Harvard Law Professor Sends Message on Copyright in the Digital Age…and it Requires an Answer in 21 Days

Lawrence Lessig , copyright scholar and Harvard Law School professor, sued Liberation Music in federal court last week seeking damages for Liberation’s “knowing and material misrepresentation that’ he ‘infringed Liberation’s copyright interests.”

 

Lessig, who posts many of his “Open” lectures on YouTube, included in one such lecture clips from videos created by amateurs, which all include people dancing to the song, “Lisztomania,” by the French band, Phoenix.  Liberation, who claims the right to license the song, submitted a Digital Millenium Copyright Act (DMCA) takedown notice to YouTube claiming that it was hosting material that infringed Liberation’s copyright in the song.  Recall that pursuant to §512 of the DMCA online service providers are granted a “safe harbor” as long as they meet certain requirements.  These requirements include maintaining a notice and takedown system that allows owners of copyrighted material to submit a “takedown notice” to the provider.  Among other requirements, the party submitting the notice must assert a “good faith belief” that the material’s use on the site is not authorized by either the copyright owner or the law.

In his complaint, Professor Lessig argues that Liberation knows that his use of the song, in association with the clips, is consistent with a fair use affirmative defense and, consequently, does not infringe.  The statutory factors when making a fair use analysis include (i) the purpose and character of the use; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (iv) the effect of the use on the potential market for or value of the copyrighted work.  The complaint goes on to analyze the factors as follows: (i) the purpose and character is non-commercial and highly transformative as it is meant to educate and not entertain or make money, (ii) the nature is creative, which ordinarily leans toward the copyright holder, but in this case Lessig’s use of the song did not compromise “Phoenix’s or the defendant’s rights to control the first appearance of the song, (iii) the amount was minimal, ranging in length from 10 seconds to 47 seconds, and (iv) there was no market harm as the “Open” lecture “is not a market substitute for the song’ and ‘the lecture did not harm any market for the song.”

Per the complaint, Lessig claims to have been injured in the form of financial and personal expenses, harm to his free speech rights under the First Amendment and attorneys’ fees and costs.

An article about the suit in The Boston Globe notes that Daniel Nazer, an attorney with the Electronic Frontier Foundation, who is also listed on the complaint, “said the lawsuit is about more than an academic lecture on YouTube; the plaintiffs want to send a message about how copyright law is used in the digital era.”    

North Carolina Appellate Court Finds Ban on Sex Offenders’ Use of Social Media Unconstitutional.

A North Carolina appellate court found a state law banning registered sex offenders from commercial social networking sites, which also permit minors to become members or maintain personal web pages, to be unconstitutional. The opinion, written by Judge Rick Elmore who was joined by Judge Martha Geer and Judge R. Christopher Dillon, held that the statute “arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal.”

The appeal was brought by a registered sex offender who was found guilty of maintaining a personal web page or profile on Facebook.  In keeping with the new law, members of the Durham Police Department investigated profiles on sites such as Facebook and Myspace for evidence of use by registered sex offenders and recognized the defendant who was subsequently indicted.  It was argued on appeal that the NC statute violated the defendant’s federal and state constitutional rights to free speech, expression, association, assembly, and the press under the First and Fourteenth Amendments.  Moreover, the defendant argued that the statute was overbroad, vague and not narrowly tailored to achieve a legitimate government interest.

The court noted that the law was content-neutral to the extent it banned access to commercial social networking sites without any reference to the content or type of speech disseminated or posted on the site.  Citing to the U.S. Supreme Court decision in Ward v. Rock Against Racism, the court noted that “Content-neutral regulations are subject to intermediate scrutiny: they must be both ‘narrowly tailored to achieve a significant governmental interest’ and ‘leave open ample alternative channels for communication.”  The court did not need to address the issue of “alternative channels of communication” as it found the statute not to be narrowly tailored.  “The U.S. Supreme Court has stated that a narrowly tailored statute ‘targets and eliminates no more than the exact source of the evil it seeks to remedy.  A complete ban can be narrowly tailored, but only if each activity within the proscription’s scope is an appropriately targeted evil” wrote Judge Elmore citing to the 1988 U.S. Supreme Court opinion in Frisby v. Schultz.  He continued, citing to a similar case in Nebraska dealing with a 2012 statute, that “[T]he ban potentially restricts the targeted offenders from communicating with hundreds of millions and perhaps billions of adults and their companies despite the fact that the communication has nothing whatsoever to do with minors.”  The NC court also noted that similar decisions in both Nebraska and Indiana were applicable only to those registered sex offenders whose offenses involved a minor whereas the North Carolina statute had no such limitation.

The North Carolina Court of Appeals also found the law to be both vague and overbroad noting that “while persons of ordinary intelligence would likely interpret the statute as prohibiting access to mainstream social networking sites such as Facebook.com and Myspace.com’…’the ban is much more expansive.”  “For example, while foodnetwork.com contains recipes and restaurant suggestions, it is also a commercial social networking Web site because it derives revenue from advertising, facilitates the social introduction between two or more persons, allows users to create user profiles, and has message boards and photo sharing features,’’ all of which are consistent with the characteristics included in the statute’s definition of a “Commercial networking Web site.”

You can read the court’s opinion here.    

Twitter’s IPA Part of Conversation on Patent Protection and Its Use

Twitter recently launched version 1.0 of the Innovator’s Patent Agreement or “IPA.”  The IPA is meant to establish a standard, but evolving, document that companies can sign on to in order to clearly establish how company developed patents will be maintained and used.

A couple of key points covered by the IPA include the following:

·                    The company agrees not to bring any claims of one or more patents except for “Defensive Purposes”; and

·                    The IPA grants inventors, often employees of the company, a license enabling them to grant non-exclusive sublicenses.

Twitter has agreed to adopt the IPA overall with respect to its patenting practices, but companies can also elect to adopt the agreement on a case by case basis depending upon its circumstances and business models.  Generally speaking, the purpose of the document is to help foster more open and innovative development, especially in the software community and to help shape the discussion related to the current state of the patenting process and act as a means to slow down and counter the effects of “patent trolls” or non-practicing entities.

Some have expressed reservations about the various carve outs and ambiguities present in the document including the agreement’s definition of “Defensive Purposes,” which includes the right to bring claims against entities that (i) file, maintain, threaten or voluntarily participate in a patent suit against the company, (ii) file, maintain, threaten or voluntarily participate in a patent suit against anyone in the past ten years, unless brought defensively, and those suits  (iii) brought to deter a patent litigation threat against the company, users, affiliates, customers, suppliers or distributors.  One can imagine the broad interpretation that can be used in conjunction with deterring a patent litigation.

In any event, Twitter’s initiative makes a substantive contribution to the ongoing discussion regarding the proper role of intellectual property and the way its protection and use should be maintained and, when necessary, enforced.

The actual IPA can be found here.  In addition, a comprehensive piece on the IPA can be read at Jolt Digest of the Harvard Journal of Law and Technology. 

Magistrate's Order Raises First Amendment and Other Issues

First Amendment of the U.S. Constitution

I have given a good deal of thought as to whether this blog is an appropriate forum to write on this subject and decided it is.  While social media law obviously touches on many practice areas, perhaps its most foundational is that of free expression.  After all, social media is about expression, the immediacy with which our views can now be communicated, whether those views are ordinary or idealistic, and the potential consequences of using social media platforms to bring our views to others.  It is with this in mind that I bring to your attention a truly extraordinary order issued by a Tennessee Child Support Magistrate this week.

It seems Tennessee Child Support Magistrate, Lu Ann Ballew ordered that the first name of a seven month old infant be changed from Messiah to something else.  Specifically, she ordered it changed from Messiah to Martin. According to reports, Magistrate Ballew stated that “the word Messiah is a title and it's a title that has only been earned by one person and that person is Jesus Christ.”  Whether what appears to be Magistrate Ballew’s view on religion and baby names serves as a proper basis for judicial action, we can of course defer to the Tennessee appellate court to decide and parse out the various First Amendment issues present in her order.  However, I would like to point to another statement Magistrate Ballew made in support of her decision.  She said, “It could put him at odds with a lot of people and at this point he has had no choice in what his name is.”  This is of particular interest in that it raises the issue of whether the power of the state may/can/should be used to limit expression on the part of a parent in order to protect a child from the persecution or ill will of third parties.  It’s reported that Magistrate Ballew stated that the decision was best for the child as he will be growing up in a largely Christian county and, consequently, at least in Magistrate Ballew’s view, will be subject to ridicule for having been given the audacious name of Messiah.  Magistrate Ballew’s order, if we are to follow it to its logical conclusion, is meant to protect Messiah, or rather Martin, from the persecution directed at him by certain members of society who believe that those named Messiah should be the target of persecution.

One can only wonder if Magistrate Ballew is familiar with the 1984 case decided by the U.S. Supreme Court, Palmore v Sidoti, 466 U.S. 429 (1984). While Palmore dealt with race and adoption, and consequently drew the scrutiny and analysis required by such cases, a line in the majority opinion offered by Chief Justice Burger is informative.  The Chief Justice wrote, “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”  While the equal protection clause may not be at issue in the Tennessee case, Chief Justice Burger’s admonition is still instructive, namely that the law is not meant to contemplate and then assist in the advancement of private biases as doing so can ultimately lead to the entrenchment of those biases rather than their dismantling.

While our expression has consequences, arguably on a minute to minute basis on social media platforms, so does the restriction of that very expression when it is sanctioned and empowered by the state and those meant to impartially carry out the readily apparent constitutional principles upon which our legal system is based.     

According to the Social Security Administration, Messiah was number four among the fastest growing baby names in 2012, so Magistrate Ballew might have her hands full.

You can read more about this case here.

FBI Pressuring ISPs to Install Surveillance Software

In a fascinating article by Declan McCullagh, CNET is reporting that the U.S. government is “pressuring” telecommunications providers to install eavesdropping software on their internal networks in order to assist in governmental surveillance activities.  Apparently, the FBI has asserted that the software’s interception of metadata is authorized under the Patriot Act. It remains unclear; however, to what extent these “port carriers” have actually been installed by carriers.  According to McCullagh, AT&T, T-Mobile, Verizon, Comcast and Sprint have all declined to comment.  “A government source familiar with the port reader software said it is not used on an industry-wide basis, and only in situations where carriers’ own wiretap compliance technology is insufficient to provide agents with what they are seeking,” writes McCullagh.

Generally speaking, police and other investigative agencies are required to obtain a court order to intercept the content of real-time communications.  In addition to email, this would include information available via social media platforms, such as Facebook and others.  It is important to understand the distinction between information that falls into the pen register category and that which falls into the more substantive, content category.  Pen register type data includes metadata, such as “IP addresses, email addresses, identities of Facebook correspondents, web sites visited, and possibly search terms as well.”  Access to pen register has historically required a lower bar for access by investigators than other forms of investigative practices, such as wiretapping where full blown communications can be monitored.

The concern with the software that would be used by the carriers at the government’s prodding is that the software might collect more information than would necessarily fall under a pen register type of collection.  According to a source cited in the article, “the FBI wants providers to use their existing CALEA [Communications Assistance for Law Enforcement Act] compliance hardware to rout the targeted customer’s communications through the port reader software. The software discards the content data and extracts the metadata, which is then provided to the bureau.”

The CNET article can be found here. http://news.cnet.com/8301-13578_3-57596791-38/fbi-pressures-internet-providers-to-install-surveillance-software/