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We chat about the latest legal copyright related controversies with a seasoned legal professional

At DailyTech we are always looking for diverse opinions from those with experience and knowledge in fields relating to the tech industry.  Thus DailyTech was quite enthused when Jeffrey Johnson, a partner with Pryor Cashman LLP agreed to do a piece with us discussing copyright and the tech industry.  Pryor Cashman is one of the nation's leading law firms with 120 attorneys, with offices in New York and Los Angeles.  The firm has worked on numerous cases concerning the software/hardware/internet industries and the entertainment industry.

The following is our unabridged interview with Mr. Johnson.

UPDATE: Monday, Nov. 16, 2009, 1:00 p.m.

Many readers asked for Mr. Johnson to reply to the question about the legality of backup copies of DVDs/CDs.  Rather than let these requests fall on deaf ears, we recontacted Mr. Johnson, and his response is now included below.


DailyTech:
What do you make of the current state of copyright law, and what parallels do you see to the stir that happened when Xerox hit the scene, offering easy copying of print media and potential infringement?


JCJ:
Generally speaking, and for many understandable policy reasons, law can be slow to change: usually, its a trailing indicator of changes in society at large, and when it does change, those changes ordinarily come about as new legislation or new ways of doing business, rather than judges imposing social change through case law. By way of example, when copyright law was first developed, there was no such thing as a copier. Copying a book was a laborious process, and few people would undertake that process for a non-commercial purpose like sharing the contents with a friend; instead, they would actually share the book itself. When Xerox and other manufacturers made it so easy to copy books, it suddenly became very easy to copy a few pages from a book (or the entire thing for that matter, so long as you had enough nickels) and share them with a friend, or take them home from the library to work on your paper. It took the law several years to figure out how best to deal with the new technology, and even then most of the issues were worked out privately between rights holders (e.g., book publishers) and the owners of widely-accessible copy machines, such as libraries.

While 21st century technology is much different, the underlying process of grappling with technological change, and deciding how the law will change to cope with that new technology, is very similar. When judges try to apply old case law, and old legislation, to new technology, they frequently find that the law simply doesn't address the new circumstances in a manner that allows for sensible results, so they look to the legislators to make changes in the law that will allow for realistic solutions. The legislators, however, are beholden to competing interests that ensure that such change will be slow in coming.

DailyTech:
Do you see the music/movies/television industries' legal crusade against citizens who pirate as productive? With rulings like the recent $1.92M USD verdict against Jammie Thomas-Rassert drawing public ire, how can the industry fight piracy, while not coming across as a bunch of thugs?


JCJ:

It's not easy. Until the law catches up with technological change, rights holders can, and I think should, seek to protect and enforce their rights under the law. Those suits, and the public response to those suits, may prove to be one of the best ways to spur legislators to make the hard legislative choices necessary to allow for more practical outcomes than forcing large industries to sue their customers.

DailyTech:
Microsoft recently kicked 1 million users off of Xbox Live for modifying their consoles.  Likewise, Apple tried to brick iPhones that were unlocked or jailbroken, back in 2007. In your opinion should the law allow users who legally purchased products to modify them freely, or should the opposite -- a ban on modifications -- be enforced?


JCJ:
As a practical matter, I can't imagine a public consensus developing around a change in the law that would allow end-users to freely modify products that are used to access third party content. Vigorously enforcing a ban on modifications, however, may prove to be impractical. I can imagine a compromise where modifications are allowed subject to some process of review and approval (similar to how Apple handles iPhone apps), or perhaps where machines that can be modified are sold along-side versions that can't, with the machines that can be modified having reduced or altered functionality, or perhaps a much higher price. The key complication is the fact that there are two parties to the transaction -- the manufacturer of the machine and the end-user -- but hundreds of other affected parties (i.e., the owners of all the content that is run on the machine). Getting a consensus from all those parties won't be easy.

DailyTech:
One of the key drivers for modification of Xbox consoles is to make backup copies of discs. The RIAA/MPAA have long stated that backups of legally-owned materials are illegal and that "making one copy is another way of saying stole one copy". Should such backups, in your view, be legal? Why or why not?


JCJ:

I think this is a good example of where the law and technology are no longer synchronized. It is generally correct that, as a legal matter, unless a written contract (e.g., license agreement) otherwise allows, it is a violation of copyright law to copy a copyrighted work for purposes of making a "back-up" copy. This is no different than making copies of a hard cover novel or a vinyl album just in case you lose or damage it. Nobody ever seriously grappled with the issue of whether you should have a right to make a copy of a book or an album and keep it on your shelf for that eventuality, arguably because the risk of loss/damage was relatively low, and the cost of copying was relatively high. It seems to me there is little difference with a machine-readable disc, except that the likelihood of damage or loss of the disc is probably higher, while the cost of making a copy is much lower. Accordingly, the real challenge is not construing existing law; rather, it is deciding how, if at all, to change the law in light of a new technological reality.


DailyTech:
A UK independent musician from the band Orange Juice says that a variety of major labels have infringed on his songs. He claims such examples of major labels claiming to own copyrights of small musicians (which they don't hold) to be common. What do you make of this, and how do your react to the light that this casts on the major labels campaign against civilian infringers?

JCJ:
These types of disputes are not new, but the vast majority of newly composed music does not get held hostage to a dispute over copyright ownership. When it does, it's a pretty straight-forward legal question, and the courts, however imperfect, are probably still the best place to resolve the issue. While I'm sure there are some unscrupulous label execs. who try to steal music their label's don't rightfully own, there are also musicians who, in all sincerity, hear their own music in tunes actually composed by others.

DailyTech:
What's your view on the "three strikes" laws proposed in France, UK, Australia, and elsewhere, that propose cutting off internet filesharers after two warnings, forcing ISPs to cut their service?


JCJ:

We all have to start experimenting with new options to deal with new technology. Whether this approach will work I can't say, but I'm skeptical.

DailyTech thanks Jeffrey Johnson for his time and for providing us with some insightful responses into how some in the law community view various copyright-related issues.




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RE: Pussied out.
By JasonMick (blog) on 11/16/2009 11:07:55 AM , Rating: 2
I think that's uncalled for. I think he gave some rather insightful responses.

He said he didn't have time to comment on every one of the questions and that any of them could be the topic of a lengthy law review article.

I'm sure he might be interested in adding a comment on that particular topic in the future, as it is a particularly controversial stand for the RIAA/MPAA.


RE: Pussied out.
By lagitup on 11/16/2009 11:13:13 AM , Rating: 4
quote:
I think that's uncalled for.


Hardly. That was easily the most controversial question asked.

As an aside, I wonder who's payroll he is on?


RE: Pussied out.
By bighairycamel on 11/16/2009 11:19:30 AM , Rating: 3
Yah as I was reading that question, sub-conscientiously I was thinking "I can't wait to hear his answer on this". Obviosuly I was sorely disappointed when there wasn't one.

But he is just applying the principles of CYOA and I can respect that.


RE: Pussied out.
By JasonMick (blog) on 11/16/2009 11:24:20 AM , Rating: 2
I agree with you guys that a response would have been nice

What I meant was I really didn't think it was appropriate to start namecalling, simply expressing his/her disappointment would have been sufficient.

Hopefully we get to hear from Mr. Johnson on this issue in the future.

I think that most in the public agree that consumers should have the right to make backup copies, particularly given how fragile and shortlived most optical media is. But the industry and the law aren't necessarily on their side, unfortunately, right now.


RE: Pussied out.
By stubeck on 11/16/2009 11:42:05 AM , Rating: 2
The issue is the law has not responded to the new technologies out there in the last 10 years. Its still legal to make backups, but with the DMCA its illegal to circumvent security to do so. This is where the issue is, since everything is "encrypted" now, making copies isn't legal.


RE: Pussied out.
By Master Kenobi (blog) on 11/16/2009 12:02:27 PM , Rating: 2
That loophole was likely intentional. Even back in the late 90s when the DMCA was written it was common to encrypt the contents of optical media, or copy protect it in such a way as to make it normally impossible to duplicate. The DMCA was written in such a way to allow the duplication of home made non-copyright materials but prevent you from legally doing it to any profesional job since they would most certainly protect the contents of the disc. This is a classic case of the spirit of the law being dismissed in favor of the letter of the law. The only solution is an amendment to the DMCA or new legislation to replace it, neither of which will happen anytime soon. Under the DMCA the RIAA/MPAA have a free pass to go buck wild in the courts over infringement claims and are applying lobby pressure to the key politicians that could possibly push for reform in this arena.


RE: Pussied out.
By mindless1 on 11/18/2009 1:34:44 AM , Rating: 2
BUT, you are implying we'd need to circumvent or break encryption which is not needed if one only wants to make a 1:1 digital copy of a disc that still retains all the unbroken encryption, etc.

Some would say that's not how *normal* optical drives or windows works, but since when is the process of duplicating digital data not about getting down to the lowest level of read bit, write bit, lather rinse repeat?

I dismiss the idea that anything is normally impossible to duplicate, as technology has shown and will continue to show that our ability to duplicate will only increase in the future, far more things than only optical discs.


RE: Pussied out.
By Lerianis on 11/16/2009 12:12:39 PM , Rating: 2
This is where it gets interesting, because if one part of a law is in conflict with another part of law... the courts have to come and say which law takes precedence, and usually, it's the OLDER law in question, which means that the part of the DMCA that makes it 'illegal' to 'circumvent' security would be found in violation of the OLDER law and Congress would be told to either repeal the earlier law (and get the black eye by doing that) or the courts would rule that the anti-circumvention portion of the DMCA is illegal and therefore unenforceable.


RE: Pussied out.
By Agentbolt on 11/16/2009 12:36:19 PM , Rating: 2
Right now it reads like the guy ducked the question. If he said "That's a very complex question and I don't have time to answer it" then simply put that's what he said. "No comment" is what PR shills say when they've been asked a question they're either too cowardly to answer, or have been instructed not to answer by whoever they're beholden to.


RE: Pussied out.
By mindless1 on 11/18/2009 1:38:33 AM , Rating: 2
To be fair, right now it reads like the guy erred on the side of caution, there is a gray area and neither side is backing down so ultimately it ends up in the courts.


RE: Pussied out.
By Lerianis on 11/16/2009 11:21:31 AM , Rating: 1
Good question as to whose payroll he is on. It is simply past time for the legislators to realize that they are beholden to the PUBLIC, not the businesses, and to do what the PUBLIC wants them to do.

The public wants a legal right to backup their legally bought movies, music, and games.... bottom line, that is what the public wants!
If Microsoft would SUPPORT playing backed-up games OUT OF THE BOX, then people wouldn't need to 'modify' their consoles! Or, if they offered a service where you could send in your damaged disc for a replacement copy AT NO COST.... then people wouldn't be so wanting to play backup copies.

But Microsoft, and the entire game industries, business is based on making you buy things REPETITIVELY every time your thing gets 'damaged' by normal 'wear and tear'. That should not be allowed in our country.


RE: Pussied out.
By noirsoft on 11/16/2009 12:42:52 PM , Rating: 2
quote:
But Microsoft, and the entire game industries, business is based on making you buy things REPETITIVELY every time your thing gets 'damaged' by normal 'wear and tear'. That should not be allowed in our country.


Not to mention all those clothing manufacturers who refuse to replace my clothes and shoes when they fail due to "normal wear and tear" -- I bought those shoes, they should last forever!

Even worse are all those food corporations. It's unethical that my hamburger becomes unusable after I eat it. They should replace it and give me a new one.


RE: Pussied out.
By mindless1 on 11/18/2009 1:49:32 AM , Rating: 2
It was the content providers, not the customers, who boldly declared we are buying a right to use, not ownership and not tied to the media itself.

If they don't facilitate our using what we are licensed to by making it unreasonable to acquire the actual code we need to make use of our license, it was eventual and expected things would turn out as they have.

Think about it, AOL managed to bombard us with optical discs for years but a game company can't just send a disc to paying customers for $2?


RE: Pussied out.
By joemoedee on 11/16/2009 12:48:44 PM , Rating: 3
quote:
Good question as to whose payroll he is on. It is simply past time for the legislators to realize that they are beholden to the PUBLIC, not the businesses, and to do what the PUBLIC wants them to do.


The laws need to protect the Plaintiffs as well. They are also "the public". Whereas I do agree that the pendulum is swung too far to one side, there needs to be protections for all parties involved.

quote:
If Microsoft would SUPPORT playing backed-up games OUT OF THE BOX, then people wouldn't need to 'modify' their consoles! Or, if they offered a service where you could send in your damaged disc for a replacement copy AT NO COST.... then people wouldn't be so wanting to play backup copies.


The problem with allowing the backups is the percentage of people that would use that ability to circumvent actually purchasing the media. Whereas I'm certain there are plenty of folks that would use it to just "back up" their games, many more would use it to not buy them at all. Anyone I know that had/has a modded console wasn't use it to play backups of their games.

MS also allows you to install the game to the hard drive, and you need the original game in to prove ownership. This saves on wear and tear, and allows them to protect their side.

As far as the damaged disk replacement, unless the system is proven to physically damage the game, then it is up to the consumer to take care of the product. I own a PS1, PS2, Xbox, Gamecube, Dreamcast and 360. I've yet to damage a CD/DVD based game. Music CDs? Yes, typically in the car, and it was my mistake.

Apply the free damaged replacement logic to other industries: If by neglect I get a hole in an Old Navy shirt, should Old Navy replace it for free? No.

quote:
But Microsoft, and the entire game industries, business is based on making you buy things REPETITIVELY every time your thing gets 'damaged' by normal 'wear and tear'. That should not be allowed in our country.


Their business isn't based upon the idea of repeatedly selling the same product. Their business is based upon selling game titles. Piracy protection helps with this.


RE: Pussied out.
By Lerianis on 11/16/2009 11:17:11 AM , Rating: 2
Not uncalled for in the slightest. The fact is that a LOT of people out there with modified consoles are playing LEGALLY BACKED UP GAMES, which makes Microsoft's 'bricking' their consoles legally 'iffy' to be blunt.

And the fact is that third party people ALREADY access XBox Live using.... computers, which are EASILY MODIFIABLE!

So, no, the consensus with the public is that modifying things that are used to access third-party services is fine AS LONG AS YOU ARE NOT CHEATING WITH THEM!
That's the bottom line: cheating = bad. Playing backed up, legally bought games = fine.


RE: Pussied out.
By bighairycamel on 11/16/2009 11:24:54 AM , Rating: 2
Give me a break. It's completely naive to think that a significant amount of people are playing legally backed up games on their modded XBox's. Some probably are I'm sure but they are a very very small minority.

And their consoles are not "bricked". Check your facts. They can still play their games, they just can't play them online.


RE: Pussied out.
By Lerianis on 11/16/2009 12:08:49 PM , Rating: 1
Wrong. Read again: cannot install to the hard drive of the consoles, have saves corrupted, etc.

You should check your facts in the other posts on this subject. Microsoft has 'bricked' the consoles and made things UNCONNECTED with the XBox Live service not work. That has been proven, it's a blunt fact.

And no, it is not 'naive' to think that considering that I have four friends who have done that, modified their XBox360 to play LEGALLY BACKED UP GAMES.

So, I am not being 'naive'.... I am just stating what I have seen in my real, day-to-day life.


RE: Pussied out.
By bighairycamel on 11/16/2009 12:31:53 PM , Rating: 3
You better check your definition of "brick" then. Bricking would means it's completely unusable. Users can still PLAY GAMES on their XBox which is the devices primary purpose. Not being able to install the the HDD or having saved games corrupted does not make disks fail to work.

And if you're assuming the intent of 1,000,000 banned users based off of what 4 of your friends did with their modded consoles, then yes, you're being naive. We all know the vast majority were using their modded consoles to play ISOs downloaded from bit torrent or for copying rented games.


RE: Pussied out.
By mindless1 on 11/18/2009 1:47:05 AM , Rating: 2
I feel you are overlooking that it doesn't matter that they bricked consoles for the 99% that were pirating, it matters that they bricked the online functionality for the 1% who weren't.

Remember that basic philosophy of US law? It's better to let 10 guilty go free than convict one innocent...


RE: Pussied out.
By mindless1 on 11/18/2009 1:41:25 AM , Rating: 2
How about a different gaming machine? Personally I only buy games that I know I can get a no-CD crack for, or that otherwise let me play without having to juggle discs to run them.

That's making an *unauthorized* copy, just to a different storage medium.


RE: Pussied out.
By stubeck on 11/16/2009 11:20:41 AM , Rating: 2
He didn't answer the question most likely to interest people here (I glossed over a few of the ones before it), and his other responses don't have anything to do with what the OP is complaining about.

Its a fair statement.


RE: Pussied out.
By Justin Time on 11/16/2009 11:37:38 AM , Rating: 3
If you didn't want it to be an issue, you should have left the unanswered question off the article. As it is, it appears that YOU see the non-answer as important enough to draw attention to it.


"And boy have we patented it!" -- Steve Jobs, Macworld 2007














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