Microsoft letter to GitHub over DRM-free music software is not the first copyright-ironic action against an intermediary

TorrentFreak has reported that Microsoft demanded that GitHub take the code repository of an app that provides access to unprotected Xbox Music tracks. Some are calling it ironic, given that Microsoft is offering access to DRM-free music through its API.

The situation is reminiscent (though not legally identical) to the weirdness we observed way back in 2006 when YouTube asked TechCruch to take down a tool that allowed people to download video clips. We recognized early on that YouTube was a copyright renegade. So it was surprising that it would take such an aggressive tactic toward purveyors of software that would make use of copyrighted works easier.

The Microsoft of today is certainly not the YouTube of 2006. So naturally its interests are different. But comparing the two scenarios yields the common conundrum of how one company that wants to more smoothly make content available deals with other technologies and platforms that do the same thing, but cut out the main monetizing opportunity.

It could be a phenomenon of copyright’s outdatedness. Both YouTube and Microsoft took action against others who were distributing technologies that touched on infringement by means of making copies of the works. That will likely remain an important protection under copyright law even after meaningful reform. But what is really at stake is the right to access content. If that were a meaningful right under the Copyright Act, companies would be less likely to take enforcement actions that appear on the surface to be ironic.

Evan Brown is an attorney in Chicago advising clients on matters dealing with copyright, technology, the internet and new media.

One must conscientiously and systematically perform abstraction-filtration-comparison test in software copyright infringement matters

In all copyright infringement cases, a plaintiff must prove, among other things, that the defendant copied elements of plaintiff’s work that are protected by copyright. This is key because not all copying is infringement – some of what is copied may be merely ideas, processes, facts, in the public domain, or scenes a faire material. It’s not illegal to copy those things. So a successful plaintiff has to show more than “copying in fact”. It must show “illegal copying”.

Software infringement cases present some nuance for this analysis. A computer program has different levels of abstraction (i.e. from main purpose down to object code), and when the only similarities are at higher levels of abstraction, there is less chance that infringement has occurred. Some courts employ the “abstraction-filtration-comparison test” to evaluate whether a defendant accused of infringing the copyright in software has indeed illegally copied protected elements of the plaintiff’s work:

At the abstraction step, we separate the ideas (and basic utilitarian functions), which are not protectable, from the particular expression of the work. Then, we filter out the nonprotectable components of the product from the original expression. Finally, we compare the remaining protected elements to the allegedly copied work to determine if the two works are substantially similar.

Plaintiff sued one of its founders for copyright infringement after that founder had moved to another company and had developed software allegedly similar to software he had created while at plaintiff-company. The parties agreed to have a special master evaluate the parties’ software to opine on whether defendant had infringed. The special master found there to be infringement, and the district court agreed, ordering that copies of defendant’s software be destroyed.

Defendant sought review in the Tenth Circuit. On appeal, the court vacated and remanded. It held that the special master failed to properly document the steps involved in conducting the abstraction-filtration-comparison test.

The court found there was little evidence the special master performed the abstraction step. Although “[a]pplication of the abstractions test will necessarily vary from case-to-case and program-to-program,” a “computer program can often be parsed into at least six levels of generally declining abstraction: (i) the main purpose, (ii) the program structure or architecture, (iii) modules, (iv) algorithms and data structures, (v) source code, and (vi) object code.” In the court’s mind, “[a]bstraction is important, and it cannot be neglected here.”

The failure to “conscientiously and systematically” perform the abstraction step tainted the remainder of the three-part test. The court criticized the special master’s application of the filtration and comparison steps, observing that the special master apparently proceeded from the false premise that an infringement analysis begins and ends with “copying in fact.” The special master went to great lengths to show that defendant took steps to conceal his copying of source code (e.g., by omitting comments). But having not first properly separated out (by filtering) the unprotected elements after abstraction, the special master’s report was not sturdy enough to support a finding in the district court that infringement had occurred.

Paycom Payroll, LLC v. Richison, — F.3d —, 2014 WL 3377679 (10th Cir. July 11, 2014)

Tomcar sales using Bitcoin reveal some new norms

The Australian off-road utility vehicle manufacturer Tomcar has begun accepting Bitcoin as a form of payment for its direct sales to customers. This example of Bitcoin’s expansion into the marketplace sends a few interesting messages, among them:

  • Sellers and buyers will be motivated to use the cryptocurrency for reasons other than anonymity: Tomcar’s stated reason for liking Bitcoin is to avoid credit card transaction fees and unfavorable international currency exchange rates.
  • Bitcoin plays a role in the supply chain, not just in transactions with the end user. Tomcar is paying some of its suppliers using Bitcoin. The Winklevoss twins say Bitcoin could become the currency for an entire country.
  • Payment gateway CoinJar (which Tomcar uses) is an interesting specimen. It’s not just the Brothers Winklevii who are investing in the Bitcoin marketplace.
  • The Silk Road shutdown was a good thing. Cryptocurrency lends itself well to a seedy marketplace. And those seeds, watered with unscrupulousness, will bear fruit of bad reputation. Tomcar’s founder hails Silk Road’s demise, since a lack of association with the unlawful will do the currency some PR good.

One can’t help but wonder whether there are some opportunities to reinforce some stereotypes when thinking about Tomcar and the people who would buy them. The off-road utility of the vehicles would come in handy in the post-apocalyptic world occasioned by the collapse of modern governments – the very entities running a monetary system that the Bitcoin enthusiast gladly wishes to circumvent.

How will we handle the legal issues of self-driving cars?

The technology to support self-driving cars is a reality. At this point the challenge is largely economic — it costs around $100,000 to equip a self-driving car with the sensors and other hardware to push it toward autonomy. Another challenge is social. We tie a lot of our identity to our cars and the freedom they afford. This freedom might as well be in our human DNA. There’s no one still living on the planet who knew a time before the automobile.

A third challenge is legal. And it’s much easier to ask the questions than to answer them.

  • How will we set the standards for hardware and software performance?
  • Should we adjust the speed limit?
  • How will we allocate fault when there is an accident?
  • Will the cost of insurance go down if there is less risk on the road?
  • Are we willing to give over so much information when our self-driving cars join the “internet of things”?
  • What protections will we give to automobile makers and the manufacturers of autonomous systems?

On that last question, legislative protection of entire industries is not unprecedented. Gun makers and internet service providers find protection from the unfortunate choices made by the users of their products.

In any event, the self-driving norm is emerging, and is bolstered by new data about how safe and cost-effective it is. There are big savings in terms of dollars and lives. The legal and social issues will have to sort themselves out.

1 2 3 4 13 14 15