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mass p2p lawsuit commenced in canada

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I was surprised to see Michael Geist’s post that a new lawsuit is targeting thousands of individuals for unlawfully sharing copyrighted films through peer-to-peer networks. I had thought approach had lost its appeal some time ago. Go and read Mr. Geist’s analysis of how he thinks things will proceed. I have nothing to add on that front. I am curious, however, why it seems (as far as I can tell) that only one carrier, TekSavvy Solutions, seems to have been targeted. I would have thought that carriers having much larger shares of the ISP market would result in a much larger number of prospective defendants and therefore much more rewarding. Then again, I imagine such carriers might also have a larger legal budget. Still, it does seem rather curious to focus only on one, comparatively small, ISP.

Stikeman Elliott appears to be on for Teksavvy (from what I see on the motion record), while Brauti Thorning Zibarras is on for Voltage Pictures, the plaintiff (better known as the firm who launched the defamation claim against Youtube and others on behalf of “Officer Bubbles”).

Will be interesting to see how things play out (unless of course you’re one of the poor souls that are in Voltage’s crosshairs).

another copyright infringement class action – this time in the us

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Those silly Americans. Always copying great Canadian innovations, like class actions for copyright infringement by lawyers against large legal publishers. You’ll recall I put up a short post yesterday on a lawsuit along those lines that was recently certified to proceed. I’m a bit behind in my reading – apparently a similar suit was filed last week in New York, again by lawyers, and this time against Westlaw (a subsidiary of the target of the Canadian action, Thomson Reuters) and LexisNexis.

More details on the action in the Wall Street Journal (along with a copy of the claim), The Volokh Conspiracy and the ABA Journal. I’ve included the last link more for the comments, just to give a sense of opinions on the topic (which, perhaps not surprisingly, are all over the map). Volokh offers a brief analysis, plus another spirited debate in the comments.

Nice change to be first, I suppose.

mass copyright infringement suit by lawyers given go-ahead

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The Lawyers Weekly reports that a class action lawsuit accusing Thomson Reuters of “mass copyright infringement” was given the green light to proceed last week. There’s a good summary of the facts in the article, but here is my 30 second summary of the summary:

  • lawyers write pleadings, motions, affidavits and other legal documents which are filed with the courts
  • because they are filed with the courts, they are (for the most part) in the public record – anyone who pays a fee can get a copy, but typically only in (somewhat inconvenient) hardcopy
  • Thomson developed an electronic database where it did all the heavy lifting – it went to the courts, paid the fees, collected the hardcopies, scanned and digitized them, and made them available in a convenient and searchable form to subscribers – for a fee

The plaintiffs’ bone of contention is that, while Thomson did do a fair bit of work and paid the relevant court fees as would any individual requesting the same documents, it did not license their use from the authors of those documents, nor pay them for such license. Therefore, Thomson should be found liable for copyright infringement.

There was a good post and interesting discussion on this case on Slaw back in 2010 when the class proceeding was first started, with a number of comments arguing for and against. I was amongst the commentators and my initial reaction, primarily from the perspective of “black-letter” copyright law, was that the plaintiffs seemed to have a reasonably good case, while comparatively, the defendants seem to have a rather weak defence.

Since then, and after giving the matter a bit more thought, I’ve become a bit more ambivalent. There are some competing policy objectives (each of which has its merits) that will need to be considered by the court. One of the distinctions that seem to be made in this case is the fact that Thomson has, apparently, profited quite handsomely from this service, whereas (presumably) individuals who request a single copy do not. Perhaps this is a straw man of my own construction, but I would have thought that many individuals who request copies of pleadings are lawyers, who use such documents in order to do their work, and thereby generate fees. Would it therefore be appropriate to distinguish between the two? Should fair use encompass use through one medium (hardcopy), but not another (digitized and searchable)? Should Thomson’s efforts in taking the time to obtain copies and digitize, index and sort them entitle it to earn a profit from its efforts without an obligation to compensate the original authors? After all, what subscribers are really paying for is not access to the documents themselves, but rather, I would think, how the documents are accessed – it is more cost-effective for them to pay a fee to access pleadings and the like in easily searchable and downloadable form from the convenience of their desk than to schlep around to courts to manually find and retrieve the same documents.

Of course there are other considerations as well – public access to the courts and to the public record, and a number of others. Certainly raises a number of thorny questions. If of interest, I’d encourage you to visit the Slaw article I mentioned above for somewhat more learned debate than my cursory ramblings.

Also, apparently the court chose to certify some (but not all issues). From the article:

The judge certified two common issues relating to Thomson’s alleged conduct. Did the company through its Litigator service: (1) “reproduce, publish, telecommunicate to the public, sell, rent, or hold itself out as the author or owner of court documents?” or  (2)  “authorize subscribers to reproduce, publish, telecommunicate to the public, sell, rent, translate, or hold themselves out as the author or owner of court documents?”

The judge also certified common issues raised by Thomson’s defences: “Does Thomson have a public policy defence to copyright infringement or to the violation of moral rights based on (a) fair dealing, (b) the open court principle, (c) freedom of expression, (d) the necessity of using the idea of the court document as it is expressed, or (e) a business or professional custom or public policy reason that would justify reproducing, publishing, telecommunicating to the public, selling, renting, translating, or holding itself out as the author or owner of court documents?”

Moreover, “did Thomson have the copyright owner’s implicit consent to reproduce, publish, telecommunicate to the public, sell, rent, translate, or hold itself out as the author or owner of court documents?”

Certified as common issues as well: “are class members entitled to injunctive relief” under s. 34(1) of the Copyright Act; and “does Thomson’s conduct justify an award of aggravated, exemplary, or punitive damages?’

who owns your tweets? (@novaspivack)

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Thought I’d tackle a relatively short and easy one today – it’s been a long, long week. Anyway, I noticed a tweet from @novaspivack (via a retweet by @mathewi) asking “Legal question: Who owns the copyright to your tweets, and who has the ultimate right to decide who else can access them?”

Under both the US (§201) and Canadian (s. 13(1)) Copyright Acts, the first owner of a work in which copyright subsists is the author of that work. In other words, you write it, you own it. So that’s your starting point. You write a tweet, you own it.

There are also exceptions to the rule that an author owns the work. For example, if you author something in the course of your employment, your employer will be the first owner of the work absent an agreement to the contrary. So, for example, if you tweet as a part of your job, then copyright in your tweets are owned by your employer, not you, unless you’ve struck a deal saying otherwise with your employer. In the US, this is often referred to as a “work made for hire” (sometimes contracted to “work for hire”).

You can also agree, up front, with a contract with someone else, that a work that you author will be owned by them. Subject to the usual legal niceties of creating a legally enforceable contract (and some caveats, which I won’t get into here), that means that what you write will be owned by that other person. So, for example, you can agree under a contract to tweet for someone else and that those tweets will be owned by that other person.

This can also be done after the fact. You can author a work, and then sell it to someone else under a contract. Then they’ll own it. This could be done with tweets. So for example if a publisher wanted to compile your past tweets into a book, you could sell them the copyright in those tweets, and they’d be free to do what they want with them.

Along similar lines, you can also grant licenses to work you create. The granting of a license means that you give someone else some rights that only you would, in the absence of that grant, be entitled to exercise. So, for example, you could grant someone the right to publish a book of your tweets, in paper form only, in North America. Once you grant that right, then they can publish that book without infringing your copyright.

The reason I mention licenses is because there is a specific term in the Twitter terms of service pursuant to which users of Twitter grant Twitter a license. Here it is, for your reading pleasure:

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.

“Content” basically means your tweets. So you keep ownership of your tweets. BUT, you grant a license to Twitter to do a whole bunch of stuff with it. These rights constitute, more or less, anything you as the owner could otherwise do. It’s quite broad. Very broad, in fact. Substantively, really the only difference between this and giving up ownership completely is that you can continue to use your tweets in other ways. So for example if you want to put your tweets on Facebook, or your blog, or sell a book of your tweets, you would be free to do so. Then again, so can Twitter, if it wanted to.

All of this of course assumes that the terms of service are enforceable. There are arguments for and against, but that’s a bit beyond the scope of this post.

So the second part of the question is who has the ultimate right to decide who else can access them. While, as you probably know, Twitter does allow you to restrict who can see your tweets, they do have the right to give access to whoever they choose, and completely disregard your settings. I didn’t see anything in their terms of use that imposed a contractual restriction on them to honour restricted user settings. Then again, I haven’t exactly read it word for word.

I imagine there might be situations where you could be able to terminate the contract, even though the terms of service don’t expressly provide for that, but I imagine it would be challenging to suggest that the license rights granted to past tweets would terminate. Interestingly, the rights granted under the license language above aren’t characterized as “perpetual” (i.e. forever), which they often are in such documents.

It may also be worth mentioning that Twitter can control access to your tweets to the extent it involves Twitter. Just to make this clear, they have this provision in their terms of use:

We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services and to terminate users or reclaim usernames. Please review the Twitter Rules (which are part of these Terms) to better understand what is prohibited on the Service. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Twitter, its users and the public.

So, for example, they can pull all of your tweets off Twitter, so that no one can see them anymore. However, that doesn’t preclude you from, for example, reposting all your tweets to Facebook or a blog, if you wanted to, and assuming you retained a copy of them.

Of course, lawyers tend to argue about everything and anything, so I’m sure someone out there may be inclined to disagree with something I’ve written above. Which is fine. And of course the usual – not legal advice, no lawyer-client privilege, no obligation or liability. Just in case you live in the US.

Fascinating stuff, isn’t it?

new copyright act now online – updated

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Update: For anyone out there who: (a) pored over the previous incarnation of this bill (i.e. Bill C-61) back in 2008; (b) doesn’t happen to have redlining software; and (c) just wants to review what has changed between C-61 and C-32, here are redlines showing the changes from C-61 to C-32 (Word and PDF). Happy reading.

The much anticipated Copyright Modernization Act (or Bill C-32) was tabled yesterday and is now on-line and available for your reading pleasure. Given the broad interest in this act, it’s not surprising that there has already been a ton of press on it, including summaries and analyses galore.  I don’t propose to reinvent the wheel, so will simply point to you a post in Michael Geist’s blog where he provides a summary and various links to media coverage of the bill (which also have their own summaries) plus of course his own take on it.

My initial impression is that the bill strikes a relatively good balance between content creators and content users. Of course, given the highly politicized nature of copyright reform, and the sometimes fairly extreme views taken in various camps, it won’t make everyone happy. From the perspective of Geist et al. on the user side, the biggest criticism so far has been how digital locks (or “TPMs”) are dealt with. The short version is that TPMs are permitted even if they prevent users from exercising specific rights that are deemed by the Copyright Act not to constitute copyright infringement.

I have my own views on TPMs but will reserve that for another post.

do lawyers own their pleadings?

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Very interesting (at least to lawyers) post on Slaw about a class action proceeding against Thomson Reuters. In short Thomson has started offering a service where it charges a fee to access a database comprised of pleadings filed by lawyers in court.

Raises a whole number of issues, both in respect of the ownership of the materials themselves and what implied licenses, if any, are being granted by lawyers in filing them with the court, whether to the court, participants in the court and the general public, as well as copyright not necessarily in the materials but the database created by Thomson (which of course in and of itself has value).

Not the first time it’s happened. There was a claim by Milberg Weiss (or at least the threat of a claim) a few years ago. Not sure what happened with it.

statute of anne’s 300th anniversary – good? bad?

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As some of you may know, April 10 marked the 300th anniversary of the Statute of Anne, otherwise known as “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned” and generally recognized as the first copyright statute and the origin of modern copyright law. Of course, in recognition of this milestone, there have been a number of comments, op-eds and articles recognizing the passage of three centuries of copyright law.

I read, with interest, the article on Google’s Public Policy Blog, entitled “Celebrating copyright” which described the effect of the statute as follows:

The Statute of Anne changed this system. For the first time, it granted authors rights to their works, and made it so anyone was eligible for a copyright. In this way, early copyright was anti-authoritarian and directly aimed at promoting free expression by shifting power to writers and away from printers and the state.

It also was aimed at promoting competition and the emergence of new creators and distributors. Rather than perpetual rights, copyrights would only exist for limited terms. This was intended to constrain a monopoly like the Stationers Company from existing in the future. Because any bookseller would be able to reprint valuable works after a certain period, it would be easier for others to enter the market and make these works available to the public.

Compare this with a similar piece published by the Software Freedom Law Centre, simply entitled “The 300th Anniversary of the Statute of Anne“:

By the end of the 17th century, this partnership lapsed, threatening the publishers’ monopoly. The publishers tried repeatedly to reinstitute the scheme, but amidst the growing importance of the electorate and an increasing hostility to private monopolies, all their efforts failed. The publishers had to change their strategy. If they were unable to reestablish copyright all for themselves, the next best thing for them would be to assign property rights directly to authors, who, unable to print and distribute their works on their own, would have no choice but to contract with the publishers. Publishers could then bargain with the authors to get exclusive publication rights, in essence perpetuating their monopoly over books.With this goal in mind, the publishers convinced Parliament that the creation of strong intellectual property rights was essential to encourage the advancement of learning.

So the Statute of Anne was born, and on April 10, 1710, became law.

I find it interesting (though perhaps not surprising) that two different groups can come, more or less, to two seemingly diametrically opposed conclusions regarding the effect, or intended effect, of the statute. Perhaps not surprisingly in this day and age, opinions on copyright do vary significantly. It seems that this variance also happens to find its way into the recounting of history.

love is forever. copyright, not so much

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Most folks who have a significant stake in copyrighted works probably will have already known about this years ago, but this story in Wired highlights the potential cultural impact of copyright termination in the US. A brief excerpt:

The Copyright Act includes two sets of rules for how this works. If an artist or author sold a copyright before 1978 (Section 304), they or their heirs can take it back 56 years later. If the artist or author sold the copyright during or after 1978 (Section 203), they can terminate that grant after 35 years. Assuming all the proper paperwork gets done in time, record labels could lose sound recording copyrights they bought in 1978 starting in 2013, 1979 in 2014, and so on. For 1953-and-earlier music, grants can already be terminated.

The Eagles plan to file grant termination notices by the end of the year, according to Law.com. “It’s going to happen,” said Eveline. “Just think of what the Eagles are doing when they get back their whole catalog. They don’t need a record company now…. You’ll be able to go to Eaglesband.com (updated) and get all their songs. They’re going to do it; it’s coming up.”

…

This isn’t just about music. “It’s every type of copyright,” said Bernstein. “It doesn’t distinguish between the types of copyright.”

The only exceptions, he said, are derivative works such as movies based on novels that include certain music in their soundtracks, because Congress decided it was unfair to ask publishers to give those licenses back to artists and authors.

This has already taken place for a number of high-profile works, such as those of Jack Kirby (who created or co-created a whole host of well-known comic characters for Marvel, such as X-Men and the Fantastic Four), Joel Shuster (Superman) and John Steinbeck.

Although the focus has been primarily on artistic works to date, it will be interesting to see what impact this might have on software authored in that same time frame by non-employees of software companies. Perhaps in this regard the (usually) relatively short lifespan of software due to technological obsolescence is a blessing. So far, I’ve not come across any news regarding termination notices related to software. I don’t expect to, either, though do admit I’m curious as to the possible size of the risk.

copyright infringement and irony

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Interesting article in Wired about a lawsuit against Scribd, the document hosting service. The nub:

The novel lawsuit, filed by a children’s author in Texas last Friday, maintains that Scribd unlawfully copies the text of books and other publications to compare new uploads against the copyrighted work and to block those files from its server.

Without getting too much into the details, Scribd’s defence is that they are using the source materials in question to ensure that its services are not used to infringe copyright in those source materials.

Details aside, Camara speculated that Scribd is likely to license its filtering technology that includes an undisclosed number of digital fingerprinted works. That such filters are good for copyright owners is beside the point, he said.

“In a couple of years of developing this, Scribd might turn around and license it,” he said. “The profits generated from that should be shared.”

Illustrates, somewhat ironically, the dangers fraught with attempting to police infringement, rather than taking a more passive approach. Not that that is without risk either.

A copy of the claim can be found on Scribd.

open source and copyright

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I was intrigued by the title of this artlce in Wired News (which was by way of AP): “Court says copyrights apply even for free software”

Sounded intriguing. Particularly the intro, where it stated that “[i]n a crucial win for the free software movement, a federal appeals court has ruled that even software developers who give away the programming code for their works can sue for copyright infringement if someone misappropriates that material. Interesting, though surprising, since I was of the understanding that it was long settled that software, whether open source or otherwise, was subject to copyright.

I then started reading the article’s analysis of the decision:

Because the code was given away for free, thorny questions emerge when a violation has been discovered and someone is found to have shoved the code into their own for-profit products without giving anything back, in the form of attribution and disclosure of the alterations they made.

Hmmm. That doesn’t sound quite right, as that implies that the fact that there wasn’t a price for the code (or rather the right to use the code) is what gave rise to dispute. In other words, it suggests that because you haven’t paid, the obligation to attribute and disclose alterations may not necessarily be enforceable.

So I decided to take a quick peek at the case. Not quite right. The developer, in this case, was trying to get an injunction (a court order that forces the other party to stop doing something, failing which they get thrown in jail). In order to get an injunction, the person seeking it must show that if the court doesn’t grant it, they will suffer “irreparable harm”. Usually, the burden will be on the person seeking it to demonstrate. However, there is US case law that basically says that in the case of copyright claims, irreparable harm is presumed (subject to certain conditions). In other words, it makes it quite a bit easier to get an injunction.

So, the applicability of copyright in this case was of primary importance as it would determine whether or not the developer would be able to get an injunction, not “because it’s easier to recover monetary damages in a copyright-infringement case” as the article states.

Anyway, it turns out what was at issue in the case really had nothing to do with whether or not the software was open source, or whether or not there was a price associated with it. Instead, it was focused on the very fine (as in detailed-oriented rather than nice) distinction between a condition in a contract and a covenant.

The way a license works is that it grants to the user, through a contract, certain rights to use, copy, etc. the software, but only those rights. So, if you don’t have a contract and use or the software, then you don’t have any rights to do so. That would be a violation of copyright law. Similarly, if you exceed the rights granted to you, that would also be a copyright infringement.

Finally, we come to conditions. Another word that is often used to describe these are provisos. These are things in a license that are tied to the grant of rights – in other words, if you don’t do them, then you don’t have the rights. Its like the “if… then” structure in programming. If you do A, B and C, then you can use the software. And of course, if you don’t, you can’t. Sometimes also worded like this: “You can use the software, provided you do A, B and C”. The effect then, is that if you don’t do A, B and C, then you don’t have a right to use the software. And if you don’t have the right and you use it anyway, then once again you will be infringing copyright.

The “heart” of the case, as the court described it, wasn’t whether or not the software license was paid for or not, but rather whether or not certain obligations to attribute the software to the developer and provide modifications were conditions or rather merely covenants. The distinction is important because a covenant is an obligation that is not tied to the license grant. In other words, if you don’t perform a covenant, you don’t lose your rights to use the software. Sure, you are in breach of the software license, and can be sued for damages, but the key difference is that you are not infringing copyright, since it is not tied to the grant of rights to use the software.

In this case, the defendant was saying that the obligations they breached were only covenants. Therefore, no copyright violation. Therefore, no presumed irreparable harm. Therefore, no injunction. The district court agreed with this.

However, the court of appeal corrected this. Perhaps not surprising, given that the license in question had language such as

The intent of this document is to state the conditions under which a Package may be copied.

The court of appeal further remarked that

The Artistic License also uses the traditional language of conditions by noting that the rights to copy, modify, and distribute are granted “provided that” the conditions are met.

In short, the decision has less to do with open source and more to do with contractual interpretation – in this case, the distinctions between conditions and covenants. The same dispute could have just as well arisen for typical commercial software.

So is this a “crucial win” for the open source community? No, probably not. However, it does serve to illustrate the importance of clear and well-drafted licenses. If you are a developer and want to make sure your software cannot used without the licensee doing certain things, your license must clearly identify those things as conditions.

Almost forgot – for those so inclined, a link to the case (PDF).

Update: I was surprised to see that Lawrence Lessig commented on this same case as being “huge and important news”. Which to me is somewhat surprising, given my comments above. In brief, he noted:

In non-technical terms, the Court has held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you’re simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.

However, the issue – at least the one that seemed to be argued on appeal – was not whether or not free or open software licenses per se could attract copyright violation if they were not adhered to, but rather the more pedestrian question of whether the obligations in the license in question actually constituted conditions as opposed to covenants. Hmmm.

Further update: I had pulled this post for a while because time and time again I kept reading how this was a big win for open source and was rethinking the above. While I certainly think the appeal decision was the right one, I don’t think this should be thought of as a big win for open source, since the findings would seem to apply to any license – i.e. its somewhat like celebrating a victory for bicycle riders because a judge has found that all wheeled vehicles are legal in a case that happens to be about a bicycle being illegal. Anyway, I do plan another post on this one, but more on the reactions and analyses that I’ve been reading rather than the decision itself.