LibertyVoice

Dalhousie law professor Graham Reynolds published an op-ed in the Mark News, in which he argues that the claims of balance are more marketing than reality owing to the digital lock provisions.

The Government of India came out forcefully against ACTA this week in an intervention at the World Trade Organization.  The India position, which may well reflect the views of other ACTA-excluded countries, demonstrates that ACTA is emerging as a contentious political issue that extends well beyond civil society and business groups concerned with the agreement.  Countries excluded from the ACTA process have to come to recognize the serious threat it represents both substantively as well as for the future of multilateral organizations.

This growing concern from countries such as India represents a major new pressure point on the ACTA discussions.  The notion that ACTA countries could negotiate an agreement that would ultimately be used to pressure non-ACTA countries to conform without attracting opposition from those very countries was always unrealistic.  If the April ACTA round of talks was marked by the mounting pressure for greater transparency, the late June ACTA round of talks will undoubtedly have developing country opposition as its core concern.

India's intervention includes the following comments:


ACTA could short-change legal process, impede legitimate competition and shift the escalated costs of enforcing private commercial rights to governments, consumers and taxpayers. They also represent a systemic threat to the rights of legitimate traders and producers of goods, and fundamental rights of due process of individuals.

Another systemic concern is that IPR negotiations in RTAs and plurilateral processes like ACTA completely bypass the existing multilateral processes.

A systemic impact Members should be aware of is that even if some Members are not a party to plurilateral initiatives like ACTA, they could still have to enforce ACTA provisions due to cross referencing.

The released ACTA text shows a general shift in the locus of enforcement which enhances the power of IPRs holders beyond reasonable measure.

The intervention also focused on the specific substantive concerns with the border measure provisions:

Let me now turn Members specific attention to ACTA provisions relating to transit which are now public knowledge. We are aware that several provisions are still in square brackets, which actually means that their inclusion is well within the realm of possibility. The ACTA text requires that countries provide procedures for the customs seizure of goods “suspected” of infringing trademarks, copyrights and other IPRs against goods “in-transit”. According to the ACTA text, “In-transit” includes “customs transit” and “transhipment”. Seizures would be allowed even where there is a mere “prima facie” case of IPR infringement. In view of the recent seizures of generic drug consignments, provisions relating to ‘in-transit’ in all likelihood would create barriers to access to essential generic medicines,  as well  as access to critical climate change technologies. These provisions could concretise the legal framework the European Union has already instituted through its Council Regulation 1383/2003, which has been responsible for empowering customs and border officials to seize legitimate generic medicines exported by India to several developing countries, including LDCs. Let me remind Members that the EU has so far not provided us any legally satisfactory solution to recurring drug seizures leaving us with no option but to request for consultations under the WTO DSM on 11th May.

Turning to how the draft ACTA provisions can constrain TRIPS flexibilities, let me give an example. India's right to exercise flexibilities, such as granting compulsory licenses, would be interfered with by the mandatory application of border measures to goods in transit. Indian exporters could be constrained from shipping goods produced under its own exception to countries where there is no applicable IPRs protection because transit may be blocked by an intervening transit country’s application of domestic IPRs. Similarly, under the draft ACTA data exclusivity could be invoked by a transit country’s customs authorities as a basis for seizing pharmaceutical products in transit, even if there is no data exclusivity in the exporting and importing countries. This would obviously act as a significant constraint on exporting countries such as India.

The intervention concludes by emphasizing the need for multilateral approaches to addressing these issues and for greater involvement of the WTO.

Let me conclude by saying that these are not the concerns of India or the developing countries alone. Politicians, civil society and IP experts in ACTA members countries, have expressed concern regarding the substance and modus operandi of ACTA negotiations. It is a well known fact that 633 Members of European Parliament supported a Resolution in the European Parliament (Mar 10, 2010) deploring ACTA negotiations for bypassing the multilateral framework provided by the WTO and WIPO. Several such MEPs have written to DG, WTO and DG, WIPO requesting an impact assessment of the extent to which ACTA, as proposed, exceeds obligations in the current IP instruments and excludes flexibilities and exceptions contained in them. Even the US Government Accountability Office (GAO) has recently raised serious questions concerning the data that has been relied on by proponents of the ACTA to support the effort. IPR experts are increasingly challenging the concept of minimum standards concept and calling for setting maximum standards or ceilings so that there is (i) legal security and predictability about the boundaries of IP protection, (ii) protection of user’s rights and (iii) free movement of goods, services and information.

While India is committed to dealing with IPR enforcement issues in line with its TRIPS obligations, the introduction of intrusive IPRs enforcement rules applicable to goods and services in international trade does not represent a reasonable or realistic response. A response, if required, has to emerge from a multilateral and transparent process, as is available in the WTO TRIPS Council, and should fully conform to the objectives and principles (Art 7, 8 ) of TRIPS agreement and the balance of rights and obligations enshrined in the Agreement. As goods and services of developing countries are becoming competitive with those of developed country producers, TRIPS plus measures, like the ACTA, seek to introduce a new set of "non-tariff" barriers to trade that will preponderantly hinder developing country exporters. We urge developed country Members to keep these concerns in mind while dealing with IPR enforcement issues. Agreements such as ACTA have the portents to completely upset the balance of rights and obligations of the TRIPS Agreement. WTO cannot remain a silent observer to such a development. It is important that the issue is deliberated in this Council in detail.

The Government of India came out forcefully against ACTA this week in an intervention at the World Trade Organization.  The India position, which may well reflect the views of other ACTA-excluded countries, demonstrates that ACTA is emerging as a contentious political issue that extends well beyond civil society and business groups concerned with the agreement.  Countries excluded from the ACTA process have to come to recognize the serious threat it represents both substantively as well as for the future of multilateral organizations.

This growing concern from countries such as India represents a major new pressure point on the ACTA discussions.  The notion that ACTA countries could negotiate an agreement that would ultimately be used to pressure non-ACTA countries to conform without attracting opposition from those very countries was always unrealistic.  If the April ACTA round of talks was marked by the mounting pressure for greater transparency, the late June ACTA round of talks will undoubtedly have developing country opposition as its core concern.

India's intervention includes the following comments:


ACTA could short-change legal process, impede legitimate competition and shift the escalated costs of enforcing private commercial rights to governments, consumers and taxpayers. They also represent a systemic threat to the rights of legitimate traders and producers of goods, and fundamental rights of due process of individuals.

Another systemic concern is that IPR negotiations in RTAs and plurilateral processes like ACTA completely bypass the existing multilateral processes.

A systemic impact Members should be aware of is that even if some Members are not a party to plurilateral initiatives like ACTA, they could still have to enforce ACTA provisions due to cross referencing.

The released ACTA text shows a general shift in the locus of enforcement which enhances the power of IPRs holders beyond reasonable measure.

The intervention also focused on the specific substantive concerns with the border measure provisions:

Let me now turn Members specific attention to ACTA provisions relating to transit which are now public knowledge. We are aware that several provisions are still in square brackets, which actually means that their inclusion is well within the realm of possibility. The ACTA text requires that countries provide procedures for the customs seizure of goods “suspected” of infringing trademarks, copyrights and other IPRs against goods “in-transit”. According to the ACTA text, “In-transit” includes “customs transit” and “transhipment”. Seizures would be allowed even where there is a mere “prima facie” case of IPR infringement. In view of the recent seizures of generic drug consignments, provisions relating to ‘in-transit’ in all likelihood would create barriers to access to essential generic medicines,  as well  as access to critical climate change technologies. These provisions could concretise the legal framework the European Union has already instituted through its Council Regulation 1383/2003, which has been responsible for empowering customs and border officials to seize legitimate generic medicines exported by India to several developing countries, including LDCs. Let me remind Members that the EU has so far not provided us any legally satisfactory solution to recurring drug seizures leaving us with no option but to request for consultations under the WTO DSM on 11th May.

Turning to how the draft ACTA provisions can constrain TRIPS flexibilities, let me give an example. India's right to exercise flexibilities, such as granting compulsory licenses, would be interfered with by the mandatory application of border measures to goods in transit. Indian exporters could be constrained from shipping goods produced under its own exception to countries where there is no applicable IPRs protection because transit may be blocked by an intervening transit country’s application of domestic IPRs. Similarly, under the draft ACTA data exclusivity could be invoked by a transit country’s customs authorities as a basis for seizing pharmaceutical products in transit, even if there is no data exclusivity in the exporting and importing countries. This would obviously act as a significant constraint on exporting countries such as India.

The intervention concludes by emphasizing the need for multilateral approaches to addressing these issues and for greater involvement of the WTO.

Let me conclude by saying that these are not the concerns of India or the developing countries alone. Politicians, civil society and IP experts in ACTA members countries, have expressed concern regarding the substance and modus operandi of ACTA negotiations. It is a well known fact that 633 Members of European Parliament supported a Resolution in the European Parliament (Mar 10, 2010) deploring ACTA negotiations for bypassing the multilateral framework provided by the WTO and WIPO. Several such MEPs have written to DG, WTO and DG, WIPO requesting an impact assessment of the extent to which ACTA, as proposed, exceeds obligations in the current IP instruments and excludes flexibilities and exceptions contained in them. Even the US Government Accountability Office (GAO) has recently raised serious questions concerning the data that has been relied on by proponents of the ACTA to support the effort. IPR experts are increasingly challenging the concept of minimum standards concept and calling for setting maximum standards or ceilings so that there is (i) legal security and predictability about the boundaries of IP protection, (ii) protection of user’s rights and (iii) free movement of goods, services and information.

While India is committed to dealing with IPR enforcement issues in line with its TRIPS obligations, the introduction of intrusive IPRs enforcement rules applicable to goods and services in international trade does not represent a reasonable or realistic response. A response, if required, has to emerge from a multilateral and transparent process, as is available in the WTO TRIPS Council, and should fully conform to the objectives and principles (Art 7, 8 ) of TRIPS agreement and the balance of rights and obligations enshrined in the Agreement. As goods and services of developing countries are becoming competitive with those of developed country producers, TRIPS plus measures, like the ACTA, seek to introduce a new set of "non-tariff" barriers to trade that will preponderantly hinder developing country exporters. We urge developed country Members to keep these concerns in mind while dealing with IPR enforcement issues. Agreements such as ACTA have the portents to completely upset the balance of rights and obligations of the TRIPS Agreement. WTO cannot remain a silent observer to such a development. It is important that the issue is deliberated in this Council in detail.

The first two posts on the 32 Questions and Answers on Bill C-32's digital lock provisions focused first on general issues in the bill and second on C-32's circumvention exceptions.  Today's post discusses the missing exceptions – circumvention exceptions found in other countries but missing from the Canadian bill. For those that want it all in a single package, I've posted the full series as PDF download.

The Missing Exceptions

This section features answers to the following questions:

• Does C-32 include "authorized circumventers" as is used in New Zealand to facilitate legal circumventions?
• Are companies required to unlock locked content for legal purposes under C-32?
• Does C-32 include an exception for non-infringing access, such as accessing DVDs from other regions?
• Does C-32 include a circumvention exception for personal uses?
• Does C-32 include a circumvention exception for digital archiving?
• Does C-32 include a circumvention exception to protect minors?
• Does C-32 include a circumvention exception for filtering software programs?
• Does C-32 include an exception for circumventing digital locks that become obsolete or broken?
• Does C-32 include an exception for court cases, laws, and government documents?
• Bill C-32's digital lock provisions apply to copyrighted works.  Does that mean that public domain (ie. out-of-copyright) works are not affected?

Does C-32 include "authorized circumventers" as is used in New Zealand to facilitate legal circumventions?

No. New Zealand's copyright law introduces the concept of "qualified circumventers." The law grants special rights to trusted third parties who are permitted to circumvent on behalf of other users who are entitled to circumvent but technically unable to do so.  The current list of qualified circumventers includes librarians, archivists, and educational institutions. This approach rightly recognizes that many people will be unable to effectively use the exceptions inserted into the law.  By creating a class of trusted circumventers, the law creates at least one mechanism to ensure that users retain their existing copyright rights.

Are companies required to unlock locked content for legal purposes under C-32?

No. Many countries have recognized the danger that combination of DRM and anti-circumvention legislation may effectively eliminate user rights or copyright exceptions in the digital environment.  Creating exceptions is one way to address the issue, but another is to adopt an approach of "with rights come responsibilities."  In this case, if companies are going to obtain new legal rights for DRM, they must also shoulder the responsibility of unlocking their content when requested to do so by users for legal purposes.  This is a common theme in copyright laws around the world, which often identify courts, tribunals or mediators as the source to ensure that rights holders do not use DRM to eliminate user rights.

Does C-32 include an exception for non-infringing access, such as accessing DVDs from other regions?

No.  Bill C-32 prohibits the circumvention of TPMs that have absolutely nothing to do with infringing copying.  The most obvious example of this comes from the region coding found on DVDs and many computer games.  Many DVDs include Macrovision (designed to stop copying a DVD to VHS), Content Scramble System or CSS (the subject of important litigation involving DeCSS, a software program created to allow Linux users to play DVDs since they were otherwise unable to do so due to CSS), and region coding.

The premise behind region coding is fairly straight-forward. With DVD region coding, the world is divided into eight regions (Canada and the U.S. form Region One).  Consumer electronics manufacturers have agreed to respect region coding within their products by ensuring that DVD players only play DVDs from a single region.  The net effect is that Canadian-purchased DVDs will play on Canadian-bought DVD players, but DVDs purchased in Europe, Australia, or Asia (all different regions), are unlikely to work on those same DVD players (with the exception of those DVDs that are region coded zero, which can be played worldwide).

Note that the use of region coding has nothing to do with traditional notions of copyright law.  The underlying work may involve a copyrighted work – DVDs and video games regularly use region coding – yet the protection is designed to manipulate markets by restricting the ability to use fully authorized copies of works.  Many countries have recognized this by specifically excluding non-infringing access controls from their anti-circumvention legislation.  For example, New Zealand's copyright law includes a much different definition of technological measure, stating that:

for the avoidance of doubt, does not include a process, treatment, mechanism, device, or system to the extent that, in the normal course of operation, it only controls any access to a work for non-infringing purposes (for example, it does not include a process, treatment, mechanism, device, or system to the extent that it controls geographic market segmentation by preventing the playback in New Zealand of a non-infringing copy of a work)

Section 53a of Norway's anti-circumvention law states that the provisions shall not "hinder private users in gaining access to legally acquired works on that which is generally understood as relevant playback equipment," while Finland's law expressly permits circumvention for non-infringing uses of lawfully acquired copies.  The failure to include such a provision under Bill C-32 is a striking failure that must be remedied.

Does C-32 include a circumvention exception for personal uses?

No.  While other countries provide a blanket exception for personal use and establish a corresponding circumvention exception, Bill C-32 does not.  For example, Lithuania's anti-circumvention provisions include a specific exception that preserve this personal use right by requiring content owners to enable legitimate uses. This approach has the benefit of not only preserving personal uses, but also placing the obligation on those that use TPMs to ensure that the public retains its rights. 

Does C-32 include a circumvention exception for digital archiving?

No.  While many countries have expressed concern about the impact of TPMs on the preservation of digital materials, Bill C-32 only exacerbates the problem by not creating an exception for digital archiving.  Other countries have recognized this danger and sought to address it.   For example, the Czech Republic's copyright law provides at Article 37 that:

(1) Copyright is not infringed by a library, archive, museum, gallery, school, university and other non-profit school-related and educational establishment:
a) if it makes a reproduction of a work for its own archiving and conservation purposes, and if such a reproduction does not serve any direct or indirect economic or commercial purpose;

That country's anti-circumvention provisions then specify at Article 43(4) that:

Legal protection under Paragraph (1) [the anti-circumvention provision] above shall be without prejudice to the provisions of . . . Article 37 (1) (a) . . . to the extent necessary to benefit from the exception. An author who used technical measures under Paragraph (3) in respect of his work shall make his work available to lawful users to the extent necessary to fulfill the purpose of the stated exploitation of the work.

It is difficult to understand how a government can intentionally introduce legislation that will cause clear harm to the preservation of a country's own digital heritage.

Does C-32 include a circumvention exception to protect minors?

No. An exception that surprisingly is not included in Bill C-32's anti-circumvention provisions is an exception to protect minors.  How does this arise in the context of copyright?  One obvious example are parents who wish to stop their children from watching certain scenes in a movie.  There are services such as ClearPlay that purport to edit out sex, violence, and profanity from regular DVD movies.  Regardless of one's view of such practices, surely it ought to be the right of a parent who has purchased the DVD edit a scene for their family's personal viewing purposes.  Yet under Bill C-32, a parent who wants to shield their children from such content risks violating the law in order to do so.

Creating an explicit exception for the protection of minors is fairly common in other countries.  Taiwan's anti-circumvention provisions include a blanket exception to protect minors (Article 80ter), while Singapore's Copyright Act features an exception to the anti-circumvention provision where the circumvention is "to prevent access by minors to any material on the Internet." There may well be other instances where a parent or school wishes to protect minors but faces the prospect of violating the law by circumventing a digital lock.

Does C-32 include a circumvention exception for filtering software programs?

No. As part of the U.S. Copyright Office's DMCA rulemaking procedure (under which it identifies non-infringing uses that are hampered by the DMCA), the Office has twice issued an exemption for circumvention of filtering software programs in order to identify the list of sites included within the program.  Filtering programs can be used to filter or block inappropriate material, yet the same programs have been subject to considerable criticism over concerns that they may be overbroad and block perfectly legitimate material.  The only way for a party to ascertain whether their site is included on the block list is to access the lists contained in the software program, a process that typically requires circumvention.

In 2000, the Copyright Office found that an exception for filtering programs was needed.  It reaffirmed the decision in 2003.  In 2006, Seth Finklestein, the primary supporter of the "censorware" exception abandoned the fight for another renewal and the exception was dropped.  The same concerns remain, however, which is why a clear exception for the circumvention of filtering programs is needed within Bill C-32.

Does C-32 include an exception for circumventing digital locks that become obsolete or broken?

No.  The inclusion of a right to circumvent in the event that the TPM breaks or becomes obsolete should be relatively uncontroversial.  The U.S. Registrar of Copyrights has included a specific exception that addresses this situation since 2000.  The exception reflects the recognition that the continual evolution of technology places the investment that consumers make in entertainment and software products or that libraries make in materials at risk in the event that a TPM ceases to function or becomes obsolete.  While products do not come with a guarantee to function forever, the law should not impair consumers and libraries that seek to circumvent technologies that are no longer supported and thus create a significant barrier to access to their property.

Despite the obvious, recognized need for such an exception, Bill C-32 does not address the issue.  There is a limited exception for software interoperability, but that provision does not come close address the concerns associated with obsolete or broken TPMs.  Given the frequent changes in technology, it is a question of when, not if, technologies become obsolete.  Bill C-32 must anticipate these technological changes by providing a right of circumvention due to obsolete or malfunctioning TPMs.

Does C-32 include an exception for court cases, laws, and government documents?

No. In order for the public to know their legal rights and obligations, access to the law is widely viewed as essential.  Yet there is real danger that these kinds of materials – court decisions, legal statutes, and other government documents – could end up locked down using digital rights management.  Other countries have recognized the danger of mixing digital locks, anti-circumvention legislation, and legal materials.  For example, Sweden's implementation of anti-circumvention legislation tries to ensure access to court cases and government documents that are subject to TPMs.  Canadians surely should enjoy full access to the law without the prospect of fears that they might violate the very law they are trying to access by circumventing a digital lock.  An exception in Bill C-32 for this form of content is certainly needed.

Bill C-32's digital lock provisions apply to copyrighted works.  Does that mean that public domain (ie. out-of-copyright) works are not affected?

No.  Concerns about the impact of anti-circumvention legislation on public access and use of public domain materials is frequently addressed by arguing that the legislation only protects works that are subject to copyright.  Since public domain materials fall outside that definition, works such as old public domain films that are enclosed with DRM could be lawfully circumvented.  Those assurances notwithstanding, without the inclusion of a public domain circumvention right, circumventing DRM on works that combine public domain content with materials still subject to copyright could give rise to liability.  In other words, pure public domain may be circumvented (provided you have the tools to circumvent), but once someone builds on a public domain work, they will benefit from the anti-circumvention provisions.

This is a particularly pronounced concern for historians, archivists, and film scholars since their ability to use public domain film or video may be limited by anti-circumvention legislation.  For example, the distributor of a DRM'd DVD containing public domain films along with an additional commentary track would likely argue that there is sufficient originality such that the DVD is subject to copyright and that anti-circumvention provisions apply. While even supporters of the DMCA acknowledge that anti-circumvention legislation should not be used to privatize the public domain, they are loath to establish a full exception or circumvention right for public domain materials, arguing that all works contain some elements of the public domain and that a blanket exception could be used to cover virtually any circumvention.

A middle ground on this issue would include at least two provisions. First, a right to circumvent where the underlying work contains a substantial portion of public domain materials.  The definition of "substantial" will obviously be crucial, but policy makers and legislative drafters must err on the side of ensuring that the public domain is not inappropriately enclosed.  Second, given that anti-circumvention legislation encourages the use of DRM, the government should establish a policy that actively discourages its use on public domain materials.  This could be achieved by blocking the right to use such technologies where non-DRM'd versions of the same works are not reasonably available to the general public.

Australian Senator Kate Lundy has posted a critique of ACTA, expressing concern about both its scope and secrecy.  Lundy endorses the Wellington Declaration as a good standard to apply to any IP trade policy consideration.

Reuters covers the growing clash over ACTA with countries such as India and China increasingly concerned with the proposed agreement.  The report indicates that an interim ACTA meeting is planned for this Friday in Geneva.

The Canadian Federation of Students has released a member advisory on Bill C-32.  The advisory concludes that the bill "is a reasonable attempt at creating a balanced Copyright Act, however, it is fundamentally undermined by its blanket protection for digital locks."

The Interwebs are up in arms, again.

This time, the kerfuffle is over a DMCA notice, submitted by The New York Times Co., that caused the removal of the Pulse RSS reader from the Apple Apps Store.

The timing almost seemed designed to bring out the pitchfork-wielding hordes:  Mere hours after the Pulse iPad application was highlighted by Steve Jobs during his keynote speech at the Worldwide Developers Conference in San Francisco, the app was pulled from the App Store in response to a DMCA claim submitted by The New York Times Co.

So what’s the issue with the app? Not surprisingly, the Times’ DMCA notice is about as clear as mud.  The relevant portion reads as follows:

I am writing again, on behalf of The Boston Globe, Boston.com and The New York Times Company, about the infringing iPad app, "Pulse News Reader" produced by Alphonso Labs Inc. (please see pertinent details, link and screenshots below).

The infringing app is available on the iTunes store here: http://itunes.apple.com/us/app/pulse-news-reader/id371088673?mt=8

The Pulse News Reader app, makes commercial use of the NYTimes.com and Boston.com RSS feeds, in violation of their Terms of Use*. Thus, the use of our content is unlicensed. The app also frames the NYTimes.com and Boston.com websites in violation of their respective Terms of Use.

I note that the app is delivered with the NYTimes.com RSS feed preloaded, which is prominently featured in the screen shots used to sell the app on iTunes.

It’s hard to know exactly what to make of this. The interpretation put forth by Gizmodo, Endgaget, TechDirt and Wired (which seems to be supported by this post on the Times’ own Bits blog) is that any paid app that displays the Times‘ RSS feed is making "commercial" use of the feed, and thus exceeding the terms of the license. (Of course, the notice also takes issue with two other aspects of the Pulse reader, namely (1) the fact that Pulse displays the content in a frame — a practice that has raised the ire of publishers before — and (2) the fact that a screenshot of the New York Times website is used to advertise the Pulse reader.)

If the Times is taking the position that any paid app that displays RSS feeds from NYTimes.com and Boston.com require a license, does it have a leg to stand on?

Pulse’s redisplay of the Times‘ content wouldn’t be copyright infringement if an exception, such as fair use, applied.  The Copyright Act sets forth four nonexclusive factors to be considered by courts when determining whether a use qualifies for fair use protection. These factors include: (1) The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes; (2) The nature of the copyrighted work; (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) The effect of the use upon the potential market for or value of the copyrighted work. (17 U.S.C. §107.) Let’s look at each of these factors in turn.

The purpose and character of the use.  Since Pulse is a paid app, its commercial nature would cut against a finding of fair use. The fact that the app is commercial in nature does not end the inquiry into the first fair use factor, however. In addition to looking at whether the use is commercial in nature, courts also look at whether the use is "transformative" — namely, does the new work "merely ‘supersede[] the objects’ of the original creation," or does it instead "add[] something new, with a further purpose or different character, altering the first with new expression, meaning, or message."  (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, 114 S.Ct. 1164 (1994).) Pulse doesn’t add additional commentary or context to the articles, making it hard (although not impossible) to argue that displaying snipets of them is somehow transformative in nature.  Point: Times.

The nature of the copyrighted work. In deciding whether the nature of the copyrighted work favors a finding of fair use, courts look to a number of factors, including (1) whether the work is expressive or creative (like a work of fiction), or more factual (with creative works entitled to greater protections against copying), and (2) whether the work is published or unpublished (likewise, the scope of fair use is narrower for unpublished works). Here, the factual nature of the news articles displayed by the Pulse reader, combined with the fact that the articles are published on the Internet where they are freely accessible, weighs in favor of a finding of fair use. Point: Pulse.

The amount and substantiality of the portion used in relation to the copyrighted work as a whole. In evaluating this factor, courts look at the amount of the copyrighted work that is reproduced both quantitatively and qualitatively. Looked at from a quantitative perspective, Pulse is displaying only a small portion of the original work — the headline and the beginning of the lede. This would weigh in favor of finding fair use. The Times would likely argue, however, that the portion of a story reproduced by Pulse is much more significant when looked at from a qualitative perspective. This is because, the Times would argue, the headline and lede often contain the most important parts of the story — in other words, they constitute the "heart" of the article.  Of course, the Times can control how much of its article is carried by its RSS feed, so there would seem to be an easy technological fix for this problem. Point: Pulse.

The effect of the use on the potential market for the copyrighted work. This is probably the hardest of the factors to weigh.  If it is true, as the Times claims, that other paid RSS readers license the Times‘ content, a market may currently exist for the reproduction and syndication of news articles, and Pulse’s use of the content without paying a licensing fee could threaten that market. Likewise, the Times would likely  argue that for many consumers, the portion of the articles reproduced by Pulse is likely to replace the need for the original articles. (In support of this contention, they could cite to studies like one recently released by the research firm Outsell, which found that 44% of Google News users scan the headlines without ever clicking through to the original articles on the newspapers’ websites.)  Of course, one would presume that a consumer subscribes to the Times‘ RSS feed because they are interested in easily identifying and reading the Times‘ content. Further, Pulse could argue that its RSS reader is still a net benefit to the Times, by driving traffic to its websites from consumers that may not otherwise seek its articles out. Point: Tie.

As the foregoing discussion demonstrates, Pulse likely has decent fair use argument.

However, this analysis doesn’t take into consideration the user’s actions.  Where, as here, the app comes preloaded with the Times‘ RSS feed, it makes sense to analyze it as if Pulse is the one engaging in the copying of the Times‘ content. But would the analysis differ if it was the consumer that used Pulse to subscribe to the Times‘ RSS feed? 

The Supreme Court’s decision in the Sony Betamax case, as well as the Second Circuit’s recent holding in the Cablevision case, would suggest that the answer is yes. If the consumer were considered to be the one who added the Times‘ feed to the Pulse RSS reader, Pulse’s creator would face, at most, secondary liability if the consumer’s use constituted copyright infringement. Looked at from the consumer’s perspective, the fair use analysis becomes even stronger, since the commercial nature of the use disappears.  (It would be a strange result, indeed, if the legality of a consumer’s access of the Times‘ feed turned on whether they used a paid or a free RSS reader.) 

And this is, perhaps, from where much of the Internet outrage arises.

While the fact that Pulse comes pre-populated with the Times‘ RSS feed (arguably) makes a difference to the legal analysis, it does little to change people’s gut reaction.  As many commentators have noted, the Internet is built around the concept of linking to and reusing content that appears elsewhere.  As TechCrunch notes, "[Pulse is] using the NY Times official RSS feed, because the NY Times put it out there. For the NY Times to then complain about it doing so is bizarre."  This is the same argument that supporters of Google News and other news aggregators use:  if you don’t want it to be copied, don’t put it on the Internet.  And if you put it on the Internet, expect it to be copied (unless you hide it behind a paywall).   

UPDATE: After initially pulling the plug on the app, Apple seems to have reinstated the Pulse RSS reader to the App Store.  Accounts differ as to whether the version now available is a modified version without the Times‘ feed preloaded, or whether it’s the original version that was pulled yesterday.  Wired claims the latter.

Thanks once again to the hard work of my research assistant Keith Rose, posted below is a redline version of the Copyright Act with Bill C-32 incorporated into the law. 

E-readers are spreading both in the U.S. and abroad. Last week the New York Times reported that the Kindle, previously available only on Amazon.com, will be sold in brick-and-mortar stores by Target. College students could grab one when they pick up their school supplies. A study at the Darden School of Business, reporting that 90 to 95 percent of MBA students in select Darden classes would recommend the Kindle DX as a personal reading device, suggests that this is likely to happen. In addition, by the end of the year, Borders will offer 10 different models of e-readers in its retail stores, including the more affordable Kobo and the Libre ($149 and $120 respectively).

While the original Kindle to ship internationally was essentially a U.S.-centric device, with a U.S. power adapter, a U.S.-layout keyboard, and access only to English-language books, its current competitors are better equipped to target foreign markets. For instance, Spring Design’s Alex eReader will come with Chinese, Spanish, Russian, Korean, and Hebrew language capabilities and connect to local bookstores internationally. In addition, following its international launch last month, the iPad is expected to make a splash in Japan as it is particularly suitable for reading manga and the popular weekly magazines shukanshi. At the same time, the iPad will continue to spread English-language content through apps connecting to Barnes & Noble’s and Amazon’s e-book stores.

While the spread of e-readers is exciting news in places where access to books is limited and research libraries are poorly stocked, it also raises the specter of copyright infringement. Last year, Amazon resorted to deleting e-books by George Orwell from its customers’ Kindles after realizing that it did not have a license for U.S. distribution. The incident raised questions about property rights over e-books customers had already bought, and the WSJ’s Geoffrey Fowler argued that owning an e-book was like having a license to a piece of software since access came with fine-print terms of service and limitations on use imposed by DRM technologies. Hence, Amazon has the legal right to pull the books you paid for from your digital bookshelf. 

For books printed on paper, the first-sale doctrine dictates that copyright owners control distribution of a work up until its first sale into the stream of commerce. Thus, once you buy a book at the local book-store, you can lend it to a friend, resell it, or donate it to the library. In contrast, e-books, available on devices tethered to an online content provider, are "contingent: rented instead of owned, even if one pays up front for them." (Jonathan Zittrain, The Future of the Internet 107 (2008)). Hence, as Jonathan Zittrain explains, the material you store on your e-reader is "subject to instantaneous revision," and changes may be "content-specific, user-specific, or even time-specific." In other words, when you take your Kindle to your dorm room you may discover that your copy of Ender’s Game has disappeared because Amazon’s license to it expired. When you take your iPad to Japan, you may not be able to read your English-language content along with the manga and shukanshi if your e-book provider lacks Japanese distribution rights. You may also find that pages on Chechnya and Tiananmen Square have been "torn" out of your ebooks in Russia and China.

Seemingly at the tip of your fingers, your e-book library may be in the hands of others.

(Marina Petrova is a rising second year student at UCLA School of Law and a CMLP intern.)

(Photo courtesy of Flickr user unclefuz, licensed under a CC Attribution-Noncommercial 2.0 Generic license)