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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.

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?

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.

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?


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.

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?

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.

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?


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.

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?

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.

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?


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 Agentbolt on 11/16/2009 1:41:46 PM , Rating: 2
He was perfectly willing to speak personally about the three strikes law being untenable. That's his personal opinion, in case you missed it. So yeah, it's your own personal bias.

However, I agree the backup question shouldn't even be in this article. This isn't a hard-hitting interview, it's a friendly discussion about copyright law. Our lawyer friend is clearly either gagged by his firm, a wuss, or terrified of pissing somebody off, and he's being made to look like a retard by continually refusing to answer a simple yes/no question.

RE: Pussied out.
By DarkElfa on 11/16/2009 3:19:01 PM , Rating: 1
Well, I'll except that answer and withdraw my pussyout, though I didn't call him a pussy as much as insinuate that it was a Matrix style dodge. I give him props for taking it back on and you Jason for taking it back to him.

Personally, I don't like the way that any content creator attempts to tell someone who has paid for something how they are to go about using that piece of content or whether or not they can make a back up for themselves. If they were loaning us the content for free, sure, I'd be happy to follow their wishes but once I hand over money for it, I'll stick it up my nostril if I so see fit to do so. Copyright is and has been out of control in this country for decades. Copyright should have no more than a 5 year limit and should be non-transferable by sale or inheritance. The majority of the money anyone makes nowadays on any media is in the first 56 years and anything else is just milking the public cow. Once the 5 years is up it should become property of the Library of Congress to be protected and distributed free for public usage. This crap where people hold onto their copyright and pass it onto children or sell it like a commodity is out right BS. Copyright is how record companies have stripped away the money and creative control from artists. If the Star Wars copyright had been protected like I suggest, Han would have always shot first. Its a better system and is fair to both the public and the artist. Will they make as much cash in the long run? No, but they'll still make more than most of us would ever hope to. Copyright should protect the consumer as much as the creator. How many times have you bought the White Album? Once should have been enough.

RE: Pussied out.
By smackababy on 11/16/2009 3:42:41 PM , Rating: 2
You have to understand the record labels view point on media. You are not purchasing the rights of the music. You are merely purchasing a "use until expired" copy of said media. The expiration date being whenever said medium is no longer servicable. Therefore, making copies is not in their game plan.

If RIAA hadn't gone about this in such a wrong way, this whole "fight the record label" movement wouldn't be as publicized. The industry is already broken, this just gives them reason for more control. I, myself, refuse to buy any major label release.

RE: Pussied out.
By Jalek on 11/17/2009 1:55:49 AM , Rating: 2
Servicable? It's until they decide to withdraw the license for any reason.

When Napster first started becoming popular, I fully expected to hear about people being served with bills for songs they'd downloaded. The system wasn't nearly as cryptic as it was made out to be and lists of what each login had to share were simple to get.

Instead, they started with the $200k per song garbage and the excessiveness of that, and the bypassing of normal legal process turned me and I'd assume others. Had they simply sent reasonable (?) bills and dropped it into collections, they probably would've saved some court costs, had more settlements, and not turned file sharing into some civil disobedience thing.

I've managed fine without purchasing any major label music for several years. I've purchased quite a few CD's from smaller labels and independents. The labels do get some money indirectly when I use Pandora and other streaming systems. It's not like I didn't already have a couple of hundred CD's anyway.

“And I don't know why [Apple is] acting like it’s superior. I don't even get it. What are they trying to say?” -- Bill Gates on the Mac ads

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