Notice and Notice Failure at BU part 2

Annemarie Bridy – Three Notice Failures in Copyright Law
 
Challenge of making online copyright enforcement meaningful.
Notice is intimately connected to justice: usually required (except with strict
liability).  Failures to appreciate its
necessity/failures to appreciate its sufficiency.
 
Uncertain: the construct of red flag knowledge in the
DMCA.  No notice: lack of notice in
seizure of domain names under criminal © law. 
Naked notice: in preliminary injunctions against nonparty service
providers in pirate site cases.
 
Purpose of DMCA safe harbors was certainty for ISPs in the
face of evolving secondary liability in cyberspace.  In practice, years of litigation have
clarified the test to be part subjective/part objective. Does the service
provider have subjective knowledge of facts that would give objective knowledge
of infringement to a reasonable person. 
Red-flag knowledge as a safe harbor disqualifier can preclude summary
judgment; undermines certainty of notice and takedown framework; creates risk
for ISPs and encourages proactive takedowns outside the DMCA checks and
balances.
 
The fix: make actionable knowledge under the DMCA synonymous
with the knowledge that comes from receipt of compliant knowledge.
 
Notice failure #2: PRO-IP Act added asset seizures and
forfeitures to remedies available in criminal © cases. Get an in rem arrest
warrant for the domain name, w/o notice to registrant—civil forfeiture even if
gov’t never charges or proves an underlying crime.  2010-2013, FBI/DOJ/ICE went after 1700 domain
names.  Tend to get active around the
holidays.  Megaupload, 2012, actually
accompanied by an indictment.  Sept.
2015: ShareBeast.
 
Notice failure under both 1st and 5th
Amendment, which requires notice and opportunity to be heard before property
seizure, unless exigent circumstances exist where property could be moved
before seizure.  Domain names aren’t
movable property, though the content to which they provide access is. Seizing a
domain name does nothing to prevent underlying content from being moved.  First Amendment also requires notice and
opportunity to be heard before a seizure of expressive property—if the gov’ts
reason for seizing expressive property is to take it out of circulation (as
opposed to evidentiary).  Domain names
are expressive property b/c they provide a gateway to vast repositories of
speech.
 
The fix: apply the correct legal standard and provide notice
and an opportunity to be heard; more than probable cause. Pending legislation
would increase the burden of proof for all covered crimes, including ©, though
it may not go anywhere.
 
Naked notice: Site-blocking TROs and PIs purporting to
enjoin search engines, payment processors, ad networks, domain name registrars
and registry operators if they have notice of the injunction under the All
Writs Act. These are improper.  Due
process, separation of powers issues. 
Only nonparties so closely identified w/the defendant that their
interests can be considered to be represented can be bound—notice and a finding
that the nonparty was in active concert w/defendant in the illegal conduct—aiding
and abetting. Arms’ length provision of tech services to infringers is not
active concert.
 
Michael Fricklas, GC of Viacom: Most of what we do doesn’t
happen in cases—negotiated outcomes in disputes; our decisions on what to put
on the air. Some failures are litigated, and others aren’t.  Every area of the law has some level of
uncertainty.
 
Copyright’s strength is that you don’t need gov’t support—a plebiscite
every day where people decide what to watch and what to pay.  In that context, courts have been struggling
with importance of certainty, but in the cases Bridy addresses, what we’re
doing day to day doesn’t constitute a notice problem at all. The targets of our
enforcement efforts have no doubt about infringement.  Even injunctions against nonparties aren’t
serious b/c the courts are asking only for an administrative act.  Not finding that nonparties have violated
copyright law (though they might be if they continue to provide services after
an adjudication of infringement).
 
Last year we took down 1.8 billion pieces of content, with
100 million IP addresses.  If we made a
mistake you can email us and don’t need to wait for counternotification on
YouTube. We can’t do fair use analysis at this volume.  So we took simpler rule: we care mostly about
entire/substantial part of content posted w/o alteration.  Not interested in mashups.  Viacom uses fair use every day: Jon Stewart
and Stephen Colbert—we get sued a lot. 
 
Certainty isn’t the most important value embodied in the
DMCA.  Also: balance interests of ©
owners and ISPs by creating strong incentives for them to cooperate in dealing
with infringement.  Red flag knowledge is
a boundary case.  We spent way too much
money on YouTube case, but the court
was basically thinking about who were the good guys and bad guys.  Court didn’t understand problems with notice
and takedown—no one has to notify us where they’re posting; people can do all
sorts of things to hide from automatic detection; ISPs will limit how much you
can search, and will hide the source of the infringement for a fee.  Senate anticipated some of these issues
(heh), striking the right balance with red flags.  ISPs not required to make discriminating
judgments, but seeing an obviously pirate site may be all that’s needed.  Doesn’t mean they’re liable, but that the
safe harbor no longer applies.  Actual
knowledge will also disqualify you.  The
cases have said that vicarious liability still exists if there’s intent to
infringe. 
 
Notice cases in SCt were about due process, not about
boundary of copyright—SCt says due process is flexible and requires the
protections demanded by the situation. Balances private interests
w/administrative costs imposed on gov’ts interest and risk and probable value
of additional safeguards.  1700 seizures
of domain names, but only 2 problems. 
Don’t forget the obvious cases, where people have full-fare information
about what they’re doing.  Megaupload:
indictment says they knew they were infringing. 
Seizing a bank account from a bank doesn’t require that the bank was
involved in a conspiracy.  (Ok, that wins
for most misleading analogy, since the seizure of the domain names (bank
account) is precisely done b/c the “bank” (registrant) is a wrongdoer.)
 
Joseph Liu – Notice Failure, Fair Use, and the Limits of
Property: Literature discusses fair use uncertainty (and counterliterature,
including from Pam Samuelson, discusses how that may be overclaimed).  Questions about validity of © are typically
not at issue b/c of low © standard; issues of ownership can be troublesome
given length of © and transfers, but not generally implicated by fair use
disputes; the one area where there is potential notice failure is the Q of
clearly delineating the boundaries of the entitlement.  Even here, one might ask whether notice
failure adds much to our discussion, b/c issue is not so much metes and bounds
of particular © as with patent, but rather w/the structure of © law itself.
Uncertainty may be only that caused by standard and not rule.
 
Core is relatively well-defined: generally can’t make large
numbers of full copies and sell them w/o permission, or make major motion
picture based on film. But at the boundaries there is uncertainty.
 
Information burden isn’t evenly distributed. Larger/more
sophisticated parties can mitigate more easily by seeking custom legal advice
or by bearing transaction cost of licensing. Unsophisticated parties have
trouble getting either.  Tech changes
have exacerbated disparities because fair use used to be less relevant to the
general public—personal use and other ways of engaging with © works and more
directly subject to ambiguities. Core and periphery have shifted.
 
Dealing w/uncertainty: more best practices? Again, less
available to the public.  Ask market/tech
to cure—costless licensing/technological fences that specify what people can
do. But © owners’ troubling tendency to fence in what they don’t own weighs
against that.
 
What if instead of trying to clarify the boundaries,
particularly for less sophisticated parties, we considered alternative
frameworks for liability?  Ask whether
fair user had adequate notice of the boundaries of the entitlement—for an
unsophisticated party the answer will often be no.  © for general public bears little resemblance
to property as clear rights with robust transactional markets.  Confront notice failure directly: try to
conform standards to people’s expectations/negligence or tort approach.
 
Jessica Silbey: Sidestepping incentive talk and focusing on
the way that © affects us all; notice doesn’t necessarily work for us but on
us. How does the fair user understand the scope of property rights? How does
the fair user understand what © is for? 
The second question gets to a similar place, but framing can teach other
lessons.  From property/markets to
culture/fair, creative practices—creator in the community.  Many creators she talked to have high
tolerance for copying because everyone borrows; they demand a high standard for
originality, reciprocally. If they find unfair copying, they want attribution
and proportional remuneration—profit-sharing or even nominal, dignitary
fee.  Do they think about fuzzy
boundaries? No, but every day © users tolerate a less than perfectly understood
system, largely by intuiting rules that are misaligned with the © system. They believe
that infringement and damages incorporate reasonability determinations.  It would make sense to base fair use on
reasonability determinations.  Copyright
owners do not have rights where fair users do; fair use is the baseline. 
 
Samuelson: Molly van Houweling has a similar project—also,
what do you think of Tim Wu’s “tolerated use”?
 
Liu: van Houweling’s work on new servitudes is important for
tracing rights/impact on unsophisticated parties.  Thinking more expressly about distributional
impacts—empowers certain people to do more, which may be an important value
independently.  On tolerated uses: still
grappling with that. One response to this is that maybe we don’t need to worry
about unsophisticated users b/c we deal with that through underenforcement/no
one sues individuals. I resist that b/c it’s so clearly second-best solution to
problems w/actual standard; fuzziness and underenforcement might not match
up.  Custom and toleration might affect the
fair use line.
 
Orly Lobel: continued discussion of distributional effects
from previous panel.  Sophisticated/unsophisticated
creators; developed/less developed countries; employer/employee. It’s not just
repeat players and institutional planners shaping the substance of the law and
notice can counter that; they also will be shaping notice itself/what notice
is.  When we consider
over/underdeterrence, consider the expressive function of law in general.  The psychological effects of the FBI warning.
 
Liu: copyfraud/addressing misinformation might be part of a
solution. Copyright Office could play an educational rule on what people can
and can’t do.  Copyright ombudsperson:
role to look after the public interest.
 
Litman: Implicit in all 4 talks was that their either should
be or already is an unacknowledged mens rea requirement for ©
infringement.  If that’s right, what
ought it to be.
 
Fricklas: take into account there’s misinformation on both
sides—users think they can post a whole work if they comment on it.  Intent may apply more to intermediaries than
initial infringers.  Suppose my search
finds a 100% complete match—how do I do a mens rea analysis w/o a complete
collapse of the system? Mens rea can be important, but sometimes res ipsa
loquitor. 

Bridy: we want a higher standard for secondary liability—should it be higher
for direct infringement as well?  It’s
not always so obvious what’s obvious to a reasonable person; the edge cases are
what lead to the super-expensive litigation. 
YouTube case settled w/still opened questions; Veoh got litigated into
bankruptcy; Vimeo might give us some more info if the Second Circuit ever
decides it. I favor more certainty—rules over standards. So that would drive me
to higher mens rea. 
 
Silbey: intent to copy v. intent to harm—unreasonable position
to say that people should have to not intend to copy to avoid infringing; most
copiers intend to copy.  I would want a
harm requirement instead. People who think they’re not doing anything wrong are
applying a harm standard.
 
Liu: on effective mens rea standard: my sense is when it
comes to whether bad faith is an element, Beebe found it generally wasn’t.
Should be: tricky.  Not willing to go that
far.  For unsophisticated, modify
standards/remedies?
 
Bridy: sophisticated = proxy for knowledge.
 
RT comments on Bridy’s paper: red flag as unworkably
uncertain.  Strikes me as an overstatement,
given litigation outcomes and the current persistence of competition.  A slightly different diagnosis, and one that
might point to competition policy for help: When you get big, you have to cut a
deal w/big studios/music companies or go out of business because they will
litigate you to death.  Also: Consider Joe
Singer’s interesting
argument that in property, standards can be more predictable than highly
complex rules
.  One reason his
argument is relevant is that the incentive to litigate is huge in this context—the
content cos behave as if it’s bet the company litigation and the ISPs know it
is—and thus rules may be no better because compliance with rules is so often
debatable.
 
Bridy: rules around notice and takedown isn’t unworkably
complex—rules can become unworkable. But there’s less litigation about what a
compliant notice is, but she thinks the law has become clear (not sure I agree)
whereas “obvious to a reasonable person” is going to be a jury question.
 
Ginsburg: you could have more notice—in Europe, a closed system.  Fair use is more flexible which is why some
in this room advocate for it. Desire for more certainty = careful what you wish
for.
 
Liu: certainly there is the persuasive argument that clarity
and open texture of fair use may trade off. 
But he’d like to raise the freedom of movement.

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