Law and Information

The EFF has made availabe, among others, the Grokster amicus brief submitted by Harvard Law School faculty members and Berkman Center directors Professor William Fisher, Professor Jonathan Zittrain, and John Palfrey.

Read Derek Slater‘s initial comments on a recent Cato Report on P2P and DRM — good stuff, as always (thanks, Derek).

Read today’s NYTimes story on the media and PR-battle over P2P: As Piracy Battle Nears Supreme Court, the Messages Grow Manic. The article quotes, among others, our colleague/cyberscholar Susan Crawford.

The German National Library reached an agreement with the German Federation of the Phonographic Industry and the German Booksellers and Publishers Association on the circumvention of technological protection measures (TPM) such as access and copy controls on CDs, CD-ROMs, and e-books. See also here and here.

According to the press release (English version via this site), the German National Library got a “license to copy” techno-protected digital content for “own archiving, for scientific purposes of users, for collections for schools or educational purposes, for instruction and research as well as of works that are out of print.” To avoid misuses, the library “will check user’s interest” for a copy of the technologically protected content. Further, the copies, which are subject to a fee, “will as far as possible be personalized by a digital watermark.” (Press release.)

Let’s recall the legal background of this agreement as recently described in this paper:

Article 6(4) of the EU Copyright Directive (EUCD) addresses the situation where beneficiaries of certain copyright exceptions provided for in article 5 EUCD are hindered from making use of those exceptions due to the technological lock-down of the work. It is under article 6(4) where the balance between the interests of rightholders and holders of related rights using technological protection measures on the one hand and the public on the other can be struck. The exceptions set out in article 6(4) are divided into two categories: the ‘public policy exceptions’ and the ‘private copying exception’. The public policy exceptions listed in article 6(4) – i.e. exceptions in relation to photocopying, copy and archive purposes of educational facilities, broadcaster’s own ephemeral recordings, non-commercial broadcasts, teaching and research, use by disabled individuals, and public safety – are mandatory. However, recital 51 EUCD makes clear that member states should take appropriate measures only in absence of “voluntary measures taken by rightholders, including the conclusion and implementation of agreements between rightholders and other parties”. However, according to article 6(4) subpara. 4, this exception do not apply to “on-demand”-services, i.e. works “made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.”

Against this backdrop, the German Copyright Act, transposing the EUCD into national law, stipulates that the rightholders are obligated to make available the necessary means which enable certain categories of permissible uses. Some of the exceptions and limitations, respectively, also apply to digital media, but others not (click here for an overview.) Furthermore, the Copyright Act does not define how this obligation must be accomplished. However, � 95b(2) provides a remedy against someone who violates the make-available obligation. According to this provision, someone who fails to make available the necessary means can be sued by the beneficiary.

In accordance with the EUCD’s approach, the German legislator hoped that agreements between rightholders and consumers/users associations will be reached. (See here). It seems that the agreement between the German National Library and the above-mentioned associations is an important step forward.

The Berkman Center’s Digital Media Project team has released one new and one updated report on the current state of the digital media ecosystem. One report is an update of the 2003 foundational White Paper by the Berkman Center and GartnerG2 on Copyright Law in a Post-Napster World. The updated edition includes the following:

• Updated business model section that includes new survey data and an overview of “legitimate” P2P stores like Wippit and Weed (Chapter 2)
• Updated and expanded analysis of legal cases and decisions relevant in the digital media space, including a brief discussion of Grokster and RIAA v. Verizon (Chapter 3)
• Revised subsection on international enforcement issues like jurisdictional questions among nations (Chapter 3)
• Updated section on regulatory developments like provisions related to the broadcast flag and digital radio, as well as proposed laws in the U.S. such as the INDUCE Act (Chapter 4)
• Expanded chapter on DRM systems including new standards, challenges, and policy issues related to the use of DRM (Chapter 5)
• Updated outlook for the future (Chapter 6)

In addition, we’ve written an International Supplement to the White Paper, which examines the transition from analog/offline to digital/online media from an international legal perspective. Here’s the abstract/overview of the Supplement:

Comments, as always, are most welcome.

Michael Geist notes in his weekly Toronto Star Law Bytes column (free registration required) that decades of international IP agreements “have failed to balance the interests of the developed and developing worlds and have led to annual outflows of billions of dollars from the developing world to the developed world.” As to copyright law in particular, Geist concludes that the WIPO’s development agenda provides “the first chance in years to fashion a global intellectual property policy that helps, rather than hinders, the developing world.” Let’s make sure that Geist’s vision comes true.

BTW, a new Berkman report on copyright law and digital media in Europe and the Asia/Pacific region will be released here within the next few days, togehter with an updated version of the foundational GartnerG2/Berkman Center White Paper “Copyright and Digital Media in a Post-Napster World.”

Our colleagues at the Institute for Information Law (IViR) at the University of Amsterdam released, as part of the INDICARE project, an interesting report on Digital Rights Management and Consumer Acceptability. It seeks to provide an overview of the state of the (European) discussion from a multi-disciplinary perspective, and analyzes social, legal, technical, and economic issues.

The report concludes that surprisingly little is know about consumers’ acceptance level of DRM, and what users’ expectations are regarding the use of digital content. The report, inter alia, calls for a better involvement of the consumer side and a joint dialogue between the market players.

The report will be updated. Three pointers to Berkman reports and papers in this context:

* re section 6.5 of the report on alternative business models, see also “Content and Control: Assessing the Impact of Policy Choices on Potential Online Business Modles in the Music and Film Industries.”

* re section 4.2 on the EU-Copyright Directive, see also “Transposing the Copyright Directive: Legal Protection of Technological Measures in EU-Member States,” and the respective Berkman project website.

* re section 4.4 on interoperability, see John Palfrey, Holding Out for an Interoperable DRM Standard, in Christoph Beat Graber, Carlo Govoni, Michael Girsberger, and Mira Nenova (eds.), Digital Rights Management: The End of Collecting Societies? (Forthcoming, April 2005.)

The Berkman Center’s Digital Media Project team has released an in-depth analysis of the impacts of policy choises on emerging business models in the music and film industries. Here’s the link to the paper and the abstract:

The online environment and new digital technologies threaten the viability of the music and film industries’ traditional business models. The industries have responded by seeking government intervention, among other means, to protect their traditional models as well as by developing new models specifically adapted to the online market. Industry activity and public debate have focused on three key policy areas related to copyright holders’ control of content: technical interference with and potential liability of P2P services; copyright infringers’ civil and criminal liability; and legal reinforcement of digital rights management technologies (DRM).

Special thanks — and congratulations — to Derek Slater and Meg Smith of the Berkman team for their work.

Update on the EUCD implementation:

* Being in Tallinn, I’ve learned (thanks to Peeter Marvet) that the Parliament transposed the EU-Copyright Directive into Estonian law on September 22, 2004. I haven’t yet seen an English translation, but will add it to the Berkman Center’s project website as soon as it becomes available.

* Recently, the ECJ declared that United Kingdom failed to fulfill its obligations under the EUCD, since the UK has not transposed the directive into the law applicable to Gibraltar within the required timeframe. See Judgment.

* Spain takes a new attempt to implement the EUCD.

* Update (5/01/05): Lithuania has finalized the implementation of the EUCD, according to an email by Professor Mindaugas Kiskis. Mindaugas explains: “Implementation of the EUCD in Lithuania is not based on single piece of legislation, both the Law on Copyright and Related Rights, and the Criminal Code contain relevant provisions. Let me explain that 5 March 2003 Law only finalized the implementation of the EUCD in Lithuania, which was effectively started by 20 April 2000 amendments of the Criminal Code. The latter amendments were part of Lithuania’s adherence to the WCT.” We will update our website. Thanks to Mindaugas, who has been directly involved in drafting Lithuanian copyright legislation, for clarification.

Yesterday was the IP-day at iLaw Eurasia, a five-day program about ICT policy organized by the Berkman Center, the eGovernance Academy Estonia, the Center for Democracy and Technology, the Advanced Network Research Group at the University of Cambridge, and the Open Society Institute. In the first session, Professor Terry Fisher provided a fantastic introduction to IP law in cyberspace in general and the current tussles over digital media in particular. He also analyzed and evaluated scenarios for the future of digital media, including approaches such as strengthening IP rights, self-help, and alternative compensation systems. I had the pleasure to talk about the implementation of the EU Copyright Directive and discuss basic policy approaches and -choices in the context of anti-circumvention legislation. We used the implementation of the EUCD as an example to illustrate some of the thorny problems often associated with the transposition of EU-IP directives and harmonizing treaty law more generally: Scope and definitions, exceptions and limitations, and sanction and remedies.

In a second module, we were discussing IP protection of computer software. Terry started the session with an excellent lecture, offering a comprehensive overview of the different approaches to – and the evolution of – software protection by law. Much of the subsequent discussion, most ably led by Berkman Center’s Excecutive Director and iLaw program chair John Palfrey, was about the promise of Free/Open Source Software in Eurasia. Many of the fifty representatives from government, the private sector, and civil society in Eurasia emphasized the important role of OSS in creating a more sustainable information industry in economically less developed countries. However, we also discussed potential problems related to OSS, such as documentation, training, maintenance, etc., and legal risks associated with it. In this context, we touched upon potential concerns such as liability and (increased?) exposure to IP litigation – a much discussed topic here and abroad, given recent litigation in the U.S.

Our fabulous Mary Bridges, Communication Director at the Berkman Center, has summarized some of the take-away points from yesterday’s discussion.