Law and Software

Background

The Pussy Riot Gangnam Style Player (PSP) was not written to breach anyone’s copyright, or to test the limits of copyright law. It was written as an example of code that might allow people to make mashups without infringing copyright. The original Punk Prayer Gangnam Style performance and Romney Shaduppayaface is here. Another example can be found here.

“Might” is the key word here. And in the spirit of Eminem in 8 Mile, we’re going to try to make the case for the copyright troll. Please feel free to use this post as a starting point for any takedown notice or other action you choose against this player with a long and ungainly name.

PSP raises one question. Can we use code to enable expression and creative imagination on the Internet out in the sunshine and not in the shadow of copyright infringement? The virtual mashup is performance art. It does not make or distribute derivative works. It takes original works and creates a collage of ideas that may have little or nothing to do with the raw materials used. And the raw materials are used, not copied. Virtual mashups allow original performances to take place locally all across the Internet, without the need to copy and redistribute the performance. Each PSP play is a unique performance with unique e-merging and communication of ideas from the performance artist to their audience.

But we still need to build our case against the Pussy Riot Gangnam Style Player. Trolls have to eat. And the case will develop. While most blog posts are moments in time, this has to be a work in progress.

The Challenge

PSP plays Youtube videos. It uses the official YouTube Javascript API to stream content from Youtube. It only downloads content to the extent that any viewer of a YouTube video downloads content. It does not keep that content, it does not modify that content. Every action performed by the viewer is legal. It conforms to the YouTube terms of service. And every single action is self-evidently legal. A user can mute a video whenever she wants. And if she wants to watch the video without sound from beginning to end, that’s fine. A user can play a video, and hide the page so all she does is hear her favorite song. And a user can do exactly what PSP is doing – download two videos, watch the screenplay of one and listen to the soundtrack of the other. But you want to takedown this work of art. How?

A Derivative Work?

If PSP actually merged two videos and created a derivative work, that would be a clear copyright infringement. Instead, the “merge” happens between the ears of the viewer/listener. And to be precise, since we have to be precise in law, the merge happens somewhere fairly deep inside the user’s brain. One video follows a path from the retina, down the optic nerve, to the three layers of visual cortex. The other (the audio) goes from the Organ of Corti, up the auditory nerve, to the Auditory Cortex, Broca’s Area and a number of other places before the merge or interaction takes place. If this merge is a physical act, then we have a precedent for thought crimes.

PSP’s lawyer (if he gets his license) is going to argue that if every action taken by PSP is legal, then you would have to show both that the writer intended to infringe copyright and that there was an actual copyright infringement – not in any single step in the chain, but in some emergent property of the sequence. Intent – the mens rea – may allow a jury to award punitive damages, but isn’t necessary for the infringement. But there has to be some act of infringement even though no part of the sequence infringes anything.

Can the whole be less legal than its constituent parts?

Lets try some examples.

I want to defame you, a private citizen. So I arrange to have two cars driven down the freeway in tandem. The first care has “John Doe is” painted on the side. The other has “A Criminal.” Driving either car down the freeway defames no-one. Driving the two together makes the message very clear. I intend the message, and everyone who sees it gets it. There is a message. I can photograph the cars and use the photograph as evidence of the message. It does not matter whether the message was written on two cars driving at 65 miles an hour, or on a single piece of paper.

I am a chemistry major and I know that if I mix three legal chemicals in the right proportions, I make an illicit drug. I can mix them in any other proportions and just make a mess. But I mix them in the correct proportions.

The PSP defense team will easily distinguish the first case. The message is the defamation. It doesn’t matter whether it is written on paper, two cars, or jet exhaust in the sky. It is a writing as long as anyone reads it and understands the message. It is not how the message is created that matters. But with PSP, only the way the performance is created matters. No-one would say that there is anything wrong in playing two videos on two computers, where one computer has the sound turned down, and the other has the brightness down. And under test conditions, no-one would be able to tell from the performance itself, whether it was done one way or the other. The performance itself infringes nothing.

And it doesn’t help to say “well, you could make the same argument for a real merged mashup, and justify that” – but no. Then you find yourself in the situation of the chemistry major. You made something that infringes.

Its not what you are doing, Its how you are doing it.

Where are we? We have a process that is legal if done manually, but we want to make it illegal to automate the process. This is not so bizarre. In a law school take-home exam, you may be expected to do all your research on the internet yourself. But if you were to use an automated tool, that would break the honor code. The governing body of a sport might want participants to reach peak performance through their own efforts, but might ban techniques that “automate” the performance improvement – performance enhancing drugs. So there are situations where “how something is done” is the measure of whether the action is “legal.”

However, you are not prosecuted for getting a high grade or running a record breaking 100 meter dash. You are banned for using a banned process. So this analysis doesn’t help. If PSP is infringing copyright, its not the act of using a published and public API that causes the infringement.

And there is a further problem. When a video is posted to YouTube, the copyright owner can choose to issue a DMCA takedown notice, and YouTube will have the video removed. Or the owner can choose to limit access to the video by disallowing embedding. And if you do either of these things, then the PSP art form cannot be done manually or through the player. You have control over whether people can do virtual mashups. You have a kill switch. And that is completely different to the paradigmatic infringement where someone makes a derivative and unauthorized work and distributes it. With a virtual mashup, the “infringement” can only happen as long as you allow it. And as soon as you choose to disallow it, then it stops.

Fair Use

But lets make another argument. It is fair use for an individual to perform the necessary steps to appreciate the Punk Prayer gangnam style, but it is not fair use when the mashup is widely distributed. Now, would it still be fair use to publish the process? “Here are the 7 steps you need to do to enjoy the Gangnam Punk Prayer” – it might be illegal to publish such a recipe if you are inciting people to break the law – but the argument is that for the individual to do it is fair use. So you are inciting them to fair use. So, maybe a recipe is ok. And a real mashup widely distributed is obviously not OK and not fair use. But PSP is just a program. Its a recipe. And it only runs on the user’s computer. The only thing that is being widely distributed is a non-infringing tool that can be used for “fair use” – it is like the Sony Betamax except that if you use it you do not make any copy – all you do is watch YouTube videos.

The PSP one-day-maybe-lawyer would then say to you: Suppose we modify the viewer so that it also has two text fields – so that the user can select her own videos to mashup. And rather than distribute it with your video ID in the HTML, we prime the other field with the ID for the other video in the pair-up, and we have a note in big letters “cut and paste here any YouTube video EXCEPT [your video ID here].” We do not agree that we are infringing anything, but we are making our best efforts to make sure people know they mustn’t type the 8 characters of your video ID into the field. Is the user infringing your copyright by typing the YouTube ID into a YouTube API Player to watch a couple of YouTube videos?

Moral Rights

The problem with all of this, is that you are obviously morally right. You are obviously morally outraged that your creative work is being used in a way you never intended, and without your permission. But we are now in an area of moral outrage, and not legal infringement. When you create a work of art, it is your creation. It is completely under your control. Then you release it to the public. And this is a risk. Your commercial rights are protected to a certain extent. People should not make derivative works without your permission. And you may place restrictions on resale of public performance. Licensing and Copyright laws protect you from that. But otherwise the public  has considerable freedom.

Your religious painting can be hung in a gallery next to a blasphemous and outrageous sculpture. The gallery wants to make a statement. That statement is an emergent property of the pairing of two works. As long as the gallery has the right to exhibit your painting, and you have not imposed some terms and conditions that restrict how it is to be used, then the creator has to suffer the outrage. Your book might be criticized. Reviewers might take fair-use snippets from different parts of the book and completely misrepresent your art. And as long as they are not defaming you, there is little you can do. Prints of your painting might be defaced with grafitti, pages might be torn out of your masterpiece, governments might even imprison your customers. The work of art has entered the public forum, and has a life of its own.

Art has intention. The artist intends to make a statement. Your work makes a statement. Your work can be placed next to another work, and make a statement that you never intended. And that’s ok. To reproduce your work, the artist will need to get your permission. But the performance artist who chooses how to present your work is no more infringing any right than the person who stacks books in the display window of a bookshop. There is a message from the display, and it is a message that may not be present in any of the individual elements of the display. It is an emergent property of the combination, the perspective, the presentation. And as long as there is no copying – as long as the performance artist does not photograph the performance, or record it in some form for posterity, there is no derivative work.

And here is the final insult, the final moral outrage. The performance artist always used to be limited. You had to attend the performance. You had to see the original. If the performance was shown on television, it would need to obtain your permission. However, we live in a distributed world, where the performance can be local and limited to every browser of everyone who wants to watch the performance. Each PSP performance is an original. And the emergent properties of the performance exist only deep in the minds of the audience. There are no emergent properties until audio and video are merged inside the mind of the viewer/listener.

Emergent Properties and the First Amendment

What are these emergent properties? They are ideas. PSP is expressing an idea by juxtaposing two works of art and saying to the listener “enjoy.” In the United States, ideas are a cherished commodity, and freedom of expression is at the core of the Constitution. Congress shall make no law (that might restrict this freedom to speak and to convey your ideas). And it doesn’t matter that you are outraged by the ideas that come from the presentation of your work alongside someone else’s.

If you don’t want people to express themselves through your work, then you control their access to the work on YouTube. The lawyers you need to talk to work for Google.