My friend and colleague Renata Avila has asked an interesting question on Twitter: “If the NSA is storing, reproducing – copying my data and works, are they violating Copyright Law?” I do not think that it has been asked before, so I am trying to tackle it today. This is actually a rather complex question for various reasons. Firstly, while we are learning quite a lot of details regarding the type of surveillance that the NSA conducts, we do not seem to have enough detail to determine whether there may be some form of copyright infringement. Secondly, we might be faced with some jurisdictional issues, as the NSA may be conducting copying of data that affects citizens of other jurisdictions, so the analysis may change from one country to the other. I’ll try to tackle these issues one by one.
What the NSA doing?
To try to determine whether the NSA is infringing copyright, we have to find out exactly what they are doing. This is the trickiest part of the analysis because, although we are getting a reasonably good idea of the type of surveillance conducted, we do not have too many details of the specific technical methods, or whether the processing of data is temporary or permanent. The main programs are:
- PRISM: Collects data from specific targets from intermediary services, such as Google, Yahoo and Microsoft.
- Upstream: Series of programmes that tap into cable networks and intercept and copy data directly.
- TEMPORA: This is a programme conducted by the GCHQ in the UK, which taps into fibre-optic cables to record large amounts of data from Internet users.
- Phone interception: The NSA is gathering large amounts of phone-call metadata.
- TAO: The Tailored Access Operations unit provides targeted hacking tools that can be used to tap into every communication conducted by their target.
It seems clear that some of the programmes are involved in some sort of copying and processing of user’s content, but we do not have many technical details about how this is undertaken. Just by looking at the leaked documents so far, it is possible to categorically state that copying is taking place on a large scale. So, does this processing amount to infringement?
I am not a US copyright lawyer, so I will be interested to hear from US lawyers about the accuracy of my findings. As far as I can tell, there is no specific copyright exception for use of copyright works by government or a government agency. This 1999 memorandum from the US Department of Justice hints that many government uses will be deemed fair use. As fair use is an open-ended doctrine, it would be interesting to determine whether any copying conducted by the NSA would be analysed using the 4 elements, namely:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
To my mind, n0.4 will probably have more of an effect on a court looking at any use by the NSA.
Moreover, the fact that most of the surveillance is conducted under the approval of a court of law as set out by the Foreign Intelligence Surveillance Act of 1978 serves to indicate that, even if the copying is not found to be covered by fair use, it will probably be deemed lawful regardless. For example, §1861 of FISA gives large powers to a court to permit actions against businesses, and §1885 and following provide a wide-ranging series of immunities to individuals and organisations conducting work on behalf of the intelligence mechanism.
In the US it seems like, while there may be copyright infringement, it is highly unlikely that it would be prosecuted successfully.
It may be ironic that while the NSA appears to be well-protected under US copyright law, it might be less protected abroad. While it is my argument that their actions could fall under fair use, the fact that there is no such thing in most other jurisdictions could open the door for the intelligence apparatus brought to court for copyright infringement, although I do not thing this is feasible for reasons that I will explain.
Take the UK for example. The documents leaked by Snowden tell us unequivocally that the GCHQ is involved in the interception and copying of a work. There is no fair dealing right that would cover such a specific use, although depending on the nature of the copying, s28A of the CDPA might apply. This says that a work is not infringed “by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process” with the purpose of enabling transmission, is a lawful use of the work, and which has no independent economic significance. Therefore, if the copying was temporary and was considered lawful, then it is possible that it would not be infringing.
However, most of the UK’s GCHQ surveillance is performed by virtue of the Regulation of Investigatory Powers Act 2000 (RIPA). This piece of legislation gives UK government intelligence agencies permission to intercept communications by applying for a warrant. Once this has been issued, it is quite possible that no court would consider a case of copyright infringement against the security services.
But imagine that you are a UK resident and you are able to find that the NSA has been involved in copyright infringement of your works. Then RIPA would not apply as the NSA is not allowed to request an interception warrant, and so they could be sued in front of a local court. The same may apply to most other countries, as even if local copyright law allows for some sort of national security exception to copyright, that limitation would almost certainly not cover acts by foreign governments.
While I believe that in theory it might be possible to bring suit for copyright infringement against the NSA in jurisdictions around the world, it is very unlikely that such a thing would ever be undertaken. The main problem is that it would be almost impossible to find out if the copying has been performed in the first place, as I cannot see any circumstance in which a US court would issue a discovery order to find out if a violation has taken place. Furthermore, most copyright remedies rest on damages, and it would be very difficult, if not impossible, to prove that some sort of quantifiable damage has been suffered as a result of copying resulting from surveillance.
The question is interesting, but I think that citizens of the world may find better legal avenues for redress, mostly through privacy, data protection or human rights legislation.
Nonetheless, I find the prospect of finding the US government guilty of large-scale copyright infringement quite appealing in an aesthetic kind of way.