Monday, October 04, 2010

More on DMCA "copyright agent" for safe harbor eligibility; what about copyright and chess games?

Previously on this blog I’ve discussed the confusion as to who can qualify as a “copyright agent” under the “safe harbor” provisions of the DMCA. The best definitive document seems to be summary by the US Copyright Office, starting on page 8, “Title II: Online Copyright Infringement Liability Limitation”, at this PDF url. The safe harbor is offered only for four activities: “1. Transitory communications; 2. System caching; 3. Storage of information on systems or networks at direction of users; and 4. Information location tools. The last item would appear to include search engines. There are special protections or provisions to protect service providers from making a “hobson’s choice” between disclosing a subpoenaed identity and keeping liability protection.

Since the US Copyright office document is in public domain, it is well worth quoting one passage: “For purposes of the first limitation, relating to transitory communications, “service provider” is defined in section 512(k)(1)(A) as “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” For purposes of the other three limitations, “service provider” is more broadly defined in section 512(k)(l)(B) as “a provider of online services or network access, or the operator of facilities therefore.” In addition, to be eligible for any of the limitations, a service provider must meet two overall conditions: (1) it must adopt and reasonably implement a policy of
terminating in appropriate circumstances the accounts of subscribers who are repeat infringers; and (2) it must accommodate and not interfere with ‘standard technical measures.’”

Corynne McSherry at Electronic Frontier Foundation (her article on “copyright trolls” is discussed in my Sept. 28 posting here) answered a question to me in an email about this with (in part) “It is true that the Section 512 safe harbors only apply to service providers -- the idea was to create protection for intermediaries. Those categories can be broad, but won't encompass everyone.” EFF tells me that it will develop (and presumably soon publish on its own site) a more detailed explanation for bloggers to see who could benefit from self registration as agents. But in general (and to bypass all the confusion on Facebook and various other sites pointing to USCO interim and amended registration forms, with fees), most people, it would seem to me, would need to be operating their own content-bearing servers to qualify. It would certainly appear that those who publish using only shared hosting (including using "native" Blogger or Wordpress) could not name themselves as agents. 

Remember, the safe harbor provision aims to control downstream liability so that the business models for service providers can work. In a practical world, at least until Righthaven and its “Nightbreed” minions came along, most copyright owners found that takedown notices were the expected and effective procedure (and indeed takedown notices were often abused). The Righthaven world is claiming that this is ineffective and that only punitive deterrents and the practical threat of large self-defense costs (“shakedowns” or even outright legal bullying) work. As with SLAPP, one wonders if this is really about just infringement deterrence or it is about silencing low-cost competition or detraction. On the other hand, Righthaven does have a valid “philosophical” point about the strict enforcement of property rights against potential infringement, which could matter in non-copyright areas (such as “implicit content” or “conflict of interest” ownership problems). (Note, as in the paragraph above: a few of the Righthaven defendants appear to have been using native Blogger and Wordpress and could not have made sure they would get safe harbor notices.) 

By the way, in perusing some old chess magazines today, I noticed on p. 26 of the May 2006 “Chess Life” a question and answer indicating that chess games themselves are not copyrightable, but annotations and analyses are. The writer speculates that most people who solve chess problems like to see their solutions quoted. I wonder, however about something this: someone watches a game at a non-rated 5-minute tournament at the local chess club or at a private home where someone comes up with an apparent refutation of some controversial line in some opening, and publishes the line in his own chess blog, maybe commercial because of ads. Maybe it’s his own defeat. Is this potential infringement, or just reporting of “fact”? For my drama blog, someone found the chess game supposedly played in the musical “Chess” and posted it in a comment on my Sept. 1, 2010 review. I also chuckle at another situation: a couple years ago, the New York Times published a picture of a supposed chess game being played by Mark Zuckerberg and another Facebook employee at the company, and visitors found that the published position could not occur legally. Some “i.p.” you don’t want to protect.

One could have a similar discussion of recipes, whether using gravlax or malfatti or anything else for people who really like to cook!

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