I don’t have any deep and meaningful thoughts on this myself, but I’ve been wondering for a while why we don’t hear more about copyright infringement and DMCA infringement in the digital publishing industry. The music, movie and gaming industries seem to have led the charge in protecting their copyrights in the digital world and being extremely vocal about it in the process. But not so the publishing industry. I’ve heard a couple of different explanations for this none of which I find completely satisfying. One is that publishers have different relationships with their customers than other industries – perhaps less adversarial in some senses, and publishers are thus more concerned than some industries about alienating customers by threatening copyright infringement suits. Another explanation has been that the publishing industry has somehow been better at using technological protection measures to protect its content. Again, I don’t know how much truth there is to that. I did correspond with one self-published author who told me that she sends out DMCA notices all the time to folks who illegally copy her work and that when she works with publishers, they also end up sending a lot of DMCA notices on her behalf. This author also mentioned to me that copyright infringement in the book industry is potentially more damaging to content creators (and distributors) because people tend to only read a book once while they go back to other digital copyrighted works – music, movies, games – multiple times and may ultimately decide it’s easier to just get a legal copy at the end of the day. I’m not sure that makes sense either. If people download games, music and movies illegally, I can’t imagine that their ongoing enjoyment of that content would lead them to want to make legal purchases down the track unless there are other incentives.
I’d be interested in whether others have thoughts on these issues. I’ve been trying to puzzle them out for a while.
In case anyone’s interested, here’s a link to a guest blog post I did for Xconomy’s new Texas site, on ICANN’s new gTLD process. It’s just a general overview of current issues.
By the way, if anyone is as obsessed with Internet domain names as I am, ICANN has recently opened calls for public comment on the increasingly difficult challenges they are facing implementing aspects of the new gTLD process. Two notable calls for comments relate to reactions to the GAC advisory on new gTLDs, and the new draft gTLD registry agreement. Full details are here.
I was intrigued by the comment in the recent ReDigi holding to the effect that there were three distinct secondary liability claims in the case: (a) contributory infringement; (b) inducement of infringement; and, (c) vicarious infringement (pp 14-15 of the opinion). The judge finds that contributory infringement and vicarious infringement are established, so expressly does not rule on the inducement claim. I can understand that inducement may be problematic if ReDigi was in fact advertising that it was a “legal” service, even if ReDigi was incorrect in the court’s opinion. But I also thought that inducement was generally regarded as a part, or subset, of the contributory infringement claim, rather than as a distinct third test for secondary liability.
In Perfect 10 v Google, the court seems to divide contributory infringement into two sub-categories: Sony-style arguments relating to articles not capable of substantial or commercially significant non-infringing uses, and Grokster/Napster-style arguments related to intentionally inducing or encouraging direct infringement. This second class seems to break down into the “inducement” and the “active participation with knowledge” sub-categories. Is ReDigi doing something different in describing “inducement” as a third distinct form of secondary liability outside contributory liability, or is it the same thing, but phrased differently?
I’ve been chatting in class lately with students about user-license agreements relating to digital products (who hasn’t?) and we keep coming back to the iTunes license and the question of who “owns” your iTunes library. There was a news story a while back about Bruce Willis being shocked that he couldn’t leave his iTunes library to his children in his will because he didn’t really own any of the music. Some of my students and I started wondering what Apple actually says in the license about ownership of the music and whether ownership of the music library could be linked in any way with a notion of ownership of the user account. When I actually looked at the license, I was interested in the way the terms on user accounts were actually drafted:
As a registered user of the iTunes Service, you may establish an account (“Account”). Don’t reveal your Account information to anyone else. You are solely responsible for maintaining the confidentiality and security of your Account and for all activities that occur on or through your Account, and you agree to immediately notify Apple of any security breach of your Account. Apple shall not be responsible for any losses arising out of the unauthorized use of your Account.”
I’m really interested in the wording of the second sentence of this paragraph. Unlike the rest of the agreement it’s drafted in the imperative i.e. “Do not…” rather than in more traditional contract language. Does anyone think this is significant? Does it mean that Apple understands that it really can’t contractually control what a user does with his or her password, so this is written more as a direction to the user rather than a contract term? Or am I reading too much into it?