Copyright Alert Enforcement: Six Strikes and Privacy Harms

Copyright holders have deployed a wide range of enforcement strategies this past decade. In an initial, punitive stage, content industries targeted individual copyright infringers by way of an extensive settlement demand campaign and obtained statutory damage awards in a few high profile file-sharing lawsuits. Recently however, copyright holders drastically reversed course, abandoning punitive measures in favor of a “copyright information approach” that enlists Internet service providers into sending copyright infringement notifications to subscribers. Commentators have welcomed this shift towards copyright alert systems as providing a more balanced approach to copyright enforcement that might improve copyright law’s normative acceptance. Copyright industries are optimistic that the new copyright alert system will increase copyright awareness and decrease copyright infringing behavior. This Article shows that the optimism with copyright law’s recent developments is misplaced. Based on social science research and insights from an empirical study conducted for this Article, we argue that architects of the copyright alert system have underestimated the robustness of social norms and have failed to anticipate the negative reactions to a copyright information system, in particular as relating to privacy harms.

The paradigmatic roles of copyright and patent laws have been, respectively, to protect original authorial expressions from illicit copying and novel and nonobvious functional designs (if they have been appropriately claimed and examined by patent officials) from illicit uses. It would be convenient if copyright law could be assigned the role of protecting the expression in computer programs and patent law the role of protecting program functionality. While courts continue to try to distinguish between program expression and program functionality, this distinction has proven elusive in the decades since the U.S. Congress decided to extend copyright protection to computer programs.For more than twenty years, a series of court cases have held that copyright infringement does not occur when a second comer needs to copy some aspects of another firm’s program in order to achieve compatibility with other programs. Courts have deemed the functional requirements for achieving compatibility to be unprotectable elements of these copyrighted programs, even though more than a modicum of creativity may have imparted originality to these elements.The seeming consensus that program interfaces necessary for interoperability are unprotectable by copyright law was recently called into question by the Court of Appeals for the Federal Circuit (CAFC) in Oracle Am., Inc. v. Google Inc. At issue was whether the command structure of certain elements of the Java application program interface (API) was protectable by copyright law. The CAFC reversed a lower court ruling that this command structure was an unprotectable method of operation, or alternatively that copyright protection was unavailable under the merger doctrine. The CAFC was untroubled by the prospect that software developers might obtain both patent and copyright protection for APIs of computer programs. There was, in its view, no need to sort out functionality and expression in computer programs. Copyright could protect both as long as there was a modicum of creativity to support the claim of copyright. The Oracle decision has rekindled a decades-old debate, which many had thought had been settled in the late 1990s, about the proper scope of copyright protection for computer programs and how courts should go about analyzing claims of software copyright infringement. The U.S. Supreme Court decision not to review the Oracle decision leaves the CAFC ruling intact for the time being.This Article takes issue with the CAFC’s ruling and analysis. It aims to provide guidance about how courts should assess claims of copyright infringement in computer program cases. Part II reviews some key software copyright decisions and explains why the Second Circuit’s test for software copyright infringement is more compatible with traditional principles of copyright law than the Third Circuit’s is-there-any-other-way-to-do-it test. The Second Circuit recognized that sometimes external factors, such as the need to be compatible with other programs, constrain the design decisions of subsequent programmers, and when this happens, those constraints limit the scope of copyright protection in programs. While there is much in the Second Circuit’s ruling to praise, that court failed to heed the statutory directive in 17 U.S.C. § 102(b) that procedures, processes, systems, and methods of operation should also be filtered out before making judgments on copyright infringement claims in software cases. Part III articulates five propositions about § 102(b) that should be uncontroversial. It explains the important role that § 102(b) has played in numerous computer program cases. It goes on to discuss numerous respects in which the CAFC in Oracle misinterpreted § 102(b), as well as numerous cases in which courts have held that aspects of programs that are necessary for achieving interoperability with other programs or hardware are too functional to be protected by copyrights. Part IV explains why the merger doctrine has an important role to play in the assessment of infringement claims involving computer programs and why the CAFC erred in its interpretation of this doctrine. Courts should explicitly recognize a merger of function and expression doctrine in computer program cases. This doctrine usefully complements analysis of elements that may be unprotectable under § 102(b) as necessary incidents to the reimplementation of an unprotectable method or process.Part V considers the roles that copyright and patent law should play in protecting program innovations, with particular attention to how courts should assess claims that copyright protection should be unavailable to aspects of programs that might be eligible for patent protection. The CAFC in Oracle conflated copyright and utility patent protections for software as though it was unnecessary to even try to distinguish program expression and functionality. Part VI offers a pragmatic approach to distinguishing between program functionality and expression in copyright cases and a refinement of the Second Circuit’s test for software copyright infringement that is consistent with the overwhelming majority of software copyright cases (even if not with the CAFC’s Oracle decision) and traditional principles of copyright law. Competition and ongoing innovation will better thrive when the scope of copyright protection is relatively thin, allowing programmers to reuse functional design elements and know how that will promote the progress of science and useful arts, as the Constitution directs.

The rising popularity of streaming has resulted in a revolutionary change to how digital content, such as sound recordings, cinematographic films, and radio and television broadcasts, is used on the internet. Superseding the conventional method of downloading, using streaming to access digital content has challenged copyright law, because it is not clear whether end-user acts of streaming constitute copyright infringement. These prevailing grey areas between copyright and streaming often make end-users feel doubtful about accessing digital content through streaming. It is uncertain whether exercising the right of reproduction is appropriately suited for streaming, given the ambiguities of “embodiment” and scope of “substantial part”. Conversely, the fair dealing defence in Australia cannot be used aptly to defend end-users’ acts of streaming digital content, because the use of streaming to access digital content rarely falls within the defences specified under fair dealing. When considering a temporary copy exception, end-users are at risk of being held liable for infringement when using streaming to access a website that contains infringing digital content, even if they lack any knowledge about the content’s infringing nature. Moreover, the grey areas in circumventing geo-blocking have made end-users hesitant to access websites through streaming because it not clear whether technological protection measures apply to geoblocking. End-users have a severe lack of knowledge about whether they can use circumvention methods, such as virtual private networks, to access streaming websites without being held liable for copyright infringement. Despite the intricacies between copyright and access to digital content, the recently implemented website-blocking laws have emboldened copyright owners while suppressing end-users’ access to digital content. This is because the principles of proportionality and public interest have been given less attention when determining website-blocking injunctions. This thesis examines the challenges posed to Australian copyright law by streaming, from the end-user perspective. It argues that continuous attempts to adapt traditional copyright principles into streaming, a novel technological advancement, are futile. This thesis compares the Australian position with the European Union and United States to draw lessons from them, regarding how they have dealt with streaming and copyright. By critically examining the technological functionality of streaming and the failure of copyright enforcement against the masses, it argues for strengthening end-user rights. Although it is difficult to reach copyright equilibrium by counterpoising copyright owners’ interests with copyright users’ interests, this thesis argues that deploying an appropriate balance is pivotal to expand end-user rights. This analysis of the current copyright law regime, from the end-user standpoint in respect to novel technologies such as streaming, opens up new terrain for future research, on how copyright law should address new technologies to benefit society.

Initially the scope of copyright protection only focused on conventional objects of creation. However, along with technological developments and advances, the object of copyright protection is expanding on the forms of creation in the form of science, art, and literature are digitized. Copyright Laws that are currently still experiencing some problems in order to provide protection to the creative works expressed through the internet media. Therefore, it is interesting to examine the legal protection against copyright infringement through internet media based on Law Number 28 Year 2014. The method used in this research is normative legal research. Sources of data used in this research are secondary data, namely data obtained from legislation, scientific journals, and legal literature. Data collection techniques used in this research is literature study. Data analysis technique used in this research is qualitative analysis. The results of this research indicate that the development and advancement of technology increasingly facilitate the occurrence of violations of Copyright through the internet media are hijacked, copied, and traded in the midst of society. Although in Law Number 28 Year 2014 has been set about bans and strict criminal sanctions, but due to weak regulation and lack of legal awareness of the public make law enforcement of Copyright is not running optimally.

The establishment of criminal offences for copyright infringements has a long history under certain national copyright laws, including the laws of Australia and Malaysia. A new stage in the evolution of criminal laws for copyright infringements was, however, reached in the mid-1990s with the introduction of the first international standard for criminal enforcement measures, in the form of Article 61 of the Trade-Related Aspects of Intellectual Property Rights Agreement (the ‘TRIPS Agreement’). The Article 61 standard, which is the current international standard, criminalizes, among other things, wilful copyright piracy on a commercial scale and compels WTO Members to impose ‘imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity.’ The Article 61 standard, however, could potentially be eclipsed by new, and potentially more severe, standards of criminal enforcement measures which are being proposed and negotiated between countries to be included in emerging multilateral treaties, namely the Anti-Counterfeiting Trade Agreement and the Trans-Pacific Partnership Agreement. The attempts to strengthen the international standard for criminal enforcement measures have resulted in considerable controversy, partly due to the expansion of the scope of conduct being criminalized. The recent and ongoing controversies concerning the application of the criminal law to copyright infringements are related to more general controversies regarding the purpose and proper scope of copyright protection, especially in the digital environment. In view of the apparent movement towards increasingly prescriptive international standards of criminal enforcement measures, and bearing in mind that copyright infringements have historically been essentially regarded as private wrongs, there is an urgent need for a principled analysis of the application of the criminal law to certain forms of copyright infringement. This thesis examines this general issue by addressing two key research problems: • whether the criminalization of copyright piracy on a commercial scale is legitimate; and • if so, what are the objectives of imposing criminal sanctions and, in light of the objectives, what are the appropriate levels of criminal punishment for copyright piracy? Although the subject of much current debate, these issues have been under-researched in the academic literature. In relation to the first research problem, applying Joel Feinberg’s version of the Harm Principle, the thesis tentatively concludes that there is a prima facie case for criminalizing intentional or reckless acts of copyright piracy on a commercial scale. In relation to the second research problem, the thesis establishes that the overarching objective of establishing criminal penalties in Article 61 is to deter serious copyright infringements, essentially meaning intentional piracy on a commercial scale. In accordance with this objective, the penalties set by national enforcement regimes should be assessed by reference to the principles arising from the ‘deterrence theory’ of criminal punishment. Focusing on the Australian and Malaysian penal provisions, the thesis assesses whether the level of penalties set in the relevant criminal provisions comply with deterrence theory, in that they are sufficiently severe to deter infringements, but nevertheless proportionate. Accepting that the Article 61 standard requires that the penalties to be made available must be consistent with the ‘level of penalties’ applied to ‘crimes of a corresponding gravity’, and that most commentators on the TRIPS Agreement agree that offences for non-violent theft are ‘crimes of a corresponding gravity’, the thesis uses the penalties set for such offences as benchmarks for assessing the penalties set by representative criminal provisions under the relevant national copyright laws. The thesis demonstrates that the penalties set in the Australian and Malaysian penal provisions prima facie comply with the current TRIPS standard, which is inherently flexible. Further empirical research on factors such as the current enforcement and sentencing practices, however, is necessary to arrive at a definitive conclusion on the extent to which the criminal penalties set under Australian and Malaysian law represent an effective, but proportionate deterrent. Reflecting the complexity of the issues in this controversial area, many of the conclusions reached in the thesis are tentative and qualified. Nevertheless, the analysis of the two key research problems undertaken in the thesis represents an advance over the extant literature by establishing a rigorous conceptual framework for addressing the two key research problems, which hopefully may guide future research in this area. The law in the thesis is as at 23 June 2014.

Copyright Law and Science

This research uses data collected from a university campus network via Deep Packet Inspection (DPI) monitoring and from the largest public BitTorrent tracker to characterize the extent of unauthorized transfers of copyrighted content using Peer-to-Peer (P2P) and to evaluate the effectiveness and limitations of DPI in detection of such activity, both to provide a perspective of how much copyright infringement happens using P2P and to inform those seeking to deploy DPI technology. Use of P2P and transfers of copyrighted content were widespread on campus. In Spring 2008, 40% of students living on campus were detected using a P2P protocol, 70% of which were observed attempting to transfer copyrighted material. In late 2010, we estimate that over 800 million copies of content were transferred globally using BitTorrent per day, with an estimated number of transferred songs 13.1 times greater than worldwide sales of songs, and estimated number of transferred movies 6.8 times greater than worldwide box-office sales and 16.4 times greater than U.S. DVD and Blu-ray sales. Most transfers were from a small number of very popular titles that were widely available for sale. We found no evidence that use of P2P to transfer content without violating copyright was common both on campus and global BitTorrent. This indicates that copyright law is violated frequently using P2P, and while we cannot quantify how P2P transfers translate to lost sales, it is reasonable to assume some sales are lost due to P2P. Focusing on effectiveness of DPI, after a couple weeks of monitoring DPI found up to 80% of detected P2P users attempting to transfer copyrighted content. In the short term, DPI could be effective to assess which network users transfer copyrighted content using P2P given some weeks of monitoring. However, limitations such as not being able to detect users of encrypted P2P can reduce DPIʼs effectiveness in the long term. Using behavioral classifiers that we implemented and that can detect encrypted BitTorrent from traffic summaries, we found students shifting from unencrypted to encrypted BitTorrent in the 2007-2008 academic year. If this trend continues, effectiveness of DPI for enforcement can be significantly hindered

In the contemporary state of intellectual copyright online, there is a gravitation towards restricting consumer access to maintain corporate profit. Using video-sharing site YouTube as a case study, I argue that a more creative approach to policing copyright infringement is needed; otherwise, both consumers and producers lose a considerable amount of freedom in the ways they choose to interact with creative works online. YouTube’s policy of giving content owners the options to block, monetize, or track their protected content allows consumer access to subsist, while simultaneously appeasing corporate interests. Despite this, YouTube’s copyright policy may lead to a more commercialized setting, in which professionally generated content dominates over the amateur content that YouTube’s slogan—“Broadcast Yourself”—claims to offer. Consequently, YouTube’s copyright policy should be thought of as a step in the right direction, but not a viable solution to restrictive copyright altogether. The Internet’s current designation as a setting for copyright infringement is part of a historical trajectory. New technological media are often thought of as safe-havens for copyright infringement, and must often struggle to find legal grounding on which their survival may be secured. Alongside the VCR, the phonograph, and the portable MP3 player, the capabilities of the internet to rapidly and cheaply share creative content are likely here to stay. For copyright law to compete with the instantaneousness of peer-to-peer networks, it must be updated to find alternative methods of protecting intellectual property.

ONS and Intellectual Property

This article posits that the Web 2.0 environment has altered the landscape of the Internet in a way that calls into question several DMCA requirements. In particular, the DMCA-embedded concepts of direct financial benefit, interference with standard technical measures, and the legislative red flag test for identifying infringing material are significantly challenged by the new ways that intellectual property is distributed on the Internet. The general policy inherent in the DMCA is that the burden for policing the Internet for copyright infringement is primarily on the copyright owner, and that online service providers must only cooperate when necessary to eliminate copyright infringement. This Note argues that this burden may be inequitable in light of the Web 2.0 movement and that a balancing test would be more appropriate for determining when OSPs should be expected to do more than simply cooperate with copyright owners.

The Japanese Copyright Law celebrates its 50th anniversary in 2020. The biggest change surrounding Copyright Law in the last 50 years is development of digitalization. Digital archives made steady progress in developed countries. In 2004, Google announced its book search project Google Books. Google Books digitalized books provided by libraries and publishes and made them searchable. In 2005, Europe launched Europeana. Europeana is a web portal created by the European Union (EU) containing digitalised museum collections of more than 3,000 institutions across Europe. To make orphan works easier to use, EU enacted the Orphan Works Directive in 2008 and the Digital Single Market （DSM）Copyright Directive in 2019. DSM Copyright Directive introduced extended collective licensing(ESL) system. In Google Books copyright infringement law suits, the US federal courts accepted Google's fair use defense. In 2015, the US Copyright Office published report on orphan works, but did not introduce ECL after receiving public comments that orphan woks problem could be solved by fair use. South Korea tackles orphan works problem actively and started copyright reform including ECL. This presentation suggests measures for Japan to accelerate her snail's pace copyright reform.

Using Existing Research Instruments: Copyright, Permission, and Fair Use

Conventional wisdom says that people using modern technology are unlikely to obey copyright law, absent fear of lawsuits or extremely strong copy protection. This Article challenges that conventional wisdom. It explores why people obey copyright law and concludes that people can be persuaded to obey copyright voluntarily, provided that copyright owners can encourage the development of pro-copyright social norms. This Article contributes to both the social norms and the copyright literature by explaining how pro-copyright social norms might be fostered from a behavioral trait known as reciprocity. It draws insight from a case study of a community of music fans centered on artists known as jambands. The jamband community has developed social norms that reinforce and respect artists' copyrights. This Article examines the latest theoretical and laboratory and research regarding reciprocity to explain why and how the norms of the jamband community can be duplicated more widely. Copyright owners have mistakenly focused almost exclusively on deterrence rather than fostering social norms that support compliance. Studies indicate that people are motivated at least as much by their belief that a law is moral as they are by fear of the consequences of violating it. In fact, attempting to enforce laws that contradict social norms is counterproductive. Copyright owners would do well to persuade people that obeying copyright law is the right thing to do, rather than merely prudent. The experience of the jamband community provides a model for the development of pro-copyright social norms. The jamband community is a vital and growing movement in popular music that includes some of the top-grossing touring bands in the country. The original jamband was the Grateful Dead, but the label now applies to bands from many genres. What defines a jamband more than anything else is its policy regarding intellectual property: Jambands allow their fans to record live shows and to copy and distribute the recordings freely. Jambands have developed a unique bond of trust with their fan community, which has developed social norms against copying musical works that jambands have designated as off limits. These restricted works are typically studio recordings or live releases sold commercially. The community enforces these norms, sometimes even reporting violations to the bands' attorneys. The social norms of the jamband community might be a mere curiosity but for the fact that they are based on a deeply rooted human behavioral trait known as reciprocity. Reciprocity motivates people to repay the actions of others with like actions - value received with value given, kindness with kindness, cooperation with cooperation, and non-cooperation with retaliation. Recent theoretical models, supported by laboratory research, contend that reciprocity can foster and sustain pro-social, cooperative social norms under the right circumstances. This Article's case study of the jamband community adds to the growing body of field research that further confirms the existence of pro-social norms founded on reciprocity. Since the social norms of the jamband community are rooted in this universal behavioral trait, we can draw several potential lessons for the mainstream music community. The example of the jamband community may offer a carrot to accompany (or supplant) the stick of lawsuits. It also offers an alternative to proposals for ever-escalating regulation, more restrictive technology, or radical changes to copyright law. The Article concludes with several concrete proposals for changing business models and enforcement strategies to promote pro-copyright social norms.

Copyright Infringement in the EU Digital Single Market

The New Prohibition: A Look at the Copyright Wars Through the Lens of Alcohol Prohibition