Today is a great day for the Open Internet. The FCC voted to create strong net neutrality rules grounded in robust legal authority. That vote, and those rules, are the culmination of over a decade of hard work and an especially vigorous year by a large and diverse coalition demanding robust Open Internet protections. We’re still waiting for the details, but as of now there is every reason to view this vote as a watershed moment in the history of net neutrality. At a time like this, it is important to take a moment and appreciate the magnitude of this accomplishment.

That being said, we have already started to get questions about what happens next. The rules voted on today will define the debate around an Open Internet for the foreseeable future and establish a strong precedent in favor of robust net neutrality protections going forward. However, for better or worse, they do not bring that debate to an end. While it is unclear exactly what the next step will be, this post is an attempt to briefly outline the possibilities.

But first, a quick reminder: Public Knowledge and many of our net neutrality allies will be hosting a Reddit AMA tomorrow at 2:30. Join us if you have questions.

The Courts

One set of possible next steps take place in the courts. At least one ISP has already outlined its case against the rules, and it may not be alone in planning to challenge the rules in court. That challenge can take at least two forms.

Immediate Challenge

The first is called a facial challenge, and could occur immediately after the rules are formally in place (we won’t know exactly when this is until the order is released). This is the type of challenge that Verizon successfully brought against the 2010 Open Internet rules. It is a challenge to the rules as they are written – how they appear on their face. The challenge would likely focus on the nature and scope of the rules, as well as the process the FCC used to write the rules. It could be brought by one or more ISPs.

This type of challenge would begin with one or more ISP(s) petitioning the FCC to stay (or temporarily suspend) the new net neutrality rules pending a review (formed as a Petition for Reconsideration). Assuming the FCC did not immediately act on that petition, the ISP(s) would then move onto the DC Circuit, most likely combining a request for a stay with their challenge to the rules. The DC Circuit would likely decide whether or not to grant the stay fairly quickly, but the larger fight about the rules themselves would take months. Importantly, the decision about the stay is unlikely to provide very much insight into how the court will decide the challenge to the rules themselves. However, granting a stay will mean that the rules do not go into effect until the DC Circuit has resolved the larger challenge.

Future Challenge

The second type of challenge is an as-applied challenge. Instead of immediately challenging the rules as they are written, an as-applied challenge challenges the rules as they are applied in a specific circumstance. As such, no ISP will be able to bring an as-applied challenge immediately. Instead, we will have to wait until the FCC actually punishes someone for violating the Open Internet rules. At that point, the punished ISP could challenge the rules as they were applied in that circumstance. Notably, even if the FCC wins a facial challenge to the Open Internet rules, ISPs will still be able to bring as-applied challenges in the future.

Congress

The other possible next steps take place in Congress. Next steps in the courts and in Congress are not mutually exclusive, and we will fight back against them in different ways. Similarly, each of these possible actions in Congress is potentially independent from the other.

Congressional Review Act

The first possible action is that Congress moves to overturn the FCC’s rules through a procedure outlined in the Congressional Review Act (CRA). Once the FCC’s rules are formally published, Congress has 60 days to pass a “Resolution of Disapproval” and either have President Obama sign the resolution or collect enough votes in support to override a veto. If it passed, the resolution would overturn the Open Internet rules. Further, it would prevent the FCC from any further Open Internet rulemaking until Congress itself acted. In other words, a successful CRA process would both overturn the existing rules and prevent the FCC from creating new ones. Congress attempted this after the 2010 rules but public outcry prevented them from succeeding.

Specific Legislation

The second possible action is a continuation of the process initiated by Senator Thune to pass net neutrality-specific legislation. While Public Knowledge has raised concerns about Sen. Thune’s initial draft, we welcome his commitment to work with all stakeholders to consider revisions to the legislation in the future. There is room for Congress to act in this area, and we look forward to helping craft strong legislation that really protects the Open Internet.

Appropriations Riders

The third possible action is that Congress attempts to limit the FCC’s ability to enforce the rules through appropriations riders. As part of appropriating the FCC’s budget, these riders would prohibit the FCC from spending any money to enforce the Open Internet rules. Needless to say, such a limitation would significantly limit the rules’ effectiveness. These types of limitations would be included in the FCC’s larger budget and would have to pass through Congress and be approved by the President.

Communications Act Rewrite

The fourth possible action is that net neutrality gets wrapped up in a larger rewrite of the Communications Act. In the medium and long term, this is actually likely to happen. Congress has been seriously discussing updating the Communications Act since 2013, and any update would almost inevitably include rules that impact an Open Internet. While Open Internet rules may be a comparatively small part of this larger process (dwarfed by, among other things, working out rules related to the tech transition), decisions made during a rewrite would have a significant impact on the Open Internet.

All, Some, or None

Right now it is hard to know which, if any, of these will come to fruition. We here at Public Knowledge are keeping our eye on all of them. So celebrate the win and savor the victory. But keep an eye out for another alarm from us, because we’re not quite done yet.

After an unprecedented outpouring of public support, today the FCC voted to enact the strongest net neutrality rules in history.  By embracing its Title II authority and creating clear, bright line rules against blocking and discrimination, Chairman Wheeler and the FCC have earned a reputation as defenders of an Open Internet.

This day would not have happened without the support of the millions of Americans who commented with the FCC, called Congress, and wrote to the White House.  This bipartisan wave of Open Internet supporters from across the country came together to make it clear to their government that it had a crucial role in protecting an Open Internet.

After months and years of hard work and advocacy, today is a day to celebrate and savor.  Public Knowledge will provide more a detailed analysis of the rules and the order soon, but for now take a moment to reflect upon and enjoy the win.

As everyone knows, the best way to enjoy a win is with a party.  If you are in DC tonight, please join us at the Victory for the Net party, co-hosted with our allies at Free Press, ColorOfChange.org, Common Cause, CREDO Action, Daily Kos, Demand Progress, the Electronic Frontier Foundation, Fight for the Future, the Internet Archive, the Media Action Grassroots Network, the National Hispanic Media Coalition, the Open Technology Institute, and the Progressive Change Campaign Committee.

When: 6:30-9:30 p.m.

Where: Lost Society, 200114th St. NW (Green & Yellow @ U Street)

RSVP HERE

And if you are in San Francisco, please come to the west coast Victory for the Net party:

When: 6:00-9:00 p.m.

Where: The Internet Archive, 300 Funston Ave., San Francisco

RSVP HERE

Finally, if you have questions about what all of this means, come by our Reddit AMA tomorrow at 2:30pm where PK and many other net neutrality advocates will be on hand to answer questions and explain what is happening next.

Yesterday news broke that Katy Perry* (among other things, the intended star of the 2015 Super Bowl Halftime Show) demanded that the 3D printing website Shapeways stop selling a model of Left Shark (perhaps the actual star of the Super Bowl Halftime Show). The letter to Shapeways came on fancy letterhead and was full of scary words, but is it backed up by any law?

Quick Background (Costumes and Copyright)

In order to start to answer that question, there are two things that are worth keeping in mind. First, although the letter first broadly references a generic “intellectual property depicted or embodied in connection with the shark images and costumes,” later on it references a specific section of copyright law. In light of that, let’s assume that Katy Perry (and although the letter comes from Katy Perry’s lawyers, they are her representatives so I’m just going to refer to them collectively as Katy Perry because it is more fun) is claiming to have a copyright in the shark costume.

The problem with this is that courts have generally found that copyright does not protect costumes (even fairly creative ones). Essentially, courts have lumped costumes in with other kinds of clothing and considered them all the kind of “useful article” that is beyond the scope of copyright protection. If you are curious, that use in this articles is things like “preventing you from being naked” and “keeping you warm.”

There are some legal theories that could be put forward to try and get copyright protection for a specific costume, but they mostly come into play when there are elements of a costume that could exist independently of the costume or when the costume is tied to a character developed in a book, movie, or play. It would probably be a stretch to put Left Shark into either of these categories.

An addition note is that even if the Left Shark costume is protected by copyright, that doesn’t automatically make Katy Perry the owner of that copyright. But let’s set that aside for now.

Quick Background (DMCA)

The second thing to keep in mind (and I promise I’ll bring all of this home) has to do with the Digital Millennium Copyright Act, or the DMCA for short. There are a number of parts of the DMCA (click here to learn about the part that might prevent you from using your own filament in a 3D printer, ripping your own DVD, or accessing data from medical devices implanted in your chest), but one of them protects websites that host content for people – websites like Shapeways, YouTube, and Facebook – from copyright liability.

Websites get this protection as long as they comply with a specific set of requirements, and are under no obligation to take down infringing content as long as they are in compliance. One of these requirements is to takedown copyrighted content if they get a request from the copyright holder – this request is sometimes called a DMCA takedown request. However, that request includes a requirement that the person sending it affirm under penalty of perjury that they are the owner of the copyright (or their designated agent).

Background Over – Let’s Get On With It

With those two things in mind, let’s look at Katy Perry’s letter. The most important thing about the letter is probably what it is not – the letter is not a real DMCA takedown notice. For one thing, it is missing a link to the actual allegedly infringing work. Perhaps more importantly, it is missing a statement – remember this statement has to be made under penalty of perjury – that the person sending the notice actually owns a copyright in the work being discussed.

Instead, the letter is presented as a “cease and desist” letter, a kind of letter sometimes described by lawyers as a “nastygram.” In some – although not all – cases nastygrams are designed to intimidate the recipient into compliance (often through the use of fancy letterhead and scary language) even if the sender does not actually have the legal power to back up the threats.

It is hard to tell if this letter falls into that category, but there are some interesting clues. First, there is the question of the costume copyrightability at all. It is not clear that anyone owns a copyright in Left Shark. And if no one owns a copyright in Left Shark, no one can demand that a Left Shark model get taken down from Shapeways. Second, there is the question of who would own the copyright in Left Shark if it were to exist. It is certainly possible that Katy Perry was farsighed enough to demand ownership of the copyrights of every costume in the halftime show, but it isn’t automatic.

And third is the choice of a nastygram over a real DMCA takedown notice. Katy Perry has fancy lawyers. They know that a website like Shapeways is immune from copyright liability unless they receive a properly formatted DMCA notice. But they also know that a property formatted DMCA notice would require an oath that Katy Perry actually owned an existent copyright in Left Shark. If they were worried about the truth of either of those things, they might have hoped that a nastygram would give them the outcome they were looking for without exposing them to perjury liability.

Or maybe they just prefer sending nastygrams to DMCA notices. Hopefully Katy Perry will explain what part of Left Shark she owns so we can clear all of this up. Until then, color me a skeptic.

*I admit that I’m not familiar enough with the Katy Perry catalog to artfully weave Katy Perry puns and references into this blog post. You are well within your rights as a reader to expect them, and I’m sorry to disappoint you.

Left Shark image from thingiverse user mstyle183.

This post originally ran on the Make blog under the headline Why Katy Perry’s Lawyers Just Jumped the Shark.  That’s a perfectly good headline.  In fact, many people (and at least one person very close to me) think that headline is better than the one here.  And they may be right.  But this is my blog and I’m sticking with “fishy,” obnoxious scare quotes and all.

Late last year we highlighted the fantastic work that the Cooper Hewitt Museum is doing to set an example for how museums and other cultural institutions can make high quality 3D scans available to the public. Unfortunately, just as long summer days must turn to cold winter nights, we now have an example of a different cultural institution doing a fantastic job of setting an example of how not to handle the same types of issues.

Scene: Sioux Falls, South Dakota

Sioux Falls is home to a high quality cast of Michelangelo’s Moses, one of his best-known sculptures.* The cast itself co-owned by the City of Sioux Falls and Augustana College and is on public display on the campus of Augustana College.

Local photographer Jerry Fisher decided to use the sculpture as his subject while he honed his 3D capture skills, documenting his progress on Twitter and Google +. Unfortunately, this completely reasonable and legal act caught the attention of representatives of Augustana College. Citing an unspecified (and ultimately nonexistent) mixture of copyright and other intellectual property rights concerns, the College asked Fisher to remove his 3D files from the internet. Fearing some sort of liability, Fisher complied with this groundless request, thus depriving himself and everyone else of the opportunity to use the files.

Augustana College’s Request Was Out of Line - The Public Domain is Real

Let’s get one thing out of the way right now: Augustana College had no legal right or basis to threaten Fisher with the specter of infringement. There is no copyright protection for a sculpture that was created at the dawn of the 16^th century by a sculptor who died 450 years ago. All of Michelangelo’s work is firmly in the public domain. If fact, copyright didn’t even exist during Michelangelo’s lifetime. From the moment he sculpted his Moses anyone could copy, remix, and build upon it for any reason, without having to ask permission.

Of course, the sculpture in Sioux Falls is not Michelangelo’s original sculpture. The original Moses is still in Italy. The Sioux Falls sculptures are exact replicas made in the early 1970s - exact replicas, it seems appropriate to mention, that were made without permission of Michelangelo’s estate because the originals are not protected by copyright. There was no copyright on the original sculpture, and there is no copyright in the exact copies of the original sculpture.

If Fisher were practicing his 3D scanning on original sculptures made in the early 1970s, the sculptures would likely still be protected by copyright. Fortunately for Fisher and everyone else, the sculpture in question is not an original sculpture – it is a copy. Just as scanning a 16^th century map doesn’t give me a new copyright in the scan file, casting a copy of a 16^th century sculpture doesn’t give me a new copyright in the cast.

The Norman B. Leventhal Map Center at Boston Public Library scanned this 16th century map, but doing so did not give the library a new copyright in their scan

Without a copyright in the original sculpture or the reproduction, there is simply no copyright reason that Fisher shouldn’t be able to make as many scans as he likes. It is irresponsible, and undermines Augustana’s mission to “enrich[] lives by exposure to enduring forms of aesthetic and creative expressions,” for Augustana to suggest otherwise.

3D Scanning is Not Magic

On some level, the college recognizes that they do not have the right to restrict copies of their Moses cast. People take photographs of the sculptures all the time, but the college does not assert an imaginary copyright interest and request that those pictures be destroyed. But somehow, a 3D scan – just as much a copy from a copyright standpoint as a photo - raised novel and inarticulable concerns with College officials. Fortunately for everyone who is not Augustana College, 3D scanning is not magic and does not give Augustana College or anyone else the right to steal works out of the public domain.

How Did This Happen?

In all likelihood, Augustana College was not acting maliciously when they told Fisher to take down the files, and did not realize that they were doing anything wrong. This case has all of the hallmarks of a type of lawyer-itus (or quasi-lawyer-itus), that tends to manifest itself around copyright. Representatives for the College had a vague concern that the scanning might possibly infringe on someone’s copyright or trademark or something, and that somehow the College could be implicated.

When faced with that vague concern, the College essentially had two choices. One was to do some research in order to find out if their concern was actually warranted. The second, and this is the path it appears they took, was to just say no, throw out scary words like “copyright,” shut the project down, and hope that the problem went away.

The second choice is the lazy choice and is almost always easier. It takes almost no time and effort. But it also takes away the public’s right to access public domain works (the same right, it should be noted, that allowed the casts to be made in the first place).

This type of choice between reacting and thinking is one that leaders at cultural institutions all over the country will be facing in the coming years when they start getting questions about 3D scanning. There is always the temptation to say “no” and get on with your day. But the better response is to take the time to really understand the issue and work to keep the sculptures, buildings, and objects that are in the public domain out of a fake copyright fog. Copyright protection lasts long enough – a combination of fear and laziness should not be allowed to pull works out of the public domain.

Bonus: Today’s Copyright Laws Are Designed To Make Lawyers Overly Cautious

Many lawyers are cautious by nature, but there are elements of copyright law that give them an extra incentive to be even more cautious than usual. Specifically, a quirk of copyright law can make monetary damages balloon unusually quickly in infringement cases.

In order to get money in most civil cases you need to show your damages. Get hit by a car? Show the court your medical bills and lost wages. Painter paint your wall hot pink instead of staid beige? Show the court how much it cost you to get the work redone.

Copyright law is different when it comes to damages. A copyright holder can sue for actual damages, just like the person hit by a car or with a bad paint job. But they also have the option to sue for what are called “statutory damages.” Instead of pointing to the actual cost of infringement (that illegal download of a song deprived the artist of $0.99), a copyright holder can just point to an amount that is written into the text of the law to serve as the value of the damages. That amount can be in the six figures for a single infringement (that’s how infringing 24 songs can result in a $1.5 million damages award).

Among other things, the threat of these statutory damages makes lawyers super cautious around potential copyright infringement claims. Even if he was infringing, the actual cost of Fisher making unauthorized copies of the sculpture would likely be no more than a few hundred dollars (if that). Faced with that kind of liability, a lawyer may decide to take a bit of a risk and err on the side of public access. But in the face of hundreds of thousands of dollars worth of liability, a lawyer has to be pretty sure before saying “yes,” even if they start from the assumption that the work is in the public domain. And getting that sure can take a lot of time.

Fortunately, there may be an opportunity to change this. Congress is taking a serious look at updating copyright laws during 2015, and we will be working hard to get statutory damages reduced or eliminated. That will make it easier for people to access works that are in the public domain by significantly reducing the cost of errors. Keep your eyes open for more discussion of this in the coming months.

* It is actually home to casts of two sculptures: Moses and David. While this post focuses on Moses, you can rest assured that the analysis also applies to David.

Statue image credit: Jerry Fisher

Last week, we wrote about Augustana College (SD)’s demand that 3D scans of its copy of Michelangelo’s Moses be taken down from the internet. To justify this request, Augustana cited vague (and, it should be noted, nonexistent) copyright concerns. As a result of its ridiculous assertion of a copyright interest in a copy of a 500-year-old sculpture, Augustana deprived the public of 3D scans of this public domain work.

Yesterday, Augustana responded to this controversy in a comment to Slate. Instead of apologizing for attempting to claw Michelangelo’s Moses out of the public domain with threats of copyright infringement, Augustana doubled down on the falsehood that scanning the replica somehow required permission:

Mr. Fisher did not seek the permission of Augustana College nor the City of Sioux Falls prior to pursuing the 3D reconstruction technology or before offering [the 3-D model] to others. … In October 2014, we reached out to Mr. Fisher to express our concern over his actions in light of the fact that he did not seek permission from the College, the City of Sioux Falls or the families of the artist and/or the Fawicks [the family who donated the statue]. At this point, Mr. Fisher made the decision to un-publish the 3D image file.

Let’s be clear again: Mr. Fisher (the person who did the scanning of this public domain sculpture displayed in an outdoor, public area of the college) was and is under no obligation to seek permission from Augustana College, the City of Sioux Falls, the Fawicks, or anyone else before making the scans. The original sculpture is 500 years old. The replica that Augustana owns is not protected by any additional copyright.

Mr. Fisher did not ask for permission before scanning the sculpture for the same reason I did not ask for permission before writing this blog post: the permission of Augustana College, the City of Sioux Falls, and the Fawicks is irrelevant to the endeavor. If I asked and they said yes, I would write this blog post. If I asked and they said no, I would write this blog post. Their opinion about it does not matter. Augustana College, the City of Sioux Falls, and the Fawicks have no ability to use a baseless threat of copyright infringement to control what people do and do not do with Michelangelo’s Moses – even their copy of Michelangelo’s Moses.

When confronted with their copyfraud, the correct thing for Augustana to do would have been to apologize and invite Mr. Fisher to repost his scans. Instead, Augustana decided to suggest that anyone scanning their copy of Michelangelo’s Moses first needs to get permission from Augustana, the City of Sioux Falls, and the Fawicks. That claim is wrong. It is also an embarrassment for Augustana College and, by extension Sioux Falls and the Fawicks.

Image of statue and image of scan courtesy of Jerry Fisher