ARTS & FARCES internet

The US Supreme Court, in a 6-3 decision (.pdf; 365KB), has upheld the first-sale doctrine of US copyright law by ruling that individuals who purchase foreign copyrighted works may resell them without the permission of the copyright holder.

While the first-sale doctrine for domestic works within the US was not open to question, lower court decisions regarding the issue of reselling foreign works had widely conflicted. Publisher John Wiley & Sons had sued Supap Kirtsaeng who was selling textbooks purchased overseas on eBay. The Obama administration had petitioned the Supreme Court in favor of Wiley. While the administration’s underlying position was correct—US copyright does not (and should not) apply outside of the country—it’s application on the first-sale doctrine was incorrect. The textbooks had been imported by Kirtsaeng and sold within US borders.

The lower courts had based their findings on a section of the Copyright Act that restricts the first-sale doctrine to works “lawfully made under this title,” reasoning that it was impossible for a foreign work to have been made under US law. Justice Stephen Breyer, writing for the majority, argued the point was not geographic: “We also doubt that Congress would have intended to create the practical copyright-related harms with which a geographical interpretation would threaten ordinary scholarly, artistic, commercial, and consumer activities.”

Publishers and various members of the US entertainment cartel bemoaned the decision, saying that it would prevent them from selling works at discounted rates in developing countries.

The US entertainment cartel has finally found a pimp, however inadequte it may be: Your internet service provider. After more than four years of navel-gazing and arm twisting, the Copyright Alert System (CAS)—an agreement between the entertainment cartel and the country’s largest internet service providers to monitor networks for copyright infringement—has finally launched. The CAS is administered by the Center for Copyright Information (CCI).

The CCI website takes a laughably incomplete approach to intellectual property law, willfully avoiding any mention of free expression, fair use, public domain, and alternative licensing arrangements (like Creative Commons).

Penalties for those suspected to be infringing the cartel’s copyright range from forced annoying emails and re-education to browser hijacking, connection speed throttling, and other network connectivity disruptions. Internet service providers initially participating in CAS are AT&T, Cablevision, Comcast, Time Warner, and Verizon. According to David Kravets writing for Wired, CAS uses technology from MarkMonitor to surveil peer-to-peer file-sharing services like BitTorrent.

Christopher S. Stewart and Shalini Ramachandran, writing for the Wall Street Journal, report CAS “involves a progressively assertive series of six alerts, starting with a letter or email about the infraction and escalating to where it may slow down a user’s internet connection.” Reportedly, after four suspected offenses, the participating internet service providers institute so-called “mitigation measures” against their offending customers. While the CCI’s website contains nary a mention of terminating the accounts of suspected infringers, the Digital Millenium Copyright Act (DMCA) requires internet service providers to terminate the accounts of repeat copyright infringers.

Rebecca Greenfield, writing for the Atlantic, notes that the severity of response varies between the participating internet service providers:

• Cablevision “will do the bare minimum” and merely send out lengthy notices to its customers suspected of infringing behavior.
• Comcast will send its suspected infringing customers to re-education camp, requiring them to watch a video.
• Verizon will slow down the connection speed of its suspected infringing customers, after six notifications.
• Time Warner, after three suspected violations, will redirect their customer’s internet connection to a webpage asking the customer to agree to refrain from infringing behavior. After four suspected violations, the customer’s connection will be terminated until the customer calls Time Warner and promises to refrain from the infringing behavior.
• AT&T, after four suspected instances of infringement, will filter destination IP addresses for “certain websites” and redirect the customer to an “educational” webpage. After six suspected violations, the carrier will terminate the customer’s connection until the customer completes a course on intellectual property law. Of all the internet service providers, AT&T is the only one that publicly states it “may pursue legal action against the customer” after five suspected instances of infringement.

David Kravets, in a follow-up for Wired, reports a much different picture regarding the severity of response of the participating internet service providers:

• Comcast will hijack the browsers of suspected repeat infringers after four instances of suspected violations.
• Cablevision will suspend the accounts of suspected infringers for 24 hours after five suspected instances of infringement.

Bottom line: No one knows for sure just how CAS is going to shake out and what the participating internet service providers intend to do with regard to enforcement.

Late last Friday, The Republican Study Committee (RSC), the caucus of conservatives in the US House of Representatives, published a remarkably lucid, extraordinarily sane position paper on copyright reform (.pdf; 307KB). The paper outlined a reasonable approach to reforming five crucial aspects of US copyright law. The position paper advocated:

1. Expanding and clarifying the fair use exception
2. Reaffirming the purpose of copyright to serve the public interest
3. Limiting statutory damages for infringement
4. Punishing false infringement claims
5. Limiting copyright terms

The document ends with a shockingly insightful assessment:

“Current copyright law does not merely distort some markets—rather it destroys entire markets.”

This is a remarkable development in light of the fact that earlier this year the US House of Representatives, led by the conservative GOP caucus, was ready to force passage of the Stop Online Piracy Act (SOPA). At the last minute, the Republican representatives came to their senses and backed away from the dangerous legislation.

The RSC paper debunks three core myths of copyright:

1. The purpose of copyright is to compensate the creator (the actual purpose of copyright is to benefit society by serving the public interest)
2. Copyright is a representation of free market capitalism (copyright actually grants creators a guaranteed, subsidized monopoly)
3. Copyright leads to innovation and productivity (copyright is actually corporate welfare that detracts from innovation and harms the populace)

When the Digital Millennium Copyright Act (DMCA) was passed into law in 1998, the Librarian of Congress was charged with the power to grant certain exemptions. The Librarian’s latest exemptions (.pdf; 310KB) were announced last week. They took effect on 28 October and will be in place for the next three years.

Under the newest Librarian of Congress exemptions:

1. You’ll be able to jailbreak your smartphone, but only if it was purchased before 28 January 2012
2. You’ll be prohibited from jailbreaking your tablet, regardless of when you bought it
3. You’ll be able to rip a DVD in order to use an excerpt, but you’ll be prohibited from ripping the same DVD to play on your tablet

In November, US-based copyright scofflaws that get their internet connectivity from one of the five big service providers—AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon—will be subject to the entertainment cartel’s six-strikes plan. The TorrentFreak website obtained a set of internal AT&T training documents on the new program. Reportedly, customers who allegedly violate US copyright law—according to a complaints from the entertainment cartel’s individual members—will have their accounts flagged by and will be unable to access “frequently visited websites” until they complete an online re-education program.

Blocking access to any website—whether by a DNS block or redirection—is a clear violation of the core precepts of network neutrality and the US Federal Communications Commission’s (FCC) Report and Order of 21 December 2010, Preserving the Open Internet (.pdf; 1MB). It will be interesting to watch how this is handled by the US judicial system.

According to the documents obtained by TorrentFreak, “After the fifth alert, the content owner may pursue legal action against the customer, and may seek a court order requiring AT&T to turn over personal information to assist in the litigation.”

While the “big five” internet service providers are all participating in the program, and together provide something on the order of 75 percent of broadband internet connectivity in the US, it’s notable that none of the smaller providers are participating.

Last August, Dane Jasper, chief executive of Sonic.net told TorrentFreak why at least some of the smaller service providers are refusing to participate (aside from not even being asked by the entertainment cartel’s Motion Picture Association of America (MPAA) and Recording Industry Association of America (RIAA) enforcement arms: “[internet service providers] ISPs provide an essential utility: Connection. We are not equipped to police the actions of individuals. I think history has shown that you cannot solve piracy by force, but that industries need to adapt around it with business models that allow consumers to access the content they want easily and at a not-unreasonable cost.”

Meanwhile, if you obtain internet connectivity from one of the “big five” service providers, rest assured that your online activity will be under something approaching continuous surveillance and if you’re found to violate certain protocols, you’ll be sent off to virtual re-education camp.