Cyberbullying. Employer social media password requests. Crowdfunding. Those were some of the hot tech topics that the Hawai‘i State Legislature grappled with this session. (See my post on Internet related legislative proposals in the 2013 session). The bills addressing those topics didn’t pass, however. In fact, none of the bills listed in my chart of Internet Related Legislative Proposals survived. The closest to passing, perhaps, were two bills prohibiting employer requests to employees to disclose their personal social media account information, but the bills got stuck in committee.
That’s not to say that the 2013 session was completely devoid of tech. I’ve prepared a chart of all the bills related to electronic, digital, and information technology that the Hawai‘i State Legislature passed this session. (Many thanks to the Legislative Reference Bureau for providing the summaries that are incorporated into the chart). Governor Neil Abercrombie has already signed some of the bills into law. Others are pending a decision from the Governor. To summarize, the legislature this year addressed:
- Adoption of the Uniform Electronic Legal Material Act
- Portable electronics insurance
- Clarification of relationship between Uniform Commercial Code Article 4A and Electronic Fund Transfer Act
- Licensing requirements for telemedicine practitioners employed by the U.S. Department of Defense
- Duties of the State Chief Information Officer
- Electronic posting of reports of Department of Health inspection of state licensed care facilities
- Availability of State open data
- Approval of broadband related permits
- Tax credits for film and digital media industry
- Ban on use of mobile electronic devices while operating a motor vehicle
For summaries of all the bills that passed this session, read the full LRB report. For even more information visit the Legislature’s website for the full text of bills, committee reports, and testimony. I’ll update the chart after the Governor’s veto deadline has passed, so check back in a while.
The Senate Judiciary Committee of the Hawaii legislature just voted to approve the “Steven Tyler Act” (SB465), an anti-paparazzi law named after the Aerosmith lead singer, who personally showed up to testify in favor of the bill at a hearing today. The Tyler Act, which apparently was prompted by Tyler’s experience with paparazzi near his Maui home, attracted written testimony from an assortment of celebrities including Britney Spears, Neil Diamond, Tommy Lee, and Avril Lavigne. My favorite testimony letter was Ozzy Osbourne’s because it had a little cartoon drawing of Ozzy in the bottom right corner.
Cartoon from written testimony on SB465 by Ozzy Osbourne, 2/6/13
The final fate of the Tyler Act remains uncertain, but now that it’s taken an important step forward, I thought I’d share my thoughts on the bill in its current form. (The Tyler Act isn’t exactly related to technology law, but I’m blogging about it because I also practice in First Amendment, privacy, and media law.)
It’s important to understand that the Tyler Act mimics California’s anti-paparazzi law (which is currently facing its own legal challenges). As much as legal commentators panned the California law, the Tyler Act should attract its fair share of criticism, if not more, because its language is much more loose and vague. And that’s not good when it comes to writing a law. You know the Aerosmith song “I Don’t Wanna Miss a Thing”? Well, there are quite a few things the Tyler Act misses. Here are some examples.
The centerpiece of the California law is the creation of a new tort called “constructive invasion of privacy.” This kind of invasion of privacy is “constructive” in that it doesn’t require the defendant to have physically trespassed onto the plaintiff’s property. Use of a “visual or auditory enhancing device” is enough. So, a person using a telephoto zoom lens to snap pictures of J-Lo on the balcony of her home could be liable for invasion of privacy without having stepped foot onto J-Lo’s property. The idea is that use of devices to intrude into someone’s private space is just as invasive as physically entering into their space.
The Tyler Act uses the term “constructive invasion of privacy,” but it doesn’t exactly track the theory behind the tort. Here’s the main liability section of the Tyler Act:
A person is liable for a civil action of constructive invasion of privacy if the person captures or intends to capture, in a manner that is offensive to a reasonable person, through any means a visual image, sound recording, or other physical impression of another person while that person is engaging in a personal or familial activity with a reasonable expectation of privacy.
See any reference to “visual or auditory enhancing device”? There is none. The Tyler Act says a person could commit a constructive invasion of privacy “through any means.” A cheapie disposal camera would do it. So would the audio recording app on your iPhone. And if devices lacking in any “enhancement” feature do the trick to capture a “visual image, sound recording, or other physical impression of another person,” query whether there was an invasion of personal space, constructive or otherwise. (Note that if an invasion into private space truly occurred, even in the absence of a physical invasion, Hawai‘i law already provides a remedy through the common law tort of intrusion into seclusion, which is a form of invasion of privacy.)
But the problems with the Tyler Act don’t stop there. The Act applies when the plaintiff is engages in a “personal or familial activity.” That language also appears in the California law, which is defined as “intimate details of the plaintiff’s personal life, interactions with the plaintiff’s family or significant others, or other aspects of the plaintiff’s private affairs or concerns.” Cal. Civ. Code § 1708.8(l). The definition excludes “illegal or otherwise criminal activity ….” The meaning of “personal or familial definition” is pretty vague even with that definition, but at least the California law includes a definition. The Tyler Act doesn’t! It’s anyone’s guess what “personal or familiar activity” means under the Tyler Act.
Similarly, the Tyler Act doesn’t define “offensive” or “reasonable expectation of privacy.” Nor does it contain an exception for publicizing matters of “legitimate public concern,” unlike the California law. This is problematic because it imposes liability for conduct not remotely resembling the opportunistic antics of paparazzi. Suppose a celebrity’s Kauai mansion catches on fire, spreading flames to her neighbor’s homes. The celebrity rushes out to the sidewalk with her kids, watching as firefighters put out the blaze. A photojournalist arrives on the scene and takes a picture of the celebrity and her kids from across the street. He then sells the photo to a local daily newspaper, which uses it alongside a front-page article about the fire. That’s hardly TMZ-style content, but under the vague language of the Tyler Act, the photojournalist and newspaper could be sued for constructive invasion of privacy.
Now, you might ask, why would the newspaper be liable? That’s because the Tyler Act says:
Any person who transmits, publishes, broadcasts, sells, offers for sale, uses any visual image, sound recording, or other physical impression, or who subsequently retransmits, republishes, rebroadcasts, resells, reoffers to sell, or reuses any visual image, sound recording, or other physical impression that was taken or captured in violation of this section shall constitute a violation of this section if:
(1) The person had actual knowledge that the visual image, sound recording, or other physical impression was taken or captured in violation of this section; and
(2) The person received compensation, consideration, or remuneration, monetary or otherwise, for the rights to the unlawfully obtained visual image, sound recording, or other physical impression.
Imposing liability for publishing information obtained in violation of the Tyler Act runs into First Amendment problems. Under Supreme Court precedent, the First Amendment protects speech that publishes the contents of a communication that was illegally intercepted as long as the publisher itself did nothing illegal to obtain the communication. See Bartnicki v. Vopper, 532 U.S. 514 (2001). Even more troubling is the Tyler Act’s authorization of courts to issue injunctions against future violations of the Act. Since publication of information obtained in violation of the Tyler Act could itself violate the Act, a court could literally issue an order “halting the presses.” That’s called a prior restraint, which is regarded by courts as the most offensive of First Amendment violations.
There are other problems with the way the Tyler Act is written – like the absence of an exception to liability for actions taken in a legitimate law enforcement investigation, or the fact that the Act is not limited to actions taken in Hawai‘i (unlike the California anti-paparazzi law, whose applicability is limited to actions within California) – but I think the point is made well enough. Although the Tyler Act is well-intentioned, more thought and care needs to go into making it a clear, constitutional law that doesn’t inadvertently turn well-meaning fans, reporters, and publishers into law-breakers.
DMCA safe harbor provision applies to copyright infringement claims brought under state common law — UMG Recordings, Inc. v. Escape Media Group, Inc., 2012 WL 2847859 (N.Y. Sup. Ct. July 10, 2012)
A New York court ruled that the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA) apply to copyright infringement claims brought under state copyright law. UMG Recordings (UMG), a division of Universal Music Group, sued the owners of the online music service Grooveshark for violation of copyrights in sound recordings created before February 15, 1972. Why that specific date? We’ll find out shortly. According to UMG, Grooveshark allows its users to upload digital copies of songs through its website. Grooveshark then copies the songs to its servers, from which users of the website can retrieve and access the songs by running a search by song title or artist.
Grooveshark argued that it qualified for the “safe harbor” provision of the DMCA that protects a service provider from copyright infringement claims based on its storage of the offending materials at the direction of a user. UMG countered that the safe harbor applies only to copyrights created under and protected by the U.S. Copyright Act. The claims at issue, however, were based on New York State common law, not the federal Copyright Act. And while the Copyright Act preempts state law in certain instances, common law copyrights created before February 15, 1972 are not federally preempted until 2067.
The court doesn’t buy UMG’s argument. The court found no indication in the text of the DMCA that Congress intended to limit the applicability of the safe harbors to just recordings made after February 15, 1972. The terms “copyright owner” and “infringing” in the DMCA safe harbor provisions were no less applicable to common law copyright than to statutory copyright. Therefore, the court refused to dismiss the safe harbor defense.
Court refuses to order stop of automated process for delivering digital music tracks to music company — Appalseed Productions, Inc. v. MediaNet Digital, Inc., 2012 WL 2700383 (S.D.N.Y. July 6, 2012)
This case is a good reminder of the different types of copyright licenses it takes to run an online music service and what happens when there’s a failure to keep track of the licenses obtained for each song.
MediaNet provides content from its song catalog to third-party Internet music services like MOG and iMesh. End-users of the third-party services can access songs in different ways depending on their subscription — via full download, “limited” download (music downloaded to a device or hard drive can be played as long as the user remains a subscriber), or on-demand streaming. MediaNet works with record labels and other copyright holders to obtain the necessary licenses for each song, which vary depending on the delivery method used by the end-user. For limited downloads, a mechanical license is needed to copy and distribute the musical works embodied in the sound recordings. For songs that are streamed on-demand, a mechanical license and a performance license are needed for the musical works.
The record labels deliver digital music tracks to MediaNet through an automated process called “ingestion.” During ingestion, a record label delivers metadata about each track, including the delivery methods MediaNet is allowed to use with the track (streamed or downloaded). The record labels regularly use the ingestion process to add new digital music tracks to MediaNet’s servers or to refresh the metadata for tracks.
MediaNet allegedly distributed songs — in which the plaintiffs (including Larry Weiss of Rhinestone Cowboy fame) owned the copyrights — to third-party music services for limited downloading and streaming without obtaining the necessary licenses. The metadata indicating that the songs were not available for limited downloading or streaming apparently did not get transmitted to MediaNet during ingestion. When MediaNet learned this, it blocked access to the tracks to end-users. However, subsequent ingestions by the record labels reactivated access to the tracks. MediaNet then manually removed the songs from its catalog and adopted measures to guard against inadvertent reactivation.
Skeptical that illegal access to the tracks had stopped for good, the plaintiffs asked for a preliminary injunction to stop MediaNet from using an automated process to add content to its catalog and from distributing its catalog to customers. The court ultimately denied the injunction because the plaintiffs couldn’t show “irreparable harm,” a key requirement for an injunction. Irreparable harm refers to injury that cannot be remedied with monetary compensation. The plaintiffs basically argued that, without an injunction, they would have the burden of proving lost sales due to infringement. That was not irreparable injury in the court’s view. There was also evidence that MediaNet tracks the number of times songs are delivered via limited download and/or streaming. It also wasn’t enough to argue that the allegedly infringing conduct would likely continue without the injunction. The plaintiff’s still needed to prove irreparable harm, and they couldn’t do so. It didn’t help either that the plaintiffs waited about two and a half years after learning about the alleged infringement before seeking an injunction.
LegalTXT Lesson: The obvious legal lesson is that if you’re in the digital music business, make sure you have all the necessary licenses lined up for each song. There’s a technical lesson here too. Automated systems are only as good as their programming. MediaNet struggled with filtering the offending songs out of their catalog because of variations in the spelling and punctuation used in the track titles of the songs. MediaNet finally had to resort to a periodic manual search for the offending tracks. While that might be the most effective way of preventing infringement, it’s not all that efficient.
Here’s a fun news bite for today. CNET reports that English rock band Def Leppard couldn’t come to terms with Universal Music on how much revenue the band can get from digital downloads of its songs, so it’s recording identical “covers” of its songs. Def Leppard would own the masters of the “covers” and therefore control the financial terms of its distribution, including through digital downloads. Clever, no?
Under U.S. copyright law, a musician may cover a song and distribute the recording so long as he gets a license (called a mechanical license) and pays a standard royalty fee to the song’s publisher. The mechanical license can’t be denied. The fee is 9.1 cents per song distributed for songs under five minutes and 1.75 cents per minute or fraction thereof over five minutes. It’s not a bad price to pay for gaining control over rights to distribute a song. Whether fans will think the covers are up to snuff is another matter.