Part 1, Module 3: Copyright Protection for Digital Content

Digitization of content has had a profound impact on copyright law. Now that most forms of creative content are in digital format, and networks and devices for creating, accessing, communicating, and modifying digital material are global and readily accessible, almost anyone can create and distribute copyrightable content. In this environment, copyright law faces challenges as it attempts to balance the need to protect the interests of content creators with those of content users. The Internet and other digital technologies underscore the twin goals of copyright law: encouraging creators to create and ensuring that users of content have reasonable access to copyrighted materials.

Computer Programs

The approach applied by U.S. copyright law to computer programs has its origins in a case involving mechanical music players in the early twentieth century, not computers as we know them today. In White Smith Music Publishing Company v. Apollo Company, the Supreme Court considered the issue of copyright protection involving music roles used by self-playing pianos.[1] The Court concluded that the music roles created for use by mechanical player pianos were NOT copies of the sheet music upon which they were based because the music roles could not be read by humans. Thus, the original focus of copyright law was on the ability of humans to read the work in question. Works only understandable to machines were considered outside the scope of copyright law protections.

When the Copyright Act of 1976 was enacted, the relationship between copyright law and computer programs remained unsettled. The Act included language intended to leave in place the court-based approach to computer programs which limited their copyright law protection.[2] Courts applied the 1976 Act to computer program inconsistently. For example, in Data Cash Systems Inc. v. JS&A Group, Inc., the Seventh Circuit determined that copying machine-readable code did not constitute copyright infringement.[3] In contrast, in Tandy Corp. v. Personal Micro Computers, Inc., the federal district court found that machine-readable code could be subject to copyright protection.[4]

In response to this confusion and the rapidly developing computer industry, the Computer Software Copyright Act of 1980 was enacted, amending Sections 101 and 117 of the Copyright Act to accommodate computer software.[5] The focus of these amendments was to bring computer programs within the scope of copyright protection, but to limit that protection to the code, but not to include the functions executed by the computer program. The scope of copyright protection for computer programs has continued to evolve.

Computer Software: Sale or License

A purchaser of a product protected by copyright law owns the copy of the product she purchased rather than the intellectual property represented by the product. For example, a consumer who purchases a CD containing music owns that CD. The consumer does not own the copyright associated with the content of the CD. This principle is the first sale doctrine.[6] Copyright law does permit the purchaser of a copyright protected product to lend the product to others, to sell that one version of the product and to make a limited number of copies of the item for personal use.

The first sale doctrine creates some problems as applied to computer software. Traditionally, the first sale doctrine would allow customers to lend, sell or rent their copies of software to others. Every one of these purchasers could install the software on their computers and make copies for personal use. While the copyright holder would make money only on the first sale, the first sale doctrine would allow many people to get use of the software for free.

Accordingly, software developers took the position that buyers of software products were not actually purchasing copies to own but were instead entering into a copyright license agreement. As the buyers of the software were not buying their copies but were instead buying the license to use the product, software developers argued that the first sale doctrine did not apply to software. Accordingly, the developers contended that the owners of the software did not have the rights of a bona fide purchaser and could not rent, give or re-sell the software without consent of the copyright holder.

To clarify this point, software sellers began employing the “shrink-wrap license” in the terms and conditions that appeared in the instructions for the software use. Buyers of the software products were made to accept the license terms by opening the package containing the software (and often by clicking a “check box” to this effect when installing the software) even though they could not have had the opportunity to review the terms contained in the license before purchasing the product, as the license was sealed inside the shrink-wrap surrounding the product.

As distribution of software evolved to the Internet, the online version of the shrink-wrap license has been characterized as the “click-through” license. Buyers express their acceptance of the terms of the license for the software by clicking on an icon or check-box indicating that they’ve reviewed the terms of the license and accepted them. The validity and enforceability of both shrink-wrap and click-through licenses have been challenged in the courts, though courts have consistently been willing to enforce both forms of licenses.[7]

The tension between the purchase and license models for commercialization of computer software remains significant. Widespread distribution of software through online downloads helps to support the software industry’s licensing model. Yet, that model continues to be troubling for consumers and consumer advocates as it seems to circumvent the traditional principles of the first sale doctrine.

Vicarious Liability for Infringement

Copyright law provides for infringement liability for other parties in addition to those who engage directly in the infringing conduct. For example, parties who have the right to supervise infringing conduct engaged in by others (e.g., a social media platform operator) but fail to do so can be liable for copyright infringement as “vicarious” infringers.[8] If a party is aware of the infringing conduct and contributes to that conduct in a material manner (for example, it pays for the activity or service), then the party contributing to the infringement can face liability as a “contributory” infringer.[9]

The principles of vicarious and contributory infringement liability are significant in the online environment. Multiple online intermediaries (such as Internet service providers and online service providers) face potential liability for copyright infringement conducted by their users. Courts have found that online service providers can be liable for copyright infringement based on the infringing conduct of the users of their systems, even when such use violated the terms of service agreed to by those users.[10] Other courts have been willing to consider the extent to which the online service provider had knowledge of the infringing conduct. In Religious Technology Center v. Netcom On-Line Communications Service, Inc, the federal district court for the Northern District of California concluded that the online service provider was not liable for infringement because it did not have actual knowledge of the infringing conduct.[11]

The Digital Millennium Copyright Act

To address some of the copyright law and policy issues raised by the rise of the Internet and other digital media platforms, Congress enacted the Digital Millennium Copyright Act in 1998. Among the key changes to U.S. copyright law introduced by the Act were:

1. limitations on copyright liability for online service providers;

2. rules for publication and protection of copyright management information, and

3. prohibitions against circumvention of technological measures employed to manage access to copyright protected material.

One of the key features of the Act is the fact that it provides a limited shield for online service providers (including Internet service providers, online search systems, and social media platforms) against vicarious liability for copyright infringement if the service provider complies with certain requirements established by the Act.[12]

Perhaps the most critical obligation placed on online service providers to qualify for the protection against liability is the “notice and take down” obligation. The service provider must create and identify an agent designated to receive notice from copyright owners alleging infringement, and the service provider must designate methods through which notices of alleged infringement are to be delivered to the service provider. The service provider must inform the U.S. Copyright Office of the identity of the agent, and the Copyright Office maintains a publicly accessible list of agents.[13]

The service provider must also inform parties claiming infringement what information they must provide to the service provider to submit a valid claim.[14] That information should include:

1. contact information for the party making the claim,

2. an adequate description of the copyrighted work allegedly being infringed,

3. a description of the infringing material or use and its location,

4. a statement that the party raising the allegation has no good faith reason to believe that the use of the material is lawful,

5. a statement that the copyrighted material was published with an appropriate copyright notice,

6. attestation that the party supplying the notice has the legal authority to act on behalf of the copyright owner, and

7. the signature of the party submitting the copyright complaint.

After receiving a notice alleging infringement, the online service provider must investigate the claim. If it finds merit in the claim, the service provider must either remove the material or block public access to the material.

In addition to the notice and take down obligation, qualification for the protection from vicarious copyright infringement liability also requires compliance with other operational obligations. The service provider must not impede or interfere with technical measures used by copyright owners to protect their works from infringement, such as encryption. Online service providers may not undermine or threaten the effectiveness of copyright protection measures applied by copyright owners.

Additionally, online service providers must adopt, implement, and enforce polices directed toward denial of access to service for parties found to have engaged in multiple incidents of copyright infringement. They must enforce policies against and ultimately bar repeat copyright offenders.

Courts require strict compliance with the obligations imposed on service providers to qualify for the liability limitations established by the Act. Failure to satisfy any of the Act requirements can result in loss of the protections for service providers under the Act.[15]

It is important to note that while compliance with the Act protects online service providers from liability in the form of monetary damages, it does not protect those service providers from being subject to injunctive relief, such as a court order requiring the removal of infringing content.

A common issue in copyright litigation involves requests by copyright owners for court orders compelling online service providers to disclose the identity of customers who are violating copyright laws. Online service providers are usually reluctant to provide such information to copyright owners. In RIAA v. Verizon Internet Services, Inc., the District of Columbia Circuit ruled that subpoenas for such identities can only be issued when the target online service provider stored the material subject to the copyright action on its servers.[16] If the online service provider merely routed the material elsewhere, a subpoena to compel disclosure of the identity of the user cannot be issued.

Anti-Circumvention

Perhaps the most controversial component of the Digital Millennium Copyright Act is its “anti-circumvention” provision. The DMCA makes it a violation of copyright law to “circumvent” any technical measure that controls access to copyright protected works.[17] This, for example, makes it a violation of copyright law to disable encryption software used to prevent unauthorized access to a movie stored or transmitted in digital form.

This prohibition also prohibits the manufacture, sale, purchase, distribution or use of any device, technology or service that can be used to circumvent copyright protective measures. Thus, under the Act, both the actual circumvention of copyright protective measures and the creation, distribution or use of any means that can be used to circumvent those measures are violations. Copyright law can thus be used to create a barrier for development and use of products, services, and technologies that may have non-infringing purposes if they can be used to circumvent copyrights.

An illustration of the reach of the anti-circumvention provision is provided by the A&M Records v. Napster case.[18] Record companies challenged the developers and distributors of Napster, a file-sharing platform which enabled users to access digital files stored on all computers that were part of the network running the software. The platform was a highly popular method to share digital files containing music and videos. Copyright owners associated with the music and videos sued, claiming that the Napster file-sharing software and networked computing platform was form of copyright protection circumvention and thus in violation of the Digital Millennium Copyright Act. The Ninth Circuit ultimately ruled in favor of the copyright owners even though the Napster file-sharing software and platform had useful applications aside from sharing entertainment content and even though much of the content that was shared was legitimately owned by the users of the Napster network.

The Napster decision and the anti-circumvention provision took copyright law in a new and different direction. Prior to Napster and the Digital Millennium Copyright Act, copyright law addressing this topic followed the Sony v. Universal Studios case.[19] That dispute revolved around the then new technology, the video cassette recording (VCR) device. In that case, copyright owners argued that the manufacturer of the VCR bore contributory liability for copyright infringement conducted by users of the device. The U.S. Supreme Court determined, however, that the VCR had significant non-infringing purposes (such as enabling consumers to record then view programming at their convenience). Because the device has non-infringing purposes, the Court concluded that VCR makers should not bear copyright infringement liability.

Prior to the Act and the Napster ruling, as long as new technologies also had significant non-infringement purposes, the makers of the products would not be liable just because their devices facilitated infringement. With the advent of the Act and the Napster ruling, copyright law has a significant potential impact on the development of new technologies. It is no longer sufficient that technologies have important non-infringing uses. If those technologies are used to circumvent copyright protection schemes, then they can result in copyright liability for their makers.

Conclusion

The expansion of computer networks and user-generated digital content has created a platform where each person can readily create his own copyrightable content and readily modify the copyrighted content of other parties. This capability strains the digital rights management capabilities of online service providers, although the Digital Millennium Copyright Act has helped online service providers avoid liability.

Consider the potential copyright complexities associated with even routine consumer online activity. Imagine a parent captures a video of her child singing a song and posts the video on a social media platform. Although the parent would own the copyright for the video, the song is probably a copyright protected work controlled by other interested parties such as the composer or a music recording company. The same could be said for a video captured by a concert attendee. When the video is posted on social media, there are potential copyright issues involving the performers, the composers of any music captured by the video and music recording companies.

Although it is likely that these usages could qualify as fair use, fair use is a defense that can only be fully resolved in copyright litigation. A variety of routine and innocent activities made possible by today’s digital media technologies create copyright management challenges. In this way, the dramatic expansion of digital media and its empowerment of individual users has had a profound impact on copyright law.

[1] WhiteSmith Music Publishing Co. v. Apollo Co., 209 U.S. 1 (1908)

[2] 17 U.S.C. §117

[3] DataCash Systems, Inc. v. JS&A Group, Inc.628 F.2d 1038 (7th Cir. 1980)

[4] TandyCorp. v. Personal Micro Computers, Inc. 524 F. Supp. 171 (N.D. Cal. 1981)

[5] Pub. L. No. 517, 94 Stat. 3028 (1980)

[6] 17 U.S.C. §109

[7] ProCD,Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)

[8] Dreamland Ball Room, Inc. v.Shapiro, Bernstein & Co. 36 F.2d 364 (7th Cir. 1929)

[9] Gershwin Publishing Corp. v. Columbia Artists Management, Inc.443 F.2d 1159 (2d Cir. 1971)

[10] Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla.1993); Sega Enterprises Ltd. V. Maphia 857 F.Supp. 679 (N.D. Cal. 1993)

[11] Religious Technology Center v. Netcom On-Line Communications Services, Inc., 907 F. Supp. 1361 (N.D. Cal. 1995)

[12] 17 U.S.C. §512