Announcing a new endeavor

The new endeavor referred to in the title of this post will be a blog named Ruling Imagination, which I will begin writing on August 4, 2008 and in which I will address broadly speaking, both the law as it affects creative endeavors and creativity within law itself. While Ruling Imagination will, quite plainly, overlap in subject-matter with What is Fair Use?, I will continue to maintain this site; this site, however, will be confined, as it has since its beginning, primarily to questions of copyright and fair use and will continue to be aimed at an audience seeking a fairly high level of legal sophistication and technicality in its discussions. Ruling Imagination, on the other hand, will address a far wider range of subjects and will seek to engage a broader audience, in particular an audience within the creative community.

Carolyn Jack, one of the founders of Geniocity, has this to say:

I’m proud to announce that Peter Friedman, associate professor at Case Western Reserve University School of Law, will join our roster of bloggers starting Monday, Aug. 2.

Peter, who specializes in legal analysis and writing at Case Western Reserve University and is currently a Visiting Professor at the University of Detroit Mercy Law School and at the University of Windsor, also teaches at the Universiteit van Amsterdam. He will write for Geniocity.com about the creative cutting edge of the legal profession.

For those of you who think the law and creativity are separated by continents, if not galaxies, let me point out that technology, government policy, social trends and other forces constantly require the law to adapt in unforeseen ways. Look what Internet access has done to copyright law: How will artists get paid for their work if everyone can find music, pictures, writing and video for free on the Internet? Consider the questions that surveillance technology - security cameras, satellites, GPS-equipped cell phones and cars - raises about our constitutional right to privacy. And which locker room - men’s or women’s? - should an as-yet-surgically-unchanged transsexual be required to use?

A furiously changing world demands some pretty inventive thinking about the rules we live by. Peter will explore that thinking and unveil the latest, fascinating twists reshaping our legal landscape and our lives.

So look to Geniocity for briefs of a different cut.

Even Cleveland describes Geniocity as follows:

Carolyn Jack, the former arts writer for the PD has joined forces with artist and critic Dan Tranberg to create Geniocity.com, an online home for creativity. Inspired by a 7-part newspaper story she wrote on creativity, Jack has honed in on an underappreciated fact: creativity in all its variations is embedded in all walks of life. Their new site, Geniocity.com, is part objective news portal, relating the latest advances in science, research, commentary and inventions, and part marketplace for creative work. Their Geniocity Shop will represent global artists, including Clevelanders Robert Thurmer of CSU, and Tracey Lind of Trinity Cathedral. They officially open for surfing on Thu 6/12, so get creative, and contact them to submit your work and reach an international audience.'

Scrabble v. Scrabulous

There is, on the one hand, having a legal right to one's intellectual property. On the other, there is the question: does it make business sense to assert that right to shut down an infringer?

Looking to cut down its main competition and most high-profile copycat in the growing market for social gaming, Hasbro has sued the two Indian brothers behind the popular Web game Scrabulous, which has more than half a million regular users on the social network Facebook.

Hasbro, the Rhode Island company that owns the trademark to the 60-year-old board game, Scrabble, on which Scrabulous is closely based, has also asked Facebook to remove the game under the Digital Millennium Copyright Act, saying that it infringes the company’s intellectual property. Facebook has not yet responded to or commented on the request.

A copy of the complaint is here (pdf).

As Josh Quitner writes, "[A]s a tech writer and life-long student of what passes for Internet economics, I’m baffled. Is Hasbro just a stupid Potato Head? Or is this a brilliant game of Stratego?" And Mike Masnick observes:

The Scrabulous/Hasbro situation is a perfect example of Matt Mason's thesis that "piracy" is almost never about "theft." It's almost always a market indicator that the market is unhappy with what's being offered. It's the market showing companies what they want.

Redlasso's clipping service is shut down

Hulu partners NBC and Fox have sued Redlasso, alleging that Redlasso's service that provided clips of copyrighted network programs to blogs violates the plaintiffs' copyrights in those programs. As a result, Redlasso "announced today that it has no alternative but to suspend blogger access to its video search and clipping Beta site for the immediate future." Redlasso argues that its search and clipping service is not infringing because it makes possible commenting and criticism by bloggers, uses that are fair uses. As Redlasso's press release puts it (pdf):, "The now-suspended Beta site provides bloggers with online broadcast content tools that enables them to exercise their first amendment rights to comment on newsworthy events, by searching blogger-selected TV and radio segments and creating limited duration clips for usage in blog posts."

Eric Goldman, director of the High Tech Law Institute at Santa Clara University, argues that Redlasso's position that "it's enabling third-party users to engage in fair use" is not likely to prevail because "[f]air use doesn't provide coverage for the intermediary." Goldman bases his reasoning on UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 349 (S.D.N.Y. (2000), in which the court ruled that MP3.com was not engaged in fair use in providing online access to recordings its users already owned CDs of. The court reasoned that "although defendant recites that My.MP3.com provides a transformative 'space shift' by which subscribers can enjoy the sound recordings contained on their CDs without lugging around the physical discs themselves, this is simply another way of saying that the unauthorized copies are being retransmitted in another medium -- an insufficient basis for any legitimate claim of transformation."

The services provided by MP3.com, however, were not entirely analogous to those provided by Redlasso. MP3.com's users were merely using the online recordings for precisely the same purpose as the CDs they already owned: entertainment. Redlasso, on the other hand, provides clips of copyrighted shows for bloggers who, as mentioned above, comment on and criticize those clips. As an intermediary for these legitimate, non-infringing uses, Redlasso may be more like the defendant, an internet search engine, in Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2001). Arriba, the defendant, provided online thumbnails of the plaintiff's photographs that were linked to web pages containing those images (much like Google's image search does). The court held that Arriba's use was non-infringing and distinguished MP3.com:

Although Arriba made exact replications of Kelly's images, the thumbnails were much smaller, lower-resolution images that served an entirely different function than Kelly's original images. Kelly's images are artistic works intended to inform and to engage the viewer in an aesthetic experience. His images are used to portray scenes from the American West in an aesthetic manner. Arriba's use of Kelly's images in the thumbnails is unrelated to any aesthetic purpose. Arriba's search engine functions as a tool to help index and improve access to images on the internet and their related web sites. . . .

Kelly [the plaintiff-photographer] asserts that because Arriba reproduced his exact images and added nothing to them, Arriba's use cannot be transformative. Courts have been reluctant to find fair use when an original work is merely retransmitted in a different medium. [citing MP3.com and Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998)]. Those cases are inapposite, however, because the resulting use of the copyrighted work in those cases was the same as the original use. For instance, reproducing music CDs in computer MP3 format does not change the fact that both formats are used for entertainment purposes. Likewise, reproducing news footage into a different format does not change the ultimate purpose of informing the public about current affairs.

Arriba Soft, 336 F.3d at 819-820. As with Arriba, Redlasso's clips of network broadcasts are intended for a different purpose than the original broadcast. The blogs that use the clips are not doing so merely to re-broadcast the clips but, rather, to comment on them, a use that is at the core of fair use. Redlasso too is not clipping the entirety of the original programs but, instead, selected segments of them.

Then again, these segments can be used illegitimately for the same purpose as the original clips; without comment or criticism, mere posting of the clips would serve the same purpose to a viewer as wouldt viewing that segment on TV. In that sense, Redlasso is not like Arriba or Google Image Search, which only reproduce low-resolution thumbnails of copyrighted images.

All that is certain to me is that the matter is not as clear as indicated by the quotes from Professor Goldman.

When is a takedown notice based on a misrepresentation, and when does taking material down constitute a breach of YouTube's duties?

In 2007, YouTube informed Stephanie Lenz of Pennsylvania that it had removed a video she had posted after YouTube had received a takedown notice from Universal Music Publishing Group ("UMPG"). The video, 29 seconds long, showed Lenz's 13 month old son dancing to Prince's Let's Go Crazy. Ms. Lenz sent a counter-notification to YouTube requesting that YouTube re-post the video, but YouTube did not do so until, six weeks later, UMPG dropped its copyright claim.

Now, with the assistance of the Electronic Frontier Foundation, Lenz is suing UMPG. Her complaint (pdf) seeks (1) a declaration that the use of Let's Go Crazy in the video constitutes fair use, (2) an injunction against any lawsuit or threat against Lenz in connection with her video, and (3) damages under the DMCA because UMPG "knowingly materially misrepresent[ed]" that the video infringed UMPG's copyright in Let's Go Crazy.

Lenz's first cause is based on the provision of the DMCA. 17 U.S.C. § 512(f) providing that anyone who "materially misrepresents" that "material or activity is infringing" is liable to the alleged infringer (in this case, Lenz) for any damage arising from the misrepresentation.

Copyright overclaiming is a problem, and UMPG plainly concluded in the end that it had been wrong in its initial position that Lenz's video infringed the copyright in Let's Go Crazy. But was that error so obvious at the time UMPG sent its takedown notice that it was a "material misrepresentation"? It is a trite at this point to observe that whether a given unauthorized use of copyrighted material is a non-infringing fair use is a difficult, case-by-case question; nevertheless, some cases are less difficult than others

In this case there does not seem to be any reasonable basis for UMPG to have believed Lenz's video infringed the copyright in Let's Go Crazy. Len'z video used only 29 seconds of the song, was for non-profit purposes, and would not serve as a substitute for any primary or derivative use of Prince's song. In short, the decision UMPG made 6 weeks after sending its takedown notice is one it should have reached before sending the notice. Lenz's case may not be as strong as that asserted in OPG v. Diebold, but it is one that should worry UMPG.

Lenz's lawsuit might worry Viacom even more. Viacom sent Google/YouTube over 100,000 takedown notices based merely on the fact the videos targeted by those notices contained "unauthorized" clips of material in which Viacom owns the copyright. By definition, any non-infringing fair use will be "unauthorized." Lenz's use of Let's Go Crazy was unauthorized. It was not infringing. It seems likely that among Viacom's 100,000 plus takedown notices are many that Viacom either knew or should have known were unwarranted. How could Viacom possibly have made over 100,000 legitimate fair use decisions about 100,000 different videos?

In addition, Lenz's lawsuit asserts a second, very creative, cause of action alleging that UMPG's unwarranted takedown notice tortiously interfered with Lenz's contract with YouTube. Roughly speaking, UMPG tortiously interfered with Lenz's contract with YouTube if (1) UMPG knew in sending its takedown notice it would cause YouTube to breach a contract with Lenz and (2) UMPG acted "improperly" in sending the notices. What constitutes "improper" conduct is often difficult to determine; nevertheless, it seems obvious that UMPG's takedown notice was "improper" if Lenz prevails on her first cause of action -- for her to do so, the court must find that the claim of infringement asserted in its takedown notice was a "material misrepresentations" that violated § 512(f). The outer boundaries separating "proper" from "improper" conduct may be vague; "material misrepresentations," however, are obviously well on the "improper" side of those boundaries.

The remaining and more difficult question on this second cause of action is whether YouTube breached its contract with Lenz when it did not restore her video until 6 weeks after she sent her counter-notice. YouTube's Terms of Use provide that in the event YouTube, in response to a takedown notice, removes a video, the person who submitted the video can file a counter-notice asserting her argument that the video does not infringe the rights of the person who sent the original takedown notice. Section 8B of the Terms of Use further provides that when YouTube receives such a counter-notice

YouTube may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at YouTube's sole discretion. (emphasis added)

In short, even if UMPG's takedown notice was unwarranted, YouTube's failure to restore the video for six weeks after receipt of Lenz's counter-notice does not seem to be a breach of any express contractual duty owed by YouTube to Lenz -- the contract provides that YouTube has the unilateral right to restore or not restore the contested material. Moreover, the DMCA provides, in 17 U.S.C. § 512(g)(1) , that "a service provider shall not be liable to any person for any claim based on the service provider’s good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing." (emphasis added)

Nevertheless, Lenz could possibly prevail in arguing that the legitimacy of her video was so obvious that YouTube's failure to immediately restore it after she served her counter-notice was a breach of its implied duty to act in "good faith." As § 512(g)(1), quoted above, indicates, YouTube's immunity from liability for disabling Lenz's video requires that in doing so it acted in "good faith." Moreover, though the duty rarely seems to have practical weight, every contract implicitly requites the parties to act in good faith. Finally, YouTube emphasizes that it will consider seriously the merits raised by counter-notices -- its Community Guidelines, which are incorporated by reference into its Terms of Service, provide that "[i]f we remove your video after reviewing it, you can assume that we removed it purposefully, and you should take our warning notification seriously."

If YouTube had indeed taken UMPG and Lenz's respective positions seriously, it is difficult to believe it needed to wait until UMPG backed off from its infringement claim to conclude that Lenz's video was non-infringing. Thus, Lenz's argument on her tortious interference with contract claim would be that YouTube breached its obligations to her to evaluate UMPG's infringement claim "seriously." It is a very interesting and creative claim, and one that truly puts YouTube's policies in these disputes to the test.

Addendum: Sherwin Sly adds some cogent analysis to the dispute between Lenz and UMPG.

Code of Best Practices for using copyrighted materials in online video

American University's Center for Social Media "a code of best practices" that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use."

The authors make clear that "this code of best practices does not tell you the limits of fair use rights. . . . It’s not a guide to using material people give permission to use, such as works using Creative Commons licenses. Anyone can use those works the way the owners say that you can. . . . It’s not a guide to material that is already free to use without considering copyright. For instance, all federal government works are in the public domain, as are many older works. In most cases, trademarks are not an issue. For more information on “free use,” consult the document “Yes, You Can!” and copyright.cornell.edu."

Then what is it? Essentially, it's a guide to what professionals actually are doing:

This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.

Regular readers of this blog will not be surprised at the views of authorship and creation that inform this code of best practices. Fans of Girl Talk and the class that originated this blog will be particularly interested in the code's claim that it is fair use to "to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between these elements.

Good Copy, Bad Copy (embedded with permission)

A documentary from Denmark on Girl Talk, Bridgeport Music, sampling, and copyright:

Who's the author?

From Scoodleyweb:

I don’t think I have any words for this. Star Trek the Animated Series mashed up with William Shatner singing Pulp’s common people, as Kirk/Spock slash fiction. So many memes tied up in a nice bow. Exquisite. Simply Exquisite.

And if you wonder where the title of the post, "In that case, I'll have a Rum and Coke," comes from, you should look here and

ask yourself, who wrote "Rum and Coca-Cola?" Morey Amsterdam, U.S. copyright holder, who slightly changed some lyrics to a song he heard in Trinidad? Lord Invader, who put new lyrics to a song written by Lionel Belasco in the early 1900s? Lionel Belasco, who adapted his music from a folk song from the 1800s?

And how far back does the thread stretch from there? Who originally wrote the music that would evolve into "Rum and Coca-Cola"?

Course packs in the internet age.

Oxford University Press, Cambridge University Press, and Sage Publications sued the Georgia State University in federal court in April, arguing that course readings that professors and librarians disseminated online infringed publishers' copyrights." The complaint is here (pdf).

I am sympathetic to the view of the that the posting of copyrighted materials without permission for educational purposes would be beneficial for students. As the editors of the UCLA Daily Bruin write: "With increased tuition fees, living expenses and constantly looming debt, the last thing students want to dish out more money for is a heavy and overly expensive textbook that they will open once over the course of the quarter to read one paragraph."

But there is serious legal doubt to the legitimacy of the position of Georgia State in the lawsuit. In Princeton University Press v. Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996) , cert. denied, 520 U.S. 1156 (1997), the U.S. Court of Appeals for the Sixth Circuit held that photocopied "course packs" containing excerpts from copyrighted materials that sound very similar to those being posted on line by your university did NOT constitute fair use. Though there are many ways in which the internet changes the calculus one must apply to questions of fair use, I don't see any particular way Georgia State's actions differ from those of the University of Michigan professors actions in making available to their students photocopied coursepacks consisting of collections of excerpts from copyrighted texts.

Of course, the federal courts in Georgia are not bound to follow the Sixth Circuit's decision in Princeton University Press, but that decision has not proven to be a particularly controversial one with respect to its doctrine. As Stephana Colbert and Oren Griffin explain in "The Impact of Fair Use on Higher Education: a Necessary Exception?", 62 Albany L. Rev. 437, 454-55 (1998): "the Congress that passed the Copyright Act in 1976 would pretty clearly have thought it unfair for a commercial copyshop to appropriate as much as 30 percent of a copyrighted work without paying the license fee demanded by the copyright holder . . . ."

Neverthless, the issue is "[o]ne of the most contentious issues between libraries and publishers in the digital age . . . ." As Colbert and Griffin point out:

T]he changes in technology and teaching practices that have occurred over the last two decades might conceivably make Congress more sympathetic to the defendants' position today. If the law on this point is to be changed, however, we think the change should be made by Congress and not by the courts.

Thus, while suggesting that [Michigan Document Services had] has legislative support for its conduct, the court left open the possibility that a different result might be forthcoming should Congress revisit the copyright statute. Certainly, technology has had a dramatic impact on virtually every segment of American society, and to think that the application of American copyright law has been unaffected by the advances in technology since 1976 is naive.

See also Melamud, Pursuing Fair Use, Libraries, and Electronic Reserves, 92 Law Libr. J. 157 (2000)(pdf).

What can you do? Well, you don't have to send a takedown notice or sue.

From Techdirt, a question -- who will be the first to sue Girl Talk? I don't think it will be LL Cool J -- and mention of a small industry of "sample trolls":

[W]ith over 300 samples used on the album, there's almost certainly going to be a few who get upset [by the Girl Talk album]. . . . [T]he woman in charge of the copyright for the band the Guess Who is planning to go after Girl Talk, noting that: "We'll chase it down. What more can you do?" Well, actually, there's plenty more that you can do -- such as recognizing that no one who hears the music on Girl Talk is going to see that as a replacement to the Guess Who's album -- and, if anything, it might entice new fans to the original.

But, eventually a legal battle is going to pop up -- and while Gillis and his label are banking on "fair use" claims to protect them, the history of court cases on this particular question have shown the courts (wrongly) seem to count nearly any require a license. This has created a small industry of "sample trolls" getting the rights to various songs (often via very questionable means) and then suing anyone who samples just a few notes from it. It seems quite likely that sooner or later someone is going to go after Gillis for this.

Is Coldplay original?

This whole question of originality can make one's head spin. It may not help Coldplay's situation that Chris Martin has been quoted in the past as saying "We're definitely good, but I don't think you can say we're that original," he notes. "I regard us as being incredibly good plagiarists."



Addendum, from Techdirt:

[T]he guy from Creaky Boards later not only retracted his accusation, but suggested that perhaps both bands were actually "inspired" by the "Fairy Theme" in the Legends of Zelda. In a world of strict copyright, of course, that might make both songs "illegal," though I doubt anyone would think that would be the optimal outcome.

. . . The thing is, part of the point we keep trying to make around here is that, for the most part, that's true of just about everyone. It's the overly aggressive use of copyright law that prevents that sort of "goodness" from showing up. Oh, and it's also worth mentioning, that this little story has definitely increased the profile of The Creaky Boards -- proving one of the points we recently made about plagiarism. Even if the plagiarist is "bigger" than you, the original creator can use that to their advantage as well.

Kid Rock doesn't steal, but is there anything original about him?

Speaking of Kid Rock, of course, brings to mind his own appropriation of Lynyrd Skynyrd's Sweet Home Alabama, Warren Zevon's Werewolves of London, and Bog Seger's Night Moves, which can't help but bring back a fond nostalgia for the much maligned decade of my teens (the '70s). I have no doubt, of course, that Kid Rock paid big bucks to the copyright holders of the songs he appropriated (though, perhaps, not to Seger, from whose Night Moves there isn't quite copying), but I'm sure he's made far, far more than he paid.

And could there possibly be a more fitting instance of The Manual's principles in action?

Kid Rock says he was kidding about saying it's okay to download his songs for free.

Kid Rock, "who has resisted selling his music on iTunes and other online stores, tells The Associated Press he was just kidding." (Hope AP doesn't send me a takedown notice!)

Copyright Ignorance from MTV.com

In connection with yesterday's post about Girl Talk's new album, I can't help but mention today's post on MTV.com by James Montgomery. Montgomery writes of listening to the album while flying on a plane along with L.L. Cool J and wondering:

Song seven on the [Girl Talk] record is called "Like This," and it features, in addition to a whole lot of other things, two very audible samples of LL's "Mama Said Knock You Out," two samples that Girl Talk did not obtain LL's permission to use, which means that they appear in the song illegally, which means that LL is not getting paid for their usage, which would probably make LL very upset if he had any idea that this was happening. (emphasis added.)

Then Montgomery writes that Girl Talk's Greg Willis uses "the concept of 'fair use' to shield himself from any pesky copyright suits."

I can't believe someone from MTV.com is writing on these issues from such a state of ignorance. It's far from certain that what Girl Talk is doing is "illegal," and "fair use" is no "technicality" to shield one from copyright infringement lawsuits. It's one's constitutional right.

And, incidentally, D.J. Danger Mouse has not, as Montgomery implies, "left the [musical collage] genre behind.

Addendum: First, according to Will in the comments, Mr. Montgomery should have known better than to think LL Cool J would've been upset by Girl Talk's appropriation because "LL recently recorded a 'mixtape' called 'Return of the G.O.A.T.' featuring a number of freestyles over uncleared sampled beats."

Second, and more important in trying to determine whether Girl Talk's appropriations constitute fair use, Mr. Montgomery's own evaluation of Girl Talk's music basically makes the case that the use is "transformative" and therefore does constitute fair use. He writes: "[Girl Talk's] new album is so great, the kind of thing that could not have existed 10 years ago, an audio time capsule of the era in which we live. The kind of thing that can inspire post-millennial dilemmas at 37,000 feet."

Then again, inasmuch as Mr. Montgomery is a shill for MTV, and MTV is part of a corporate conglomerate with every interest in hiding the realities of fair use from the public, it should be no surprise that he writes with such ignorance about fair use. Here are some posts to try to begin to bring him up to speed.

Is the use "commercial" if you ask for a donation in return?

Girl Talk's "Feed the Animals" is the latest product from Illegal Art that raises the question, posed by the N&VR Journal: "at what point does sampling end, and a new creation with a new 'songwriter' begin?" It's a question posed again and again by musical collage. It is not, as this blog again and again points out, a position that is "anti-copyright." Rather, as Illegal Art's founder, Philo T. Farnsworth, explains:

I should clarify that we are and we aren't anti-copyright. We're against copyright law when it impedes an artist's ability to interact with pre-existing recordings. We're not against copyright protecting artists from someone copying their material and selling it without compensating them.

But, as we all know by now, whether the use of copyrighted material is a fair use requires a holistic consideration of four factors, including the purpose and character of the use, which itself includes a consideration whether the use is commercial or not. "Feed the Animals" raises a question with respect to this factor I have never encountered before: is the use a commercial one if the creator, instead of selling the product, offers it along with a request for a donation? Illegal Art will allow you to download "Feed the Animals" without donating anything; I did so. That's no sale. Under basic contract law, therefore, this deal is no "contract": one can obtain the album without giving or promising anything in return.

Of course, whether a use is commercial is only one factor among many in determining whether it is a fair use; it is not even the entirety of the "nature of the use" factor. But the fact Illegal Art will give away the product for nothing does weigh in favor of its legality.

And, like the video discussed yesterday, the album is there, available on the internet, as yet unchallenged by any of the owners of the material appropriated by it. There is always that vast amount of human behavior that may or may not be illegal but still happens in a relatively unimpeded way. There also too is a vast amount of copyright overclaiming by copyright holders that use there economic weight to stop practices that would, if fought for, be upheld. Law is not always the answer to our questions, particularly when we are dealing, as we are, with a material reality that has changed and is changing as radically as the material reality of information in the digital age.

Digital locks, fair use, and the Constitution

Canada is considering legislation that would make it illegal to break digital protections on copyrighted material (i.e., so-called "DRM" ("Digital Rights Management") protection"). The Canadian bill apparently is intended to override existing rights, including the right to backup or copy digital materials for personal use or for fair use of materials with DRM protection. Apparently too, "mash ups and satire will be criminalized by the bill if they 'distort or mutilate a copyright performance.'" A group of Canadian musicians have severely criticized the bill, stating that "[t]he question is, who gains from this bill? It’s not musicians. Musicians don’t need lawsuits, we don’t need DRM protection. These aren’t the things that help us or our careers. What we do need is a government that is willing to sit down with all the stakeholders and craft a balanced copyright policy for Canada that will not repeat the mistakes made in the United States.”

The group is referring to 17 U.S.C. Section 1201 of the Digital Millennium Copyright Act,(the "DMCA"), which purports to make it unlawful to override a CD or DVD's digital copyright protection even if the copying of the copyrighted material is legitimate, non-infringing fair use.

Nevertheless, I'm not sure a court could impose liability under Section 1201 of the DMCA on someone who evades DRM protection on a CD or DVD if the copying is for a fair use. Fair use is founded in the Constitution, both in Article I, Section 7, which gives Congress the power to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries," and in the First Amendment protection of free speech. In other words, fair use is a constitutional right, and constitutional rights cannot be derogated by legislation.

Not everyone agrees. Chris Soghoian writes that the creators of the Hillary's Inner Tracy Flick video are in violation of the DMCA's provision making it unlawful to copy material under DRM protection even if the video otherwise makes fair use of scenes from the movie Election. Soghoian cites to the statement by the U.S. Court of Appeals for the Federal Circuit in Atari v. Nintendo, 975 F.2d 832 (Fed. Cir. 1992), that "[t]o invoke the fair use exception, an individual must possess an authorized copy of a literary work." Thus, Soghoian concludes, if the creator of the video "used DVD-ripping software, its unencrypted, DRM-free copy of the work (which they would have needed to cut and paste bits into their mash up) is in no way authorized. This means, unfortunately for [the video's creator], that it would have no fair-use defense, and could thus face a copyright infringement lawsuit."

I'm not so sure. Congress cannot through legislation deprive someone of using material in a way the First Amendment of the Bill of Rights and Article I, Section 7 of the Constitution permit. Thus, I am confident, a statute that makes it unlawful to copy for fair use purposes any document stating "no copy of this document is permitted by its author for any purposes" would be unenforceable under the Constitution. I do not see why DRM protection, which can generally be cracked very easily, should, for fair use purposes, be treated any differently than such a bare declaration that any copying is unlawful.