Recommended reading, 24 January – 6 February 2013

Double edition! At the end of January, I was caught up in the excitement of the official launch of CREATe.  I was taking notes on laptop and paper, so more to follow on that soon.

News, blog posts, etc

Eric Goldman, ‘17 USC 512(f) Is Dead–Lenz v. Universal Music‘ (Technology & Marketing Law Blog 25 January 2013). Goldman discusses the latest decision in the Lenz case (the infamous ‘kid dancing to Prince‘ video and how it was taken down at the request of the record label).  He reports on the way in which section 512(f) of the DMCA (misrepresentation in takedown notices) has been read in a narrow fashion by the court and argues that it will have little purpose in the future.  This is interesting (as is his neat point that because a lot of takedowns now happen outside of the DMCA process, it’s already becoming irrelevant) – for me, having argued that the EU should apply its ‘groundless threats’ approach to notice and takedown to come into line with the DMCA, it’s a warning to draft that suggestion more carefully.

Mike Madison, ‘Coulton, Glee, and Copyright‘ (Madisonian 28 January 2013). On a theme of legal and other considerations – this is an article responding to a scandal which I confess had escaped me (involving Glee!), about a legal issue I’m more familiar with ‘covers of covers’.  For the interest of non-US readers – this is a particular feature of US copyright law where a ‘cover version’ can be the subject of a compulsory licence.  (Actually – as discussed in the post – this isn’t always the solution, as there can be negotiation or going through the Harry Fox Agency instead).  However the situation here (the rights of B in its cover version of A’s composition against C’s cover version of A which is derived from B’s) may stretch the effectiveness of that solution (and, as Madison talks about in the second half of his post, suggest questions about the purpose of the law and about the ethics of the situation.

WhatsApp breaches privacy laws‘ (CBC News 28 January 2013). You know I like stories about apps.  This one is about one of the success stories of last year, WhatsApp (instant messaging).  As the CBC story explains, the Privacy Commissioner of Canada (along with equivalent authorities in the Netherlands) has investigated a bunch of issues regarding the service and privacy.  Some were resolved through changes to the operation of the service, but one major continuing breach was noted – the requirement to grant access to full address books in order to use the service.  The full report is here.

Liat Clark, ‘WTO grants Antigua right to launch ‘pirate’ site selling US media‘ (Wired UK 29 January 2013).  This story, widely reported during this period, is about Antigua’s success before the World Trade Organisation (some time ago now – see case file DS285) in its criticism of US violation of world trade law in respect of the regulation of online gambling.  As suggested for a few year now – but now getting more likely as the measure has been approved – it proposes to use the WTO mechanism of trade retaliation, because the US has failed to implement the binding decision of the dispute settlement process.  The US is professing shock and dismay.  However, as a strong proponent of free trade (and indeed the sanctions associated with the WTO process), I’m sure that an understanding can be reached.  Remember: the US took the case to an appeal and lost, and arbitration has also been pursued.

Jason Del Rey, ‘YouTube Set to Introduce Paid Subscriptions This Spring‘ (Advertising Age 29 January 2013). There’s been a flurry of stories in 2013 about how to build a model of charging for video-on-demand; this story explains the proposal to identify selected channels and charge a monthly (and possibly PPV) fee.  Answers on a postcard – will this, if it succeeds, encourage broadcaster-managed non-archive VOD (e.g. the ‘catchup’ bit of 4od, for example) to try and build a charging system – and if so, is it Spotify-style or micropayments per programme?  (I say non-archive VOD because there is a relatively clear mixed economy emerging for archive VOD with various forms of charging and ad support)

Kevin Chao, ‘Mobile Kills the Console But Advances the Gaming Industry‘ (Wired 31 January 2013). Is this finally the year of mobile gaming?  Lovely stats here and a framing of the issue as being about reach, engagement and monetization.  (There is however an ongoing and very significant issue in the UK – and no doubt elsewhere – about monetization and mobile, the role of mobile network operators vs (e.g.) Facebook credits vs other models and the role of PhonePayPlus (regulates premium rate calls and texts which is one of the ways the charge can be set) – see the very perceptive market study for that very organisation.

Bob Tarantino, ‘What the *BLEEP*? Coarse Language in Radio Broadcasts‘ (Entertainment & Media Law Signal 31 January 2013).  Round-up of Canadian broadcast standard decisions on language and radio.  (On that note, I noted subsequently how the New York Times reported the well-deserved Grammy success of Jay-Z & Kanye West as being for ‘___ in Paris’, and the awkward pacing of the bowdlerised broadcast version of the new UK no. 1 single, Thrift Shop; compare the editing on this page (short silencing of the offending part making the result ‘This is ___ing awesome’) with what actually went on air in the chart show (looping, making the result ‘This is aws-aws-awesome’), here at 2h54m)

Josh Halliday, ‘YouTube study shows children ‘three clicks away from explicit material’‘ (Guardian 5 February 2013).  Oh dear.  Apparently if you find a video aimed at children and then click and then click and click again you end up at a less suitable video.  Traumatic I’m sure, but has anyone figured out a way to prevent that without making ‘related videos’ completely unworkable?  Say a video has 20 ‘similar video’ links, then by the third click we are at up to 8000 possible videos – and by click five it’s over three million possibilities.  See also Six Degrees of Separation, etc.

Adrienne Jeffries, ‘Why Amazon wants its own currency‘ (The Verge 5 February 2013). I was reminded about The Verge by a student recently – just in time for this piece on e-money, with a nice approach to the practical as well as legal or technological reasons to adopt a particular model of payment.

Patrick Wintour, ‘Peers pass low-cost arbitration law for victims of press defamation‘ (Guardian 6 February 2013). Somewhat overtaken by events since, but this was a tricky development in the post-Leveson story – specifically, adding in one bit of the recommendations to the Defamation Bill.  Although I’m not convinced by this approach, I still hold to the view that the Defamation Bill needs to be properly linked up with the Leveson settlement.  I appreciate that some people have waited a long time for defamation reform, and that there is work that needs to be done…but its changes will be more legitimate and sustainable if they form part of the new approach to press regulation (particularly as many of the Bill’s changes are specifically defended as pro-press).

The importance of being exempt

Under the Digital Millennium Copyright Act of 1998 (DMCA), the US copyright statute known for many things including provisions on intermediary liability, bringing US law into line with the ‘new’ WIPO treaties (WCT, WPPT) and more. One of these provisions relates to anti-circumvention, in US law as 17 USC 1201:

No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

One of the more controversial provisions of US copyright law, justifying by law the enforcement of digital rights (or restrictions) management (DRM) it does however contain some limited exemptions. Some are set out in the text of section 1201 itself, such as one for law enforcement and others (though limited) for certain kinds of research and development (encryption research, reverse engineering, etc). However, further exemptions can be issued by the Library of Congress working with the Copyright Office (according to specified criteria and following a formal ‘rulemaking’ – a much-loved or much-loathed feature of US administrative law!), lasting for three years and requiring re-enactment for each cycle.

The ability to add to the exemptions is an important one, and one that is perhaps quite appropriate to legislation of this nature. Faced with the fool’s choice between writing detailed new legislation for each social or technical need, or writing bland ‘neutral’ legislation that studiously avoids mentioning anything at all, establishing a process that enables the purpose of the legislation (not just ‘the ban’ but ‘the exemptions’ too!) to continue is helpful, and perhaps more importantly, given the difficulty that non-commercial users in particular have in gaining access to the IP legislative process in the US, can be an important deliberative moment and an opportunity to consider the impact of the core provision in question. One possibly troubling aspect is the requirement to reapply in each round – while it’s probably sensible, it does make the development of applications, technologies etc in an exempted area quite a risky one (and I can imagine the response of the bank being asked for a loan by one of those developers…). On balance, though, it’s an approach deserving of some consideration.

In the last round (2006), six categories were declared as exempt from s 1201, ranging from allowing higher education libraries to circumvent copy protection to create classroom materials (though it does amuse me that it is restricted to materials in the library of a “film or media studies department” for use by “media studies or film professors” – leaving high and dry my American colleagues who teach about media in law schools) to allowing ebooks to be accessed by speech-to-text software. Many others were turned down, including some requests for ‘all fair uses’ (unlikely) and making DVDs work on Linux (which is quite a totemic issue when it comes to circumvention).

This time around, a number of submissions (like this one and this one) argue not just for keeping the film-clips-in-the-classroom exemption but for extending it to the entire range of disciplines. There’s in fact a whole load of submissions making a good case for something that really should have been in the legislation to begin with.

The full list of submissions is here, with some discussed at this handy post by Christopher Soghoian, who contributes to one of the most detailed submissions, that relating to the type of online music/video/whatever store ‘vulnerable to similar loss of usage in the event of a shutdown, breakage or obsolescence of the stores’ authenticating servers’ (hello, Google Video)

With thanks to David Weinberger for letting me know that this important day had rolled around once more. Let’s see what comes of it.