Hollywood v the Internets

Australian copyright law has a new landmark decision as of this morning, with Justice Cowdroy of the Federal Court of Australia handing down his decision in the Roadshow Films v iiNet Limited case, in which the misleadingly-named Australian Federation Against Copyright Theft (AFACT) sued iiNet, Australia's third-largest ISP, alleging copyright infringement. The case is significant in several ways both for ISPs and for operators of Internet services in Australia.

AFACT is a consortium of Hollywood movie studios who alleged that iiNet customers infringed copyrights owned by them in certain films by distributing copies via the BitTorrent file sharing protocol, and that iiNet itself had infringed by authorising its customers' infringements. AFACT had engaged an anti-piracy software firm to track the transmission of films over BitTorrent by IP addresses allocated to iiNet, and had then sent notices to iiNet warning them of the infringements and requesting that the ISP take action against the customers concerned. iiNet argued that it had not authorised any infringements. It also argued that privacy provisions in telecommunications legislation prevented it from acting upon any notices sent to it, and alternatively that it was protected from litigation by safe harbour provisions in copyright legislation.

Cowdroy J today held that while iiNet customers had infringed copyrights owned by AFACT members, iiNet had not authorised these infringements, for three reasons:

1. that one can distinguish "the provision of the 'means' of infringement compared to the provision of a precondition to infringement";
   
2. that any scheme for acting on AFACT notices would not constitute a relevant power or a reasonable step available to prevent infringement (within the meaning of s 101(1A) of the Copyright Act, which sets out factors that must be considered in assessing authorisation); and
   
3. that iiNet did not sanction or approve of copyright infringement by its customers.
   

Cowdroy J held that the means of infringement in this situation was the BitTorrent system (the protocol, trackers and clients) and not iiNet's network, thus distinguishing classic authorisation cases such as University of New South Wales v Moorhouse (involving a university library that provided photocopiers for the use of library patrons) as well as more recent Internet-centric cases such as Universal Music v Sharman Licence Holdings (in which Sharman was found to have authorised infringements via its Kazaa file-sharing software, with which Sharman both refrained from preventing infringement and actively encouraged infringement).

Distinguishing in this way the ultimate means from mere preconditions injects some clarity into the test for authorisation, which has largely revolved around degrees of control and of encouragement (Cowdroy J's second and third reasons mentioned above go to this classic test). This approach was obviously advantageous for iiNet. However, for operators of services such as wikis and social-networking sites, this approach would seem to render it more likely that they would be found to be authorising any copyright infringements by users, by providing the means of infringement such as a file upload facility or the ability to edit pages.

Without authorisation AFACT's case thus failed, however Cowdroy J went on to consider iiNet's other arguments in its defence anyway, in the event of an appeal (which would seem highly likely). He held that iiNet would not have been protected by s 112E of the Copyright Act, which protects telecommunications providers from being held to authorise infringement merely through providing the telecommunications service used to carry out the infringement. However, he found that iiNet would have been protected by the safe harbour provisions in the Copyright Act (s 116AA ff) because it had a "reasonably implemented" policy for dealing with repeat infringers.

These safe harbour provisions were based on the United States' OCILLA safe harbour provisions, although while the American provisions extend to "online service providers" (including website operators) the Australian ones are limited to "carriage service providers", that is, ISPs themselves. To my knowledge this is the first case to seriously address these provisions, and Cowdroy J notably utilised American OCILLA jurisprudence in doing so. Thus it seems that the safe harbour provisions will provide reasonably strong protections for ISPs, although with the current form of the legislation, this is of little comfort to online service providers.

The decision is significant in the context of Australian copyright law, and will be a boon for ISPs operating in Australia. However, for online service providers (such as operators of wikis), the substance of the decision will only serve to underline their precarious legal position in Australia, as opposed to their American counterparts, when it comes to copyright infringement by users of their services. They are not protected by safe harbours, and a "means"-based test for authorisation may well be worse than the more traditional control/encouragement test, if indeed it replaces it (it may merely augment it).

The silver lining however may be in Cowdroy J's rhetoric. His discussions of AFACT's nature and objectives, of its arguments and trial conduct, and of its attempt essentially to foist upon iiNet a positive obligation to protect its members' copyright interests, are enlightening. Robert Corr extracts some choice quotes here. Following last year's even more significant landmark decision by the High Court of Australia in the epic IceTV case, there would seem to be a healthy desire, in certain quarters of the legal community, to reevaluate some of the more extremist trajectories in Australian copyright law.

Maryland court rejects identification subpoena

Zebulon Brodie, a franchisee for Dunkin' Donuts, sued Independent Newspapers (operator of the Newszap.com classifieds and forums website) and three pseudonymous members of the site for defamation and conspiracy to defame, after the three participated in a forum thread in which the cleanliness of the store was critiqued.

The liability of Independent Newspapers (IN) was fairly easily resolved: the trial judge found that the company, as the provider of an "interactive computer service", could not be treated as the publisher or speaker of the forum postings due to s 230 of the Communications Decency Act, and as such could not be liable in defamation for the postings' contents. This provision has protected a range of service providers from liability for defamation and similar actions, including the Wikimedia Foundation itself.

However, the liability of the three pseudonymous users is a different story, and it was this issue that has been contentious in the case. The Newszap website required users to register before using the forums, and Brodie sought, by way of a subpoena, to compel IN to identify a total of five pseudonymous users who had participated in the forum thread. In turn, IN sought motions to quash the subpoena, and for a protective order to be issued; however, the trial judge rejected those motions, and ordered IN to identify the users.

The Maryland Court of Appeals overturned that order in a decision published this week (PDF). The basis for the decision was that three of the users did not make any comments that were actionable in defamation, and the other two, though they did make arguable actionable remarks, were not actually named as defendants in Brodie's original complaint (and by the time the case had proceeded to that point, any action against the two was barred by limitations provisions).

Though the case was thus resolved on an essentially procedural point, the Court of Appeals nevertheless went on to discuss the underlying question of when anonymous or pseudonymous users in such sitautions should be identified, and offered some guidance to lower courts.

All seven judges agreed on four steps that should be undertaken by courts considering defamation actions involving anonymous or pseudonymous defendants, where disclosure is sought:

1. require the plaintiff to make efforts to notify those defendants of any subpoena or application to disclose their identity - in the context of Internet forums, by posting a message there;
   
2. allow those defendants reasonable opportunity to oppose the application;
   
3. require the plaintiff to clearly identify the speech said to be actionable in defamation; and
   
4. determine whether the plaintiff has advanced a prima facie case against those defendants.
   

However, four judges comprising the majority went further, and added a fifth step that courts should undertake: if all the other requirements were satisfied, the court should weigh the strength of the prima facie case against the anonymous or pseudonymous defendants' First Amendment rights.

First Amendment jurisprudence concerning free speech has tended to recognise that an author's decision whether or not to disclose their identity may be protected as much as the content of their speech itself. In practice, this has translated into, for example, the Supreme Court of the United States striking down a local council ordinance forcing anyone soliciting door-to-door (in that case, Jehovah's Witnesses) from identifying themselves and obtaining a permit before doing so. While anonymity, like any other aspect of the right to free speech, does not protect speech which is defamatory, the majority were keen to point out that anonymous or pseudonymous posters have a right "not to be subject to frivolous suits for defamation brought solely to unmask their identity." In their view, the additional balancing test, beyond the prima facie requirement, was necessary to give adequate protection to this right. A lower standard of protection, in their view, "would inhibit the use of the Internet as a marketplace of ideas, where boundaries for participation in public discourse melt away."

The three judges who dissented as to the need for the balancing test were of the view that the prima facie requirement provided sufficient protection of First Amendment rights, given that they are already taken account of in the ordinary law of defamation. Judge Adkins, writing for the minority, cautioned that "the majority decision invites the lower courts to apply, on an ad hoc basis, a 'superlaw' of Internet defamation that can trump the well established defamation law."

The case is an interesting example of the way in which computer services providers who are protected by section 230 nevertheless have a significant role to play in legal processes that reach past them to target users of their services. The court also placed emphasis on ensuring that anonymous or pseudonymous users have an opportunity to participate in legal processes before their identity is disclosed. As a consequence, providers are not merely passive targets for subpoenas, nor must they be zealous defenders of all users of their services; rather, they have an important mediative role.

US court groks free content licensing

The US Court of Appeals for the Federal Circuit handed down an interesting and significant decision on Wednesday, which could have a number of valuable implications for the validity of free content licences.

The case, Jacobsen v Katzer, was about software for interfacing with model trains. Robert Jacobsen is the leader of the Java Model Railroad Interface project (JMRI), which releases its work under the Artistic License 1.0; Matthew Katzer (and his company Kamind Associates) produce commercial model train software products. It was alleged that either Katzer or another employee of Kamind took parts of the JMRI code and incorporated it into its own software, without identifying the original authors of the code, including the original copyright notices, identifying the JMRI project as the source of the code, or indicating how it had modified the original JMRI code.

Jacobsen sought an interlocutory injunction, arguing that since Katzer and Kamind had breached the Artistic License, their use of the JMRI code constituted copyright infringement. However, the District Court considered that Jacobsen only had a cause of action for breach of contract, not for copyright infringement, and because of this Jacobsen could not satisfy the irreparable harm test (in the case of copyright infringement, irreparable harm is presumed in the 9th Circuit), and was not entitled to an injunction.

Jacobsen's appeal to the Court of Appeals was against this preliminary finding. An assortment of free content bodies (including Creative Commons and the Wikimedia Foundation) appeared as amici curiae in the case, submitting an interesting brief containing a number of arguments that the Court of Appeals seemed to agree with.

The legal issue at stake in the appeal concerned the difference between conditions of a contract and ordinary promises (covenants, in US parlance). If a term in a contract is a condition, then the promisee has a right to terminate the contract. In the context of a copyright licence, if someone using the licensed material breaches a condition of the licence, they are then open to a copyright infringement action (unless they have some other legal basis for using the material). Contract law will still hold someone responsible for breaching a contractual promise, but the remedies are different, and as was the issue here, it's much harder to get an interlocutory injunction.

Whether or not a term is a condition is a matter of construction, and depends on the intention of the parties. In answering the question of whether the relevant terms were conditions, the Court of Appeals made a number of important observations which are applicable to free content licences generally.

The first observation was that, just because with free content licensing there is no money changing hands, it is not the case that there can be no economic consideration involved. The Court recognised several other forms of economic benefit which free content licensors derive from licensing their works:

"There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. For example, program creators may generate market share for their programs by providing certain components free of charge. Similarly, a programmer or company may increase its national or international reputation by incubating open source projects."

This is a really significant observation for the court to make, because there are some major ideological barriers that seemed to get in the way of the District Court on this point. Even though free content licencing is all about authors dealing with their economic rights under copyright, free content is all too often viewed as non-economic. Just because free content doesn't fit in with the traditional royalties-based system, it does not mean that there are not real economic motives involved.

The second observation was made in the context of the general rule (applicable in that jurisdiction) that an author who grants a non-exclusive licence effectively waives their right to sue for copyright infringement. If the relevant terms were conditions, then they would be capable of serving as limitations on the scope of the licence, which would negate this rule. The Court said that:

"[t]he choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition."

Again, this seems to be an important point in terms of getting over psychological hurdles. The District Court was clearly hung up on the terms in the Artistic License allowing users to freely distribute and modify licensed material; it focused on the breadth of the freedoms granted. In doing so it overlooked that while the License did grant broad freedoms, it clearly circumscribed them. The Court of Appeals understood what the District Court did not: that releasing material under a free licence is not the same as giving it away.

The heart of the decision was of course about the particular wording in the Artistic License. The use of the phrase "provided that" in the Artistic License was significant, because such wording usually indicates a condition under Californian contract law. Further, the requirement that any copies distributed be accompanied by the original copyright notice - a relatively common term - also typically indicates a condition.

In the end, the Court of Appeals decided that the relevant terms were conditions, and that Jacobsen had a copyright infringement action open to him. Since the District Court didn't assess Jacobsen's prospects of success on the merits, the Court of Appeals remanded the injunction application back to them for their consideration. Given that Katzer and Kamind apparently conceded that they did not comply with the Artistic License, Jacobsen would seem a good chance to get his injunction, and later to succeed at the merits stage.

Though much turned on the particular wording here, the reasoning behind the assessment of the terms can easily be applied to other free content licences, as can the recognition of the economic motives involved in free content licencing, motives which though non-traditional, are both legitimate and worthy of protection by the law. Independent of any value as a binding precedent, this case is a magnificent example of a court really appreciating the vibe of free content.

A test for copyleft?

Another free-content related lawsuit has been filed in the last few days; this time the first United States case based on infringement of the GNU General Public License, filed in a New York state court last week.

The plaintiffs are the developers of the BusyBox project, a collection of small versions of Linux utilities bundled into a single executable, designed for use as firmware or in embedded systems. They allege that the defendant, Monsoon Multimedia, included BusyBox, or a modified version of it, as part of the firmware on some of their hardware products, and did not offer the source code to the firmware as required by the copyleft provisions of the GPL. The plaintiffs, through their lawyers the Software Freedom Law Center, claim that Monsoon infringed their copyright as a result, and seek injunctions to prevent Monsoon from continuing to distribute the firmware, as well as damages.

The case will be significant (should it make it to trial) not only because it directly concerns the GPL, one of the more widely used free content licences, but also because it revolves around what is, in my opinion at least, the key part of any good free content licence: the requirement that derivatives be released under the same licence (the same essential concept is referred to as either "strong copyleft" or "share-alike"). The case may be the first test of whether such requirements are actually effective at compelling creators of derivative works to release those works under the same terms.

DLA Piper senior partner Mark Radcliffe also raises the very good point that the case will also revolve around exactly how the GPL is characterised - whether it is a copyright licence or a mere contract - which may have implications as to what remedies are open to people releasing their work under the GPL.

However, the case may not even make it to court, with Monsoon apparently looking to settle and make the source code for the firmware available, according to breaking reports.

You can see a copy of the BusyBox statement of claim here (PDF format).

Flickr user sues Virgin

I blogged a couple of months ago about the controversy surrounding an advertising campaign for Virgin Mobile Australia, which featured photographs taken from photo-sharing website Flickr. The photos were licensed under Creative Commons licences, but apparently the advertising company didn't ask permission from the photographers, and nor did they obtain model releases from the subjects of the photographs.

There's been plenty of speculation about what legal avenues might be open to both the Flickr photographers and their subjects, but it looks like we'll soon get some answers, as the family of one of the people pictured in the advertising campaign has sued both the Australian and United States arms of Virgin Mobile in a Texas court.

The suit was instigated by the family of Flickr user Alison Chang, who was photographed by fellow Flickr user and Chang's youth counsellor Justin Wong. That photograph was used in one of the Virgin advertisements, as can be seen in this photograph, accompanied by the caption "DUMP YOUR PEN FRIEND".

At this stage the suit seems to be based on actions in libel and invasion of privacy, based on news reports (I'm currently trying to find the actual court documents without much luck - does anyone know where Texas court documents are available online?). Virgin Mobile in the US has apparently sought to be removed as a party as it claims that it had nothing to do with the advertisements. Virgin Mobile Australia says that it fully complied with the Creative Commons licence (CC-BY-2.0) that the image was licenced under.

As another twist, the suit names a third defendant in Creative Commons; exactly what cause of action is claimed to lie against them at this stage is not clear.

This case is interesting because of the intersection of multiple types of intellectual property rights, along with other related rights. There are a whole range of rights which are potentially involved just in this fairly trivial case of one person taking a photo of another person, only one type of which - the economic rights of copyright - are dealt with by free content licences such as the Creative Commons licences. Should this case ultimately reach a decision (it may well face some jurisdictional problems) it is likely to have significant implications for the free content movement.

(Free) culture clash

I am not a lawyer. This is not legal advice.

There's a story doing the rounds in the blogosphere at the moment about the latest advertising campaign for Virgin Mobile Australia, put together by Virgin and a couple of advertising firms. The story is to do with the campaign's use of images, mostly Creative Commons licenced ones, sourced from the photo sharing website Flickr. The campaign started making waves when it appeared in June, catching the eye of Flickr users late in the month, and being carried by The Australian newspaper today in their IT section. It's all about a very hot topic in free culture circles at the moment: the interaction between different types of intellectual property rights in relation to free content.

The story began when Flickr user Brenton Cleeland posted a photo of a bus stop billboard showing one of the ads, featuring a picture of Flickr user Alison Chang with the caption "DUMP YOUR PEN FRIEND". This is the original image of Chang, uploaded by Justin Wong, and released under a CC-BY 2.0 licence. It's hard to see, but the fine print on the billboard gives the photo's URL on Flickr.

The campaign uses many more photos just like this one. The captions that are shown alongside the images are significant. Take this one for example, in which a photo of some people chatting in a lift is superimposed with the caption "PEOPLE WHO TALK IN LIFTS HAVE BAD BREATH". A Flickr user captured two of the billboards here, see what you make of those captions.

This is where it gets interesting. While this photo and the others appearing in the advertising campaign seem to have been used in accordance with the terms of the licence, it's an open question whether the use has infringed any other rights. According to The Australian, Virgin (and the advertising companies) didn't ask permission from the photographers or the subjects before using the photos. But does this mean anything?

The Creative Commons licences, like other free content licences, relate only to the economic rights that the creator of a work has (the rights that are generally referred to as "copyright"). But intellectual property law covers other rights too. Possibly relevant here are moral rights, a group of rights which, generally speaking, remain with the creator of a work (even if the economic rights are transferred to someone else). These are essentially the right to be attributed as the creator of the work, and the right to the integrity of the work.

Australia now has a pretty much Berne Convention type implementation of moral rights. At least in the Australian implementation, the moral right of attribution is satisfied if the creator is identified in the way that the creator has specified; given that the CC-BY licence sets out a method for attribution, which providing the URL to the photo may satisfy, the uses here may be ok in this respect. A different question is the moral right of integrity of the work; there hasn't really been any case law in Australia on what constitutes derogatory treatment of the work, so it would be interesting to see how a court might approach the use of these photos in this advertising campaign, particularly given the captions that have been put alongside the photos.

So there are questions with respect to the rights of the creators, but what about the rights of the subjects in the photos? This is probably the more pressing question, since it is the subjects who are really copping it in this ad campaign, what with those suggestive captions. Many jurisdictions recognise personality rights, which can protect subjects in this type of situation; in Australia, like in other common law countries, this is done in a particular type of way through passing off, traditionally a tort but which in Australia is fairly robustly protected in trade practices legislation, which allows both for civil suits and intervention by the ACCC.

Andrew Nemeth, a (no-longer practising) solicitor from New South Wales, gives a pretty good rundown of the legal issues around photography in Australia, and even touches on the Virgin issue. But, as he notes, while the trade practices legislation would certainly seem to apply in this type of situation, the kicker is jurisdiction:

"The story would typically end there, except for one thing — these particular images were not taken in Australia and neither photographers nor subjects were Australian citizens. Which unfortunately places them beyond the jurisdictional reach of the TPA or any other Australian law prohibiting unauthorised use of a person's image. If the photographs were taken here, then the subject would have a case. If they were taken overseas of an Australian citizen, again the subject would have a legitimate complaint. But foreign person + foreign photographer + foreign location?…

Nyet.

Clearly the Virgin Mobile people did their homework. You apparently can use unauthorised images of people to sell products, just make sure they're foreigners photographed overseas! Well done guys, very slick."

The wording of the latest version of the Creative Commons licences - which contain something of an acknowledgment that moral rights exist and users of freely licenced content should make sure that they respect them - has attracted plenty of discussion on the Wikimedia mailing lists of late. The interaction between freely licenced content (which deals exclusively with the economic rights of copyright), other areas of intellectual property law, and even other fields of law that relate to how intellectual property can be used (like personality rights) is bound to be the source of many interesting legal questions in the years ahead, as free licencing becomes more and more prominent. Not to forget the social implications; Creative Commons is copping flak from some quarters for not educating their users enough about just what the implications of licencing works under the CC licences are. There are some Flickr users who are now justifiably concerned about just what they've got themselves into by sharing their photos online under free licences.

It remains to be seen what legal responses there will be to Virgin's campaign, but there's no doubting that situations like this are just the tip of the iceberg for the proverbial free culture ship in the IP law sea.

Why there cannot be a generic template for fair use claims

Fair use is a legal doctrine that may be used as a defence against a claim of copyright infringement. Technically speaking, until you've actually been to court and successfully invoked your claim of fair use to defend against such a suit, you're using the work illegally. In practice it's often possible to reasonably anticipate where a claim of fair use will be successful, typically by analogy with cases in which the defence has been successfully raised, and as such, the use is commonly regarded as "kosher", as it were, while still technically being illegal.

This reality raises a couple of issues. Since fair use is a defence, it's necessary to be able to explain on what basis your use falls within that defence. Since the defence applies only to particular uses of a work, you need to be able to make such an explanation for all of your uses of the work. And since claims fall into the "kosher" category by being based on solid analogies with existing cases in which the defence has been successfully raised, you need to explain the analogy you have employed, by reference to the specific fair use factors that apply to the particular work and the particular use in question.

There is no boilerplate fair use claim to be used against copyright infringement, just as there is no boilerplate claim for, say, self-defense in a murder trial, or for an estoppel claim in a breach of contract suit. Fair use claims may be very similar to each other, but that only reflects that the particular analogy being employed is strong (or at least popularly thought to be strong).

Executive summary: since fair use is a legal defence, you need to explain how it applies in every case, and this means there can be no boilerplate claims.

Wikipedia is not Thermopylae

The HD DVD encryption key controversy rages on, and while Digg goes out on a slender limb, other user-generated content communities, including the Wikimedia family, are still deciding what to do.

The good news is that the community seems, for the most part, to be taking a sensible course of action and rejecting attempts to put the contents of the key into Wikipedia. There are a few dissenters though, most of whom are beating the "censorship" drum and complaining about oppression of the masses and their rights to free speech.

There's a section in what Wikipedia is not entitled "Wikipedia is not censored", which is often clung to by these people who rail against "the Man". If memory serves me correctly, the section used to be titled differently; "Wikipedia is not censored for the protection of minors" at one stage, and "Wikipedia is not censored for good taste" at another. The latter of these is the better, in my opinion, because the point of the statement is to explain that we can neither guarantee that all content will comply with some standard of good taste, nor will we exclude content that some people find objectionable (encyclopaedic material about sex, for example).

The problem is that some people try to boil that down to a slogan, "Wikipedia is not censored", and get themselves confused. While it's correct to say that we generally don't exclude content for reasons of taste based on social or religious norms, we undoubtedly do exclude content based on our policies and based the laws of Florida and of the United States, where the projects are based.

It also needs to be remembered that while Wikipedia is not censored (for good taste), it is not a whole bunch of other things too. It's not a soapbox, for starters, nor is it an experiment in democracy, or anarchy. It's especially not a tool for experiments in civil disobedience. It's an encyclopaedia.

United States District Judge Lewis A. Kaplan put it well in the case of Universal v Reimerdes:

"Plaintiffs have invested huge sums over the years in producing motion pictures in reliance upon a legal framework that, through the law of copyright, has ensured that they will have the exclusive right to copy and distribute those motion pictures for economic gain. They contend that the advent of new technology should not alter this long established structure. Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located. Less radically, they have raised a legitimate concern about the possible impact on traditional fair use of access control measures in the digital era. Each side is entitled to its views. In our society, however, clashes of competing interests like this are resolved by Congress. For now, at least, Congress has resolved this clash in the DMCA and in plaintiffs' favor."

So to all the geeks itching to fight the Man, go write to your Congressman (if you live in the US and have a Congressman of course - if you don't, then I suppose you'd better nag your American friends to do so). And if you want to engage in civil disobedience, don't abuse Wikipedia in order to do so. It's not your farm to bet.