Copyright

Communication Law

in the Digital Age

An analysis of copyright law in todays digital age. Special focus is given in the music and film industries, as well briefly examining digital copyright with hardware ownership.

Matt Meier

introduction
Since the dawn of the printing press and the spread of newfound knowledge, copyright has stood as a means of protecting an individuals hold on their original body of work. Early copyright laws arose primarily in Britain in the 16th century, which gave protection to printers only, but the law was later refined in the 18 th century to include authors as well.1 An early notable copyright law from Britain, The Statute of Anne of 1710, spelled out quite clearly the act of copying text without the consent of the original author as being illegal; such illicit acts would cause very great detriment, and too often to the ruin of [the author] and their families.2 Early copyright law in the United States grew from the British model, with the concept of copyright eventually landing in the US Constitution, under Article I, Section 8, Clause 8, known as the Copyright Clause: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.3 While copyright law in the United States has been fairly adaptable to the slow changes of technology throughout the past 200 years, the law has had no harder than a time as now with the rise of the Internet. In the first decade of the 21st century, the high courts of the United States have had to face numerous cases of copyright infringement, with many of the cases dealing in some aspect with the Internet. To quote from the textbook Mass Media Law concerning the Internet, by its very nature the new medium lends itself to the theft of the work of others.4 The massive worldwide web of information has allowed millions of users to easily and quickly download, upload, and copy entire albums, films, and other original works that were once nigh-impossible to duplicate with ease.

the music industry

1 2

Roots of the Law The Statute of Anne; April 10, 1710 3 The Constitution of the United States: A Transcription 4 Copyright Infringement and the Internet

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No doubt the industry that has felt the greatest pressure from the Internet has been the music industry, which has been limping along since mp3 players and file sharing networks established an easier mode for consumers to listen to their favorite tunes. The concept of file sharing is rather simple, in which users would upload and store music, documents, or other forms of media onto the Internet and make such available for other users to download onto their personal machine.5 One of the largest entities in the early days of file sharing was Napster, which quickly drew the ire of the recording industry due to Napsters wide use of copyright infringement. Napsters argument was that they were merely providing the pathway via software for one Internet user to gain access to music files stored by another user, which is to say the issue would fall under the fair use doctrine of US Copyright Law.5 Despite Napsters defense under the fair use doctrine, the courts ruling in A&M Records, Inc. v. Napster, Inc. was in the favor of the recording industry. In the courts opinion on the matter, Napster may be vicariously liable when it fails to affirmatively use its ability to patrol its system and preclude access to potentially infringing files listed in its search index. 6 Napster was found accountable by allowing infringement to continue within its system and not taking measures to prevent such illegal acts. Ten years after the ruling in A&M Records, Inc. v. Napster, Inc., another large file sharing network would come under a vicious attack from the music industry. The defendant in this case would be LimeWire, which was forced to be shuttered in May of 2010 due to copyright infringement. The ensuing court case between LimeWire and the RIAA, the Recording Industry Association of America, was fraught with many resounding difficulties for the file sharing network. The RIAA accused LimeWire in $75 trillion in damages, with the number not just being based on the number of works that was infringed upon, but also the number of times each infringement occurred. The federal judge in the case threw out the

5 6

File Sharing th A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9 Cir. 2001)

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estimate, calling it absurd; she added that the RIAA is entitled only a single statutory damage award from Defendants per work infringed.7 After deliberations between LimeWire and the RIAA, LimeWire settled to payout $105 million in damages to RIAA.8

the film industry

The record industry has not been the only business to be harmed by copyright infringement; the film industry in recent years has had to battle numerous cases of film pirating. Film pirating is often undertaken by filming at a cinema venue during a movies show time, typically with a concealed camera. Other forms of pirating also include uploading films ripped directly from DVDs, or even sharing unreleased workprints of a movie through a file sharing network. An early notable example of film pirating in the digital age occurred prior to the release of the film Star Wars Episode III: Revenge of the Sith. The day before the films release, a workprint version of the film a workprint being a yet-unfinished version of the movie appeared online, which quickly hit 16,000 downloads by the day of the films theatrical release.9 Investigators were able to track down the original perpetrator, an individual by the name of Albert Valente, who had taken the movie from the post-production facility where he was employed. The workprint copy changed hands several times before finding Marc D. Hoaglin, who uploaded the unfinished product onto the Internet. In all, eight individuals were charged for copyright infringement and were punished for the offenses; Hoaglin was charged to a greater extent due to the recently enacted Family Entertainment and Copyright Act, which set greater penalties for anyone caught distributing a movie or song before its commercial release.10 In the wake of the Revenge of the Sith infringement case, the film industry began to systematically target individual users who were illegally uploading and downloading
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RIAA Thinks LimeWire Owes $75 Trillion in Damages LimeWire settles with RIAA for $105 million 9 Revenge of the Sith leaked online 10 Eight Charged with Copyright Infringement for Distributing the Latest Star Wars Movie

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copyrighted movies. The Oscar-winning film The Hurt Locker drew much attention when the films production company, Voltage Pictures, sued 24,583 individuals for illegally downloading the film, later adding another 2,514 persons for the same charges. What made the lawsuits unique was that the plaintiff in the case, Voltage Pictures, began targeting a large number of specific users rather than the facilitator of the infringement, such as what the music industry previously had done upon Napster and LimeWire. The original suit against the 24,583 offenders was eventually dropped, though Voltage Pictures is currently pursuing suits against the remaining 2,514 persons.11 12

digital language and hardware ownership

A wealth of copyright cases in the current digital age have largely been related to the music and film industries, but one such case that was recently resolved differs from the trend. The court case Oracle America, Inc. v. Google Inc. has gained notoriety, with Oracle accusing the search giant of unlawfully using sets of code from the Java programming language that Oracle claims it has copyright over. In the court summary filed by Oracle, the software company made claims that Google infringed upon a specific set of codes called application programming interfaces, or APIs, which Google utilized in its creation of the Android operating system; Conceptually, read the summary, an API is what allows software programs to communicate with one another.13 When the case began at the district court in San Francisco, Googles attempt at defense made four direct points that it had not upon any copyrights: 1) Sun Microsystems (the original owners of the Java language and eventually bought by Oracle in 2010) gave the Java language to the public, 2) Google built Android using free and open technologies, 3) Sun publicly approved Androids use of Java, and 4) Google made fair use of the Java

11 12

Hurt Locker Lawsuit Targets 24,583 BitTorrent Users Hurt Locker Studio Sues 2,514 over Copyright Infringement 13 Oracle America, Inc. v. Google Inc.

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language APIs in Android.14 Larry Page, the CEO of Google, continued Googles defense, stating that Google was careful with the technology to ensure that Android and the company respect intellectual property, despite having not taken the measures to acquire a license from Sun to use Java.15 At the rough conclusion to the case, the court had not yet formulated whether Googles use of the Java APIs had constituted fair use, which Google then filed for mistrial.16 When not arguing over programming languages, some have brought the argument to physical hardware and copyright infringement. In 2011, Sony sued the hacker George Hotz for previously hacking a Playstation 3 and uploading the information regarding how to do the hack. George Hotz was no amateur at hacking: he had previously become the first person to hack the original iPhone, allowing it to become unlocked and free to use among any cellular carrier. While Hotzs hack of the original iPhone and subsequent hacking of later iPhone models never brought lawsuits against him, Sonys lawsuit made the case that Hotz had violated the Computer Fraud and Abuse Act.17 The Act made it a crime for anyone who knowingly accessed a computer without authorization or exceeding authorized access. 18 Sony succeeded in the end at preventing Hotz from engaging in any unauthoriz ed access to any Sony Product under the law, as well as preventing such information from being shared to others.19

drawing conclusions
Throughouc the first decade of the 21st century, there have been an innumerable amount of court cases concerning copyrights, largely in the field of digital media, including the Internet. During the music industrys crusade against illegal filing sharing, various legal

14 15

Googles Opening Statement Larry Page Tells Java Jury Google Did Nothing Wrong 16 Oracle v. Google Copyright Case: The Road Ahead 17 Machine Politics 18 Fraud and Related Activity in Connection with Computers 19 Sony Computer Entertainment America LLC v. Hotz

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outlets of music download propped up, most notably Apples iTunes service. Eventually, Napster would take the legal route and join iTunes, Rhapsody, Amazon, and other services to become a legal method of downloading music, which allowed record companies to begin seeing profits once more.20 Film piracy continues to be a heavy issue for much of Hollywood, despite numerous attempts to prevent such illicit activity. Voltage Pictures march against the thousands of illegal users has drawn cautious eyes from analysts, who see the production company as utilizing scare tactics to gain revenue through out-of-court settlements. And Voltage Pictures method of finding users is also considered flawed, since the company relies upon targeting IP addresses, which can be easily thwarted.21 With the ease to which a person can mask their IP address, sometimes by simply using a different WiFi network, companies will continue to have tremendous difficulty in gaining a foothold on film piracy through the Internet. Oracles battle against Google can have significant repercussive issues throughout the digital world, should the court return to deciding the issue of fair use in the case. If the court were to decide in favor of Oracle, in that Google was not entitled to fair use of the Java code language, many other companies throughout the tech world would be in danger of being sued, given that many utilize coding language from other companies to power their software. In a matter of opinion, I feel that Oracle is making some attempt to cash-grab off of the wild success of the Android OS, which has become the most prevalent mobile operating system in existence.22 However, recent developments in the Oracle America, Inc. v. Google Inc. may prevent Oracle from seeking damages, as the judge in the case has recently made motion to eliminate the damages phase of the trial.23 George Hotzs conclusion with Sony brought wide ramifications to millions of users who use the Internet to share hacking information, with the court partially ruling that such
20 21

File Sharing Hurt Locker Studio Sues 2,514 Over Copyright Infringement 22 Nielsen: Smartphones Used By 50.4% of US Consumers, Android 48.5% of Them 23 Judge Moves to Kill Third Round of Google v. Oracle

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matters can be blocked for the sake of the victim in the hacking. While Sony may have been successful in its pursuit against Hotz, the trial only further enflamed the hackers cause to have information travel freely from person to person. Sony would end up biting the bullet very harshly in April of 2011, when their Playstation Network was hacked and became compromised, forcing Sony to shutter the network for nearly a month as they attempted find the perpetrator.24 While no guilty party has yet to be found, the connection between the massive hack and George Hotz seemed fairly obvious enough; hackers the world over had announced their intentions to support Hotzs case, which could have possibly lead to various black-hat methods of support. The Internet and the digital age, in all of its infinite complexities, will always continue to challenge the foundations of copyright law through the foreseeable future, as users, hackers, and pirates find ways to circumvent the laws in place to gain information and entertainment at no cost. And companies will possibly continue to find ways to ensure their fair use of others creations, so as to create bigger profits for them in time. I am sure to say that many thousands more lawsuits will come in time as companies and entities battle others over the illegal of music, movies and software, with many victories and defeats to be had from each side.

24

Machine Politics

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