (50 U.S.C. 1801 et seq.)

A secret NSA phone wiretapping order was also released last week highlighting the scope of metadata collection within the U.S. under Section 215.

This FISA Court Order targeting Verizon, required Verizon on an “ongoing, daily basis” to give the NSA information on all telephone metadata in its systems. Since the Section 702 orders deal with foreign data, this Section 215 court order excluded “telephony metadata for communications wholly originating and terminating in foreign countries.” The court order explains the scope of the request:

Telephony metadata includes comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call. Telephony metadata does not include the substantive content of any communication, as defined by 18 U.S.C. [Sec.] 2510(8), or the name, address, or financial information of a subscriber or customer.

Essentially this means that all of us with Verizon phones can be tracked anywhere in the U.S., our interaction with any other parties triangulated, our First Amendment rights of Association violated, and our notion of privacy eliminated. Non-Verizon subscribers likely are subject to identical orders. There is no reason to doubt that these orders are not routinely issued to track all phone and cell phone movement data.

Mary DeRosa summarizes the changes to Section 215 which led to the Verizon court order.

Previously, FISA required the FBI to present the [FISA Court] “specific articulable facts giving reason to believe” that the subject of an investigation was a “foreign power or the agent of a foreign power.” After section 215, the government is required only to assert that the records or things are sought for a foreign intelligence investigation or to protect against international terrorism or clandestine intelligence activities, although the investigation of a United States person may not be “solely upon the basis of activities protected by the first amendment to the Constitution.” There is no requirement for an evidentiary or factual showing and the judge has little discretion in reviewing an application. If the judge finds that “the application meets the requirements” of the section, he or she must issue an order as requested “or as modified.”

Neither the NSA nor the FBI are doing anything other than that approved by Congress. Indeed, were these departments found not to be using the authority granted by Congress, there would be outrage on Capitol Hill. Instead it is the law that has vastly over-extended the government’s reach into the movements and activities of the public, both domestic and foreign.

Moreover, the sweep of the law is growing broader by the day as more and more devices and technologies use remote communications to share information. While it might require a warrant to track a vehicle, the Internet enabled Pandora music player, the self-adjusting oil change settings, and the many other connected technologies are not subject to that warrant requirement. The movement of such cars will be routinely swept into the FBI’s database as part of the Section 215 orders.

The FTC has initiated a review of the ever-growing “Internet of Things,” which is to mean the “growing connectivity of consumer devices, such as cars, appliances, and medical devices.” Combine the power of the FBI and NSA to order metadata and tracking information on all digital data with the interconnectivity of medical devices, RFID-tagged products, installed devices on vehicles, and smart phone apps, a digital map emerges. Like ants in an ant-farm, every person’s digital trail will be on display before the government. Increasingly sophisticated data analytics will eventually enable the path of each individual ant to be highlighted and sorted from among the swarm.

The growing connectivity that has extended the Patriot Act’s reach into more and more aspects of our daily lives require that we revise the laws to reign in the power of government and create a meaningful, statutory right of privacy. These revelations add attention to the problem and highlight the lack of transparency over this tracking. Congress is not shocked at these revelations because they voted to create the programs and have been repeatedly brief on their use. It is the people who have been left in the dark. Given the growth of the programs and the power of the technology they employ, it is time for a more thoughtful, balanced statutory approach.

[1] Reddit.com provided the link to the 2002 New York Times article first describing what is now the Prism computer system. See http://www.reddit.com/r/technology/comments/1g3zqz/the_roots_of_prism_a_new_york_times_article_from/.

DNA Collection on Warrantless Arrests

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DNA Collection on Warrantless Arrests: After Maryland v. King the U.S. Deserves neither Liberty nor Safety

Guest blog by Lindsey L. Jaeger, J.D., S.S.B.B.

Is the collection of DNA the same as collecting fingerprints and photographs, a legitimate police booking procedure under the Fourth Amendment? It is now. Yesterday, in a 5:4 decision the Supreme Court held that it is constitutional to collect DNA when officers make routine warrantless arrests supported by probable cause to hold the suspects for a serious offense.

Of course, we all want to live in a safer society. There is no doubt that DNA “may significantly improve the criminal justice system and police investigative practices…” District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 55.

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons…against unreasonable searches and seizures, shall not be violated.” The question is whether it is reasonable to make these intrusions. The Court seems satisfied that the Maryland DNA Collection Act meets this standard, because it takes the decision to collect DNA out of the hands of a magistrate or officer and instead requires all arrestees charged with serious crimes to be swabbed, and because the Act serves a number of legitimate governmental interests.

However, the Dissent penned by Justice Scalia, focuses on the unconstitutionality of suspicionless searches for the purpose of investigating crimes.  Justice Scalia provided a synopsis of the papers of the Founding Fathers and case history to support his point that “[n]o matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving.” See slip opinion page 36-37. “The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credibility of the credulous.” Id.at page 33.

All fifty states permit the collection of DNA from felony convicts.  Now, DNA samples are permitted to be taken after an arrest without a warrant. Obviously, an arrest does not equate to a conviction.

The Dissent doesn’t delve too deep into the invasion of privacy that a DNA test represents. Is there anything more personal than our DNA? The Electronic Frontier Foundation wrote in its amicus curiae in support of King:

Our DNA contains our entire genetic makeup – our most private information about who we are, where we come from and who we will be. DNA can be used to identify us in the narrow and proper sense of that word – “who is that?” – but it also tells the world who we are related to, what we look like, and how likely we are to get specific diseases.

Fortunately for Marylanders, the Act requires either consent or arraignment of the arrested individual before DNA can be processed or placed into a database. On its face, the Act also has a few other privacy saving graces, including a requirement that DNA samples be destroyed if there isn’t a conviction, or if the conviction is reversed or vacated and no new trial is permitted, or if the individual is granted an unconditional pardon. And fortunately for the rest of us, the Court’s holding limited the decoding of the DNA samples to identification purposes and any information collected about genetic traits are to be disregarded if discovered.

But do we trust that this is the main purpose of the Act?  Justice Scalia showed that “the entire point of [checking the DNA sample against the FBI’s] DNA database is to check crime scene evidence against the profiles of arrestees and convicts as they come in.”  After all, King was arrested in 2009 for “menacing a group of people with a shotgun”, but convicted of a rape that occurred in 2003 after his DNA matched the crime scene evidence from the John Doe aggressor. If King’s DNA was, in fact, to be used to protect the staff and the other detainees, then they would have rushed to identify King with his DNA as soon as possible, but as the Dissent points out under Maryland law, DNA cannot be processed until arraignment, which in King’s case was three days after his arrest.

So, how do you unring a bell? Can the government be trusted to destroy valuable information when it has significant interests in using it against the individual or in the aggregate against us all? We did just recently enact the Affordable Care Act. Do we have such a short memory that we don’t recall that free populaces once elected known supporters of eugenics? After Maryland v. King, we are just upstream of a “Gattaca”.

Benjamin Franklin once said, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” The pendulum hasn’t just swung; it has swung off its axis.

When are video games unlike movies – when publicity rights are at stake

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In a 2-1 vote, the Third Circuit Court of Appeals reversed a district court ruling in favor of EA Sports, finding that the publicity rights of Former Rutgers football player, Ryan Hart, were violated by depicting Hart in the videogame NCAA Football in 2004-06. The decision is a step forward for collegiate players seeking compensation from the exploitation by the NCAA and its licensing partners. The suit highlights the inability for players to receive compensation even after they have left college and NCAA eligibility rules no longer bar them from receiving payment.

The decision is step backwards for free speech advocates who seek clearer and more consistent protection from claims of publicity rights when celebrities and athletes are depicted in communicative works like films and video games. While the decision provides a thoughtful roadmap through the various legal tests applied to publicity rights, the court’s application of New Jersey law is at odds with the same test’s application in California. This will likely lead to increased confusion and more rounds of litigation until new statutes are enacted or cases decided.

The decision focuses on the exactitude of the video game in reproducing the player but unfortunately pays less attention to the exactitude of the Supreme Court/s recent decision in Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011). The Third Circuit quoted Brown on the protection afforded video games under the First Amendment. “[V]ideo games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world).”

Although the court recognizes that “video games enjoy the full force of First Amendment protections,” it highlights the limits of those rights. “As with other types of expressive conduct,” the court explains, “the protection afforded to games can be limited in situations where the right of free expression necessarily conflicts with other protected rights.”

Seeking to apply the best balancing test between the First Amendment and state publicity rights, the court reviews and rejects both the “Predominant Use Test” and the “Rogers Test.” Under the Predominant Use Test, the Missouri Supreme Court held that “[i]f a product is being sold that predominantly exploits the commercial value of an individual’s identity, that product should be held to violate the right of publicity and not be protected by the First Amendment,   even   if   there   is   some ‘expressive’ content in it that might qualify as ‘speech’ in other circumstances.” Unfortunately the Missouri Supreme Court then treated a comic book as such a commercial product and found the use Tony Twist’s likeness a commercial misappropriation when transformed into the evil Anthony “Tony Twist” Twistelli. The Third Circuit correctly rejected this application of such a test.

By our reading, the Predominant Use Test is subjective at best, arbitrary at worst, and in either case calls upon judges to act as both impartial jurists and discerning art critics. These two roles cannot co-exist.

The Third Circuit similarly rejected the Rogers Test, which relies on trademark considerations.

In analyzing the right of publicity claim under Oregon law, the Second Circuit noted Oregon’s “concern for the protection of free expression,” and held that Oregon would not “permit the right of publicity to bar the use of a celebrity’s name in a movie title unless the title was wholly unrelated to the movie or was simply a disguised commercial advertisement for the sale of goods or services.”

The application of the Rogers test to the content of a work almost leads to a finding of free speech, although the content would violate the test where the content was really an advertisement. For example, where the paid ad were an advertorial, a newspaper column of paid content, or in the case of a TV episode which was little more than an infomercial for a forthcoming product. In these cases the content was also a disguised commercial advertisement for sale of goods or services. Unless the content were an advertisement, the Rogers Test would permit the publisher to succeed over the publicity rights.

The Third Circuit adopted the Transformative Use Test developed in California, which is based upon the Copyright Act’s fair use standard. Specifically, that court, in Comedy III Prods., Inc. v.  Gary Saderup, Inc., 21 P.3d 797, 804-08 (Cal. 2001), adopted the first fair use factor, “the purpose and character of the use,” as the sole determinant test to balance the publicity rights claims and free speech claims. In Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)), the Supreme Court explained the meaning of this fair use factor:

whether the new work merely “supercede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.”

The Transformative Use Test has been applied inconsistently in California:

  • Tee-shirts depicting The Three Stooges to be insufficiently transformative to protect the free speech rights of the artist.
  • Comic books depicting Johnny and Edgar Winter as “villainous half-man, half-worm creatures, both with long white hair and albino features” sufficiently transformative to be free speech.
  • Video game depicting musician Kierin Kirby sufficiently transformative to protect Sega’s free speech rights to incorporate her image in a video game.
  • Avatars depicting No Doubt in video game Band Hero were life-like depictions and therefore violation of contractual limitation on publicity rights was a violation of those rights.

The Third Circuit applied this transformative test and in a 2-1 decision found that the literal depiction of Hart’s avatar was insufficiently transformative to protect the free speech rights of the video game makers. The dissent emphasized the video game’s creative and transformative elements as a whole rather than the particular depiction in isolation.

Unfortunately both the majority and dissent ignored this highly inconsistent and arbitrary nature of the Transformative Use Test. Like the Predominant Use Test rejected by the court, the application of the Transformative Use Test remains a rather arbitrary rule. Since both the Hart decision and the Kierin Kirby decision were summary judgment decisions, the courts were basing their decisions on stipulations that the individuals were depicted in the games.

More troubling, if the First Amendment decision of Brown is to be given full effect, then this analysis should apply to television coverage of sports as well. If Hart’s image is exploited in a video game, is it not also exploited when broadcast? The NCAA cannot make any claim to the publicity rights of its former players or players who are no longer eligible under its rules. (Whether the nation’s colleges should be able to strip undergraduates of their privacy and publicity rights as a condition of college eligibility is a broader question best left to a different analysis.) I cannot distinguish between’ Hart’s avatar and a Tina Fey sketch on Saturday Night Live depicting Sarah Palin. Frankly, judges should be empowered to make that distinction either.

I have advocated for a different outcome,[1] based more closely on the Rogers Test of the Second Circuit that emphasizes that publicity rights only exist when the name or likeness is used for a commercial transaction. As such newspapers, news broadcasts, comic books and video games are immune from publicity rights claims unless they are used to promote a commercial transaction, in other words, they are a disguised advertisement for sale of a good or product.

In addition, a second category of commercial appropriation similarly exists when substantially then entire person’s act is exploited. Thus if a news station were to broadcast all of a concert under the guise of covering that concert, it would steal the commercial exploitation of the work itself. That approach accommodates the Supreme Court decision in Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977). In Zacchini, the entire act of the Human Cannonball was broadcast on the news and Zacchini sued for damages as a result. The Supreme Court explained that free speech rights must provide balance with state publicity rights, agreeing that a cause of action for Zacchini’s right of publicity was appropriate under Ohio law.

When a publisher of communicative content takes a substantial portion of the commercial work, then a fair use style balancing is essential to be sure that the communicative work has not usurped the marketplace of the commercial work. Such a test will protect the magicians, comedians, musicians, poets, and trapeze artists of the world. Depicting an athlete in a video game or in a fantasy sports league hardly usurps the athlete’s entire performance; it remains communicative rather than a product or service. It should not matter whether the depiction is accurate or transformed, for that decision is precisely an aesthetic decision inappropriate for determination by judges and courts.

The Hart decision may increase the importance of the Transformative Use Test outside of California, but it does not provide a more thoughtful or more predictable distinction between free speech and publicity rights. The time for a uniform state statute is finally at hand.

[1] Garon, Jon M., Beyond the First Amendment: Shaping the Contours of Commercial Speech in Video Games, Virtual Worlds and Social Media (November 20, 2011). Available at SSRN: http://ssrn.com/abstract=1962369 or http://dx.doi.org/10.2139/ssrn.1962369;

Garon, Jon M., Playing in the Virtual Arena: Avatars, Publicity and Identity Reconceptualized through Virtual Worlds and Computer Games (March 26, 2008). Chapman Law Review, Vol. 11, No. 3, 2008. Available at SSRN: http://ssrn.com/abstract=1334950 or http://dx.doi.org/10.2139/ssrn.1334950.

W. Bruce Lunsford contribution to create Academy for Law, Business + Technology

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With apologies for posting a press release as a blog post, the news that W. Bruce Lunsford has pledged $1 million to Chase under the direction of the Law + Informatics Institute for the creation of the the W. Bruce Lunsford Academy for Law, Business + Technology is exciting enough for us to share our news.

HIGHLAND HEIGHTS, Ky. (May 15, 2013) — The Northern Kentucky University Chase College of Law has received a $1 million gift from W. Bruce Lunsford to establish and support the W. Bruce Lunsford Academy for Law, Business + Technology.

Lunsford, a 1974 graduate of Chase College of Law, is chairman and CEO of Lunsford Capital, LLC, a private investment company headquartered in Louisville, Ky.

The W. Bruce Lunsford Academy for Law, Business + Technology will be an honors immersion program operated by the NKU Chase Law + Informatics Institute. The focus of the program will be to develop “renaissance lawyers” for the Information Age. The Lunsford Academy will provide students with the technological, financial and professional skill sets essential to the modern practice of law.  Through the program’s technology-driven, skills-based curriculum, students will acquire the fundamental skills that will make them more productive for their clients, more attractive to employers and better prepared to practice law upon graduation.

For those interested in learning more about the details of the program, the most comprehensive vision is provided in my forthcoming article from Connecticut Law Review. An working draft of the paper may be found here: Jon M.Garon, Legal Education in Disruption: The Headwinds and Tailwinds of Technology, (Conn. L. Rev. forthcoming) at SSRN: http://ssrn.com/abstract=2040560.

In addition to taking the program’s required and elective law and informatics courses, Chase students participating in the Lunsford Academy will have the opportunity to participate in technology-focused semester-in-practice placements and study abroad programs; they will also be able to seek joint degrees.

Chase College of Law partners with the NKU College of Informatics to offer a Juris Doctor/Master of Business Informatics and Juris Doctor/Master of Health Informatics and with the NKU Haile/US Bank College of Business to offer a Juris Doctor/Master of Business Administration.

Professor Jon Garon, director of the Law + Informatics Institute, said the development of the Lunsford Academy is the next step in the evolution of legal education. “In addition to a solid foundation in legal doctrine, theory and practice, law students need business education, information technology and intellectual property knowledge, and law practice management experience,” he said. “These skills will enable students to compete in today’s highly networked, efficient and global business community. The generous donation by Bruce Lunsford enables Chase to meet this challenge and redefine the scope of legal education.”

In recognition of Lunsford’s gift, the academy will be named the W. Bruce Lunsford Academy for Law, Business + Technology, upon approval by the NKU Board of Regents.

“We are extremely honored and pleased that Bruce has made this significant investment in our Law + Informatics Institute,” said Dennis R. Honabach, dean of the College of Law. “The Lunsford Academy will provide our law students with invaluable opportunities to become uniquely prepared for the modern practice of law.”

One year later – DRM-free ebooks hugely positive for Tor

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New York Times technology columnist David Pogue discussed the decision last year by Tor Books UK and US to drop copy protection. It just released a statement regarding the effect of the DRM-free ebooks after one year.

His column deftly discusses the tension between consumers who want the inconvenience of encryption eliminated and concerns that DRM targets lawful consumers far more than those acquiring illegally distributed copies. Although he does not address the plethora of DRM-free versions on bit torrent sites, he notes that the changes to DRM for commercial products might affect the rate of piracy, but not the existence of piracy.

The Tor announcement highlighted a few other features of their strategy. First, the strategy was about their authors and the goals of the authors to engage more effectively with their readers. Secondly, as a science fiction imprint, their readership is among the most capable of getting DRM-free copies, so the publisher needs to make the consumer happy more than it needs to protect itself from the consumer. And finally, the decision to eliminate DRM does not mean that the works are not for-profit, on-sale copies. This statement captures many of Tor’s concerns:

We had discussions with our authors before we made the move and we considered very carefully the two key concerns for any publisher when stripping out the DRM from ebooks: copyright protection and territoriality of sales. Protecting our author’s intellectual copyright will always be of a key concern to us and we have very stringent anti-piracy controls in place. But DRM-protected titles are still subject to piracy, and we believe a great majority of readers are just as against piracy as publishers are, understanding that piracy impacts on an author’s ability to earn an income from their creative work. As it is, we’ve seen no discernible increase in piracy on any of our titles, despite them being DRM-free for nearly a year.

Pogue suggests but does not state outright that DRM is an ineffective strategy for reducing piracy. But he is very explicit that the point of an anti-piracy policy is to increase sales and revenue. DRM-free does not mean without cost. iTunes sells its music even though it dropped DRM. He also points out that his own books have had fared similarly in the market.

If book consumers thought that everyone in the household could easily read the same book (in the manner that a family can share a physical book), it might be more willing to spend money to own the ebook. For works that have no physical cost, the increase in unauthorized copies is not the right metric. The right question is whether more customers will purchase the work. If more copies are sold, the work is more successful, even if more copies are also pirated.

Pogue makes another strong point that the ease of the transaction directly impacts sales. “Friction also matters. That’s why Apple and Amazon have had such success with the single click-to-buy button. To avoid piracy, it’s not enough to offer people a good product at a fair price. You also have to make buying as effortless as possible.” High transaction costs are reasonable only for expensive, infrequent purchases. Weight is a normal force on friction; only weighty purchases should have high friction.

Finally, Pogue addresses the pricing of ebooks. Frankly, he is more generous to the publishers than I would be on this issue by acknowledging the costs associated with “author advance, editing, indexing, design, promotion, and so on” but like the music industry, the investments are declining. The public is likely to value the fair price point of an ebook as a percentage of its physical counterpart. If the physical copy has a secondary market in the used bookstore, then the loss of resale also needs to be factored in for the consumer. Otherwise the consumer is only paying for the convenience of instant access, and if the instant access is undermined by cludgy DRM, there is no value to be had.

Tor heard this from its constituents:

But the most heartening reaction for us was from the readers and authors who were thrilled that we’d listened and actually done something about a key issue that was so close to their hearts. They almost broke Twitter and facebook with their enthusiastic responses. Gary Gibson, author of The Thousand Emperors tweeted: “Best news I’ve heard all day.” Jay Kristoff, author of Stormdancer, called it “a visionary and dramatic step . . . a victory for consumers, and a red-letter day in the history of publishing.”

Tor never says it has become more profitable, but the company does relish the role it is taking in leading the publishing industry towards a more consumer-friendly business model.

The move has been a hugely positive one for us, it’s helped establish Tor and Tor UK as an imprint that listens to its readers and authors when they approach us with a mutual concern—and for that we’ve gained an amazing amount of support and loyalty from the community. And a year on we’re still pleased that we took this step with the imprint and continue to publish all of Tor UK’s titles DRM-free.

So the lesson from Tor is simple – for low-cost impulse purchases DRM doesn’t add value. High quality, fairly priced, and easy to access works will continue to attract a growing market. These are the points of emphasis and differentiation for the marketplace. DRM may be a legal solution, but it is not a sound business strategy.

Comprehensive Copyright Review – The First Steps of a Very Long Journey

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House Judiciary Committee Chairman Bob Goodlatte has announced that the Judiciary Committee will conduct a comprehensive review of U.S. copyright law over the coming months. The comprehensive review is not any particular legislative agenda, but it will serve as an open invitation to content industries, technology industries, and the public in a way that likely never occurred in any of the Copyright Act’s prior legislative reforms.

Chairman Goodlatte emphasized the evolution of technology and media in his remarks:

The discussions during the early 1900’s over the need to update American copyright laws to respond to new technology were not the first time such discussions occurred and they will certainly not be the last. Formats such as photographs, sound recordings, and software along with ways to access such formats including radio, television, and the Internet did not exist when the Constitution recognized intellectual property. My Committee has repeatedly held similar discussions about new forms of intellectual property as they arose and enacted laws as appropriate. Driven by new technologies and business models, a number of changes to copyright law went into effect in 1976.

copyright officeNo one should expect immediate legislation. As Register of Copyrights, Maria Pallante noted in her recent congressional testimony “a major portion of the current copyright statute was enacted in 1976. It took over two decades to negotiate, and was drafted to address analog issues and to bring the United States into better harmony with international standards, namely the Berne Convention.” Even there, the effective date for U.S. adherence to the Berne Convention took until March 1, 1989.

In the decades of negotiation over copyright reform in the past, the tension was primarily between commercial interests of the content industries – film, television, music, and publishing industries with the trade unions, authors, and creative interests. But that focus has shifted dramatically with the rise of the information age.

The defeat of SOPA highlighted the tension between the technology industries – led by the ISPs, Google, Apple, Microsoft, eBay, Facebook, and Wikipedia with the content industries. In this fight, the content industries continue to lose. They could not push ACTA and they have lost in the courts over first sale in Kirtsaeng v. John Wiley & Sons, secondary liability in Viacom Int’l v. YouTube Inc. and Tiffany v. eBay, Inc., and many others.

Even more importantly, the rise of social media and the role copyright now plays – or interferes – in the daily lives of ordinary citizens means that the public’s interest in this debate will be higher than ever. Organized by social media companies like Facebook, LinkedIn, Twitter, Google and hundreds of others, the public will be exhorted to be heard every time they log on or check in. This is a great change for democracy. But we shouldn’t forget that those intermediaries are also the very technology companies that have their own stake in the outcomes.

Register Pallante has indicated some of the critical issues before the Judiciary Committee (though the explanation and approach is mine, not Register Pallente’s):

  • First sale doctrine – which could include both (i) a review of Kirtsaeng (2013) which internationalized first sale, and (ii) technologies that allow for a digital forward-and-delete that mimics first sale in the online environment;
  • Orphan works – questions about how to handle works for which the ownership information or the transfers of ownership have been lost;
  • Library exceptions – addressing digital collections and the ability to gain far greater usage out of far fewer copies;
  • Statutory licensing reform – on rate setting and rates;
  • Federalization of pre-72 sound recordings – resolving the issues involving retroactive pseudo-copyright protection for these works and the implications on the public domain;
  • Resale royalties for visual artists – addressing the conflict with those states which provide these rights and potentially creating national legislation;
  • Copyright small claims procedure or courts – adding a mechanism for copyright to be enforceable for small scale claims; and
  • Mass digitization of books – addressing the myriad of problems triggered by the intermediate copyright violations of works, the fair use of showing snippets, the procedural issues in the project, and many other concerns.

This list does not include many other potential areas for reform, including some of my preferred topics:

  • Explicit free speech and human rights accommodations for the statute, since copyright and First Amendment issues increasingly intersect;
  • Expanded fair use or copyright exemptions codified under Section 110 for digitization, reverse engineering, comparative advertising, and others;
  • Anti-circumvention (DMCA) reform to prohibit its use for use in commercial products – such as cars, printers, garage doors, and other goods;
  • Expanded registration requirements so that most of the economically insignificant works people create daily are outside of the copyright regime;
  • Statutory Damage Reform to tie statutory damages more closely to actual damages and separate commercial infringers from consumers;
  • Mandatory cease-and-desist system so that no one can be sued for copyright damages unless they have been notified directly the conduct is infringing and continue, after a reasonable opportunity to cure has been provided; and
  • Broader non-commercial exceptions to copyright analogous to the public/private distinction of the 1909 Act.

Copyright needs to continue to adjust to address these issues. While the system is not broken, there are many strains. Again, from Chairman Goodlatte:

There is little doubt that our copyright system faces new challenges today. The Internet has enabled copyright owners to make available their works to consumers around the world, but has also enabled others to do so without any compensation for copyright owners. Efforts to digitize our history so that all have access to it face questions about copyright ownership by those who are hard, if not impossible, to locate. There are concerns about statutory license and damage mechanisms. Federal judges are forced to make decisions using laws that are difficult to apply today. Even the Copyright Office itself faces challenges in meeting the growing needs of its customers – the American public.

It will be important to be heard on these issues and to think carefully about a system that is good for today’s issues, tomorrow’s challenges and the decades of unanticipated changes the new law will cover.