Fair Use

Fair Use


>>From the Library of
Congress in Washington, D.C.>>Catherine Rowland: This next
panel is going to be on Fair Use and I think it’s going to be a
little abbreviated due to the length of the earlier panel but
originally it was supposed to be in the next panel but we realized
it was such a large issue we wanted to separate it out so I think
it should work fine this way. So Fair Use is obviously a very
important defense in copyright law and we’ve seen it raised in
a lot of different context with computer software and with this
panel we really want to narrow it to the attempt to see what
consumer, everyday products and imbedded software
use but obviously that is informed by
Fair Use law overall. So I kind of want to open the
panel with a broad question about is Fair Use functioning well
in connection with these types of products and software? Does anyone have any views on that? Okay. Mr. Harbeson.>>Eric Harbeson: I’m also one
of the non-lawyers on this panel so someone feel free to
correct me if I’m wrong but it as I’m understanding
it to the extent that the licenses are restricting
uses Fair Use isn’t relevant until you clear the contract
violation so for example, to again take my completely out of
software world example if I wanted to use Mr. [Inaudible]
recording of his work and the way that constitutes a Fair Use
perhaps I would not be subject, I would not be able to, I would not
have a copyright violation perhaps. That is my sense is that I wouldn’t
perhaps have a copyright violation but I would still be in
violation of the contract even if it’s a non-infringing use so we
would love for Fair Use to apply. If Fair Use did apply in the context
of and user license agreements in general I think that that
would be great but I’m not sure that it even does so please
someone correct me if I’m wrong.>>Catherine Rowland: Mr. Zuck.>>Jonathan Zuck: I’ll
reiterate that I’m not a lawyer so I won’t be able to correct you on that although I would
— that’s a weird echo. I think that it generally does apply
in those contexts or that it has and I guess the interesting
phenomena that I found as a the photographer and filmmaker
is that Fair Use has come to mean to the common man you know, I’m
not trying to make money from this and therefore it’s Fair Use and so
there is some misconceptions I think about Fair Use out in the
broader populace for sure but I think the cases with which
I’m aware of imbedded software like landmark and things like that
I think that the courts have ruled in a way that is generally
considered to be the correct way on this issue even though
those cases were raised as extreme uses of copyright. It seemed like the specific
exemptions that were laid out in MCA which is a little bit of
legislative Fair Use I guess in some respects have
been effective, so it’s certainly my
contention that Fair Use to the limited degree we have
data at this point about its use in imbedded devices
has been effective.>>Catherine Rowland: Mr. Band.>>Mr. Band: So we’ll know
whether Fair Use is effective in this area more in I
don’t know in a few weeks when the jury reaches its decision
in the Oracle, the Google case because even though that’s
not dealing specifically with software enabled
products I mean it is. I mean it’s talking about the
Android and the APIs there and you know I guess Oracle is
only seeking 8.8 billion dollars of damages, so hopefully the jury
will reach the right decision and find that it is a
Fair Use but of course in my view it shouldn’t have
even gotten to the jury. I mean the District Court
got it right that the issues, the element was the APIs used
by Google were not protected by copyright in the first place. You know I think the federal circuit
made a horrible mess and a lot of what the federal
circuit both of its holding but even worse it’s dicta will cause
enormous problems down the road for people who want to
make interoperable devices but basically saying that
interoperability is not, has nothing to do with
protectability you know, means that you’re going to always
be pushed into the Fair Use analysis if other courts agree
with the federal circuit which hopefully it won’t. I think it was a terribly miss, we missed a terrible I mean
I’m talking like someone else. It’s a huge, huge problem caused
by the solicitor general by urging, by advising the Supreme
Court not to take cert. The Supreme Court should
have taken cert in that case and it’s unfortunate that the
solicitor general basically said that the federal circuit
decision was okay and I think that hopefully the next time this
comes up the solicitor general is in a more forward looking
and makes sure to the extent that this does come
up before the court that the U.S. government
takes the right position.>>Catherine Rowland: Mr. Bergmayer.>>John Bergmayer: Yeah, so you
know take everything I said before there’s a lot of issues where I
think you shouldn’t have to resort to Fair Use to adjudicate
certain problems so then let’s say I lose
those battles legally so then what happens? So then I would say yes I would
hope that Fair Use is like a sort of fallback doctrine can step
in to protect consumer rights in certain circumstances. That aside, though I
do think that Fair Use in software is extremely important
for just a number of respects. I’ll just name one which
is security research. I think part of the imbedded
software debate is the Internet of things debate where every
device is attached to the Internet and is subject of being hacked. I think probably everyone here is
familiar with the baby monitors which have been hacked and had
people can remotely watch your baby over the Internet because
of devices that ship with terrible default
security setting where incidentally the sellers of those devices disclaim
liability via the software licenses. There is a door bell incident
where just last week it turns outs that a smart door bell system was
accidentally was showing people the wrong house. That was a server side error but
nevertheless I think in the case of software we really do need to
sort of have a robust understanding that security researchers through whatever copyright doctrine
including Fair Use are entitled to inspect software to ensure that
it is not putting people at risk and I’ll just name another
software related copyright issue where I think Fair Use has some role
to play which is just the notion of as the tools that people use for creation become increasingly
sophisticated for example with computer animation where
you know you’re provided models and then people just sort of use
the models as if they are puppets. Sometimes this is called machina where people are using essentially
video game characters to act out plays and then record them. You have a very tough
question of who is the author. You know I think it’s pretty clear
if I write a sonnet on a piece of paper the pen and the paper
companies don’t have an authorship claim in my work but
as software tools that people use become increasingly
sophisticated they sometimes claim to have an IP interest, an actual
authorship interest in anything that you create using
that software tool. I think that is a troubling
trend and it’s not something that I don’t think we can resolve
today but I think Fair Use at least at the margins will be necessary
to resolve issues like that.>>Catherine Rowland: Mr. Bockert.>>Shaun J. Bockert: I
think Mr. Bergmayer’s, I think Mr. Bergmayer’s
exactly right in the idea that Fair Use is sort of
a defense of last resort and you know I’m thinking of
all the times clients call, all the time clients call and
they say hey, I want to do this and if your explanation to them
is you’re not infringing someone’s copyright because this qualifies under Fair Use then they ask the
question you know can we rely on that? And you know, the answer is
almost always maybe and it’s, it’s going to be an expensive
fight if it comes to it. And so I think the idea would
be we could have Fair Use sure but I think we need specific
exemptions and clear things like you know how the First Sale
Doctrine applies in this is context. I was talking earlier about the
Doctrine of Repair and the Doctrine of Exhaustion in patent
law and things like that would you know more
clearly show us what is considered a non-infringing use of software
in these sorts of products and then you know on a separate
side I’m always thinking of at least in consumer products a
copyright infringement claim under 106 is almost always
paired with a claim under 1201 and I know we’re not really
supposed to be talking about 1201 very much here
but it’s hard to talk about you know how copyright impacts
software enabled consumer products without addressing it and you know
I think the Fair Use point is a good place to bring it up because Fair
Use you know clearly you know 107 clearly helps you out under 106 but you know it doesn’t clearly
provide a defense under section 1201 and you know I think that’s mostly
because of now the circuit is split on whether you need a
nexus to infringement on the anti-circumvention claims
and so I think with the lack of clarity there we could
probably consider those issues in the context of –>>Sy Damle: Right but we
do have a 1201 rule making where we address you know at some
level we address Fair Use issues. We address issues under 117
in the course of getting to adopting exemptions
and particularly in the auto context
we recently adopted, the librarian recently adopted
exemptions allowing vehicle repair, so I mean is that a
problem that can be solved through the rule making
process, the exemption process?>>Shaun J. Bockert: Well I think
those would be separate discussions and I think that’s why you know
whatever is resolved here is sort of dependent on what is resolved
there and I just don’t want to — I know we’re trying to keep the
concepts separate and distinct but I think they should
influence each other.>>Sy Damle: So but I mean so
to go, to focus on the sort of Fair Use point I mean to the
extent that the copyright office and the librarian opine on Fair Use
issues in the course of granting or denying exemptions is
that something that you feel like you can sort of take
the clients so to say here. Here’s what the copyright
office thinks about these issues in this context?>>Shaun J. Bockert: I
think it’s difficult to take without some qualification. You know we look at the section
1201 ruling you know Rule 21 that’s dealing exactly in the automotive
industry and it does say things like it says something along the
line of these may be fair uses under 107 or it may be a
non-infringing use under Section 117 and sure that’s something like
that’s good to go to a client and say, there may be
some support here in rule in a totally different
context but how you import that to you know there is very
clearly something under 107 that you can build your business on
I think it’s a different question.>>Catherine Rowland: Mr. Lowe.>>Aaron Lowe: So I want to
build on Mr. Bergmayer’s point of the importance of being able
to research software and that look at the Volkswagen case where if
you couldn’t go into that software and understand where the problem
was you never would have discovered that there was a major issue with the way Volkswagen had
configured its software. Our industry goes into parts
all the time and OE parts and deconstructs them and finds
where there are problems, defects, issues with the original
part, correct them and when the part is sold as an aftermarket part it has now a
corrected issue on it and it’s safer or more environmentally
responsible than the car, the part that came off
the vehicle manufacturer so it’s a really important
part of the Fair Use doctrine.>>Catherine Rowland:
And so you’re happy with the way the courts are treating
Fair Use with reverse of software to repair things and what
not and to just do repairs?>>Aaron Lowe: Yeah and I
think that has to be you know, it has to be clear that that
is available to be done.>>Catherine Rowland: How would
you suggest that being clarified with legislation, with
like what sort of changes?>>Aaron Lowe: I’m not sure that
legislation would be necessary but I’m also not a lawyer so, I
think this whole table this side of the table was shortchanged
on lawyers.>>Catherine Rowland: Mr.
Kupferschmid is a lawyer there.>>Mr. Kupferschmid: That’s
not necessarily a bad thing.>>Aaron Lowe. Yeah.>>Catherine Rowland:
Mr. Perzanowski. Oh, I’m sorry Mr. Harbeson.>>Eric Harbeson: So I want to
clarify something I said earlier and just to make sure
that I was not saying that I didn’t think
that Fair Use applied. I think that the problem is
not that Fair Use doesn’t apply and I’ve been hearing a
lot of examples of things that I think are easily and
the Courts to the extent that I’ve been following software
have applied Fair Use the problem with as I understand
it with Fair Use in software enabled consumer
products and any software is that you have to find
yourself within the scope of Title 17 before
you can use Fair Use. At least that’s my understanding. The conventional knowledge anyway is
that a contract will override those and so I still kind of see
the problem with Fair Use. My feeling with that the reason
that Fair Use is being talked about here is because
of the conflict between what is Fair Use once
you’re within the scope of Title 17 versus what software
licenses tell you is not okay and so can you actually
apply Fair Use when the license that
you signed is not? And if you know if Fair Use
is a defense against a breach of contract then I can go
home because I can tell, I could tell my membership
that we can rely on Fair Use. But I don’t think that we can. And so we would be very happy
if we could rely on Fair Use to make the works that we’re
trying to get access to available.>>Sy Damle: I mean
the premise I guess is that you have essentially been
required or you have agreed to waive Fair Use by contract. Is that what you’re saying?>>Eric Harbeson: Well right,
let’s pretend for a moment that libraries could enter into
the agreements that I’m taking about which are not unlike
the software licenses. You know the very similar
language in iTunes that you’ll find in software and I actually, I
read the software agreements a lot so you know I’ve seen
a lot of similarity. Once you agree to that license
you’re waiving the right to do things that Fair
Use would permit you to do and you know the same thing is true
with 109 which we’ll get to later but so I think a lot of the
problem is in that conflict between what would clearly be a Fair
Use and then what you’re agreeing to by a non-negotiable contract
not to be allowed to do. So again, we would be very,
very happy to argue Fair Use for the things that we want to do. I think that many of the
examples that are brought up would be a very easy case
but I’m not even sure we can get to a Fair Use question until
we resolve this problem with not even being
subject to Title 17. Our proposal is for a
quasi -copyright provision within the copyright law which
is I mean there’s part of it in Chapters 11 and 13 that would that would give us an very narrow
exclusion from the copyright from the contact in the case where
something is not made available. Something similar could be drafted
for a software but I really think that as long as we’re talking
about Fair Use and not talking about the contract
we’re missing the point.>>Catherine Rowland: I’m sorry. I mean I realize that other people
have their cards up but I wanted to see if Mr. Kupferschmid or
Mr. Zuck had any thoughts on that from about the intersection of
contract law and the Fair Use and how they work together
or do not?>>Jonathan Zuck: Well, I mean
I guess there’s two levels that I question, one that’s innately
that I’m probably unqualified to answer and another that’s more
practical and the first thing that struck me when listening to
you is that I’m not even sure, I’m not completely sure
of the intersection between library use
and Fair Use, right? It’s a little bit of a different
kind of use than at least the things that I’m familiar with in
the context of Fair Use but I also think it’s
a practical matter. That there have been plenty of license agreements have been
violated and that have been — but the basis for the enforcement of
that contract was in fact copyright and that therefore the
license was obviated in the, in favor of Fair Use. So I feel like you do have those,
Fair Use has taken precedence more so than not over contract
or license provisions. As far as I can tell it’s a
practical matter and whether or not I think that’s innately
the case I don’t know the answer but I’m also, I’m just also again
maybe under-informed but I feel like the provisions
of law that have to do with library type functions are
different than the ones that have to do with Fair Use that
have to do with making use of a particular copyrighted work and so maybe I’m just
confused about that. I apologize if I am.>>Keith Kupferschmid: So I think
we’ve, it seems like at least in this discussion we’ve
gotten a little far afield from the discussion
about imbedded software in everyday consumer products and
so and to a more general discussion of Fair Use or whether APIs are
protectable or who’s the author of machina and a whole bunch
of other things and a lot of these issues do come down to and
I think probably will be discussed in more detail in the
1201 study I think because that’s I think probably
where Fair Use probably comes in, is more to play is evidenced
I think by your questions about the tri-annual
rulemaking and what have you. Mr. Harbeson mentioned the fact that you know whether Fair Use is a
defense against breach of contract. I don’t think that’s what we were
talking about on the first panel. I don’t know if that’s what
he was referring to or not but we were talking about whether
if a court held there to be Fair Use but your contract said that you
could not engage in Fair Use whether that would be a copyright
infringement which is different, which is a different question so I
think just needed to clarify that.>>Catherine Rowland: Thank you
and I think Mr. Perzanowski.>>Aaron Perzanowski: So I
just wanted to note the ways in which I think this discussion
about Fair Use is related to the discussion we had
on the last panel, right? So Fair Use and this question of
ownership are sometimes intertwined in interesting ways and you can
look back at some Fair Use cases where I think you can
see this really clearly. I think the most clear
example is the Galoob case. In the Galoob case the Court talks in really explicit
terms about ownership. It discusses the single recovery
theory that undergirds exhaustion and it talks about the
right to modify a product that a consumer owns
once it has been sold. There are other cases where I think
you can see the same kind of focus on the question of ownership at work
in the Fair Use analysis itself. I think if you compare you know
the rationales and outcomes in Sega versus Accolade and Atari versus
Nintendo ownership is also at work in the background there and I’ve
written about this at some length and I think part of the reason you
see ownership considerations kind of sneaking into the
Fair Use analysis. Sneaking isn’t the right word. I don’t think it’s
inappropriate for courts to consider additional factors
beyond the four statutory factors but we don’t expect to see
ownership come up in that context and I think it’s because courts have
been uncomfortable relying purely on the kind of exhaustion doctrines
in 109 and 117 for the reasons that we were talking about
before, so there’s an interplay between these two sets of questions. I wanted to come back to a point that John made earlier
about security testing. About a decade ago I represented
Academic Security Researchers who were working on the Sony BMG
Rootkit a scandal that I’m sure many of you remember and I can
say firsthand how worries about copyright infringement
liability influenced the decision to undertake research, the pace
at which that research is executed and decisions about when and how that research is disclosed
to the public. So I think it’s crucial that we
have you know some greater degree of clarity not only for
individual consumers but people who are doing research
on consumer products because frankly Fair Use is not, is
not providing lawyers with the kind of certainty that they need to
communicate to clients in order to make sure that this really
important work happens.>>Sy Damle: So I’m sorry
to keep mentioning 1201. I know there’s another
study about that but I mean just going back
it’s sort of a version of a question I asked Mr.
Bockert which is you know in the last rulemaking we adopted
an exemption for security research and you know to sort of refine
the question you know the premise of us granting that exemption
is that the activities covered by the exemption are in some
way non-infringing and so, so there is some at least
guidance from the copyright office and from the Library about
what activities it considers to be non-infringing in some level and so I’m just curious
why you know sort of researchers can
couldn’t rely on that.>>Aaron Perzanowski: I would not
be comfortable going into court in litigation and saying that the
copyright office said this was a Fair Use. I don’t think that’s going
to get you very far, right. That is not, that’s not a sufficient
basis for drawing the conclusion that a particular use is fair
and I don’t think that those from what I recall from the
rulemakings we don’t get sort of crystal clear statements that
these are in fact fair uses, right? We get understandably and I think
with good reason cautious statements about how we should interpret
these kinds of behaviors. The other thing that I would
say about the rulemaking and I participated in that
process back in the 2006 Rulemaking and we got an exemption
for, a very narrow exemption for security research related to
DRM on music CDs that created risks for security and you know talking
about looking at the problems of yesterday, by the time
we got that exemption through it served no
function, right. It didn’t do anything at that point so the rulemaking process is
necessarily a backward looking process and I can understand why I
think this copyright office has been understandably demanding in
terms of the evidentiary record that it requires in
terms of a showing of concrete harm before
an exemption is issued but in many cases especially
when we’re taking about software, right which we know is
this fast moving industry where things change quickly, the
rulemakings have not resulted in the kind of forward
looking clarity that I think is often necessary.>>Catherine Rowland: I’d like to
ask a follow-up question about that and your discussion of Fair
Use and the uncertainty. I don’t think that that is
really unique to software so that whole point of Fair
Use is it has to be flexible and fact specific so can
address each case on its merits so if the whole problem is
uncertainty what would you suggest because is Fair Use not going to
be sufficient in your opinion or?>>Aaron Perzanowski: Yeah, so
I think the way that you address that uncertainty is by fixing
the problems that we talked about in the prior panel, so
again Fair Use is going to be kind of the defense of last resort in
these kinds of cases if the standard for what counts is ownership is
clarified and people can rely on 117 for example, I think that
addresses many although not all of the circumstances where we
might otherwise be you know telling clients to focus their
efforts on Fair Use.>>Catherine Rowland: Thank you. Mr. Band.>>Jonathan Band: So
I just want the build on what Mr. Harbeson was saying in
bringing it back to inoperability and Fair Use in the context
of software enabled products. So as we had talked
about in earlier panel, many license software license
agreements do have a prohibition on reverse engineering
and then the question is, is that prohibition
enforceable or is it preempted or is it somehow seen as
a contract of adhesion and not enforceable for
that reason or what? But the point is that
there are certainly in the computer industry
you typically see these contract restrictions. Now it could very well be that
so far in the automotive industry that hasn’t been a problem
and so it hasn’t been sort of like therefore a problem
in the 1201 rulemaking context in this last tri-annual cycle. But it certainly isn’t, I
can certainly imagine it and I don’t want to give the
automotive industry any ideas, I mean the car manufacturers
any ideas. I’m sure they’ve thought about
this but it could very well be that you know maybe in the
near future when you’re signing that stack of papers when you’re
buying the car and there’s a lot of papers that you’re just routinely
signing that it could very well be that there will be in that stack of papers some software
license agreement that then will cause all the
problems that we haven’t seen yet. Right now, so now it’s just you
know it’s a Fair Use problem. Can you engage in the
reverse engineering necessary to make the replacement part? But I can see in the
very near future that it will also be a license
problem not just a Fair Use problem and so again I think the opportunity
of the study here so to sort of get ahead of the curve and
see what’s coming down the road and say okay how do we make sure ? I mean because we were, certainly in
the automotive you know we’re taking about a huge aftermarket in the
automotive industry and then if you include agriculture
and yachts and everything else and you know I mean the aftermarket
generally is an enormous area and as more software is included
this you know whether it’s Fair Use or a contractual restriction on it or on reverse engineering this
problem is going to be only going to get bigger and not smaller.>>Catherine Rowland: Thank you. Mr. Bockert.>>Shaun Bockert: So I take it the
you know where this is going is one of the questions is,
is Fair Use enough? Like does that resolve all
the concerns that we’ve talk about in our first two
panels and probably will talk about in this the fourth one? And I think the answer has
to be no, we want to clarify that certain things qualify
as non-infringing uses and we don’t want to rely on just
advising clients to say yeah, this is probably a Fair Use and then
pointing to very fact specific cases that are probably distinguishable
in some ways from the ones at hand so I think the answer is
no, Fair Use is not enough.>>Catherine Rowland:
I find that kind of, I just find that interesting because earlier I don’t know Mr.
Lowe was saying that he was happy with the way Fair Use was going with
the repair in reverse engineering. I wonder if you had any of that.>>Aaron Lowe: Well I mean this is
the big issue that Mr. Band brought up is that we’re moving down a road where we’re the situations are
changing and what I said was that I wasn’t clear as a lawyer
that we’re satisfied with — we’re satisfied with that per se
but I think you know the issue that was brought up by Mr.
Bockert is true that we need to resolve all these issues
before we get to Fair Use and that we brought
up in the last panel.>>Catherine Rowland: Thank you. Mr. Zuck.>>Jonathan Zuck: Yes, two things I
guess one just again just a matter of fact. I think the DMCA is at least
a step in the direction of having codified things in a
very direct way legislatively that you’re not just
reliant on looking at fact specific cases
described Fair Use. There are specific practices in
DMCA that are outlined as being okay in non-infringing uses, so it seems
to me there’s already something in place that’s had good effect. The other question again taking
a step back from this is that –>>I’m sorry so you’re
speaking specifically about the reverse engineering,
like the permanent exemptions? Is that what you’re talking
about like as being sort of guidance about what’s –>>Jonathan Zuck: Right, that’s right I mean there’s
ten I think exemptions in there that educational purposes
for interoperability. Security is one, etcetera. Those things were built into the
DMCA from the get-go legislatively and so you’re not reliant just on
Fair Use as a judicial precedent. Okay, so the other issue that I
don’t know the best way to put this but there’s a kind of presumption that if I have some new idea
it should be okay and it’s bad that the answer might be no and I
guess, I don’t mean to be the Grinch in the room but as the
copyright holder I’m okay with the default answer being no. I think it should be the
exception and not the rule that if some new use is Fair
Use and so I mean that we need to take a step back and
that we have a decision like the Dr. Zeus decision that
in many ways speaks to this notion that you’re using my copyrighted
characters to create some new work that I had as some downstream
implication to their use. There’s a huge market for 3D models
that are used in films and things like that that you license
under different licensing terms for different types of
commercial and non-commercial use. It’s not you know,
I don’t think it’s as mystical as it’s being portrayed. What’s mystical is I think I’ve come
up with some creative new way to get around the way that this has
been interpreted in the past. You, Mr. Lawyer do you feel
like you could defend this? And the answer is I don’t know. I think that 99% of the time
the answer is far more clear and that the answer is in fact
no and I’m comfortable with that and I don’t think that we should
necessarily shy away from the fact that the de facto answer is the
copyright holder should have you know the last say and not
my you know new creative use for someone else’s work.>>Catherine Rowland: Mr. Bergmayer.>>John Bergmayer: Yeah so
there’s even among people who are broadly aligned with me on copyright issues there’s
sometimes disagreement about you know Fair
Use versus clear, safe harbors because the challenge
is if you list out a bunch of clear, safe harbors then the fear would
be well people will always confine their behavior just to those
safe harbors or a judge might of find a behavior that falls
just outside of safe harbor as more likely to not be a Fair Use. However, I think just as a practical
matter I think it’s pretty clear that certain kinds of behavior out
to be just considered very clearly to be non-infringing either
through an extremely clear and universally applicable
Fair Use precedent or through a statutory safe harbor
or otherwise and sort of even with the downside that it
might sort of cause people to shift their behavior slightly
to conform with the safe harbor, I think the up-side
will probably be good. That being said I also think in
the imbedded software context in particular there’s other
doctrines which already can exist which often get short shrift. I brought up in an earlier
panel functionality. I think some imbedded
software the functionality or idea expression might
make it copy writable or at least you wouldn’t be
able to challenge someone who makes another piece of
software doing the same thing because there’s no
other way to do it.>>Sy Damle: I’m sorry
so you’re talking about like merger and [inaudible].>>John Bergmayer: Yes, exactly. I think in some of the most extreme
cases of very simple software and a micro-controller that’s just
doing a physical function I think those doctrines which often
don’t get any discussion at all in like artistic works cases
might actually be very important. I think de minimis
use that’s a doctrine which almost never gets
litigated but I think that also might be applicable in
some circumstances so that’s it.>>Sy Damle: So you said that
there were some uses or activities that you feel should be
considered to be Fair Use across the board you
know categorically. Are there’s any in particular
with respect to software and imbedded devices
that come to mind?>>John Bergmayer: Well the examples
brought up before security research which typically comes up in the
anti- circumvention circumstance as opposed to the infringement
context. I think that is a very clear example
where security research ought to categorically be non-infringing. I think you can do
it with a statute. You can do it with a
very clear precedent that just makes broad sweeping
statements that like anyone can rely on because they’re crystal clear but
I think we need to have that result and we need to not just sort of have it just be a very fact
specific endeavor as to whether or not security research
is okay now but not in this circumstance,
things of that nature. You know haven’t prepared
an exhaustive list of things that I thought out to be categorical
fair uses I’m sure I can come up with a very long
list if you asked me to. Sy Damle: I mean so the precedent
point is an interesting one right because precedent requires there
to be someone who litigates and if there is sort of
just a general understanding that security research for instance
is Fair Use you’re not going to get that precedent but at
the same time it’s going to be clear enough just based
on industry practice that it is because lots of people do it
and no one sues, so is that, I mean is the absence of that
kind of litigation sufficient?>>John Bergmayer: In our very
litigious society I have trouble with the idea that there is a
theoretical legal right out there that someone could use to sue
someone that they had object to for commercial reasons but
we don’t have to worry about it because no one has
ever used it before. I mean all these things are
not problems until they are so.>>But there is a lot of –>>John Bergmayer: Once there
is a legal overhang even if there’s not litigation
there might not be litigation because people are avoiding,
engaging in the behavior that could lead to litigation so I
simply don’t think that the absence of litigation is evidence
that there’s not a problem because it could be still
affecting people’s behavior but I think you might
better be talking to people who actually interact with clients
on a more direct basis than I do to get an answer to that question.>>Sy Damle: Yeah, but to take this as a security research example
specifically I guess you could argue that there is sort of
marginally less security research than if we had a clear precedent but there is security
research that goes on now. I mean we had people testify
in the [inaudible] hearings. Again, sorry to mention [inaudible] about the research they
did on automobiles right. Charlie Miller came
to testify about that. If you know and if Chrysler want to
sue they could have and they didn’t and I think at least that
gives like one data point in the absence sort of
in terms of absence.>>John Bergmayer: I believe there
were threats of in the recent, in the Jeep case you know where
the researchers demonstrated vulnerabilities of remotely turning
off a car that was on the road and those went away because there
was such as public attention to that is issue and often security
researchers are the kind of people who might welcome being, you
know it’s a type that engages in that behavior but I don’t
think we should rely on these sort of bravery and bravado of security
researchers who are willing to sort of stand up to the man
on a continual basis. I think these things just ought
to be excepted parts of society that simply don’t carry
legal risk at all because they are so important.>>If I could just
add to that briefly and specifically in
the academic context. While security researchers
themselves might be willing to take risks university
general councils are not known for being big risk takers and their
willingness to back researchers who are engaging in work that might
draw litigation is rather limited and so you see that
influence not only the choice of specific research
projects to undertake but you know the long-term
trajectory of people’s career what kind
of work are they going to do? What kind of researcher
are they going to be? And you know institutions, academic
institutions have a long memory for threats of litigation
that they’ve received and that other institutions
have received. They share that information and I
do think you have seen a change not only in the quantity but
also the nature of research that goes on in that space.>>Catherine Rowland: Okay,
we’ve got couple more people. I think Mr. Kupferschmid was next.>>Keith Kupferschmid:
Yeah, excuse me. I’ll be brief. I mean it sounds like Mr. Bergmayer
was suggesting sort of you know with keeping the preamble we
have in 107 in getting rid of the factors maybe I misunderstood
what he was saying you know in terms of just creating an exemption
for security researchers. So I apologize if I
misunderstood what you were saying but I think certainly whenever
you talk about Fair Use it’s very, very context specific, fact
specific and we have to be very, very cautious if we move in any
particular direction in that area. I know that at the Copyright
Alliance we represent all sorts of different copyright
owners in different types of copyright disciplines and you
know they all rely on Fair Use and it’s important to have a you
know a balanced Fair Use doctrine that takes into account all
the stakeholders’ interests. In particular, with regard to
imbedded software I don’t know that those issues are any different
and I think that’s why it’s led to a discussion here that has
gone well beyond imbedded software and focused primarily on
things like 1201 and ownership and copyright ability
and things like that because I don’t think there’s
anything specific with regard to the Fair Use doctrine either
pro or con that’s specific to the imbedded software
in consumer products.>>Catherine Rowland: Mr. Harbeson.>>Eric Harbeson: So I apologize. I’m still trying to figure out why
we’re talking about specific uses when really as has been said the
Fair Use doctrine is always going to end up being applied
by the courts anyway. I will say though that a
lot of the conversations that we’re having are familiar
to me in the library context so I think it might be
worth considering ways in which this has been
discussed before. When you’re talking about
potential safe harbors, things that are automatically
acceptable you can look at Section 108 which give libraries
specific things that we can do. It is also hopelessly out-of-date and not only is it
hopelessly out-of-date but the library community for the most part is not
advocating bringing it up-to-date because to bring it up-to-date is
to first of all to start getting at the problem of risking
creating a ceiling rather than a floor even though as
in Georgia state they have and in [inaudible] Trust they
specifically said no it’s not, it is a floor. But the problem with
creating these safe harbors is in the details of the wording. I have not found Congress’ ability to create succinct legislation
optimism producing so I think that one should be careful
with the safe harbor idea also in the de minimis doctrine
which was brought up by caution that if you look at Bridgeport Music
the Court said two notes might be de minimis but there isn’t much of a de
minimis doctrine in sound recordings so and then finally I’m
really worried about you know since everyone else has had a pass
on 1201 I’ll take my pass right now and talk about 1201 C which
is another case of precedent for what my principle concern is. It’s another example of where
you can’t quite get to Fair Use because you have to cross
that fence that is 1201 first. Once you’re on the other side of
the fence you can claim Fair Use but you still have violated
the law by crossing that fence into Fair Use territory
so call it 1201. Call it licensing. It’s that fence that is really
going to be the problem here and I know I’ve been beating perhaps
a dead horse but I really think that that’s a really
important horse to get rid of. So thank you.>>Catherine Rowland. Thank you. Mr. Band.>>Jonathan Band: So I’ll
agree here with Mr. Zuck. I think that the Section 1201 F, in particular the interoperability
exception in the DMCA you know articulated
a very strong policy in favor of interoperability and you know in
the report ratings that went along with it in Sega v Accolade and
the importance of interoperability in the software industry and
how it promotes competition, all that was in my view very clear. I think also in the various
recommendations the register has made in the 1201 context, they’ve
also sometimes used that language that there was a strong federal
policy in favor of interoperability. Now to some extent it’s hard to find
those references because it’s buried in a 300 page recommendation.>>Sy Damle: Mr. Band we’re
just trying to be thorough.>>Jonathan Band: Right, no. But and I would very
much hope that coming out of this study is again a
re-articulation but in an easier way to find this very strong
clear federal policy in favor of interoperability but where it
relates specifically to you know to this issue is it does
matter what is the theory under which you have this policy? Is the theory a Fair Use theory or
is it as John has been referring to a merge or method of operation? I mean this does get back
to the Google Oracle case. If you were to say okay, we’re
going to, I think the better rule is that it is these elements for
interoperability are you know under 102 B not protectable. That you don’t need to get to
Fair Use and I think that’s, I know I think that certainly
the 9th circuit case law gets to that direction but to the extent that you know the Copyright Office
is not comfortable saying that and it says okay, this is a 10 2 —
it has to be you know you’re going to put it under a 107 theory I think
even there you know to say okay, yes on the one hand 107 is
to be applied case by case. On the other hand like
the 9th circuit made clear in a Sega v. Accolade
that you know Fair Use for purposes you know reverse
engineering for purposes of finding elements that are not
protected by copyright is Fair Use as a matter of law and so that’s
something that you can take to the bank in other cases the
lawyer can take to the bank in other cases as opposed to saying
in every single case you’re going to have to kind of do this
really complex analysis and start from the beginning and so I think
again that again that’s somewhere where the report that you come
out here can really be helpful and not only re-articulating
the strong policy in favor of interoperability but
also coming up a basis, helpful basis that can
be useful in the future to promote interoperability
in this environment.>>Catherine Rowland: Thank
you Mr. Band and I think with that we’re going
to conclude our session so I think right now we are
scheduled to show back up at 1:30. Maybe we push it to 1:40
that you have one hour so we’ll push the next
session back ten minutes and we’ll see you all
back here at 1:40.>>This has been a presentation
of the Library of Congress. Visit us at loc.gov

About the Author: Michael Flood

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