NAFTA must include fair use commitments

I joined with over seventy international copyright law experts today in calling for NAFTA and other trade negotiators to support a set of balanced copyright principles.

Policies like fair use, online safe harbors, and other exceptions and limitations to copyright permit and encourage access to knowledge, flourishing creativity, and innovation.

The following copyright principles are essential to ensure consumers’ digital rights. Copyright law should:

  • Protect and promote copyright balance, including fair use
  • Provide technology-enabling exceptions, such as for search engines and text- and data-mining
  • Include safe harbor provisions to protect online platforms from users’ infringement
  • Ensure legitimate exceptions for anti-circumvention, such as documentary filmmaking, cybersecurity research, and allowing assistive reading technologies for the blind
  • Adhere to existing multilateral commitments on copyright term
  • Guarantee proportionality and due process in copyright enforcement

Measuring the value of copyright and the value of copyright exceptions is methodologically challenging, but if we use the same criteria that WIPO adopts to estimate the value of copyright, then in the U.S., fair use industries represent 16% of annual GDP and employ 18 million American workers.

The Washington Principles on Copyright Balance in Trade Agreements and the new research on Measuring the Impact of Copyright Balance are located at http://infojustice.org/flexible-use

An all new election law course at Loyola Law Chicago in 2018

Election Law Spring 2018
(Thursday 4pm – 6pm)
In an era of computer-aided gerrymandering, foreign interference in our elections, increasingly unchecked campaign finance, systematic voter suppression, and (as yet unsupported) assertions of voter fraud, the study of election law seems more relevant than ever.

In Spring 2018 Loyola Law Chicago will offer a 2 credit course on election law co-taught by an experienced election law litigator, Ruth Greenwood, and Prof. Matthew Sag. Prof. Ruth Greenwood is the Senior Legal Counsel for Voting Rights & Redistricting for the Campaign Legal Center where she worked on the Gill v. Whitford gerrymandering case that was just before the U.S. Supreme Court.

Election Law will give students an understanding of the themes in the legal regulation of elections and politics. It will cover all the major Supreme Court cases with respect to the right to vote, regulation of political parties and candidates, redistricting, race and representation, and campaign finance. The course will also cover voter fraud and vote suppression. Election law is a product of federal and state law, both constitutional and statutory. Consequently, this course provides a good foundation for students interested in constitutional or statutory litigation.

Loyola students please note that the course will be graded by class participation and either a paper or a take-home exam.  This course is available to 1L students as a perspectives elective.

[This is not an official Loyola Law School announcement]

Text Mining, Non-Expressive Use and the Technological Advantage of Fair Use

On March 29, 2017, I attended a fantastic conference on “Globalizing Fair Use: Exploring the Diffusion of General, Open and Flexible Exceptions in Copyright Law” hosted by American University Washington College of Law’s Program and Information Justice and Intellectual Property. As part of that event we held a webcast Q&A session moderated by Sasha Moss of the R Street Institute. The following is rough transcript of my comments in response to Sasha’s questions about the legality of the non-expressive use copyrighted works.

Copyright Questions For the Digital Age

There is no country in the world where simply reading a book and giving someone information about the book, such its subject or themes, whether it uses particular words or particular combinations of words, the number of words, the number of pages, the ratio of female to male pronouns, etc., would amount to copyright infringement.

Why? Because information about the book is not the book. It is metadata. The question for the digital age is, “Can we use computers to produce that kind of data?” This question is important because although I can read a few books and produce some useful metadata, I can’t read a million books. But a computer can.

We have the technology

We have the technology to digitize large collections of books in order to produce data that enables computer scientists, linguists, historians, English professors, and the like, to answer important research questions. The data and the questions it can be used to answer do nothing to communicate the original expression of all those millions of books. However, technically speaking, this kind of digitalization is still copying.

But is this the kind of copying that copyright law should be concerned about? If a tree falls in an empty forest, does it truly make a sound? If something is copied but only read by a computer and the computer only communicates metadata about the work, is that the kind of copying this should amount to copyright infringement?

Text mining is vital for machine learning, automatic translation, and developing the language models

It seems to me, that once you phrase the question that way the answer is clear. We all use this amazing technology on a daily basis when we rely on Internet search engines, but text mining use is about much more than this. By data mining vast quantities of scientific papers, researchers have been able to identify new treatments for diseases. Text mining has also allowed humanities scholars to identify patterns in vast libraries of literature. Text mining is vital for machine learning, automatic translation, and developing the language models the power dictation software.

Fair use and technological advantage

The United States is a world leader in various applications of text mining, starting with Internet search, but going far beyond that. In the United States, once people realized what was possible they more or less start doing it. If Larry Page and Sergy Brin had had the idea for the Google Internet search engine in Canada, Australia, England, or Germany in the 1990s it would have been crystal-clear that because their search engine relied on making copies of other people’s HTML webpages and there was no realistic way to obtain permission from all those people, building search engine would be illegal. In countries with a closed list of copyright exceptions and limitations, or with fair dealing provisions that are tied to specific narrowly defined purposes, a lawyer would have looked at the list and said, “I don’t see Internet search or data mining on that list, so you can’t do it.”

The fair use doctrine reinforces copyright rather than negating it

In the United States, we have the fair use doctrine, which means that the list is not closed. In the United States, the fair use doctrine means you at least get a chance to explain why your particular use of a copyrighted work is for a purpose that promotes the goals of copyright, is reasonable in light of that purpose, and is unlikely to harm the interests of copyright owners. The fair use doctrine reinforces copyright rather than negating it; fair use doesn’t mean that you get to do whatever you want. Fair use is a system for determining how copyright should apply in new situations. That is especially important whether the law was written decades ago and society and technology are changing fast.

Without something like fair use, other countries can only follow the United States

Without something like fair use, other countries can only follow the United States. Non-expressive uses of copyrighted works such as text mining, building an Internet search engine, or running plagiarism detection software have all been held to be fair use in the United States and are slowly becoming more accepted around the world. Of course, now that it is readily apparent that these activities are immensely beneficial and entirely non-prejudicial to the interests of copyright owners we could probably write some specific amendments to the copyright act to make them legal. The problem is, do we didn’t know this two decades ago when we actually needed those rules. I don’t know what the next thing that we don’t know is, but I do know that experience has shown that the flexibility of the fair use doctrine—which has been part of copyright law virtually since the English Statute of Anne in 1710, by the way—has worked better than a system of closed lists.

The fair use doctrine is a real source of competitive advantage for technologists and academic researchers in the United States. Right now, there are technologies being developed and research being done in the United States that either can’t be done in other countries, or can only be done by particular people subject to various arbitrary restrictions. Whether it’s Internet search, digital humanities research, machine learning or cloud computing, other countries have followed the United States in adopting technologies that make non-expressive use of copyrighted works, because some of the copyright risks begin to look less daunting once the practice has become accepted. The Europeans, for example, are pretty sure building a search engine must be legal, but they can’t quite agree why. But the thing to understand is that you can follow this way but you can never lead. It’s much harder to do the new thing if by the letter of the law it is illegal and you have no forum to argue that it should be allowed.

The future doesn’t have a lobby group

Of course, that’s not quite true, you have one forum … you can spend a vast amount of money are lobbyists and go to the government, go to Congress and try to get some favorable rules written. But even if that is successful from time to time, those rules have a particular character. A company that spends millions of dollars on a lobbying campaign to change the law is always going to try and make sure that those new rules only benefit its business. Special interests will get some laws changed, but usually in ways that disadvantage their competitors or exclude alternative technologies that might one day compete with them. The fundamental problem with relying on static lists of copyright exceptions and lobbying to get those lists revised as needed is that the future doesn’t have a lobby group.

If you would like to read more about these topics:

Biotech and IP Workshop at Loyola Law Chicago Today

Loyola University Chicago School of Law is hosting a Faculty Workshop on Biotech and IP  today, organized by Prof. Cynthia Ho.

Topics include:

The Intellectual Property of Ebola and Zika: Lessons for Future

The Unpatentable Microbiome

Prophetic Patents

Speakers and discussants  include:

  • Ana Santos Rutschman (DePaul)
  • John Blum (Loyola)
  • Jordan Paradise (Loyola)
  • Nadia Sawicki (Loyola)
  • Candice Player (Northwestern)
  • Rachel Sachs (Wash U)
  • Alex Krasinov (Loyola)
  • Kevin Outterson (BU)
  • Jay Kesan (U. Illinois)
  • Laura Pedraza-Farina (Northwestern)
  • Janet Freilich (Fordham)
  •  Damon Gupta (Green, Griffith & Borg-Breen)
  • Yaniv Heled (Georgia State)
  • Dave Schwartz (Northwestern)
  • Greg Reilly (Chicago-Kent)

 

The DMCA Safe Harbors With Brief Annotations of Important Cases

I made an annotated version of Section 512 of the Copyright Act — the DMCA Internet Safe Harbors — for my Copyright Law class and I thought that others might find it useful. My thanks to Annemarie Bridy (University of Idaho College of Law) for her helpful suggestions and additions.

Please note that this document an aid to understanding the DMCA safe harbors, it is not comprehensive, nor is it guaranteed to be free from error. Draft date: April 26, 2017.

Download link: The DMCA Safe Harbors With Brief Annotations of Important Cases

 

 

Defense Against the Dark Arts of Copyright Trolling is now forthcoming in the Iowa Law Review.

Defense Against the Dark Arts of Copyright Trolling

Jake Haskell and I have accepted an offer of publication at the Iowa Law Review. Iowa published my empirical study of copyright trolling in 2015, so it seems right to place a follow up piece there as well.

Defense Against the Dark Arts of Copyright Trolling is available now on ssrn (http://ssrn.com/abstract=2933200)

This will be my 4th publication in Iowa since 2015, the others being:

  • IP Litigation in US District Courts: 1994 to 2014, 101 IOWA LAW REVIEW 1065–1112 (2016)
  • Promoting Innovation, 100 IOWA LAW REVIEW 2223–2247 (2015) (with Spencer Weber Waller)
  • Copyright Trolling, An Empirical Study, 100 IOWA LAW REVIEW 1105-1146 (2015)

Internet Safe Harbors and the Transformation of Copyright Law will be published in the Notre Dame Law Review

My article, Internet Safe Harbors and the Transformation of Copyright Law, will be published in the Notre Dame Law Review, Vol. 93, 2017, later this year.

This Article shows how the substantive balance of copyright law has been overshadowed online by the system of intermediary safe harbors enacted as part of the Digital Millennium Copyright Act (“DMCA”) in 1998. The Internet safe harbors and the system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. This article also explores a second divergence: the DMCA’s safe harbor system is being superseded by private agreements between rightsholders and large commercial Internet platforms made in the shadow of those safe harbors. These agreements relate to automatic copyright filtering systems, such as YouTube’s Content ID, that not only return platforms to their gatekeeping role, but encode that role in algorithms and software.

The normative implications of these developments are contestable. Fair use and other axioms of copyright law still nominally apply online; but in practice, the safe harbors and private agreements made in the shadow of those safe harbors are now far more important determinants of online behavior than whether that conduct is, or is not, substantively in compliance with copyright law. The diminished relevance of substantive copyright law to online expression has benefits and costs that appear fundamentally incommensurable. Compared to the offline world, online platforms are typically more permissive of infringement, and more open to new and unexpected speech and new forms of cultural participation. However, speech on these platforms is also more vulnerable to over-reaching claims by rightsholders. There is no easy metric for comparing the value of non-infringing expression enabled by the safe harbors to that which has been unjustifiably suppressed by misuse of the notice-and-takedown system. Likewise, the harm that copyright infringement does to rightsholders is not easy to calculate, nor is it easy to weigh against the many benefits of the safe harbors.

DMCA-plus agreements raise additional considerations. Automatic copyright enforcement systems have obvious advantages for both platforms and rightsholders; they may also allow platforms to be more hospitable to certain types of user content. However, automated enforcement systems may also place an undue burden on fair use and other forms of non-infringing speech. The design of copyright enforcement robots encodes a series of policy choices made by platforms and rightsholders and, as a result, subjects online speech and cultural participation to a new layer of private ordering and private control. In the future, private interests, not public policy will determine the conditions under which users get to participate in online platforms that adopt these systems. In a world where communication and expression is policed by copyright robots, the substantive content of copyright law matters only to the extent that those with power decide that it should matter.

Prenda is gone, but copyright trolling continues

A pattern of “brazen misconduct and relentless fraud”

Like many, I took great satisfaction from reading that John L Steele had plead guilty and acknowledged his role in the “copyright trolling” scheme that took in millions of dollars in settlements from 2010 to 2012.

For a short while, the lawyers at Prenda–Paul Duffy,John L. Steele and Paul R. Hansmeier–were the public face of copyright trolling. According to the courts, Duffy, Steele and Hansmeier engaged in “vexatious litigation designed to coerce settlement” in a pattern of “brazen misconduct and relentless fraud.” They lied to the courts, forged documents, practiced identity theft, placed their own content online so that they could sue people for stealing it, and generally behaved badly.

The scheme worked as follows: lawyers would file copyright suits alleging that some unknown person (John Doe) identified only by their IP address had infringed copyright by using BitTorrent, an online file sharing protocol. The laywers would file a case against “John Does 1- 1000” and pursuade the court to let them subpoena ISPs to get the subscriber details that matched those IP addresses. They would threaten those newly unmasked John Does and demand payment to drop the suit. Otherwise, Does alleged pornography viewing habits would be exposed to the world and he would probably end up paying tens of thousands in statutory damages.

Prenda is gone, but copyright trolling continues

Duffy died in 2015. Steele and Hansmeier were placed under federal indictment in December 2016 for “an elaborate scheme to fraudulently obtain millions of dollars in copyright lawsuit settlements by deceiving state and federal courts throughout the country.” And now that Steele has plead guilty to those charges, Hansmeier’s conviction seems like a certainty.

It is satisfying to see justice finally catch up with Steele and Hansmeier, but anyone who thinks that this is the end of copyright trolling has not been paying attention. In fact, other than a brief hiccup in early 2016, the filing of lawsuits designed to extract settlements from alleged online pirates has only increased since Prenda went out of business.

As my co-author, Jake Haskell, and I will show in a paper to be made public next week (we are proofreading right now), in the post-Prenda era, lawsuits filed against John Doe defendant made up more than 52% of all copyright cases in in the United States in 2014 and 58% in 2015. The number of suits dropped slightly after Malibu Media lost a case on summary judgment in January 2016, but the rate of filing is increasing again. Even so, between 2014 and 2016 copyright trolling accounted for 49.8% of the federal copyright docket.

Our analysis of the federal court filing records indicates that in 2016, the average number of defendants in each of the John Doe cases was 4.7 on a conservative estimate . In other words, although there were 1,362 John Doe copyright cases filed last year, 6,483 individual defendants were targeted. Without doubt, some of those people were illegally downloading movies, but a great many were not.

The new breed of plaintiffs who filled Prenda’s shoes are different to Prenda, but not different enough. The plaintiffs’ claims of infringement still rely on poorly substantiated form pleading and are targeted indiscriminately at non-infringers as well as infringers. Plaintiffs have realized that there is no need to invest in a case that could actually be proven in court, or in forensic systems that reliably identify infringement without a large ratio of false positives. Their lawsuits are filed primarily to generate a list of targets for collection; and are unlikely-in our view-to withstand the scrutiny of contested litigation.

The human cost of copyright trolling is significant. It is true that sometimes the plaintiffs get lucky and target an actual infringer who is motivated to settle. But even when the infringement has not occurred or where the infringer has been misidentified, some combination of the threat of statutory damages of up to $150,000 for a single download, tough talk, and technological doublespeak are usually enough to intimidate even innocent defendants into settling.

In our paper, titled “Defense Against the Dark Arts of Copyright Trolling” (available on ssrn.com next week, if all goes to plan), we  undertake a detailed analysis of the legal and factual underpinnings of these online file sharing cases against John Doe defendants. We analyze the weaknesses of the typical plaintiff’s case and integrate that analysis into a comprehensive strategy roadmap for defense lawyers and pro se defendants. In short, as our title suggests, we aim provide a comprehensive and useful guide to the defense against the dark arts of copyright trolling.

 

My letter to the Illinois AG re eBay’s Buyer Protection Program

The letter is mostly the same as my previous posts One More Sign World Is Shrinking – eBay is for Suckers and Are eBay sellers the ultimate customer, or the ultimate consumable? #brickscam

You can read the full text here, ebay-illinois-ag-letter.

I would also like to note that I made good on my promise to donate my refund to the very worthy cause of Doctors Without Borders. Syrian refugees need that money a lot more than eBay or me.

screenshot-2016-12-20-18-55-36

I will post updates if there is anything to update.

 

Are eBay sellers the ultimate customer, or the ultimate consumable? #brickscam

This post is a recap and extension on my post about eBay from a couple of days ago. I have learned a lot since that post, much of it from comments and emails. Thanks to everyone who provided helpful information!

The Brick Scam

The Brick scam works as follows: overseas criminals use remail services to disguise their identities and pretend to be residing in the United States. These criminals buy valuable or easily tradable items such as an Apple iPhone on eBay auctions, falsely claim that the item is damaged or wrongly described, insist on returning the item, but instead return something else entirely worthless. Sometimes it is a brick–thus the name–in my case it was a worthless Samsung phone from last century.

screenshot-2016-12-16-17-53-09

 

Why does the Brick Scam work?

eBay recently instituted a “Buyer Protection Program” which essentially compels eBay sellers to accept returns regardless of whether they have indicated a willingness to do so or not. This practice is deceptive .

eBay’s “Buyer Protection Program” resolves disputes between buyers and sellers in favor of the buyer by default, essentially unless the buyer admits dishonesty. In effect, there is no way for the seller to prove that buyer sent back a brick rather than an iPhone. The criminal thus obtains a refund from eBay and gets to keep the item as well.

Although the immediate cause of this problem is fraudulent buyers, eBay plays a significant role. Sellers on eBay are induced into a vulnerable position by eBay’s misleading practices and the fraud is made possible by eBay’s “Buyer Protection Program” enforced on sellers as a contract of adhesion.

This is what happened to me

In October sold a very slightly used iPhone 6S on eBay, received payment and promptly shipped the phone. The buyer waited a few days after receiving my iPhone and then contrived a disagreement claiming that the phone was damaged and not as described. Although I did not agree to accept returns when I listed the item, in part to protect myself against unscrupulous buyers, I soon learned that eBay forces you to accept returns.

By appearing to give me the option to not accept returns and then forcing me accept returns eBay exposed me to the very kind of fraudulent conduct I had tried to avoid. I believe that eBay’s conduct in this regard is deceptive and, notwithstanding terms and conditions buried in the fine print of eBay’s terms and conditions, I was deceived.

On November 14, 2016, I received this package from the Ukraine with a customs declaration describing the contents as “phone used”. Occasionally you might read the description “suspicious looking package” in the media wondered what exactly makes a package look suspicious? It looks like this:

screenshot-2016-12-14-15-04-48

Given that I had shipped the iPhone to an address in Delaware and that my address on Lake Shore Drive in Chicago was written as “LK Shr Dr” I was immediately suspicious. I took photos as I unboxed the packaged and I did so in the presence of a witness. The phone that I received to replace my mint condition gold iPhone was a beaten up old Samsung. I didn’t even know Samsung made phones like this – it looks almost exactly like an old Nokia that I had in 2002.

I thought I was dealing with a verified buyer in the US because that is what eBay and PayPal told me and I don’t accept international bids (to protect myself from fraud!). I now realize that the buyer’s address was just a box at a remail service, Ukraine Express.

screenshot-2016-12-16-18-12-53

Ukraine Express’s address comes up with a number of fraud related posts when you type it into Google.

The buyer in this story trades on eBay under the name “plasmacompany” and claims to be Dmitriy Dubogray, doing business as ITG EXPRESS, 78 McCullough Dr # 11051, New Castle, DE 19726-2079. But according to PayPal, the buyer is Vadim Grebenyk ‏(Vadex1960@gmail.com). 78 McCullough Dr., New Castle DE 19726 is the office of Ukraine Express, a remailer. Ukraine Express may be ignorant of  the fraudulent transactions that pass through its doors. Maybe?

eBay’s dispute process feels like a shell game

I tried to raise all this with eBay. I explained that the buyer had returned a worthless 10-year-old phone in exchange for the mint condition iPhone 6 I had sold. I offered to provide pictures.

I didn’t know about the Brick Scam when this happened. I did not know about remail services either. But eBay surely knows about such things! So I still can’t understand why when I told eBay that received a worthless peice of plastic for my $465 iPhone from the Ukraine, and they could see by the USPS tracking number (RF611652494UA) that I was right, why they would side with the buyer over me.

On November 25, eBay “resolved” this case in favor of the buyer with the following explanation. “The item has been delivered to you. eBay Customer Service is refunding the buyer and debiting your PayPal account for reimbursement. We understand how frustrating it is that the items condition changed but, unfortunately, we didn’t receive proof that the buyer caused the issue.”

case-is-closed

Really? Could they possibly realize how frustrating this is? 

screenshot-2016-12-16-18-40-52

In addition to this galling faux-sympathy, what this note does not explain is that eBay never gave me any opportunity to submit any proof of buyer fraud.

To cut a long story just a bit shorter, on November 26, 2016, I attempted to appeal this decision. I was not successful. eBay sent me several messages demanding payment and eventually extracted $424 from my PayPal account despite my protests.

Public Reaction

A couple of days ago I posted about this experience . The post attracted some attention on twitter and was reposted to Ycombinator’s Hacker News forum. The comments on that site were illuminating as were many posts on twitter and several direct emails. Thanks!

From these comments I learned about the Brick Scam.

“As in ‘you can’t sell apple stuff on ebay anymore because of the brick scam’. Usually, they send you a return package with a rock or brick inside approximating the weight of the original package. Its famous enough at this point that its impossible that ebay is unaware. They are fully aware and are choosing to continue to profit off of this. So much so that the “shell game” the author faced is likely scripted by this point.” Comment on Hacker News

I also learned that many people believe that eBay doesn’t have much interest in preventing fraud on small sellers.

“Ebay consumes sellers as a raw material as part of the process.” Same comment as above on Hacker News

“I used to work at eBay Trust and Safety. The place is a nightmare and will not improve. … This kind of fraud sticks out like a sore thumb in click stream. I had no trouble finding fraud and building algorithms to automatically detect it but I did find it impossible finding someone at eBay who cared enough to do anything about it. eBay still gets paid so no one wants to be in charge of a revenue hit. I doubt that’s changed.” A different comment on Hacker News

Thanks to that public reaction I got a very polite call from eBay today  informing me that it would reverse the outcome of my case and issue a refund.

screenshot-2016-12-16-19-06-33

What should be done?

I am writing to the Illinois Attorney General’s Consumer Fraud Unit to ask them to investigate. Obviously the chances to catching up with Vadim Grebenyk are slim to none, but I am hoping to convince them to attack this problem upstream.

I also hope that eBay is genuinely interested in looking after small sellers and that we are not as disposable as this process made me feel.

So, eBay, if you are still reading, I have some suggestions.

  • eBay should make it clear to sellers that they will be forced to accept returns, no matter what; and that either (i) there is no way for a seller to prove they received a brick in the mail as opposed to the valuable item they sold, or (ii) how to establish such proof.
    • People online have suggested video-taping your return unboxing, but I don’t think they would accept that as proof either.
  • To combat remailer fraud eBay should give the seller the benefit of the doubt whenever the shipping address for a return does not match address to which the item was shipped.
  • Also, sellers willing to pay for such a service should be able to insist that items are returned through a domestic pack and ship service to prevent fraud.
  • Finally, eBay should proactively identify remail services and block accounts using those services.

What am going to do with the money?

Was it worth the time and frustration to get back $400? Not really. To prove to myself that I don’t care about the money I am going to take the money eBay refunds to me and donate it to Doctors Without Borders.