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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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By rs1 on 11/16/2009 2:42:53 PM , Rating: 4
I'm tired of listening to both sides in this debate. On the one hand, you have the people who will assert that "downloading is stealing" and "piracy is unequivocally wrong" and so on and so forth. And frankly, if you believe that nonsense, then you're an idiot. Your argument is akin to saying that if there was a machine that could generate unlimited copies of any tangible item for free, then it would be wrong to use it to end world hunger, because what about the poor farmers who deserve to get rich off of all of those copies. It's ridiculous.

Not that the other side of the fence is any better, with people who will either assert that the rights-holders don't deserve compensation for access to the work, or just try to dance around the issue that under the current system there is no compensation given to the rights-holder whatsoever. Your argument is like saying "yes, use the machine to end world hunger", but then letting the farmers who provided the initial input for the machine live out the rest of their lives in poverty, because who needs them anymore, anyways? That's not any less ridiculous. If the copied food truly had no value, then there wouldn't have been any incentive to copy it in the first place, and if it has even a little value, then the creator deserves a cut of that value. That's just basic fairness.

What's needed is a new approach. It's wrong to try to restrict access to a machine as powerful as the Internet. But it's also wrong to use the Internet to disenfranchise entire classes of people. I propose that there are really only a few key considerations here that really matter:

1. The benefits of giving everyone unrestricted access to any piece of information they want far outweigh the drawbacks.

2. The creator of a piece of information deserves to be fairly compensated for its use. "Fair" in this case means "proportional to the popularity of their creation".

3. We, as a species, are supremely stupid if we create something like the Internet (which is essentially a machine that can generate unlimited copies of anything that can be represented digitally, for free) and then do not use it to its full potential.

...given that, I think we absolutely need to move away from the now-outdated notion that "you pay for exactly what you use". Paying individually for each piece of content no longer makes any sense. Everyone with an Internet connection already has access to every piece of music, video, and software ever created (more or less), regardless of whether or not they choose to take advantage of that access. And that's not going to change.

So maybe we should pay for the access, and not the use. For instance, maybe Internet connections should carry a $10/month surcharge in acknowledgement of the fact that the connection gives access to the biggest trove of copyrighted information in the world, and in return for that surcharge Internet users can make personal use of any copyrighted information that they can access. The surcharges could be collected every month, and distributed to rights-holders based upon a formula that takes into account the number of times something was downloaded and its fair market value. For instance, if artist A's single was downloaded 1,000 times, and artist B's single was downloaded 10,000 times, then artist B gets 10 times as much money as artist A for that month. And if game X was downloaded 20 times, then the producers of game X get about the same as what artist A gets, because the fair market value of a game is about 50x the market value of a single song.

Thus, everyone gets to use the magic machine that can make unlimited free copies of just about anything in any way and as much as they want, while at the same time rights-holders continue to be fairly compensated for the content they produce. Moreover there is still strong incentive to create (and market) new content, because if you get something popular enough you can bring in a significant amount of cash in as little as a month.

Granted, it requires everyone who wants Internet access to pay a bit more for the privilege, but I think it's really the only way to move forward. Paying individually for each piece of information used is simply not viable in a world where everyone has access to the machine that can make unlimited free copies. So let's recognize the Internet for what it is, stop trying to fight against it, and find a way that allows everyone to use it to its full potential, without completely victimizing legitimate rights-holders.

That is all.

RE: Enough.
By Leper Messiah on 11/16/2009 3:01:05 PM , Rating: 2
I think Canada implemented something similar on CD-R media supposedly to reimburse artists who had their music copied. I doubt the actual artists ever received much of that money however.

RE: Enough.
By lewislink on 11/16/09, Rating: -1
RE: Enough.
By Leper Messiah on 11/16/2009 3:54:59 PM , Rating: 5
You're an idiot. Morality and legality rarely have anything to do with each other. I guess you'd be the same person on your soap box screaming at black people for sitting at the front of the bus, or daring to use the same drinking fountains and bathrooms as white people back in the 50's right? I mean after all, it was ILLEGAL for black people to do these things at one time.

RE: Enough.
By lewislink on 11/16/09, Rating: -1
RE: Enough.
By Leper Messiah on 11/16/2009 4:35:16 PM , Rating: 1
Silly me for feeding the troll. No wonder all your comments get downmodded to -1, everything you say seems to defy all logic and reason.

RE: Enough.
By lewislink on 11/16/09, Rating: -1
RE: Enough.
By amanojaku on 11/16/2009 7:16:46 PM , Rating: 4
Moron? hahahahaaah! You're the one who said Leper Messiah was "being racial and oppressing people". He said:
I guess you'd be the same person on your soap box screaming at black people for sitting at the front of the bus, or daring to use the same drinking fountains and bathrooms as white people back in the 50's right? I mean after all, it was ILLEGAL for black people to do these things at one time.
I think he meant "morality sometimes means changing, and if necessary, breaking the law simply because it is immoral." Leper Messiah, please correct me if I misunderstood you. And I agree with that sentiment, btw.

Of course, it could just be that I'm brain washed...

I almost forgot, lewislink. I think it's... funny that you just couldn't come out and swear. To quote "Falling Down":

I don't like you. You know why? You don't curse. I don't trust a man who doesn't curse.

RE: Enough.
By cerx on 11/17/09, Rating: 0
RE: Enough.
By Alexstarfire on 11/16/2009 6:32:33 PM , Rating: 1
Ok, please tell me in what way what he said was racial? Is stating facts, yet again, cause for people to get upset? I guess we should just forget about the Holocaust and all the Holy Crusades because those people were being racist, more religionist (if that's even a real word) actually but the same concept.

Saying that at one point it was illegal doesn't make him a racist. It made him someone who knows his history and got his facts straight.

RE: Enough.
By cerx on 11/17/2009 11:44:46 AM , Rating: 2
Because he said this:
I guess you'd be the same person on your soap box screaming at black people for sitting at the front of the bus, or daring to use the same drinking fountains and bathrooms as white people

RE: Enough.
By cerx on 11/17/2009 11:42:20 AM , Rating: 2
Are you honestly comparing segregation, racism, and/or slavery to filesharing?!

RE: Enough.
By Targon on 11/23/2009 10:56:05 AM , Rating: 2
I don't think the poster was, but morality IS something that shifts over time since it is about what is SEEN as what is right and what is wrong. From that perspective, segregation and racism are still issues that some people find either moral or immoral, depending on where you stand on the issue.

The general public feels that segregation, racism, and slavery are wrong, but that does not mean that everyone around the world feels that way. Some people feel that they have the right to freely copy music as well right now, even when the artists have not given permission.

Wading into the real topic of downloading music, it is one thing for someone to play a song written by others and then distribute a recording of that, and reproducing a recording of what someone else has done. To be fair about it, if you want to be able to listen to a recording of a song, you have to be able to perform the song yourself, or pay the PERFORMER something since the performer did the work, you did not.

In the world of commercial music, record labels INVEST money to make an album/CD/DVD. That may come from recording sessions, advertising, distribution, etc. The record labels deserve compensation for their investment, but the ownership should remain with the original artist who performed for the recording.

Going back historically, to the days before recorded music, songs were often written by one person, and a popular song would be played by many other performers. There was no cause for complaint except when others tried to claim credit for the original composition, and the recording industry NEEDS to understand that.

There should be no need for a license to play a song written by someone else, as long as proper credit goes back to the original writer. Things get more complicated when money is charged for derivative works though, but a fair law would be something like five percent of the proceeds from a derivative work should go back to the original artist or something like that.

Until the idiots in the court system understand all of this though, they really have no justifiable claim to be able to make laws on the issue.

RE: Enough.
By rcc on 11/17/2009 3:38:11 PM , Rating: 2
Don't even go there.

But you know what the biggest difference in the 2 issues really is?

Pirates whine.

Back in the 60s they changed the laws and the way the world works. Granted, it's still a work in progress.

RE: Enough.
By omnicronx on 11/16/2009 5:00:51 PM , Rating: 2
Ughh... please don't compare anything to the idiocy of 'CD-R Audio only Media'. It was basically an honor system, all they did was sell CD-R 'audio' media meant specifically for burning MP3's or copying CD's. The problem was everyone knew you could burn that same content on CD-R's that they had labeled for data use. Nobody bought them (except for idiots), and as such the artists made little to no money.

RE: Enough.
By Leper Messiah on 11/16/2009 5:11:06 PM , Rating: 4
All I was saying is that the concept was similar. Just because the implementation was botched, doesn't mean that the idea does not have merit.

RE: Enough.
By InsaneScientist on 11/16/2009 11:25:38 PM , Rating: 2
Oh... is that why CD-Rs were marketed both ways. I never figured it out.
Oh well.

RE: Enough.
By bighairycamel on 11/16/2009 5:31:57 PM , Rating: 2
Come on, seriously? Comparing digital media to world hunger is absurd. I realize you tackled both sides of the argument, but your defense for pirating is rediculous. Just because we have a machine that can copy or access media easily makes it OK???

Call me an idiot if you want, but downloading something with no intent to pay that would in all other instances cost money to obtain IS STEALING. Whether it's music, software, digital books, etc etc. Don't confuse this with "sampling" or "backups" because those are very gray areas, but there are too many people who download with zero intent to purchase.

If you want to try and change what costs money to obtain and what doesn't, be my guest but good luck. In the meantime I feel obligated to pay for what is required of me to pay, otherwise I feel it should be considered stealing.

And I'm still flabbergasted over the world hunger argument O_O

RE: Enough.
By rs1 on 11/16/2009 5:56:40 PM , Rating: 2
Just because we have a machine that can copy or access media easily makes it OK?

Yes, so long as the rights-holders are still fairly compensated somehow. I never said that its okay to pirate without compensation. I said that the current model where when you access a CD by artist X you end up owing money more-or-less directly to artist X is no longer viable, and that maybe it makes sense to look at replacing it at a system where instead of paying artist X for access to artist X's album, you pay into a pool that allows you to access any album you want, including artist X's.

If done correctly, the net effect should be revenue-neutral for artist X (and also artists Y and Z), while simultaneously allowing everyone else to access far more content at a substantially lower price. If you wanted to, you could even look at it as nothing more than a sweeping price correction to account for the fact that very few consumers feel that it's worth dropping $15-$20 on a CD anymore.

In fact, just looking at the music industry, which had U.S. revenue of about $10 billion last year, then a monthly surcharge of just $8.25 would allow for the U.S. (assuming ~100 million ISP subscribers) to implement a revenue-neutral solution. I would gladly pay an extra $8.25/month for legal access to all the music that I happened to want. And of course, if the model is applied on a broader scale, the per-subscriber costs become much lower.

And I'm still flabbergasted over the world hunger argument O_O

As you pointed out yourself, the stretch shouldn't matter, because I played it equally against both sides. But if it still bothers you, then fine, replace "food" with "TV's" or "cars", and "poor farmers" with "poor electronics companies" or "poor automotive companies". The underlying argument remains the same.

RE: Enough.
By bighairycamel on 11/16/2009 6:38:46 PM , Rating: 2
I'm defending the "piracy is unequivocally wrong" aspect, because I don't see how you can call someone an idiot for believing that. Even though there are varying degrees of the definition of "piracy" I described what I meant and I won't change my stance because you have a middle-ground plan. I agree changes need to occur and I like your ideas, but in the meantime it's still wrong to pirate, period.

RE: Enough.
By rs1 on 11/16/2009 7:00:36 PM , Rating: 2
Ah, I see. Thank you for clarifying your position. To clarify my own, the issue I take with "piracy is unequivocally wrong" is the "unequivocally" part. To a certain extent, I think there is just a social obligation to disobey obviously unjust laws just as there is an obligation to obey the just ones. And I think the current laws, where you have large media companies and their high-end legal teams going after individual citizens with civil suits and winning huge fines and penalties against them, are clearly unjust. They need to have people disobeying them, because that's the only way they will ever change.

And as I've already said, I do think its wrong for the rights-holders to not be compensated for the use of their works. That is almost the same as saying that piracy is wrong. The only real difference is that I'm not prepared to go that extra step of calling all pirates dirty, selfish thieves who should just stop and pay up. In the current climate, I think piracy is a necessary catalyst for change to happen. If it didn't exist, nobody would think that there's a problem, and nothing would ever be different. And once things finally do change, I expect that the problem of widespread piracy will all but disappear.

RE: Enough.
By kc77 on 11/16/09, Rating: 0
RE: Enough.
By cerx on 11/17/2009 11:51:21 AM , Rating: 2
If it has no value, why do you want it?

RE: Enough.
By kc77 on 11/17/2009 5:52:26 PM , Rating: 2
Please read what I said carefully. I'm speaking of the value of content in relation to it's distribution model.

A good example is watching OTA TV signals.

RE: Enough.
By MightyAA on 11/17/2009 6:26:29 PM , Rating: 2
Exactly cerx.

And it's not just the artist. Why do you want it? Probably because some big marketing firm was hired to make you want it. The cover art may be cool. Maybe you saw the band on tour. Maybe the radio station played it. There are also a whole army of other people and companies involved to bring that music to you with the sole purpose of creating something to SELL to you. There is studio time and even the freakin company that actually does print the cd's and distributes. Piracy removes their compensation.

This is not equal rights, or some social experiment or the cure for anything. Those are lovely ideals, but this is a business and there is a expectation to make lots of money.

Sorry, but the artist is really just a small player in the money sense of things. It takes someone else with very deep pockets to pick which artist get airtime and promoted. No one pirates an unsigned, unknown garage band; they'll be selling their cd's by the exit at the end of their show. There are a hundred other people involved with making sure you want to hear that artist, and they all want to be paid.

The original $10/month proposal is also way, way off. That's less than half of just a WoW subscription, so you aren't even covering just a single game revenue. And who's gonna track all this? They'll need to be paid too..

RE: Enough.
By kc77 on 11/18/2009 7:10:12 PM , Rating: 2
Apparently you are unable to comprehend what I'm saying.... CD's (not Music)...ARE NO LONGER VIABLE. At least not for the future anyway. The Internet has made marketing a product extremely easy. Look at Google. They released no CD. No TV commercials. In fact word of mouth alone has made that company great. Ebay, Amazon, etc are all examples of the success of Internet marketing.

I've been in the music industry. It costs hardly anything to make music at all. $5,000 is enough to make a studio quality record if you did it yourself. It costs all of $300 for duplication and stamping.

The corporations have built their business model on the distribution of music, and not about really creating or performing good unreproducible music. They have built their model after Britney Spears. She writes no music. She produces no tracks. She can barely hold a note. She doesn't even do her own dance moves. She is a made up brand which barely provides a innovative product worth purchasing in today's economy.

They make money off of marketing and distributing a brand which is totally based on ethereal product lines that are reproducible in everyones home. It's basically a product which lacks so much innovation that anyone can have one. Why should anyone protect a market that refuses to innovate and uses our cronies in government to buck market forces?

RE: Enough.
By PhatoseAlpha on 11/17/2009 9:38:29 AM , Rating: 1
You cannot decide a fair market value without a market. In light of that, your compensation scheme can't work - and from there, the economics of the whole thing fall flat on their face.

"I want people to see my movies in the best formats possible. For [Paramount] to deny people who have Blu-ray sucks!" -- Movie Director Michael Bay

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