ville oksanen helsinki institute for information technology iprs in court – recent development in...

Ville OksanenHelsinki Institute for Information

Technology

IPRs in Court – Recent Development in Finland

and Abroad


Technology

Who’s talking..• L.LM. (OTK)• At HIIT since May 2001• At Berkeley October 2001-December 2002• Current research:

– Trusted computing, Microsoft Palladium and EUCD– The (online) grassroot movements against

copyright and DRM and their economical and political influence.

• Ph.D student at University of Joensuu (Economics)

• Founder, Electronic Frontier Finland


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Finnish Cases


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Market Court MAO:156/03 I

• Facts:– An arbitration decision 1993 -> The

license payment was bind to the revenue from advertisements

– Gramex (a copyright society for performing artists and producers) had demanded different license payments from different commercial radios.

– For example (only) Radio Nova had to pay 5M mk minimum payment


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Market Court MAO:156/03 II

• The question: Did Gramex have any justifiable grounds for different licensing schemes or was it misusing its dominant market decision

• A company,which is in dominant market position, is not allowed to threat differently its customers without a justifiable reason.


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Market Court MAO:156/03 III

• Gramex:– A justifiable reason existed, because

certain radio stations were using “Top40” music so much that the listeners didn’t want to buy those CDs anymore

– A second reason was that only certain radio stations were broadcasting on national level (more that 1,4M listeners) and these stations were causing more harm than their more geographically limited counterparts


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Radio performances

Effect t o C

D-s al es

+

-


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License costs

Number of radio performances

The demand for music in case of the blanket license

Dbighit

Dnormal

Dnewartist

Pblanket


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Market court’s opinion

• Gramex has failed to show evidence that too much exposure from radio is causing harm to record sales

• On the contrary, the evidence submitted to the court indicates that exposure has a positive effect on record sales

• The license agreements should have been transparent anyway, which was not the case


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The verdict

• Gramex was misusing its dominant market position by using discriminatory license schemes

• The sanction: 250000€ fee + 50000€ for lawyers fees

• 150000€ optional penalty, if Gramex continues to use discriminatory license schemes


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KKO 2002:101

• The question:– If a taxi-driver is listening a CDs or

radio while he has customers in the car, does that fall under the copyright holder’s rights (public performance)?


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The outcome (7/4)• The majority: ”The performance in question

is related to commercial activity...... The audience is not limited beforehand…the main point is the whole customer base, not the customers who are using the service at the same time.”

• The minority: ”The main service for the customer is the ride itself… Car brand, car accessories, the music… secondary issues. Many times the needs of the passengers would be best fulfilled by turning of the radio”


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What will follow?• The majority argues that the benefits to the

business are not important, and the rights of the copyright holder has to be interpreted strictly (or literally)– It does not matter that someone already pays for the

music (radio station)

• The majority argues that the audience does not have be at the same time at the place of the performance -> the scope of public performance…

• Who and how to decide the right license fee (22 EUR / year / taxi)


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KKO:2003:88

• The question:– Is it legal to resell software, which is

meant to be used only for upgrades or marketing purposes

• The facts:– A company had repackaged and sold

software packages, which were meant to be used for marketing purposes or upgrades.


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KKO:2003:88 – The outcome

• The first sale doctrine applies to also computer software

• Thus it is not possible to limit the resale of software by using copyright

• The decision applies only to “boxed software” (physical copies), the first sale does not apply if the works exists only in digital form


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What will follow?

• It’s impossible to price discriminate the customers if the software is sold in physical boxes

• Stricter contracts (even if the sale is not a copyright violation, it may be a contract violation)

• How wide is the decision (is it legal to use a single-user version is a server etc?)


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US cases


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DVD-case

• Protected with Content Scramble System (CSS)

• Also Regional Playback Control (RPC II)• Macrovision• Goals:

– Prevent digital copying– Add control how material can be viewed – Prevent consumers buying DVDs from another regions

• Licensed by DVD CCA


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DeCSS• CSS was broken by a group of hackers (Jon

Johansson), which created a program called DeCSS

• CSS was poorly designed (40 bit crypto etc), which made the attack easy

• Full access to files• Possibility to convert to other formats like DivX• Unlicensed software players (to Linux )


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#!/usr/bin/perl -w # 531-byte qrpff-fast, Keith Winstein and Marc Horowitz <[email protected]> # MPEG 2 PS VOB file on stdin -> descrambled output on stdout # arguments: title key bytes in least to most-significant order $_='while(read+STDIN,$_,2048){$a=29;$b=73;$c=142;$t=255;@t=map{$_%16or$t^=$c^=( $m=(11,10,116,100,11,122,20,100)[$_/16%8])&110;$t^=(72,@z=(64,72,$a^=12*($_%16 -2?0:$m&17)),$b^=$_%64?12:0,@z)[$_%8]}(16..271);if((@a=unx"C*",$_)[20]&48){$h =5;$_=unxb24,join"",@b=map{xB8,unxb8,chr($_^$a[--$h+84])}@ARGV;s/...$/1$&/;$ d=unxV,xb25,$_;$e=256|(ord$b[4])<<9|ord$b[3];$d=$d>>8^($f=$t&($d>>12^$d>>4^ $d^$d/8))<<17,$e=$e>>8^($t&($g=($q=$e>>14&7^$e)^$q*8^$q<<6))<<9,$_=$t[$_]^ (($h>>=8)+=$f+(~$g&$t))for@a[128..$#a]}print+x"C*",@a}';s/x/pack+/g;eval #define m(i)(x[i]^s[i+84])<< unsigned char x[5],y,s[2048];main(n){for(read(0,x,5);read(0,s,n=2048);write(1,s ,n))if(s[y=s[13]%8+20]/16%4==1){int i=m(1)17^256+m(0)8,k=m(2)0,j=m(4)17^m(3)9^k *2-k%8^8,a=0,c=26;for(s[y]-=16;--c;j*=2)a=a*2î&1,i=i/2^j&1<<24;for(j=127;++j<n ;c=c>y)c+=y=iî/8î>>4î>>12,i=i>>8^y<<17,a^=a>>14,y=aâ*8â<<6,a=a>>8^y<<9,k=s [j],k="7Wo~'G_\216"[k&7]+2^"cr3sfw6v;*k+>/n."[k>>4]*2^k*257/8,s[j]=k^(k&k*2&34) *6^c+~y;}}

Perl:

C- implementation (Author: Charles M. Hannum):

Shortest DeCSS-implementations


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Qrpff Tie

Qrpff, a PERL based version of the famous DECSS. Code written by Keith Winstein and Marc Horowitz.

Price: $34.00


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As music songs

• Joe Wecker and Don’t Eat Pete• Shane Killian:


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DVD-CCA v. Bunner

• Based on trade secret, not copyright

• California Superior Court– Preliminary injunction granted

• California Appellate Court– Preliminary injunction not granted

• California Supreme court:– Still open


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DVD-CCA v. Pavlovich

• The question:– Can a person, who has not connections

to California, be still judged there because he knew that his publication could cause "general effects" on the motion picture and technology industries in California?

• California Supreme court: It can’t


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Universal v. Reimerdes

• The question:– Is DeCSS a circumvention device

defined in the Digital Millenium Copyright Act and does the publication of DeCSS still fall under the scope of free speech?


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Universal v. Reimerdes II

• EFF tried to handle the defense (with bad results)

• Judge Kaplan: DeCSS is a circumvention device

• Appeal to Second Circuit – the answers were:


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Battle lines• ACLU, for American Civil Liberties Union, Digital Future Coalition (DFC), American Library Association (ALA), American Research Libraries (ARL), Music Library Association (MLA)

• Computer Scientists: • Law Professors: • Cryptographers: • Journalists and Publishers, Online

News Association, Reporters' Committee for Freedom of the Press, Newspaper Association of America, Student Press Law Center, Wired, Pew Center on the States, Silha Center for Media Ethics and Law, College of Communications - CSU, Fullerton

• Fair Use Interests: Dr. Siva Vaidhyanathan, Mary Wallace Davidson, Ernest Miller, Christina Olson Spiesel

• ACM Law Committee

• Industry organizations:Recording Industry Association of America (RIAA); American Federation of Musicians of the United States and Canada (AFM); American Federation of Television and Radio Artists (AFTRA); American Film Marketing Association (AFMA); American Society of Composers, Authors and Publishers (ASCAP); Broadcast Music, Inc. (BMI); American Society of Media Photographers (ASMP); Association of American Publishers (AAP); Business Software Alliance (BSA); Directors Guild of America, Inc. (DGA); Graphic Artists Guild; Interactive Digital Software Association (IDSA); National Association of theater Owners (NATO); National Cable Television Association, Inc. (NCTA); National Collegiate Athletic Association (NCAA); National Football League and National Football League Properties, Inc. (NFL); National Hockey League (NHL); National Music Publishers' Association (NMPA); office of the Commissioner of Baseball; Producers Guild of America (PGA); Professional Photographers of America (PPA); Reed Elsevier, Inc.; Satellite Broadcasting and Communications Association (SBCA); Screen Actors Guild, Inc. (SAG); Software & Information Industry Association (SIAA); and Writers Guild of America, West, Inc. (WGA)

Answer: yes/no


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United States vs. ElcomSoft

• Russian Dmitry Sklyarov wrote a circumvention software for Adobe Ebooks while he was working for Elcomsoft in Moscow

• He was arrested by FBI after he participated to DefCon in 2001– 50 000 USD bail– The charge was dropped after he promised to witness

against Elcomsoft

• 17.12.2002 a verdict: Elcomsoft didn’t knowingly violate DMCA and is thus acquitted from criminal charges


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Eldred v. Ashcroft

• The questions: Is Sonny Bono copyright act against the US constitution– The law extended the copyright to 70

years after the author’s death and applied also to existing works

– The constitution: only limited times


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Economic justification..

• A statement to support Eldred by– George A. Akerlof– Kenneth J. Arrow– Timothy F. Bresnahan– James M. Buchanan,– Ronald H. Coase– Linda R. Cohen– Milton Friedman– Jerry R. Green– Robert W. Hahn

– Thomas W. Hazlett C. Scott Hemphill,

– Robert E. Litan, – Roger G. Noll, – Richard Schmalensee– Steven Shavell– Hal R. Varian– Richard J. Zeckhauser


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..does not exist?• Comparing the main economic benefits and costs of

the CTEA, it is difficult to understand term extension for both existing and new works as an efficiency-enhancing measure. Term extension in existing works provides no additional incentive to create new works and imposes several kinds of additional costs. Term extension for new works induces new costs and benefits that are too small in present-value terms to have much economic effect. As a policy to promote consumer welfare, the CTEA fares even worse, given the large transfer of resources from consumers to copyright holders.


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The US Supreme Court

…Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing the CTEA’s long terms. The wisdom of Congress’ action, however, is not within our province to second guess. Satisfied that the legislation before us remains inside the domain the Constitution assigns to the First Branch, we affirm the judgment of the Court of Appeals.


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MGM v. Grokster

• The question: Can the company behind a P2P-software be held liable for the copyright violations committed by the users?

• The court: No. (under appeal)


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Comments – Questions?

Ville [email protected]://www.hiit.fi/de/

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