The Secret World of Copyright

by Greenberg Glusker Fields Claman & Machtinger LLP
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What do Avril Lavigne cover songs, Dish Network’s AutoHop feature, celebrity sex tapes, apartment hunting websites, and ad-serving browser skinning programs have in common?

Each of them is a window into how copyright, an 18th century concept, drafted into a 20th century law, impacts the products we use and the way we experience life in a 21st century world.

The Simplest, Most Complicated Law You Know

Non-lawyers usually think of copyright as a pretty simple and intuitive area of the law, and in many ways, it’s one of the easiest areas to break down into easy, digestible (if somewhat oversimplified) terms.  What’s a copyright?  The exclusive right to control and exploit creative works.  How do you infringe a copyright?  Copy or perform a work without permission/payment, or steal it to create your own new, too-similar work.  Putting aside people’s chronic tendency to confuse copyrights and trademarks — helpful hint:  copyrights are for creative works, trademarks are for brand name, logos, and slogans — copyright is an area of law that, at least initially, the general public can intuitively “get.”

Of course, when the breakneck speed of technological development meets the languorous pace of national lawmaking, things can get a bit more complicated. For example, when the copyright infringement case against file-sharing service Grokster finally came before the Supreme Court in 2005, the Court’s nine justices required three separate opinions and the invention of an entire new theory of copyright liability to explain why Grokster was illegal, but other, less offensive services might not be illegal.  (Headline:  “Supreme Court Rules ‘Unanimously’ Against Grokster 3-3-3.”)

To be fair, though, things started getting wacky long before the Internet was invented.  For instance, most people know that any musician can cover any other musician’s song, without permission (for a small, statutorily-defined fee).  Why?  Because in 1909, Congress created a special “compulsory license” scheme to allow player piano roll makers to sell song rolls without having to separately seek permission from the original songwriters.  Somewhere along the way, some clever lawyer figured out the law was drafted broadly enough to allow for unauthorized cover songs, and now we all have to deal with Avril Lavigne defiling John Lennon’s “Imagine” in the name of Darfur relief.  (Miley Cyrus’s evisceration of Nirvana’s “Smells Like Teen Spirit” and Celine Dion’s desecration of AC/DC’s “You Shook Me All Night Long” were, to my knowledge, only ever performed live, and so we have a different quirk of copyright law — the proliferation of blanket “public performance” licenses  managed by performing rights organizations ASCAP and BMI — to blame for those abominations.)

AutoHop on Down to the Courthouse

If you’re a Dish Network subscriber (hello, all 12 of you!), you’re probably a fan of the service’s new AutoHop feature, an advancement in DVR technology that automatically skips past the commercials in recorded programming.  Although in practice, the technology does little more than remove the physical act of hitting “fast forward” and “play” from what viewers were doing with their recorded TV shows anyhow, it has caused a firestorm of controversy among the major television networks, who have essentially branded the service — which threatens the industry’s already-shaky advertising-based model — as the end of TV as we know it.  Those networks have spent months in court, trying to shut AutoHop down, and foremost in their legal arsenal are claims for copyright infringement.

While court filings have been redacted to preserve the confidentiality of Dish’s proprietary technologies, it seems clear that, in order to deliver your programming commercial-free, Dish’s DVR system must first make a digital copy of the network broadcast stream.  On the other hand, there is still plenty that is unclear, including, at the least:  (1) whether AutoHop actually cuts out the commercials in the recording, as opposed to copying the stream in whole but automatically skipping the commercials in playback; and (2) whether that makes a legal difference.

In any event, though, the right “to reproduce the copyrighted work” is one of the exclusive rights that come with copyright ownership, which means that whenever a copyrighted work is copied — even if by a computer or DVR system, even if only for a microsecond — the Copyright Act is implicated.  The main issue being fought out by Dish Network and the networks, then, is whether the type of copying performed by the AutoHop DVR is an act of infringement, or a permissible copying activity that is protected by the fair use doctrine.  But as confusing and unintuitive as it may seem, the simple fact that the DVR must make a digital copy of the broadcast stream in order to chop out the commercials may determine the fate not only of AutoHop, but of the next generation of technologies that could redefine how consumers experience content.

Can You Copyright Embarrassment?

While copyright is generally a commercial doctrine — intended to incentivize and reward the creation of artistic works by giving their authors the exclusive initial right to profit from those works — copyright attaches to any “original works of authorship,” even those that were never actually intended to see the light of day.  With that in mind, Law Law Land has long been impressed with some lawyers’ creative use of copyright to limit the circulation of embarrassing material.

In mid-2010, when “Tiger Woods sexts” might have been the most Google-searched phrase on the Internet, my colleague Aaron Moss observed that Tiger might be able to block websites from reposting his (alleged) salacious text messages, if he was willing to take credit for them — those (incredibly graphic) texts could qualify as “original works of authorship,” meaning that Woods, as copyright holder, would have the exclusive right to control their dissemination (a word that feels especially dirty in this context). We’ve also long applauded the creativity of lawyer-to-the-stars Marty Singer, who (in between extremely histrionic demand letters) used the threat of a copyright infringement lawsuit to block the release of a sex tape featuring actors Eric “McSteamy” Dane and Rebecca Gayheart.  And more recently, we analyzed how Latin pop star Noelia Monge used copyright claims to go after the tabloid that broke the story of her secret wedding by publishing her (sometimes steamy) wedding night photos.

The weirdest case in this category may have broken last month, though, when wrestler Hulk Hogan sued his one-time “best friend,” Bubba the (tragically-nicknamed) Love Sponge, over the leak of a sex tape featuring Hogan and Bubba’s wife.  When the story broke, Bubba went on record that Hogan had “brainwashed” Bubba into letting him sleep with his wife, knew about the filming, and even had a hand in the tape’s release.  Although Hulk and Bubba quickly settled and Bubba retracted his statements (Hogan’s lawsuit against web publisher Gawker Media lives on), Bubba’s initial statement raised an interesting issue:  the copyright in the Hogan sex tape was arguably shared among anyone involved in its creation — the “performers” on screen, whoever was responsible for setting up the camera (and making the no-doubt painstaking artistic choice of zoom level and camera angle), etc.  But because co-owners of a copyright can, by default, grant non-exclusive licenses without the permission of the co-owners, if anyone involved in the sex tape’s creation OK’d it’s release, no one involved could block it (at least on a copyright theory).

Protecting Your (Incredibly Artistic) Ad Placement

The Internet is still very much a wild west when it comes to sites “borrowing” (or “hijacking”) each other’s content.  But these days, many major players on the Web are looking to copyright law to serve as the sheriff that brings order to the town.

Even sites that serve as aggregators for information that is owned and provided by third parties claim copyright interests in their particular layouts and design elements.  On this basis, Craigslist recently sued apartment search site PadMapper for “scraping” data from Craigslist to populate its own service.

At the same time, like software, websites are (behind the scenes) just collections of text code — and that text code is also subject to copyright protection.  Services and plug-ins that “scrape,” “skin,” or otherwise interact with websites must, as part of their technical operation, make temporary copies in a computer’s cache of site code in order to do their work…and that technical process — however ephemeral, invisible, and seemingly irrelevant to the user — can constitute an unauthorized act of copying that sustains a copyright claim.  Relying on this technical quirk, Ticketmaster successfully sued CAPTCHA-circumventer RMG Technologies, while Facebook was able to pursue data aggregator Power Ventures — and this is the same concept that the networks are using in their holy war against AutoHop.

This same theory could also become the basis of a counterattack by web publishers against services like Sambreel, which entices web users to download browser “skinning programs” or “plug-ins” that quietly add advertisements (or replace existing advertisement) on popular ad-supported sites.  The idea is that, because the program has to make an ephemeral digital copy of a website in order to insert its own advertisements, Sambreel has engaged in at least one act of unauthorized copying of the copyrighted site code, and has therefore infringed the publishers’ copyrights.  (While Sambreel has seemingly avoided lawsuits thus far, it actually brought an antitrust claim against Facebook after the social network site [allegedly] coerced its users and advertising partners out of using or doing business with Sambreel.)

The Secret World of Copyright

In 1787, the framers of the U.S. Constitution penned Article I, Section 8, Clause 8 of the Constitution, which empowered Congress “[t]o 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.”  When James Madison, Thomas Jefferson, and company wrote those words, no doubt they were thinking of the novelist toiling away by candlelight and the inventor tinkering away in his workshop (and not the network television executive with a vendetta against a satellite television provider or the B-list celebrity who can’t keep his genitals off the Internet).

But while it might not be intuitive to you (and certainly wouldn’t have been to the founding fathers), that one 225-year-old sentence — and the decades of legal and legislative fiddling that it set in motion — now helps define the way we experience culture and life in the modern world.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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