17 May 2012

Copyright Fixes

'Protecting State Secrets as Intellectual Property: A Strategy for Prosecuting WikiLeaks' by James Freedman in (2012) 48(1) Stanford Journal of International Law 185 argues - in my opinion unpersuasively - for use of copyright law in dealing with Wikileaks.

Freedman comments that
Criminal statutes generally deployed against those who leak classified government documents — such as the Espionage Act of 1917 — are ill-equipped to go after third-party international distribution organizations like WikiLeaks. One potential tool that could be used to prosecute WikiLeaks is copyright law. The use of copyright law in this context is rarely mentioned, and when it is, the approach is largely derided by experts, who decry it as contrary to the purposes of copyright. Using copyright to protect state secrets, however, particularly if done through suit in a foreign court, escapes a number of the impediments to a WikiLeaks prosecution, such as the limited scope of narrowly tailored U.S. criminal statutes or the need to apply U.S. law extraterritorially and extradite defendants. Admittedly, using copyright law for these purposes presents its own set of problems, perhaps most intractable under U.S. law, but still significant in the case of suits brought in a foreign court under foreign law. This Note will explore these difficulties, such as the government works issue, potential fair use or fair dealing defenses, as well as various non-legal obstacles to success, eventually reaching the conclusion that prosecuting WikiLeaks internationally for copyright violations is potentially more viable than any of the methods of criminal prosecution heretofore explored publicly by government attorneys and legal scholars.
He concludes that
Admittedly, there is no easy course through the thicket of domestic and international laws and treaties standing in the way of a United States prosecution of WikiLeaks. The chance for success by pursuing a copyright case abroad, however, is far greater than many commentators have acknowledged. The difficulties are not insurmountable; there is a strong case to be made that the full publication of thousands upon thousands of works of expression was not required to fulfill the organization’s journalistic mission, even if the leaking of general classified information was necessary. And the leeway provided by fair use is not enough to offset the immense difficulties posed by issues of extraterritorial application of U.S. law, potentially inapplicable statutes, the strong protections of the U.S. constitution, and, perhaps most importantly, the limitations and challenges of extradition. As a result of the foregoing analysis, copyright emerges as a method worth considering in the coming months and years, to address an issue that does not appear to be going away any time soon. 
Phillip J. Crowley, former U.S. Assistant Secretary of State for Public Affairs, cast doubt on any WikiLeaks prosecution by the government: “I do not see WikiLeaks as journalism. It is a source of information. That said, it is hard to distinguish what WikiLeaks did from what the New York Times did. That’s why the focus is rightly on Bradley Manning.” He also said that “[t]he Manning prosecution, done right (his pre-trial treatment included), and improved data security are the proper responses to [WikiLeaks].” 
Crowley may well be right that deterring the source of leaks through prosecution of initial leakers, and preventing leaks from occurring in the first place by improving security protocols, are the most effective methods available to protect state secrets going forward. Nevertheless, simultaneously deterring and hindering the operations of organizations, like WikiLeaks, that publish leaked documents may provide an additional benefit. 
Crowley’s statement equating the actions of WikiLeaks to those of the New York Times may hold some force when considering prosecution under the Espionage Act of 1917 or similar criminal statutes in the United States. But under an intellectual property regime, the actions of those two organizations are of a substantially differing nature — WikiLeaks, by publishing all of the documents at issue in their entirety, is capturing the very expression copyright laws seek to protect. Furthermore, the New York Times undoubtedly falls into the category of “the press,” and appears to publish only the facts, choice quotes, and those particular documents necessary to fulfill its journalistic mission. Arguments exist on both sides as to whether WikiLeaks should benefit from the heightened protections afforded to journalists under many national laws. For instance, Crowley admits, “I do not see WikiLeaks as journalism.”
Despite the myriad difficulties presented throughout this Note in relation to the government pursuing legal action against WikiLeaks and similar organizations using intellectual property laws, the option may indeed provide an additional tool for deterrence and punishment of offenders. Whether this course is worth pursuing—normatively or practically — will of course be left up to the political and policy judgments of government actors and the risk-benefit analyses of their advisors.
Recently as of this writing, the Justice Department said its investigation of WikiLeaks is “ongoing.” Whether the investigation will culminate in the extradition and prosecution of WikiLeaks leaders under U.S. law such as the Espionage Act, whether it will result in a criminal prosecution brought by a foreign nation, or whether the U.S. will choose to employ foreign intellectual property laws against the organization, remains uncertain. Perhaps the investigation will merely drag on for some time until it ultimately, and quietly, draws to a close. Regardless, the events at issue have provided an opportunity for us to consider this novel and perhaps impracticable—but nevertheless fascinating—potential use of international intellectual property law.
'Managing Peer-to-Peer Traffic with Digital Fingerprinting and Digital Watermarking' by Ke Steven Wan in (2012) 41(3) Southwestern University Law Review 331 goes back to the future of ECMS, proposing
 the joint use of digital fingerprinting and digital watermarking to solve the long-standing P2P infringement issue, while the graduated response system is becoming popular. The war on P2P is essentially about the control over content rather than revenue. The graduated response system will aggravate the misuse of the notice-and-takedown procedure and strengthen the content industry’s control over content. Digital fingerprinting and digital watermarking, on the other hand, enable conduit ISPs to deter P2P infringement neutrally and should be given more attention. [The] Article proceeds in six parts. 
Part II introduces the three grounds for third-party liability: contributory liability, vicarious liability, and inducement. 
Part III briefly reviews the war on P2P. It discusses the inadequate protection afforded by the Digital Millennium Copyright Act (“DMCA”) and copyright owners’ private attempts to thwart P2P infringement, such as massive lawsuits, DRM, and the graduated response system. It analyzes the drawbacks of the notice-and-takedown procedure and proposes modifications to § 512 of the DMCA. This Part also proposes the “filter-counter notification-notice with a bond” procedure to mitigate the misuse of a § 512 notice. Lawmakers should probably substitute the John Doe litigation for the subpoena power and the policy of terminating repeat infringers. If filters are installed, litigation should only be used against intentional and outrageous infringers such as those circumventing filters and uploading copyrighted works. 
Part IV discusses whether failure to filter should be considered as a factor of inducement. It also analyzes the desirability of imposing a duty to filter. 
Part V explores the cheapest cost avoider test and concludes that online copyright infringement is a joint-care, unilateral accident, where copyright owners and ISPs should cooperate to reduce the monitoring cost. This part also analyzes the costs and benefits of encryption in P2P. This Part proposes that ISPs should be allowed to assert an affirmative defense that they have installed filters to prevent copyright infringement. 
Part VI discusses the possible criticism of the cheapest cost avoider test. 
Part VII reviews the history of formalities, critically examines Professor Lawrence Lessig’s proposal of more formalities and proposes a watermarking regime. To reduce the distortionary effects on subscribers, an ISP can design a pay-per-download plan for subscribers who download watermarked works.