Tuesday, June 24, 2008

MPAA’s Brief and the Charming Betsy

The MPAA’s amicus brief in the Thomas P2P case in Minnesota has received a lot of publicity. What does the MPAA brief say? There are two parts to the brief. First, the MPAA takes the position that existing, domestic U.S. copyright law already incorporates the MPAA position. Second, and as an alternative, MPAA argues that domestic U.S. law should be construed to adopt its position because a failure to do so will place the U.S. in conflict with its supposed international obligations. All parts of the MPAA’s arguments are wrong: existing U.S. law rejects the MPAA position, international agreements do not adopt the MPAA position, and even if they did, U.S. law cannot be changed by the courts to make it fit such international obligations.

It is telling that the MPAA leads with its international arguments. One usually leads with what you believe to be your strongest argument. The converse of this is that you downplay your weakest argument. In this case, the MPAA must regard its construction of domestic law as its weakest, and is therefore asking the court to effectively enact its view of what the law should be, but isn’t. Separation of powers appears to be as outmoded as the threshold requirement that copyright owners prove infringement.

The MPAA’s international argument is based on two poles: first, the 1996 WIPO treaties, which do mandate a making available right, also mandate the MPAA’s interpretation of that right. No evidence of this is presented. Where in the treaties does it mandate that countries dispense with the requirement – which has existed from the beginning of copyright in the U.S. – that the copyright owner prove one of its rights has been violated? The MPAA declares that “A violation of the making available right does not require that copies were actually transferred to particular individuals,” Brief page 7, but supplies no support for this. There is simply no support for the position that countries, in implementing a making available right, must dispense with any evidence that copies were obtained by others. Countries are free to require such proof.

It is the nature of international agreements that they set forth broad concepts, leaving it up to national legislatures to fill in the details consistent with their local laws. U.S. law has long required actual distribution to violate the distribution right. If such a radical change was to be made, it could only have been made by Congress. The U.S. Congress was assured that no changes were necessary to adhere; in none of those assurances was Congress told that the treaties would dispense with the requirement of proving an actual distribution occurred in order to violate the making available right. MPAA’s position, in short, is that the making available right is synonymous with no proof of an actual distribution, but it comes up short in proving that was the case. Indeed, the Hotaling case, much relied on by the industry, has been roundly criticized by copyright scholars and by courts. If the MPAA’s view of U.S. law were accurate, Hotaling would have been non-controversial.

Because countries are free to require such proof, the MPAA’s argument that U.S. law must be construed (read: rewritten) to dispense with such proof also fails. But even here, the MPAA brief overstates its only authority, Murray v. The Schooner Charming Betsy, 6 U.S. 64, 2 L. Ed. 208, 1804 WL 1103 (1804). In The Charming Betsy, the Supreme Court, per Chief Justice John Marshall, held that “a statute ought never to be construed to violate the law of nations, if any other possible constriction remains.” The opinion only applies when a statute is ambiguous. It has no application when a statute is clear but conflicts with international norms. The Charming Betsy is merely a canon of construction; it is not a substantive legal doctrine. This all the more so because the WIPO treaties are not self-executing.

The MPPA and RIAA approach is to try and get through the courts what they would be unable to get through Congress because of the backlash and opposition. Let’s hope the courts resist the temptation to be legislators.

10 comments:

Scott said...

A somewhat ignorant (on my part), non-law-student question on the position of treaties in the pantheon of US laws.

Am I correct in my assumption that when Congress ratifies a treaty, it acquires the powers necessary to enforce the terms of the treaty via legislation--assuming such powers do not conflict with powers prohibited to Congress by the constitution--but until such legislation is passed, the terms of a treaty themselves have no sway in US law? This sounds like your argument--that absent affirmative enabling legislation, treaties are not part of the body of US law.

May the courts, when ruling on the particulars of a law which does implement a treaty, consult the text of the treaty itself for guidance, and to what extent?

Heh... perhaps the MPAA should go and file a complaint with WIPO, alledging that the US is not living up to its obligations. Given that the MPAA is a US-based entity, could they attempt such an "end run" around US policymakers--or is lodging such complaints a power reserved for national bodies, not private organizations?

William Patry said...

Scott, not all treaties are equal; some become law upon ratification, and some don't. Those that don't are not law until Congress passes separate legislation. Copyright treaties need separate legislation to become domestic law.

MarcWPhoto said...

Scott:

The MPAA could theoretically to attempt redress through WIPO, but they won't, because as Mr. Patry points out, their position is not actually in accord with the WIPO language. In other words, they know in advance that they would lose. (Especially since most other industrial countries view the MPAA/RIAA type suits with horror and/or disgust.) That's why they're trying to bamboozle the judge into thinking that WIPO language binds the court to their interpretation.

That shouldn't work either, if they can't cite actual language. If I had turned in a brief in law school asserting that a statute (or treaty) contained a black-letter assertion but not citing the actual language, my professor would have failed me. Either whoever drafted that brief failed Legal Writing, or there is no such language and it is a pure assertion of opinion which is not binding on the court. As Mr. Patry so succinctly points out, that opinion is not in accord with the history of the treaty and/or the relevant US law.

M

Mac the Knife said...

Professor,

You wrote: "In The Charming Betsy, the Supreme Court, per Chief Justice John Marshall, held that “a statute ought never to be construed to violate the law of nations, if any other possible constriction remains.” The opinion only applies when a statute is ambiguous. It has no application when a statute is clear but conflicts with international norms. The Charming Betsy is merely a canon of construction; it is not a substantive legal doctrine. This all the more so because the WIPO treaties are not self-executing."

This is all well and good, but I'm still confused as to how the statute is unambiguous. I assume you mean that the definition of "distribute" is unambiguous in that it requires actual transfer of copies or phonorecords from one person to another. I accept that there is legislative history in the 1976 Act to suggest this. However:

(1) As indicated in the brief from Tom Sydnor, the Register of Copyrights, the Assistant Secretary of Commerce for IP, the Assistant Secretary of State for Economic and Business Affairs, and committees in the House and Senate construed the distribution right to include "making available" so that no additional change to the Copyright Act was necessary to implement WIPO. Whether or not they were clearly right, does this not suggest that the term "distribute" is ambiguous? Or were they all just morons?

(2) Accepting that the term "distribute" unambiguously required actual dissemination when the Copyright Act was originally enacted in 1976, and accepting that the WIPO treaty is non-self executing... as the Sydnor brief points out, Congress passed and the President signed legislation (as part of the DMCA) that implemented WIPO. So the fact that the treaty is non-self executing is kind of moot. Now... is it possible for this implementing legislation to have altered the statutory meaning of the term "distribute" to now include "making available," given that this was the reason they didn't make an explicit amendment?

This is more of a general question of the effect of a treaty on statutory interpretation in general than a criticism of your position on the copyright law. Thanks for your input...

C.E. Petit said...

If I can point out another problem with the MPAA position:

It fails to distinguish between granting of a right, and granting a means of asserting that right. Registration of copyrights is a good example. Under Berne (and all of the other relevant treaties, and even the 1976 Act), the copyright rights exist from the moment of fixation. Conversely, one cannot get into a US court for a US work without registration (whether application or actual certificate is, as Professor Patry pointed out a couple of entries back, another question). Thus, our copyright law does provide the positive right; it merely provides an additional procedural restriction on what is necessary to vindicate it.

And that is what rules of evidence generally are: procedural restrictions. Although I think the "better" view is that registration is a substantive formality and not a mere procedural restriction — because it is an absolute bar — I'm in the minority on this, and recognize that my minority view is not the law. The MPAA, however, has failed to either see the distinction between a right and the means of vindicating that right, or its view of what is to its advantage and the law. (That the MPAA and John Yoo use the same method of ignoring unfavorable authority is rather ironic, given the supposed liberal bias of Hollywood.)

William Patry said...

Dear Mr. Shark:

You say in your first point:

"As indicated in the brief from Tom Sydnor, the Register of Copyrights, the Assistant Secretary of Commerce for IP, the Assistant Secretary of State for Economic and Business Affairs, and committees in the House and Senate construed the distribution right to include "making available" so that no additional change to the Copyright Act was necessary to implement WIPO. Whether or not they were clearly right, does this not suggest that the term "distribute" is ambiguous? Or were they all just morons?"

I certainly wouldn't say those you list are morons, and nothing in my post suggested anything remotely like that. I assume you got carried away in a rhetorical flourish. On the merits you seem to say that silence equals ambiguity. I don't agree. Yes, all of the above said no change in U.S. law was necessary, but what they didn't say is that no change in U.S. law was necessary because in their view no actual distribution is required. Even in the courts, the shock caused by Hotaling -- and its subsequent rejection by other courts -- shows that there was an established view that distribute did require an actual distribution. The only thing that has changed is that the RIAA came upon a new theory YEARS AFTER the treaty was signed, that theory being that no actual distribution was necessary. If the theory is not an after the fact concoction, why wasn't is used by RIAA and MPAA right after 1996? Why now, just recently, about 10 years after the treaty?

You say in your second point:

"(2) Accepting that the term "distribute" unambiguously required actual dissemination when the Copyright Act was originally enacted in 1976, and accepting that the WIPO treaty is non-self executing... as the Sydnor brief points out, Congress passed and the President signed legislation (as part of the DMCA) that implemented WIPO. So the fact that the treaty is non-self executing is kind of moot. Now... is it possible for this implementing legislation to have altered the statutory meaning of the term "distribute" to now include "making available," given that this was the reason they didn't make an explicit amendment?"

The answer is absolutely not. The only way you can change the law is by changing it; that means through actual legislative language. Nothing in the DMCA legislation remotely touched on our question.

Scott said...

Thanks for your reply, William; this blog is very fascinating to this non-lawyer.

The Capital v. Thomas case is very interesting, as it does highlight what appears to be a hole in the copyright act as it exists. While I'm no fan of the RIAA's current enforcement methods--which reek of abuse of the legal system (more on that later), and the RIAA and its member labels have certainly gone after lots of innocent grandmas--the defendant in this case, based on my persual of the factual record, appears to be guilty as hell. At the very least, Ms. Thomas appears to indeed be guilty of placing copyrighted music in a shared folder on a computer with KaZaa installed--there is in the record a good-sized preponderance of the evidence that this was done. She isn't a grandma who had ill-behaved grandchildren pop by for a visit, or a housewife whose wifi was hacked. Whether or not she will be found liable turns solely on the making available theory--if making available is indeed infringement (or alternately, if MediaSentry investigators downloading songs from her computer indeed constitutes an "unauthorized distribution", despite being hired by plaintiffs), then the current verdict for the plaintiff stands. If not; then the RIAA's case falls apart, and a finding for the defense is the likely outcome.

So, despite my strong dislike of the RIAA's methods, I'm not entirely unsympathetic to their position. That doesn't mean, however, that the MPAA's legal analysis is correct. Perhaps there is a need for explicit legislation to address the set of facts in these, and similar cases.

Which brings me to the second "hole" in the US copyright regime, in which these cases fall--the issue of enforcement. While some of the defendants in the various P2P causes of action are innocent; many others are indeed knowingly putting copyrighted works (which they may or may not own legal copies of in other media) on their computers, and making them available (in the plain English sense) to all comers on the Internet; and they are typically using software which is designed to conceal this activity from investigators, public and private. The RIAA's response has been all too heavy-handed, and probably has done their interests more harm than good. But here's the $150,000 question: Other than the obvious answer of "nothing"--what else could they have done?

Under the current state of affairs, the answer is probably "not much". Copyright enforcement is a federal matter, and agencies like the FBI and the US Customs Service have their hands full dealing with professional pirates and counterfeiters; given the penalties and the expense, use of criminal copyright law is clearly inappropriate. Likewise, unfortunately, for the current state of civil law. The current statutory damages prescribed by law was, I suspect, intended to be a deterrent to large-scale counterfeiters, plagiarists, and such, not P2P junkies. Against ordinary people, it's a bludgeon--and the choice of a six figure judgment, a five-figure lawyer bill, or a four-figure settlement is the recipe which invites the abusive practice the RIAA has been engaged in.

Can you imagine parking your car in a pay lot, staying longer than the allotted time, and several weeks later receiving a registered letter in the mail demanding thousands of dollars in damages for overtime parking, in order to avoid a lawsuit with a potential judgement of $150 grand? Of course not--such a thing would be preposterous. In reality, if you do park overtime (and are discovered but not towed) the law provides the parking lot owner a more reasonable remedy--he can levy a small fine against you (typically in the tens or hundreds of dollars)--far enough above his lost revenue to make it worth his while (and make you think twice about doing it again), but not enough that the matter requires ramping up the full legal machinery better suited to adjudicating larger matters.

And perhaps that's what needed for P2P cases like this. A regulatory regime whereby copyright holders can defend their interests from pirates and such, with a lower standard of evidence so that expensive and intrusive investigation and discovery procedures are not needed--but which won't produce judgements or settlements way out of proportion to the offense in question. For this sort of petite copyright infringement, "making available" could certainly be a cause of action (whereas full-blown civil or criminal enforcement would continue to require actual proof of distribution). One final change to the regime might be a "one warning" notice-and-takedown requirement, to fairly deal with the aforementioned grandmothers.

Obviously, this is a legislative concern/proposal, not an issue for legal analyses (not being the law currently). But I'm curious what others think. My only concern with revisiting the law is that it might bring about more mischief than good--the copyright cartel having bigger and better lobbyists than the rest of us.

Anonymous said...

I am an engineer, not an attorney, which I hope makes up for any sins in my post.

Clearly, the plain reading of 106(3) is that an actual copying of the proffered files has to happen. So much for the law. What about the question of fact - why can't a tryer of facts, jury or judge, conclude from the facts in Hotalling, for example, that a copying and hence a violation, occured?

Kip Patterson

Anonymous said...

Bill, you say:

"The MPAA declares that “A violation of the making available right does not require that copies were actually transferred to particular individuals,” Brief page 7, but supplies no support for this. There is simply no support for the position that countries, in implementing a making available right, must dispense with any evidence that copies were obtained by others. Countries are free to require such proof."

I'd like to know what your thoughts are on the following, as possible support for that position:

(1) The right, as phrased in the WIPO Treaties, isn't just "making available." It's "making available to the public ... in such a way that members of the public may access these works from a place and at a time individually chosen by them." [WCT Art.8] Doesn't that language reach situations where no copy has in fact changed hands? The text says "may access...", not "access..."

(2) In the same vein, the plain language says, "making available," not "making available, with a subsequent distribution." Are free pennysavers "made available" to me as I walk down the street? Sure -- but that doesn't mean I ever take one.

(3) Article 6 in the WCT is a distribution right. Wouldn't a "making available" right that could be tied to distribution be redundant with this Article? (Unless you take the position that no distribution is possible over the internet because no physical copy is transferred, but I don't think you made that argument here.)

(4) In terms of treatise authority, Ficsor's WIPO Treaties book says that the Treaties' so-called "umbrella solution" was intended, in part, to cover interactive transmissions and to clarify "that a work or an object of related right is considered to be made available 'to the public' also when the members of the public MAY access it at a time and place freely chosen by them." [Para. CT-8.9 (emphasis added)].

Any light you could throw on this would be appreciated! Thanks.

- Puzzled

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