A high tech legal battle anyone can understand

You may not realize it, but every day you probably use software that takes advantage of application programming interfaces (APIs). Basically, an API is a set of specifications that lets one piece of software talk to another. When you use an app on your iOS or Android device, the app uses APIs to communicate with the operating system. Or, as an Electronic Frontier Foundation court brief explains it,

So when you type a letter in a word processor, and hit the print command, you are using an API that lets the word processor talk to the printer driver, even though they were written by different people.

The United States Court of Appeals for the Federal Circuit recently held that APIs are protected by copyright law. If the ruling stands, it means the API owners can decide which applications will get to use the API and which ones won’t. If an API owner decided to punish Microsoft, for example, it could decide that Microsoft Word could not use the API to connect to printers, yet continue to allow WordPerfect users to print seamlessly. The result would mean Microsoft would either have to pay for access to the API or dedicate resources to developing its own API.

The Federal Circuit seems to have misunderstood the difference between specifications and computer code. The specifications are akin to standardization of certain things. Light bulbs, for example, use standard sizes so you can buy a bulb from GE, Sylvania, Philips, or anyone else and know it will fit in your lamp at home. Imagine the chaos in your local Home Depot if such standardization did not exist. I had a similar experience recently when I needed to buy a quart of motor oil that met a certain manufacturer’s specification. I stood for five minutes in Auto Zone reading the fine print on several different types of motor oil until I found the right one.

At this point, there is no indication whether the Supreme Court of the United States will review the Federal Circuit’s decision. Let’s hope it does and that wiser minds prevail.

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A brief moment of corporate sanity on copyright?

Walt Disney Animation StudiosContent producers can be notorious for using aggressive methods to protect their copyrights and trademarks. Recently, though, one major content producer, Disney, has backed off. With Frozen being a smash success, Disney has not gone after fans making their own cover versions of hit songs or even parodies.

Why the change?

It’s anyone’s guess, but I suspect it has to do with someone at Disney understanding that nothing is gained by making your fans angry. The RIAA’s strategy of suing customers didn’t earn it any friends (or collectible judgments, either).

For now at least, Disney seems to understand that by letting people make their own recordings of “Let It Go,” letting them create Frozen-inspired artwork, and (most of all) letting them express their love for Things Disney, the company will not lose money. If anything, Disney stands to make more money by letting the fans do their thing. After all, Disney has had many hit films, but I cannot think of a single one that resulted in kids and parents standing in line for hours to meet the stars of the film. The synergy created by the fans is as good as gold.

Let’s hope Disney’s lesson spreads to other content providers, and that the corporate sanity stays around for a while.

The orphan work copyright problem

Pretend for a moment you’re making a documentary film about a historic time in a particular college football program. You run across some footage of the legendary coach being interviewed, but you cannot figure out who owns the copyright to it. You’d love to use it, but some smarty-pants lawyer advises you not to lest you get sued.

This is the precise problem faced by a client of mine recently (who has given me permission to blog generally about his situation). Orphan works are items that are protected by copyright law, but where it’s difficult or impossible to figure out who currently owns the rights. (The Electronic Frontier Foundation has a short article on this topic.) I’m not sure that fair use will solve the orphan works problem, though.

Fair use is an affirmative defense to a claim of copyright infringement. In other words, unless the copyright owner agrees that fair use applies, you can present this defense only after you get sued—and incur costs in the process. Also, the rules on fair use are not bright line tests, so reasonable minds can disagree about whether something qualifies as a fair use. That’s a bit too much risk.

Still, allowing a defense of fair use in orphan works situations might help in that it would reduce the risk of getting sued for a huge amount of money. Still, I’d rather see the Congress pass some kind of “amnesty” law. The law would say copyright owners have until a certain date to “re-register” their works that haven’t been published or distributed in recent years. After the date, any works that don’t show up in the registrations are in the public domain, free for use by anyone. This idea would at least put the burden on copyright owners to say, “Yes, I still want to reserve rights in my work.” It’s not a perfect solution, but it might clear up some of the mess.

NB: Yes, I know it’s been a long time since I wrote anything here. I have no excuses, but I’ll try to do better from now on, even if it’s just short blurbs pointing you to things I’ve run across elsewhere.

$675K damages for downloading 30 songs, really?

Somehow I missed this week that the Supreme Court of the United States has declined to review the damages award of $675,000 for downloading 30 songs. Plenty of non-lawyers don’t understand what factors the Supreme Court uses to decide whether to review a case, but lawyers should recall that this decision does not necessarily mean the Supreme Court liked the lower court’s ruling.

From what I understand, the jury in the case awarded the $675K award, and the trial judge reduced it. The plaintiff record companies appealed, and the federal appellate court reinstated the award, but told the trial court judge to use a different method to decide whether the damages should be reduced. The defendant sought review from the Supreme Court, but the Court opted not to take up the issue. So, the defendant is headed back to the trial court.

The damages award was apparently based on the Copyright Code’s statutory damages provision. The Copyright Code allows a plaintiff to recover damages of $22,500 for each act of willful copyright infringement (unless the plaintiff wants to pursue actual losses as its damages).

Although the jury’s decision on the amount of damages may be legally correct, it seems to me that the damages provisions of the Copyright Code are out of whack. They do not take into consideration, for example, the question of whether the defendant had any intent to profit from the infringement. A reasonable approach would be to increase the damages if there is a finding that the defendant acted with certain motives, including the goal of making money. It would also be reasonable to decrease the damages if the act of infringement was relatively minor. Keep in mind that this defendant today could download the songs from iTunes for roughly 30 bucks. A damages award of 50 times the iTunes price, or $1,500 (plus possible attorney fee recovery by the plaintiffs) ought to serve as a sufficient deterrent. A damages award of 22,500 times the actual cost seems to be grossly unfair.

I am no fan of piracy, but there needs to be some real balance in the copyright laws when it comes to statutory damages.

There’s piracy, and then there’s piracy: Part one

This past week parts of the U.S. online participated in American Censorship Day. The day marked when the U.S. House of Representatives held a hearing on the Stop Online Piracy Act (SOPA). This act has come under heavy fire from various parts of the Internet world, such as Google and Yahoo. At the same time, the act has drawn support from content producers like NBC Universal, the Screen Actors Guild, Viacom, as well as business interests such as the U.S. Chamber of Commerce.

So what’s this legislation all about?

For decades, the movie studios, television networks, and record labels have battled the problem of piracy. Even before the days of the video cassette recorder (kids, ask your parents), movie studios worried that shady movie theater owners would make copies of the film prints they showed. If a theater owner made a bootleg copy, the owner could charge admission to a screening of a popular film and not share any of the receipts with the studio–which, of course, had bankrolled the film and took the risk that the film would be a flop. It’s hard to argue with the studio’s position: it invested the money on a risk, and it should be entitled to profit from a movie’s success.

Fast-forward to 2011, and the studios are freaking out about technology. Today, studios have to battle pirates who sneak small handheld video recorders into movie theaters to record the film. These bootleg copies are transferred to DVD and end up being sold on sidewalks in places like New York City and in mom-and-pop convenience stores in poor neighborhoods. The studios have a legitimate complaint about this practice: people who buy the bootleg DVDs don’t pay the theater owners and the studios don’t get their share of the consumer’s dollars.

Studios also have to battle pirates who take the bootleg copies and make them available through file sharing networks. Users who download the latest Harry Potter flick using Bittorrent or another protocol don’t pay the studio anything. Again, the studios have a point here. These are the sorts of problems that cause the movie studios and record labels to go to Congress and ask for help.

But the content producers don’t want help with only these problems. They want help from the Congress for problems that they think costs them money: people who exercise fair use of copyrighted content. These are the folks who make a home video of their toddler dancing to a song and share it with their family and friends on YouTube. The song is an incidental soundtrack, and no one seriously claims that the shared video is being listened to instead of a legitimate copy of the song. Nevertheless, the record label in this example freaked out and sent a notice to YouTube that the video must be removed because it infringed on the label’s copyright. (If you think I’m kidding, check out the details of Universal Music v. Lenz.) YouTube complied, and the person who posted the video filed suit against to establish that her use of the music (which can barely be made out due to the horrible quality) was a fair use. After four years of litigation, the case is still going so far as I know.

So which type of piracy is the bigger threat to the studios and labels? The acts committed by people who take the copyrighted content and sell it on the gray market (if not the black market)? Or is it the average person who posts a video to YouTube to share his or her creativity or humorous life moment? It would seem that the first category of people are the more serious threat, yet the studios and music labels want to use the force of federal law to go after the second as well.

The first group of people are definitely pirates. They copy desirable material like new music or movies and sell them for profit. The second group of people are not pirates. They aren’t making money, and the studios and labels aren’t losing money. Nevertheless, the content producers slap the “pirate” label on these folks as well and want them to be treated the same as real pirates.

In the next article on this topic, we’ll look at why this is a serious threat not only to reasonableness and common sense, but to the Internet as we know it as well.