Monday, September 10, 2012

Ye Olden Tale of the Copyright Decree

I had a request from Jason Lamb, a third-year student at the Temple University Beasley School of Law in Philadelphia, PA, to publish an interesting article that he wrote. It's a parodic history of copyright law, set in a medieval fantasy context.
So enjoy, and thank you Jason. . .

Ye Olden Tale of Social Media Pubs and the Copyright Decree

Once upon a time in the land of Litigious there lived a young lawyer named Squire Young-Law. Young Law had apprenticed for years under the respected and venerable Sir John Old-Law. Together, Young-Law and Old-Law had defended shop owners and individuals from the attacks of the MPAA gang and their lawyer, Sir Sues-A-Lot. For decades Old-Law had used his vast knowledge of the law to give his clients the upper hand. But the winds of changes had been blowing in Litigious, and Young-Law saw his chance to break out on his own as he began to notice that the once unbeatable Old-Law had failed to keep up with the times and started to lose to Sir Sues-A-Lot. Old-Law was beginning to lose to the ability to protect his newer high dollar clients, the wildly popular Social Media Pubs.These Social Media Pubs were shops that became gathering places within the public square of towns across Litigious. This network of town squares across the land was known as the Internet, and the Social Media Pubs were driving its popularity. The Pubs provided a place where its patrons could hangout, talk to each about various issues of the day, share the latest traveling minstrel songs and tales, and broadcast statements to the entire Pub on the open mic stage. These Pubs had become popular because they connected people in way not possible before, and also because they allowed patrons to share so much without necessarily getting permission from the Minstrel’s Guild. This guild had in the past used the MPAA gang and Sir Sues-A-Lot to go after individuals who used the minstrel songs and tales without authorization, but now they were going after the owners of the Pubs, claiming that the Pubs were causing and promoting all this trouble.
The works of the Minstrel’s Guild are protected by an ancient Royal Decree of Copyright which says that only the creator, in this case the minstrel himself, can control and make copies of the work. This law protected the minstrels for centuries and allowed them to amass great wealth based on the popularity of their works. It was very difficult to make copies the minstrels’ works by hand. Although the minstrels had managed to record their own songs and tales in magical tomes called “Analogs”, these “Analog Records” and “Analog 35mm Reels” were heavy and unwieldy and also very difficult to copy without authorization and the help of expensive wizards. Any individual trespassers of the Copyright Decree were easily found out by the MPAA gang brought to justice by Sir Sues-A-Lot.
Things began to change about 40 years ago. First the great wizard SONY created new magical analog books called VHS and TAPE CASSETTE that were much smaller than the earlier heavy tomes. SONY had also created incantations that allowed regular people to make their own magical VHS and TAPE CASSETTE books and record minstrel songs and tales on their own. This angered the Minstrel’s Guild and the MPAA gang, so they hired Sir Sues-A-Lot to go after SONY for violation of the Copyright Decree. In that case Sir John Old-Law was able to successfully defend SONY based on the fact that SONY’s spells had substantial non-infringing uses and that SONY had no demonstrated intent to violate the Copyright Decree. Old-Law had defeated Sir Sues-A-Lot and SONY was allowed to sell its spells and smaller analog VHS and TAPE CASSETTE books. Surprisingly, this use that the minstrels saw as a violation expanded the reach of their works and allowed them to amass yet more wealth.
Sometime after the SONY incident the Wizards of Mount Digital created the incantations of CD and DVD. These spells allowed the works of the minstrels to be copied much more easily and got the works into the hands of many more people. Also these new digital spells allowed the minstrels songs and tales to be recorded on much smaller magical scrolls instead of the larger analog books of TAPE CASSETTE and VHS. More importantly, the digital copies on these new CD and DVD scrolls were always perfect reproductions of the master copy, and didn’t suffer from the quality and durability issues sometimes experienced with the older analog TAPE CASSETTE and VHS books, and “Analog Records” and “Analog 35mm Reel” tomes. Still the minstrels remained protected and amassed even more wealth although huge changes were on the horizon. Next the Wizards of Mount Digital would create the incantations of MP3 and h.264. These spells would make the minstrel’s works even more portable as a single scroll could now hold hundreds of perfect, compressed digital copies of the minstrels’ songs and tales. An issue for the minstrels was that the encryption locking spells that had previously accompanied the CD and DVD scrolls had now been removed, and any non-wizard could now create their own scrolls and pass the unauthorized works to whomever they wished. Onto this backdrop the Social Media Pub’s came on the scene and gave their patrons, who were newly empowered with MP3 and h.264 spells, a forum to share these unauthorized copies. Because so many individuals were violating the Copyright Decree at once, the minstrels and the MPAA gang sent Sir Sues-A-Lot after the Pubs. As usual Sir John Old-Law came to their aid.
Sir Sues-A-Lot wanted to make an example of Old-Law’s client, the Netcom Brewery Pub. Patrons of Netcom had used it to share a minstrel’s works in violation of the Copyright Decree. Old-Law, with Squire Young-Law assisting as co-counsel, argued that Netcom was not a direct infringer and that they had only provided a place for its patrons to interact with each other. Old-Law also argued that just because some protected works had been shared and had made it out into the town square, and even to other Pubs, did not make Netcom liable for its patrons’ actions. The court agreed and held Netcom not liable for its patrons’ infringements of the Copyright Decree. Inspired by the Netcom case, and desiring to promote the economic growth brought on by the internet, the network of town squares, and its new Pubs, the King of Litigious made a new decree called the DMCA. The DMCA Decree made Pubs that were merely providing a forum for patrons to share works and interact with one another safe from Copyright liability, provided they had no knowledge of infringement. As long as the sharing was directed by its patrons and the Pub had no knowledge of infringement the Pub would be safe. The Kings tried to strike a balance with the DMCA Decree. The DMCA gave the minstrels a powerful tool in its notice and take down mechanism whereby if a minstrel notified a Pub of a specific infringing copy of its work, including the location within the Pub of the magical scroll that the work resided on, then the Pub would have to remove that copy from the scroll.
After the DMCA decree other cases came up involving new Pubs that were actively promoting violation of the Copyright Decree using the newer MP3 and h.264 incantations. The Napster Ale House was one such Pub, and Old-Law decided to try to defend them using his old tricks from the SONY case. Against the advice of Young-Law he argued that Napster, like SONY, had substantial non-infringing uses. The court ignored this argument and placed liability on Napster due to its purpose and intent to promote copyright infringement. Similarly, Ye Old Grokster Pub was found liable due to its express purpose to promote infringement despite its purported claims to DMCA protection. The courts concluded that these Pubs had knowledge of infringement due to their culpability in promoting their patrons infringements. Sir Sues-A-Lot had begun to rack up some victories and Squire Young-Law did not agree with Old-Law’s strategies of late. Moreover, Old-Law had incorrectly advised Napster and Grokster that between the SONY holding and the DMCA they would be safe despite their brazen promotion of infringement. His recent failings have caused his practice to quickly shrink.
Emboldened by their recent victories the minstrels and MPAA gang sent Sir Sues-A-Lot to test the DMCA and take down the most popular Pub in the town square, the YouTube Pub. This time YouTube chose to use Squire Young-Law instead of Sir John Old-Law. Young-Law argued that YouTube was protected by the DMCA and that YouTube would have to have knowledge of the locations of the specific copies of minstrels’ works that were shared without authorization in order to lose that protection. Sir Sues-A-Lot argued that the DMCA only protected YouTube for direct infringement and that the minstrels could not be expected to identify the locations of each specific infringing copy within YouTube’s many scrolls. The Court agreed with Young-Law and found that YouTube merely provided a forum for its patrons and that the DMCA covered all its patrons’ infringements. The minstrels would have to identify the specific copies and use the notice and take down system built into the DMCA decree.
Young-Law has since parlayed this victory into a striving practice and the Social Media Pub industry continues to grow. The minstrels and the MPAA gang have not given up however. The head of the MPAA gang, Lord Chris Dodd, has convinced some of his fellow nobles to propose new decrees that the King might issue. The proposed SOPA and PIPA decrees would block Pubs where infringements are occurring from access to the Internet, the network of town squares, and block these Pubs from use of Litigious’ official currency respectively. While Pub owners and other town square merchants rose up in opposition to these decrees, SOPA and PIPA have broad support from the minstrels and many nobles. Pub ownership is not the free for all it once was in the days before the Napster and Grokster rulings and winds of political change are beginning to blow. Any lawyer in this arena wishing to avoid the fate of Sir John Old-Law must keep abreast of the current legal and political climate. The stakes are much higher and there is much more money at stake between the Minstrels Guild and the Social Media Pubs than in the days of SONY. Old-Law has retired and faded off into obscurity before his time, while Young-Law has gone on to live happily ever after.
Written by Jason Lamb, Copyright 2012.