Oct. 3, 2007 CRCS 1

REVERSE NOTICE & TAKEDOWN OF DRM TO

ENABLE FAIR USES

Pamela Samuelson

CRCS Workshop

Oct. 3, 2007

Oct. 3, 2007 CRCS 2

LAW & TECHNOLOGY

• Many intersections of law & technology as competing or complementary strategies for dealing with troublesome phenomena:– Privacy laws & privacy enabling technologies– Anti-spam laws & anti-spam technologies– Anti-phishing laws & anti-spam technologies– Anti-spyware laws & anti-spyware technologies– Anti-pornography laws & filtering technologies– Anti-circumvention laws & circumvention

technologies: this is where I will focus today

Oct. 3, 2007 CRCS 3

TPMs NOTHING NEW

• There’s nothing particularly new about using access controls and other technical measures to protect information assets

• Often illegal to bypass access controls– CFAA: unauthorized access to federally protected

computers; exceeding authorized access

• But when © industry groups began using or planning to use TPMs, they insisted that new legislation was needed to outlaw technologies designed to circumvent their TPMs

Oct. 3, 2007 CRCS 4

NII & IP WHITE PAPER (1995)

• ©’d works in digital form are vulnerable to market-destructive appropriations in global digital networked environments– © owners want to use TPMs to protect digital works– “Answer to the machine is the machine”– Circumvention tools undermine, so need to outlaw

• WP recommended legislation to outlaw technologies, the primary purpose or effect of which was to bypass or circumvent technical protection measures (TPMs) used by © owners to protect their works

Oct. 3, 2007 CRCS 5

WIPO © TREATY (1996)

• US proposed very similar rule for the WIPO © Treaty (WCT) as necessary to enable global markets in digital content

• Anti-circumvention provision was controversial at diplomatic conference– Concern about impacts on innovation, access to

information, fair uses

• Final treaty required “adequate legal protection” and “effective legal remedies” vs. circumvention– Seemingly left to nations how to implement

Oct. 3, 2007 CRCS 6

HOW TO IMPLEMENT WCT?

• Minimalist way to implement WCT was to outlaw acts of circumvention intended to facilitate © infringement

• Not clear it was necessary to outlaw circumvention technologies

• Sony Betamax default rule: © owners can’t control technologies if they have or are capable of substantial non-infringing uses– Many circumvention technologies have lawful uses

(e.g., enable backup copying, fair uses)• © industry: we need a stronger rule!

Oct. 3, 2007 CRCS 7

STRUCTURE OF 1201

• 1201(a)(1)(A): illegal to bypass TPM used by © owner to control access to work

• 1201(a)(2): illegal to make or traffic in technologies or services primarily designed or produced to bypass access controls

• 1201(b)(1): illegal to make or traffic in technologies or services primarily designed or produced to bypass TPMs used to protect ©’d works

Oct. 3, 2007 CRCS 8

DMCA “ACT” RULE

• 1201(a)(1)(A): Illegal after 10/00 to circumvent an effective TPM used by © owners to control access to ©’d works

• 7 specific exceptions:- Law enforcement/national security- Reverse eng’g necessary for interoperability- Legitimate encryption research- Computer security testing- Nonprofit “shopping” privilege- Parental control-related- Personal privacy protection

Oct. 3, 2007 CRCS 9

1201(c)

(1) No effect on rights, limits or defences, including fair use, under this title

(2) No effect on contributory/vicarious liability

(3) No requirement to respond to technical measures in computer/consumer products

(4) No effect on free speech/press

Latter 3 added during legislative struggle; much contested what (1) and (4) mean

Oct. 3, 2007 CRCS 10

OTHER LIMITS

• Circumvention of other TPMs, such as copy- or use-controls, left unregulated – Was this intended to leave room for fair uses?

• Library of Congress conducts triennial rulemaking to consider proposed exemptions from this rule for some classes of works or uses– 6 granted last year– 1 was for film studies teachers to make fair use clips

of DVD movies to prepare teaching materials for class

Oct. 3, 2007 CRCS 11

ANTI-DEVICE RULES

• 1201(a)(2): outlaws technologies that bypass effective access controls used by copyright owners to protect their works

• 1202(b)(1): outlaws technologies that bypass other effective technical measures used by copyright owners to protect rights

• 1201(k): illegal to make video cassette recorders that don’t accommodate automatic gain control technology

Oct. 3, 2007 CRCS 12

ANTI-DEVICE RULES

• Illegal to manufacture, import, offer to the public, provide, or otherwise traffic in– If primarily designed or produced to circumvent,– Lacks commercially significant use other than

circumvention, or– Marketed as a circumvention device

• Only 3 of the exceptions to 1201(a)(1)(A) are also exempt from the anti-device rules, only 1 (1201(f)) is exempt from both anti-device rules– Is there an implied right to make a tool to engage in

privileged circumventions?

Oct. 3, 2007 CRCS 13

DEBATE re TPM & FAIR USES

1. Congress decided vs. allowing fair use circumventionsDavid Nimmer; Judge Kaplan in Corley

2. 1201(c)(1) + no regulation of other TPMs = intent to enable fair uses

many scholars /Judge Gasarja in Chamberlain

3. Without some fair use-like limitation, anti-circumvention rules may be unconstitutional:

Jane Ginsburg/ACLU in Corley

Oct. 3, 2007 CRCS 14

FAIR USE CIRCUMVENTIONS?

• Linguist bypasses CSS to take clips from movies to show as expert witness derogatory uses of “redskins” in litigation challenging TM

• Firm bypasses encryption to discern whether another firm has infringed its patents or ©

• Researcher reverse engineers TPMs in Sony BMG copy-protected CDs, leading to discovery of rootkit sw

• Purchaser of Aibo dogs reverse engineers sw to develop software to make the dogs do new tricks

• Technologist reverse engineers filtering sw to find out what it blocks

• Computer Museum reverse engineers TPM to preserve sw

Oct. 3, 2007 CRCS 15

HOW TO ACCOMMODATE FU?

• Ginsburg: allow fair users to make use of circumvention services to bypass TPMs– Very risky in view of Corley decision

• Burk & Cohen: require © owners to provide keys to DRM to fair use infrastructure provider as precondition to qualifying for anti-circ protection– In your dreams

• Lipton: CO should have administrative process to adjudicate fair use circumventions– Political economy problems would plague it

• Reichman/Dinwoodie/Samuelson: judicially created reverse notice & takedown procedure to enable fair uses

Oct. 3, 2007 CRCS 16

ORIGINS OF N&TD

• Notice & takedown principle was a judicial adaptation in RTC v. Netcom– Automated copying in RAM by servers in

course of transmission not infringement– ISP is not strictly liable for infringing copies on

its site, on its servers– But if ISP gets notice of infringing materials,

has a duty to investigate and take it down if charges are correct

• Notice & takedown later codified in 512

Oct. 3, 2007 CRCS 17

REVERSE NOTICE REGIME

• Prospective fair user notifies © owner of intent to make fair use of TPM’d content

• © owner has an obligation then to either take down the TPM or explain why not

• If no response within a reasonable time, fair user can hack the TPM & engage in fair use

• If © owner says no, fair user can seek declaratory judgment to enable fair use

Oct. 3, 2007 CRCS 18

OBJECTIONS?

• Corley forecloses; would need legislation

• Rights holders won’t find acceptable

• If can’t get access to a tool to enable the fair use, then theoretical fair use can’t happen

• Generally able to make fair uses without seeking permissions, burdensome

• Costly, many fair users will be deterred

Oct. 3, 2007 CRCS 19

RESPONSES

• Netcom shows that judicial innovations such as notice & takedown feasible

• Chamberlain provides groundwork

• Content owners might be more responsive than we’d expect– But Sklansky got permission from Disney!– Movie studios not suing remixers who

obviously bypassed CSS

Oct. 3, 2007 CRCS 20

CHAMBERLAIN

• Maker of universal GDO not liable for 1201• Fed. Cir’s decision provides intellectual

infrastructure for judicial innovation as to reverse notice & takedown:– By requiring a showing of a nexus between acts of

circumvention & infringement for 1201 liability; no infringement = no 1201 liability

– By endorsing 1201(c)(1) as fair use savings clause; any other interpretation “irrational”

– Balance = a “bedrock principle” of intellectual property law, 1201 included

Oct. 3, 2007 CRCS 21

BURDEN

• Yes, it’s better when fair uses can be done anonymously– 1201(c)(1) defense may succeed if © owner sues for 1201

• Our backs are vs. the wall: need to find way for FU• Congress has been persuaded to ban circumvention

technologies because of the high risk they will be used for infringement

• But Congress expected fair uses to continue, but did not think through how this could be accomplished

• Reverse notice regime is a plausible way to get there• Case by case adjudication could develop basic principles

for enabling fair uses of TPM content– Might eventually be codified, as 512 was

• EFF, LS clinics can represent prospective fair users

Oct. 3, 2007 CRCS 22

CONCLUSION

• WCT recognizes the need for a balance of © owner and public interests

• DMCA anti-circumvention rules do not fully accomplish a balanced solution

• Reverse notice & takedown would enable public interest uses, while leaving intact the ban on infringement-enabling circumvention technologies

• Over time, norms would evolve & standardized procedures could develop, eventually codified

• Our proposal is the most feasible of those proposed thus far to accommodate fair & other privileged uses of TPM’d content under the anti-circumvention rules

Oct. 3, 2007 CRCS 23

ACLU AMICUS BRIEF IN CORLEY

• If 1201 is to be constitutional under Art. I, sec. 8, cl. 8 and 1st A, it has to include limiting principles

• Fair use has constitutional dimensions that don’t go away just because a copyright owner uses technical measures to protect access or a copy

• So court has two choices: – It must either read limiting principles into 1201 (e.g.,

fair use)– or rule that 1201 is unconstitutional on its face

Oct. 3, 2007 CRCS 24

CONCENTRIC RINGS

• Center of ring: direct © liability requires proof of infringement, but fair use limits

• 2nd ring: vicarious/contributory requires proof of underlying infringement; fair use still limits

• 3rd ring: acts of circumvention which is subject to 7 exceptions (e.g., encryption res., interoperability) + 1201(c)

• 4th ring: anti-device rules; no FU limit• 5th ring: contributory circumvention liability, newly

invented by Kaplan, J., because linking does not directly “provide” DeCSS; no FU limit

Oct. 3, 2007 CRCS 25

ACLU BRIEF

• Need for limiting principles at every ring of potential liability or constitutional problems

• Shouldn’t there be some proof of underlying infringement or at least grave risk?

• Shouldn’t there be some relationship between the infringer & person charged under 1201?

• Shouldn’t there be some fair use-like principles?– Touretsky “gallery” of CSS descramblers – Felten’s publication of results of SDMI hack, study of

Sony rootkit software– Jane Ginsburg’s links to sites where DeCSS can be

found for her © course