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About this Author
Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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July 13, 2005

PBS's Web-Only Nerd TV to Launch in September Under Creative Commons License

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Posted by Ernest Miller

Lost Remote, among many others, reports that PBS will be making one its shows available solely on the internet under a Creative Commons license (PBS Launches 'a Whole New Kind of Television'). The show, to be hosted by Robert X. Cringely, will be called Nerd TV (Pioneering Another Technology First, PBS Launches NerdTV, the First Downloadable Web-Exclusive Series From a Major Broadcaster).

This is very good news. If PBS doesn't make an RSS broadcatch available, it is likely that someone else will, hopefully, breaking the show down into individual segments.

This is still niche content for an undeveloped market, however, so I doubt the audience will be particularly large. When will we see the hardware that will make subscribing to these sorts of shows easy for the average consumer?

Comments (0) + TrackBacks (0) | Category: Broadcatching/Podcasting | Copyright | Creative Commons

July 11, 2005

July 07, 2005

Prediction: No Lawsuit Against Slingbox

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Posted by Ernest Miller

Yesterday, the Hollywood Reporter published an article warning that the Slingbox from Sling Media (which allows you to stream video from their DVR to a computer outside the home) risks a secondary liability copyright lawsuit, just days after the decision in Grokster (Slingbox Could Spark New Lawsuits). The EFF's Fred von Lohmann also sees this as a possibility (First Post-Grokster Cold Front?). He points to the following quotes in the Hollywood Reporter article:

  • "We're hopeful Slingbox will incorporate technology that will respect copyright," said Dean Garfield, vp and director of legal affairs at MPAA. "You don't have the authority to retransmit license work without negotiation or authorization."
  • "Slingbox is one manifestation of what we assume will be a cascade of similar products that are meant to manipulate our signals in ways that we think will be harmful to the network-affiliate business, if not the law," CBS executive vp Martin Franks said.
  • "Even if you take it at face value that it is a one-to-one transmittal device, I don't think it will be very long before some hacker in Cupertino posts on the Web the way to modify it, the way they modify a TiVo, that turns it into something that can be tapped by 50 people," Franks said.
All well and good, but my prediction? No lawsuit against the Slingbox, unless it turns out to be far easier to hack it then I imagine (not that it won't be unhackable, but that it will be easily and readily hacked).

Sure, Hollywood could bring a lawsuit, but the device is simply too expensive, too difficult to use and unlikely to be any sort of threat to their revenue models despite any worries they may tell the press. Furthermore, Hollywood would very likely lose. I'm unaware of any evidence that would lead me to believe an inducement charge would be successful, even to a minimal extent. Winning a contributory lawsuit under the Sony standard would be iffy, at best.

It would also be unwise politically. Hollywood wants to control technology, but they don't want to look like they want to control technology. A lawsuit against a fairly innocuous consumer technology isn't going to look good, particularly on Capital Hill.

Does Grokster threaten innovation? Yes, but then, the Slingbox isn't all that innovative.

Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing

Senior Fellow for Progress and Freedom Foundation Defends Comparison of Alternative Compensation Schemes to Slave Labor Prison Camps

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Posted by Ernest Miller

Yesterday, James DeLong, a senior fellow for the Progress and Freedom Foundation, wrote that "'collective licensing or a media levy' is a euphemism for turning creativity into a socialist gulag" (More Soothsaying). I characterized that statement as "grotesque hyperbole" (Senior Fellow for Progress and Freedom Foundation Compares Alternative Compensation Schemes to Forced Labor Prison Camps). Today, he defends his statement (In Defense of "Grotesque Hyperbole").

I beg to differ. A tad hyperbolic, perhaps, but not grotesquely removed from the inevitable reality.
I beg to differ. James' statement was so ridiculously over the top that, originally, I didn't think it needed any commentary, "I could say more, but James' grotesque hyperbole says enough." Apparently I was wrong.

What part of slave labor prison camp doesn't James DeLong understand? Let me turn to a recent discussion in the Washington Post of gulags by Pavel Litvinov, who was a dissident active in human rights causes in the Soviet Union and now lives in the United States (No American 'Gulag'):

The word "gulag" was a bureaucratic acronym for the main prison administration in Stalin's Soviet Union. After publication of Alexander Solzhenitsyn's "The Gulag Archipelago," it became a symbol for the system of forced-labor camps that have been an integral feature of communist countries. Millions of prisoners confined in the gulag had not been involved in violence or committed any crime -- they were there because they belonged to a "wrong" social, national or political group or expressed a "wrong" opinion. ...

There is ample reason for Amnesty to be critical of certain U.S. actions. But by using hyperbole and muddling the difference between repressive regimes and the imperfections of democracy, Amnesty's spokesmen put its authority at risk. U.S. human rights violations seem almost trifling in comparison with those committed by Cuba, South Korea, Pakistan or Saudi Arabia....

Words are important. When Amnesty spokesmen use the word "gulag" to describe U.S. human rights violations, they allow the Bush administration to dismiss justified criticism and undermine Amnesty's credibility.

At least Amnesty is referring to actual prisons, as opposed to what James DeLong considers poor public policy choices.

Returning to James' defense:

I would apply the epithet [gulag] to any system in which creators and doers must beg government functionaries for permission to exercise control of themselves, their creations, or their property, and this permission can be granted or denied whimsically, according to the functionaries' views of "the public good."
Well, gee, that pretty much characterizes most of the United States today as a slave labor prison camp in certain circumstances. Kelo, anyone? Perhaps this quote from Lewis Carroll will illustrate the difficulty with DeLong's definition here:
'When I use a word,' Humpty Dumpty said, in a rather scornful tone,' it means just what I choose it to mean, neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master - that's all.'

Litvinov is correct when he says that words are important. DeLong not only unfairly characterizes alternative compensation schemes, but trivializes the suffering of those caught up in the actual gulag.

Back to James DeLong:

Anyone who thinks this system [Fisher's alternative compensation system] will be clear of the corruptions of money, political connections, and political correctness is not living in the real world. Furthermore, anyone who thinks that such a system, even if totally pure, could effective allocate resources and produce results superior to a market needs to read about the history and economics of the 20th Century.
It's a seriously flawed policy concept. I've raised numerous objections myself:Those are most of my posts on the issue, not counting my criticisms of some of the voluntary compensation schemes that have been put forth. I yield to no one in my opposition to a compulsory licensing scheme.

But if a compulsory licensing scheme were legislated into being, I don't think that would qualify as a slave labor prison camp.

Not every reduction in freedom, even a significant one, is the same thing as a move into the horrors of the gulag archipelago.

James DeLong ends with a Kantian quote:

A classic philosophical statement says that "to will the end, you must will the means." In this case, a variation applies: If you will the means, you will the end.
Let me respond with a classic internet statement that "As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1." In this case, a variation applies: as a discussion of copyright grows longer, the probability of a comparison involving communists or Soviet gulags approaches 1.

UPDATE 1150PT

Derek Slater has some good thoughts on this issue as well (The Real Fear Mongerers).

Comments (2) + TrackBacks (0) | Category: Copyright | File Sharing

July 06, 2005

Samuelson on Grokster

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Posted by Ernest Miller

Pam Samuelson weighs in on the Grokster decision in the forthcoming (Oct 2005) Communications of the Association for Computing Machinery.

Read the 7-page paper: Legally Speaking: Did MGM Really Win the Grokster Case? [PDF].

Her answer as to whether MGM actually won Grokster? Not really:

MGM didn’t really want to win Grokster on an active inducement theory. It has been so wary of this theory that it didn’t actively pursue the theory in the lower courts. What MGM really wanted in Grokster was for the Supreme Court to overturn or radically reinterpret the Sony decision and eliminate the safe harbor for technologies capable of SNIUs. MGM thought that the Supreme Court would be so shocked by the exceptionally large volume of unauthorized up- and downloading of copyrighted sound recordings and movies with the aid of p2p technologies, and so outraged by Grokster’s advertising revenues—which rise as the volume of infringing uses goes up—that it would abandon the Sony safe harbor in favor of one of the much stricter rules MGM proposed to the Court. These stricter rules would have given MGM and other copyright industry groups much greater leverage in challenging disruptive technologies, such as p2p software. Viewed in this light, MGM actually lost the case for which it was fighting. The copyright industry’s legal toolkit to challenge developers of p2p file-sharing technologies is only marginally greater now than before the Supreme Court decided the case.
Yup.

Read the whole thing. You'll find that her conclusions are very similar to my conclusions in Kicking the Sony Can Down the Road.

via Constitutional Code

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

Senior Fellow for Progress and Freedom Foundation Compares Alternative Compensation Schemes to Forced Labor Prison Camps

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Posted by Ernest Miller

Derek Slater justly smacks James DeLong, a senior fellow for the Progress and Freedom Foundation, for saying that "'collective licensing or a media levy' is a euphemism for turning creativity into a socialist gulag" ("'Collective Licensing or Media Levy' Is a Euphemism For Turning Creativity Into A Socialist Gulag"). James' original post here: More Soothsaying.

I could say more, but James' grotesque hyperbole says enough.

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

July 05, 2005

Meta Grokster Roundup

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Posted by Ernest Miller

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

July 04, 2005

July 4 Grokster Roundup

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Posted by Ernest Miller

The debate about the meaning and impact of the Grokster continues.

C.E. Petit of Scrivener's Error has collected his thoughts now that the decision is a few days old (Grokster Conclusion: Everything Old Is New Again). He focuses on illuminating the issues through the "copyright clause" of the US Constitution.

"Unjust enrichment"? Where did that sneak in? It's not anywhere in any of the opinions! So why are we considering first-year contract law? Well, the most rigorous answer is "we're not: we're considering the relationship of potential remedy to liability, and that relationship is behind virtually all of the common law." For, in the end, that is what the evidence in Grokster points toward: Use of copyright law to prevent unjust enrichment achieved through violation of an exclusive right. Absent the economic factor, it's a lot harder (not impossible, merely harder) to say that mere technology violates a conception of copyright that reads the Intellectual Property Clause as a whole. [emphasis in original]
Ron Coleman makes an interesting connection to some of Clay Shirky's writings (Marginal Thoughts).
Shirkey argues, compellingly, that a simpleminded application of the microeconomic model of marginal value to evaluating marginal content sales of the Internet doesn't, and can't, work. Now note that this has no effect on how the Grokster case should have come out, because he is really talking here about supply and demand and prospective IP regimes -- not about the application of the copyright laws based on the statutory language, stare decisis and that other dusty old stuff.
The Shirky piece he links to is Fame vs Fortune: Micropayments and Free Content.
The answer is simple: creators are not publishers, and putting the power to publish directly into their hands does not make them publishers. It makes them artists with printing presses. This matters because creative people crave attention in a way publishers do not. Prior to the internet, this didn't make much difference. The expense of publishing and distributing printed material is too great for it to be given away freely and in unlimited quantities -- even vanity press books come with a price tag. Now, however, a single individual can serve an audience in the hundreds of thousands, as a hobby, with nary a publisher in sight.
Gary Becker explains some of the difficulties in having judges decide on technology's future potential (Grokster and the Scope of Judicial Power).
But several things concern me about the issues raised by this and related court decisions. I basically do not trust the ability of judges, even those with the best of intentions and competence, to decide the economic future of an industry. Do we really want the courts determining when the fraction of the total value due to legal sales is high enough to exonerate manufacturers from contributory infringement? Neither the wisest courts nor wisest economists have enough knowledge to make that decision in a way that is likely to produce more benefits than harm. Does the fraction of legitimate value have to be higher than 50 per cent, 75 per cent, 10 per cent, or some other number? Courts should consider past trends in these percentages because new uses for say a software-legal or illegal- inevitably emerge over time as users become more familiar with its potential. Must courts have to speculate about future uses of software or other products, speculation likely to be dominated by dreams and hopes rather than firm knowledge?
Read the whole thing.

Richard Posner, who wrote the In Re Aimster decision, pushes his conception of how to decide these cases (Grokster, File Sharing, and Contributory Infringement).

There is a possible middle way that should be considered, and that is to provide a safe harbor to potential contributory infringers who take all reasonable (cost-justified) measures to prevent the use of their product or service by infringers. The measures might be joint with the copyright owners. For example, copyright owners who wanted to be able to sue for contributory infringement might be required, as a condition of being permitted to sue, to place a nonremovable electronic tag on their CDs that a computer would read, identifying the CD or a file downloaded from it as containing copyrighted material. Software producers would be excused from liability for contributory infringement if they designed their software to prevent the copying of a tagged file. This seems a preferable approach to using the judicial system to make a case by case assessment of whether to impose liability for contributory infringement on Grokster-like enterprises.
This is much easier said than done.

The New York Times writes about the fact that P2P will continue to be around after the decision (The Imps of File Sharing May Lose in Court, but They Are Winning in the Marketplace). Nothing particularly new here.

UPDATE 1335PT

This post from Marginal Revolution is from June 27th, but definitely something I should have linked to earlier (Why Economists Should Feel Conflicted About the Grokster Ruling).

The bottom line: The welfare economics of music do not resemble those of bread or buttons. Right now we do not even know whether music is being oversupplied or undersupplied, relative to an optimum. Beware of any analysis of this case which does not consider these deeper underlying issues.
Read the whole thing.

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July 03, 2005

July 02, 2005

Thanks, JD

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Posted by Ernest Miller

I just wanted to thank JD Lasica for dropping by this week (good timing!) as part of his Blogger Book Tour for Darknet: Hollywood's War Against the Digital Generation. A quick guide to his posts:

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing | News

July 01, 2005

Eldred Begat Grokster

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Posted by Ernest Miller

Following the decision in Grokster, the Economist comes out in favor a 14-year copyright term, renewable once (Rip. Mix. Burn.). I certainly endorse shorter terms and have for some time, although I would structure it a bit differently. I don't see why there shouldn't be minimal formalities to extend copyright beyond a single year. But that's not my point. What would Grokster look like if we had a maximum 28-year copyright term?

We have to remember that currently, thanks to copyright term extension, not a whole lot of popular culture has entered the public domain since 1923. 1923! That's essentially the entire modern era as far as music and movies are concerned.

What is most interesting to me is to imagine how Grokster might have turned out differently if there had been a much shorter copyright term. For example, classic movies and music through the 1960s would have been legally shareable via these networks when they were launched. I don't have any figures, but I expect that a substantial amount of the music shared was from the 1960s, 1950s and earlier (most of the Beatles' catalog, for example, and Elvis). I also imagine that movies from this era would have been very popular as well. I don't know what the percentage might be, but I'm certain it would have made the networks look much better even to Justice Ginsburg's crew.

We also have to imagine the many mashups and remixes that would be possible with this library of music and moving pictures. Derivative works would certainly be invigorated by a much shorter copyright term and many of these works would likely be released under a Creative Commons license.

The development of the legitimate download market would probably have also benefited, as many different startups would have had access to a substantial library of works with which to entice customers. Many more companies would have entered the space, likely developing much better user interfaces. MP3 players would have come pre-loaded with many classics, greatly increasing their value proposition. Podcasts would benefit. The possibilities are limitless.

It is impossible to know what the percentages of licit and illicit materials would be in a world of original copyright terms, but we might learn a thing or two from books. After all, books have a much longer history. It would be interesting to compare the use of filesharing networks for ebooks and see what the percentages are of licit and illicit materials, since there is a much wider, more popular library of work for books. Of course, such a test wouldn't be definitive, because books are relatively nothing when it comes to bandwidth and so can't take advantage of one of the main benefits of filesharing networks. And books are substantially different from other mediums for other reasons. Nevertheless, such a study might be enlightening.

In the end, the ultimate outcome of the case might not have been any different (after all, you can induce people to infringe with a perfectly legal printing press), but we would probably have had a decision on Sony as well. I think it likely that, with a profusion of legal uses for P2P networks, at least two more justices would have shifted to Justice Breyer's concurrence.

In the many arguments surrounding Eldred v. Ashcroft, the constitutional challenge to copyright extensions for existing works, much was made of the fact that extending copyright wouldn't really encourage the creation of new works. Well, now we see some of the other costs of continual extension of copyright terms. There is collateral damage on technologies of reproduction and distribution. We know the value of this copyright extension, the proceeds of greedy rent-seeking to a small number of companies, but how to measure the cost to innovation?

And I'm not sure how well copyright law has faired thanks to term extensions.

Copyright extension is beginning to look more and more like a devil's bargain for the copyright companies. Among other things, it has probably done a whole heck of a lot to reduce respect for copyright law and encourage copyright infringement. You know, when you remove three generations of popular culture from the public domain including, essentially, two entire mediums, you're going to create tensions, not only with regard to the public at large but in law as well.

One way to look at why the Supreme Court was unable to reach agreement on a reformulation of Sony was because they were unable to reconcile the inconsistency of copyright terms that are, for nearly all intents and purposes, forever, with innovation. Of course there is going to be tension. Unless it is immediately licensed by copyright holders, any innovation in publishing and distribution is going to look illegitimate when the public domain has been so crippled.

Furthermore this tension doesn't really serve anyone, not even copyright holders (assuming they can look beyond the short-term). It increases the cost of creating legitimate businesses (which fosters illegitimate businesses), and makes it more difficult to separate the true bad actors from those whose innovations are merely caught up in the ridiculousness of our current system.

Over-extended copyright terms aren't the root of all evil in our system of copyright, but they're a key source.

via Copyfight

Comments (4) + TrackBacks (0) | Category: Copyright | File Sharing

2nd Cir. - Elements of Halloween Costumes May Be Copyrightable

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Posted by Ernest Miller

The Second Circuit Court of Appeals has declared that elements of Halloween costumes may be copyrightable in a unanimous decision written by the famous Guido Calabresi, former dean of Yale Law School.

This appeal by plaintiff-appellant-cross-appellee Chosun International, Inc. (“Chosun”) poses the question of whether Halloween costumes, in their entirety or in their individual design elements, are eligible for copyright protection under federal law. The district court (Wood, J.) held that they were not. The court ruled that Halloween costumes were “useful” articles and hence not copyrightable under the Copyright Act, 17 U.S.C. § 101 et seq. Accordingly, the court dismissed Chosun’s suit for failure to state a viable copyright infringement claim. See Fed. R. Civ. P. 12(b)(6). Because the district court failed to conduct a separability analysis prior to dismissing Chosun’s complaint, we vacate the district court’s judgment and remand for further proceedings.
Read the 10-page decision: Chosen Int'l Inc. v. Chrisa Creations Ltd. [PDF].

The reasoning followed that in a case involving belt-buckle design:

Thus, in Kieselstein-Cord, 632 F.2d 989 (2d Cir. 1980), we concluded that the plaintiff’s belt buckle designs were copyrightable. Taken as a whole, the belt undeniably was a “useful article” which performed the service of preventing one’s pants from falling down. The ornate buckle design, however, was conceptually separable from that useful “belt” function. The design – which did not enhance the belt’s ability to hold up one’s trousers – could properly be viewed as a sculptural work with independent aesthetic value, and not as an integral element of the belt’s functionality.
This actually seems a fairly straightfoward decision to me, particularly given the procedural posture of the case. I'm pretty sure the Court got it right.

There is actually a surprising number of intellectual property issues involving Halloween costumes. For example, Chosum International was on the other side of a lawsuit that raised similar issues in 2003. BNA's Patent, Trademark & Copyright Journal has a good discussion of the issues involved in the older case (Tiger Costume Is Protectable, But Sales of Similar Costume Can Continue). See also, this patent on weather-resistant Halloween costumes assigned to Chosun: US Patent #6,904,612: Weather and Climate Adaptive Halloween Costume.

via How Appealing

Comments (2) + TrackBacks (0) | Category: Copyright | Halloween

June 29, 2005

Bram Cohen: My Activist's Manifesto is a Parody!

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Posted by Ernest Miller

Yesterday, I wrote about Bram Cohen's A Technological Activist's Agenda, which included quotes that look suspiciously like active inducement under Grokster (BitTorrent and Grokster: How Much Intent Does it Take?). Today, Bram has added the following text to his agenda:

[This was written in late 1999, and is a parody of a cypherpunk's manifesto, which struck me as very dishonest manifesto claiming to solely be concerned about privacy. This screed is written in the exaggerated voice of a 'prototypical' cypherpunk, making much more direct declarations of his intent.] [emphasis, links in original]
Good answer. Hopefully it'll be enough to convince a judge should a lawsuit be launched.

Prof. Mark Schultz of the Southern Illinois School of Law who is guest-blogging on Eric Goldman's Technology & Marketing Law Blog has a good reply to this issue, however: Shocking Revelations About BitTorrent.

We must avoid this "bootstrap effect" to maintain access to innovative technology. Even if Bram Cohen had "bad intent" in developing BitTorrent (I don't think he did), all subsequent distributors of BitTorrent should not be accountable for his actions or the actions of some end users. Such a distributor should be able to avoid liability, so long as substanstatial non-infringing uses are possible and the distributor does not actively induce infringment.
I agree. However, the Supreme Court seems to have left the door open to a "taint by association" for technology companies. So, if one company is found to be an active inducer, subsequent companies built on the same technology seem to have one strike against them already. And if you get one strike, the strike zone gets much bigger.

UPDATE 0715PT 30 Jun 2005

WIRED has an article on this issue (BitTorrent Whiz Extolled Piracy?).

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

Day Three of the Grokster Era

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Posted by Ernest Miller

More post-Grokster commentary from around the web. This post will be updated throughout the day as I come across interesting posts.

Constitutional Code has two good articles:

Michael Madison argues that we may be at a Kuhnian paradigm shift in our understanding of innovation (Grokster and Innovation). Very interesting post.

Larry Solum on his Legal Theory Blog: Grokster and the Future of P2P.

The Grokster decision may have been a minor tactical victory for content providers, but it is a stupendous strategic loss.
Doug Lichtman is still quite pessimistic about Grokster seeing a loss all the way around: Reading Wu, Reading Grokster.

He is responding to Tim Wu: iGrokster.

Randy Picker also has some repsonses to Tim Wu: Itunes Again

Denise Howell has lots of anecdotal evidence about the use of P2P to download government docs in the couple of days since Grokster was decided (Noninfringing Torrents).

C.E. Petit on Scrivener's Error makes the case for his version of the winners and losers in Grokster: Grokster (3): Who Won?. He makes some good points but I'm not sure the "garage-mechanic-for-the-love-of-it" technologist who is a winner according to Petit is that big of a category. After all, once they invent something that is really an innovation they quickly try to move out of that category ... and shouldn't we encourage them to do so? The Grokster decision doesn't believe so, apparently.

On Further Reflection explains how the Court got the patent law of active inducement wrong (Grokster: Porting Inducement from Patent to Copyright and Adding New Bugs).

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

June 28, 2005

Grokster and darknet companies

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Posted by JD Lasica

In the Grokster open thread below, Kevin writes in part:

>darknets and bittorrent, by their nature, would not be found guily of inducing infringement.

I'm fascinated by your conclusion here. Do others agree with this?

Much of my reading the past two days has centered not on the fine points of law but on how the Grokster decision will affect *me* as a technology entrepreneur.

I just came from a lunch where a very successful businessman and I spent 90 minutes hashing out the ideas that might be involved in forming a darknet grassroots media company - an encrypted social space where individuals could create, collaborate, communicate and share their own works of personal media, either publicly or privately. (I don't think he'll mind if I mention it here; let me know if you might be interested in taking part.)

The subject of infringement never came up, though we'll eventually have to address this central question:

Are providers of such a service *required* to put business rules into place that specifically prevents users from sharing copyrighted works? (It's a very difficult thing to accomplish in an age when hundreds of photographs, videos and mp3 files on your computer may have been created by you -- or by someone else. And, after all, you can always trade photos and mp3s and other files today by email, IM or a dozen other ways.)

Some of the darknet companies out there address this in different ways. Grouper, for example, will let you invite only a maximum of 30 people into any single social space, and it will let you exchange jpegs and video files, but not mp3s (you can, however, stream music to your peers).

What's your sense of what the rules are for technology vendors who want to provide these privacy tools and social spaces to individuals in the post-Grokster world? (And, if you offer an opinion, I won't hold you to it.)

Comments (2) + TrackBacks (0) | Category: Copyright

BitTorrent and Grokster: How Much Intent Does it Take?

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Posted by Ernest Miller

Following the Grokster decision there has been a lot of speculation about whether BitTorrent would be liable under the court's enunciated active inducement standard. Many think that BitTorrent is safe, in particular due to the lack of evidence of illicit intent. But what if there is evidence of illicit intent? A statement from Cohen in 2001 might be that evidence.

Prof. Mark Schultz of the Southern Illinois School of Law is guest-blogging on Eric Goldman's Technology & Marketing Law Blog. He took two close looks at the issue. First, on the simple question of BitTorrent itself: What Happens to BitTorrent After Grokster?. In response to a question of mine, he also addressed the additional questions raised by BitTorrent Search and the new, trackerless BitTorrent: More on BitTorrent and Grokster. His conclusion was that BitTorrent is protected because of its innocent intent:

So, would Cohen and the other original BitTorrent developers be on the hook as inducers? Probably not. There appears to be no “clear expression or other affirmative steps taken to foster infringement.”
Ed Felten also sees BitTorrent as the next big test case, and also thinks they'll survive: BitTorrent: The Next Main Event.
The litmus test is BitTorrent. Here is a technology that is widely used for both infringing and non-infringing purposes, with infringement probably predominating today. And yet: It was originally created to support noninfringing sharing (of concert recordings, with permission). Its creator, Bram Cohen, seems interested only in noninfringing uses, and has said all the right things about infringement — so consistently that one can only conclude he is sincere. BitTorrent is nicely engineered, offering novel benefits to infringing and noninfringing users alike. It is available for free, so there is no infringement-based business model. In short, BitTorrent looks like a clear example of the kind of dual-use technology that ought to pass the Court’s active inducement test. [emphasis added]
Perhaps Cohen is not as sincere as all that: A Technological Activist's Agenda:
I am a technological activist. I have a political agenda. I am in favor of basic human rights: to free speech, to use any information and technology, to purchase and use recreational drugs, to enjoy and purchase so-called 'vices', to be free of intruders, and to privacy.

I further my goals with technology. I build systems to disseminate information, commit digital piracy, synthesize drugs, maintain untrusted contacts, purchase anonymously, and secure machines and homes. I release my code and writings freely, and publish all of my ideas early to make them unpatentable.

Technology is not a panacea. I refuse to work on technology to track users, analyze usage patterns, watermark information, censor, detect drug use, or eavesdrop. I am not naive enough to think any of those technologies could enable a 'compromise'.

Despite my emphasis on technology, I do not view laws as inherently evil. My goals are political ones, even if my techniques are not. The only way to fundamentally succeed is by changing existing laws. If I rejected all help from the political arena I would inevitably fail.

-Bram Cohen [emphasis added]

History of the statement: According to Wikipedia, BitTorrent debuted at CodeCon 2002 (Wikipedia: BitTorrent). According to the Internet Archive's Wayback Machine, Bram Cohen posted the page to his website sometime no later than Jul 10, 2001 (Wayback Machine: http://bitconjurer.org/a_technological_activists_agenda.html : Jan 01, 1996 - Jun 28, 2005). Originally this statement was linked from his front page (Wayback Machine: http://bitconjurer.org/ : Jan 01, 1996 - Jun 28, 2005). The link remained until at least Jul 20, 2003, but had disappeared by Jul 31, 2003. In between his homepage had been updated at least 7 times.

Question: How far will a lawsuit under the active inducement standard as articulated in Grokster go with this statement? Will this open the door to discovery? Will this make the addition of search engine (with advertisements) look like a bad act? Will it make trackerless BitTorrent look like a bad design decision?

Perhaps BitTorrent is a more difficult case than one might think.

UPDATE 1840PT

Just thought to check something else on the Wayback Machine. The link to the "activist's agenda" shows up in the very first snapshot of the homepage on Jul 6, 2001. The very first link to the BitTorrent project shows up on Jul 20, 2001. The statement and the BitTorrent project consequently seem rather close together in time.

UPDATE 1900PT

Just to note something from above (since I'm linking to so many Wayback Machine archives): the "activist's agenda" is still on Bram Cohen's website: A Technological Activist's Agenda.

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The Day After: Grokster Roundup

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Posted by Ernest Miller

I'm not even going to try to provide a comprehensive list of links for the Grokster decision this morning, only some I thought of particular interest. I will continue to update this post through the day, as I come across more links.

Derek Slater is on a roll over at EFF's DeepLinks:

  • What is "Inducement"?
  • Unavoidable Inducement?
    However, in some ways, the decision may make it difficult for legitimate businesses to avoid inducement.
  • Clarifying Inducement: How Is Patent Law Relevant?
    A straightforward transplant of the patent inducement doctrine might have provided technologists with some insight into what it will mean for them in the copyright context. Unfortunately, the Court's decision muddies the import of patent caselaw.
  • Clarifying Inducement: What's the Remedy?
    If past misconduct can be used to prove that present actions also amount to inducement, the potential harm to innovators would be substantial. Finding that an action from long ago amounts to inducement could open the door to claims about all subsequent activities.
I believe that the Supreme Court has effectively pre-empted Congressional action in this area for some time. C|Net News gets reaction to the decision from Congress that concurs: Congress Applauds File-Sharing Ruling. The two top proponents of the INDUCE Act in the Senate had this to say:
Patrick Leahy, the top Democrat on the Senate Judiciary Committee, said through a spokeswoman that he "is going to let the courts continue their role in reviewing the next phase of this case."

Sen. Orrin Hatch, the Utah Republican who heads an intellectual property subcommittee, said: "Prudence and respect for the role of the courts suggest Congress wait until it becomes clear how today's decision will play out in the lower courts before there is a rush to legislate."

Speaking of C|Net, their Download.com website was still hosting Grokster and StreamCast clients as of this morning. I guess they don't think the ruling could apply to them, or that they would be sued. If I were them, I might think again. Although Grokster and StreamCast were not ruled illegal, if they are, I'm not sure that C|Net can avoid liability.

C|Net executive editor Charles Cooper wants EFF to come out and say, "just once", that "Grokster's business model is predicated on breaking the law" (Theft by Any Other Name). Hey, Cooper, what do you think about a company that makes money (some of the most popular downloads on Download.com are P2P programs) from companies whose "business model is predicated on breaking the law"? Why don't you say something about that?

Tim Wu thinks the Court has made a clear distinction between illicit Grokster-type filesharing and licit filesharing.

  • The Grokster Safe Harbor?
    1. Making a deal with the recording industry (iTunes)
    2. Encryption of content offered (also iTunes)
    3. A network optimized to some other explicit purposes (Freenet, privacy and anonymity, or even email -- personal communications)
    4. Phone home technologies -- software that is montored centrally, see Randy's paper.
  • Grokster's Future
    The important question is this: how does the Grokster decision affect the future of content distribution? In my view the decision will actually settle matters more than people think. To use a Lessig term, Grokster is zoning filesharing -- as between highly illegal, highly illegitimate operations on the one hand (like WASTE and some Bittorent clients), and highly respectable, legitimate operations on the other (iTunes and the new Napster).
I disagree with Tim's analysis here. The safe harbor doesn't seem particularly safe the way he has described it. You could license, but isn't the whole point of Sony that you don't have to license? You could use encryption, though what that means for filesharing legitimate files is unknown. And, isn't the whole point of Sony that you don't have to incorporate particular copy controls? Optimization is in the eye of the beholder. How long before you can file share with Skype (a pre-eminent P2P personal communications technology)?

As a commentor on Tim's second post notes, I'm not sure why Tim thinks that WASTE necessarily runs afoul of this ruling. It is basically a handy, secure P2P application for small groups, with plenty of legitimate uses.

Randy Picker wonders if, under Tim's reading, iPods can be distinguished from iTunes: File-Sharing v. File-Distribution.

Mike Godwin has a column in Reason: Don't Stop Grokkin'.

Siva Vaidhyanathan has a column in Salon (watch an ad for access): Supreme Court's Unsound Decision.

This is why courts and legislatures should be very careful when regulating technological innovation and copyright: Broad rules and legal uncertainty can put a chill on, or even wipe out, really useful and important developments.

As Jim instructed Huckleberry Finn when Huck claimed Solomon was the wisest man who ever lived: "De 'spute warn't 'bout a half a chile, de 'spute was 'bout a whole chile; en de man dat think he kin settle a 'spute 'bout a whole chile wid a half a chile doan' know enough to come in out'n de rain."

You can comment on Siva's column on his blog, Sivacracy, here: My Grokster Article in Salon.com.

Why should I bother doing a roundup of traditional news sources when Frank Field has done such a great job on FurdLog?: Grokster Roundup.

Prof. Mark Schultz of the Southern Illinois School of Law is guest-blogging on Eric Goldman's Technology & Marketing Law Blog. He looks deeply at the issues surrounding BitTorrent under Grokster: What Happens to BitTorrent After Grokster?. A significant omission, however, is that he doesn't address how BitTorrent Search and trackerless BitTorrent might change the equation. I could see BitTorrent search being considered enough evidence of intent so that trackerless BitTorrent becomes evidence of bad design under this decision.

Mark Schultz responds to my query and has addressed the issues of BitTorrent Search and Trackerless BitTorrent: More on BitTorrent and Grokster. Many thanks.

Prof. Michael Madison thinks the decision could have been better, but isn't too bad: Grokster Redux.

That said, an “I’m a genuine innovator” standard is much easier for mainstream technology innovators to live with than it is for cutting edge folk or iconoclasts. My relatively sanguine disposition comes from the observation that the same pattern is observed in the fair use cases, and while that’s hardly a perfectly happy story in itself, judges handle innovation and evolution there better than we often give them credit for.

Prof. Susan Crawford has two posts on the question of balance in the decision:

  • A Balanced View
    Today's Grokster opinion is a victory for content AND for technology. I was afraid that Sony would be undermined -- and it wasn't. The content guys were afraid that they wouldn't be able to go after bad guys -- and they've been given ammunition. What we've got is an opinion that is balanced and middle-of-the-road. It leaves Sony's "substantial noninfringing use" standard alone (yes, the concurring Justices snipe back and forth about what that standard means, but that doesn't matter), it doesn't adopt any formless Aimster balancing test, and it says strongly that you can't impute intent to technology. A good day for innovation. And a good day for Congressional staff, who won't have to deal with some request for Induce legislation -- we're done.
  • Footnote 12
    I read the decision as saying that IF there is evidence of advertising AND other marketing and promotional indicia of intent, THEN failure to filter might be relevant. But failure to filter on its own (as Footnote 12 suggests) would never be enough.

    Now, of course, it's not hard to do discovery and find evidence of intent. So this gives the content industry substantial ammunition. And that's why this is a balanced opinion that doesn't completely please either side.

James DeLong, director of the Center for the Study of Digital Property at the Progress & Freedom Foundation, has a column on Tech Central Station: Grokster at Last!.
As a first resort, it is clearly better to deal with the P2P purveyors as infringement-dependent businesses rather than infringement-enabling technologies, using the standards of evidence about the proof of evil intent that the Court put forth. The exact dimension of the Sony doctrine can wait. And, given reasonable progress in the development of technological means of protection, the issue might well wait forever, eventually joining the graveyard of unsettled issues on Moot Point.
"Follow the money" has become a mantra. Well, Mark Cuban, who backed the Grokster lawsuit, follows the money and finds that no one cares: Kaboom !.
In the business world, one way to evaluate the financial importance of news is by watching to see how Wall Street responds to it. If there is the slightest glimmer of hope in a news announcement, at least one person is going to think it will have some level of impact and make a bet on the stock and/or industry impacted.

There wasnt a Kaboom, there wasnt a whisper in the market. Not one buyer or seller of stocks gave a damn. Warner Music Group. probably the only public company that is a pure play proxy for the music business traded almost exactly the same number of shares as it does every day. The stock was down a nickel.

He also looks at the practical business effects.

Ed Felten see BitTorrent as the next big test case, but thinks they'll survive: BitTorrent: The Next Main Event. I'm still concerned that the search engine and commercialization of BitTorrent may undermine the argument. We will have to see. Bram Cohen must remain purer than Caesar's wife.

bIPlog's Aaron Perzanowski claims the Court's test isn't really "active inducement": It's Not Active Inducement, Stupid

Does anyone else consider it odd that Grokster's homepage, as of Tuesday afternoon, still touts the Ninth Circuit's decision?:

GROKSTER WINS!

THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IN THE CASE OF MGM vs GROKSTER AFFIRMED THE DISTRICT COURT'S PREVIOUS RULING.

Today the United States Court of Appeals for the Ninth Circuit affirmed the previous District Court ruling denying the motion picture and recording industries request to shut Grokster down.

via Mossback Culture

John Palfrey gets it right, I think: The Entrepreneur in a Post-Grokster World.

So, it’s back to the courts again. The Supreme Court’s decision places the responsibility to uphold America’s culture of entrepreneurship and innovation squarely in the hands of the lower courts to determine what the ultimate effect of its thread-the-needle ruling will be.

It’s the next few rulings, reading the tea leaves of the opinions handed down yesterday, that matters. If the next tests of the Grokster ruling turn out in favor of the entrepreneur, then the chilling effect of the Grokster opinion on innovation will hopefully be negligible.

Nice summary from David Post on the Volokh Conspiracy: Grokster Decision, Second Thoughts.

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Grokster and Open Source: Will Open Source Force the Court to Confront Sony?

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Posted by Ernest Miller

What the heck does the Grokster decision mean for open source?

I suspect that we are likely to find out.

Up to now Hollywood has been satisfied in going after the commercial purveyors of P2P filesharing software. Undoubtedly, following the Grokster decision, they will continue to do so. However, that will not halt the use of P2P programs.

As the commercial systems are shut down, it is likely that users will migrate to open source P2P projects. Indeed, a switch to various open source programs, such as BitTorrent, is already well under way. If Hollywood desires to continue to stem the tide by taking action against certain programs, they will have no choice but to go after the most popular open source projects.

Vicarious liability would not seem to be much of an issue for most open source programs. They don't directly profit from (and I doubt a court would recognize reputational benefits for this purpose) illicit filesharing and I'm unaware of any that has the right and ability to control use. Standard contributory infringement would also be relatively difficult to prove on a number of levels, assuming the device met the Sony test.

But active inducement changes things, especially as the Court was rather unclear on how it was to be applied. The problem for many open source technologies that would meet the Sony test is that they receive contributions of code from a wide variety of sources. The most well-organized projects have a vetting process so that they do not incorporate copyrighted or patented code. However, how are they to vet for intention?

When you've got a large number of people working on a filesharing project, it is likely that one of them will say things that would be evidence of inducement. Furthermore, the Court spent a great deal of time emphasizing Grokster's lineage from the original bad actor Napster. That was plenty of evidence of ill intent for the Supreme Court. How might that logic be applied to the numerous progeny of Napster in the open source world?

I really don't know. There are a number of ways that a court could potentially handle it and it would be very fact-dependent, I think.

One possibility I do see, however, is that an open source project may ultimately force the Court to confront Sony directly.

In Grokster, the Court "kicked the Sony can down the road". They didn't address what it really meant and came up with an alternative theory of liability, active inducement. Active inducement seems well-suited to bringing down many commercial projects, but it could have difficulty with open source.

Although an active inducement case would be relatively easy to bring against an open source P2P project, I believe, I could also see a Court dismissing such a claim for a variety of reasons. Such a decision would be very fact-dependent, but having dismissed active inducement, the only chance to shut down a particular project would be to find that the program failed the Sony test.

Such a case would then force the Court to make a decision about the limits of Sony.

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The Importance of ... Law and IT: MGM v. Grokster

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Posted by Ernest Miller

A new episode of my audio series, The Importance Of ... Law and IT, is up on IT Conversations.

This show, like my first one, deals with MGM v. Grokster, although this time we're not talking about some appellate court, we're talking about the Supremes (The Importance of ... Law and IT: MGM v. Grokster). Joining me for this show were two of the leading commentators on the net and elsewhere yesterday when the decision was released:

Not only do we discuss the holding in the case, we also consider the implications for publishers, software developers, hardware manufacturers, IT shops and, specifically, the outlook for BitTorrent.

Many thanks to my excellent guests.

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Kicking the Sony Can Down the Road

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Posted by Ernest Miller

It was the best of times, it was the blurst of times?!

C. Montgomery Burns

Earlier today, on the Wall Street Journal's Grokster Roundtable I stated that, "I do think this may turn out to be a significant victory for technology providers in general."

Darknet author JD Lasica, who is guest-blogging here yesterday and today, has asked me to clarify what I meant (Grokster: Theory and Practice). Well, it's been a busy day, so I couldn't answer him right away. I will do so now.

Despite claims to the contrary, neither side achieved total victory in Grokster nor did either side lose. Though the case will continue in the district court, it isn't the specific fate of Grokster and StreamCast that really matters. What matters is how this decision will effect copyright law and innovation policy generally. What will the practical impact be?

Things could have been better for innovation. A lot better, in fact. But, more importantly, they could easily have been far worse.

Basically, I think that the Supreme Court did what it felt it had to do, find against Grokster and StreamCast. However, they were unable to resolve the fundamental and underlying issues involved in applying Sony v. Universal, aka "Betamax", in the internet era and so didn't decide that aspect of the case.

Copyright guru William Patry says that the court punted (The Court Punts). I prefer to think that the Court kicked the can down the road instead. Unable to reach agreement on what is actually a fairly bad set of facts for innovation promoters, the Court has basically said to come back in a few years and we'll take another look. Since time is on the side of P2P and internet innovation, this is actually a victory for technology providers.

But more on that in a bit.

The Could Have Been Better

Let's get the bad news out of the way first.

The Court has clearly revived the "active inducement" standard for secondary liability. Note I say "revived," not "created". The active inducement test has pretty much been part of copyright law for some time. It may have been hiding in the background, or being confused with its siblings, contributory and vicarious infringement, but there it was. It even got a mention in Sony, among other places. Basically, the Court has taken it out of the background and shadows and placed it front and center.

The problem is, they could have done a much better job. "Active inducement" is a pretty good test, and one that I'm not opposed to for secondary liability. However, the Court seems to have set a fairly low and confusing bar for finding the "active" part of the inducement.

There has already been much commentary on this point. See, among others, Larry Solum, Footnote 12 in Grokster; Randy Picker, The Lurking Design Issue in Grokster; and, Ed Felten, Legality of Design Decisions, and Footnote 12 in Grokster.

Without too much detail, the Court seems to be using some sort of "taint by association" with Napster. See, Eric Goldman, Grokster Supreme Court Ruling. After all, Grokster and StreamCast actually advertised to the customers of known bad actor Napster. Based on this, all sorts of otherwise legal actions (using advertising for revenue, lack of filters) took on a sinister cast, according to the Court.

This is pretty unconvincing evidence, actually. It veers pretty darn close to turning active inducement into imputed inducement. And, if courts are allowed to run with this sort of reasoning, could be very dangerous to innovation. But I don't think it will necessarily go that far. It will likely go farther than it should, but I don't think innovation is doomed.

Remember the complex procedural posture of this case. The Supreme Court was reviewing a motion for summary judgement, but they didn't directly challenge that judgement, they used a different theory of liability then was argued. All they've basically said is that the evidence in the record is enough to beat a summary judgement on an active inducement theory that hadn't been fully briefed in the district court or court of appeals. The Supreme Court remanded, vacating the earlier judgements, but not providing an awful lot of guidance for them. That's okay.

In essence, all of the analysis of the Supreme Courts on the active inducement test is pretty darn fact specific. However, as noted, the active inducement facts were never actually argued or briefed in the lower court. The Supreme Court was basically cobbling together facts briefed for a standard contributory and vicarious liability argument, not the active inducement standard that the Supreme Court ruled on.

So, basically, we have a theory of infringement that is vary fact-specific (seemingly limited to the facts in Grokster), facts which were never properly developed in the first place, and only so far as to say that these facts beat summary judgement. What the Supreme Court said on the evidence for active inducement may act as persuasive authority but is pretty close to surplusage and dicta.

The case goes back down to the district court. The court is going to have to decide on three theories of secondary liability: contributory, vicarious and active inducement (after this new active inducement claim is properly briefed, of course).

The Supreme Court gave absolutely no guidance on vicarious liability and there is a very clear split on straight-up contributory infringement under Sony. It's not clear to me that the district court can't rule the same way on the vicarious infringement. A gutsy court could even find the same way on contributory infringement, following Justice Breyer's concurrence. However, there will be no summary judgement for Grokster and StreamCast on the issue of active inducement.

A gutsy court might send the issue of active inducement and, possibly, contributory infringement to trial. On the other hand, the district court could give summary judgement to MGM on the basis of active inducement and completely ignore contributory and vicarious infringement (hey, it worked for the Supreme Court). Here's the thing,though. A smart district court would base the active inducement on other, presumably more damaging evidence, then the Supreme Court used. There is nothing that says the district court has to use the reasoning the Supreme Court did in denying summary judgement to Grokster and StreamCast. The Supreme Court was never looking at a properly briefed active inducement motion for summary judgement in the first place. Result: the Supreme Court's ruling is followed, but the ruling is narrow in recognition of the cases' strange procedural posture.

If MGM wins summary judgement, they can't do much about it. It is not like they could appeal a ruling in their favor. They could possibly appeal a decision to send the case to trial, but the burden for overturning such a ruling would be fairly high. Furthermore, if they lost that appeal and the case went to the Supreme Court again, they'd never take it.

Of course, as I said above, it isn't the specific fate of Grokster and StreamCast that is important, it is the effect this ruling will have on other cases and for innovation in general.

More Uncertainty or Less?

There has been a lot of talk about increased uncertainty for innovators, which would increase the cost of innovation, and even suppress a substantial amount. See, among others, Fred von Lohmann, Fear Mongering. Von Lohmann is right, a great deal of uncertainty does remains and it may have even increased in certain ways.

On the other hand, it may also have decreased. Grokster, the case, will continue. Depending on how the district court handles the issues in Grokster and how other courts interpret the Supreme Court's guidance here, will make all the difference in the world. As I noted above, they'll be likely to extend liability farther than a strict active inducement standard, but I don't think they'll go too far. The Court was very clear that this was "active inducement," not "imputed inducement." They pointed very clearly to patent law. And, although patent law doesn't solve all problems, it is generally better than the test the Supreme Court created for the purposes of the Grokster ruling. Furthermore, many of the facts the Court cited can easily be limited to Grokster and, once again, they were never properly briefed under a theory of active inducement in the first place. Result: it will be the lower courts that will craft the copyright active inducement standard and they are free to narrow it as compared to the expansive example the Supreme Court provided. Conclusion: give money to EFF to convince judges to use a narrow active inducement test.

The case also acts, somewhat, as a roadmap. For bad actors, of course. See, Douglas Lichtman, Hollow Victory in Grokster. Although I have to agree with C.E. Petit that bad actors frequently are careless when it comes to smoking guns, if you look hard enough (Balanced… or Evasive?). But it will also serve as a roadmap for good actors. See, Fred von Lohmann, Supreme Court Sows Uncertainty.

Is it a perfect roadmap? No, there remain plenty of unseen pitfalls. However, it is better than no roadmap at all. I will also note that this roadmap will be much more useful to large, established corporations (that can afford expensive lawyers to help avoid liability, as well as have deep pockets to scare off some lawsuits) than smaller upstarts (that are cutting edge and lack anti-lawsuit resources). This is highly unfortunate. Highly unfortuate.

But consider whether the uncertainty today is that much worse than the uncertainty that prevailed yesterday. After all, there is also some good news. The fact that the MPAA and RIAA have won a 9-0 decision in the Supreme Court means it will be pretty hard for them to convince Congress they need the even worse INDUCE Act, or any similar legislation (even such things as the Broadcast Flag). Having the INDUCE Act and the Broadcast Flag off the table reduces uncertainty a great deal more, I think, than this relatively limited ruling by the Supreme Court.

Also consider what might have happened if the Supreme Court had ruled in favor of Grokster and StreamCast. I think it highly likely that this issue would quickly jump to the front of the queue for both judiciary committees. Hollywood might not have gotten a full-blown INDUCE Act, but they might have gotten some "compromise" that worked for major corporations such as Microsoft and Apple, but not for smaller inventors. Sometimes it is better to lose a little, than to win.

This isn't a great "active inducement" test, and too much uncertainty reigns, but it could have been much, much worse.

Time Is On Our Side

This is the key to understanding the importance of the case, I think.

The Court didn't address Sony directly. There were three in favor of a narrow reading of Sony's safe harbor that would exclude Grokster and StreamCast. Three in favor of a broad reading of Sony's safe harbor that would include Grokster and StreamCast already. And three who were apparently unconvinced of the merits of either side. A perfect three-way split.

Let's look at the two concurrences. What was most apparent to me, is that Justice Ginsburg's concurrence completely ignored discussing the issue of what "capable" means in Sony. The standard view, and the one fully endorsed by Justice Breyer's concurrence is that "capable" refers to the future ability of a technology to be used for non-infringing purposes, although its present use is primarily infringing.

While Justice Ginsburg ignores the future potential for peer-to-peer, Justice Breyer revels in it. Lior Strahilevitz argues that Grokster may have erased the future potential from Sony (Is Grokster Erasing “Capable” from Sony?). I disagree, "capable" has always been rooted in reality. I could use a gun to hammer nails, but that does not mean that a gun is "capable" of being a hammer in the sense that "capable" is used in Sony.

Capable is something more that "could potentially be used for." It is an admonition to remember that how technology is used changes over time and that, frequently, illicit uses may dominate in the early years of a technology's development. After all, it is often easier to establish illicit markets than legitimate ones. iTunes, anyone?

Extensive quotation from Justice Breyer's concurrence follows:

Here the record reveals a significant future market for noninfringing uses of Grokster-type peer-to-peer software. Such software permits the exchange of any sort of digital file -- whether that file does, or does not, contain copyrighted material. As more and more uncopyrighted information is stored in swappable form, it seems a likely inference that lawful peer-to-peer sharing will become increasingly prevalent. [citations omitted]

And that is just what is happening. Such legitimate noninfringing uses are coming to include the swapping of: research information (the initial purpose of many peer-to-peer networks); public domain films (e.g., those owned by the Prelinger Archive); historical recordings and digital educational materials (e.g., those stored on the Internet Archive); digital photos (OurPictures, for example, is starting a P2P photo-swapping service); "shareware" and "freeware" (e.g., Linux and certain Windows software); secure licensed music and movie files (Intent MediaWorks, for example, protects licensed content sent across P2P networks); news broadcasts past and present (the BBC Creative Archive lets users "rip, mix and share the BBC"); user-created audio and video files (including "podcasts" that may be distributed through P2P software); and all manner of free "open content" works collected by Creative Commons (one can search for Creative Commons material on StreamCast). [citations omitted] I can find nothing in the record that suggests that this course of events will not continue to flow naturally as a consequence of the character of the software taken together with the foreseeable development of the Internet and of information technology.

There may be other now-unforeseen noninfringing uses that develop for peer-to-peer software, just as the home-video rental industry (unmentioned in Sony) developed for the VCR. But the foreseeable development of such uses, when taken together with an estimated 10% noninfringing material, is sufficient to meet Sony's standard. And while Sony considered the record following a trial, there are no facts asserted by MGM in its summary judgment filings that lead me to believe the outcome after a trial here could be any different. The lower courts reached the same conclusion.

This is a ringing endorsement of the progress of technology and, in particular, of P2P. Justice Breyer has swallowed the P2P Kool-Aid.

Here's the thing. So have I. I believe that P2P technologies have all sorts of wonderful non-infringing uses. I believe that P2P technologies will increasingly be used for these non-infringing uses and become embedded in our work and play. We'll all be making phone calls via P2P, playing games, watching TV, sharing our varied creations. I believe that five years from now the idea of living without P2P will be about as attractive as the idea of living without the internet today.

And five years is a pretty good timeframe, because it will realistically be five years, at least, before the Supreme Court decides to take another crack at Sony. By then the industry will have matured. Microsoft and Apple themselves will be deeply involved in distributing lots and lots of perfectly legal content via P2P. The content industries will have to have made further adjustments of their business plans, further legitimizing the industry. The industry itself will have more credibility and respect, and perhaps more importantly, a heck of a lot more jobs will be on the line.

When that happens, the Court will no more be interested in ruling against these technologies then they would be in taking VCR's out of people's bedrooms, or eliminating entire swaths of US industry. More importantly, Justice Breyer's concurrence will have been vindicated.

So, even if some new technology that isn't yet an itch in some programmer's head is what is being challenged, Justice Breyer's concurrence is likely to be the one that sets the path for the next Sony decision.

A lot of people talk about the potential of P2P, but I believe it. And so do three justices, apparently. If we're right, we're going to win five-ten years down the road.

So, go ahead and kick the can. Time is on our side.

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June 27, 2005

Some Notes on Grokster

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Posted by Ernest Miller

Below are just a few my observations about the decision, in no particular order.

Vicarious Infringement

Vicarious infringement is a rather messy little and unclear doctrine. It could seriously use some clarity. The question was before the Court, but they refused to address it (footnote 9):

In the present case MGM has argued a vicarious liability theory, which allows imposition of liability when the defendant profits directly from the infringement and has a right and ability to supervise the direct infringer, even if the defendant initially lacks knowledge of the infringement. Because we resolve the case based on an inducement theory, there is no need to analyze separately MGM's vicarious liability theory. [citations omitted]
Well, if they had analyzed the vicarious infringement liability and found that the lower courts had erred, they wouldn't have had to reach the question of inducement. It isn't as if questions about vicarious liability will be going away. Interestingly, neither concurrence even mentions vicarious liablity.

Evidence of Intent?

The evidence for Grokster/StreamCast's intent is pretty darn weak:

[p. 20] Grokster distributed an electronic newsletter containing links to articles promoting its software's ability to access popular copyrighted music.
What does this mean? If the New York Times profiles your product and mentions its infringing uses you can't cite that article?

The same could be said about this "evidence" of intent:

And anyone whose Napster or free file-sharing searches turned up a link to Grokster would have understood Grokster to be offering the same file-sharing ability as Napster, and to the same people who probably used Napster for infringing downloads...
Huh? Grokster was available on the original Napster and this makes Grokster liable? What free software wasn't and isn't available on P2P filesharing networks whether legal or illegal?

Three Main Indicators of Intent: The First is Bogus and the Next Two Bootstrap Off the First

The opinion emphasizes three main factors as "clear" evidence of intent. However, the first makes little sense and the next two are otherwise legal actions that only become evidence of intent if there is already evidence of intent.

The first is advertising aimed at Napster users.

First, each company showed itself to be aiming to satisfy a known source of demand for copyright infringement, the market comprising former Napster users. StreamCast's internal documents made constant reference to Napster, it initially distributed its Morpheus software through an OpenNap program compatible with Napster, it advertised its OpenNap program to Napster users, and its Morpheus software functions as Napster did except that it could be used to distribute more kinds of files, including copyrighted movies and software programs. Grokster's name is apparently derived from Napster, it too initially offered an OpenNap program, its software's function is likewise comparable to Napster's, and it attempted to divert queries for Napster onto its own Web site. Grokster and StreamCast's efforts to supply services to former Napster users, deprived of a mechanism to copy and distribute what were overwhelmingly infringing files, indicate a principal, if not exclusive, intent on the part of each to bring about infringement.
Of course, this is limited by the fact that future creators will avoid such a thing, but why should it be considered "evidence" in the first place. After all, there is one company that is uneqivocally going after former Napster users, Napster itself. Why is it that Grokster cannot go after former Napster users, but Napster 2.0 can? Is it the technology? But I thought inducement was about intent, and not the tools.

This brings up the point I raised on the Wall Street Journal's Grokster Roundtable:

Imagine that Sony had been a nefarious group of active inducers when they brought out their Betamax. Suppose that there was ample evidence that Sony fully intended and explicitly encouraged Betamax users to infringe copyright with their videotape recorder (ads, internal emails, business plans). Consequently, under this standard, sales of the Betamax were shut down. What happens when VHS comes along? What will the makers of VHS have to do in order to avoid liability thanks to the bad actions of Sony?
Should VHS be punished for going after the Betamax market? It would have been hard for VHS not to go after the Betamax market, that's where the buyers of VCRs are. As I asked in the roundtable, "What would StreamCast and Grokster have to have done in order to avoid liability for following in the footsteps of bad actor Napster? What will the next developer of P2P have to do if Grokster and StreamCast are found liable in the lower court?" This decision leaves the issue fairly uncertain.

Next, the infamous, footnote 12 and questions of design. First the paragraph it is attached to:

Second, this evidence of unlawful objective is given added significance by MGM?s showing that neither company attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software. While the Ninth Circuit treated the defendants'failure to develop such tools as irrelevant because they lacked an independent duty to monitor their users' activity, we think this evidence underscores Grokster's and StreamCast's intentional facilitation of their users? infringement.
And, footnote 12, itself:
Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor.
What the heck does this mean? No one seems to know. Rather contradictory, actually.

Honestly, this doesn't make a lot of sense. Imagine the VCR scenario again. Imagine that Sony was a bunch of infringement inducing scum with the Betamax. Now, the VHS standard comes along and they seem to be going after the Betamax market (sort of hard to avoid, actually). Suddenly, it is evidence of illicit intent that the VHS was built without broadcast flag technology?

I suppose it will end up turning on how big one thinks the Sony safe harbor actually is. The Court really punted this one.

The bootstrapping continues:

Third, there is a further complement to the direct evidence of unlawful objective. It is useful to recall that StreamCast and Grokster make money by selling advertising space, by directing ads to the screens of computers employing their software. As the record shows, the more the software is used, the more ads are sent out and the greater the advertising revenue becomes. Since the extent of the software's use determines the gain to the distributors, the commercial sense of their enterprise turns on high-volume use, which the record shows is infringing. This evidence alone would not justify an inference of unlawful intent, but viewed in the context of the entire record its import is clear.
"[I]ts import is clear?" Clear? I think not.

The Supreme Court points to three main reasons by Grokster and Streamcast intend infringement. The first is that they went after Napster's users. That's pretty darn weak evidence by itself. Everyone wanted to capture Napster's market, legitimate and illegitimate services alike. Why do you think Napster 2.0 is still around? The Court then boostraps this weak evidence into turning what the Court admits would be otherwise lawful conduct, into evidence of illicit intent.

So, bascally, the Court has said that you don't have to design your software to avoid infringement. Feel free to earn advertising revenues (gee, thanks), but once you pass some unknown threshold of intent (what? an internal email, an ambiguous advertisement, what?), these two otherwise lawful acts will be held against you. Apparently, the Court wants a balancing test of some sort. How this is balanced is going to be key. I almost want some terribly incriminating statements from Grokster and StreamCast to be entered into evidence in the district court, as they're doomed at its best that we don't get a narrow reading of Sony in the context of this threshold for intent argument.

The conclusion of the opinion is a bit defensive of this argument, I think:

If liability for inducing infringement is ultimately found, it will not be on the basis of presuming or imputing fault, but from inferring a patently illegal objective from statements and actions showing what that objective was.
One man's imputing is another man's inferring, presumably.

Ginsburg's Concurrence

The less said about the Ginsburg concurrence the better. I think, though, that the concurrence is fairly limited to the facts developed in this particular case and to a record that wasn't fully developed through trial. Furthermore, there is very little explanation of what "capable" means in Sony. The concurrence seems firmly rooted in a fixed timeframe and reflects Justice Kennedy's questions about free riding on copyrighted works to get a technology off the ground.

Breyer's Concurrence

Ah, sweet reason, three Justices who get it. Here, there is a discussion of what capable means, revealing a view of technology that develops over time.

Here the record reveals a significant future market for noninfringing uses of Grokster-type peer-to-peer software. Such software permits the exchange of any sort of digital file -- whether that file does, or does not, contain copyrighted material. As more and more uncopyrighted information is stored in swappable form, it seems a likely inference that lawful peer-to-peer sharing will become increasingly prevalent. [citations omitted]

And that is just what is happening. Such legitimate noninfringing uses are coming to include the swapping of: research information (the initial purpose of many peer-to-peer networks); public domain films (e.g., those owned by the Prelinger Archive); historical recordings and digital educational materials (e.g., those stored on the Internet Archive); digital photos (OurPictures, for example, is starting a P2P photo-swapping service); "shareware" and "freeware" (e.g., Linux and certain Windows software); secure licensed music and movie files (Intent MediaWorks, for example, protects licensed content sent across P2P networks); news broadcasts past and present (the BBC Creative Archive lets users "rip, mix and share the BBC"); user-created audio and video files (including "podcasts" that may be distributed through P2P software); and all manner of free "open content" works collected by Creative Commons (one can search for Creative Commons material on StreamCast). [citations omitted] I can find nothing in the record that suggests that this course of events will not continue to flow naturally as a consequence of the character of the software taken together with the foreseeable development of the Internet and of information technology.

That's what I'm talking about!

I would continue to cite from it, but I would end up copying the whole thing. I imagine that it will become one of the most popular concurrences written, cited for its wisdom and insight into issues of innovation and the promises of communications technology. Its a great foundation, anyway.

UPDATE 1900PT

Welcome Instapundit readers! If you've made it this far, you obviously are very interested in the Grokster decision. Here are some more links:

I live-blogged the two main, opposing press conferences on the decision today:
Notes on the RIAA / MPAA Press Conference
Notes on the Pro-Grokster Press Conference

Lots of links and analysis here:
Grokster Loses - Unanimously - Inducement Test?

I participated in the Wall Street Journal's Grokster Roundtable.

Darknet author JD Lasica is guest-blogging here today and has these posts:
Grokster: Theory and Practice
Grokster Open Thread: Your Views

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Grokster open thread: Your views

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Posted by JD Lasica

I've been reading the opinions of experts all day long at SCOTUSblog, at the Wall Street Journal roundtable, at copyfight blogs, and so on.

But I'm wondering what the (well-informed) readers of this blog think. Do you think the court struck a reasonable balance in its ruling today? Will innovation suffer, as the Consumer Federation of America, Consumers Union and Free Press maintain?

Will file-sharing taper off as more people are driven to legitimate digital marketplaces like iTunes, or will this drive kids and digital denizens deeper into the Darknet?

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Grokster: Theory and practice

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Posted by JD Lasica

Ernest was kind enough to let me add my two cents here as a guest blogger over the next couple of days. I'm a writer (author of the new book Darknet: Hollywood's War Against the Digital Generation) and executive director of Ourmedia.org.

As I was driving my car this morning and news came of the Grokster decision, a knot tightened in my stomach. Now that I've had a chance to read most of the decision and the accompanying commentary, the knot has loosened a bit.

It looks like I come down somewhere in the middle of all the opinions flying about. I don't quite see it as the sweeping victory for content and technology that Susan Crawford suggests, nor do I see it as the setback for innovation as the EFF's Fred von Lohmann posits.

I think we need to look at the High Court's ruling (the theory), but also its potential impact in the real world (the practice).

The balancing test laid out by Justice Souter strikes me as reasonable. In Darknet, I criticize companies like Grokster and Kazaa, whose business models are built on copyright infringement. A test that sets a standard for making companies responsible if their business model actively induces infringement seems to strike the right balance.

But:

We know how Hollywood plays this game. It doesn't need to win in court in order to achieve its ends. What's unsettling is that, as we've seen time and time again, Hollywood merely has to file enough lawsuits to send a startup's legal bills into the stratosphere in order to muscle it into abandoning cutting-edge technologies that the studios don't like. Remember ReplayTV, which let people share a copyrighted program with 15 other people for one time only?

We're already beginning to see some fallout: In a Washingon Post chat today a reader asked: "Should I now turn off the music sharing option on iTunes? We have a network in my office with about a dozen regular users."

This is the danger, that we'll all be forced to use our devices on terms dictated by Hollywood. Apple has already made its iTunes music sharing service much less useful and user-friendly since it was introduced about two years ago. It may now dumb it down even more.

I'd like to ask Ernest what he meant earlier today when he wrote: "I do think this may turn out to be a significant victory for technology providers in general." Those who invest in future p2p startups may be a bit more reluctant to do so this morning, regardless of the court's language.

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Questions for Podcast on Grokster Decision

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Posted by Ernest Miller

Later this afternoon, I'll be recording a podcast for IT Conversations on the Grokster decision with Denise Howell of Bag and Baggage and C. E. Petit of Scrivener's Error. Use this post to submit any questions you have about the decision or topics you'd like covered. I can't guarantee that we'll answer all of them, but I'll make an effort to see that we cover the best ones.

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Notes on RIAA and MPAA Press Conference

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Posted by Ernest Miller

I missed some of the beginning statements due to the difficulties in connecting to the conference call, but here are my notes on the RIAA/MPAA press conference. I didn't catch the names or affiliations of those providing the opening statements or answering the questions. No exact quotes, just the gist:

Parents will come home and say there is a right way and a wrong way. That is what this is all about. Today is not a panacea. It represents a new day, it is a pivot point. Those who encourage and profit from infringement will be held liable. This means the legitmate market has the ability to take off. Fans and musicians won. We want to work with P2P, embrace technology, start filtering we can enter a better digital age together.

I can't stress enough that a unanimous Supreme Court issued a victory for the rule of law. The other parties in this case created systems that were made for the purpose of facilitating copyright infringment, the taking of music and movies. Taking from the people who put their sweat into making things we enjoy. The constitution protects this, It is in the constitution because they knew we needed this incentive to create something that we might all enjoy. This is a ruling that everyone who creates music, books are entitled to protection under the Constitution. When people create a product to help people take this content, they will be liable for it. All nine justices agree with this principle.

Three fundamental points taken to the court. First, the underlying activities, the downloading of copyrighted works is simply unlawful, plain and simple. Court called it "Garden variety theft." The unanimous decision speaks to the culture. Second, it can't be right under law to build a business on the basis of taking someone's property. You can't build a business that the point is to take other people's property. Unanimously vindicated. Third, it was all about balance. In Sony, the Court sought balance between copyright and technological innovation. Court rejected that Sony was a free pass for technology. Terrific result.

Q: What does it mean for millions of American who use iPod?

A: They're doing it the right way, they're ahead of their peers. There will be more of them.

Q: It is not the technology that the Court was targeting but the business model?

A: Precisely. There is technology out there (Audible Magic, Shawn Fanning) that will make P2P part of this market.

Q: [unintelligble]

A: If you look at the last paragraph of opinion. Court ought to look at summary judgement in favor of Hollywood.

I think the same principles that lead to Grokster and StreamCast will lead to similar decisions against other providers.

Q: If you prevail in lower court, what happens?

A: We're still entitled to full range of equitable relief as well as damages. The point is to migrate this technology to a place where it works with legitimate providers. The infringing has to stop. Audible Magic, Shawn Fanning provide such technology.

A: This is a story that evolved over six years. The last couple of years we've seen the emergence of a legitimate market and clarity about what the law is. We're going to see a transition in the market place. Two years ago there was no legitimate source, today 4% of households use legitimate. That will increase.

Q: What about illegal tech dragging industry into legitimate market?

A: That is exactly backwards. Legitimate alternatives were thwarted by illegitimate options. This decision will change that climate and help legitimate thrive.

Hassle-free, reasonable cost access to content is where we're going. We can be leaders, provided it isn't for free. We can provide these options in the future.

Q: Have you addressed whether you're going to take this back to Congress and what you might do?

A: This decision was rendered today. This was a 9-0 decision, they don't agree what to have for lunch. They've agreed that our content is worthy of protection. I think it is doubtful that this will be rushed back to Congress. There will be hearings, there might be bills proposed, but unlikely anything will happen.

Q: [unintelligble]

A: In a corporate world, folks will respond to this decision and turn to legitimate avenues.

Q: [unintelligble]

A: I'm not sure I know the answer to the question, exactly what the scope of the damages will be?

Q: What about off-shore companies? Do you expect filesharing to go away?

A: No. We have a goal that is reasonable, the legitimate market place will outpace illegitimate marketplace. There will be offshore companies, but our laws have strong international enforcement. And there will be other reasons (spyware, viruses) people will want to switch.

Q: What about designing anti-piracy features up front.

A: What the court is doing is setting a commonsense standard. If you're Apple, you're fine. If you're Grokster and Streamcast, it is clear from any number of things that they are inducing, you're not going to be fine. We don't think it will be difficult to determine what is an illegitimate or legitimate business.

Q: How will you go about going about the process of the message integrated in the culture? How do you speak to the parents or their kids?

A: We are doing this right now, you report on this decision. This is an obligation that we all have. The industry, parents, teachers, Congress, AGs everyone has to do this. We need to band together, work together. We'll go wherever folks want.

Clarity is important. This ruling is about as clear as can be. The ubiquity of the internet has confused people about what is property to be protected and what is not. This decision is so precise that it should have a very powerful impact and disincentive on illegal behavior.

Q: Will there be any difficulty in establishing in district court that Grokster/StreamCast met inducement standard?

A: The opinion speaking for all nine, makes this clear. The district court should reconsider whether summary judgement should be revised. The Court's view of the evidence is that this is a powerful case.

Q: Will this have a chilling effect on new technology or innovation?

A: This will inspire new technology because it is clear about what is right and wrong. This will be a foundation for new creativity on the artists side. They can make music, write screenplays because they know they won't be stolen on the internet.

Some of our friends on the other side like to engage in fear. This is fear-mongering. To say this is a threat to innovation is a gross hyperbole.

Q: The whole Grokster/Napster mentality was payback for ripping off consumers?

A: If you think about buying single tracks, that is an improvement. The fundamental point is that you paid for the thing.

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Notes on Pro-Grokster Press Conference

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Posted by Ernest Miller

The pro-Grokster side held a press conference on the decision. Here are my notes. These aren't direct quotations, but my quick notes on what people were saying.

UPDATE 1320PT
The audio is now avaible as an MP3: Pro-Grokster Press Conference [MP3] or Pro-Grokster Press Conference [MP3]. Watch for this to quickly jump on the filesharing nets.

  • Richard Taranto, Farr and Taranto, argued the case before the Supreme Court
    A few words, two different aspects to think about this case. What this means for the future of this litigation and how Grokster and Streamcast will fair under the remand directive. The decision is multi-faceted and the evidence burden is unclear so that it We think we will have the evidence to dispell the inference that the entertainment companies have the right to prove that there is sufficient evidence for liability. We were not in the Supreme Court of the unavailability of a theory of inducement for copyright liability.

    The second and much more important aspect of what the courts did today was to write a set of standards, the most notable feature of which is the lack of clarity. Promoting infringement and knowledge of how technology will be used. The Court has provided a very difficult roadmap to follow. We have a multi-factored standard that you can't be sure how will be applied to you. The immediate impact for technology industry will be a ... one?

  • Fred von Lohmann, Senior Staff Attorney for EFF, with Cindy Cohn
    Will unleash an era of legal uncertainty for America's innovators. When we see the evidence in District Court, Streamcast will not be held liable. There is a new theory of copyright liability. Didn't clarify Betamax, didn't clarify vicarious liability. It will take courts some time to clarify this. By focusing on intent, the Supreme Court has opened the door to see the notes of engineering meetings, marketing plans, emails of executives. This is a high burden for technology companies.
  • CEO of Streamcast
    Another hurdle for this company. We are confident that Streamcast did not go beyond the letter of the law. We look forward to our day in court. We're staying in this fight.
  • Gigi Sohn, President and Co-Founder of Public Knowledge
    I see positive things for technology companies and consumers. The court reaffirmed the basis for the Betamax case. P2p as a technology can be The court focused on affirmative acts. We will see if there is enough evidence to prove viability. Sony has been preserved. There has been a lot of debate as to whether Congress will have to act to protect Hollywood's rights. It is clear that there is no need for Congress. There is nothing that Hollywood should want or need for Congress. Technology and consumers can be somewhat optimistic about this decision.
  • VP of Technology Policy, of the Consumer Electronics Association
    Still digesting decision. Quite concerned about a new theory of liability will be harmful. Quite conscious about a very competitive world, such as companies in China and India that do no The legal clarity has decreased. The risk of litigation has increased. From a competitive point this is not a good thing. With the INDUCE Act litigation introduced in last Congress, this makes the legal landscape less clear. We seek a pro-technology, pro-innovation landscape.
  • Michael Page of Keker & Van Nest, attorney for Grokster
    Good things and bad things. Court decision to uphold Sony is a good thing. I'm disappointed that the Court didn't address vicarious liability at all. Active inducement is part of contributory infringement, but the discussion of what it means to induce leaves a number of conflicting standards. If you replace a prior p2p software that was inducing with another, you can be held liable. Conflicting signals looks to litigation. The vagueness of the court's discussion of inducement will cause problems down the road.
  • Edward Black, President and CEO of the Computer and Communications Industry Association
    We agree more time to read it all over. This is a very dangerous decision for technology and innovation. It is big victory for lawyers. Sony upheld. But if you consider Sony an umbrella and shield, it is now full of holes. Hollywood to a large extent, has achieved what it wanted.Time for them to change to new business models. We have seen a greater trend to regulatory encroachment, this is an unhealthy trend for everyone who cares about the internet. This decision does uphold the fundamental decision in Betamax.
  • Charles Baker of Porter & Hedges, representing StreamCast
    I've been representing StreamCast for sometime. We will be back before the district court, we look forward to litigate this issue. We believe very strongly that under this new standard StreamCast will not be held liable. This is a confusing new standard. This can lead to expensive litigation, a very fact intensive standard. If you think about inducing, you could be liable. This will not slow down, but only intensify litigation. It will hamper technology innnovation.
  • GC for StreamCast
    Decision seems Orwellian. Hollywood become thought police. People in their garages will have to be concerned about everything they think, everything they say to others.. have to be very Full lawyer employment outcome. Lawyers will be pulled into every aspect of business. Innovation and American public will suffer.

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Wall Street Journal Roundtable on Grokster

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Posted by Ernest Miller

The Wall Street Journal is hosting an Grokster roundtable - it open to the public (Grokster Roundtable). I will be taking part, along with these other, very distinguished participants:

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Grokster Loses - Unanimously - Inducement Test?

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Posted by Ernest Miller

via SCOTUS Blog

The Supreme Court ruled unanimously that developers of software violate federal copyright law when they provide computer users with the means to share music and movie files downloaded from the internet.
The decision when it appears. Unanimously. That's harsh.

UPDATE 0810PT
And here's the decision (from the AP): No. 04-480, MGM Studios v. Grokster, reversed 9-0, in an opinion by Justice Souter [24-page PDF]. Justice Ginsburg concurred [8-page PDF], joined by the Chief Justice and Justice Kennedy; and Justice Breyer concurred [18-page PDF], joined by Justices Stevens and O'Connor.

From the opinion:

We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.
Active inducement it is.


Perhaps not so bad from the AP via Yahoo News! (Court: File-Sharing Services May Be Sued):

Internet file-sharing services will be held responsible if they intend for their customers to use software primarily to swap songs and movies illegally, the Supreme Court ruled Monday, rejecting warnings that the lawsuits will stunt growth of cool tech gadgets such as the next iPod.

The unanimous decision sends the case back to lower court, which had ruled in favor of file-sharing services Grokster Ltd. and StreamCast Networks Inc. on the grounds that the companies couldn't be sued. The justices said there was enough evidence of unlawful intent for the case to go to trial.....

"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties," Justice David H. Souter wrote for the court. ...

But in Monday's ruling, Souter said lower courts could find the file-sharing services responsible by examining factors such as how companies marketed the product or whether they took easily available steps to reduce infringing uses.

"There is substantial evidence in MGM's favor on all elements of inducement," Souter wrote.

Sounds like an inducement test. How strong is it? We will have to wait for the decision to see.

UPDATED - Links to Discussion Continuously, throughout the day

For masochists: Slashdot: Your Rights Online: Supreme Court Rules against Grokster

Public Knowledge statement from their president Gigi Sohn:

Today's Court decision in the Grokster case underscores a principle Public Knowledge has long promoted -- punish infringers, not technology. The Court has sent the case back to the trial court so that the trial process can determine whether the defendant companies intentionally encouraged infringement. What this means is, to the extent that providers of P2P technology do not intentionally encourage infringement, they are exempt from secondary liability under our copyright law. The Court also acknowledged, importantly, that there are lawful uses for peer-to-peer technology, including distribution of electronic files 'by universities, government agencies, corporations, and libraries, among others.'

The Court is clearly aware that any technology-based rule would have chilled technological innovation. That is why their decision today re-emphasized and preserved the core principle of Sony v. Universal City Studios -- that technology alone can't be the basis of copyright liability -- and focused clearly and unambiguously on whether defendants engaged in intentional acts of encouraging infringement. The Court held expressly that liability for providing a technological tool such as the Grokster file-sharing client depends on 'clear expression or other affirmative steps taken to foster infringement.' What this means is, in the absence of such clear expression or other affirmative acts fostering infringement, a company that provides peer-to-peer technology is not going to be secondarily liable under the Copyright Act.

Douglas Lichtman: Lichtman: Hollow Victory in Grokster.
He is disappointed that the Court didn't follow the liability rule that he supported, inducement can be difficult to prove.

Larry Solum makes an excellent point about the concurrences and their two very different takes on the Sony standard (Solum: The Grokster Concurrences).

More Solum: Solum: A Legal Engineering Failure.

Each of the important P2P filesharing cases has involved a failure of "legal engineering"--the legal design of the P2P business. In the Napster case, the failures were the most egregious--with "smoking gun" memos indicating that the purpose of Napster was to faciliate copyright infringement. In Grokster, the failures were almost as bad.
C.E. Petit extends Solum's point and responds to Susan Crawford: Balanced or Evasive?.

Lior Strahilevitz: Grokster and Bongs. 'nuff said.

Me, from the Wall Street Journal Grokster Roundtable

I would like to pose some questions. Imagine that Sony had been a nefarious group of active inducers when they brought out their Betamax. Suppose that there was ample evidence that Sony fully intended and explicitly encouraged Betamax users to infringe copyright with their videotape recorder (ads, internal emails, business plans). Consequently, under this standard, sales of the Betamax were shut down. What happens when VHS comes along? What will the makers of VHS have to do in order to avoid liability thanks to the bad actions of Sony? In this decision, the Court emphasizes that StreamCast and Grokster followed in the wake of Napster and wanted to capture Napster's users. But, heck, iTunes wants to capture Napster's users as well. What would StreamCast and Grokster have to have done in order to avoid liability for following in the footsteps of bad actor Napster? What will the next developer of P2P have to do if Grokster and StreamCast are found liable in the lower court?
Ed Felten, Freedom to Tinker: Business Model as Evidence of Intent and Legality of Design Decisions, and Footnote 12 in Grokster.

More attention for footnote 12 from Randy Picker: The Lurking Design Issue in Grokster.

Kathleen Sullivan has a good summary on SCOTUS Blog: Hollywood Beats Grokster But Not Silicon Valley

EFF press release: Supreme Court Ruling Will Chill Technology Innovation.

"Today the Supreme Court has unleashed a new era of legal uncertainty on America's innovators," said Fred von Lohmann, EFF's senior intellectual property attorney. "The newly announced inducement theory of copyright liability will fuel a new generation of entertainment industry lawsuits against technology companies. Perhaps more important, the threat of legal costs may lead technology companies to modify their products to please Hollywood instead of consumers."
William Patry : The Court Punts. Must reading, of course.
I need as most do, more time to sort through this, but my first read through is negative. We have two very different visions, Ginsburg's camp, which focuse more on what the hard evidence is now, and Breyer's, which focuses on the promise of technology, with three votes uncommitted to either camp. Regardless of whose side you favor, that kind of split is not helpful.
Indeed.

Hilary Rosen in the Huffington Post: The Wisdom of the Court , Part 2.

But knowing we were right legally really still isn't the same thing as being right in the real world. We had that euphoria with the first Napster decision. I hope my former colleagues remember that.
Derek Slater on DeepLinks: What is Inducement?.
Indeed, the Court harped on the companies' mere decision to market to Napster users. Because some Napster users infringed, advertising themselves as new Napsters indicated "a principal, if not exclusive, intent on the part of each [company] to bring about infringement." Even use of the -ster suffix drew the Court's ire. (Friendster, you're on notice.)
Yeah, this is a real problem. You have to remember that the technology in Grokster is substantially dissimilar. Yet, by aiming for the same market as the original Napster, they get in trouble. What of the new Napster, which even retains the same name?

Rebecca Tushnet on SCOTUS Blog: More Questions than Answers.

This leads into my big questions: What would this opinion really have meant for the VCR? Would “See any TV show you want to, anytime you want to see it” or “build a library” count as enough obvious encouragement of librarying – which was not found to be fair use – to justify a finding of contributory infringement? (I’m still looking for a copy of the “build a library” ad, unfortunately.) What about “any TV show” in the context of pay cable, which again was not analyzed as fair use when the Court looked at time-shifting free broadcast TV?
See the question I asked above, as well. Tushnet is more concerned about this decision than I am. I don't think SourceForge needs to worry too much. But there are others who will.

Eric Goldman has an excellent summary: Grokster Supreme Court Ruling. Really good stuff.

Fred von Lohmann discusses points he made before the decision and how they apply after the decision: Supreme Court Sows Uncertainty.

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Where I'll Be Reading About Grokster and Brand X

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Posted by Ernest Miller

Where I'll be reading about the decision:

This post will be updated ...

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June 26, 2005

Non-Discrimination in 17 USC 115 Reform

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Posted by Ernest Miller

Larry Lessig responds to my comments on his statements about the Copyright Office's proposed reforms of 17 USC 115 (Wow -- I Said That?). My original response here: Lessig on the Proposed 17 USC 115 Reform. Another follow-up incorporting Joe Gratz's thoughts here: Gratz on Lessig on 17 USC 115 Reform.

Larry argues that neither Joe nor myself respond directly to the point he was making:

But my criticism was quite local and specific, and not really addressed by either Joe or Ernie. My criticism was about the potential for discrimination. The Register is almost exactly right to say "But in determining public policy and legislative change, it is the author - and not the middlemen - whose interests should be protected." Almost exactly right, because in my view, we should be determining not just "the author" but "the authors" -- the ecology of creativity enabled by copyright's rules. The wonderful and powerful claim in the 1967 testimony is that granting fewer derivative rights to composers than we grant to, say, book authors, produces a wider range of music creativity. I find this argument to be compelling. [emphasis, links in original]
I'm not quite sure that I didn't address this issue, though perhaps not explicitly. It may very well be that limiting the derivative work right produces a wider range of music creativity. But as I said in my reply, this comes at the expense of those whose creativity is in tools for distribution not to mention the social networks that through those tools.

One of the problems with 115 is that it creates a mandatory license for the composition, but no corresponding requirement for the sound recording to be similarly licensed. As I noted, the recording companies get the best of both worlds. Complete access to any composition and the ability to exclude similar use of their sound recordings. I would probably have a much different take on 115 reform if the record labels had a "share-alike" requirement to take advantage of the compulsory.

The consequence of this is that the artists and creators who want to make further use of sound recordings have to get permission from the record label and the rights holder for the composition. These creators face the potential for discrimination from two sources. More musical creativity comes at the cost of less potential creativity in other realms. These aren't simply transaction costs.

How do we weigh these issues? What is more important? Covers or new distribution communities or derivative works that can't use the compulsory? I don't think we really can determine this, and even if we could, technology and society change over time rendering old laws not well suited to new situations. After all, the compulsory was originally for the creation of player piano rolls, not sound recordings. I imagine that Congress believed one player piano roll was probably as good as the next. And limited to player piano technology, the legislation probably worked well. But the technology changed. And what is good for player piano rolls may not be good for digital sound recordings in the age of the internet.

Due to these issues, I believe that the ecology of copyright should remain neutral as possible with regard to technology and to medium. We should treat authors and composers the same.

Now the Register's proposal doesn't do that exactly. However, by moving the law closer towards unification of rights, it is an improvement over 115.

Larry anticipates this objection:

That will of course invite the question -- "why should composers have fewer rights than authors"? (Joe criticizes the "massive and ongoing wealth transfer from song writers to record companies.") My answer -- which I've blathered on about elsewhere -- is that this has it backwards. The restriction on speech -- which every derivative right is -- should have to justify itself. And that "justification for private rights," as libertarian law professor Richard Epstein puts it, "has to be social." The particular difficult justification presented by this extremely odd "private right" is framed well by Professor Rubenfeld. That work, and of course the work of many others, should lead us to ask again and always: how broadly should the law secure "derivative rights" — remembering again that copyright was born with no derivative rights.
To a certain extent, I've already answered this. But I want to note that I couldn't agree more that we should further limit derivative rights. In my view, they are far too broad. I believe that the First Amendment does have something more to say about copyright law then is current doctrine. I've also considered the notion (for a number of reasons, including the First Amendment, I won't go into here) that what I call the public distribution right should be limited to non-discriminatory terms. Not necessarily reasonable, but non-discriminatory.

But I also think that we have to justify why performing musicians get their rights at the expense other creators, and the social communities that they create and of which they are a part. If as policy, or constitutional interpretation, we should limit derivative rights, I don't think we should do so simply for one group of artists, particularly at the expense of another.

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More Pre-Grokster Commentary

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Posted by Ernest Miller

The pre-Grokster commentary continues. Boy will I be glad when we finally get a decision.

Hilary Rosen weighs in from the Huffington Post, arguing that the marketplace is where the issue will really be settled: The Supreme Wisdom of Not Relying on the Court:

This is a big case with lots of money poured into it from all sides. It is said that the Supreme Court’s decision will be one of the most important copyright cases ever on the books. I think it has all the makings of being famous for another reason. Because while the victory of whoever wins maybe important psychologically, it just won’t really matter in the marketplace.
The article is also interesting in that Rosen now self-identifies as a consumer. As if. And, yes, the marketplace will create a solution, but the law creates the marketplace. Does Rosen think the marketplace would be the same no matter the decision?

Chris Nolan looks at the meta-commentary in eWeek (Preparing for the Grokster Watershed). No matter what the decision, the lawyers and lobbyists win as the case will move from the judiciary to the legislature.

The fight to change copyright law isn't going to be cheap, short or sweet for anyone.

Scrivener's Error continues to get a jump on the competition (Another Advanced Note on Grokster).

Another change in rhetoric that I'd prefer to see is eliminating the purported distinction between contributory and vicarious copyright infringement; instead, I prefer the term "indirect", which is less inflammatory, more accurate. and a better description of the general class of behavior without getting bogged down into questions of "fault." Copyright is, after all, a strict liability statute; importing fault into it should concern only the remedy (or perhaps highly limited defenses), not liability. However, that would require a wholesale rewriting of the law of indirect infringement by Congress, which Congress explicitly refused to do when adopting the DMCA. [emphasis in original]
UPADATE 0810PT
For post-Grokster commentary see here: Grokster Loses - Unanimously - Inducement Test?.

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June 25, 2005

Gratz on Lessig on 17 USC 115 Reform

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Posted by Ernest Miller

Joe Gratz takes Larry Lessig to task for his critical statement regarding the Copyright Office's proposed reform of 17 USC 115 (Lessig Gets It Wrong On Register’s 115 Reform Proposal). I was similarly critical yesterday, though my comments focused on the benefits of elimination of Section 115 (Lessig on the Proposed 17 USC 115 Reform). Joe, instead, focuses on the positive aspects of the proposed reforms:

The practical effect of the Register’s proposal is to force ASCAP, BMI, and SESAC (now referred to as “Music Licensing Organizations” or MROs) to offer blanket licenses for reproduction and distribution along with the blanket licenses they already offer for public performance. Access to all works licensed by the three MROs remains unhampered, and even becomes easier. ....

So, the practical effect of the Register’s proposal would be to institute a system of unified blanket licensing for the public performance, reproduction, and distribution of substantially all non-orphan musical works, especially by digital means. That’s what the Register is trying to do, I believe. The proposal also appears to be motivated by a feeling that the 115 compulsory enacts a massive and ongoing wealth transfer from songwriters to record companies — a feeling I share.

This is the right way to fight piracy — by making it as easy as possible for digital music services to license the rights they need. The collateral damage to small-time users of musical works will be minimal, and the benefit to consumers will be enormous.

I'm still not ready to endorse the reform, but this is what it looks like to me too.

Part of this, of course, is my belief that there should be only three aspects to copyright: scope (what qualifies for copyright and derivative works), term and the right of public distribution. I don't believe in reproduction as a right, something I've said time and time again. By forcing the MROs to license reproduction, distribution and public performance together, you begin to see the outlines of what a right of public distribution might look like. After all, "performance" and "display" are just means of "distribution".

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June 24, 2005

Lessig on the Proposed 17 USC 115 Reform

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Posted by Ernest Miller

Larry Lessig takes a swipe at the Copyright Office for suggesting reform of 17 USC 115 if by reform you mean "eliminate" (The Register Wants Reform). More on the important proposal here: Forget Grokster? A Recording Industry Bombshell from the Copyright Office.

Lessig cites a discussion of the provision in 1967 House Judiciary Report:

[T]he record producers argued vigorously that the compulsory license system must be retained. They asserted that the record industry is a half-billion-dollar business of great economic importance in the United States and throughout the world; records today are the principal means of disseminating music, and this creates special problems, since performers need unhampered access to musical material on nondiscriminatory terms. Historically, the record producers pointed out, there were no recording rights before 1909 and the 1909 statute adopted the compulsory license as a deliberate anti-monopoly condition on the grant of these rights. They argue that the result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice.
Larry writes:
Apparently the Registrer believes performers no longer "need unhampered access to musical material on nondiscriminatory terms." What progress.
I don't necessarily see the issue this way. While I'm still haven't come to any conclusions about the proposed reforms, I remain a critic of 17 USC 115 and would be happy to see it eliminated on general principles. And it's not because I'm against unhampered access to music. I'm all in favor. The question is how best to achieve this.

I believe that it would ultimately be easier to achieve through proper unification of rights and a voluntary collective license. I believe a voluntary collective license will be easier to acheive without the artificial split in rights created by Section 115. Heck, mandatory collective licensing would probably be easier to implement without 115.

It would simplify licensing issues for new technologies immensely. Under 115, unhampered access for artists comes at the expense of further hampering developers and users of new technologies, such as webcasting and, now, podcasting. One might frame the argument in favor of 115 reform as not one of hampering artists, but unhampering technological innovators.

Arguably, 115 has actually been harmful to creators on a whole. Not only has technological innovation suffered, but by taking the songwriters essentially out of the equation, the record labels have comparatively greater power as against the interests of the performing artists.

And, maybe, more musicians (and record labels) might favor less copyright if they didn't have such easy access to making covers. They might be a bit more sympathetic to other artists who don't have similar privileges and might want to clear rights for snippets of audio in a documentary, for example. I mean, why should record labels care about copyright reform? They've got their mandatory license and complete copyright control over the rest. They've got the best of both worlds. They get to copy what they want and stop people from copying their stuff.

There are a number of other benefits that would flow from elimination of 115. Copyright would be simpler, for one. We're all creators and publishers today. We shouldn't all have to be copyright lawyers as well. "You see, Suzy, there is a composition right and a recording right ..."

And, hey, I'll say it again. 17 USC 106(1), the right of reproduction, should just go away. Copying is such a 20th century concept. Copyright should be about distribution of information, not "copies." Section 115 essentially embeds the concept of "copies" in copyright. So we have these crazy arguments about whether a dual-pressed CDs, with two versions of a sound recording in two different formats counts as two "copies" or not. Copies, schmopies. Let's talk distribution, instead. Getting rid of 115 helps that, just a bit.

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Grokster + Brand X = Issues of Openness? It's All About the Distribution, Baby!

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Posted by Ernest Miller

Prof. Michael Madison points to the debate over Brand X that is starting on Picker MobBlog (MobBlawg LiftOff). [Btw, Picker calls his site MobBlog. I like Madison's MobBlawg better.] Michael agrees with one of the MobBlawggers that Brand X may ultimately be a more important decision than Grokster. Furthermore, Michael points to a Dec 2004 post of his that looks at the conceptual connections between the two: they both are means of regulating communication (On Grokster and Brand X). Abso-posi-lutely! It's all about the distribution man! It's freedom of the press, it's telecomm, it's copyright. It's Network Law. It's All About the Distribution, Stupid. It's Freedom of the Press, Stupid. We're going to need analytic tools that work similarly in all these areas of law and treat them as one whole system of regulating communication.

Anyway, for a very nice discussion of how to frame some of these issues, see Randy Picker's post, Framing Openness and the response from Phil Weiser here: Making Sense of Openness.

In response to, or perhaps, just going off on my own tangent I would like to bring in the traditional concept of common carriage as part of the openness conversation, as that is yet another way we've framed openness issues in the past.

For example, Picker makes an interesting comment:

I am comfortably in the camp of those who believe that an author should have some rights associated with her work and indeed don’t believe that even most of the copyright left favor eliminating all of the attributes associated with copyright.
Well, airlines are common carriers. But advocating common carriage for airlines doesn't necessarily mean that one wants to completely socialize airlines. I see the copyfight similarly.

Weiser notes:

Notably, in some cases, there will be alternative platforms (such as cell phones or video games), creating powerful incentives for some providers to voluntarily provide "open access" to their platform.
Heck, yes. But I'll note in reply that in the case of common carriage, we apply it despite the fact that there are many alternatives. There may be many airlines servicing a particular airport, some even duplicating routes, but we still regulate them as common carriers. Furthermore, airlines have competition from trains and buses. One might say "there are alternative platforms" for airlines, so why regulate them as common carriers? Yet, we do. Interesting, that.

Just some random thoughts on a beautiful Friday afternoon.

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Network Law | Open Access | Telecomm

June 23, 2005

June 22, 2005

Forget Grokster? A Recording Industry Bombshell from the Copyright Office

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Posted by Ernest Miller

Forget waiting around to read SCOTUS on Grokster. This is a grenade thrown right into the bunker that is the music publishing establishment while announcing to the record companies that they will finally have to really negotiate rates in a sort-of open market and simultaneously giving the Internet music services a huge boost.

So says an anonymous commentator who is very familiar with the legal and business aspects of the music publishing industry.

What is he talking about? Joe Gratz was one of the first with the news (Register of Copyrights to House: Repeal The Mechanical Compulsory, Restructure Music Rights Collectives).

The Register of Copyrights testified this morning before the House Subcommittee on Courts, the Internet, and Intellectual Property, urging them to repeal the section 115 compulsory license for the making and distribution of phonorecords of musical works and to restructure the collective licensing of performance and reproduction rights in musical works.
Wow. My jaw dropped when I read the announcement. Essentially eliminate 17 USC 115. Did I already say, "Wow"? This would be a radical and, in my view, welcome change in copyright law. I have long been a critic of the mechanical reproduction compulsory.

Read the full testimony here: Statement of Marybeth Peters, The Register of Copyrights, before the Subcommittee on Subcommittee on Courts, the Internet, and Intellectual Property, Committee on the Judiciary.

I had noticed that the Register of Copyrights, Marybeth Peters, was to testify earlier this week (Marybeth Peters to Testify on Music Licensing Reform). However, my brain had conveniently forgotten it and allowed me to miss the streaming version. [Wouldn't podcasts for this sort of testimony be great? (Podcasts for Congress: Good Idea or Premature?)] As regular readers know, I'm not fan of the Register (Senate Judiciary IP Subcommitee Hearing On Int'l Copyright Infringement). But really, this may be quite a progressive change.

I say "may be" because what the Register is advocating is a huge and technical change in copyright law. I'm still trying to get my mind around all its possibilites (and potential pitfalls). There are like to be many unintended consequences, but the gist of the proposed reforms seem right. EFF's Fred von Lohmann has many questions, but seems cautiously optimistic. He asks:

whether the MROs envisioned by the Copyright Office's proposed legislation would be able to grant blanket licenses to P2P end-users for file sharing? I haven't had time to parse it carefully, but this might well create the architecture to make voluntary collective licensing for P2P a very real possibility. (And, on the sound recording side, SoundExchange may become the relevant collective licensing solution for more than just noninteractive webcasting.)

I'm sure Marybeth had intermediaries in mind as licensees, but so long as direct blanket licensing of end-users isn't foreclosed, this could be a step in the right direction, no?

This could be a step in the right direction, yes.

Derek Slater summarizes some of this potential well (Register of Copyright Proposes Revision to Section 115 Compulsory).

Peters wants to dispose of the compulsory license for numerous reasons, but particularly because free market negotations would be preferable. But she doesn't view the free market in a wholly simplistic way, in which efficient outcomes would be reached if only we granted broad entitlements and got out of rights holders' way. Rather, in her proposal, she recognizes that carefully structuring and allocating rights can be crucial to achieving efficiency.

The proposal is aimed at engineering the market to reach a particular outcome. Its explicit purpose is "to foster a consolidated licensing structure," in which music rights organizations (MROs) would act as a "one-stop shop" for performance, reproduction, and distribution licenses.

However, Silicon Valley Media Law is quite right that caution is necessary and the public interest must be clearly taken into account (Register of Copyrights Advocates Repeal of Compulsory Licensing Under Section 115).
This proposal needs careful review. Peters indicates in her testimony that: "As always, my focus is primarily on the author. The author should be fairly compensated for all non-privileged uses of his work." However we hope that the public interest side of the copyright equation is being considered by the Copyright Office in this proposal.
Gratz does note one way in which it will be taken into account, citing Peters testimony on copyright infringement:
The increased transactional costs (e.g., arguably duplicative demands for royalties and the delays necessitated by negotiating with multiple licensors) also inhibit the music industry’s ability to combat piracy. Legal music services can combat piracy only if they can offer what the “pirates” offer. I believe that the majority of consumers would choose to use a legal service if it could offer a comparable product. Right now, illegitimate services clearly offer something that consumers want, lots of music at little or no cost. They can do this because they offer people a means to obtain any music they please without obtaining the appropriate licenses. However, under the complex licensing scheme engendered by the present Section 115, legal music services must engage in numerous negotiations which result in time delays and increased transaction costs. In cases where they cannot succeed in obtaining all of the rights they need to make a musical composition available, the legal music services simply cannot offer that selection, thereby making them less attractive to the listening public than the pirates. Reforming Section 115 to provide a streamlined process by which legal music services can clear the rights they need to make music available to consumers will enable these services to compete with, and I believe effectively combat, piracy.
This is spot on.

SVML also notes one of Peters' conclusions:

Except for the consent-decree issues with the public performance societies, a collective licensing approach could ostensibly be done today without legislation -- this proposal appears to focus on eliminating the assurance that a license can be had, as well as the statutory rate for same. According to Peters: "I recognize that if the proposal is enacted, some current music industry participants may have to adjust their business practices to maintain their current levels of profitability without the artificial rate ceiling afforded by the statutory license."
Adjust their business practices, indeed.

Let the debate begin!

UPDATE 1120 PT
GrafoDexia has some thoughts ( Summary and Some Analysis of Peters' Testimony). Read the whole thing.

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June 21, 2005

Copyright Lawsuit Over 'Zoom'

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Posted by Ernest Miller

Variety (watch ad for free access) reports that Fox and Marvel Comics have launched a copyright infringement lawsuit against Sony Pictures and Revolution Studios for their film adaptation of Zoom's Academy for the Super Gifted, to star Tim Allen (Fox Lowering a 'Zoom' Boom). The alleged infringement is that Zoom is too similar to X-Men. Frankly, I wouldn't care that much, except that Tim Allen was pretty good in Galaxy Quest and the claims in this case seem rather odd, according to Variety.

In an unusual move for a copyright infringement suit, Fox and Marvel are making the release date a key part of the complaint.

" 'Zoom's' release in May 2006 immediately before the release of 'X3' (or any release in proximity to the release of 'X3') is an unfair attempt by Sony and Revolution to manipulate the market and trade off the time, energy, resources and effort Marvel have invested in 'X-Men,' " the lawsuit states.

Yeah, that would seem pretty unusual in a copyright case. Sounds more like trademark dilution.

Of course the copyright infringement sounds particularly weak:

But based on a recent version of the script, Fox and Marvel allege the pic rips off "X-Men" with elements including teenage mutant super-heroes, an underground training facility, and a sinister government program.
Yeah. Uh huh. Those basic concepts are copyrighted. Right.

The truth is that this is just a strategic release date game that these mega corporations are playing in our court system:

Lawsuit seeks an injunction barring further work on "Zoom" and monetary relief, though Fox and Marvel would likely be satisfied with a new release date and moderate script changes.
And the film studios are upset that consumers don't respect copyright law. Here it's just a game for them.

via Cinematical

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June 20, 2005

Hollywood Smashes Piñata - No Candy, Only Lawsuits Fall Out

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Posted by Ernest Miller

Yesterday, the LA Times ran an article on a copyright crackdown on makers of piñatas, or piñateros (Got a License for the Pinata?).

Disney and the other companies, in what experts said was an understandable move to protect their popular cartoon and character properties, filed copyright and trademark infringement lawsuits against Santoyo and another nearby shop owner for allegedly selling the counterfeit pinatas.
Are they really counterfeit piñatas, or merely unlicensed? In any case, Berkman Center chief John Palfrey, who was quoted in the article, provides his own take (Suing the Piñateros).
But far from thinking that these executives are compelled to make such a decision, I think it's absurd to have filed them.  See for yourself: two examples of these complaints are here (Viacom v. El Cora Produce) and here (Viacom v. Saavedra's Produce). These huge entertainment companies using their muscle to stop people from making pinatas of their characters that are the star of the show at a five year old's birthday?  One of the claims is "unfair competition."  There's obviously a legal meaning of that term.  It's certainly an unfair fight between a storefront business with margins at or near zero v. the likes of Viacom -- but not in the direction that the complaints allege.  There has got to be a better way to handle these disputes than these lawsuits. [links in original]
I grew up with piñatas in Southern California and I still rather enjoy their colorful and festive appearance in the many small markets that sell them. They are really a form of folk art that is cheap, transient and 2-feet tall.

My family never used the licensed piñatas, we stuck with the traditional sort (stars, horses, snowmen for Christmas). However, I still look at the piñatas to see what is popular with the kids. Of course the blockbuster movies are always, but you could tell how popular a movie really is by how long its piñatas continued to be sold. Nowadays you also see videogame piñatas, and the occasional fairly obscure cartoon character as well. It is too bad that Hollywood can't see to license, cheaply and easily, these characters, which would serve more as a marketing device than anything else.

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Free the David

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Posted by Ernest Miller

At the beginning of the 1800s, the Elgin Marbles were removed from Greece for Britain. The outrage over this cultural theft continues.

"The request for the restitution of the Parthenon Marbles is not made by the Greek government in the name of the Greek nation or of Greek history. It is made in the name of the cultural heritage of the world and with the voice of the mutilated monument itself, that cries out for its marbles to be returned."
Evangelos Venizelos, Greek Minister of Culture
Today we face a similar theft of our cultural heritage.

The coverstory of the June 2005 edition of Communications of the Association for Computing Machinery deals with the difficult question of DRM for 3D images (Protecting 3D Graphics Content). In particular, the authors, David Koller and Mark Levoy, are concerned with preventing "piracy" of hi-resolution 3D models of cultural heritage works such as Michelangelo's David.

For example, our Stanford Digital Michelangelo Project has developed a high-resolution digital archive of 10 of Michelangelo's large statues, including the David. These statues represent the artistic patrimony of Italy's cultural institutions, and our contract with the Italian authorities permits distribution of the 3D models only to established scholars for noncommercial use. Though everyone involved would like the models to be available for any constructive purpose, the digital 3D model of the David would quickly be pirated if it were distributed without protection; simulated marble replicas would be manufactured outside the provisions of the parties authorizing creation of the model.

Digital archives of archaeological artifacts are another example of cultural heritage 3D models that could require piracy protection. Curators of such artifact collections increasingly turn to 3D digitization as a way to preserve and widen scholarly use of their holdings, but they often want strict control over the manner of that use of the 3D data and to guard against theft. An example of such a collection is our Stanford Digital Forma Urbis Project (formaurbis.stanford.edu) we've undertaken with Italian archaeological officials to digitize more than a thousand marble fragments of an ancient Roman map and make them publically available through a Web-based database—provided the 3D models have adequate protection. [sidebar, footnotes omitted]

Piracy!? Theft!? I do not blame the authors of the paper, who are forced to agree with the relevant authorities in order to gain access to the works in the first place (and it is better that the works are scanned than not at all). I do blame the cultural authorities who dare to claim a gatekeeper function to the digital reproductions of these works that are the cultural heritage of the world.

These works are not "owned" by their representative cultural institutions, but held in trust for all mankind: a position of responsibility with a duty to preserve our common cultural heritage.

A secondary duty is to provide open access to these works, consistent with the duty to preserve. It is this right of access that these claims of "piracy" and "theft" abrogate.

When digital scans can provide everything but physical access, the true pirates and thieves are those who would deny such access. They may do so out of a misguided belief that they require such control in order to fund themselves, but this only means that they are essentially holding access to our cultural heritage hostage.

Elgin's justification for removing the Parthenon Marbles was to preserve them. Those who would use the same arguments to justify preventing open access to digital reproductions of our common cultural heritage are not much better.

See also, DocBug, Owning David.

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Supreme Court to Hear Patent Tying Case

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Posted by Ernest Miller

Although the Supreme Court did not issue decisions in Grokster or Brand X today, it did agree to hear a patent tying case (SCOTUS Blog | Court Turns Aside Booker Sequel).

One case, Illinois Tool Works v. Independent Ink (04-1329) tests whether a company that has a patent on a product, and ties the sales of another unpatented product to it, is to be determined to have market power sufficient to restrain trade under antitrust law.
Read the 20-page Federal Circuit Decision here: Illinois Tool Works v. Independent Ink.

Basically, the case involves tying a patented ink jet printing device to unpatented ink. The question is whether there is market power sufficient to meet an antitrust claim. The district court said there had been no showing of market power and issued a summary judgement in favor of the patent holder. The Federal Circuit reversed, holding that there is a rebuttable presumption of market power when tying occurs.

The Federal Circuit's decision is based on a number of Supreme Court precedents (including a copyright tying case) that have been heavily criticized by academics. I would assume the Supreme Court is taking this case to reinforce or more likely, overturn, the precedents. However, I don't know enough about the issues here to really understand why the Supreme Court has taken the case.

UPDATE 0835PT
Patently Obvious has more: Supreme Court to Reexamine the Interplay Between Patents and Unlawful Tying Agreements.

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No Decision in Grokster, Brand X Today

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Posted by Ernest Miller

So, there I was, sitting in hot standby to blog the heck out of decisions in Grokster and/or the Brand X case, but the Supreme Court has held those decisions once again. From SCOTUS Blog (Court Decides Six "Second Tier" Cases):

The Supreme Court, on a day on which it issued six decisions, released none of the major controversies still to be decided -- the Ten Commandments displays cases, music and movie downloading and copyright, government seizures of private property for private re-development, and access to cable companies' broadband lines for high-speed Internet connections.

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June 17, 2005

Licensed Goldfish

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Posted by Ernest Miller

GloFish are fluorescent fish that were originally bred to help detect environmental pollutants. Read the GloFish FAQ: About GloFish. Of course, who wouldn't want a flourescent fish for the dull, unexciting fish tank at home? So, they are now available for sale to the general public (Buy GloFish Fluorescent Fish). But be aware. These fish are licensed (GLOFISH FLUORESCENT FISH LICENSE NOTICE):

The GloFish fluorescent ornamental fish are intended solely for visual enjoyment as aquarium fish by end users who have purchased these fish from authorized resellers, and not for commercial reproduction. These fish are the subject of various intellectual property rights owned or controlled by Yorktown Technologies, Inc. (“Yorktown”), both in the U.S. and internationally. These rights include (1) patent rights, including published patent applications (2) copyrights; and (3) trademark rights, including slogans and service marks.

By accepting these fish, and as part of the consideration therefor, the recipient agrees: (1) not to, breed or propagate these fish, permit or encourage others to breed or propagate these fish, or otherwise intentionally engage in any activity that may result in or lead to the breeding or propagation of these fish by anyone without the express written consent of Yorktown; (2) not to sell or transfer these fish to anyone in the State of California, or to possess or otherwise engage in any activity that results in the possession of these fish in the State of California.

These fish are copyrighted? And why aren't Californians allowed to have any?

via Ed Foster's Gripe Log

UPDATE 1255PT A commentor notes that the fish were banned in California. CNN with an AP wirestory (California Blocks Sales of 'Glofish' Pets).

Comments (4) + TrackBacks (0) | Category: Copyright | Oddities | Patent | Trademark

Lawsuits Against Blogspam

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Posted by Ernest Miller

Yesterday, Kevin Marks made a good suggestion in this comment to my post, Even Copyright Infringing Spammers Deserve Free Speech Protections. His comment:

An earlier suggestion I made regarding spam was for some enterprising law firm to facilitate class actions against spammers:

When you get spam, you forward it to a special email address, which aggregates it and keeps your address. When there are enough copies to justify a case, the lawyers track down the spammer and file a class action, using whichever spam laws apply. They disperse the damages back via PayPal, keeping a percentage themselves.

Copyright-violating blogspam could be similarly handled. Isn't the going rate $150,000 per infringement?

This is not a bad idea. Such lawsuits might quickly put some of the blogspammers out of business.

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June 16, 2005

June 15, 2005

June 14, 2005

Gov't Support for Media Discussed

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Posted by Ernest Miller

Jeff Jarvis is attending the Annenberg Foundation Trust at Sunnylands' Institutions of Democracy and discussing the First Amendment and government support for media with mass communications professor Timothy Cook (Gov Giveth and Gov Taketh Away).

Various ideas were raised by respondents that made my spine shake: taxing ads to support publications with fewer ads, giving postal subsidies only to publications below a circulation threshold, government search engines.
As Jeff responds, "Arrrgh."

There is insight here: the government shapes our communications environment far more than we realize. However, these ideas for direct subsidy seem to do both too much and too little. Too much in that they invite all sorts of governmental decisions about what sort of content and media should be subsidized and too little in that they don't address the structural and architectural elements of our communications infrastructure.

Telecomm (and I'm not talking about the distraction about "media ownership") and copyright law are the real powers that shape our communications environment. You want to talk about government helping media, that is where you have to look.

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Telecomm

June 13, 2005

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June 09, 2005

June 9, 1790 - First Book Copyrighted in US - The Philadelphia Spelling Book

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Posted by Ernest Miller

Two-hundred and fifteen years ago, the first book to be copyrighted (back then there was a little formality required) was entered at the U.S. District Court in Philadelphia: The Philadelphia Spelling Book, Arranged Upon a Plan Entirely New by John Barry. This was nine days after President George Washington signed the Copyright Act of 1790 on May 31, 1790.

However, William Patry writes in his history that the date was June 14, 1790 (Copyright Law and Practice: The First Copyright Act).

via ContractsProf Blog

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Patry on Termination in Copyright

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Posted by Ernest Miller

William Patry writes another highly educational piece, this time about the history of one of the most technically complex aspects of copyright law, the right of termination for works whose term has been extended (Do Termination of Transfers Matter?). For those unfamiliar with this aspect of copyright law, termination means that if you licensed your copyright to some person or entity, you (or your heirs) can get the copyright back to take advantage of the new, extended term, if you comply with some complex formalities.

Patry writes that the inalienable aspect of the termination right is due to a failure of the renewal requirement (28years of copyright, then you have to renew in the last year of the original term for another 28 years) to let artists have a second bite at the apple. Patry writes about the original renewal term:

The purpose of this arrangement was (hard as it is to believe) to give the author a second bite at the apple: because it was believed difficult to calculate the market value of a work at its inception, it would be hard to calculate what an assignment of the renewal term was worth. Congress therefore considered the renewal term to be an opportunity for the author or his or her heirs to renegotiate the terms of an assignment made during the original term. But that plan worked only if the author was not permitted, during the original term, to also convey the renewal term. If the author could convey the renewal term along with the original term, the plan failed.
Patry writes that the Supreme Court's decision in Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643 (1943), shot this down by permitting the artist to convey the renewal interest before the renewal had taken place. Patry thinks the case wrongly decided, "Whether one agrees with this or not (and great judges like Judge Pierre Leval do agree with the policy expressed by Frankfurter), the Court should not have ended up where it did, since it conceded the statute was plain and plainly to the contrary."

Of course, all this complexity would easily have been avoided if Congress (and the Constitution) would permit only prospective change to copyright terms, rather than change in term for subsisting copyrights.

Moreover, the whole concept behind renewal, that it is essentially impossible for the artist to properly calculate the future value of their work and thus need an opportunity to renegotiate with licensees, seems rather inconsistent with the claim in the Sonny Bono Copyright Term Extension Act (CTEA) that extending the term of copyright another twenty years will incentivize creativity. If calculating the value is so darn hard, how in the world will that change my incentives? It isn't even as valuable as a lottery ticket, since I can calculate precisely the expected value of a lottery ticket. Heck, how will the possiblity that a future Congress might increase the term down the road provide any cognizable incentive, if I can't properly calculate the present value anyway? Why have a termination right? Why didn't artists take into account the possibility that Congress would pass the CTEA and figure it into their original licensing agreements?

Subsisting copyright term extension is simply windfall rent seeking.

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June 08, 2005

Innovation and Design: One Can Only Predict Use

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Posted by Ernest Miller

Johan Redström has written an intriguing paper, Technology as Material Design:

When introducing new kinds of objects, such as new technologies, there is not as much in terms of traditions, expectations and interpretations to lean on and react against. In fact, such a framework must often be developed along with the object itself. This places the designer in a rather difficult position, since not only the object but also all aspects of its eventual use need to be envisioned. Methods such as probing into possible use scenarios and user expectations become a way to get to know the object to be designed and help us build the framework needed for understanding the design problem, i.e., that characterising practical function the object will be designed around.

Here, our need for a ‘practical function’ to govern the design easily transfers into a concern for how the thing will be used. A main problem, however, is that while we can determine the design of a thing, we can only predict its use. And this is where we risk fixating its functions and to some extent also ways of using it – confusing the two different tasks, that of designing the object with that of predicting its use, we try to determine its use the way we determine its design. In practice, this confusion might lead to a focus on the capacities, needs and desires of people as a basis for design on one side, and the technology itself on the other. In the extreme case, design therefore risks becoming a question of how to package a given technology in a way that makes sense to a specified user group.

Of course, projecting what it will mean to use an object is something that is, to various extents, always present in design. However, when introducing not only new objects, but new object categories, these questions become central. Further, whereas it can be argued that the design of things such as the table, the chairs, or the dinnerware at a dinner party will shape the social interactions taking place (especially if significantly deviating from what we have come to expect from such objects) such changes are subtle compared to the rather dramatic effects of new communication technologies on how we relate to one another. [emphasis in original, endnotes omitted]

The relevance of this passage to secondary liability in copyright and innovation in general is quite clear. Though the paper is written in an academic style, it is well worth reading.

via Purse Lip Square Jaw

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Janice Brown Appointed to DC Circuit Court of Appeals

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Posted by Ernest Miller

Prof. Michael Madison notes the appointment of Janice Brown to the DC Circuit Court of Appeals bench (CNN: Senate Confirms Brown to Federal Judicial Post), and one of her opinions that copyfighters would be interested in (Janice Brown Confirmed). The case he cites is Intel v. Hamidi, in which Brown dissented from a majority ruling holding that Intel could not prevent a former employee from sending mass emails to current Intel employees. Her dissent shows quite the fondness for property metaphors:

Those who have contempt for grubby commerce and reverence for the rarified heights of intellectual discourse may applaud today's decision, but even the flow of ideas will be curtailed if the right to exclude is denied. As the Napster controversy revealed, creative individuals will be less inclined to develop intellectual property if they cannot limit the terms of its transmission. Similarly, if online newspapers cannot charge for access, they will be unable to pay the journalists and editorialists who generate ideas for public consumption.

This connection between the property right to objects and the property right to ideas and speech is not novel. James Madison observed, "a man's land, or merchandize, or money is called his property." (Madison, Property, Nat. Gazette (Mar. 27, 1792), reprinted in The Papers of James Madison (Rutland et al. edits., 1983) p. 266, quoted in McGinnis, The Once and Future Property- Based Vision of the First Amendment (1996) 63 U. Chi. L.Rev. 49, 65.) Likewise, "a man has a property in his opinions and the free communication of them." (Ibid.) Accordingly, "freedom of speech and property rights were seen simply as different aspects of an indivisible concept of liberty." (Id. at p. 63.)

The principles of both personal liberty and social utility should counsel us to usher the common law of property into the digital age.

Yeah, free speech is exactly like a property right. Sure.

Comments (1) + TrackBacks (0) | Category: Copyright | Freedom of Expression

Re: Marty Re: Dennis Re: iPods

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Posted by Ernest Miller

In the ongoing discussion concerning iPods, personal use copying, and copyright, Marty Schwimmer originally asked why we should worry about this stuff. Both I and Dennis Kennedy responded (A Reply to Dennis Kennedy, Michael Madison and Marty Schwimmer on iPods, Distribution and Copyright). Now Marty responds once again (Dennis Re Marty Re iPod Etc.).

My real point to Dennis is - is that if he were leaning in the doorway of my office, worrying whether various personal activities were copyright infringements, I would say, yes, copyright law is uncertain, as is the tax code. However the copyright cases that are presented to us as being egregious (City of Heroes and the 'RIAA sues dead grandmother' cases leap to mind), are (in my anecdotal perception), those that involve people performing some public act with regard to the copyrighted work. In other words, if they were wronged by the copyright holder, it wasn't because of intrusion upon seclusion.

I acknowledge that the Internet may be blurring the distinction between personal and public acts, but the copyright cases that are getting the headlines are, to my mind, not unclear on this point. This isn't private (using private to mean solitary) behavior.

Absolutely. In my original response to Dennis, I emphasized that copyright should focus on distribution, not reproduction. What I didn't emphasize was my belief that type of distribution we should be concerned with is public distribution, not private distribution.

In my view private distribution shouldn't be illicit. There are a number of reasons for this, one of which is what Marty alludes to, the difficulty in enforcing against it. However, even though Dennis doesn't have to worry on a practical level about personal use copying, that doesn't mean the question isn't important to ask.

For example, if private, personal use copying is technically illegal, that can be used to justify laws like the Digital Millennium Copyright Act. It may also make a huge difference with regard to questions of secondary liability. If personal use/private copying is perfectly legitimate, then many technologies have a clear and obvious legitimate use. If personal use/private copying is illicit, even if unenforced, then many technologies are much more likely be used for illicit purposes.

Finally, from an ethical point of view (and lawyers should always be ethical, right?), one should obey a just law regardless of the risks of punishment. Dennis has many good reasons to ask if what he is doing is legal. And, because I don't want Dennis to be live in a morally nebulous state, I think we should make clear that private copying (if not distribution) is perfectly legitimate. This way Dennis doesn't go to hell because he engages in "normal use."

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30th Anniversary of the Consumer VCR Yesterday

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Posted by Ernest Miller

Holy cow! How could I have missed this? Yesterday, the consumer VCR celebrated its 30th birthday here in the USA, according to the Cedar Valley Courier (On Its 30th Birthday, the VCR Begins Its Goodbyes). Actually, I'm not sure where they got that date. There seem to be several different possibilities for dating the first consumer VCR in the US.

The 1975 debut of the video cassette recorder forever changed American television viewing habits, but with the advent of new technology, the VCR may be entering its final decade.
And, had a tremendous impact on copyright law, innovation, consumer expectations, Hollywood, you name it.
Mark Johns, professor of communication studies at Luther College in Decorah, says the time-shift idea of watching shows at one's leisure is here to stay. And while technology will continue to improve the way we do that, the VCR lit the match that sparked the home entertainment fire.
Yep, whatever the actual birthday is.

via PVR Wire

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June 07, 2005

I Don't Have a Clue

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Posted by Ernest Miller

Got an email from a traditional press reporter today. She wanted to know if I could handicap the Supreme Court Justices with regard to the soon-to-be-decided Grokster case. I had to respectfully decline as I am particularly bad in these Justice guessing games, particularly when the decision cuts across so many ideological lines. I did give her a list of names of people much wiser in this area than myself. I'm making no predictions for Grokster, other than it is likely to be extremely important.

Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing

CDT's 'Balanced Framework' for Copyright Completely Unbalanced

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Posted by Ernest Miller

The Center for Democracy and Technology has released a report today arguing on behalf of a balanced approach to copyright enforcement, a carrot and stick (CDT Proposes Balanced Framework for Online Copyright Protection). via Constitutional Code, which has many worthwhile comments

Read the 14-page report: Protecting Copyright and Internet Values: A Balanced Path Forward: Version 1.0 – Spring 2005 [PDF].

Note: I've long favored the carrot and stick approach. See this interview with GrepLaw in September, 2003 (Ernest Miller on DRM, Privacy and Hemingway). (You know, I think my answers stand up to the test of time pretty well.)

However, I think the CDT report favors the stick a bit much, treats citizen/creators as mere consumers, doesn't consider structural reform of copyright law, and doesn't provide much in the way of a carrot, among other flaws.

Read on for a more detailed take on the report...

...continue reading.

Comments (3) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Millennium Copyright Act | Digital Rights Management | File Sharing | Freedom of Expression | INDUCE Act

In Search Of: A Positive Agenda for the Copyfight

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Posted by Ernest Miller

My friend, Prof. Beth Noveck, has written (not for the first time) about the need for a progressive political agenda with regard to cyberlaw on her Cairns Blog (Positive Cyber-Progressivism).

I say "as usual" not because I am playing social critic again but because cyberlaw so predictably tends to focus on negative liberty rather than positive rights. In other words, how can I be free from abuse? Free from constraint? Free from censorship? This reactive stance has characterized cyberlaw for the last decade of its existence. Our agenda is full with staving off excesses of intellectual property "protection" and privacy-violating snoops. Far too little attention is paid to positive prescriptions. How can we use law and technology to enable greater innovation, creativity, productvity and freedom? Being free from the law and free from intrusive code is not the only way to deepen human happiness. Rather, the legal code as well as software code -- designed right -- can promote the same shared values.
Part of this is, of course, because even negative liberty has been under constant attack for the past decade. We copyfighters have barely fought off things like the INDUCE Act and Broadcast Flag, which doesn't leave much time for focusing on positive goals.

Which isn't to say that there haven't been a number of positive goals put forward. In the copyright realm there have been several alternative compensation schemes for filesharing put forth, from prominent law professors (Neil Netanel and William Fisher among others) and organizations such as EFF. I keep deluding myself that it's all about the distribution, and copyright reform should follow along those lines, most recently: A Reply to Dennis Kennedy, Michael Madison and Marty Schwimmer on iPods, Distribution and Copyright. Larry Lessig has called for shorter terms and a return to some copyright formality. There are other examples. Unfortunately, however, none has really caught on for a variety of reasons, not least that there is much disagreement.

And, actually, I'm not even sure what "negative liberty" means in the context of copyright law. Most copyfighters, myself included, are intent on finding the right level of copyright, not freeing us from it entirely. That seems to me a very progressive goal itself.

The main problem, I think, is that most people really don't care about copyright; they don't realize how important to a democratic culture it is. We don't lack for potential progressive prescriptions. We lack agreement on them and we lack the marketing.

The issue of free speech, which Beth also raises, is also an interesting one. Free speech is a funny sort of negative liberty. It is a negative liberty that is, in part, justified by its positive purposes. According to Mill, the best way to approach truth is by allowing, almost encouraging, error. Accepted truths will be strengthened through battle with error. Error will be overthrown by truth. And, as is most likely the case, both sides have a little bit of truth to them and we move to a better synthesis. Free speech may be a negative liberty we cherish, but even were it not, it would be a progressive policy goal.

Be that as it may, there are also a number of progressive free speech policies out there - particularly for what I call "freedom of the press", the role of government in regulating distribution of information. For example, there are those who want stricter control over media ownership and claim a progressive mantle. I disagree with them (as I disagree with Netanel and Fisher), but it is a positive platform. There are many in the copyfight who argue for open access and open standards in order to free distribution. This seems to me a positive, progressive goal. Unfortunately, these two groups seems somewhat opposed and, among other reasons, very little is accomplished along these lines.

Comments (1) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Network Law | News

Do Copyrighted Wedding Photos Even Make Sense?

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Posted by Ernest Miller

Below, I wondered why it makes sense to hold 3rd party copy centers liable for the copyright violations of their customers (Does It Make Sense to Hold WalMart Responsible for Reproducing Photos its Customers Want Copied?). The particular issue is whether photofinishing labs should be held liable when someone brings in that Olan Mills family protrait to be copied. Mnemonic Technology writes about this and accuses people who try to make copies of ripping off the photographers (Wal-Mart Refusing to Print Suspect “Professional Photos”).

I’m familiar with the business that larger print shops( Wal Mart, Walgreens ) and smaller print shops experience. There are a lot of unscrupulous types that will try using the do-it-yourself kiosks to make copies of their Olan Mills photos with the gold watermark half scratched off. People do attempt to cheat professional photographers when they ask labs to copy photos done on Kodak professional paper when they can’t produce the negatives. ...Unfortunately there are still countless amounts of negatives of beloved memories…which professionals own the rights to, and there are individuals who try to take advantage of the professionals and the labs by making, what is essentially a facsimile of a facsimile.
This got me thinking ... why the heck is it illegal for you to make copies of the photos of your own wedding in the first place? I'm a big fan of personal use copying being perfectly legal. If you can rip a CD to an MP3 so that it is more convenient to listen to, why can't you make a copy of your own baby pictures for personal use?

Does copyright even really make sense in these cases? The purpose of copyright is to spur creation and distribution of new works. Is anyone seriously going to argue that without copyright there would be no wedding photos industry? Or strip mall portrait shops? Heck, the point of most of these photos isn't that they'll be distributed at all, but that they'll be stored by the family for personal use. That doesn't really seem to be the point of copyright.

Making personal use copies of family photos shouldn't be illegal. Period.

I understand that photographers built their business model on the fact that it was difficult to make copies of photographs without access to the negative, but technology frequently forces business models to change. It's time for a change.

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A Reply to Dennis Kennedy, Michael Madison and Marty Schwimmer on iPods, Distribution and Copyright

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Posted by Ernest Miller

Corante's Between Lawyers has an questioning post by Dennis Kennedy about the problems with current copyright law in handling typical consumer uses of copyrighted works (iPods and Time-shifting: Fair Use, Personal Use and the Digital Copyright Morass).

We now live in an amazing time when I can listen to a song on a variety of players, indoors, outdoors, in the car, on a network, wirelessly, and many other ways. Increasingly, especially after I own an iPod, I want to listen to my music where I am, in the most convenient way possible. I do not to become a licensing or copyright specialist.

Here’s where the difficulty lies. I believe that what I am doing is playing my music and listening to it. Unfortunately, in our digital world, what is also happening is that we (or our computers, other hardware and software) are making many, many copies of the digital information carrying the song as we listen to our music in many ways and in many places.

And thus, we enter the realm of copyright law, and how it doesn't seem to make a lot of sense quite often. Leading Kennedy to conclude:
My thought, and what prompted the title of this post, is that we are overdue for a reconsideration of the practical meaning of copyright law for real people in a digital world and that the subject of defining a “personal use” exception to copyright infringement that reflects the way people normally behave that would be separate from “fair use” should be considered and debated, while leaving the “fair use” doctrine in place to cover what it was intended to cover. In a sense, I’m advocating something in the spirit of what my friends at rethink(ip) raise in the title of their blog.
Welcome to the discussion, Kennedy! This is something that we copyfighters have been talking about for quite some time.

Others have different views, but I'll try to provide my perspective on how we should resolve some of these issues. First, as I've said time and time again, "copying" is no longer a meaningful (if it ever was) fundamental aspect of copyright. Kennedy:

Copyright law deals with reproductions and copies. What copying is allowed and what is not? Is automatic “copying” as part of the normal mechanical or computer process (e.g., your browser caching a copy or two of this page while you read it) an infringing kind of copying? There certainly have been court decisions that would lead you to that conclusion, even though that’s a very unexpected result.
Why in the world should we think that copyright is about copying? No one is harmed by mere copies. It is only when those copies are distributed that there is an issue. One million bootlegs at the bottom of the ocean cause no harm; it is only when they are distributed that the copyright holder has any cognizable right to complain. Trying to figure out whether copies cached on a hard drive, or stored in RAM (is that persistant or nonpersistant RAM?) is only asking for trouble. What does it mean to say that something is an exclusive right and then carve out so many exemptions in the "exclusive right" that more copies are exempt than are actually infringing?

If we focus on the question of distributions, many of these problems simply go away.

Most of the questions Kennedy raises about personal use copying would never even come up under a distribution-focused regime because copying, by itself, would no longer be an exclusive right of the copyright holder. If the copy is for personal use, there is no distribution, and copyright doesn't become an issue.

Kennedy also discusses the typical fair use defenses to personal use copying under the current regime.

Historically, we have looked at “fair use” to cover the normal, expected ways that someone might make use of a creative work without infringing the copyright. There’s a well-known four-part test for determining whether a use is a fair use. One of them is the extent of the copying. .In a digital copy of a song, you have a perfect copy of 100% of the work. You fail that part of the fair use test every time and you have to make your stand on the other factors, which, frankly, don’t relate to playing your favorite music wherever you want to play it.
Well, actually, that isn't really the history of fair use. Fair use was an outgrowth of fair competition law and governed whether one might use parts of one work in another, such as for review and commentary. Uses by the consumer were considered "normal uses" since they didn't involve competition with the copyright holder publisher. This actually illuminates that the original understanding of copyright as involving distributions to the public, not private uses. Of course, with the codification of fair use as well as the right of reproduction, we suddenly find fair use attempting to do things it was never meant to protect.
I’ve lately started to feel, as have others, that there is a certain common sense approach to the use of digital copyrighted materials that (1) reflects our normal expectations about what we should be able to do with a copyrighted work just to use it in ordinary ways that do not seem to hurt the author of the work and (2) recognizes that the more we try to stretch the notion of fair use to cover these normal uses, the more we risk fracturing the protections that the fair use doctrine does provide.
Precisely.

These are points I've been harping on for years. Michael Madison wonders if they're really all that helpful (Currency):

Ernie is down on Julie Hilden for focusing on last century’s theme – copying – and overlooking the meme of the new century – information distribution and circulation. I’m not persuaded that copyright-in-information-as-current-that-flows is superior to copyright-in-work-that-gets-reproduced as an organizing theme. “Information” becomes the analytic fiction of the 21st century, just as “the work” was the analytic fiction of the 2oth century. We still have to look inside the thing – dynamic or static as it may be – and work out what we’re trying to do, or say, via the law.
Ultimately, copyright is about controlling information. We can debate what we're trying to do with copyright til the cows come home, but we're still dealing with controls over information. It makes sense to apply analytic tools that are consistent with this fact.

Furthermore, there are other areas of law that also deal with the flow of information, for example the First Amendment and telecommunications law. One of the great problems we are having today in copyright law is reconciling First Amendment interests and copyright. Might be handy if we could use a similar analytic framework (it's all about the distribution). The same goes for telecommunication law and its intersection with the First Amendment and copyright.

Finally, analytic frameworks make a difference in trying to decide what it is "we're trying to do, or say, via the law." Our view of the what the law should be is inevitably shaped by our view of what analytic tools are available to law. Setting legal goals does not take place in a vacuum that ignores the analytic tools at our disposal. Personally, I think my framework will help us achieve a better understanding of what it is we are trying to do: spur creation and distribution of information. If what we are trying to do is ensure better distribution of information, makes sense to think in terms of distribution, does it not?

The above also answers, I think, Marty Schwimmer's question to Dennis (iPods and Timeshifting):

Why do you worry about this sort of stuff?
Because it is important to a proper understanding of copyright law.

UPDATE 1230PT

Kennedy, ahem, Dennis, has a few additional comments (Dennis Re Marty on iPods and Time-shifting).

Comments (1) + TrackBacks (0) | Category: Copyright | Network Law

Does It Make Sense to Hold WalMart Responsible for Reproducing Photos its Customers Want Copied?

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Posted by Ernest Miller

SignOnSanDiego.com reports that many photofinishing labs are increasingly reluctant to reproduce "professional-looking" photos for fear of copyright infringement liability (Snap Judgments).

There are a growing number of stories of amateur photographers being turned away by photofinishers for having photos that looked, at least in the eyes of a store clerk, too good to have been taken by anyone other than a professional.

Their photos have become collateral damage in the war on digital copyright infringement.

The problem is that photocopy centers, photofinishing labs and other 3rd party copying centers have been sued and intimidated into compliance with the wants of the copyright cartels. While such centers should certainly be held liable when they are part of the decision as to what to copy, or get permission for, I've never understood why they should be held liable for simply copying what someone brings them.

Though it is certainly convenient for the copyright holders to sue such centralized centers, the result is entirely predictable that these centers will overprotect.

First, these centers have neither the expertise nor the incentive to limit protection. Seriously, does it really make sense to train minimum-wage employees to engage in a complicated four-part analysis of fair use, or the myriad other details of copyright law? The rules are going to be simplified. Moreover, because of the potential liability, bright-line rules will inevitably be drawn well away from what copyright law permits. Certainly these centers have no incentive to vigorously defend the rights of those who use them; they're essentially engaged in commodity copying.

What this article recounts is simply the expected outcome of our current copyright system.

Does this make any sense when personal reproduction technology is so readily available?

There are other solutions. For example, photographers can change their business model.

Some professional photographers have even changed the way they charge for their work.

"There's been quite a bit of change in the business model over the last 10 years," Hopper said.

Photographers used to take photos and then charge clients for copies of the images, he said. Now, more and more professional photographers are charging for their time spent taking the photos.

Imagine that. Imagine people being able to readily make copies of their wedding photos twenty years down the road without having to locate the photographer for permission. Imagine studio photos of children that can be freely reproduced long before the child has reached adulthood, grown old and died. Imagine walking into a WalMart and not being treated as a putative thief.

via BoingBoing

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June 06, 2005

More on "Restricted Use" vs. "License"

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Posted by Ernest Miller

Earlier, I responded to Prof. Michael Madison's conjecture about the distinction between a "licensed" work and one with built-in DRM. Basically, I didn't get the distinction (DRM: Add On or Integral Part?). Madison has replied, trying to clarify his point (Tom Waits and Creative Commons).

There’s nothing in copyright law (even pre-DMCA copyright law) that says that the author can’t produce, and sell, a thing characterized as a “DRM-enabled-CD.” You can’t “license” a “book,” but so far as I know, and aside from vague prohibitions on equitable servitudes in chattels, there’s no clear rule holding that you can’t sell a “restricted use book.”
I still don't get it. What is the difference between a "restricted use book" and a licensed book as far as copyright is concerned? You can embed technical protections in a book, for example, using red print in order to thwart photocopiers. Does this, should this, change our copyright analysis if someone does photocopy a portion of the book? I would say, no, we're still looking at some sort of implied contract, covenant, negative easement, what have you and I don't think that flies with copyright, which should essentially exhaust all implied contracts regarding copyright.
Suppose the digital download service characterizes the product that you buy (not license) as a DRM-enabled-CD. Suppose further that the point of the DRM is to limit playback to you and you alone. You can move the file from device to device, but it will play only on your devices (say, your iPod) – set aside the technical reality that this won’t actually work. Now, run the DRM-enabled-CD through the Section 106 rights, with the Section 107, etc. limitations, and ask: What happens when you loan your iPod to a friend? Are you liable for copyright infringement?
What if the characterization (not license) for the DRM-enabled-CD is that the point of the DRM is to prevent quotation. You can do anything, except quote from the CD. Has this effectively vitiated fair use rights? What if the seller sold the one with the DRM for $1, characterizing it as the anti-fair-use-rights version and the one without the DRM for $10. Should this make a difference in the analysis if someone does manage to quote from the DRM-enabled-version? I don't think it should or how one could successfully make the legal argument for a distinction, absent a contract.
And before this sounds too fanciful and metaphysical, consider the Creative Commons license. No one assents to CC licenses – the “legal code” versions of the CC “deed” purport to constitute a sort of CC-wrap, but that language is so far removed from ordinary CC license notices that it really stretches the shrinkwrap fiction beyond the breaking point. I can’t imagine a court enforcing a CC license on a contract theory. So, suppose a user of a CC-licensed work violates the license. Does the author of the work have a remedy? I’d like to think so. But I suspect, also, that the only legitimate way to get there may be to argue that the user accessed a “CC-licensed work,” no assent to terms involved, rather than a “work.”
The question of Creative Commons license enforcement is a very involved one that I don't want to address right now. However, there is a distinction. Creative Commons licenses purport to give people rights above and beyond existing copyright law. For example, normally, reproduction and distribution would be infringement, but Creative Commons licenses frequently allow people to do this. On the contrary, DRM-enabled-CDs purport to take away rights that copyright law reserves to the public.

UPDATE 1000PT

Madison responds (More on CC and Things). With regard to Creative Commons:

[T]hat depends on the relevant CC license and the relevant term. CC licenses give authors some rights that copyright doesn’t – most importantly, attribution/non-attribution rights. (Also, the commercial/non-commercial distinction maps only imperfectly to the “commercial” dimension of fair use.)
CC doesn't give authors any rights that copyright does not. If you want to make fair use of my works, there is nothing that CC can say on the matter. However, if you wish to infringe copyright, then CC provides the terms under which one may do so.

There seems to have been a misunderstanding on some of the other disagreements:

More generally, Ernie argues (I infer) that copyright law means that you can’t design information goods in ways that defeat statutory rights, so my “DRM-limited-CD” is no different, really, than a book wrapped with a “no fair use” label (my simplifying example, not his).
That's not what I'm arguing at all. It should be perfectly legal to sell DRM-encumbered books, CDs, what have you. However, it should be just as perfectly legal to circumvent these restrictions. There might be exceptions, antitrust is one possibility, copyright misuse another, but in general, I have nothing against DRM-encumbered items. I oppose legally enforcing that DRM.

Comments (2) + TrackBacks (0) | Category: Copyright | Digital Millennium Copyright Act | Digital Rights Management

June 05, 2005

Warner Music Implies iTunes and Listen.com Guilty of Massive, Ongoing, Criminal Copyright Violations

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Posted by Ernest Miller

They haven't come out and said it directly, but that would appear to be what Warner Music Group is claiming according to statements they made to the music publishing company Third Story Music. I wrote about this story last week (Licensed Music May Backfire on Recording Company). Basically, Tom Wait's publishing company is suing WMG for additional royalties, since they get more for third-party licenses as opposed to sales and DRM-encumbered downloads are licensed, not sold.

However, I missed this reply from WMG:

The action says that in February, Third Story sent a formal notice questioning the accuracy of royalty statements to WMG. The music company replied in March that downloads "are sold to customers such as iTunes and Listen.com just as physical product is sold to...Best Buy and Virgin."
Whoa nellie! If WMG is merely selling the equivalent of physical product to iTunes and Listen.com, that doesn't give iTunes and Listen.com the right to make additional copies and distribute them (for sale no less!) via the internet. Heck, the music industry is quite clear in its position that there is no first sale doctrine for digitally downloaded goods, so even that won't protect iTunes and Listen.com.

If WMG's claim is true (and they should know, shouldn't they?), this is the biggest case of blatant, willful, criminal copyright infringement I've ever heard of. Someone should call the Feds.

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June 03, 2005

Sharing With Friends, Not Strangers

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Posted by Ernest Miller

I often talk about a copynorm that I support and think should be explicitly legal, sharing with friends, not strangers. I support private distribution as opposed to public distribution. Well, here is a report from PSFK on the type of sharing I think should be encouraged (Face To Face P2P).

Maybe it’s out of fear of prosecution for illegal downloads or maybe it’s to avoid tech-imposed exile but there may be a different type of music sharing on the rise. Recently while hanging out in a Salt Lake City coffee spot, some University of Utah students were spotted having a “face to face” music sharing session. Instead of a digital gathering with countless unseen strangers, about half a dozen students got together for one of their regular swap sessions. Each person was responsible for bringing a couple of cd’s they thought the others might like or might benefit from exposure to. The music ranged from the Zombies to David Bowie and even a random Billy Joel disc. Each person also carried the discs they had borrowed from other members last time.

The group took turns talking about the new music they brought and some spoke about the new music they had been exposed to. One or two also distributed burned copies of the most popular cd’s from past gatherings. Another key element seemed to be an overt attempt to be fair about grabbing the most potentially desirable discs from the collective stack. Participants who had gotten really interesting things last time passed up the current potential best items so others had a chance.

Now, in this case, such swapping is perfectly legal under the first sale doctrine. But I'm not so sure it would be all that bad or different if they were ripping copies.

via Mobile Technology Weblog

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6th Cir. Reaffirms - No De Minimis Defense in Copying Sound Recordings

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Posted by Ernest Miller

The Free Expression Policy Project reports that a Sixth Circuit Court of Appeals panel has reaffirmed their decision in Bridgeport Music v. Dimension Films that there is essentially no de minimus exception to copyright infringement for sound recordings; even copying of two notes from a sound recording is infringement (Appeals Court Reaffirms Its Tone-Deaf Approach to Music Sampling). Read the whole thing, but here is the summary:

Under the court's latest ruling in Bridgeport Music v. Dimension Films, even two notes sampled from a sound recording is automatically copyright infringement. (The court acknowledged that taking one note probably would not amount to infringement, since copyright law defines a sound recording as "the fixation of a series of musical, spoken, or other sounds.")

The case involves a two-second, three-note guitar riff sampled from the song "Get Off Your Ass and Jam," which was changed in pitch and "looped" into another song, "100 Miles." "100 Miles" was used in the soundtrack of a movie, I Got the Hook Up. The moviemakers were the defendants in the case. A federal trial court ruled that the copying was de minimis and therefore not actionable under copyright law. The Sixth Circuit reversed last year, but then agreed to grant "rehearing." [italics in original]

Read the 16-page decision here: Bridgeport Music v. Dimension Films [PDF].

Part of the problem seems to be the funky way Congress has dealt with sound recordings as opposed to musical works.

The copyright laws attempt to strike a balance between protecting original works and stifling further creativity. The provisions, for example, for compulsory licensing make it possible for “creators” to enjoy the fruits of their creations, but not to fence them off from the world at large. 17 U.S.C. § 115. Although musical compositions have always enjoyed copyright protection, it was not until 1971 that sound recordings were subject to a separate copyright. If one were to analogize to a book, it is not the book, i.e., the paper and binding, that is copyrightable, but its contents. There are probably any number of reasons why the decision was made by Congress to treat a sound recording differently from a book even though both are the medium in which an original work is fixed rather than the creation itself. None the least of them certainly were advances in technology which made the “pirating” of sound recordings an easy task. The balance that was struck was to give sound recording copyright holders the exclusive right “to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording.” 17 U.S.C. § 114(b). This means that the world at large is free to imitate or simulate the creative work fixed in the recording so long as an actual copy of the sound recording itself is not made. That leads us directly to the issue in this case. If you cannot pirate the whole sound recording, can you “lift” or “sample” something less than the whole. Our answer to that question is in the negative. [footnotes omitted]
Congress thought it was being clever when it created a mechanical compulsory license for the creation of phonorecords in order to solve the potential monopoly problem in player piano rolls. But then technology changed, and one could record sound recordings and not simply holes in a roll of paper. This changed the industry even more dramatically (not to mention the advent of broadcast radio), and things got messy. States rushed in with common law copyrights for sound recordings, which Congress had to later straighten out without upsetting existing industrial interests. Consequently, any new music distribution technologies/business models have a heck of a time struggling to deal with licensing distinctions based upon technology and business models prevalent at the turn of the 20th century.

In other words, we wouldn't have this problem if Congress hadn't screwed up copyright law in the first place.

And now for some annotation:

This analysis admittedly raises the question of why one should, without infringing, be able to take three notes from a musical composition, for example, but not three notes by way of sampling from a sound recording. [Indeed it does.] Why is there no de minimis taking or why should substantial similarity not enter the equation. Our first answer to this question is what we have earlier indicated. We think this result is dictated by the applicable statute. Second, even when a small part of a sound recording is sampled, the part taken is something of value. [Here comes the circular reasoning - it's valuable because we're going to give people the right to sue.] No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, [This is a variation of the "sweat of the brow" theory. It would save me money to make a copy of an existing phonebook rather than collect all the names and numbers myself, but so what? That doesn't make the phone book copyrightable.] or (2) add something to the new recording, [That addition may simply be the pleasure of knowing the origin of the original, a call out if you will. Therefore, I'm not sure what this has to do with whether something is de minimis or not.] or (3) both. [This is merely redundant.] For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one. [It's a physical taking? Huh? Someone broke in and physically took something? I must have missed that part of the case.] This case also illustrates the kind of mental, musicological, and technological gymnastics that would have to be employed if one were to adopt a de minimis or substantial similarity analysis. [Yeah, that whole "de minimus" doctrine has got to go, since "de minimus" is always a difficult one to analyze, there is no reason to think it is particularly more difficult in the context of sound recordings. After all, "de minimis" rulings in video cases have to take into account length, focus, whether it was emphasized, etc.] The district judge did an excellent job of navigating these troubled waters, but not without dint of great effort. When one considers that he has hundreds of other cases all involving different samples from different songs, the value of a principled bright-line rule becomes apparent. We would want to emphasize, however, that considerations of judicial economy are not what drives this opinion. [Could have fooled me.] If any consideration of economy is involved it is that of the music industry. As this case and other companion cases make clear, it would appear to be cheaper to license than to litigate. [We're doing this for you're own good.] [footnotes omitted]
A number of policy considerations were also part of the decision. For example,
Finally, and unfortunately, there is no Rosetta stone for the interpretation of the copyright statute. We have taken a “literal reading” approach. The legislative history is of little help because digital sampling wasn’t being done in 1971. If this is not what Congress intended or is not what they would intend now, it is easy enough for the record industry, as they have done in the past, to go back to Congress for a clarification or change in the law. This is the best place for the change to be made, rather than in the courts, because as this case demonstrates, the court is never aware of much more than the tip of the iceberg. To properly sort out this type of problem with its complex technical and business overtones, one needs the type of investigative resources as well as the ability to hold hearings that is possessed by Congress.
Hello? Public choice theory? Sure, if it is unclear, kick it back to Congress. But who should you give the precedent to? Those with a concentrated interest in extending copyright, or those with a diffuse interest in sampling? Public choice theory would recommend reversing this decision, because if it was that big a deal those with a concentrated interest should have no problem getting Congress to do something that is opposed simply by a diffuse interest.

That's all for now. Read more about the original decision from Joe Gratz (6th Cir.: There’s No Such Thing As De Minimis Sampling).

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Licensed Music May Backfire on Recording Company

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Posted by Ernest Miller

Furdlog is on a roll today. Among other things, he notes the clever legal argument that the publishing company that has the rights to publish musician Tom Waits' music is making in a lawsuit against Warner Music Group. According to a Reuters wirestory on Yahoo! News, Waits' publishing company is suing WMG for not paying enough royalties on downloaded music (Publisher sues Warner Music over Waits tunes).

According to the suit, under the terms of the two contracts, Waits was entitled to royalties of either 25% or 50% from revenues derived from third-party licenses. Third Story maintains that digital music downloads constitute a form of third-party license, and that Waits is entitled to payment at that level.
You see, when you download music from a service like iTunes, or similar, you don't actually "own" the music. You only "license" the music.
In 2003-04 royalty statements to Third Story, WMG computed royalties from Waits' digital download sales at the same (and much lower) rate as royalties from the sale of physical product. Under the terms of the '70s Asylum contracts regarding album sales, Waits would be entitled to either 9% or 13% of the 67 cents received by WMG from each 99-cent download.
I'm a big fan of ownership (Rental Nation Deja Vu). Too bad the recording companies don't believe in it.

Of course, they'll just ensure that all future contracts close this possible loophole.

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June 02, 2005

Rush Limbaugh to Launch Podcast on June 3rd - No Music Though

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Posted by Ernest Miller

Rush Limbaugh starts his podcast tomorrow, Friday, June 3rd (El Rushbo Answers Your Podcast Questions). The shows will be available approximately 2 hours after the broadcast ends. In order to get the RSS feed, however, you'll need to be a subscriber to the website which costs ~$60. [Correction: A commentor says the cost is $34.95] Perhaps he might want to consider a teaser 5-10 minute daily show excerpt that is free.

Interestingly, Rush explains to his listeners that he can't include any music in the show due to licensing issues:

Now, a number of people -- and you people know who you are -- you are writing me caustic and vicious notes about the fact there will be no music on these MP3s. We will not be able to download with you the theme song, the opening theme. No parodies will be downloadable. We might be able to get away with the bumper music because it's only ten to 15 seconds; it would qualify under fair use, but many of you are saying, "Well, I don't think you know what you're talking about." Right. I don't know what I'm talking about. I run the show and I don't know what I'm talking about. "You don't what you're talking about. Other shows, other shows have MP3s, download, music on them. You can do it." Ladies and gentlemen, (ahem) there's a little bit of a difference between this show and some others -- and that difference is size. Let me tell you why we can't. Really a lot of people are writing me, "Why can't we get the music? I don't understand! The parodies are some of the greatest…" The reason is the music industry is forbidding, unless an exorbitant fee is paid, you cannot essentially copy music for nothing, and that's what would be happening here. If we put the music like the theme song and we put these parodies which are based on existing copyrights that we don't own... You know, we can parody them here on the radio, but that's a one-time usage, but if we then distribute that and allow virtually our MP3 files for all that to be copied we are essentially giving away somebody's product. And it would be one day, and the music industry would be all over us for doing it and we would have to stop it or fight them or whatever, and we couldn't win. We looked into it.

You know, we pay a rights fee every year for the opening theme song, but it does not include the privilege of copying it hundreds of thousands of times for free so that people can have it on their computers. We don't have that license. The same thing goes with the parodies. Now, if other shows are doing it, it means they're either ignorant of the law or they're small enough they don't think they'll get caught or they're small enough that they don't think it will be a big deal if the music industry notices. I don't have that luxury -- and besides, folks, I'm not going to break the law anyway. There's no point in it. Now, at some point I expect this to change. I don't know when, but there will be a way to make this happen at some point. But for now, starting out tomorrow, the legalities are clear -- and if you understand that it's nothing more than copying songs and distributing them for free. You can't do that yourself for your own computer. You can't do it with movies legally. You can't do it with any video legally, but as an individual if you do it, if you get caught, you've seen the FBI warnings on the front of these DVDs that you go out and rent or buy. You get caught, I'm not they're going to come after you. The music industry is dead serious. Hollywood is dead serious about piracy and unauthorized duplication, and that's essentially what we would be doing. So the short answer is our mammoth size makes it impossible for us to do this on a stealth basis like some of these others are apparently able to do because they've been doing it along or either nobody knows or nobody cares. I don't have that luxury.

I wonder if Rush would be interested in using music that has the appropriate Creative Commons license?

In any case, if this is successful I can imagine quite a few other radio personalities will jump on it. It could also open up the market for others. We shall see.

Comments (3) + TrackBacks (0) | Category: Broadcatching/Podcasting | Copyright | File Sharing

Judge Patel Dismisses One Direct Infringement Theory, But Napster Investment Case Continues

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Posted by Ernest Miller

Yesterday, Judge Patel issued her order regarding a motion for summary judgement in the Napster investors case. The defendants are being sued for investing in and controlling the original Napster, and thus are claimed to be liable for secondary (some would say tertiary) copyright infringement.

The motion essentially argued that the plaintiff record companies had failed to make a case of direct infringement, which would mean they could not make a case for secondary liability. The court dismissed one argument for direct infringement, that the index hosted by Napster was, itself, directly infringing as an offer to distribute.

The other arguments, that uploading and downloading by Napster users violated federal copyright law as well as various common law state copyright claims with regard to pre-1972 sound recordings, were not dismissed. However, the court did not rule that there was direct infringement, only that there were material facts in dispute as to whether plaintiffs had demonstrated direct infringement by Napster users, which is enough to beat a motion for summary judgement.

Read the 16-page decision: Capitol Records v. Bertelsmann, Memorandum & Order, Re: Defendant's Motion for Summary Judgement [PDF].

Defendants’ summary judgment motion focuses primarily on plaintiffs’ third theory of direct infringement. As noted above, this theory posits that Napster itself directly infringed plaintiffs’ distribution rights by maintaining a centralized indexing system listing the file names of all MP3-formatted music files available on the Napster network.
This is the theory the court shoots down. The case the plaintiffs most relied upon was Hotaling v. Church of Jesus Christ of Latter-Day Saints, which found that libraries which had infringing copies of a work in their collection violated the distribution right when there was evidence of indexing (the infringing copy was listed in the card catalog), but there was no evidence that anyone had actually checked out the particular work. The court found a pertinent distinction:
The instant plaintiffs seize upon the cataloging or indexing system in Hotaling and argue that Napster’s “indexing” system is akin to that in Hotaling. There is, however, more to Hotaling than that. In that case the library had a copy of the copyrighted work in its “collection”. Napster did not have works in its “collection”; it did not have a “collection” of recordings. The infringing works never resided on the Napster system. Instead, plaintiffs here seek to establish copyright infringement based on the mere fact that the names of their copyrighted musical compositions and sound recordings appeared in Napster’s index of available files. This might constitute evidence that the listed works were available to Napster users, but it is certainly not conclusive proof that the songs identified in the index were actually uploaded onto the network in a manner that would be equivalent to the way in which the genealogical materials at issue in Hotaling were copied and distributed to the church’s branch libraries.
The court also notes that the suggestion in Hotaling "that a mere offer to distribute a copyrighted work gives rise to liability under section 106(3) ... is contrary to the weight of [the] above-cited authorities" (see the case for the various cites) and is also inconsistent with the text and history of the Copyright Act of 1976. Judge Patel also dismisses reliance upon the Artists’ Rights and Theft Prevention Act of 2005, similar to her dismissal of a similar argument in an earlier ruling (Judge Patel Shoots Down Notion That the Right of Distribution Includes "Making Available"). The court's conclusion on this count:
Applying this standard to the case at bar, it is apparent that plaintiffs’ “indexing” theory falls well short of meeting the requirements for establishing direct copyright infringement. Rather than requiring proof of the actual dissemination of a copyrighted work or an offer to distribute that work for the purpose of its further distribution or public performance, plaintiffs’ theory is premised on the assumption that any offer to distribute a copyrighted work violates section 106(3). This is not sufficient to satisfy plaintiffs’ burden of proving that Napster or its users directly infringed their copyrighted musical compositions and sound recordings, as they must do if they are to hold defendants secondarily liable for that infringement. Accordingly, the court holds that defendants are entitled to summary judgment on this issue.
A minor victory for the investors, but the case will go on.

via Silicon Valley Media Law Blog

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June 01, 2005

Rental Nation Deja Vu

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Posted by Ernest Miller

Derek Slater notes that the music subscription service, Rhapsody, sometimes has particular tracks available and other times, not (Rhapsody's Incredible Shrinking Catalog).

I had been listening to the album for a few weeks, when, today, I noticed that I can no longer play "URAQT" off the Universal release, and that the single version is only available for sale and not for streaming. Same goes for "Bucky Done Gone", though I can play it off the Beggar's Banquet release. What gives?
Well, this seems to be a problem for the subscription services. Joe Gratz had the same problem a year ago (The Danger of Subscription Music Services). My comment on Gratz's experience here: No Guarantees with Content Subscriptions.

I'm still rather concerned about a world in which we can lose access to content at any time (Rental Nation). Under subscription services, everyone will have access to everything, until someone decides that no one will have access. With all our history of groups that have aimed to destroy various elements of culture at one time or another, I have to worry about a system that will allow works to be taken away from nearly everyone with a keystroke.

In a previous post I discussed Slater's concept of leakage (The Benefits of Copyright Leakage). Leakage can also protect elements of culture from being disappeared.

Ownership is and will remain an important element of freedom.

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The Benefits of Copyright Leakage

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Posted by Ernest Miller

Derek Slater responds to my post on lawsuits against filesharers at UCLA (Whiny Bruins Have a Point) and expands upon one of the points I make regarding the RIAA's responsibility for the success of the original Napster (Ernest on Lawsuits and Leakage). Slater argues that "leaks" in copyright (whether infringing or not), can perform a positive role in creating competition and driving innovation.

With respect to this constructive role, it's also worth setting it within the context of a broader viewpoint about copyright: a leaky copyright can be a good copyright. That's not just the case in file-sharing. It's a crucial aspect of fair use. Allowing copying and copying technologies ultimately can help create new markets for copyrighted works, provide people with greater access, more flexibility and more enjoyment in how they use copyrighted works, and in total improve social welfare. If the screws of copyright were tighter, if it did not leak in this way, we wouldn't benefit from the flood of benefits from various copying technologies.
Absolutely. Textbook publishers may not like used bookstores, but they function to keep the cost of textbooks at least somewhat in check. Thank you, first sale doctrine!

So, copyright "leaks," even illicit leaks such as much filesharing, can have a positive effect. The rise of P2P likely pushed members of the RIAA to adopt legitimate filesharing much sooner then they otherwise would have. But Slater asks, however, how far should we acknowledge/tolerate this positive effect of filesharing? "Perhaps a part of the reconcilition is a sense that, whatever may have been the meritorious effects of file-sharing during Napster's birth, now competition in legitimate services can become good enough that it's time to call off the dogs."

Well, blatant copyright infringement was never cool. Yet, I don't think that were filesharing to go away, copyright would be in balance. For example, I'm a big fan of eliminating the right of reproduction and focusing on the public/private distribution distinction; "share with friends, not strangers." Part of my argument in favor of the public/private distribution distinction as the focus of copyright law is that it provides a clear means for "leaks." If the RIAA keeps music prices too high, people will engage in more private distribution. When prices are reasonable, there will be less private distribution.

Similarly, I think that the DMCA shifts the balance for leaks in ways that are counterproductive.

I will continue to counsel against infringing public distribution via filesharing systems. Yet, I don't believe that there can be true reconciliation until copyright law is better balanced.

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May 31, 2005

Whiny Bruins Have a Point

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Posted by Ernest Miller

UCLA Law Professor Stephen Bainbridge spanks the editorial board of UCLA's Daily Bruin just like Trojan Football has spanked Bruin Football their last 6 meetings (Aww, the Poor Babies).

I suspect the basic problem is that you're still just deeply narcissistic. Nobody's ever told you no. Not your parents. Not your schools. Nobody. You've been taught to expect a slap on the wrist at most and, indeed, think you're entitled to getting off easy. So when somebody finally does hold you accountable, your delicate little psyches can't handle it.

Well, it's time to grow up.

He is responding to a Daily Bruin editorial attacking the RIAA's lawsuits, which have, for the first time, snagged seven Bruins: Punishments Don’t Fit the Crime of File Sharing.

Long time readers of this blog know that I have no real problem with the RIAA's lawsuits (though it would be nice if we could ensure they were enforcing equitably, for example, suing in zip code 90049 as elsewhere [correction: changed zip code to neighborhood I actually mean to refer to]). Unless you go with some government-mandated licensing scheme (something I oppose in favor of voluntary licensing schemes), lawsuits are going to have to play an element in maintaining the system. Without lawsuits or the threat of lawsuits, enforcement would crumble.

Moreover, deterrence is going to require that the penalties be serious and will likely greatly outweigh the actual losses. In other words, If you're infringing 100 albums, in order to deter, the civil penalty is going to have to be greater than $1,000 - $2,000, which is what the albums would have cost had you simply bought them.

Nevertheless, the students, despite their narcissism, have a point. The current statutory penalties are far in excess of what deterrence would council. When the minimum statutory damages for typical filesharing cases are in the hundreds of thousands of dollars, that doesn't really seem particularly reasonable to me. I believe that deterrence can be served by a lesser amount.

Furthermore, while I oppose copyright infringement via filesharing services and council against it, the students do have a point about the music industry doing more to fight it with incentives for legitimate purchases than merely punishing filesharing. Originally, the movie studios priced videotapes at $70-$100+. They didn't believe there was a market for consumers to buy videotapes. Had they continued that pricing policy, they would have encouraged the creation of a thriving black market in infringing videotapes. Such a market may be regretted, but would have been the expected outcome. Similarly, the RIAA is partially at fault for making the original Napster so attractive because there were no real legitimate avenues to meet customer's wants. I'm not saying they're entirely at fault, but anyone could have predicted that without legitimate avenues to download music, more people would use illegitimate avenues. This is not rationalization, not justification, merely acknowledging the facts.

Does the RIAA have a legal right to rely solely on deterrance through punishment? Sure. Is this the smartest move they can make? No.

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May 30, 2005

Put Down that UK Edition Harry Potter and Step Away Slowly

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Posted by Ernest Miller

William Patry points to another rather interesting but obscure aspect of copyright law (Is There a Hole in the First Sale Doctrine?). In this case, Patry is looking at the intersection of 17 USC 109, the first sale doctrine, and 17 USC 602, parallel imports. Following Quality King, first sale is a defense to a claim of infringement for copies lawfully made in the United States, exported, and then re-imported against the copyright holder's permission.

The Court reached its decision by holding that "lawfully made under this title" in Section 109 means lawfully made according to title 17, which is not extraterritorial: thus, Section 109 is limited to copies made in the U.S. But here is the potential loophole created by this straightforward construction of that langauge. Copies made overseas are not subject to the first sale doctrine. People usually limit this principle to parallel imports, where its application is non-controversial.

But why is it so limited? Let's say someone in the United States buys, through Amazon.com in the United Kingdom, the next installment of a hot series, like the Harry Potter books, released in the UK, but not in the U.S. The copies come into the country without the U.S. distributor knowing about it. They are then advertised for sale once in the U.S. The importation right isn't helpful because the copies are already in the country. Does the first sale doctrine excuse the sale, or does it not apply because, as Quality King held, "lawfully made under this title" applies only to copies made in the U.S.? Since these copies were made in the UK, they weren't made under title 17, and thus fall outside Section 109. The first sale doctrine thus doesn't apply, and as a straight statutory matter it would appear the copyright owner could bar the sales.

In other words, it is perfectly legal under 17 USC 602 to buy a copy of a work that was lawfully made overseas and bring it back to the United States for personal use. Feel free to buy that UK Edition Harry Potter during your vacation in London and bring it home to the US. However, under a straightforward reading of Quality King, the first sale doctrine would not apply to that copy. If, once finished with the book, you sold it to a used book dealer, that could be a violation of copyright. Heh.

As for me, I wonder why we have a parallel imports law at all. Why should 17 USC 602 apply to lawfully made copies? Sure, there is an economic argument for international price discrimination, but why must it be part of copyright law? Why not simply expect copyright holders to rely on modern technology and contract law with their overseas producers/distributors? If the price differential is great enough to incentivize parallel imports then that should pay for the use of technology (such as RFID) to track the origins of copies and take appropriate action via contract law. If the cost of tracing copies is too great compared to the price differential for parallel imports, I'm not sure why parallel imports would be all that big a problem anyway. Parallel import problem solved (though that first sale loophole would remain).

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May 29, 2005

May 28, 2005

Issues of Future Copyright

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Posted by Ernest Miller

Findlaw's Julie Hilden looks through a mirror, darkly, at copyright law issues of the future (Will the Future Bring Even More Important Copyright Issues Than The Ones Raised by Online File-Swapping?). Hilden is writing in response to the 8-minute web presentation, Evolving Personalized Information Construct. If you haven't seen this bit of futurism, please do.

In any case, Hilden is responding to this (Summary of the World: Googlezon snd the Newsmasters EPIC):

Googlezon finally checkmates Microsoft with features the software giant cannot match. Using a new algorithm, Googlezon’s computers construct news stories dynamically, stripping sentences and facts from all content sources and recombining them. The computer writes a news story for every user. [emphasis in original]
The question is whether such a service would violate copyright. The fact-stripping is clearly legal under Feist, but I'm not really sure why this technology would have to strip sentences. If the system is smart enough to recognize facts, likely it'll be smart enough to produce rudimentary text in which to embed those facts. After all, isn't that the promise of the semantic web? Frankly, I don't think this will be a big concern.

Heck, you could probably do something pretty sophisticated with weather data today. I propose a variation on the Turing Test for weatherpeople. How long before virtual weatherpeople can produce what seems to be a live weathercast, based solely on the data fed to the system from the National Weather Service?

But Hilden is right that copyright law is still on a collision course with the internet. I'll say it again. Google Print is now giving us complete access to every book in the public domain, fully searchable, fully linkable, what we always imagined the Heavenly Library would be like. Unfortunately, everything in the public domain means everything published before 1923, because there is no easy and efficient way to figure out whether something published in 1923 or later is out of copyright. The transaction costs are too high and will remain incredibly high, especially for those works in the long tail (which doesn't mean they aren't valuable, and certainly are quite valuable in the aggregate). Anything except fixed copyright terms, or some sort of formalization will be necessary to resolve this god awful mess, so that we can continue to input the work of humanity in to Google Print and all the archive family.

Hilden focuses on copying, the right of reproduction:

The issues are as simple and fundamental as they are troubling: Exactly how much content may be copied on the Internet - and of what kind -- before copyright is infringed? And more deeply, when is content "copied" in the first place when it comes to the Internet? Does the fact that the copying is done via a machine editor - not a human editor - make a difference?
Copies, copies, copies. That is sooo 20th century. Computers make copies, that is what they do. I imagine, but don't know the technical details, that Google's ginormous database of books has numerous complete copies of the works stored, and not just as backups, either. So what?

We can waste all our time trying to figure out how many angels dance on the head of a pin as develop archane rules on when copies are made and whether those particular copies violate copyright, or we can think about information as a flow, as a transfer, as a distribution. The question shouldn't be whether particular "copies" are illicit, but whether particular distributions of information are illicit. Information exists in a transfer or potential transfer, not as a static thing. "Copies" are static things. "Distribution" is about transfer or potential transfer of information.

We can imagine copyright as voltage and current. When thinking about electricity, we don't think about static electricity, we think about circuits, about regulating the flow of current, arranging for particular potential differences. We don't think of current as a thing to be copied.

Does information want to be free? Yes, but only in the same way that all potential differences want to be in balance. We can get some work out of this fact.

Hilden is completely right in her conclusion, however:

Copyright is meant, in large part, to protect the market for a given work, and thus to protect incentives to create new works. Yet allowing people to read (for free) a fact-stripping bot's compilation of news might undermine the market for newspapers and their online outposts. And that may lead newspapers to fight back in Congress for a broader version of copyright that would end, or limit, the reign of fact-stripping bots.
Copyright holders are going to fight any rationalization of copyright tooth and nail, if it hurts their interests.

via Copyfight

Comments (1) + TrackBacks (0) | Category: Copyright | Network Law

May 27, 2005

Google Print Goes Live!

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Posted by Ernest Miller

There has been all sorts of controversy about Google's decision to scan and digitize university libraries and make full-text search of the works available, see, Google's Library Digitization Plan Runs Into Opposition, but it is now live (though I am sure many more books are still to be added): Google Print: Beta.

Read About Google Print.

It is definitely beta, it is definitely rough, but the potential is obvious. One thing I would really like would be to search only through works that are out of copyright, such as those printed before 1923. Of course, this just goes to show what a transactional mess not having fixed-term copyright creates. How the heck is Google supposed to figure out which books published after 1923 are in copyright? Stupid copyright law.

via PaidContent.org

Comments (0) + TrackBacks (0) | Category: Copyright | Internet

Terrorism and Copyright Infringement

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Posted by Ernest Miller

C|Net News reports on testimony before Congress regarding links between criminal copyright infringement groups and terrorism (Terrorist Link to Copyright Piracy Alleged):

"Some associates of terrorist groups may be involved in IPR crime," Stedman said. "During the course of our investigations, we have encountered suspects who have shown great affinity for Hezbollah and its leadership." [emphasis added]
Well, you could pretty much say the same about the entire French left-wing.

The real issue here is not whether terrorists are involved in criminal copyright infringement, they undoubtedly are, just as they are involved in many other legitimate and illegitimate businesses (the oil business comes to mind), but whether rhetorically tying copyright infringement to terrorism will become an excuse to pass draconian copyright measures that have nothing to do with stemming terrorism. Filesharing, for example, doesn't really help terrorists since it is so difficult to make money from people sharing copyrighted works.

Even though Stedman's evidence is circumstantial, his testimony comes as Congress is expected to consider new copyright legislation this year. An invocation of terrorism, the trump card of modern American politics, could ease the passage of the next major expansion of copyright powers.
Prediction: Expect to see a lot more mentions of "combatting terrorism" in statements from the MPAA, RIAA and/or similar organizations. They may not explicitly link it to their fight against filesharing, but they would sure love to confuse the issue and get it linked in people's minds.

Comments (0) + TrackBacks (0) | Category: Copyright

May 26, 2005

Bizarre Settlement Possible in Music Club Infringement Case

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Posted by Ernest Miller

The LA Times (reg. req.) provides a report about a class-action lawsuit against two music clubs that may result in a mind-boggling settlement (Static Builds Over Music Club Accord). What the heck is going on here? All this talk about licensing difficulties for the internet and podcasts and suddenly some record clubs have the right to license at lower than the statutory right as long as the artist doesn't object?

What has really caused a fuss, however, is how the proposed settlement would change the permissions process. Instead of contacting a songwriter directly, the clubs would list the songs they intend to distribute — and the rate they intend to pay — on a website for 30 days. Hearing no objections, clubs would automatically receive a one-year license. [emphasis added]
The music clubs could set whatever rate they want and it is up to the artists to object. Geez.

via FurdLog

Comments (0) + TrackBacks (0) | Category: Copyright

May 25, 2005

Senate Judiciary IP Subcommitee Hearing On Int'l Copyright Infringement

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Posted by Ernest Miller

Well, I listened to the nearly two hours of generally dull testimony for today's Senate hearing on intellectual property (Notice of Subcommitee Hearing: Piracy of Intellectual Property). I suffered so that you didn't have to.

The hearing was chaired by Sen. Orrin Hatch (R-UT), who heads the Intellectual Property Subcommitee of the Senate Judiciary Committee. Sen. Patrick Leahy (D-VT) also attended most of the hearing.

The focus of the meeting was on international copyright infringement, particularly in China and Russia. Flash! There is lots of infringement in these two countries and something must be done about it, such as keeping Russia out of the WTO. And we're really going to get upset with China pretty darn soon. Any minute now, in fact. Just you wait, we'll do something major to China, you'll see.

Read on ...

...continue reading.

Comments (7) + TrackBacks (0) | Category: Copyright | INDUCE Act

May 24, 2005

Google's Library Digitization Plan Runs Into Opposition

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Posted by Ernest Miller

BusinessWeek reports on a looming legal fight between Google and the Association of American University Presses over Google's plans to digitize copyrighted works for search purposes (A Google Project Pains Publishers):

So when Google announced last year that it planned to scan millions of the world's books and make them searchable online, many were thrilled. Many -- but not everyone, it turns out. In a May 20 letter, the Association of American University Presses (AAUP) blasts Google's so-called Print for Libraries program for posing a risk of "systematic infringement of copyright on a massive scale."....

But in December, Google dropped the equivalent of a heavy encyclopedia on the publishers. With no advance notification, the search provider unveiled its Print for Libraries program, aimed at digitizing public-domain books from the likes of the New York Public Library, Oxford University's Bodleian Library, and the libraries of Harvard and Michigan universities. Google said it would make available full versions of public-domain books online, while making only "snippets" of copyrighted text available.

NOT ALL ARE CONCERNED. But in addition to storing the digitized books on its own servers, Google said it would provide digital copies to the libraries. Publishers now worry Google might someday distribute digital copies of copyrighted books without their or the author's approval. The publishers argue that libraries have no legal right to digitize copyrighted material by handing it over to Google.

The letter from the AAUP is available from their website: Peter Givler, Executive Director, AAUP, to Alexander Macgillivray, Google, May 20, 2005 [PDF].
BusinessWeek has an html version: The University Press Assn.'s Objections.

Under current law, Google sure is opening itself up to massive potential liability if it moves forward without getting permission. Google might claim fair use, but I rather suspect a court would disagree. Some say this is because fair use is rather murky. I say, this is because current copyright law is fundamentally flawed.

The right of reproduction shouldn't be a fundamental exlclusive right in the first place. The question should simply be whether Google is distributing the work to the public. If so, then we can apply a fair use analysis. The fact that Google digitizes the work shouldn't make a difference in the first place.

via John Palfrey

Comments (0) + TrackBacks (0) | Category: Copyright

DC Circuit Rejects Challenge to Congress Removing Works from the Public Domain

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Posted by Ernest Miller

The US Court of Appeals for the D.C. Circuit has upheld a district court decision and rejected a challenge to § 514 of the Uruguay Round Agreements Act, which brought certain works that remained copyrighted overseas but had entered the public domain in the US back into copyright in the United States. The appellants had argued that it was unconstitutional for Congress to remove works from the public domain. Read the 9-page decision: Luck's Music Library v. Gonzalez [PDF]

The decision essentially relies on the Supreme Court's decision in Eldred, which rejected a constitutional challenge to a law that extended existing copyrights by twenty years:

It is true, of course, that changes in the law of copyright cannot affect the structure of incentives for works already created. But the knowledge that Congress may pass laws like the URAA in the future does affect the returns from investing time and effort in producing works. All else equal, the expected benefits of creating new works are greater if Congress can remedy the loss of copyright protection for works that have fallen accidentally into the public domain. The Eldred Court made a parallel point in rejecting plaintiffs’ quid pro quo theory, noting that any author of a work “in the last 170 years would reasonably comprehend, as the ‘this’ [i.e., quid] offered her, a copyright not only for the time in place when protection is gained, but also for any renewal or extension legislated during that time.”
I was never particularly persuaded by that element of the Eldred decision. Essentially, the Court is saying that the mere possibility that a future Congress might increase copyright protections and backdate them creates additional incentives to future copyright creators. "Gee, I would have written this novel (or financed this film, etc.) but I won't, because Congress will be unable to increase my copyright monopoly sometime in the indefinite future, if they choose to do so at all." Since when have people been expected to rely on what future Congresses might do?

Read the whole decision and rue Eldred once more.

via How Appealing

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May 23, 2005

This Anti-Creative Commons Rhetoric Goes to Eleven

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Posted by Ernest Miller

Ubercyberlawprof Larry Lessig takes a dim view of a Billboard article that implies Creative Commons may ultimately kill artists (First We're a "Virus," Now We Kill People with AIDS). The offending article is here: Music Biz Wary of Copyright Sharing Movement:

Andy Fraser hates to think what his fate might have been had Creative Commons existed when he was a young artist.

Fraser entered the business in 1968 at age 15, when he became the bass player/co-songwriter for British rock/blues band Free. Two years later, while in the dressing room after a bad gig, he started bopping around telling his bandmates, "It's all right now." After about 10 minutes a song was born, with co-writer/singer Paul Rodgers contributing lyrics.

"All Right Now," released on Free's third album, "Fire and Water," became one of the most-performed songs in performinbg rights organization Broadcast Music Inc.'s repertoire of about 4.5 million works. The song has been played nearly 3 million times -- the equivalent of repeatedly playing it for more than 28 years.

While Fraser has written more than 150 songs, continuing royalties from radio and TV use of two compositions -- "All Right Now" and "Every Kinda People" (first recorded by Robert Palmer) -- generate most of his income. Had he given up his rights to those early hits, he would not have the resources to cover his treatment for AIDS.

Such a decision might have been tragic. Fraser says he has been kept alive by medication, radiation therapy and experimental medical treatments -- largely paid for with his song royalties.

"No one should let artists give up their rights," he says.

What? They couldn't find the young grandchild of some Tin Pan Alley songwriter who would freeze from exposure without grandpa's royalties?

Comments (0) + TrackBacks (0) | Category: Copyright

Framing Effects and Copyright

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Posted by Ernest Miller

Economics Prof. Bryan Caplan has an interesting post on EconLog regarding framing effects (Framing Effects and Memory):

Aldert Vrij's book on lying describes a particularly striking example:
Participants saw a film of a traffic accident and then answered questions about the event, including the question 'About how fast were the cars going when they contacted each other?' Other participants received the same information, except that the verb 'contacted' was replaced by either hit, bumped, collided, or smashed. Even though all of the participants saw the same film, the wording of the questions affected their answers. The speed estimates (in miles per hour) were 31, 34, 38, 39, and 41, respectively.
Pretty neat, but there's more. Given a little time, framing effects can engender false memories:
One week later, the participants were asked whether they had seen broken glass at the accident site. Although the correct answer was 'no,' 32% of the participants who were given the 'smashed' condition said that they had. Hence the wording of the question can influence their memory of the incident.
A central assumption of much of my research is that people can choose their own beliefs. There are many possible mechanisms, but Vrij's discussion suggests yet another. If you want to believe something, just describe the relevant event to yourself using appropriately loaded language. Your memory does the rest.
Explains a lot about the rhetoric of the RIAA and MPAA and why they're having such a difficult time considering new business models.

Comments (0) + TrackBacks (0) | Category: Copyright

May 21, 2005

A Copyrighted Chicken, an Egg and Replacementdocs.com

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Posted by Ernest Miller

Replacementdocs.com hosts full-color scans (or PDF originals) for thousands of videogames. For anyone who has rented or purchased used games, which frequently lack manuals, or simply have lost the box and documentation, this is an incredible resource ... and clearly a case of massive copyright infringement of the manuals.

It is also a resource for copyright infringement of the games themselves, in that infringing copies seldom come with full documentation. Indeed, game companies have gone after sites that host manuals for this very reason. Likely, this is the reason that Blizzard asked Replacementdocs.com to remove their manuals from the site (Manuals requested removed by game companies (i.e. - don't bother asking for these)).

Replacementdocs.com responds to this argument in their FAQ:

As for the piracy issue... What good is a manual without the software? None at all. What good is software without the manual? Plenty to most people. With this in mind we believe that the true problem of piracy is the copying and distributing of the software itself not the documentation. If you stop the software piracy then having documentation online will no longer be an issue. However, If you stop the distribution of electronic documentation, software piracy will still thrive. Besides, game companies are in the business of selling games, not selling replacement manuals for the games. And therefore, we believe this is not affecting their business. A testament to this is the increasing number of companies who freely distribute their documentation online already because they have realized that providing good customer service is more important than protecting ultimately supplemental materials. Some of these companies include Square Enix, Konami, and even Sony's and Microsoft's respective in-house game studios. But it is still woefully few compared to the available catalog of games.

In addition, many of the games listed herein are out of print and the game companies are not making money on them anymore if they even still exist. Yes, technically, they still own the copyrights to the games and manuals, but they aren't making money off of them and we're not making any money off of them. There is no profit to be lost and none to be gained. And if you're some lawyer or company drudge tracking down pirates, come on... it's really all about the money anyway, isn't it? Spend your time tracking down the software pirates that release stuff on the internet before the software hits the stores, they are the real problem.

Replacementdocs.com is right (which doesn't mean it still isn't copyright infringement). And it seems that many game companies are beginning to agree, not only the ones mentioned above, but several have given permission for Replacementdocs.com to host their manuals. Even Blizzard has since given permission (Blizzard manuals to return!).

One of the interesting things about these sorts of copyright infringements, however, is how they accomplish something that the market would be unlikely to accomplish. Sure, one could argue that those who created the site should have first gone to every copyright holder and asked for permission to do this. But the reality is that they would have been entirely ignored. Without a track record, without traffic, without money to throw around, with nothing more than an idea and an empty website, no videogame company legal department would have given Replacementdocs.com five minutes. A bit of a chicken and egg problem, and a serious one for copyright.

via BoingBoing

Comments (0) + TrackBacks (0) | Category: Copyright | Games

May 19, 2005

May 18, 2005

Copyright Infringement in China and China's DMCA

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Posted by Ernest Miller

The following is roundup of recent articles regarding China's infringing ways - everyone always talks about it, but no one seems to do anything.

The Washington Times runs a UPI wirestory (Calls for Chinese Crackdown on Piracy):

However, Zimmerman [a lawyer who represents multinational companies on various issues and who is on the panel of arbitrators for the International Court of Arbitration] said part of the blame fell on the businesses because they were afraid to confront the Chinese government.
The Financial Express runs a Reuters wirestory (US may take China to WTO on $200 bn piracy):
The US Chamber of Commerce has estimated US companies lose more than $200 billion in China each year because of sales of counterfeited and pirated goods.

But most US business groups "have been a little slow coming forward with the evidence" the United States needs to bring a WTO complaint against China for failing to enforce its intellectual property right laws, [US Deputy Secretary of State Robert] Zoellick said.

The LA Daily News (Piracy in Russia Rampant):
[Rep. Howard Berman, D-Van Nuys,] criticized the Bush administration for not having filed any WTO actions dealing with piracy against China. "That's billions of dollars in our economy."
China's DMCA?

The English-language People's Daily Online reports that China has approved new internet copyright regulations, probably in response to international criticism (China to Implement First Administrative Regulations on Internet Copyright Protections):

"China's present copyright laws haven't defined the responsibilities clearly to the Internet Service Providers (ISP) in copyright piracies, that's why we introduce the new regulations, " said Li Guobin, the official with the MII on Sunday. The measure, published on April 30, clarifies that websites providing pirated information should bear major responsibilities, and that ISPs who passively spread the information will be exempt from punishment.

Comments (0) + TrackBacks (0) | Category: Copyright

May 17, 2005

JD Lasica's Darknet: The Mini-Book

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Posted by Ernest Miller

JD Lasica has just published Darknet and will be publishing stories and analysis from the book in weekly installments. Unfortunately, we won't be getting the entire book online, but we will get a weekly sample. There are two posts so far:

Darknet Mini-Book: Introduction

Darknet is not another book about the excesses of copyright law -- not really. It's a look at the future of future of movies, television, computing, music, games, art and more -- and the choice we face as a society....

Now, about the title. Throughout this book, “Darknets” simply refer to underground or private networks where people trade files and communicate anonymously. But I want to suggest two deeper meanings as well.

First, the Darknet is a metaphor for the hidden-away matter of the Web—the burgeoning pool of weblogs, independent sites, and grassroots media well outside the limelight of Big Media. Collectively, this “long tail,” as Wired editor-in-chief Chris Anderson put it, far outweighs all the bright material of the commercial Web sites with their seemingly impressive vast swaths of traffic. The dark tail is where the hope and promise of the Web resides.

Second, Darknet serves as a warning about a world where digital media become locked down, a future where the network serves not the user but the interests of Hollywood and the record industry. More and more activity on the open Internet will be pushed into the underground if current anti-innovation trends continue.

Darknet Mini-Book: The Teenage Filmmakers

The best darn fan film you'll never see.

Read it all.

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | News

More on "Making Available" and Patel's Napster Ruling

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Posted by Ernest Miller

Prof. Eric Goldman on the Technology and Marketing Law Blog writes about Judge Patel's recent decision in the Napster investors case (New Ruling From Judge Patel in Napster Investor Suit). My post on that case here: Judge Patel Shoots Down Notion That the Right of Distribution Includes "Making Available". Read the decision: Memorandum & Order, Re: Plaintiff's Motion for Summary Judgement [PDF].

Goldman points out that a close reading of the decision indicates that Judge Patel hasn't yet determined whether 17 USC 106(3) (right of distribution) includes "making available." She has only determined that the Artists' Rights and Theft Prevention Act of 2005 didn't change the proper interpretation:

I read Judge Patel's 5/11 order as simply saying she is not going to permit the Record Companies to file the supplemental brief, because she does not believe the ART Act has changed anything as to how Section 106(3) should be interpreted. In particular, I do not see any reference to a disposition of the underlying motion for summary judgment. My conclusion, then, is that the underlying motion for summary judgment is still pending, and she has not ruled whether or not maintaining the index of downloadable files does/does not infringe the copyright owner's distribution right.
He's right.

It'll be interesting to see what Judge Patel actually rules, she may not have to reach the issue.

What is happening here is that the investor defendants are seeking summary judgement on the case by claiming that there is not sufficient proof of direct infringement by Napster's users, which means the investor defendants would not have tertiary liability.

What that means, is that the lawyers for the RIAA were bloody idiots because they didn't nail down evidence of direct infringement before launching the Napster lawsuit. It would have been almost ridiculously easy, but they didn't even bother to try, apparently.

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

Stakes in the Free Expression Business - Alternative Compensation Schemes Needn't be Free Expression

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Posted by Ernest Miller

A number of people have linked to the San Francisco Chronicle, which has published an op-ed touting government tax funded compulsory music licenses (High Stakes in the Music Business - Free Music Needn't be Stolen Music).

First, of course, is the argument that music is non-rivalrous.

On the one hand, artists, creators and distributors deserve to be paid for their work, and it's in our interest to pay them if we want anything to listen to. On the other hand, the kids understand a central fact about digital media: listening to a song, even having MP3 files on their hard drives, doesn't leave any less of it for other people to enjoy.
So, why only music? Why not all digital goods, such as film, video, and software? How come nobody talks about compulsory licenses for these other forms of media? If the important consideration is that they are non-rivalrous, why not?

The argument then moves on to an analogy with government sponsored parks and museums:

Turning to the arts, we find the British have recently reduced museum admission prices to zero. There's been no mass closing of museums, curators are not enslaved, the maintenance people still get paid for their work and paintings are bought from artists and collectors just as before, because the government pays everyone's "admission price."
But, gee, we've never had any major political tussels over the content of museums have we? Yeah, no one would ever be upset at a government-funded display of Serrano's works, or Mapplethorpe, or even of a museum display about the first use of an atomic weapon in war.

Interestingly, this potential problem in the design of such a system is never mentioned. Could it be that, like the Corporation for Public Broadcasting, politics would never, ever be a consideration in how the money is doled out and we certainly wouldn't have to worry about some version of the FCC fining or somehow censoring offensive works, right?

I wonder if the public hearings that seem to be proposed here would be at all politicized:

What makes music tricky is knowing how much to pay for which song, but it's not impossible. After all, how do we decide if we should have another park or a bigger museum? Essentially, we see how many people are using them now, ask some questions in public hearings and editorial pages, and predict: If we build more, will they come?
Monitoring is tricky, damned tricky, especially when you're talking about billions of dollars at stake. Preventing the system from being gamed and politicized (everyone download Pat Robertson's latest warble to put some $$$ in his pocket!) may not actually be possible. I certainly haven't been convinced that the government can do it without trampling on the First Amendment.

I realize this is a short op-ed, but, geez.

Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing

May 16, 2005

May 15, 2005

How I Learned to Stop Worrying and Love Infringement

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Posted by Ernest Miller

Author John Scalzi, whose most recent work is the highly praised Old Man's War (which I really look forward to reading), has posted on his blog, Whatever, an excellent rant against the anti-infringement push polling of the Science Fiction and Fantasy Writers Assoc. (The Stupidity of Worrying About Piracy). He then goes on to explain why he doesn't worry about infringement of his works:

Let's ask: Who are pirates? They are people who won't pay for things (i.e., dickheads), or they're people who can't pay for things (i.e., cash-strapped college students and others). The dickheads have ever been with us; they wouldn't pay even if they had the money. I don't worry about them, I just hope they fall down an abandoned well, break their legs and die of gangrene after several excruciatingly painful days of misery and dehydration, and then I hope the rats chew the marrow from their bones and shit back down the hollows. And that's that for them.

As for the people who can't pay for things, well, look. I grew up poor and made music tapes off the radio; my entire music collection from ages 11 to 14 consisted of tapes that had songs missing their first ten seconds and whose final ten seconds had DJ chatter on them; from 14 to 18, I taped off my friends; from 18 to 22 I reviewed music so I could get it for free. And then after that, once I had money, I bought my music. Because I could. As for books, I bought secondhand paperbacks through my teen and college years. Now I buy hardbacks. Again, because I can. Now, being a writer, you can argue that I'm more self-interested in paying for creative work than others, but I have to honestly say that I don't know anyone who can pay for a book or a CD or a DVD or whatever who doesn't, far more often than not.

This, I believe, falls into the realm of copynorm. We are always going to have P2P with us because there are always going to be people for whom time (searching and finding good rips, taking additional precautions to avoid lawsuits) is less valuable than money. Ultimately, however, most people are going to be willing to pay reasonable prices for quick and easy access to copyrighted works in formats that will let them use them conveniently. In any case, read the whole thing.

Then, go read Cory Doctorow's comments on this piece on BoingBoing (Why Writers Should Stop Worrying About "eBook Piracy"). Doctorow, of course, has put his money where his mouth is. Download Down and Out in the Magic Kingdom, Eastern Standard Tribe, and most of A Place So Foreign.

Comments (1) + TrackBacks (0) | Category: Copyright

Gov't Censorship Spurs Copyright Infringement in China

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Posted by Ernest Miller

The LA Times (reg. req.) has a good look at some of the difficulties the MPAA faces in combatting copyright infringement in China (The Piracy Price Wars). The article discusses Time Warner's strategy of making legitimate DVDs available for as low as $2.65, which has difficulty competing with lower quality knockoffs that compress 5 movies onto a single disk for $0.60. However,

Price is not the only factor working against the big media companies. Timing is crucial too, and cultural sensitivities and bureaucracy can block or delay the official release of DVDs in China, giving pirates an opening.

Many popular American films and television shows, such as "Sex and the City," are censored in China, so they are available only from bootleggers. Government review procedures and red tape, meanwhile, can delay release times of approved movies.

On March 3, Warner filed an application for "Ocean's Twelve" and received an oral approval from a government official on April 4. But as of early May, Warner's office in Beijing still had not received the necessary signature from the Ministry of Culture just two blocks away.

The ministry, which has a staff of 50 who review foreign movies and music, would not comment on specific titles. But Chen Tong, director of the ministry's audio-visual movie section, said it was "complete nonsense" that government censorship played a decisive role in hurting sellers of legitimate DVDs. The Internet gives bootleggers an advantage, Chen said, and studios sometimes are the ones responsible for delays.

Warner, for its part, says it has no problem working with the government on censorship. [emphasis added]

Heh. And here I thought that Hollywood was committed to freedom of expression. I wonder if Hollywood will ever complain about censorship, which contributes to infringement, as much as they complain about P2P? Actually, I don't really wonder. It'll never happen. For Hollywood, freedom of expression is only valuable when there is profit to be made from it. Censorship becomes cool if it becomes more profitable.

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression

May 13, 2005

May 12, 2005

Judge Patel Shoots Down Notion That the Right of Distribution Includes "Making Available"

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Posted by Ernest Miller

Prof. Susan Crawford brings news of an interesting twist in the Napster investment litigation (Distribution (II)). In a 4-page order, Judge Marilyn Patel dismisses an attempt by the plaintiffs to bring in a new standard for the right of distribution, "by making it available on a computer network accessible to members of the public," which was added to US Code as part of the recently signed into law Artists' Rights and Theft Prevention Act of 2005, but deals with infringement of works that have yet to be published. Read Patel's order: Memorandum & Order, Re: Plaintiff's Motion for Summary Judgement [PDF]. From the order:

If Congress wanted to make clear that the distribution right was broad enough to encompass making a work available to the public without proof of actual distribution, it is perfectly capable of doing so. Plaintiffs fails [sic] to identify anything in the legislative history of the ART Act, much less the statute itself, that suggests Congress' intent to clarify section 106(3) in such a manner. Instead, plaintiffs suggest that their "making available" interpretation of the distribution right is compelled by the fact the ART act imposes criminal liability on a class of infringing acts involving, inter alia, "the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public." ART Act § 103(a)(1)(C). Thus, according to plaintiffs, Congress must have implicitly recognized that civil liability for copyright infringement should be at least as broadly construed as the criminal offense defined by section 103(a)(1)(C).

Whatever the merits of this argument might be in the abstract, it is largely academic in light of the actual language of the ART Act, which plaintiffs conveniently disregard. That language makes clear that willful copyright infringement and "making [the infringed work] available on a computer network" are separate elements of the criminal offense defined by section 103(a)(1)(C). Thus, regardless of the manner in which a court interprets section 106(3) of the Copyright Act for the purpose of finding copyright infringement, criminal liability under the ART Act cannot be imposed unless such an act of infringement is proven beyond a reasonable doubt. This is hardly persuasive evidence of what the words of section 106(3) mean in the context of a civil copyright infringement action.

In any event, the court does not believe that the 109th Congress' views would affect the outcome of this action even if it had explicitly commented on the scope of the distribution right in the course of enacting the ART Act. The Supreme Court has repeatedly emphasized that such subsequent legislative history "is a hazardous basis for inferring the intent of an earlier Congress." [citations omitted] ... That is certainly the case here. If legislative history is to inform the court's interpretation of the Copyright Act of 1976, it must reflect the views of the members of Congress who enacted that statute into law. The opinions of members of the 109th Congress are of little, if any, relevance to such an inquiry and need not be considered seriously here.

Ouch.

This is very nicely and succinctly reasoned. Funny thing is, I think Congress should include "making available" as part of the distribution right. But then again, I think we should eliminate the right of reproduction all together, too. We certainly shouldn't expand the scope of the distribution right without balancing things out by narrowing or eliminating some of the other exclusive rights.

One also wishes the Judge Patel had spent a little more care with regard to the claims of direct copyright infringement in the original Napster case. Prof. Niels Schaumann does a good job of showing why the discussion wasn't sufficient: Schaumann on Direct Infringement in P2P.

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

Schaumann on Direct Infringement in P2P

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Posted by Ernest Miller

Prof. Niel Schaumann of William Mitchell College of Law has written an interesting paper looking closely at what sort of direct infringement P2P infringers are actually involved in (Direct Infringement on Peer-to-Peer Networks). From the abstract:

Indeed, the alleged primary infringement of P2P users seems to be an example of a phenomenon one sometimes encounters in the common law: A case finds liability, with little or no analysis. A later case also finds liability, with no independent analysis, citing the first case. A third case does the same, citing the first two cases. Before long, the principle of liability is declared to be well-settled, despite an almost complete lack of reasoning supporting the principle. The so-called RAM copy doctrine, discussed below, is a good example of this phenomenon. Direct P2P infringement seems destined to be another: While Napster, the first of the P2P cases, at least briefly discusses the basis for the direct liability of Napster's users, later cases have done little more than mention that P2P users infringe copyright, as if it were self-evident.
An important point, and while I sympathetic to much of Schaumann's article, there are a few points I am hesitant about, such as this blanket statement:
The dominant use of P2P networks is to facilitate the personal copying of recorded music, an activity that in other contexts is indisputably legal. For example, copyright law permits Joe to borrow a CD of recorded music from his friend, Sally, take it home, and copy it to a digital or analog medium for his own personal use.
The citation for this claim is 17 USC 1008, however, I don't believe that is as clear cut a claim. 17 USC 1008, which was part of the Digital Audio Home Recording Act (DAHRA), does privilege noncommercial copying, but that is only with regard to digital audio recording devices, digital audio recording mediums, analog recording devices, and analog recording mediums, such as DAT. It does not clearly apply to copying a CD to your computer hard drive, which is precisely why the RIO MP3 player was found not to violate the DAHRA. Moreover, there is the doctrine that by explicitly granting that right under DAHRA, the right didn't exist outside it, otherwise why the need for DAHRA.

Of course, I would argue that Schaumann should be right, and that personal use noncommercial copying should not be cause for infringement at all, period. Indeed, Schaumann argues that the bifurcation (DAT copying legal, MP3 copying questionable) is illogical. He's right, but since when has logic had anything to do with existing copyright law?

Schaumann's fair use arguments also seem a bit facile, that downloading is fair use:

To summarize, the copies of musical works and sound recordings made by downloading P2P users should be protected under the fair use doctrine. The first factor is neutral; the second and third weigh in favor of fair use; the fourth weighs at most only slightly against fair use.
I reproduce only his summary here, read his entire argument of course, but I'm not convinced.

Beyond my disagreements, however, Schaumann also seems to be heading in the direction of an argument that I've made time and time again. One of the key distinctions for Schaumann is between private and public distribution: "The important difference is that the Joe’s myriad internet friends make their collections of music available not only to Joe, but to anyone on the P2P network—in short, to the public." As I've said before, "share with friends, not strangers."

Schaumann also talks about the question of distribution in a bit more depth. Again, as I've said before, "it's all about the distribution." The fundamental question of copyright is not about reproductions, but the distribution of information. What does it matter if there are a bazillion copies of a work if they are not distributed? It is the distribution of information that should be the locus of copyright infringement. And, therefore, the question comes down to whether the distribution is public or private.

Schaumann's argument for consistency and precision apply in full force:

If, however, content owners want to enlist the public to help control infringement, the industries must be willing to support propositions of copyright law that make sense to the public. Intelligibility begins with consistency. Content owners, however, have tried to substitute rhetoric of “theft” and “piracy” for intelligible rules. This will surely fail. Public understanding of the rules depends on precision and consistency in determining which rights are infringed by which activities. [footnotes omitted]
Indeed. What could be simpler? Share with friends, not strangers.

via Legal Theory Blog

Comments (6) + TrackBacks (0) | Category: Copyright | File Sharing

May 11, 2005

May 09, 2005

Whither the Fourth Pillar of Fair Use

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Posted by Ernest Miller

William Patry asks a question that I have often asked about copyright law, " What's the Role of the Fourth Fair Use Factor?." His post is a short look at some of the difficulties of this "effect on the market" doctine as it has developed. Read the whole thing.

This is a difficult question. A couple of quick points that I would make would be that we should consider the question of substitution, that is, does the allegedly infringing work substitute for the market for the original? I also believe that there needs to be a distinction with regard to reproduction/distribution and the right of derivative works. The issue of effect on the market should be considered distinctly, depending on whether there is copying or a derivative work. Finally, I think that many (though not all) of these problems would be resolved if we were to rationalize copyright by focusing on public vs. private distribution.

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April 07, 2005

Distribution Loophole in Capital Records v. Naxos?

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Posted by Ernest Miller

A couple of days ago I wrote about Capital Records v. Naxos, in which New York's highest court held that New York common law copyright protected 50-year old sound recordings (New York - Common Law Copyright Protects 50-Year Old Sound Recordings). Joe Gratz has now written a brief bit on the article (N.Y.: Pre-1972 Sound Recordings Under Copyright Until 2067). He makes an interesting point:

It’s important to remember that this decision is limited to acts of infringement that take place in the state of New York, and infringement in New York consists only of unauthorized reproduction. So perhaps Naxos could do all of its infringement in Hoboken then truck the CDs across the border and sell them in New York. But that’s the trouble with common law copyright — you just don’t know until somebody sues you.
I don't have the time to delve deeply into New York's common law copyright, as well as their various state statutory provisions. However, I doubt circumventing New York's common law copyright would be as easy as trucking in CDs from New Jersey for several reasons.

First, "the right of reproduction" is actually a fairly recent invention within the concept of copyright. Originally, copyright (as in the Copyright Act of 1790) was about "publishing, printing and vending." While printing might seem to be similar to the "right to reproduce" it was not, and was, in fact, subordinate to the right to publish, which included what we would now consider the right to distribute. So, I think that if we really get into the roots of common law copyright, we would find that it extends beyond the simple right of reproduction and into the right of distribution as well.

Second, in the Supreme Court case Goldstein v. California, which examined state copyright, the Court seems to assume that to obtain one state's copyrighted material you would have to go to a state where the material was not copyrighted:

The interests of a State which grants copyright protection may, however, be adversely affected by other States that do not; individuals who wish to purchase a copy of a work protected in their own State will be able to buy unauthorized copies in other States where no protection exists. However, this conflict is neither so inevitable nor so severe as to compel the conclusion, that state power has been relinquished to the exclusive jurisdiction of the Congress. Obviously when some States do not grant copyright protection - and most do not - that circumstance reduces the economic value of a state copyright, but it will hardly render the copyright worthless. The situation is no different from that which may arise in regard to other state monopolies. such as a state lottery, or a food concession in a limited enclosure like a state park; in each case, citizens may escape the effect of one State's monopoly by making purchases in another area or another State. Similarly, in the case of state copyrights, except as to individuals willing to travel across state lines in order to purchase records or other writings protected in their own State, each State's copyrights will still serve to induce new artistic creations within that State - the very objective of the grant of protection.
Now, this passage doesn't specifically refer to common law copyright, yet it seems that this would be an obvious loophole in a common law copyright scheme were it not the common law practice to prevent such interstate distribution.

Third, Naxos is a bunch of lousy pirates and pirates are bad. Bad, bad, bad. How dare they attempt to profit off another's work some 50 years in the past? Bad, bad, bad, Naxos.

As I've said, I haven't looked into this in depth. I could be wrong.

Don't forget to check out the annotated (or soon-to-be) opinion on the legal.jot.com WIKI: Capital Records v. Naxos.

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April 06, 2005

Videogame Golf, Copyright and Drunken Bar Patrons

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Posted by Ernest Miller

Michael Madison points to a very interesting Seventh Circuit decision regarding copyright and trademark issues involving virtual golf on arcade machines (Access to Video Games: Methods of Operation). Read the 14-page decision: Incredible Technologies v. Virtual Technologies [PDF].

The case is quite amusing, for a judicial decision:

As anyone who plays it knows, golf can be a very addicting game. And when real golfers want to tee-it-up, they head for their favorite course, which might be a gem like Brown Deer in Milwaukee, a public course that nevertheless plays host to an annual PGA Tour event every July. What most golfers do not do when they want to play 18 is head for a tavern. Also, most people are quite familiar with Tiger Woods. But who knows Jeff Harlow of Florissant, Missouri? This case is about “golfers” who prefer taverns to fairways and aspire to be more like Harlow than Tiger. Our case concerns video golf.
I guess I'm easily amused.

Anyway, this case is a good look at "methods of operation" and functional exemptions to copyright, such as the trackball, which is a a method of operation and functionally located (following Lotus v. Borland). Relatedly, the Court looks at the minimal creativity in explaining how to operate the trackball. The case also dives into "scenes a faire" doctrine, determining that depictions of a golf course with wind indicators is a necessary part of a game of video game golf. More commentary on this from barrister Warwick A Rothnie here: Scenes a faire and creativity: copyright in golf simulations in the USA.

So, although there seem to be an awful lot of similarities between the two games, the Seventh Circuit upholds the lower court's denial of a preliminary injunction.

Finally, gotta love this smackdown regarding the claimed trade dress violations in the control panel:

IT argues, however, that the district court did not take into account what happens in the marketplace. IT says, “Bar and tavern patrons, often in dimly lit spaces, typically approach and play these video games while consuming alcohol; they are not consumers using high degrees of care in selecting, identifying, or differentiating the Golden Tee and PGA Tour games”! One wonders how different the control panels would have to be to avoid confusing such users.

Comments (0) + TrackBacks (0) | Category: Copyright | Games

April 05, 2005

New York - Common Law Copyright Protects 50-Year Old Sound Recordings

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Posted by Ernest Miller

The AP reports that New York's highest court has just ruled many audio works out of the public domain, at least in New York, check your local state law regarding applicable common law copyright (Court Rules Common Law Protects Recordings). Even though sound recordings were ineligible for federal copyright protection prior to 1972, New York has ruled that they are protected by New York's common law:

The state's highest court ruled common law in New York "protects ownership interests in sound recordings made before 1972 that are not covered by the federal copyright act." The result is that Capitol can continue to sue Naxos for copyright violation for records made almost 50 years before the federal copyright law.

"The answer to this question will have significant ramifications for the music recording industry, as well as these litigants," the court stated.

Just the music industry? How about significant ramifications for the public? Seems like the Court forgot why it is called the public domain.

Anyway, read the 36-page decision: Capitol Records v. Naxos [PDF].

[UPDATE] April 7, 2005 - Legal.jot.com Wiki entry here: Capital Records v. Naxos

The decision is a good history lesson in the distinctions between federal copyright and common law copyright and how they came to be. There are many interesting tidbits of information such as this statement regarding the Copyright Act of 1972: "The Senate was content to permit the states to provide perpetual protection to pre-1972 sound recordings, but the House objected (see id.)." Luckily too, because in Goldstein v. California the Supreme Court held that perpetual state copyright was okey-dokey, as long as Congress wasn't involved:

Petitioners base an additional argument on the language of the Constitution. The California statute forbids individuals to appropriate recordings at any time after release. From this, petitioners argue that the State has created a copyright of unlimited duration, in violation of that portion of Art. I, 8, cl. 8, which provides that copyrights may only be granted "for limited Times." Read literally, the text of Art. I does not support petitioners' position. Section 8 enumerates those powers which have been granted to Congress; whatever limitations have been appended to such powers can only be understood as a limit on congressional, and not state, action. Moreover, it is not clear that the dangers to which this limitation was addressed apply with equal force to both the Federal Government and the States. When Congress grants an exclusive right or monopoly, its effects are pervasive; no citizen or State may escape its reach. As we have noted, however, the exclusive right granted by a State is confined to its borders. Consequently, even when the right is unlimited in duration, any tendency to inhibit further progress in science or the arts is narrowly circumscribed. The challenged statute cannot be voided for lack of a durational limitation.
Read the whole thing.

In the US, we will have to wait until Feb. 15, 2067 for the works to enter the public domain in all states. [Corrected]

Of course, the works remain in the public domain in the UK...

via How Appealing

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April 01, 2005

Cory Doctorow Issues DMCA Notice and Takedown to BoingBoing Parody Site

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Posted by Ernest Miller

He can dish it out, but he can't take it.

Well-known "copyfighter" and sci-fi novelist Cory Doctorow can sure complain when the MPAA and RIAA try to enforce their members' copyrights, but the instant someone infringes on Cory's copyrights and trademarks - watch out! - the threatening legal letters and lawsuits start flying. Case in point, the BoingBoing parody site BoringBoring:


Sender Information:
Fred von Lohmann
Electronic Frontier Foundation
[Private]

Recipient Information:
BoringBoring
[Private]

Sent via: email
Re: BoingBoing Property Rights - Notice and Takedown request under the Digital Millennium Copyright Act, Section 512(c)(3)

Dear Sir or Madam,

I am legal counsel for and write on behalf of celebrated science fiction author Cory Doctorow and the award-winning website BoingBoing. We have recently learned that your organization, BoringBoring, is violating Mr. Doctorow and BoingBoing's copyrights by posting on your site, www.boringboring.org, certain copyrighted content from www.boingboing.net.

Our copyrighted material can be found here:
http://www.boringboring.org/

The copyrighted work that we believe has been infringed upon can be found here:
http://www.boingboing.net/

Pursuant to the Digital Millennium Copyright Act ("DMCA"), we are writing to provide you notice of your illegal activities and copyright infringement. Acting as an agent on behalf of Mr. Doctorow and BoingBoing, I have a good faith belief that the use of Mr. Doctorow and BoingBoing’s copyrighted material in this manner is not authorized by us, our agent, or the law.

Your organization's conduct constitutes willful copyright infringement and unfair competition and is damaging Mr. Doctorow, BoingBoing, our customers and our advertisers.

Mr. Doctorow and BoingBoing hereby ask that you remove all content and materials from your web site that was copied from boingboing.net. We insist that you confirm you have ceased all acts of infringement and destroyed all infringing materials within 5 days’ of your receipt of this letter.

Furthermore, Mr. Doctorow and BoingBoing own all rights in and to the registered mark BoingBoing (the "Mark"), which has been in continuous use in interstate commerce since the world-renowned website entitled "BoingBoing" was first published in 2000. BoingBoing is the exclusive licensee of the publishing and merchandising rights to the Mark in connection with the internet and all related collateral products and services (collectively, the "BoingBoing Properties"). As I am sure you are aware, BoingBoing is quite probably the most famous website ever published. Indeed, millions of pageviews of the various posts on the website have taken place since first publication. As a result of this enormous number of pageviews and the attendant publicity, the public associates the Mark and its distinctive logo solely with Cory Doctorow and BoingBoing.

It has come to our attention that you registered the domain name “boringboring.org”. We continue to be very concerned about your use of BoringBoring and stylized logo as it constitutes an improper association, which trades on the goodwill and reputation of BoingBoing and is likely to cause confusion with those Properties and applicable federal and local laws. As it is our obligation to protect our intellectual property rights, we must request that you cease all use of BoringBoring or any confusingly similar properties in connection with your website or otherwise, and that you refrain from registering any confusingly similar domains in the future.

We trust that you understand Mr. Doctorow and BoingBoing's concern over the infringement of their rights and that you will fully cooperate with us and confirm your compliance with our requests within 5 days’ of your receipt of this letter.

The foregoing is without waiver of any and all rights of Cory Doctorow or BoingBoing, all of which are expressly reserved herein.

I declare, under penalty of perjury, that the above is accurate, that Mr. Doctorow and BoingBoing are the intellectual property (copyright) owners of our material and that I am authorized to act on behalf of Mr. Doctorow and BoingBoing.

Very truly yours,

Fred von Lohmann
Electronic Frontier Foundation
[Private]

Read on for analysis of this threat letter.

...continue reading.

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More Honest Pirates

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Posted by Ernest Miller

A few weeks ago I noted truth-in-advertising on a bootleg DVD (Honest Pirates?). The bootleg DVD, SuperBabies: Baby Geniuses 2, had a prominent and honest reviewer's quote on the cover, "SuperBabies has no redeeming qualities." Apparently, this is standard practice for bootleg DVDs. Slate has published an article about piracy in Shanghai (the phrase "piracy in Shanghai" always makes me imagine sea-faring during the Napoleonic era) (Visiting the Pirate's Lair). The author notes that:

I picked up Shark Tale, an authentic-looking box emblazoned with an odd blurb from the Chicago Tribune: "Dated … and only intermittently funny."
I'm not a supporter of infringing DVDs, but I sure am in favor of honest review quotes on DVD packaging. I have to give those infringers credit where credit is due.

As for legitimate DVD publishers here in the US, heck, why not put the Rotten Tomatoes rating on the boxes? That would certainly help me make an informed decision on spur-of-the-moment DVD purchases. I might even begin to think that Hollywood, you know, cared about the consumer or something.

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March 15, 2005

Slate Induces Copyright Violations

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Posted by Ernest Miller

Slate has published another good article by tech journalist Paul Boutin, who advocates HTML annotation software for bloggers (Newsmashing: The new technique that will change blogging forever). Basically, you would be able to copy a webpage, then annotate directly on top of it, highlighting passages, writing notes, adding links, etc. Such is possible today, of course, but a software package that made it easy (just as blogging tools made publishing easy), could be a significant change, allowing anyone who can blog to create such annotations.

Being a long time fan of annotation, I think this would be great.

Of course, there is the little issue of copyright violation. Certainly, if I hosted the complete original work with annotations, that could very clearly lead to a copyright claim. Under the INDUCE Act theories, the company that made the software to allow this would also be liable. After all, if you are authorized to annotate, then you can manipulate the underlying file without need for annotation software. Clearly, the intent and purpose of annotation software would be to encourage the creation of derivative works and reproductions that people are unauthorized to make.

One possible solution would be to be able to create the annotations as a separate file and then layer them over the original copyrighted work. If one wanted to see the annotation, they would click a special browser link that would go to the original HTML of the work that is annotated (no copyright violation there) and then display the annotation over it (potential copyright violation). There is a drawback in that the underlying work could easily be changed to throw off the annotation, but that is a problem with linking in general.

Of course, all the people who were upset with Google for changing the presentation of their work would be just as upset with all the annotators. Would this be a copyright violation? Would a software company that provided this service be guilty of inducing infringement?

Currently, it is unclear how such a case would come out. I would like to think that annotation of this sort is clearly not a copyright violation inherently, but my views are not necessary shared by copyright owners and the courts.

UPDATE 1410 PT

Apparently Paul Boutin wanted to have an actual newsmashing contest, but lawyers shut him down! (Newsmashing!):

We were going to have a newsmashing contest, but the lawyers shot it down. Damn you, copyright law!
Heh.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Copyright | INDUCE Act

March 10, 2005

March 08, 2005

Is Arizona's Counterfeiting Law Unconstitutional or Preempted?

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Posted by Ernest Miller

Via FurdLog Frank Field brings our attention to the case of an Arizona teenager pleading guilty to possession of counterfeit intellectual property (WaPo Resurrects AZ © Infringement Case). The Washington Post (reg. req.) has the AP wirestory (Teen Convicted Under Internet Piracy Law). The teenager was caught by a federal task force and was allegedly copying and selling pirated material. Because of his age (17 at the time of the acts), instead of being prosecuted under the federal copyright statutes, his prosecution was turned over to local authorities in order for him to avoid jail time (mandatory sentencing under federal law would have put him in jail for at least 3 months, if convicted). Read the Maricopa County Attorney press release: Maricopa County Attorney Announces Breakthrough Conviction in Piracy Case [PDF].

What is unusual about this case is the state action. As EFF attorney Jason Schultz notes in the AP story, "Generally copyright is exclusively a federal matter ... Up until this point, you just haven't seen states involved at all." Now, in this case, this is probably a good deal for the teenager who would otherwise face federal action. However, I am concerned that the states are now getting into the business of enforcing copyright for Hollywood and the Feds, both of whom have plenty of their own resources.

More important, however, is that state copyright laws frequently have even less protections than federal copyright law. Take, for example, the law under which this teenager pled guilty: Arizona Revised Statutes § 44-1453 Counterfeit marks; violation; classification; presumption; seizure; forfeiture; remedies; definitions. Section 44-1453 claims that anyone who:

knowingly and with intent to sell or distribute uses, displays, advertises, distributes, offers for sale, sells or possesses any item that bears a counterfeit mark or any service that is identified by a counterfeit mark is guilty of a class 1 misdemeanor.
Well, a misdemeanor doesn't sound too bad. But the statute goes on:
A person who commits any act proscribed in subsection A is guilty of a class 6 felony if ... At least one of the following is true:

(a) The violation involves more than one hundred but fewer than one thousand items that bear the counterfeit mark.
(b) The total retail value of all of the items or services that bear or are identified by the counterfeit mark is more than one thousand dollars but less than ten thousand dollars.

A felony now, but it gets worse.
C. A person who knowingly manufactures or produces with intent to sell or distribute any item that bears a counterfeit mark or any service that is identified by a counterfeit mark is guilty of a class 5 felony.

D. A person who commits any act proscribed by subsection A is guilty of a class 5 felony if either:

1. The person has two or more previous convictions under this section.
2. At least one of the following is true:
(a) The violation involves at least one thousand items that bear the counterfeit mark.
(b) The total retail value of all of the items or services that bear or are identified by the counterfeit mark is at least ten thousand dollars.

We are now up to class 5 felonies. But, you really have to be a copyright pirate to be guilty, right?

Nope.

Intent to sell or distribute can be found if "knowingly has possession, custody or control of at least twenty-six items that bear a counterfeit mark." Well, still, you have to have pirated goods, right?

Nope:

1. "Counterfeit mark" means:

(a) Any unauthorized reproduction or copy of intellectual property.

If you have ripped songs from CDs you own to MP3, you have made "unauthorized reproductions." If you make fair use of a copyrighted work, you have made "unauthorized reproductions." And, if you have 1,000 copies of your fair use, you are guilty of class 5 felony. Joy.

There is no defense. You are guilty in Arizona for exercising fair use rights under federal law. This would seem to have just a little bit of conflict with the First Amendement.

One also has to wonder if this law doesn't lead, just a little bit, into federal preemption questions. How, exactly, is this law sufficiently different from the protections of federal copyright law? What is the additional requirment that avoids preemption?

Comments (3) + TrackBacks (0) | Category: Copyright

February 28, 2005

An Engine of Censorship

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Posted by Ernest Miller

In the copyright and First Amendment case Harper & Row, the Supreme Court famously called copyright law "the engine of free expression." Indeed, properly limited, copyright can be an engine of free expression. However, when not properly limited, copyright can, instead of promoting free expression, become an engine of censorship.

Many have argued this point, but seldom do you see such blatant and concrete examples of this phenomenon as when the Walt Disney Company aligns itself with would be censors of "dirty bits" in order to promote expanded copyright law. The Agitator had the story 10 days ago (Mousetrap):

So I was a little curious why Walt Disney Company sponsored a booth at CPAC [Conservative Political Action Conference]. It's the only notable corporate booth at the conference. My first thought was that maybe Disney's trying to win back family values crusaders still pissed off about the whole (ridiculous) "gay day" thing.

Turns out, Disney's presence at CPAC is a Grover Norquist project, and represents a soul-selling symbiotic effort between cultural conservatives and the Mouse to ban peer-to-peer technology. The Disney booth is lined with op-eds, Heritage backgrounders, and dire warnings to conservative parents about how their children are utilizing peer-to-peer to download pornography.

Is it a coincidence that the copyright industry (which usually celebrates the First Amendment) seeks to get in bed with censors? I think not.

UPDATE 1200 PT

Frank Field's Furdlog notes this hypocritical alliance (Alliances in the Grokster Battle) He quotes from an AP article on the New York Times website (File - Sharing Case Unites Unlikely Allies):

"Hollywood is definitely a strange bedfellow to most of us," said Jim Backlin, vice president of legislative affairs for the Christian Coalition of America. "Our goal was to cut down child pornography and other kinds of pornography, and if for some reason we were allied with the Hollywood types this time, so be it." ....

In building a wider coalition of support, Bainwol [head of the RIAA] said he sought to find a way to ensure that the "mainstream of America would embrace our position."

Bainwol's predecessor, Hilary Rosen, doubts a cozier relationship between conservatives and the entertainment industry will ensue.

"There is a bizarre but cool irony to the conservatives who hate the media we produce but defend to the death our right to make money when we produce it," added Rosen, whose tenure at the RIAA coincided with the 1999 congressional hearings over violent lyrics that followed the Columbine High School slayings.

I really have to admire the brazen way Rosen turns around the classic rallying cry of free speech "I disagree with what you say, but will defend to the death your right to say it."

Comments (2) + TrackBacks (0) | Category: Copyright | Freedom of Expression

October 12, 2004

Congressional Copyright Shenanigans Finished (For Now)

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Posted by Ernest Miller

As noted here, Copyright Shenanigans Not Over in Congress - Piracy Education Act Dangerous, there was concern that a mishmash copyright law bill would come out of Congress near the end of this session. Thankfully, the proposed legislation did not make it to a vote.

Its scary that legislation with such far-reaching effects and unintended consequences would get so close to passage in the first place.

Combined with the death of the INDUCE Act, this is a great victory for everyone who opposed anti-innovation legislation this year, from the Electronic Frontier Foundation to the American Conservative Union, from Public Knowledge to the Consumer Electronics Association, from the American Library Association to the IEEE-USA and many, many others.

Of course, the battle will continue, into the lame duck session and next term. Nevertheless, this has been a significant year for this great ad hoc coalition. Ten years ago I doubt that any of this legislation would have been significantly slowed, let aloned stopped. We must continue to build on this year's successes.

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October 08, 2004

MPAA/RIAA Files Petition for Cert in Grokster Case

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Posted by Ernest Miller

By complete coincidence, the day after the INDUCE Act died (for now), the MPAA and RIAA filed a petition for a writ of certiorari with regard to the MGM v. Grokster decision:

QUESTION PRESENTED
Whether the Ninth Circuit erred in concluding, contrary to long-established principles of secondary liability in copyright law (and in acknowledged conflict with the Seventh Circuit), that the Internet-based “file sharing” services Grokster and StreamCast should be immunized from copyright liability for the millions of daily acts of copyright infringement that occur on their services and that constitute at least 90% of the total use of the services.
Um, okay.

More later, when a PDF or other easy-to-read document is available.

UPDATE 1215 PT

Here is the 46-page document: MGM v. Grokster: Petition for a Writ of Certiorari [PDF].

UPDATE 2 1240 PT

Public Knowledge has issued a press release:

Public Knowledge Statement on MPAA Petition to Supreme Court

Background: The Motion Picture Association of America (MPAA) has asked
the U.S. Supreme Court to review the Ninth Circuit /Grokster/ case, in
which a peer-to-peer service was not held liable for copyright infringement.

Statement of Gigi B. Sohn, president of Public Knowledge:

“There is no reason the Supreme Court should review the /Grokster/
decision. That case was based on the principles established in the 1984
/Betamax/ case, which has lead to the largest and most profitable period
of technological innovation in this country’s history. Consumers,
industry and our country have all benefited as a result.

“The Betamax case was good law in 1984 and remains good law today.”

Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing

Copyright Shenanigans Not Over in Congress - Piracy Education Act Dangerous

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Posted by Ernest Miller

Public Knowledge reports on a bill that includes a number of different copyright provisions thrown together, HR 4077 the "Piracy Deterrence in Education" bill. It combine several different significant changes to copyright law that haven't gotten nearly the attention they should, thanks to the INDUCE Act. Could it be that INDUCE was merely meant to be a distraction? [Stop being conspiratorial - Ed.]. Oh, yeah, and it designates the Oak as the national tree:

The tree genus Quercus, commonly known as the oak tree, is the national tree.

Public Knowledge has put together talking points on the bill. Scary stuff considering the significant and little debated changes to copyright law this will create:

  • Fundamental Change of Copyright Law that:
    • Expands Infringement:
      The bill establishes “offering for distribution” as the basis for a criminal copyright violation, and “making available” as the basis for a civil violation–regardless of whether there is any distribution or copying, let alone infringement. Those standards are far too vague, and could include material stored on computers and shared on networks. The bill is a departure from existing copyright principles and could have a number of unforeseen consequences. Example: use of innovative music sharing feature of Apple’s popular and legal iTunes program would be made a crime.
    • Worsens Penalties:
      Requiring the U.S. Sentencing Commission to modify its guidelines to significantly increase the criminal infringement sentences has the danger of creating a punishment not fitting the crime.
  • Federal Government Enforcing Private Claims:Traditionally, to enforce criminal copyright infringement, the copyrighted work needs to be registered with the Copyright Office. Under Section 6 of HR4077, in conjunction with S. 2237, “The PIRATE Act,” the Justice Department could pursue a copyright infringement claim, regardless of whether the work was registered. There are two reasons why this is the wrong road to go down:
    • Registration Formalities:
      Yet another erosion of traditional copyright law’s formal requirements of registration. Registration is an important component of copyright because it puts the public on notice of an author’s work. Currently, to have the government enforce a copyright criminally, the copyright must be registered, which is by most artists register their copyright so they can have full force of the law. Under 4077, this incentive to register will disappear.
    • Copyright Owners should Bear the Costs, not Taxpayers:
      It is inappropriate for tax-payer dollars to be spent on enforcing the private rights of action of copyright owners. The bill would authorize $15,000,000 to Department of Justice to enforce private claims. Copyright holders should continue to file their own lawsuits, regardless of whether some might be hesitant to because of the ill will they generate among consumers. This section is an attempt to let the federal government do their work for them.
  • Recording in a Movie Theater into Imprisonable Offense:
    Section 8 aims to make the unauthorized use of a video camera in a movie theater to transmit or make a copy of a copyrighted work into an imprisonable offense. Fair use protections guaranteed under copyright law would not apply. No one is condoning infringement or “bootlegging” of motion pictures, however it is conceivable that someone would need the fair use right to record a film, or part of a film. Example: a film critic, religious scholar, or student could video record key segments of a movie for a later public debate. Such an act would likely be allowed under copyright law today, but would be a crime under this section. When copyright infringement occurs, a court decides on a case-by-case basis whether actual infringement has taken place. This bill would unnecessarily criminalize those who are otherwise acting legally.
  • Department of Justice / ISP Pilot Program:
    Section 3 outlines a program under which Internet Service Providers could pass on to consumers notices from the Justice Department alleging copyright infringement. There is concern that such a program would require ISPs to police their own networks on behalf of content companies—essentially requiring ISPs to assist in “fishing expeditions” against consumers and their own customers. Taxpayer dollars could be better spent on priorities other than notifications of possible copyright infringement.
  • Private Home Video Viewing:
    The original House version of this bill provided an affirmative right for those who used technology to skip objectionable material, such as profanity, violence, or other adult material, in the audio / video works that they legally purchased. This is a right that most believe manufacturers of technology and consumers already have—regardless of HR4077. The entertainment community has hijacked this provision and turned it against consumers and the tech community. Now, the affirmative right to watch and skip parts of the content that a consumer has legally obtained only exists if certain conditions are met: no commercial or promotional ads may be skipped. Additionally, technology manufacturers must provide a notice at the beginning each showing stating that “the motion picture is altered from the performance intended by the director or copyright holder of the motion picture.” This sets the functionality of the everyday VCR and TiVo on its head.
I could add some more details to some of these points, but this is a very bad bill. It might not be as bad as INDUCE, but it will do a number of bad things to copyright law and it should be stopped.

Comments (4) + TrackBacks (0) | Category: Copyright

September 29, 2004

Intellectual Property PAC Launches

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Posted by Ernest Miller

Cool:

IPac is a nonpartisan group dedicated to preserving individual freedom through balanced intellectual property policy.

We believe that technological innovation and individual creativity are vital to the future of this country. We believe that a prosperous and democratic society depends on freedom for all individuals to pursue scientific invention and artistic expression. Unfortunately, new intellectual property laws threaten to stifle these freedoms and restrict public participation in science, art, and political discourse. [link added]

The principles are here: IPac Statement of Principles:
  1. Creators of ideas and inventions have the right to be compensated for their work, but not to limit political expression, veto technological innovation, or restrict education and scientific research. [read why]
  2. Intellectual property laws should be judged by their potential to foster new creativity, as required by the U.S. Constitution. [read why]
  3. Intellectual property laws should be clear and explicit, so anybody can create without fear of lawsuits. [read why]

Comments (0) + TrackBacks (0) | Category: Copyright

September 01, 2004

The Copyrightability of Messages from Extraterrestrials

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Posted by Ernest Miller

David Weinberger posted something today on JOHO the Blog that reminded me of one of the minor problems I have copyright law (The words of the prophets are written for $14.95):

Remember Rael? No, not Rael Dornfest. The French "journalist" and lying clone meister who has been appointed ambassador by the extraterrestials who created life on this planet. In fact, the ET's dictated a book to Rael to set the planet straight. And yet Rael charges $14.95 to buy it. Why haven't the aliens cut Rael down with a laser death beam beam for not posting the whole book for free on the Web? Did Isaiah hold out for foreign rights? Did Ezekial hold on to the film rights? Did Jeremiah run blog ads?...
I've always thought that authoritative religious works shouldn't be copyrightable, or if they are, that the copyright should be exceedingly thin.

Why? Well, among other reasons, it doesn't seem that we have to worry about the incentive to create the works. I would also consider the works fact-based, since there is generally no claimed human-based creativity involved. Furthermore, where a text is supposedly authoritative, there would seem to be problems with the merger doctrine. When every word is important for doctrine, you really can't separate the idea from the expression, they are one and the same. Authoritative religious works are often functional as well, and you can't copyright functions.

Of course, the courts don't seem to agree with my position. In fact, I would say that copyright has often been used to protect established religion to the detriment of newer religious groups. Gee, wonder why that is?

More about the book here: Raël's The Message given by Extra-Terrestrials.

Comments (2) + TrackBacks (0) | Category: Copyright

August 30, 2004

Once Upon a Time Martha Graham Had an Employment Agreement

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Posted by Ernest Miller

What is it with copyright lawyers and fairy tales? First, we have Andrew "Werdna" Greenberg, Vice-Chairman of the Intellectual Property Committee for the IEEE, writing fables about abusive copyright laws (A Copyright Fable Relevant to the INDUCE Act (IICA) and Other News and INDUCE Act (IICA) Roundup - Friday the 13th). Now, C.E. Petit is waxing fanciful about a recent copyright work-for-hire case (Red Hot Dancing Shoes).

Normally, I consider work for hire cases as interesting as, well, something that isn't very interesting. However, the case Petit discusses is one that many technologists should be concerned about because many of them might find themselves in similar positions:

Once upon a time, in a metropolis far closer than I'd prefer, a famous dancer—you'd know the name, even if you don't pay much attention to dance—decided that she needed the limited liability and tax advantages of a corporate structure. She therefore incorporated her thriving business, and became the owner, chief executive, employee, cook, and bottle washer. She continued her successful choreography for many years thereafter.

Then she died. And thus, a lawsuit was eventually born.

The corporation (which had split, and changed names) continued to exist, and was not owned by her heir. Both the corporation and the heir wanted to control the copyrights in the choreography. The evil fairies lawyers convinced each side that they were in the right. And so, they took their dispute to the Court at the Castle on the Hudson. Really, the Post Office on the Hudson; but that's a different tale, involving dwarves, architects, extortion, and nastiness that doesn't belong in a bedtime story—even one calculated to scare the living daylights out of the listeners, like this one.

The case is Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc. [PDF] and was decided by the Second Circuit on August 18th.

In the end, many of the copyrights stay with the corporation and don't go to the heir. Petit pulls out one important aspect of the holding:

[Appellant argues that] where a corporation is formed for the purpose of fostering a supportive environment in which an employed artist will have the opportunity to create new works, the default rule should leave the copyrights in the new works with the employee, and place on the employer the burden of pursuing a contract to obtain her copyrights. Whatever the intrinsic merit of such an approach, we conclude that its adoption is a matter of legislative choice for Congress in the future, not statutory interpretation for a court at present.
Why is this important to technologists? Petit explains:
It's time for the moral now. Why should techies, and for that matter anyone else, care about fifty-year-old choreographic notation? Principally because programmers, and many others, who create intellectual property frequently resort to creating small corporations without adequate legal counsel....Now, children, it's not bedtime yet. I want you all to write fifty times "I will not neglect to clarify copyright ownership in employment agreements" on the inside of your eyelids.

Comments (4) + TrackBacks (0) | Category: Copyright

Copyright Permissions and Kinko's

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Posted by Ernest Miller

Promote the Progress has a very interesting post on Kinko's copyright policy (Kinko's won't help you infringe...):

I was at Kinko's this week, and grabbed a brochure entitled "Copyrights & Trademarks." Apprently, Kinko's "want[s] you to be aware of the legal issues involved when copying trademarked, copyrighted and restricted materials."

According to the brochure, Kinko's "requires that customers receive written permission from the...owner before reproducing any...material." How do you get permission? Kinko's will help...the brochure includes a "Copyright/Trademark Permission Request Form." Basically, a person who wants to make copies provides all of their personal information, and indicates the number of copies desired and the intended use and distribution of the copies. Give the completed form to a Kinko's associate, and they will give you a complimentary fax to the copyright/trademark owner. No copies allowed until the form is sent back.

I didn't think to do this while I was at the store, but I think I'll ask a few Kinko's associates how often they have received completed forms (and given the complimentary fax). [emphasis in original]

Anyone have experience with this complimentary rights clearance fax process?

Of course, we can thank what I consider a bad court decision for ridiculous requirements like this: Basic Books, Inc. v. Kinko's Graphics Corporation. The case basically found the copying center liable for infringement for providing copied course packets to students.

I've never really understood why the copyright holders didn't sue either the professors or the universities involved. It was easier, sure, but it seems to me that the copying house served more as a neutral distributor, without the expertise to make determinations of whether the course packets given it by professors were infringing or not. How are the minimum-wage employees of a commodity business supposed to weigh the fair use factors when determining whether 25 pages copied from a book for purposes of educational use are a "fair use" or not?

Why shouldn't the copying house be held non-liable and the professors and/or universities be held liable for the infringement?

Comments (0) + TrackBacks (0) | Category: Copyright

The Google File System

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Posted by Ernest Miller

Slashdot points to an extremely interesting Google Gmail hack - the Gmail File System (GmailFS - The Google File System):

GmailFS provides a mountable Linux filesystem which uses your Gmail account as its storage medium. ... GmailFS supports most file operations such as read, write, open, close, stat, symlink, link, unlink, truncate and rename.
Most of the comments on Slashdot deal with the fact that this hack probably violates Google's terms of service and may result in users having their accounts abruptly terminated. However, there are some insightful ones (Re: GoogleOS).

More importantly, this does point towards another piece of the internet operating system puzzle (or, more specifically, Google Operating System).

Gee, I wonder if the advent of a Google Operating System will have any impact on copyright law, telecom regulation, etc., etc., etc...

UPDATE 2200 PT
On a somewhat related note Discourse.net (GoogleWatch Says 'Google Is Dying').

Comments (0) + TrackBacks (0) | Category: Copyright | Internet | News | Open Standards | Telecomm | Tools

August 26, 2004

Introducing: The Importance Of ... Audio Edition

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Posted by Ernest Miller

As I noted in the previous post (Broadcatching on the iPod Platform), I've decided to start an audio show on IT Conversations. The shows will be available in both MP3 and AAC. More importantly, they will be available via RSS with enclosures.

The audio edition homepage: The Importance Of ... Law and IT.

The first show is, I think, a very interesting one, dealing with the recent Grokster decision (The Importance of ... Law and IT: MGM v. Grokster). What makes it interesting is not only the topic, but the most excellent guests on the show:

I would really like to thank all the participants for joining me in this first show for a great discussion. Many thanks!

During the show, Fred mentions a white paper he has written on designing P2P filesharing programs while avoiding liability. Those interested can find it here: IAAL: Peer-to-Peer File Sharing and Copyright Law after Napster.

I've also added a new category to this blog to follow my audio shows: Audio Edition Archive.

Comments (1) + TrackBacks (0) | Category: Audio Edition | Copyright | File Sharing

August 19, 2004

Grokster Wins Big in 9th Circuit

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Posted by Ernest Miller

The Ninth Circuit has upheld the district court decision in Grokster. Read the 26-page decision: MGM v. Grokster [PDF] . Read it. The decision isn't really all that long, it is single column formatted with 8 pages of administive gobbledygook.

A quick read of opinion leads me to think it a great decision that shows a deep understanding of technology and the public policy behind what the decision calls Sony-Betamax. This decision also demonstrates a better understanding of the Napster decision than the court that wrote it, I think, putting it into better context, certainly.


Other coverage (UPDATED 1120PT, 1150PT, 1220PT, 1245PT, 1255PT, 1340PT, 1400PT, 1525PT, 1800PT):

The man who argued the case, Fred von Lohmann, discusses it - read! (More on MGM v. Grokster Ruling).
EFF's press release (EFF Scores Landmark Win for P2P).
Jason Schultz on Copyfight (Powerful Language from the MGM v. Grokster Decision).
Cory Doctorow on BoingBoing ( EFF wins Grokster! Software doesn't have to be easy for Hollywood to wiretap!).
Techdirt (Appeals Court Rules For Grokster).
Ed Felten (Grokster Wins in Appeals Court).
Joe Gratz discussed the issue over dinner last night with blogger luminaries and they agreed this would increase pressure to pass the INDUCE Act (Dinner). More from Gratz on the recurring trope in the case (Victory).
Eugene Volokh (he disagrees about whether P2P "materially contributes" to infringement (Grokster).
Chris Cohen ( The EFF has won the Grokster case!!!).
Andrew Raff on IPTABlog (Ninth Circuit Affirms Grokster Ruling).
Andrew Raff on the INDUCE Act Blawg (Ninth Circuit Affirms Grokster).
Siva Vaidhyanathan points out the decision's extensive reference to the band (Wilco Saves the Day).
Ars Technica (Appeals court upholds legality of P2P software).
Seth Finkelstein analogizes this decision to the LaMacchia case that resulted in the No Electronic Theft Act (MGM v. Grokster appeal victory, and The INDUCE Act Cometh).
Frank Field notes that everyone seems to agree on the key paragraphs in the decision (9th Circuit Affirms Grokster).
Patent attorney Dennis Crouch thinks the opinion is well-written (Grokster not liable).
Dan Gillmor hopes the logic of this decision spreads (Important Copyright Ruling Favors Freedom).
P2P United's press release after the jump.
Slashdot (Your Rights Online: Grokster Wins Big in Ninth Circuit).
American Constitution Society (9th Circuit Panel Allows Peer to Peer File Swapping).
Scrivener's Error has some good points to make ([Expletive Deleted] Headline Writers).
Tim Wu, Lessig's guest-blogger, promises analysis here (Grokster Wins).
The Trademark Blog has the best headline (Grokster Advances To Finals).
Public Knowledge's press release (Public Knowledge Statement on Ninth Circuit Decision in the Grokster case).
Derek Slater does a little cleanup (Grokster Leftovers).
IP News Blog (The EFF wins Grokster; A good day with possible consequences?).
Tim Wu, again, on the possibilities of Certiorari to the Supreme Court (Cert.?).
Technology Liberation Front (Don't Get Too Excited).
Wendy Seltzer (MGM v. Grokster: 9th Circuit Affirms Software Makers Not Liable).

Mainstream Press Coverage (Added 1130PT, 1145PT, 1245PT, 1400PT, 1525PT, 1800PT) - They finally get in the act:
C|Net News (Judges rule file-sharing software legal).
Reuters (Court Deals Blow to Movie Studios).
AP (Court: Grokster, StreamCast Not Liable).
WIRED (P2P Services in the Clear).
LA Times (reg. req.) (Studios Lose Round in File-Sharing Battle).
The Register (Court tells RIAA and Congress to let P2P software thrive).
Internet News (P2Ps Score Landmark Legal Victory).
PC World (Peer-to-Peer Companies Win in Court).
Mercury News (Federal appeals court rejects attempt to shut down music file-sharing networks).


Below a few highlights and possible impacts regarding the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) ...

...continue reading.

Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing | INDUCE Act

August 08, 2004

Cultural Protectionism, Copyright and Filesharing

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Posted by Ernest Miller

Marginal Revolution points out an interesting confluence of interests in the copyfight (Cultural diversity and copyright). Traditionally, many countries attempting to control cultural influences have had quota systems for cultural imports. Countries, such as France, would permit only so many American movies, for example. Hollywood has, of course, strongly opposed this and pushed for cultural products to be regulated like any other import. Until now, cultural products have basically been more or less exempt from free trade agreements.

Of course, this does not mean that the demand for American cultural products went away. With the advent of the internet, people in countries with cultural quotas are accessing American culture by downloading it through P2P programs. To stop this leakage, countries such as France are cracking down on filesharing, which Hollywood likes. However, without their desired cultural products quotas, it is unclear how much interest countries like France would have in regulating P2P.

Interesting, and revealing about how copyright enforcement is a tool of cultural control.

Comments (3) + TrackBacks (0) | Category: Copyright | File Sharing

August 07, 2004

Does the FCC Want Out of the Copyright Regulation Business?

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Posted by Ernest Miller

Timothy Wu, professor of law at the Univ. of Virginia's School of Law and prolific guest blogger on Larry Lessig's blog argues that the FCC is having buyer's remorse with regard to the broadcast flag (The FCC wants out of copyright). He bases his conclusion on the fact that the FCC recently approved all thirteen proposed broadcast flag technologies, a decision I mocked here (FCC Bestows Its Blessing on Technological Innovation).

While I believe (but am by no means certain) that the FCC will ultimately regret this foray into copyright law, I am not sanguine about the fact that these first thirteen technologies were approved. After all, only one of the thirteen was opposed. So I don't see the fact that they were approved "without much fuss" to be particularly illuminating. After all, the hard negotiating and compromise took place between the CE/PC and copyright industries long before the technologies were presented for the FCC's blessing.

The fact that TiVo to Go was approved is not very reassuring either. First, at least one of the Commissioners (Kevin J. Martin) was willing to go on the record against the approval (Separate Statement of Commissioner Kevin J. Martin, Approving in Part, Concurring in Part, Re: Digital Output Protection Technology and Recording Method Certifications, Order (August 4, 2004) [PDF]):

I am concerned that Tivo’s technology does not include sufficient constraints. All of the other technologies requesting approval from us have adopted proximity controls or similar mechanisms to limit content redistribution outside the home at this time. I ultimately want to enable a person’s digital networking environment to extend beyond the home. I fear, however, that we may be acting prematurely in concluding that Tivo’s affinity controls are sufficient to protect against widespread redistribution. I therefore would have conditioned approval of Tivo’s technology on adoption of proximity controls at this time, and continued to study whether its device limits and affinity controls provide adequate protection.
Second, TiVo to Go does not seriously threaten the copyright interests. Sure, they opposed it, but they didn't make that much of an effort. After all, TiVo is struggling in the market and the "ease-of-use" of a system that requires easy-to-lose or misplace registered dongles isn't going to keep MPAA or NFL executives up at night. They were merely trying to see how easy it would be to boss the FCC around. Moreover, it was win-win for them. With TiVo to Go approved against their desires, the broadcast flag system looks more reasonable to those not paying close attention.

The biggest flaw with Wu's argument, however, is that he doesn't explain why the FCC approved the broadcast flag in the first place less than a year ago. The broadcast flag ruling was, to borrow a court term, well-briefed on both sides. It isn't as if the FCC didn't realize what they were doing. Has anything changed in the last year to make the FCC regret their rash judgement?

Some of the FCC Commissioners talk a nice game about deregulation, but one would be hard pressed to see their rulings as a whole over the past few years fit that model. There is the crackdown on indecency, of course. To be expected in an election year after Jackson's wardrobe malfunction, but why did the FCC have to revive the profane language doctrine after decades of nonuse? What of CALEA? What of the mess that is VoIP regulation?

The FCC isn't about deregulation, the FCC is about what's best for the political interests of the commissioners.

Comments (3) + TrackBacks (0) | Category: Copyright

August 05, 2004

The Future of Copyright, the Future of Technology

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Posted by Ernest Miller

Timothy Wu, professor of law at the Univ. of Virginia's School of Law and prolific guest blogger on Larry Lessig's blog, discusses a simple question asked of a group of law professors: what will copyright look like in eight years? (Copyright in Eight Years). Wu's list includes:

  1. Primarily a criminal regime (remember when copyright was considered civil law?)
  2. Focused on control of the design of hardware & software (in the model of the Broadcast Flag) to prevent infringement ex ante;
  3. A regime dedicated to preserving the retail market and revenue streams for 4 discs: (CDs, DVDs, Software CDs, and Video-Game CDs), having given up on nearly everything else;
  4. Made in WIPO or the FCC as often as the U.S. Congress;
  5. Gone (not a good bet).
  6. Alternative compensation systems developing outside the U.S.
Non-law professor Ed Felten responds here, and it is from Wu's comment in response that I get the alternative compensation scheme (Lawprofs Predict Future of Copyright Law). I completely agree with Felten, but would add a few more points.

Copyright law will be increasingly made behind the scenes of WIPO, the FCC and the Copyright Office. Regulatory capture doesn't begin to describe how far in the pocket of the content industries these organizations are. WIPO was built to serve the interests of the copyright cartels and force their will upon governments through international treaty. The Copyright Office loudly pushes an agenda even the RIAA only whispers. And the less said about Michael Powell's "commitment" to free markets and deregulation, the better. With the exception of the FCC to a very limited extent, none of these organization cares remotely about public opinion. Consumer rights simply do not factor into the equation.

Other than my certainty that intellectual property law will be made increasingly outside the confines of representative bodies, I'm not sure what else can be said about it. Eight years ago, would law professors have predicted the emergence of the original Napster, followed by decentralized filesharing services? How about Bit Torrent? RSS? Broadcatching? Didn't think so.

This isn't an argument about technological determinism or triumphalism. I don't know what is going to happen, I just know there will be change. The problem with existing copyright law is that it is not based on any principles. It has devolved into a morass of competing claims designed to protect particular business models and corporate interests. Rapidly changing technology is undermining those long settled compromises between industries and the law can't keep up to maintain the balance. Future technological changes will undermine whatever shifts in the law occur during the next few years. Remember how the DMCA was supposed to solve the problem of the internet?

In eight years, we will have had about four more iterations of Moore's Law, as well as similar growth in storage and bandwidth. In eight years, there should be cellphones with hard drives as big as the drives in the current iPods and capable of out-processing my 4-year old laptop. Everything is going to be capable of massive amounts of storage. I'm not going to venture any more guesses at technology here, but storage increases alone are going to jumble things around even more. How, I'm not entirely sure, but traditional notions of copyright law as compromise and balancing of existing interests ain't gonna cut it. What will happen to copyright law when open source takes over the desktop?

Will copyright law go away? Absolutely not. However, copyright law will have to be based on principle, not traditional corporate compromise.

Comments (3) + TrackBacks (0) | Category: Copyright

August 03, 2004

Online Comic Artist Reveals Comic Syndicates Wear No Clothes

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Posted by Ernest Miller

Scott Kurtz, creator of the wildly successful online comic strip PvP has thrown down the newspaper syndication gauntlet (SDCC 2004 - Part Four). His fine rant recognizes that the economics of comic syndication has shifted dramatically, particularly in markets (most of them) where there is no newspaper competition. Unfortunately, the comic syndicates are not changing to match the times. When Kurtz was looking into newspaper syndication, the syndicate demanded ownership of the strip, despite the fact that it was a successful established online strip. Big mistake for the syndicate.

But I've already become attached to the idea of seeing PvP in the papers, and that's why I've decided to start a new program. In the coming months, I'll be putting into effect, a program in which papers can receive PVP for free. That's right, free. They don't have to pay me a cent for it. I will provide for the papers, a comic strip with a larger established audience then any new syndicated feature, a years worth of strips in advance, and I won't charge them a cent for it.

The exposure and prestige of PvP appearing in daily papers would more than pay for itself in a months time. In exchange, I can offer the papers a comics feature that's tried and tested, funny and best of all, free. They have nothing to lose or risk financially. They can see, in advance, a years worth of strips so they don't risk me flaking out on them. Most of all, I can provide them with yet another bargaining chip against the very syndicates. This is the perfect climate to take this step.

Will it work? Will any newspaper give it a try and risk the anger of the syndicates, who are dead men walking but still powerful? That isn't clear. But if it does, yet another traditional copyright cartel will bite the dust.

Another highly recommended "read the whole thing."

via MetaFilter

Comments (1) + TrackBacks (0) | Category: Copyright

August 02, 2004

The Presidential Election, Copyright, INDUCE Act (IICA) and Tech Policy

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Posted by Ernest Miller

Teleread has been relentlessly requesting information about copyright and tech policy from the Kerry/Edwards campaign for months now (back when it was just Kerry). See, for example, this post from the end of June: Still wanted: Copyright answers from John Kerry's policy people in photo below. Teleread's most recent post on the issue looks at the tiny tidbit of innovation policy in Kerry's acceptance speech (John Kerry's chip against high tech):

Think about the copyright-related implications that Kerry unwittingly raised in his speech:
A young generation of entrepreneurs asked, what if we could take all the information in a library and put it on a little chip the size of a fingernail? We did and that too changed the world forever.
Hmm. Dream on, John. The biggest obstacle isn't the tech; it's campaign contributors. How fascinating that you talked about a library on a chip -- the very stuff gives copyright holders nightmares! And yet your policy advisors blew me off when I tried to educate them about Bono and also interest them in innovative ways of paying content-providers. Of course, the real action isn't in libraries on a chip. It's in networked libraries. [emphasis, links in original]
C|Net News's Declan McCullagh now weighs in on Kerry's tech policy (John Kerry's real tech agenda). McCullagh does a good job summarizing Kerry's position's on tech from his Senate votes and statements. The record is definitely not positive when it comes to copyright:
A careful review of Kerry's history in the Senate shows that his record on technology is mixed. The Massachusetts Democrat frequently sought to levy intrusive new restrictions on technology businesses that could harm the U.S. economy. He was no friend of privacy and sided with Hollywood over Silicon Valley in the copyright wars.
I've blogged about Timothy Wu, professor of law at Univ. of Virginia's School of Law, before (It's All About the Distribution - Free Speech, Telecomm and Copyright). He is one of the most important new voices in information law, but more about that in another post. Anyway, he is guest blogging on Larry Lessig's blog and one of his first posts asks whether a Kerry administration would veto the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) (The Question). There is some good discussion and information in the comments.

My take on this? Well, you're reading aren't you?

First, this is a non-partisan question. We should be asking both the Bush and Kerry people what their position on INDUCE is, especially as Sen. Orrin Hatch (R-UT) wants to pass the bill during the current term. Who really cares whether Kerry would veto it if Bush signs it into law? Indeed, if Bush spoke out against it, I highly doubt it would pass anytime soon.

Second, unfortunately, I doubt we will get much of an answer from either camp. The copyfight movement is simply too small and there are other issues that are much more important. Leftist copyfighters are unlikely to switch votes because Bush promises to stick it to Hollywood, and conservative copyfighters are unlikely to switch if Kerry turns on his Hollywood money donation machine. In such a situation, why should a politician stake out a clear position? Kerry will likely talk about protecting and promoting innovation, while protecting the rights of copyright holders and creative artists.

These are important issues, of course, but that doesn't mean they will be treated as important. Certainly, the copyfight won't be treated as important this election cycle. But that doesn't mean we should stop talking about these issues and pressing the campaigns on them.

However, Dave Winer's idea is probably not the best way to go about it (What the bloggers should have done at the Democratic Convention). Winer proposes that bloggers at the conventions lobby on behalf of the copyfight. However, that mistakes the purpose of conventions. They aren't there for lobbying. Moreover, that would be the fastest way to get disinvited to the next convention. Why would either party invite self-described lobbyists and, if they did, who would choose which lobbyists they should invite?

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Copyright | INDUCE Act

July 31, 2004

JibJab Files Lawsuit for Right to Distribute Parody?

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Posted by Ernest Miller

Bloomberg News is reporting that JibJab and EFF have actually filed a lawsuit to protect their right to distribute the parody (JibJab defends use of 'This Land'):

"This Land" was made for you and me, JibJab Media says in a lawsuit seeking the right to use the Woody Guthrie song This Land Is Your Land in an online parody of President Bush and Sen. John Kerry....JibJab, which is run by brothers Gregg and Evan Spiridellis, says in its suit, filed Thursday in San Francisco federal court, that the video is a parody and doesn't infringe on Ludlow Music's copyrights.
There is nothing on EFF's website that I could find and this is the only report of a lawsuit I've seen. I'm trying to confirm this report with EFF.

UPDATE 1150 PT
I've received anonymous confirmation that a lawsuit was filed (JibJab Does File Lawsuit - "This Land" a Fair Use Parody)

UPDATE 2 1350 PT
Seth Finkelstein has the court electronic database information (JibJab vs. Ludlow - Court Info).

Other JibJab News

The Dallas Morning News (annoying reg. req.) (Hits and Misses - July 31, 2004):

If this is danger, bring it on

The Richmond Organization is alleging that an online cartoon parodying the presidential race is causing "huge" damage to its copyright of Woody Guthrie's folk classic "This Land Is Your Land." But what it's really doing is adding some much-needed levity to a heated political season. The owners of the copyright are asking www.JibJab.com to stop distributing the cartoon that features John Kerry and George Bush as cartoon characters singing new words to the patriotic ditty. As obvious political satire, it's surely protected free speech. It's irreverent. It's funny. It jabs both sides. The true danger would be a lack of good satire in a presidential election year. [emphasis in original]

With regard to JibJab the Blawg Channel points to Stanford's Copyright & Fair Use Center for more information on the issues involved (Research Site of the Day).

USA Today had an odd column about the JibJab phenomenon. The article doesn't discuss the copyright issues, but is bizarre enough that I thought I'd point it out (This Net was made for you and me and the rest of the world).

I've now added a "JibJab Category" to my lists of categories to make following the story easier.

Comments (2) + TrackBacks (0) | Category: Copyright | Culture | JibJab

July 30, 2004

JibJabapalooza 2

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Posted by Ernest Miller

Woody_guthrie.gifImage via Wikipedia and Lucas Gonze

Commentary On Guthrie Borrowing the Underlying Tune

A number of commentators have noted the importance for fair use analysis of Guthrie having apparently borrowed the underlying tune for This Land is Your Land from an earlier tune. The earliest mention of this I found was in the comments here (Comments: Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads):

On a different tack, the consensus among folkies is that Woody Guthrie himself put his own "This Land" words to an existing tune, "Little Darlin' Pal of Mine". That tune was copyright by A.P. Carter and/or Ralph Peer, both of whom were notorious for recording and copyrighting materials which were already being sung by others. One source cites the melody going back to an older tune, a Baptist Hymn "Oh My Lovin' Brother".
The author of the comment is John Dowell who blogs for Macromedia, developers of Flash. See also, Dowell's post on this subject (JibJab update).

Compare clips of the two songs:

Guthrie's This Land is Your Land [MP3] - Courtesy of the University of Virginia Library's Lift Every Voice exhibit.
Carter's When the World's on Fire [MP3] - Courtesy of EFF.

Martin Schwimmer notes, "So now there are two widely-known clouds on the title that weren't widely-known last week" and asks, "What alternatives were available to the copyright owner?" (All Jib Jab, All The Time). Yep. Ooops.

Doc Bug wonders if strict enforcement of copyright would have kept Guthrie from recording "This Land is Your Land" in the first place (More JibJab, and thinking about deregulation). Answer: Probably. Maybe we need to change the law then, according to Doc Bug:

As Lessig points out, we citizens have the right to change the law. Copyright is a government regulation on the marketplace of ideas, one that restricts some speech in the hope that it will encourage others to produce more. We're all fully aware that the Net has radically shifted how the marketplace of ideas now works and will continue to work in the future. Isn't it about time we reexamined whether this government regulation still makes sense?

Other, brief commentary on this issue:
Reason's Hit and Run: This Song Was Their Song
Eugene Volokh: This Song Is Whose Song?

General Commentary on the Controversy

Martin Schwimmer has more comments on having noted the parody of Guthrie in JibJab's version (Copyright: Blawg Channel Gets The Joke):

Now, before you dismiss the fact that I saw the parody clearly merely because I practice copyright and trademark law and do this stuff all day, please note that as early as eighth grade, Mrs. Jacobson, our English teacher, lauded my ability to spot metaphors and the like in the assigned reading (a comparative advantage accruing to me by being the only person wonky enough to do the reading).

Be that as it may, as the Nader/Priceless court says, perceiving the parody clearly (or readily) is not the critical factor - parody can be subtle.

Andrew Raff has some very nice analysis about post-hoc rationalization and parody (Post-hoc Parody).

Free Culture Blog is worried what would happen if the parody isn't a fair use (Some troubling implications about the Jibjab case).

Finally, Technician Online claims that, in regard to the controversy, Guthrie would laugh his guitar off.

Previous Coverage

Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads
EFF Defends JibJab Animation as Parody
JibJabapalooza

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | JibJab

July 29, 2004

JibJabapalooza

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Posted by Ernest Miller

The JibJab controversy continues unabated. Here are a slew of links.

First, listen to 45 seconds of Guthrie's original, courtesy of the University of Virginia Library's Lift Every Voice exhibit (This Land is Your Land [MP3]).

Original "The Importance Of..." coverage:
Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads
EFF Defends JibJab Animation as Parody

Chris Cohen is having doubts, somewhat, about his original position that the flash animation was satire and not parody (JibJab video: am I to be labeled a flip-flopper?).

Reason publishes an essay favoring fair use and citing both me and Cohen (Jabbing JibJab).

Copyfight's Donna Wentworth looks at the underlying copyright on the music used in This Land is Your Land (Oops - I Seem To Be Standing On Your Shoulders).

Eugene Volokh must be getting a lot of email about this issue. We disagree, but he makes good points. Here are a few of his most recent postings:

De Novo weighs in that the use is fair (This Use is Fair Use).

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | JibJab

EFF Defends JibJab Animation as Parody

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Posted by Ernest Miller

WIRED writes a story on the JibJab controversy, looking fairly closely at the claims for and against fair use (Sue You: This Song Is Our Song). See also, this shorter Newsday article ('This Land' was made for comedy).

For a much more detailed analysis of the legal analysis, however, you can (and should) read the dueling letters between the legal representatives for the This Land is Your Land copyright holders and EFF, which is officially representing JibJab.

Ludlow's 4-page Cease and Desist Letter to JibJab's Lawyer: Re: JibJab Media Unauthorized Use of 'This Land is Your Land' [PDF]

Mr. Guthrie's musical composition is an iconic portrait of the beauty of the American landscape and the disenfranchisement of the underclass. As both a populist anthem and an ironic metaphor, "This Land Belongs to You and Me" contrasts a view of the "sparkling sands of her diamond deserts" and the sun shining on "wheat fields waving" with the city's working class in the "shadow of the steeple near the relief office" who grumble and wonder if such natural treasures embody their own experiece with this country. The Unauthorized Movie does not comment on those themes. Instead, Jib Jab merely uses Mr. Guthrie's lyrics and music as a convenient vehicle to caricature the partisan climate of the current presidential campaign. Although the combination of Mr. Guthrie's music with Jib Jab's script and animation is very funny, the caricaturing of the candidate's sound-byte attacks on each other does not transform the work into a parody of Mr. Guthrie's work.
EFF's 4-page Response to the C&D: Re: Jib Jab Media, Inc. and Ludlow Music, Inc. [PDF]
While your view of Guthrie's "This Land is Your Land" as being predominantly about "the beauty of the American landscape" and "the disenfranchisement of the underclass" is interesting, most Americans think of the song as an iconic expression of the ideal of national unity. Jib Jab's parody addresses, among other things, the lack of national unity that characterizes our current political climate (ending with the optimistic hope that unity might be rediscovered). In short, "This Land" explores exactly the same themes as the Guthrie original, using the parodic device of contrast and juxtaposition to comment on the original. See Abilene Music v. Sony Music Entertainment, 320 F .Supp.2d 84, 90-91 (S.D.N.Y. 2003) (emphasizing the role of contrast and juxtaposition as parodic devices). The parodic comment takes on an additional dimension of irony when viewed in light of the often omitted closing stanzas of Guthrie's original.
Read both letters, they do an excellent job of summarizing current law on these issues.

Bonus: EFF cites my claim that JibJab's use clearly parodies Guthrie's work in a footnote, "It is enough that the parody here is readily and objectively perceptible, as demonstrated by the fact that a variety of commentators already perceive it clearly" (Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads).

UPDATE 0900PT
EFF's official announcement: Update on JibJab's "This Land". via Copyfight

UPDATE 2 31 July 2004
I've added a "JibJab Category to make following this story easier.

via BoingBoing

Comments (2) + TrackBacks (0) | Category: Copyright | Culture | JibJab

Fair Use, Normal Use, Competive Use and the INDUCE Act (IICA)

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Posted by Ernest Miller

Kevin Heller makes an interesting argument regarding filesharing that parallels an argument made by Jessica Litman in her book Digital Copyright (P2P File Sharing is Non-Competitive Use of the Work). The argument is that there is a distinction between normal use and competitive use, at least before Congress screwed up copyright law in 1909.

A normal use is the use someone who has acquired a copy of a copyrighted work normally makes of it. Reading a book you got from the library is a "normal use." Watching a DVD movie is a normal use. Ripping a CD so you can play it on your iPod is a normal use. Normal uses are never copyright infringements. This isn't a fair use defense because normal use isn't a copyright infringement in the first place.

A competitive use is a use that "competes" with the rights of a copyright holder. For example, excerpting parts of a book and then selling the excerpts is a competitive use. Competitive uses are either infringement or protected by fair use.

So far, I agree completely. I think we should return to this doctrine. However, where I disagree is in how to distinguish the two types of use. Heller distinguishes the types of use by the characteristics of the user, for the most part. I distinguish them on the type of act. Heller says "consumers are not competitors." I say, in today's world, consumers, competitors, it depends on how they act, not who they are. Sitting in my den, I can manufacturer more albums than an independent label 30 years ago. I'm a publisher, if I want to be.

Heller says it is okay to be a publisher as long as I'm doing it non-commercially. I don't believe that is a sufficient distinction. Soon, everyone will have massive amounts of broadband available in the home and terabytes of storage space. Everyone will be able to "non-commercially" distribute more music than the labels could in their heydays. Copyright as we know it (or should understand it pre-1909) simply won't work under those conditions.

Heller says it is the commercial P2P file sharing networks that are the competitors. But if non-commercial distribution is legal, even if the commercial networks went away would that make any difference? If anything there would be more efficient and effective filesharing than ever.

This is why I don't agree with Heller's conclusion. Heller wants the RIAA to promise not to sue consumers if a narrowly tailored (targeting only commercial P2P networks) INDUCE Act is passed. First, you couldn't have such a promise because you couldn't get every copyright holder to agree. The enacting legislation would have to waive liability by statute. Second, and more importantly, even if the commercial systems went away you'd have just as much filesharing with the non-commercial systems. Indeed, with the liability waiver for users, technical development would be rapid and the copynorms would shift, since filesharing would have been legalized.

Comments (0) + TrackBacks (0) | Category: Copyright | INDUCE Act

July 28, 2004

Are TV Networks "Inducing" Infringement by Promoting JibJab?

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Posted by Ernest Miller

I'm disappointed in myself that I didn't mention this earlier. The JibJab controversy has an obvious nexus with the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). If, as the copyright holders for "This Land is Your Land" claim, the JibJab parody is a violation of copyright then all the newscasts on the major broadcast networks encouraging people to see it are obviously "inducing" people to violate copyright and could be sued for big bucks. Millions of people have dowloaded the flash animation, and the INDUCE Act could make the broadcasters liable for nearly every single download. How will the shareholders like that, assuming there is still a broadcast company left?

The Home Recording Rights Coalition has issued a press release making this very argument. I've posted the press release in its entirety below because it doesn't appear to be on the HRRC website at present. UPDATE 1335 PT - The press release is now on the HRRC website: Are TV Networks "Inducing" Infringement?.

Of course, as the press release notes, this is not a conclusion that JibJab's parody actually does violate copyright. As I've explained, I believe it is a clear case of parody and likely protected under fair use (Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads). Eugene Volokh disagrees, though his argument is conclusory (JibJab SoSue).

UPDATE 2 1355 PT
Public Knowledge has issued a press release supporting fair use for the JibJab parody. Read the Public Knowledge press release below.

UPDATE 3 31 July 2004
I've added a "JibJab Category" to make following the story easier.

Read on for the press releases ...

...continue reading.

Comments (3) + TrackBacks (0) | Category: Copyright | INDUCE Act | JibJab

July 27, 2004

Barbie on the INDUCE Act (IICA): From My Cold, Plastic Hands, Senator Hatch

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Posted by Ernest Miller

Nicholas_Bergson-Shilcock_I.jpgBarbie in a Blender is a wonderful celebration of free speech and fair use:

So when Utah artist Tom Forsythe took this photograph of Barbie in a blender as part of a series of critical fine-art Barbie photos, Mattel got pissed. So what did they do to try stop Tom's message? They decided to sue his ass....Luckily for Tom, he convinced some lawyers from the ACLU to step up to and fight his case, and after a long legal battle he was victorious. The judge in the case ruled that the lawsuit clearly ran counter to the first amendment, calling Mattel's suit "groundless and unreasonable." Not only that, but the Judge's order forces Mattel to pay Tom's $1.8 million in legal fees. National Barbie-in-a-Blender Day, July 27, is a celebration of this important defense of free speech.
Visit the exhibit, but Barbie's commentary on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) is my favorite. Photo by Nicholas Bergson Shilcock, Barbies Endorses SavetheiPod.com.

via Copyfight

Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | Freedom of Expression | INDUCE Act | Oddities

RIAA Subpoenas for John Does Valid

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Posted by Ernest Miller

C|Net News reports that the RIAA has won a significant battle in its lawsuits against thousands of John and Jane Does (Judge: RIAA can unmask file swappers). The ruling basically allows the RIAA to subpoena (on an expedited basis) a broadband provider for the identities of the John Does the RIAA has sued for copyright infringement. The RIAA must make a prima facie case of infringement, but the various arguments raised to quash subpoenas were rejected.

Although this is a decision by a single district court, it is likely to be persuasive in other courts though it isn't binding. Read the 26-page decision: Sony v. Does 1-40 [PDF].

The most important argument involved the First Amendment right to anonymity of the file sharers. While the judge recognized the First Amendment interest, he concluded that it was not sufficient to protect anonymity for filesharing of copyrighted files without any additional speech. This was the right decision. I agree with Paul Levy:

Paul Levy, an attorney at the nonprofit group Public Citizen, said that "the nice thing about the ruling is that (the judge) recognizes the First Amendment interests at stake here and he applies a balancing test." Levy, who filed a friend-of-the-court brief opposing the RIAA, said that Chin's analysis ensures that companies filing a copyright infringement lawsuit must prove they have a real case and aren't merely on a fishing expedition for someone's name.
The court reserved the right to address the other arguments, such as personal jurisdiction and improper joinder, later. This decision merely addressed the question of quashing the subpoenas. Now that the RIAA knows who it should sue, severance and and personal jurisdiction arguments will probably be made on behalf of the defendants.

There was one interesting aspect of the personal jurisdiction question. Defendants/amici were arguing that the IP/geographic location databases were accurate and showed most of the defendants outside of New York, while the plaintiffs were arguing that they weren't accurate enough to deny the subpoenas:

A supporting declaration by Seth Schoen, staff technologist with amicus curiae Electronic Frontier Foundation, explains the process by which defedants' IP addresses can be matched up with specific geographic designations, using a publicly available database operated by the American Registry for Internet Numbers. These geographic designations indicate the "likely" locations of the residence or other venue where defendants used their Internet-connected computers. Amici maintain that as many as thirty-six of the forty Doe defendants are "likely" to be found outside of New York.

Plaintiffs, however, dispute the accuracy of the methods described in the Schoen Declaration. According to plaintiffs, the geographical designations fall "far short" of 100 percent accuracy and are "often extremely inaccurate." [citations omitted]

Shades of Nitke v. Ashcroft, in which the government advocates the use of geolocation services to promote community standards on the internet with regard to obscenity. Censorware expert Seth Finkelstein has provided testimony that such services are flawed: (Expert Report of Seth Finkelstein in Nitke v. Ashcroft).

UPDATE
Tech Law Advisor has some additional comments ( Up/Downloaders Identities Not Protected by First Amendment).

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing | Freedom of Expression | Privacy

Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads

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Posted by Ernest Miller

Chris Cohen has been on a roll analyzing whether various derivative works are satires or parodies. The difference can mean one is legal and the other isn't under a fair use analysis. The basic rule is that a parody, which critiques the work borrowed from, is okay. Satire, which critiques something other than the work borrowed from, is not fair use. I tend to take a much broader view regarding whether something is parody (Parody of a Parody), so read on for some of my responses ...

UPDATED 0915 PT
UPDATED 2 1130 PT
UPDATE 3 31 July 2004
I've added a JibJab Category" to make following the story easier.

...continue reading.

Comments (7) + TrackBacks (0) | Category: Copyright | Culture | JibJab

July 22, 2004

Book Review: The Anarchist in the Library

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Posted by Ernest Miller

My review of Siva Vaidhyanathan's latest book, The Anarchist in the Library, is up on Slashdot (Book Review: The Anarchist in the Library). Not surprisingly, I like it.

Comments (0) + TrackBacks (0) | Category: Copyright

July 13, 2004

Destroying Some Artists so that Others Might Live

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Posted by Ernest Miller

Last week I had two posts on the question of whether labels might periodically remove copyrighted works from subscription services (Content Subscription Shenanigans and No Guarantees with Content Subscriptions). Access may be granted at one point in time and denied at another. I think this is a legitimate concern that should be addressed by those who promote subscription services. I've also come across further evidence of this possible music industry tactic.

An entertainment lawyer familiar with the issues (anonymous by request) has said that labels sometimes find it in their best interest to keep a good portion of their catalog in an inactive status (not available in physical formats). According to this source, label heads have told him that they don't stop selling certain artists not because they don't believe they can sell the music but, rather, they stop selling some artists' work so that they can clear the market for others. In other words, the strategically deny certain artists so that others can live.

I'm not sure why these tactics wouldn't translate over to the subscription-based world.

UPDATE
Bonus: This is the 500th Post on "The Importance Of..." Go, me!

Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing

The Living Room Candidate - Not a Creative Commons

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Posted by Ernest Miller

The American Museum of the Moving Image in Astoria, New York is an incredible museum and resource. It "is the only institution in the United States dedicated exclusively to the study of film, television, and digital media, and to examining their impact on American culture and society." In addition to the permanent collection of over 100,000 moving image artifacts, it has some fantastic temporary exhibits currently, such as a collection of Tim Burton's drawings from 12 of his movies. There is also an ongoing exhibit on videogames. In fact, admission to the museum provides you three tokens to play classic games including: Asteroids (1979), Frogger (1981), Ms. Pac-Man (1982), Space Invaders (1979), and Tron (1982). Additionally, the online exhibit Computer Space lets you download an emulator and the actual ROM for many of the games so that you can play them on your PC at home. You can download the original games! How cool is that?

Answer: very. Unfortunately, downloading the content from AMMI's latest exhibit is prohibited. Which is really a shame, because while the exhibit is excellent (really, really excellent), making the content freely downloadable could be very useful for our democracy. It's that important. Read on...

...continue reading.

Comments (6) + TrackBacks (0) | Category: Broadcatching/Podcasting | Copyright | Freedom of Expression

The Right to Hire an Attorney at an Academic Press

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Posted by Ernest Miller

The Chronicle of Higher Education has an important article about the copyright troubles of an anthology of essays about composer and violist Rebecca Clarke. The Chronicle article is behind a subscription wall, but you can read it on Fair Use Fighter Siva Vaidhyanathan's blog Sivacracy.net (More Copyright vs. Knowledge). I definitely recommend reading the whole thing.

The book at issue, A Rebecca Clarke Reader, is described as "The First Book On This Significant And Popular Composer." The book, according to the Rebecca Clarke Society homepage,

considers the life, works, and career of the English composer Rebecca Clarke (1886–1979). Leading scholars present original research on Clarke's songs, chamber music, and contemporary musical milieu, supplemented with new editions of rare writings by Clarke herself. Readers will particularly enjoy transcriptions of four interviews with the composer, where Clarke speaks candidly about her fascinating life.
The completed book had reached reviewers before it was hastily withdrawn. Christopher Johnson of the Oxford University Press manages Clarke's estate and has leveled accusations of copyright infringement against the book. Obviously, without access to the book, it isn't clear whether or not the allegations of copyright infringement are true or not. However, we do know that in addition to copyright infringement, the cease and desist letter claims that the book includes "defamatory and libelous statements regarding Mr. Johnson." The Chronicle notes that:
One university press's book recalled at the insistence of an employee at another academic press presents an exquisite irony. But the tale of A Rebecca Clarke Reader also illustrates a much larger problem: University presses, affected by shifting interpretations of copyright law, lack the resources to test the provisions of that law.
Indeed. Donna Wentworth explains it thus (University Press Refuses to Be Fair Use Guinea Pig):
The problem isn't that Ms. Curtis should be able to use any copyrighted materials she chooses -- she may indeed have violated Mr. Johnson's copyrights. It's that without sufficient funds or friends of the pro bono persuasion, there isn't any contest. The threat of a lawsuit is alone adequate to decide the "case" in favor of the copyright holder. This means that even (or especially) in academic publishing, the bottom line is the bottom line -- because, as the Indiana press music editor puts it, "No one has $11-million to test the gray areas." [link in original]
There is much more in the Chronicle's article that is spot on reporting. Again, read the whole thing. However, I will finish with just one more interesting nugget from the article:
Despite the press's demand that she return the 200 copies of the Reader in her possession, Ms. Curtis says that she is keeping them. "I have my 200 copies that I give to reporters and to libraries," she wisecracks. "I can start photocopying things and turn it into a PDF and have it circulate samizdat."

Comments (1) + TrackBacks (0) | Category: Copyright

Outfoxed Rope-a-Dope Begins?

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Posted by Ernest Miller

On Sunday the New York Times Magazine published an extensive article on a new documentary that is sharply critical of Fox News and borrows extensively from copyrighted Fox News clips under the fair use doctrine (How to Make a Guerrilla Documentary). My take here: Guerrilla Documentary Copyfighting. Donna Wentworth's here: Fair Use It or Lose It, Part II. Seth Finkelstein's here: "OutFoxed" and Fair-Use Strategy. Larry Lessig, who is working on the documentary's legal defense comments here: outfoxed.

Frankly, I thought it would be foolish for Fox News to take legal action against this film. All they will do is give it more publicity and make it more popular and more viewed than ever before. Without the major publicity that a lawsuit will bring, very few outside those already convinced Fox is biased would see the film. Guess Fox News is more foolish than I thought. Looks like they may be considering a little legal rope-a-dope.

According to the always-on-top-of-things Broadcasting & Cable, Fox News has released a statement on the film (Fox News Bites Back):

It’s illegal copyright infringement facilitated by The New York Times and billionaire liberal George Soros. Or so says Fox News Channel in counterattacking new documentary Outfoxed, which slams the cable network for the slant of its programming and blames its financial success for the "Foxification" of other news outlets.
Reuters wirestory here: Film Calls Fox News Biased, Channel Cries Foul. Editor & Publisher has more details on the statement (Fox Fights Back Against 'NY Times' Over Film Story):
In a statement handed out at the press conference by an unidentified woman, Fox News declared, "The illegal copyright infringement actions of moveon.org in cooperation with The New York Times, including 'cutting a deal' not to give Fox News Channel adequate time to react, is unprecedented." The Times, it said, in "taking orders from" a George Soros-funded Web site, "corrupts the journalistic process. This is the real story." It described Soros as "a left-wing billionaire currency speculator who funds many liberal efforts."
Of course, it would be nice of these news sources to actually make the statement available instead of simply summarizing it.

Comments (1) + TrackBacks (0) | Category: Copyright

July 12, 2004

Complaints About the Used Book Market - Again

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Posted by Ernest Miller

The New York Times takes a look at the perennial complaints of book publishers that the first sale doctrine (aka 17 USC 109 aka used books) is harming their business because of the increased efficiencies of Amazon (Online Battle of Low-Cost Books):

Is Amazon.com becoming the Napster of the book business?

The analogy may not be far off, say some observers of the used-book industry...."Used books are to consumer books as Napster was to the music industry," [Lorraine Shanley, a principal at Market Partners International, a publishing consultant,] said. "The question becomes, 'How does the book industry address its used-book problem?' There aren't any easy answers, especially as no one is breaking any laws here."

Did I say perennial? Yes. How about this quote from the New York Times in 2002 (Online Sales of Used Books Draw Protest):
"We asked could we at least talk about when something could become available as a used book? Could we maybe wait three months after the book was published?" said Patricia Schroeder, president of the Association of American Publishers. "The biggest problem is that it is legal, I think. I wring my hands, pound my desk and say, `Aargh.' "
I think the publishers should simply stop selling books to people who are going to turn around and sell them as soon as they are done. Perhaps shrinkwrap contracts or DRM would be in order. (Sarcasm)

via LawMeme

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On Walden

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Posted by Ernest Miller

Books are the treasured wealth of the world and the fit inheritance of generations and nations. Books, the oldest and the best, stand naturally and rightfully on the shelves of every cottage. They have no cause of their own to plead, but while they enlighten and sustain the reader his common sense will not refuse them. - Henry David Thoreau, Walden
On July 8th, Eric Eldred and the Internet Bookmobile went to Walden Pond to help celebrate the 150th anniversary of the publication of Thoreau's Walden (Free Walden). The reception wasn't at all what one might expect:
After an hour of having readers print and take away free copies of "Walden," I was asked by the Walden Pond Reservation police to pack up and leave and threatened with arrest. I left.

The park supervisor (Denise Morrissey, 978-369-3254) told me I could not pass out free literature without a permit. And she would not give me a permit because, as she explained, the state park gets money from a concession by the Thoreau Society, which operates a store that sells "Walden"--and I was competing with them by giving away free copies.

I cannot say how sad and disappointed this makes me nor can I imagine the response Thoreau would have had to this expression of the general police power. This is beyond any irony.

On the other hand, the Internet Bookmobile contines to do great work. I've said it before and I'll say it again. I think every school and library ought to have this publishing technology and access to thousands of great and important books freely available (Book Publishing in Every School and Library).

Of course, one of the wonderful things about the current moment is that we now have a growing number of really good books that are not out of copyright, but are copyleft. Not only can the Internet Bookmobile print Walden, but you can get a copy of such Creative Commons-licensed works as Lessig's Free Culture (though Eldred tells me it takes awhile to print the whole thing - he's given away chapters), Cory Doctorow's Down and Out in the Magic Kingdom, and coming (very) soon, Dan Gillmor's We the Media.

via Boing Boing

Comments (0) + TrackBacks (0) | Category: Copyright | Open Access

July 11, 2004

Guerrilla Documentary Copyfighting

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Posted by Ernest Miller

Robert Greenwald, an honored (and innovative) director and producer of films, has a new documentary coming out that critiqes Fox News, called OutFOXed. The New York Times Magazine has a lengthy article on many of the issues facing the making of this documentary, most prominently the copyright clearance issues (which are particularly difficult for films) (How to Make a Guerrilla Documentary).

Obviously, the documentary will feature many clips from Fox News, often showing them in a less than flattering light. Fox News famously sued over the title of Al Franken's book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. The case was laughed out of court, but it shows how litigous Fox News is willing to be. So, Greenwald is rightfully afraid that he will be sued, despite the merits of his case. Fortunately, it seems that perhaps Fox News has learned its lesson (their lawsuit helped publicize Franken's book better than anything). According to the Washington Post (annoying reg. req.) Fox News may ignore this documentary (though the statement certainly isn't a promise not to sue) (Too Late to Comment?):

"People steal our footage all the time," says Dianne Brandi, Fox News's vice president for legal affairs. "We generally sort of look the other way."

Nevertheless, there have already been other significant copyright problems, according to the NY Times Magazine article:

Then there was the fact that several major news organizations were unexpectedly refusing to license their clips. (Such licensing is ordinarily pro forma.) CBS wouldn't sell Greenwald the clip of Richard Clarke's appearance on ''60 Minutes,'' explaining that it didn't want to be associated with a controversial documentary about Murdoch. WGBH, the Boston PBS station, wouldn't let Greenwald use excerpts from ''Frontline'' for fear of looking too ''political,'' it said.

An aside: Of course, why use copyright law if there are other means to prevent the making of these sorts of films. Take, for example, the process Greenwald used to make the film:

''Outfoxed'' was made in an unusually collaborative fashion. In January, Greenwald rigged up a dozen DVD recorders and programmed them to record Fox News 24 hours a day, seven days a week, for about six months.
Fortunately, Greenwald didn't have to deal with the broadcast flag, which would make using such clips significantly more difficult (and expensive).

Another critical aspect to note about Greenwald's film is the innovative distribution methods he uses, bypassing traditional gatekeepers:

Last year, Greenwald followed up that effort with ''Uncovered,'' his critique of the Bush administration's case for war in Iraq, which featured interviews with former intelligence analysts, weapons inspectors and Foreign Service officers. Once the film wrapped, Greenwald turned the traditional distribution model on its head. Rather than taking the time-consuming route of entering film festivals or courting theater distributors, he sold the DVD of ''Uncovered'' through the Web sites of various left-liberal organizations: MoveOn, The Nation magazine, the Center for American Progress and the alternative-news Web sites AlterNet and BuzzFlash.
Through such means he has sold tens of thousands of DVDs. This is no mean feat and it shows the power of alternative distribution. After all, what conventional distributor would be willing to publish such an obvious lawsuit target?

Another aside: The people behind the film recognize the potential for even more innovative distribution.

Jim Gilliam, a 26-year-old former dot-com executive and a producer of ''Outfoxed,'' is enthusiastic about the way Greenwald's projects meld grass-roots politics with the culture of the Internet. He predicts a future -- augured by events like MoveOn's competition for the best 30-second anti-Bush advertisement -- in which young political filmmakers will be as likely to wield a camera phone as a digital camera. ''It won't be long before people will be shooting and editing short documentaries that they'll stream from their blogs,'' he says.
Yep. Sounds like broadcatching.

Luckily, given all the major legal issues involved, Greenwald has Ubercyberlaw Prof Larry Lessig and others working with him on the copyright issues (outfoxed). Says Lessig,

As the Times article describes, Greenwald’s style for distributing documentaries may be the beginning of something new — political criticism, using interviews and clips, making a strong political point, distributed through DVDs and political action groups. (See some other examples here). On what theory does he, and others, have the right to use such material without permission? On the free culture theory we call the First Amendment: Copyright law must, the Court told us in Eldred, embed “fair use”; “fair use” is informed by First Amendment values; the values of the First Amendment most relevant here are those expressed in New York Times v. Sullivan. As with news-gathering, critical political filmmaking needs a buffer zone of protection against the overreaching of the law. And if the potential of this medium — now liberated by digital technology — is to be realized, we need clear precedents that establish that critics have the freedom to criticize without having to hire a lawyer first. [links in original]
Indeed. Lessig's right:
Watch the movie. Celebrate the freedom it represents. It is a particularly American freedom that we should celebrate and practice more often.

Comments (1) + TrackBacks (0) | Category: Broadcast Flag | Broadcatching/Podcasting | Copyright

July 09, 2004

No Guarantees with Content Subscriptions

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Posted by Ernest Miller

Recently, on Copyfight, there have been a couple of posts about "tethered" music services (A Tale of Two Tethers and RCN's New Tethered Music Service). In A Tale of Two Tethers, Jason Schultz linked to a NY Times article in which a proponent of subscription streaming music services (as opposed to downloads) touts the supposed superiority of access such services provide (From a High-Tech System, Low-Fi Music):

Richard Wolpert, chief strategy officer of RealNetworks Inc., the parent of RealRhapsody, takes aim at Apple when he muses that customers will be unhappy when they decide that they want to own music encoded at 320, not at 128. Far better, he argued, to abandon the notion of "owning" songs, because the concept condemns users to endless purchases. "How many times do you want to own your music?" he asked. "I own my music as eight-tracks, I own my music as albums, I own my music as cassettes, I own my music as CD's."

With a subscription service like RealRhapsody, one saves personal tastes in the form of playlists that replace actual music collections, providing access to favorites no matter what storage format comes out "in the next 5 or 10 or 20 years," Mr. Wolpert said. [link omitted]

Unfortunately, access to favorites isn't guaranteed. According to Joe Gratz, some of the music on Rhapsody has a tendency to disappear, sometimes in only a few weeks (The Danger of Subscription Music Services):
Several times over the past few months, new releases have appeared on Rhapsody on their release date, only to be pulled from the catalog a few weeks or months later.
Imagine the licensing battles of the future. When renegotiating licenses, artists and publishers could pull their music out of the subscription system, thus leaving subscribers with no access to the music on the playlists they so carefully created. Gratz anticipates even shadier behaviour:
There is the possibility here for some very nasty crack-dealer-like licensing behavior on the part of the record companies: they license to subscription services for a while, then pull the album so people who are hooked go out and buy the CDs. Record companies could even repeat this gambit over and over, hooking new subscription-service users then forcing CD purchases each time.
Wolpert's right. A subscription service means that your music can be upgraded over time (though shouldn't we be at a point where upgrades are unnecessary?). Of course, that doesn't help much if the music is taken off the subscription service. That's a risk that Wolpert failed to mention. Maybe ownership isn't passe quite yet (Rental Nation).

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

July 07, 2004

Lessig on Hollaar's "Sony Revisited" and the INDUCE Act (IICA)

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Posted by Ernest Miller

Cyberlaw Prof Larry Lessig takes a look at some of the reasoning that seems to have informed those behind the Inducing Infringments of Copyright Act (IICA, née INDUCE Act) (continuing congressional confusion on copyrights (ie, not just (c), or (cc), or even (ccc) but (cccc))). He points to a recent paper (Sony Revisited [PDF]) from Lee Hollaar, Computer Science Professor with the Univ. of Utah. From the introduction of the paper:

Today, tens of millions of people participate in peer-to-peer systems like Kazaa, with most users “sharing” not their own material, but more likely music whose copyrights are owned by others. Whether such activities hurt the copyright owners by being a substitute for legitimate sales and license fees, or help by sparking interest in a new work, is not the question here. The Constitution and the copyright statutes give a copyright owner the exclusive right to the protected work during the limited duration of the copyright, and therefore the right to determine the business model for its distribution to the public. [footnotes omitted]
Lessig briefly addresses Hollaar's arguments, but really pushes the point that Sony enshrines the separation of powers, that,
This is not an opinion about copyright law alone. It is an opinion about separation of powers — about which branch is best able to do the necessary balancing that copyright law demands, “within the limits of the constitutional grant.” Sony says, in effect, when a technology is not simply a technology for violating the law, then it is left to Congress to decide whether and how that technology is to be regulated. Congress, not the courts. [link in original]
My perspective on Hollaar's paper when I've had a chance to go through it.

Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing | INDUCE Act

TiVo vs. Media Center Edition vs. INDUCE Act (IICA) vs. Broadcast Flag

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Posted by Ernest Miller

A couple of weeks ago Eric Harrison wrote a head-to-head comparison of Windows Media Center Edition and TiVo. (TiVo versus Media Center Edition PC's - finally!). TiVo won, partly because the original Windows machine had all sorts of defects, but mostly because TiVo is a more solid performer. Paul Robichaux's comparison goes into more depth about the MCE (Media Center Eye for the TiVo Guy).

Jupiter Research analyst Michael Gartenberg looks at Harrison's comparison and adds some thoughts of his own, as JR is working on a report on standalone DVRs (Tivo comparison to Windows Media Center):

First, the PC is more flexible. If I want to store and view my pictures, music and other video content, burn to DVD, copy to a portable media player and stream that content to other devices in my home, I can do that with the PC and not with the TiVo. The MCE EPG is also more flexible. Try and record the West Wing on TiVO, just the 7pm episodes shown on channel 44, not the other boradcasts. You can't do it. It's a snap on MCE. (why would you want to? to record a series according to airdates so you can watch the episodes in order). On the other hand, my TiVO never crashed, locked up, missed a scheduled record or any other annoying issue. Clearly the dedicated funcitonality makes for a more stable platform. Part of the MCE experience issue is that it's still a PC. You still need to exit to the shell to get some things done. You need to re-boot from time to time. If MCE is going to make inroads in the next year it needs to be able to shed the PC experience and live 24/7 as a consume electronics device.
Here are my thoughts. I already have a TiVo. I already have a PC. Most of the people who are considering buying a TiVo already have a PC as well. If the TiVo could simply talk to the PC, then they (and I) could get the benefits of consumer electronics reliability and the flexibility of a PC without having to buy a whole new, rather expensive PC.

So why don't DVRs offer this flexibility? They get sued into oblivion: EFF Archives: Newmark v. Turner Broadcasting System. Need I mention that the IICA (née INDUCE Act) will make bringing such company-resource-draining lawsuits easier? Or that, in a little less than a year, the government will burden such capability with mandatory DRM: Digital Television Liberation Front?

Comments (4) + TrackBacks (0) | Category: Broadcast Flag | Broadcatching/Podcasting | Copyright | Digital Rights Management | INDUCE Act

July 06, 2004

The Debate Over Free Information 100 Years Ago

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Posted by Ernest Miller

One hundred years ago today, the Oil City Public Library opened thanks to a $50,000 donation from Andrew Carnegie (Building of library was controversial issue back in 1904). Yet, as the title of the article indicates, building the library was not universally applauded. Reading the article, which includes many quotes from the debates of the era, shows many parallels with the arguments surrounding many of the copyright, library filtering and open access debates of today:

“The placing of a large collection of books within the reach of school children, without money and without price, will place all children on an equality. The child who has access to many books at home will not have so great an advantage as now over the child who cannot afford to own costly books of reference.”

“…If Oil City should have an institution of that kind, it would prove the ruination of hundreds of young persons, who would waste their time and corrupt their minds by reading cheap sensational novels.”

“People who claim that the reading of (dime) books…will injure the young should investigate carefully what these young ones are reading now.”

“The argument that reading works of fiction is injurious to the minds of working men is often advanced by men who themselves enjoy perusing such books.”

“The final (election) tally: 466 against the library, 982 for the library.”

via LISNews

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Oddities | Open Access

July 02, 2004

E-Mail Wiretap Decision: Out of the Wiretap Frying Pan, Into the Copyright Fire

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Posted by Ernest Miller

There has been a lot of rightfully worried commentary about a recent decision by the US Court of Appeals for the First Circuit that found that intercepting and copying users' emails by an email service provider did not violate US wiretap laws. See: EFF (Online Privacy "Eviscerated" by First Circuit Decision); WIRED (E-Mail Snooping Ruled Permissible); and, Slashdot (Appeals Circuit Ruling: ISPs Can Read E-Mail). As EFF put it:

The defendant in the case is a seller of rare and used books who offered email service to customers. The defendant had configured the mail processing software so that all incoming email sent from Amazon.com, the defendant's competitor, was copied and sent to the defendant's mailbox as well as to the intended recipient's. As the court itself admitted, "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."
Read the 16-page decision (and 37-page dissent): US v. Councilman [PDF] or HTML.

Now I in no way want to de-emphasize the dangers to privacy that this decision represents. If intercepting email is not a violation of the wiretap act, then all sorts of internet privacy goes out the window. If this ruling is not overturned, Congress will have to act to protect all of our privacy.

However, the defendant in this case, Bradford C. Councilman, may not have done himself any favors by winning. The problem is, by convincing the court that the emails intercepted were in "electronic storage," the defendant has pretty much made the case that he is guilty of criminal copyright infringement. Additionally, he would also be liable for huge amounts of civil damages for willful copyright infringement as well. From the decision:

According to the Indictment, on or about January 1998, defendant directed Interloc employees to write computer code to intercept and copy all incoming communications from Amazon.com to subscriber dealers. The Interloc systems administrator wrote a revision to the mail processing code called procmail.rc ("the procmail"), designed to intercept, copy, and store, all incoming messages from Amazon.com before they were delivered to the members' e-mail, and therefore, before the e-mail was read by the intended recipient. Defendant was charged with using the procmail to intercept thousands of messages. Defendant and other Interloc employees routinely read the e-mails sent to its members seeking to gain a commercial advantage.[emphasis added]
Hmmmm....According to the statutes on criminal copyright infringement, 17 USC 506:
Any person who infringes a copyright willfully either -
(1) for purposes of commercial advantage or private financial gain, or
The criminal copyright infringement indictment just about writes itself. Copying the emails is a clear infringement of the right of reproduction. Ordering employees to write a program to copy emails seems pretty willful to me. Finally, the infringement was done for purpose of "commercial advantage." Slam dunk. Interestingly, as long as the commercial value of the emails was greater than $2,500 (which is likely) then the criminal penalties for both infringement and wiretapping are equivalent.

Bonus. The civil penalties for willful infringement are much higher than one can usually get for wiretapping. I mean, heck, up to $150,000 per email copied! All Amazon has to do is sue.

The only problem with this theory, however, is that the statute of limitations for criminal copyright infringement is five years (which means you normally can't prosecute someone five years after the crime occurs). I know that the infringement started in 1998 and Councilman was indicted in 2001. However, these aren't enough facts to know whether or not the statute of limitations will preclude prosecution for criminal copyright infringement.

So, while this decision remains a serious threat to our privacy, if it can be shown that the interceptions were for "commercial advantage" then the Copyright Act comes to the temporary rescue (and perhaps provides even worse penalties).

UPDATE
The Washington Post (annoying reg. req.) has an excellent editorial on this case today (Derail E-Mail Snooping). As does the New York Times (Intercepting E-Mail).

Comments (1) + TrackBacks (0) | Category: Copyright | Privacy

June 30, 2004

Roland Emmerich: Copyright Pirate?

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Posted by Ernest Miller

Self-proclaimed LawGeek, EFF attorney, and fellow Copyfighter Jason Schultz posted a neat little comparison of the Long Room Library at Trinity College in Dublin and the Jedi Archives in Star Wars: Episode 2: Attack of the Clones (George Lucas: Public Domain Pirate). See for yourself:

Jedi ArchivesLong Room Library

Jason notes that "Lucas can't be sued for copyright infringement because the Long Room Library was built between 1712-1732. Lucky for him there wasn't a Thomas Burgh Copyright Term Extension Act back then. I mean theft is theft, right? Just like shoplifting a CD from a music store." Well, here is something that is still in copyright, but Hollywood thinks can be stolen:

libertystatue.jpg.jpetdat_sm.jpg.jpe

The first photo, according to the Museum of Hoaxes (Lady Liberty on Lake Mendota) is thanks to:

Jim Mallon and Leon Varjian, the two leaders of the University of Wisconsin-Madison's notorious Pail and Shovel (P&S) party ... [who had] promised to buy the Statue of Liberty and bring it to Wisconsin. Being men of their word, they actually made good on their campaign vow, much to everyone's surprise....Varjian claimed that the statue had been flown in by helicopter, but that the cable holding it had snapped causing Lady Liberty to crash through the ice until only the top of her head and her arm remained above water.
The other photo is from some bogus disaster movie, called The Day After Tomorrow or some such pretentious nonsense.

via Satellite News

Comments (2) + TrackBacks (0) | Category: Copyright

June 29, 2004

The INDUCE Act and the Right to Prepare Derivative Works

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Posted by Ernest Miller

The INDUCE Act makes it a crime to induce copyright infringement in very broad terms. Most of the commentary on the Act and what technologies, creativity and innovation it threatens have focused on two types of infringement, those of the right of reproduction (the right to make copies) and the right of public distribution. We should remember, however, that there are other exclusive rights that can be infringed. The intersection of the INDUCE Act with these other exclusive rights will create an even broader swath of technology and acts that Hollywood will have an effective veto over. Let's consider one of these other rights and the technologies that might be affected.

According to 17 USC 106, the second exclusive right is the right "to prepare derivative works based upon the copyrighted work."

Hmmm, I would imagine that it will be much easier for Hollywood to go after websites that promote fan fiction. Computer game companies that do not like modding can go after websites that teach people how to mod computer games. Websites that encourage or promote Machinima are in deep trouble. Things like remix "construction sets" would probably also be under legal threat, even if they didn't contain any unauthorized material. Certain editing technologies like the ClearPlay DVD player, which allows parents to skip offensive portions of a DVD, would certainly be more threatened than they are now. See, Liberals, Conservatives Favor Different Kinds of Censorship. Third-party annotations? Well, those are right out. Heck, it might be that a parody would be illegal because it encourages the creation of derivative satires. Anything that encourages you to change, edit, or manipulate copyrighted content would likely be forced to incorporate DRM else the technology provider be sued.

Just imagine if SCO, the company that wants to stop open source, had INDUCE in its arsenal. Linux, which never had much of a process (until recently) to ensure that submitted code was clean of adverse copyrights, would be toast. And how long before SourceForge and O'Reilly get C&D letters?

Now Hollywood might not win all these potential lawsuits, assuming the defense can afford to go all the way through trial and risk having a jury look askance at what they're doing, but how heavy will the threat of litigation weigh on those who encourage creation?

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | INDUCE Act | Machinima

June 23, 2004

Selling the Public Domain Short

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Posted by Ernest Miller

Joe Gratz has an interesting post that notes some of the ads showing up in his Gmail account (Gmail Ads). The ads are for two sites that purport to provide information about profiting from the public domain: How To Find, Re-Package And Sell Public Domain Content As Your Own Moneymaking Information Product and How to Profit From Public Domain Information. Discuss copyright and the public domain in your emails much, Joe?

But that's not the point. As Gratz says,

This is not what we’re fighting for.

Indeed, though I certainly don't begrudge people making money for republishing and reinvigorating materials in the public domain. However, how copyright policy affects the public domain is an important issue. It isn't something we should ignore, even if we are trying to reduce some of the tyrannies of current copyright law. Some of the copyright reform proposals out there might have unanticipated consequences with regard to profiting from the public domain. For example, see my LawMeme posting, Compulsory Licensing - The Public Domain Lottery?.

Comments (1) + TrackBacks (0) | Category: Copyright

April 08, 2004

Editing DVD Player on Sale Soon

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Posted by Ernest Miller

I've long been a fan of annotating works. I think it is a wonderful thing if people want to add commentary and/or criticism to another work. Fan or expert commentaries for DVDs, for example, could be a great source of additional value for DVDs. Imagine critic Roger Ebert providing commentaries for any DVD he wants.

That is why I've written a great deal about the Clean Flicks case, in which Hollywood is attempting to make annotations illegal. You can read some of my past stuff on Clean Flicks on LawMeme. Start with these two articles and follow the links: Hollywood Industry Mag Unconvinced by DGA Position and The Hypocrisies of the Writers Guild of America, West.

Therefore, I am quite excited by a report in the SF Gate that two major retailers, Wal-Mart and K-Mart, will soon be selling a DVD player that has some annotation capabilities (DVD player to edit movies: Technology allows viewer to bypass offensive content). Now, unfortunately, these players only allow one to skip existing content, although you might be able to do some pretty interesting stuff with that *cough*PhantomEdit*cough*. Still, this is annotation. You may not be in favor of removing offensive content in movies, but if Hollywood can stop this, they can stop people from adding commentaries, or remixing content in really creative ways.

Also, note that this avoidance of offensive content is being done by the consumer and not the government. One would think the FCC and DOJ would be very supportive of the defendants in the Clean Flicks case, being as it would save them all that trouble of acting as censors and all.

via JD Lasica

Comments (2) + TrackBacks (0) | Category: Copyright

April 07, 2004

The Broadcast Flag Treaty - Draft Available

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Posted by Ernest Miller

Well, technically, the treaty is called the WIPO Treaty for the Protection of Broadcasting Organizations, cuz heaven knows they're all faced with extinction. The draft treaty will be discussed June 7-9 by WIPO's Standing Committee on Copyright and Related Rights (SCCR), which will then "decide whether to recommend to the WIPO General Assembly in 2004 that a Diplomatic Conference be convened." A diplomatic conference can adopt a treaty. The treaty will not go into effect, however, until a certain number of countries have acceded to it. The draft of the treaty is available here: Consolidated Text for a Treaty on the Protection of Broadcasting Organizations [PDF].

This treaty is really a nasty bit of work. It will give broadcasters, not copyright holders but broadcasters, a number of exclusive rights in their broadcasts, such as fixation, reproduction and distribution, whether or not the broadcast is of a public domain work. Moreover, the treaty would require signatories to prevent circumvention of those rights.

Oh yeah, the treaty would also apply to "cablecasters" and the United States (all alone on this one, apparently) wants the treaty extended to cover "webcasters." What exactly constitutes a webcaster isn't entirely clear, perhaps only streaming, perhaps HTTP. While the US is not a signatory to the previous treaty on broadcast, our efforts on negotiating this one indicate we are likely to sign on.

Read on for a look at this monstrosity...

...continue reading.

Comments (4) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Millennium Copyright Act | Digital Rights Management | File Sharing | Freedom of Expression | Internet | Telecomm

March 27, 2004

PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry

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Posted by Ernest Miller

Conservative Senator Orrin Hatch (R - UT) has frequently cast aspersions on sexually offensive broadcast programming. For example, see his recent comments regarding the current brouhaha over indecency on television (Hatch Decries Declining Morals on Broadcast TV). Yet, the logic of his statements on behalf of the recently introduced "Protecting Intellectual Rights Against Theft and Expropriation Act" (PIRATE Act) would have the Department of Justice lawyers working on behalf of pornographers. In Hatch's world, the FCC would work to crackdown on indecency while the DOJ fought on behalf of pornographer's rights.

...continue reading.

Comments (3) + TrackBacks (0) | Category: Copyright | File Sharing

March 22, 2004

Outside the Creative Commons System

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Posted by Ernest Miller

Outside the System has a thoughtful discussion (and lots of links) about some of the issues some are having with Creative Commons, though they generally support it (The Fragmentation of Creative Commons). I am a supporter of Creative Commons, but I agree that there are some important issues being raised here. Some of these problems are simply ones of education (in the future we will all be copyright specialists), but others go to promoting the values that sparked the CC revolution in the first place. See also, Larry Lessig on related issues (The logic of IP), which draws on points made by Scott Matthews.

Comments (0) + TrackBacks (0) | Category: Copyright

Copyfight - The Remix

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Posted by Ernest Miller

Donna Wentworth has made her blog, Copyfight, a must-read since its beginning. That is why I am honored to join her and some most excellent colleagues in continuing Copyfight as a group blog. I will be posting along with Elizabeth Rader, Jason Schultz, Aaron Swartz, and Wendy Seltzer. Read the greeting message: Copyfight--the Expanded Edition. The blog description:

Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development and technological innovation that creates--and will recreate--the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

I'll continue to post here, of course, especially my longer pieces.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Broadcast Flag | Civil Liberties | Copyright | Digital Millennium Copyright Act | Digital Rights Management | Internet | News | Trademark

March 18, 2004

"True Name and Address" Bill for All Filesharers Introduced in Calif

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Posted by Ernest Miller

The LA Times (reg. req.) reports that California state legislators are hauling water for Hollywood once again (Setting a Trap for Net Pirates). The basic idea of the bill is to extend a "true name and address" statute to cover virtually all exchanges of copyrighted audiovisual information. That is, if you send someone a copy of a recording or audiovisual work electronically without also providing your true name and address, you could be fined $2,500 and spend a year in the clink.

Read Assembly Bill 2735 (the Assembly Version): An act to amend Section 653v of, and to add Section 653aa to the Penal Code, relating to Internet piracy.

What is the point of this bill? According to a sponsor:

[State Sen.] Murray [D - Culver City] says the point isn't to take names; his idea is to give state prosecutors, who have no jurisdiction over copyright infringement, a charge they can bring against online pirates.

Hmmmm ... the concept of federal preemption of copyright law comes to mind. One might argue that many states have "true name and address" statutes, but they generally apply only to sales of physical goods. Like copyright law, this proposed law applies to any transfer (outside your home and family), not only sales. If this isn't preempted I'm not sure what would be.

And what is this? Hollywood can't afford to sue people? We citizens of California have to expend precious tax dollars and limited law enforcement resources on copyright enforcement because Hollywood is too darn cheap? With massive statutory copyright damages available as a remedy, there is no excuse for Hollywood not to prosecute copyright infringers directly. Heck, it could even be a profit center.

An Attack on Privacy and Anonymity

Read the EFF press release: California Bill Backed by Hollywood Attacks Internet Privacy. The EFF notes the pernicious effects on children's privacy: "These California anti-anonymity bills would force everyone - including children - to put their real names and addresses on all the files they trade, regardless of whether the files actually infringe copyrights."

There are many more problems with this bill as well. EFF notes that there are no exceptions for fair use. For example, if one emails a friend a copy of a political campaign commericial that includes copyrighted music, I'm a Dole Man comes to mind, you can be fined and sent to jail. Heck, posting and commenting on Janet Jackson's wardrobe malfunction could get you sent to jail.

This is certainly an attack on the anonymity protections of the First Amendment. Unlike commercial "true name and address" statutes, this bill reaches beyond a state's interest in preventing fraud to cover all types of anonymous speech, including speech that is clearly protected by the First Amendment. State Sen. Murray says, "There's one way to maintain your privacy in my bill. That is not to engage in illegal activity." But that is the problem. The bill strips anonymity even when people are engaging in constitutionally protected activities. On this basis alone, I believe it is clearly unconstitutional under the First Amendment.

An Attack on the Creative Commons

Even worse, there is no exception for permission of the copyright holder. So, if I record a song and post it under a Creative Commons license that permits redistribution but reserves commercial use rights, you can go to jail for redistributing it. I mean, really, what more can be said about such an overbroad bill?

We need to have a "true names" bill for politicians. By all rights, State Sen. Kevin Murray should start calling himself State Sen. Hollywood Sycophant.

UPDATE

You can find your California State representatives here: Find Your California State Legislative Representatives. Let them know what you think of these bills.

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing | Freedom of Expression | Privacy

March 17, 2004

Progress & Freedom Study is Anti-Progress

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Posted by Ernest Miller

The Progress and Freedom Foundation has recently published a study of secondary liability for P2P filesharing systems. Read the press release: P2P File-Sharing: Balancing Creativity & Innovation. Read the study: Liability of P2P File-Sharing Systems For
Copyright Infringement By Their Users
[PDF]
.

Unsurprisingly, the study concludes that secondary liability should be attached to most P2P systems. Much of the paper is correct on it summation of current law. However, I have a serious problem with the paper's claim that it would be relatively easy to distinguish between bad technology and good technology. I'm not sure that many of the technologies that are common today would have survived the scrutiny the paper proposes.

For example, one difference between the Napster and Sony decisions is that "the balances between infringing and noninfringing uses were dramatically different. The VCR is predominantly used for noninfringing activity, while the Napster business was built almost entirely around servicing users’ infringing." But something very interesting is going on here with verb tenses. The VCR is predominently used for noninfringing activity. Indeed. But the case wasn't nearly so clear when the VCR was first introduced. Is the lesson then that copyright industries should sue before a particular technology matures?

Later in the paper this point is reiterated: "Similarly, VCRs overwhelmingly serve noninfringing uses; the result in Sony has been vindicated." Easy to see in hindsight, not so easy to see when Valenti was decrying the VCR as "the Boston Strangler." The use of the term "vindicated" sort of concedes the point that the issue wasn't clear when the decision was entered. Of course, if Sony had gone the other way, Hollywood would be proclaiming the overwhelmingly noninfringing present uses of the VCR were a result of the initial finding of contributory infringement.

Similarly, the paper argues that, "In contrast, the CD burner was clearly designed and introduced for legitimate purposes, although it can also be used to make infringing copies of CDs." Was this issue so clear when CD-ROM burners were introduced? Heck, at the beginning of the CD-R era the 650MB you could store on a CD-R was more than the average computer's entire hard drive. Tape backup was widely available ... and cheaper. And even if the ability to burn CD-ROMS was clearly a legitimate purpose at the time, really, why did the CD burners have to have the capability to burn the Red Book audio format? Couldn't the RIAA have sued to prevent the sale of CD burners or associated software that could burn Red Book audio? Seems to me that there was a pretty good argument that when consumer CD burners were first sold, the Red Book audio capability alone had overwhelmingly infringing uses. Imagine also if the internet had taken off a few years earlier, before a large installed base of CD burners existed. Wouldn't the overwhelming use of CD burners have been piracy (at least, isn't that the argument Hollywood would have made)? From a policy perspective, it also wouldn't have been very difficult for CD burner manufacturers to make sure their systems couldn't burn audio CDs.

I sort of wonder if the File Transfer Protocol, still an enormous source of piracy, could have survived this sort of scrutiny. After all, couldn't the protocol have included various filtering mechanisms and authentication?

What of BitTorrent? Isn't it overwhelmingly used for piracy right now? Of course, the benefits of BitTorrent for anyone wishing to distribute legitimate large media objects is obvious, to me. Eventually, I imagine BitTorrent (or similar swarm systems) will become significant ways for legitimate distribution of all sorts. But, as the paper refers to other P2P systems, "at present, those noninfringing uses are quite small relative to the use of these systems for widespread Internet piracy." Moreover, would my clear view of the value of BitTorrent necessarily be obvious to a judge? Who would defend Bram Cohen if Hollywood had sued when BitTorrent was first introduced?

I remain unconvinced that we can permit extensive secondary liability because it will be relatively easy to target the "bad" technologies without unduly burdening innovation.

via Furdlog

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

March 11, 2004

Something's Gotta be Done About the Beatles

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Posted by Ernest Miller

Riffing off the Grey Album controversy, Pop Matters columnist Devon Powers writes a lyrical column that implicitly makes the argument for much shorter copyright terms without delving into legalities and economic arguments (Life Goes On). She may even have come up with a new rallying cry to go along with "Free the Mouse":

Something's gotta be done about the Beatles.

Her argument is that too-extensive copyright kills and mummifies culture, our culture, turning cultural touchstones into mere nostalgia:

[T]here's also a deafening cultural silence around the Beatles. Despite being one of the most influential recording acts in history, the Beatles do not allow their music to be sampled... And the Beatles aren't the only act; the collusion of exorbinant fees and copyright censure has made many of the musicians with the loudest cultural resonance into those whose music is only heard today as an echo from the past.
....But to me, it is beyond question that it is certainly time to free ourselves of the cultural nostalgia and legal stagnation that have allowed their music to fossilize. Music journalists must -- and important writing in Rolling Stone, New York Times, and other prominent publications already has -- applaud Danger Mouse's astounding artistic accomplishment, and let their critical praise become part of the discussion about what's at stake as copyright goes awry. And for all of us who hold music dear, we owe it to ourselves to not only let our musical past footnote our musical present, but also allow that past to live and breathe, change and reform, disappear and reappear in unexpected ways.

Indeed. Reading this column I can't help but think, "why not return to the original copyright term of 28 years?" That is approximately a single generation, which would mean that every new generation would be permitted to work with and reimagine the past, introducing older works to a newer audience. As Paul wrote and Devon reiterates: "La, la, la, la, life goes on."

via Sivacracy

PS See also, Powers' review of The King of France, a band I had the pleasure of hearing for the first time in New Haven (The Band That Will Be King).

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | File Sharing

March 10, 2004

Dangermouse, the Jay-Z Construction Set and the Videogame Content Creation Model

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Posted by Ernest Miller

DJ Dangermouse's release of the controversial Grey Album has brought the question of reusing and remixing content to the forefront. Now, another group has taken the next logical step and released the Jay-Z Construction Set:

The Jay-Z Construction Set is a toolkit with all of the necessary software and raw material to create a new remix of Jay-Z's Black Album. It includes nine different variations on the Black Album, over 1200 clip art images, and a couple hundred meg of classic samples and breaks. The Jay-Z Construction Set is available on-line through filesharing networks and protocols such as BitTorrent.

This collection of material is certainly a violation of copyright, yet it points the way to a much richer vision for culture. I would hope that, in the near future, artists and publishers will see the value of releasing not only polished works, but the bits and parts used to create a work, including those parts that were rejected.

This is good not only for fanboy obsessives, but could serve to train people's musical ears, helping them hear the difference between different mixes of music. It would obviously be a boon to unexperienced musicians who could learn much from the choices other musicians and producers make. DJs would certainly have more opportunity to creatively add to the originals with this sort of access. And, likely, such efforts would help identify new talent.

Combine this with a system that permits "recipe" mixes as I've written about before (A History Palette for Music and The Grey Album - No Copying Necessary) and there is no danger of the artists and producers losing money. Indeed, such a model has already been quite successful in another media - videogames.

Many videogames permit players to create new content for the game engine, such as levels, maps and mods. This new content is freely distributable (at least for noncommercial purposes) and frequently incorporates content created by the original game designer along with new user-created content. This has been incredibly successful for videogame companies. The more content there is, the more popular the game becomes. The ability to create and add content creates feverish and committed communities of fans for a game. Imagine if musicians had such communities working for them.

The videogame model works for the game companies for a couple of reasons, but could also work for music companies:

1) You need to purchase the game engine for the content to be useful. In my recipe model, the mixing software that recreates the mix from the recipe would serve this role. However, it wouldn't be a significant revenue stream for the artist.

2) Often, the levels, maps and mods created by fans include content originally created by the game creator and shipped as part of the game engine. The shared levels and maps generally don't include copies of this content, since it is assumed that the downloaders already have the content and it saves on file size. In essence, many of these shared levels are what I would call "recipes" that remix the existing content in the game. Of course, there are full mods with entirely new content, but those are relatively rare (though they can be extremely popular and creative). Here is where the music recipe model can compensate the artist. In order to create the remixed version of the music, a downloader of the recipe file is going to have to have access to the original works, which, presumably, would be paid for in some manner through a legal download system.

Of course, the Jay-Z Construction Set points to an advantage for musicians that game companies don't share. Generally, game companies don't really have the luxury of shipping alternate takes on a level or unfinalized content for the game. However, when a musician releases a wide variety of takes and alternates, which were created organically, they create a much richer ore that remixers can mine. The more material you release, the more things people can do with it, which means the more people will want it. Heck, musicians might eventually ship only the construction set along with their favored recipes.

In a related note, Furdlog pointed out a brief Billboard interview with DJ Dangermouse (Danger Mouse Speaks Out On 'Grey Album')

Comments (8) + TrackBacks (0) | Category: Copyright | Culture | File Sharing | Games

March 09, 2004

Information Cannot Be 0wn3d

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Posted by Ernest Miller

John Palfrey uses his blog to summarize what sounds like an extremely interesting lecture by a visiting scholar to the Berkman Center (Prof. Jean Nicolas Druey: "Information Cannot be Owned"). The post is somewhat unclear, but it seems to be an attack on the "property" concept of information and that what is important is not regulations of the substance of the communication, but rather, regulation of the channel of communication.

Hmmm ... I would definitely like to know more. Seems very similar to what I've been saying for a few years now, such as:

It's Freedom of the Press, Stupid
It's All About the Distribution, Stupid

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Freedom of Expression | Open Access

March 08, 2004

Klingon is Copyrighted

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Posted by Ernest Miller

Seriously, (Klingon - FAQ - 2.12 Can someone give me a list of all the Klingon words?):

This is an understandable question, considering the (increasingly) large number of canon sources for Klingon. But the problem is, the Klingon language belongs to Paramount; it's copyrighted. If someone started distributing lists of Klingon words (or descriptions of grammar, etc.), then Paramount might view this as competition for the legitimate sale of their own products, which would be A Bad Thing.

You'll have to buy the authorized Klingon Dictionary if you are interested in learning the language, or work with the Klingon Language Institute, which is licensed.

However, can you really copyright a language? You can copyright a dictionary, certainly, but can you copyright grammar? I'm not sure you can copyright grammar at all, since it is a set of rules regarding word usage. Grammar is an idea, that can probably only be expressed in a fairly limited number of ways, even if fanciful.

Additionally, each Klingon word would seem to be too short to qualify as copyrightable individually. I don't think that a list of words in a dictionary format would be copyrightable under Feist. So, I'm not sure at all how one could copyright a language. The individual descriptions of the words might be copyrightable, but as long as they aren't exact copies, the idea/expression dichotomy should provide only limited copyright protection to Paramount.

Of course, even if you could copyright the "language," what if you "reverse-engineered" that language from the many web postings in Klingon (such as Klingon translations of Shakespeare, Kafka and Aesop)?

Warning: Unauthorized decoding of a ngoqDe can lead to a meqba' where you may be found guilty of DavHam. You don't want to mess with Paramount Pictures.

via BoingBoing

Comments (8) + TrackBacks (0) | Category: Copyright

March 04, 2004

Court Using Linux Hears Lawsuit Claiming Linux Infringes Copyright

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Posted by Ernest Miller

I don't post much about the ongoing SCO v. Linux lawsuits, though heaven knows there is much to discuss in the case. For incredible, indepth, precedent-setting blog coverage of these lawsuits, see the justly famous Groklaw.

Most recently, SCO has begun suing not only distributors of Linux, but users as well. In the first case brought against an end-user, SCO has sued Autozone for using Linux and thus violating SCO's copyrights (It's Autozone). All well and good, but there is something unusual about the case.

Netcraft is not involved directly in the case, it is an English company that conducts research and analysis on the internet. According to their about page, since 1995 they have been,

a respected authority on the market share of web servers, operating systems, hosting providers, ISPs, encrypted transactions, electronic commerce, scripting languages and content technologies on the internet.

Thus, it is no surprise that they would check up on what systems the court involved is running. They report that some of the computer systems for the court in charge of the SCO v. Autozone lawsuit run on Linux (Court that will hear SCO v AutoZone lawsuit itself runs Linux). Indeed,

Plaintiffs filing lawsuits must enter copies of their legal documents in Adobe PDF format in the court's Linux-based Case Management/Electronic Case Filing (CM/ECF) system, which will provide electronic updates of case information for the litigants and their lawyers.

This, I think, is a first. I have no idea if there is a precedent for this sort of thing. Here you have a court that is engaged in precisely the same conduct the plaintiff complains of. If a judge did this it would not only be an appearance of a conflict of interest, it would be a conflict of interest and clear case for recusal. What do you do when the court administration is involved? Can an entire court recuse itself? Is there any rule or precedent for this?

In related news, SCO public relations people continue their so-far successful campaign to get the world to hate them by comparing themselves to the RIAA ('We're just like the RIAA,' says SCO).

Comments (5) + TrackBacks (0) | Category: Copyright | Oddities | Open Source

March 03, 2004

Happy 100th Birthday Dr. Seuss

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Posted by Ernest Miller

Today we should honor Ted Geisel and remember the whimsical originality of his works which, for all their fun, also imparted important moral lessons.

We should try to forget the commercial prostitution (credit cards, Burger King, Mike Meyers) Geisel's heirs have allowed to be committed in Dr. Seuss's name, all the while declaiming the potential abuses of the public domain: Brief Amici Curiae of Dr. Seuss Enterprises, et al. [PDF] in opposition to Eldred.

Only 57 years til the Cat in the Hat is free.

Comments (0) + TrackBacks (0) | Category: Copyright

March 02, 2004

Lazy Database Protectors

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Posted by Ernest Miller

Two well-paid and very experienced lawyers have an op-ed in the Washington Times proclaiming the need for sui generis database protection (Database Piracy Plague). The basic concept is that unless Congress obliterates the idea/expression dichotomy and provides a "sweat of the brow" doctrine, competitors will quickly and easily copy laboriously created databases:

Yet, in a world in which verbatim copying of databases is allowed, why would anyone spend thousands or even millions of dollars assembling a database? And, think of how much more investment might be spurred in creating valuable databases if we could assure the creators that others would not simply turn around and free ride on their hard work and investment.

You would think that if these databases were so darn valuable, people could come up with ways to protect them that do not require onerous new law. Here are a few ideas, given away free in the public interest:

  • Contracts. Don't let people have access to your database unless they sign a contract that prohibits them from copying the database.
  • Insurance. Buy insurance for the possibility of database copying (bonus: the insurance company will help you protect the database).
  • Tether the Database. Why give the whole thing to people on CD or something foolish like that? Ensure that people can only access the database through the web. Given the ubiquity of connectivity, even wireless connectivity, this should be good enough for most people.
  • False entries. A nice tactic to help identify who leaked a database so that other legal means can be brought to bear against them.

The authors of this op-ed write as if there is nothing they can do to protect their databases. If the above suggestions won't work, I'd like to know why.

Comments (5) + TrackBacks (0) | Category: Copyright

March 01, 2004

Lessig on Eldred

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Posted by Ernest Miller

Cyberlaw Uberprof Larry Lessig has an important article in Legal Affairs magazine with his point of view on his supposed failures in the Eldred decision (How I Lost the Big One). Great history and important pointers to appellate advocates, but stop beating yourself up Larry! I think one day, just as the court overruled Bowers v. Hardwick, we will eventually win Eldred either in the courts or the legislature. Either way, Lessig's work will be a cornerstone of the result.

via How Appealing

Comments (0) + TrackBacks (0) | Category: Copyright

February 28, 2004

A History Palette for Music

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Posted by Ernest Miller

Scot Hacker has some thoughts on the Grey Album on his Birdhouse Blog (Thoughts on The Grey Album). Scot doesn't think my idea of distributing remix "recipes" to avoid copyright problems is viable:

At Corante, Ernie Miller wonders whether some kind of remix formula or recipe could be created to allow consumers to recreate the Dangermouse mix from the two original sources, thus sidestepping copyright issues. I respond that the suggestion is similar to the technique used to distribute the lame MP3 encoder, thus bypassing Fraunhofer's patent. But music is not a computer program, and I am highly doubtful that sufficient notation could be devised, or that anyone could enter in the data in sufficient detail to recreate the artwork.

I disagree. If one is using a computer to mix music (and most people are nowadays), then it wouldn't be too difficult for the editing program being used to save how the particular mix was made. This capability would be very similar to the "undo" function most editing programs come up with. Photoshop, for example, saves every move you make with program so you can "undo" any change made since your initial edits, they call it the "history palette." Now, I see no reason why it wouldn't be possible for photoshop to save this history palette as a separate file. Imagine if someone edits a photo and sends me the history palette but not the original photo (for copyright reasons). If I already have the original photo the editor worked with, I could recreate the new version from the history palette.

I don't know why the same can't be done for music, all of it performed automatically and transparently as far as the mix artist is concerned.

Of course, to be effective, you would have to have the exact same versions of the originals that the mix artist used. Hmmmm ... seems like a way that recording companies can encourage people to get legitimate copies ...

Comments (7) + TrackBacks (0) | Category: Copyright | File Sharing

End of an Era

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Posted by Ernest Miller

Cardozo Law Professor Susan Crawford gives a wonderful description of a recent performance of Beethoven's Ninth Symphony conducted by Leonard Slatkin in which the famous conductor discussed and demonstrated various re-orchestrations of the masterpiece, particularly Mahler's (Bits, Atoms, and Beethoven). Slatkin is a proponent of the view that classical music is not unchanging and unchangeable, but can be re-imagined with the times.

Being an IP professor, Crawford can't help but apply this insight to the ongoing battles over copyright:

Maybe (here's the tie-in to innovation and intellectual property) we're in an era in which we're beginning numbly to accept that "content" is just provided to us. It's an atom, a thing that floats in space, unchanging. We can hear or see it, as part of a mass content-absorption experience, but we are at a distance from it.

But I think that she has it backwards. We aren't at the beginning of an era where we numbly accept content. The beginning of that era was when Edison first set stylus to wax cylinder, the beginning of the era of mechanical reproduction. It was an era of unchangeable physical format that could only be produced and distributed efficiently en masse. That era is dying.

After less than a century of dominance, I believe that people are waking up from the consumerist coma induced by the era of mechanical reproduction. What we are seeing is the birth of a new era, an era of empowerment, where people are both consumers and producers of content, a wonderful bricolage of both old and new. Blogs are one example (if you are reading this, you aren't reading only what traditional publishers put out), but so is the Grey Album, Phantom Edit, machinima, and the whole modding community (among others).

Of course, the beneficiaries of the old era (e.g., RIAA, MPAA, etc.) are busy trying their best to stop this new era from succeeding. They will ultimately fail, but not without doing damage in the meantime.

Comments (0) + TrackBacks (0) | Category: Copyright | Culture

February 24, 2004

Grey Tuesday

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Posted by Ernest Miller

The issues here are not entirely clearcut. However, it seems to me that EMI deserves to be ridiculed for its continued support of over extented copyright.

Comments (12) + TrackBacks (0) | Category: Copyright

February 17, 2004

The Grey Album - No Copying Necessary

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Posted by Ernest Miller

Educated Guesswork has an insightful response to the ongoing Grey Album controversy (Infringing mixes). The proposal is that rather than distribute the fully remixed version of the Beatle's White Album with Jay-Z's Black Album, one could distribute the mechanical instructions for remixing the albums: a remix recipe if you will. Those interested in the Grey Album would have to have access to both the White Album and Black Album in order to make use of the recipe, but the traditional elements of copyright would not be implicated in such a scheme. I believe that this is a brilliant model for our rip-mix-burn culture.

Of course, despite the fact that the traditional elements of copyright are not implicated, copyright holders do not like this vision of the remixed future. Indeed, that is one of the major issues in question in the ongoing "Clean Flicks" case involving similar technology used with DVDs. I say, let a thousand edits bloom, let us hurry the future of digital annotations.

Comments (10) + TrackBacks (0) | Category: Copyright

February 13, 2004

WIPO Honors Its Own - Valenti Gets Medal

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Posted by Ernest Miller

The Director General of the World Intellectual Property Organization met with copyright maximalist and president of the MPAA Jack Valenti last Tuesday and issued a press release (WIPO and MPA Discuss Value of Copyright Industries and Effective Enforcement of IP Rights). The big news? WIPO has recognized Jack with a WIPO Medal and a Citation for Distinguished Service. This isn't surprising since, rather than being an international forum simply for IP harmonization, WIPO is an organization promoting copyright maximization worldwide. See, Medium-Term Plan for WIPO Program Activities - Vision and Strategic Direction of WIPO:

The main objectives of the Medium-term Plan, as expressed in the past remain constant: maintenance and further development of the respect for intellectual property throughout the world. This means that any erosion of the existing protection should be prevented, and that both the acquisition of the protection and, once acquired, its enforcement, should be simpler, cheaper and more secure.

Why wouldn't WIPO give a medal to Jack Valenti? Seems as if Jack wrote WIPO's mission statement. My only hope is that they are giving Jack a medal because he will be retiring very soon.

Comments (0) | Category: Copyright | News

February 11, 2004

Collapsing Release Windows for Movies and DVDs

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Posted by Ernest Miller

Derek Slater has an informative post on the collapsing practice of releasing movies and DVDs at different times around the world (Compressing the Release Windows). While the practice might have made sense in a world where information takes weeks to cross the Atlantic on the fastest clipper ships, today's technology simply means that release in certain regions before other regions encourages piracy in those regions later on the schedule. The article Derek sites from Video Business Online (reg. req.) notes that ailing, can't-be-sold video rent shop Blockbuster, is calling for movie studios to eliminate region coding (Blockbuster Calls for End of Regional Coding).

Actually, this is a somewhat odd request. After all, it isn't region coding that is the problem, it is non-simultaneous release windows. If DVDs were released in every region simultaneously, even if each region had its own code, there would be no encouraging of piracy. This request would only make sense if the problem is actually the parallel importation market.

Actually, I suspect this is really the heart of the problem. Although I'm sure that Blockbuster would prefer to have simultaneous release windows, they also don't want to lose sales to the parallel importation market. People in Europe can easily purchase American DVDs cheaper or with more features than the DVDs on sale in the European market. With no region coding, Blockbuster would likely be free to sell any released DVD anywhere and wouldn't have to worry about the parallel importation market.

Finally, I would like to add another reason to Derek's as to why release windows are collapsing: internet marketing. As people get more and more of their information from the internet (which is more popular with the young, movie-going audience), it is more and more difficult to advertise solely for a single region. Readers of /. in the UK, for example, will be interested in seeing the movies and DVDs discussed on /. and other fan sites when fans in the US get to see them.

Comments (0) | Category: Copyright

February 09, 2004

P2P and Pornography: Cheap is More Convenient

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Posted by Ernest Miller

The New York Times (reg. req.) has written an article on the different approaches that pornography companies are taking with regard to P2P (The Pornography Industry vs. Digital Pirates). The responses range from "It's direct marketing at its finest" to tactics similar to those used by the RIAA. This is not surprising, however, due to the fact that music and pornography industries are structured very differently. After all, no one would be surprised that book publishers aren't going after filesharers, since ebook sharing isn't nearly as big a threat to book publishers as music sharing is to music publishers.

On of the key paragraphs for me was near the end of the article:

Pornography merchants say that they have the advantage over free file-sharing networks, at least for now. They say the networks are not well suited to the needs of their consumers, who like images and movies that push their very specific buttons for, say, blondes or cheerleaders.

Basically, you can still sell porn despite free P2P versions because there are other barriers to access that a legitimate site can easily overcome. Unlike MP3s, for example, images and many pornographic videos on P2P networks have atrocious metadata. Because MP3s are relatively metadata rich, it is easy for someone to search for particular artists or songs. If you had to rely solely on filename (as much pornography must), it would be much more difficult to find the music you want.

As the paragraph notes, people are often interested in particular types of pornography (i.e., foot fetish, smoking fetish). Finding such images would be as difficult as searching music only by genre. You can find it, but the search is much more burdensome than searching for specific artists. I think radio, for example, helps reduce search costs for music. There is no equivalent of radio for pornography.

Anyway, pornography and music are different markets and their responses to filesharing will be different. However, there are lessons for the music market. Number one, convenience is worth money. A site that can make it easy for me to find music I will like and get that music for me when I want it is more valuable than an inconvenient, hit-or-miss P2P experience. As a porn entreprenuer says:

"Free is very anarchistic and hard to deal with, and you don't know what you're getting," said a pornography entrepreneur who goes by the online pseudonym T. Lassiter Jones. "Cheap is more convenient."

The formula for the record companies to survive is simple: raise the cost of using P2P networks (through lawsuits, bogus tracks, etc.) and provide convenient, inexpensive legitmate access to music. Once the cost of the legitimate source is less than the costs associated with P2P, then P2P will no longer be a major threat. Percentages might fall, but the overall market will likely grow.

In this model, DRM is a mistake. DRM does not significantly raise the cost of P2P (the music gets on the network anyway), but does decrease the value of access to authorized music files.

It works for pornography.

Comments (4) | Category: Copyright | Digital Rights Management | File Sharing

February 07, 2004

Parody of a Parody

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Posted by Ernest Miller

The Trademark Blog posts a interesting disturbing image of Miss Piggy with a breast baring pose obviously reminiscent of Miss Janet at the Super Bowl (Warning: the image may upset the sensitive) (Parody - Discuss Amongst Yourselves). Marty asks whether the image is a non-infringing parody (which comments on Miss Piggy) or an infringing satire (which merely uses Miss Piggy to comment on Miss Jackson). The case is point is the famous Dr. Seuss case which held that a satire of OJ Simpson in the style of Dr. Seuss was infringement.

Tech Law Advisor is quick to take up the discussion and quickly concludes that (Not Parody):

Miss Piggy baring her breast does not comment on Janet Jackson's exposed breast. The work shown here is quite simply infringement.

The problem here as in the Dr. Seuss case that Marty cites is that the supposed parodist merely use the work [Miss Piggy] as a vehicle to satirize something completely different [Miss Nasty]. [comments/links in original]

I disagree. To me this is a fairly clear case of parody of a parody.

Miss Piggy, afterall, is a sanitized, child-friendly parody of celebrity divadom, of which Miss Janet Jackson is an example. Miss Piggy was originally called "Miss Piggy Lee" after diva singer Peggy Lee. Since then, Miss Piggy has vamped in parodic versions of Calvin Klein, Guess? Jeans, Pulp Fiction, Sports Illustrated Swimsuit Edition, and Pretty Woman, not to mention so many, many others, including a Pigtoria's Secret shoot.

Miss Piggy clearly is meant to parody the sexuality of modern female celebrity-dom. Nevertheless, like all the Muppets, Miss Piggy's parody is sanitized for family consumption. Clearly, such sanitized family entertainment is itself ripe for parody, see, for example, directorial genius Peter Jackson's Muppet parody Meet the Feebles, in which Muppet-like creatures do drugs, porn and engage in other degenerate acts.

How better to parody Miss Piggy then to push her parody of female celebrity-dom into the realm of the absurd? The humor of this parody lies not simply in its reference to Janet Jackson's breast episode, but to our recognition of Miss Piggy as following in Janet's footsteps (as Miss Piggy has followed in the footsteps of so many other divas). The image is funny because it pushes our expectations of the sanitized parody of Miss Piggy beyond what her creators would have chosen. In the words of the Dr. Seuss decision, this image of Miss Piggy "mimics an author's characteristic style and holds it up to ridicule."

Comments (2) | Category: Copyright | Freedom of Expression | Trademark

February 06, 2004

P2P Industry Association is Not Your Friend

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Posted by Ernest Miller

C|Net News reports that the Distributed Computing Industry Association (the P2P industry group), has proposed a third business model for legally sharing music via P2P (Trade group proposes new P2P music model). You can read the details of all three models in a Power Point presentation (ever hear of open formats DCIA?): P2P Music Models [PPT].

Like their other models, this model has a snowball's chance in H-E-Double-Hockey-Sticks chance of succeeding, but then the DCIA isn't really interested in success, they are just interested in acting as if they want a solution. However, to the extent that they are proposing solutions that give the music industry a chance to control the market, the DCIA is essentially fronting for the RIAA. So let's take a look at this "new" model:

...continue reading.

Comments (3) | Category: Copyright | Digital Rights Management | File Sharing

January 21, 2004

Comment Spam

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Posted by Ernest Miller

I'm not giving in. Spammers, such as http://scripts.cpa4.com/main.html/, continue to be annoyances. However, I am not turning off comments. I will, however, disable comments for posts more than a week old, as they are spammed, since few people post new comments after a post is more than a week old.

Comments (2) + TrackBacks (0) | Category: Copyright

To Save Copyright We Must Reform It

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Posted by Ernest Miller

Prof. Lawrence Solum has written once again on copynorms, commenting on a couple of articles and providing some anecdotal evidence of his own (Lawsuits and Copynorms). Solum questions whether the RIAA's lawsuit-centered tactics are truly affecting norms. Their impact on copybehavior is disputed, but the issue of their impact on copynorms is hardly addressed. Based on the students in his law classes, Solum sums up one developing copynorm thus:

It is socially unacceptable to take the position that unlawful P2P filesharing is morally wrong.

Frankly, I think that the development of such norms is part and parcel of the RIAA's tactics. The RIAA has taken the strategically foolish position that all filesharing is wrong. To few most people outside of the ABA's IP bar, such an uncompromising approach to all filesharing is clearly incorrect. Most people believe that some sharing (particularly with friends or family) is legitimate, but other sharing is not. To the extent that the RIAA is not willing to compromise its position on filesharing, people will increasingly reject the idea that any filesharing is wrong. This is not a healthy development for those who believe that copyright is worth saving. The only way to save copyright is to reform it.

Comments (5) + TrackBacks (0) | Category: Copyright

January 17, 2004

Pavolvich Free to Post DeCSS (Until Sued by MPAA, Anyway)

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Posted by Ernest Miller

Reuters has an important story in the DeCSS saga (Supreme Court Unscrambles DVD Decision). Apparently, two weeks ago the Supreme Court of the United States reversed an emergency stay on the Pavlovich DVD case. Pavlovich, a resident of Texas, had successfully contested jurisdiction (as determined by the California Supreme Court) in a trade secrets case brought in California. The DVDCCA had claimed posting DeCSS violated their trade secrets. According to Reuters, "In the latest ruling, U.S. Supreme Court Justice Sandra Day O'Connor lifted the injunction, saying there was no need to keep DeCSS a secret." This is a major blow to the trade secrets case, though not to the DMCA case (see, EFF's MPAA DVD Cases Archive).

I wonder though, if the emergency stay was lifted Jan. 3, why haven't I heard about it before?

Read about the history of the case on EFF: DVDCCA Case Archive: Pavlovich.

Comments (2) + TrackBacks (0) | Category: Copyright | Digital Millennium Copyright Act | Freedom of Expression

Fair Use, Free Use and Normal Use

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Posted by Ernest Miller

Derek Slater calls it "free use", I call it "normal use." In a post that looks at the new Real Player that plays Apple's proprietary formatted iTunes, Derek notes that people frequently seem to lump all non-infringing uses into the concept of "fair use" (More on Real's Store, and Free Use v. Fair Use). Derek emphasizes that there are many uses of copyrighted works that shouldn't be considered infringing at all, and thus not "fair use" but "free use". I agree that this distinction is important, and it something I tried to emphasize (as "normal use") in my and Joan Feigenbaum's paper: Taking the Copy Out of Copyright [PDF].

Comments (1) + TrackBacks (0) | Category: Copyright

January 16, 2004

Why Not Run Your Own Game Server?

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Posted by Ernest Miller

Terra Nova has an interesting little article on so-called "rogue servers" that host MMORPGs (Free Rogue Server Achieves Significant Population). Most, if not all (any P2P MMORPGs out there?), MMORPG are based on the client/server model, where each user has a client that talks to a centralized server. The client programs are either sold for a one-time fee or given away. The business model is based on charging subscriptions for the client programs to have access to the server. The issue of rouge servers arises when hackers reverse-engineer or obtain by other means the server software and begin running their own servers.

From a free speech and copyright overreach point of view there are serious legal and policy issues in any attempt to thwart many of these "rogue servers." See, EFF's work on the Blizzard v. BNETD case for some details on some of them.

The discussion on Terra Nova is quite interesting and there is the suggestion of franchising the running of servers. But why not go farther? Compete with these rogue servers by creating server subscriptions. That is, you can have a client and subscribe to the main server farms, or you can run your own server (for you and your friends/clan, perhaps). As a server manager, you subscribe to a service that keeps your server up-to-date with patches and new content (which you use to keep your friends happy).

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | File Sharing | Games | Open Access | Open Standards

January 14, 2004

Another Screener on the Internet

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Posted by Ernest Miller

I'm shocked, shocked, that Hollywood insiders would put recently released movies on the internet. This time it is mediocre Tom Cruise Oscar-bait The Last Samurai, according to an AP wirestory on Salon (Another Oscar screener movie found online). This time, however, there are no names named as the source of the leak. Either Warner Brothers is too dim-witted to use watermarking for its screeners, the watermarking was removed, or Warner Brothers doesn't want to name names, as Sony did. Perhaps the source of the Samurai leak is more highly placed than Carmine Caridi, the 69-yr old character actor whose copy of Something's Gotta Give made it to the internet last week.


According to his agent, Carmine has retained an attorney and is not forthcoming about how the movie was leaked. Interesting.

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

January 13, 2004

Mod-Chipping Legal in Italy

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Posted by Ernest Miller

Thanks to Derek Slater for pointing out an incredible decision in the Italian courts (Mod-Chippers Win in Italian DMCA Case). I'm not terribly familiar with Italian law, so I have no idea how important this decision is, but it is wonderfully drafted, though lacking the copious footnotes of a US decision. The decision, which was first noted by IP Justice, essentially defends mod-chipping of consoles vs arguments based on the European version of the DMCA as well as on copyright grounds (Italian Court Rejects First EU Copyright Directive Seizure). Read the decision (English translation by Electronic Frontiers Italy) here: Tribunal of rehearing of Bolzano. The original Italian here: Tribunale di Bolzano.

The arguments are very straight forward, mostly hinging on the rights of the consumer to make whatever private uses of the device they want. Although it is acknowledged that mod chips can be used for playing infringing versions of games, that is dismissed out of hand in light of the numerous legitimate uses enabled, such as avoiding region coding, allowing third party game developers, making backup copies and using the PlayStation as a computer.

Indeed, the court seemed most enamored of the use of consoles as full-fleged computers. For example, there is this quote (something similar will eventually arise in US courts as well):

Ironically, [it is Sony who first] had supported strongly the thesis that a playstation is a true computer and not just a game console, when asked by the EU to pay for custom duties imposed over the consoles (while computers aren’t subjected to this tax).

Ooops. Avoid those taxes, create an opening for the argument that the PlayStation is a computer (the use of which should be unrestricted). Later, the decision notes that:

But if the device [Xbox], with a few hacks, may run Linux, why in the world shouldn’t a user be free of use it in all the ways he likes?

Good stuff. Unlikely to be persuasive to a US judge, but great news for the Europeans.

Comments (1) + TrackBacks (0) | Category: Copyright | Digital Millennium Copyright Act | Games

DRM as Protectionism

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Posted by Ernest Miller

One of the main reasons that Hollywood has been such a proponent of DRM (such as fighting to protect CSS) is not simply to protect against internet movie piracy (which remains a minor irritation at best), but to protect region coding, which allows movie studios to release the same DVD in different markets at different times, or slightly different DVDs in different markets. This form of price discrimination is a traditional means for copyright holders to maximize revenue, but in the digital age requires major restrictions on consumers to make it work. So, for example, if someone from the US buys a DVD while on vacation in Europe, they won't be able to play it back in the US.

Hollywood, of course, would love to have region coding even further mandated by law and international treaty, but if they are successful, they may not like the ultimate results.

The Competitive Enterprise Institute has a brief article on efforts by some ministers of culture to have cultural goods exempted from free trade agreements (The New Protectionism). The organization in question, International Network on Cultural Policy (INCP), seeks to help countries "develop strategies to promote cultural diversity," which generally means excluding US cultural products to some degree.

How interesting it would be for the INCP to take up the banner of region coding in order to enforce restrictions on the flow of cultural goods. This is really not that far fetched. DRM is a wonderful tool that governments can use to enforce all variety of censorship.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Rights Management | Freedom of Expression

Makers of Copy Protected CDs Engaged in Piracy

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Posted by Ernest Miller

Ah, the wonders and intricacies of copyright law. Many of the new "copy-protected" CDs on the market are so-called "double session" CDs that have two copies of a recording on the CD. One copy is in the traditional CD format so that it will play back on traditional CD players, the other copy is generally in a proprietary format for DRM restricted copying onto PCs and other devices.

How this intersects with copyright law is quite interesting. The publishers of music CDs (holders of the copyright in the performance) traditionally have to pay a mechanical license fee to the music publishers (holders of the copyright in the music and lyrics, but not the performance) for use of their songs, which is slightly less than a dime. As C|Net News reports, CD publishers have only been paying the music publishers for one copy of the song on each CD, even though these "copy-protected" "double session" CDs have two copies of the song (Rights issue dogs CD protection). Therefore, although the recordings are identical (except for format), the music publishers are demanding royalties for both copies, which the CD publishers have not been paying. Back payments required could be in the tens of millions of dollars. I think that the music publishers actually have a pretty good legal argument here.

Of course, the irony of engaging in blatant copyright infringement in order to reduce copyright infringement is off the charts.

The C|Net article is actually pretty good at looking how the division of music copyrights is causing problems for the inclusion of music on DVDs as well as licensing to the online music stores. Couldn't happen to a nicer industry.

Comments (0) + TrackBacks (0) | Category: Copyright

A Beam in Hollywood's Eye

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Posted by Ernest Miller

Once again, Hollywood insiders are to blame for piracy. When will the movie studios take action against the thieves in their own midst, particulary when they hide in such obvious places as the Academy of Motion Picture Arts and Sciences? As the LA Times (reg. req.) reports, at least one screener for the film Something's Got to Give has been copied onto the internet (Screener Ends Up on the Internet).

The investigation (through watermarking, apparently) seems to point to a copy sent to Godfather II actor and NYPD Blue recurring guest Carmine Caridi. The screener appeared on the internet last week, but the Oscar voter being investigated has yet to provide an explanation, although he has been asked to do so.

This, after all those who receive screener were asked to sign a form promising to safeguard the screeners. Shockingly, only 80% of the forms were signed and returned. But have we heard anything from the movie studios about this? Why haven't they taken any action on this blatant disregard for the rights of the copyright holders?

Shame, shame, Hollywood. Stop whining about the broadcast flag before you clean up your own act.

And why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye? Or how wilt thou say to thy brother, Let me pull out the mote out of thine eye; and, behold, a beam is in thine own eye? Thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother’s eye.

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

January 09, 2004

HP Goes Off the Rails

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Posted by Ernest Miller

Things must really be bad at Hewlett-Packard since CEO Carly Fiorina sounds quite desperate in her keynote speech at CES as C|Net News reports (Fiorina calls for defense of digital rights). How strange the spectacle of a major computer manufacturer calling for an all out war on what computers enable:

"[Copyright infringement is] illegal and wrong, and there are things we as a computing company can do" to prevent it, Fiorina said.
The HP chief added that starting this year all HP digital entertainment products will use software that respects the copyrights of artists. The company will actively promote copyright protection and step up efforts with antipiracy and consumer groups [which consumer groups would those be?], she said.

Does Fiorina think that by saying these things it will make her and her company more popular with the beautiful people of Hollywood, with the in crowd? Hollywood has never respected the tech industry; as far as Hollywood is concerned technology exists to increase their profits, period. To the extent that the technology industry has different ideas, Hollywood sues and legislates against it. Would there be PCs or an internet if Hollywood were in charge? Yet this is the group that is now giving Fiorina their approval:

In a show of support for HP's stance, Fiorina was joined on stage by Interscope Geffen A&M Records Chairman Jim Iovine as well as artists Dr. Dre, U2 guitar player The Edge, Sheryl Crow, Alicia Keys, Toby Keith and other music executives.

Such celebrity worship is simply sad. Even worse is the schizophrenia evidenced by the next line of the article:

HP also provided a glimpse of new products that would allow for easier use of digital media.

Since when has DRM made the use of digital media "easier"? All DRM systems that I've worked with have only served to increase frustration. And what is this "allow"? A subtle reference to the fact that DRM "allows" one to do what would otherwise be considered a right?

Apparently, HP will happily be used by Hollywood for some mythical short term gain in the consumer electronics market. Consumer electronics is a viciously competitive market. Yet HP seeks to thrive in this marketplace by ceding control of the future of HPs primary market (computers) to Hollywood. This is the epitome of a sucker's deal, one the shareholder's of HP will regret.

HP sells really nice computers, which are essentially being commoditized. So what do they do? Seek partnerships with content companies. Brilliant strategy - not!

Comments (2) + TrackBacks (0) | Category: Copyright | News | Tools

January 08, 2004

Solum the First Amendment, Copyright and Originalism

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Posted by Ernest Miller

Prof. Larry Solum discusses a recent panel on copyright at the annual meeting of the Association of American Law Schools on Legal Theory Blog (Blogging from Atlanta 05, Association of American Law Schools, Section on Constitutional Law, Copyright and the First Amendment). His brief notes are a good starting point for looking at and discussing various threads regaring the intersection of the First Amendment and copyright law. Of course, his post serves to make the point that right now there is no coherent theory, nor is there a consensus as to how we will move towards one.

Of particular interest is the discussion regarding Originalism and the relation between the First Amendment and copyright law. Taking off on Prof. Neil Netanel's fairly mainstream view that the First Amendment acts as a restriction on a plenary (Solum's word) copyright power, Solum proposes an alternative (with an evocative metaphor), that the copyright power is a an island of power in a sea of liberty. Very interesting, though I am not convinced. Scrivener's Error replies to Solum and has some very good points (Originalism, Copyright, and the First Amendment).

I, of course, remain convinced that telecommunications law, copyright and the First Amendment are related throught the concept of distribution ... that they can all be analyzed through the lense of rights of distribution.

Comments (1) + TrackBacks (0) | Category: Copyright | Freedom of Expression

December 19, 2003

Verizon Wins Against DMCA Subpoenas

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Posted by Ernest Miller

As reported by Donna Wentworth on Copyfight, Verizon has emerged victorious in its effort to thwart the RIAA's subpoenas under the DMCA (Verizon Wins Victory for Privacy). The US Court of Appeals for the District of Columbia Circuit has reversed a lower court's ruling and held that the RIAA may not send subpoenas to ISPs for information on alleged infringers using P2P. Read the DC Circuit decision: RIAA v Verizon [PDF].

The decision is a victory for privacy, but not a victory for privacy as such.

The result was reached on a technical reading of the statute, and turned on the fact that a subpoena can only be sent if a DMCA notice-and-takedown letter can also be sent. A DMCA notice-and-takedown letter can only be sent to the ISP if the ISP can remove access to the material (and not if the only way to remove access is to terminate a user's account). Thus, a copyright owner cannot send a DMCA notice-and-takedown to an ISP for what a user shares via P2P (the ISP can do nothing but terminate the user's account, which is not a remedy under a DMCA notice-and-takedown letter). Consequently, if no notice-and-takedown may be sent, no subpoena may be issued.

The constitutional issues that would have made this a victory for privacy as such, or for freedom of expression, were not addressed by the court.

What does all this mean?

...continue reading.

Comments (0) + TrackBacks (0) | Category: Copyright | Digital Millennium Copyright Act | Privacy

December 18, 2003

Napsterization: The Blog, Debuts

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Posted by Ernest Miller

Nap·ster·i·za·tion n. The disruption by new technologies and digital media of old economy institutions and analog frameworks.

Mary Hodder, of the bIPlog, has started a new blog dedicated to the process of Napsterization. The mission of the blog is described as follows:

Napsterization.org blog focuses on positive, fair-use and legal examples of peer-to-peer file sharing of works approved by their creators for sharing, helpful in learning about works that are then lawfully purchased, or otherwise considered fair use under the "fair use doctrine" in American copyright law or the copyright laws of other countries.

The blog also gives examples of digital expresssions of disruptive technologies effects and old analog systems and institutions, as well as analysis and opinion of the effects of distruption.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Copyright | File Sharing

December 11, 2003

Porn, Compulsories and Filtering

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Posted by Ernest Miller

As CNN notes in an otherwise slow newsday, porn is a popular business on the internet (Sex sells, especially to Web surfers). However, see Seth Finkelstein's dissection of the "report" CNN is relying on (N2H2 "State Secrets" - PR and lying with statistics [part 1]) and (CNN, "web porn", and censorware PR Managers).

Regardless of the validity of the report, it is undisputed that pornography is popular on the internet, including P2P networks (of course, porn has been popular in every medium). Note, that contrary to some claims, pornography hasn't been shown to be more of a problem on P2P networks than the internet generally as a leaked GAO memo obtained by TechNewsWorld concludes (U.S. Congress: P2P E-Smut 'Not Necessarily' More Dangerous than Other Forms).

In any case, the debate over compulsories has raised a serious barrier to their implementation - the political unpopularity of systems which will provide cross-subsidization for pornography. In other words, taxes (whether levy or general) would be collected and then distributed to pornographers. This would not be, to put it mildly, politically popular. Furthermore, I use the term "pornography" only as the most blatant example of content that would be politically unpopular. I can imagine, for example, that certain genres of music, such as "gangsta rap," would raise similar objections (how would people feel about tax dollars subsidizing music that glorifies cop-killing?). This is a serious problem and one that hasn't really been addressed by proponents of government mandated compulsories, especially given the track record of political debate over the relatively small amount of money dedicated to the National Endowment for the Arts.

Nevertheless, the issue of compulsories and pornography may create other problems as well. One I am concerned about is the potential for mandatory filtering to go along with the mandatory compulsories. Although none of the proposed compulsory systems speaks to the issue of filtering (and I am sure the proponents would oppose it), the systems certainly enable a mechanism that would make such filtering possible. All of the proposed government mandated systems envision some form of centralized registry for copyrighted works so that the works can be monitored and tracked and appropriately compensated. How much more of a step would it be to require works in the registry to also include self-labeling information?

I can imagine that many people would make the claim that, for example, pornographers shouldn't be compensated for having their files shared by minors. Two 15-yr olds file share a pornographic movie. Should the pornographer be compensated? If not, then the system will have to include self-labeling by the pornographer as well as parental controls (filters) in the file-sharing/playback devices. How will this work? Will political pressure force "voluntary" labeling schemes onto content producers who wish to be compensated? How will the survey/monitoring systems handle devices with and without filtering mechanisms?

No compulsory scheme advocates for labeling and filtering. However, we should consider likely ramifications of such compulsory schemes, and increased political pressure for labeling, whether "voluntary" or not, is likely.

Comments (2) + TrackBacks (0) | Category: Copyright | File Sharing | Freedom of Expression | Rating and Filtering

December 10, 2003

Felten's Challenge on Compulsory Monitoring Schemes

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Posted by Ernest Miller

Prof. Ed Felten, who attended the Alternative Compensation Systems conference this past week, has made a challenge to compulsory licensing proponents on Freedom to Tinker (Devil in the Details):

So here is my challenge to compulsory enthusiasts: tell us, in technical detail, how you propose to do the measurements. You don't have to give us working code, but do tell us which programs you would write or modify, and what specifically they would look for. Tell us how you would cope with backward compatibility, and the diverse formats in which people download and store music. Tell us how you would deal with non-PC platforms such as Macs, Linux boxes, and iPods, as well as non-traditional network setups such as public WiFi access points.

Ouch. These are some seriously tough issues. Of course, this challenge only really applies to one model of widespread monitoring of all use. In other systems, you aren't trying to monitor all use but only a subset of use, if at all.

For example, monitoring can be optional for voting systems. If your devices support monitoring, then they can help you allocate how your "votes" are "spent" based on use. However, since it is a voting system, the monitoring can be optional.

For a Nielsen-type system the monitoring issue is somewhat easier since there are a smaller number of families/devices being monitored and they have volunteered for duty (meaning compliance would be higher). PC Software for the three major desktop systems (MS, Mac, Linux) that monitors P2P usage (downloads, uploads, plays) might be all that is necessary to be acceptable, given how imprecise Nielsens are in the first place. If necessary, there might be some extension of play monitoring to some mobile devices, perhaps specially configured devices provided free of charge to the Nielsen family.

The problems of monitoring for voting and Nielsen-type systems don't seem particularly challenging to me (unlike widespread monitoring of all users). However, voting and Nielsen-like systems create their own set of peculiar challenges.

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

December 01, 2003

60 Million Moral Exemplars

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Posted by Ernest Miller

Copyright Scholar and Law Professor Jessica Litman has posted a new work in progress dealing with the question of file-sharing and compulsory license (Sharing and Stealing). It is an interesting paper, and one that I am thinking about and hope to write a few more comments on. However, I did want to point out a sentence that has been quoted on Legal Theory Blog and Copyfight:

The fact that more than sixty million consumers are currently exchanging music over peer-to-peer networks in the U.S. gives them a stake in the building consensus and both a moral and a political claim to a seat at the copyright bargaining table.

I don't believe that the fact that you file-share gives you any more moral or political claim to a seat at the copyright bargaining table. Copyright is about issues of culture and free speech. I think that is a sufficient basis for a strong moral and political claim for every citizen to have a seat at the copyright bargaining table. Prof. Litman certainly didn't mean that only file-sharers have a right to be at the bargaining table, but the impression given is that file-sharers somehow have privileged status.

Sixty million people can't be wrong is the oft-heard phrase. Yes, they can. A stronger moral claim to be part of the bargaining process can be made by those who boycott the artists whose representatives attack innovation and fair uses, rather than those who merely desire "free music."

Comments (4) + TrackBacks (0) | Category: Copyright | File Sharing

November 20, 2003

Pop-up Ad Firm WhenU.com Beats Preliminary Injunction Sought by Wells Fargo

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Posted by Ernest Miller

WIRED reports that "contextual marketing" firm WhenU.com (a purveyor of pop-up and pop-under ads keyed to URLs and keywords) has won a decision against Wells Fargo, which was seeking a preliminary injunction against WhenU.com (Pop-Up Firm Wins Again in Court). Read the 66-page decision: Wells Fargo v. WhenU.com: Memorandum Opinion and Order Denying Plaintiffs' Motion for Preliminary Injunction [PDF]. The decision is an important victory for the end-to-end principle against attempted incursions by trademark and copyright law. Of course, there are a lot of facts to wade through, including this nugget for which Ben Edelman is cited as the authority:

Since 1996, millions of computer users have become regular users of the Internet and the World Wide Web.

Gee, didn't know that. Additionally, we learn:

...continue reading.

Comments (0) + TrackBacks (0) | Category: Copyright | Trademark

It's All About the Distribution, Stupid

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Posted by Ernest Miller

O'Reilly Network writer Andy Oram, inspired by Dave Winer's piece on candidates taking stands on internet regulation, makes a plea for a global approach towards information law (Time for a data transmission summit). I couldn't agree more with Oram that we should view many of the issues involved with regard to cyberlaw as an interconnected whole. It is interesting that Oram frames this issue as one of "data transmission." This echoes my viewpoint. As I am wont to say, "It's all about the distribution."

For example, when we discuss copyright reform, it is almost always in the context of existing telecommunications regulation. However, what if existing telecom regulations are part of the copyright problem? If, for example, there is a near monopoly on the primary means of music distribution, such as radio, won't that seriously distort the market that copyright is supposed to create?

Really, isn't telecom about the distribution of information (subject to the First Amendment, as I note here: It's Freedom of the Press, Stupid). Isn't copyright really about how copyrighted information is distributed? An argument that I make here: Taking the Copy Out of Copyright [PDF].

Of course, I'm completely onboard with a summit dealing with issues of "data transmission" taken from a broad point of view. However, I'm not sure if a summit is a good idea right now, since there isn't really a consensus yet that all these elements are actually related and what the nature of that relationship is. My concepts may be wrong, but I am convinced that there is a relationship among these issues. Perhaps the nature of that relationship is what a summit should address.

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Internet | Open Access | Telecomm

November 19, 2003

Miller to Deep: What Derek Said

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Posted by Ernest Miller

Although I was somewhat conclusory in my previous posting on the subject (Madster Seeks Supreme Court Cert), I still believe that it is in the best interests of all those who want to uphold the Sony v. Universal decision that the Supreme Court decline John Deep's Petition for Writ of Certiorari in the Aimster/Madster/Deep case. I believe that, unfortunately, Deep muddied the waters of his defense and this is a poor set of facts to stand upon before the Supreme Court. Without my going into more detail, Derek Slater has written a good summation of the reasons not to support the writ (My Reply to John Deep of Aimster). For the opposing view, see Aimee Deep's (John Deep's daughter) views on the subject (John Deep v. RIAA - O Ye of Little Faith).

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

The End of the Beginning: The Death of MP3.com

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Posted by Ernest Miller

Instapundit, aka mild-mannered law professor Glenn Reynolds, laments the death of MP3.com on Tech Central Station (Death of a Friend). I too, lament the death of MP3.com and the threat it posed to the distribution oligopolies of the extant recording companies. However, I'm not nearly as pessimistic as Prof. Reynolds about the possibilities for online music.

Reynolds notes that MP3.com might simply have been a "false dawn." I agree. We have not yet seen the full range of possibilities for the distribution of music, just as the first wave of internet home pages did not obviously indicate the path to the current blog renaissance. When people can share playlists and collaborative filtering creates automated radio channels (automatically downloading songs to your device), and the technology is transparent and ubiquitous, then we will have a better idea of where music distribution will wind up. I don't want to go to a website to find alternative and independent artists. I want to listen to cool radio stations (run by people or algorithms I trust) that will introduce me to great music that I can immediately save for later listening. Until then, we are stuck in a world in which proprietary systems clash with each other in a (hopefully) futile attempt to control citizens, consumers and producers.

See also, Derek Slater's questions about control over distribution technologies (Sony, Napster, and the Subtler Problems with a Redesign Rule for Copyright Liability).

Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing

November 18, 2003

Free Mickey: 75 Years of Indentured Servitude

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Posted by Ernest Miller

FREE MICKEY! Today is the the 75th anniversary of the release of Steamboat Willie (Birthday boy Mickey Mouse still a film great after 75 years). Need more be said?

via Furdlog

Comments (0) + TrackBacks (0) | Category: Copyright

November 17, 2003

Joke Isn't That Funny

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Posted by Ernest Miller

A number of folks, such as BoingBoing and Furdlog, point to a parody website advocating sending MP3s by email, post or fax to the regional authorities for the RIAA (Send Them Back.org). The joke is that if you "stole" the MP3s, it is only right to send them back as a sign of contrition. A mildly amusing concept. There is a problem here, although it isn't the one that concerns Joho and Scripting News. The problem is that emailing MP3s to the RIAA is a violation of copyright (the RIAA doesn't actually own the copyrights). Additionally, by emailing the MP3s, you are (unless you are carefully taking precautions) telling the RIAA exactly who you are. At a minimum liability of $750 per MP3 mailed, the joke could turn sour very quickly. While I don't think that the RIAA will actually sue people who do this, they just might, or at least take a closer look at those who have (are you sure the RIAA doesn't have any evidence of your previous file-sharing?).

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

November 14, 2003

Century 21: Property, IP and Creativity in the Virtual World

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Posted by Ernest Miller

More notes from: The State of Play: Law, Games and Virtual Worlds

Dan Hunter is talking about various property regimes in virtual worlds and their analogies to real world property law. Read his paper (Virtual Property [PDF]). He is showing a live feed of the notorious Category 1654 on eBay, where you can buy and sell avatars, swords, etc. Conclusion ... Prof. Hunter believes that there is property here and we are going to have to figure out how to deal with it.

How did Edward Castronova get involved in this issue? He thought that eventually, there would be lawsuits. Lawsuits would create a need for expert testimony. Why not him? Read his conference paper (The Right to Play [PDF]).

UPDATE 1030 ET
UPDATE 2 1035 ET
UPDATE 3 1045 ET
UPDATE 4 1100 ET

...continue reading.

Comments (0) + TrackBacks (0) | Category: Copyright | Games | The State of Play

New IP Rules for Second Life

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Posted by Ernest Miller

Currently, I am in New York attending the New York Law School/Yale Law School conference on videogames and the law (The State of Play: Law, Games and Virtual Worlds).

This morning's panels is a discussion by founders of two of the most interesting MMORPGs, There.com and Second Life.

Philip Rosedale, founder and CEO of Linden Lab, creators of Second Life, had a very interesting announcement at this conference.

One of the most interesting things about Second Life is that the world is created by its users. They build and script many (if not most) of the models in the system. Second Life has been one of the leaders in such user-centered creativity.

The announcement is that there has been a change in the terms of service for Second Life. Second Life users will now be able to retain intellectual property rights in the things they develop for the MMORPG. Indeed, you will be able to actually transfer, buy and sell these copyrights in the real world. The new EULA does not yet seem to be available online yet, but this is very interesting.

UPDATE 0910 ET

There.com mentions that they have a dispute resolution process for copyright violations in their world. For example, There.com members create virtual clothing that they "sell" to other members using Therebucks. Some complaints have arisen that some sellers see other members wearing clothes they designed but did not sell. Other members of There, apparently, are selling "knock-offs" - so There.com runs a dispute resolution system. How it relates to existing copyright law is not clear.

Second Life expects, with their new EULA, that real world courts may have to resolve these issues.

UPDATE 0935 ET

In response to an excellent set of questions from copyright expert Yochai Benkler, Rosedale notes that they hope to embed Creative Commons licenses into their new system of copyright.

Prof. Benkler was skeptical about the purpose of embedding copyright law (which is a mess) into these virtual worlds ... why not enable a better system for sharing?

UPDATE 1100 ET

New Terms of Service are up.

A brief excerpt (but read the fine print):

5.3 Participant Content. Participants can create Content on Linden's servers in various forms. Linden acknowledges and agrees that, subject to the terms and conditions of this Agreement, including without limitation the limited licenses granted by you to Linden herein, you will retain any and all applicable copyright and/or other intellectual property rights with respect to any Content you create using the Service. . . .

UPDATE 1105 ET

Read the Linden Lab press release: Second Life Residents To Own Digital Creations. There is a quote from Larry Lessig:

Linden Lab has taken an important step toward recognizing the rights of content generators in Second Life. As history has continually proven, when people share in the value they create, greater value is derived for all. Linden Lab is poised for significant growth as a result of this decision.

Comments (0) + TrackBacks (0) | Category: Copyright | Games | The State of Play

November 10, 2003

LA Times Analyzes MPAA's New Sue-Em-All Strategy

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Posted by Ernest Miller

Three days ago, I posted regarding an almost off-handed comment by Mickey Kaus regarding the MPAA's move toward an anti-file-sharing litigation strategy (Motion Picture Studio Chiefs Want MPAA to Adopt Anti-File-Sharing Litigation Strategy). Yesterday, the LA Times (reg. req.) published a much more indepth analysis of this new blockbuster strategy (Is Hollywood Failing to See the Big Picture?). The article should be required reading for anyone following these issues and there are certainly some interesting quotes:

Warner's chief, Meyer, predicts that "there is a day coming when, to properly protect movies from piracy, we'll leverage off the original theatrical marketing campaign and release movies any way the consumer wants it — on his computer, on his TV or at Wal-Mart — all at the same time."

Comments (0) + TrackBacks (1) | Category: Copyright | File Sharing

Sony's CD DRM Makes a Comeback

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Posted by Ernest Miller

WIRED publishes a Reuters wirestory on Sony re-launching its ConnecteD CD Extras format as a new type of DRM (Sony's User-Friendly Copy Block). Love the title for the piece - where did it come from? The press release? Simply more evidence of Sony's consumer electronics schizophrenia. How long before someone like Alex Halderman writes a critique of Sony's DRM as devastating as Halderman's analysis of SunnComm's (Analysis of the MediaMax CD3 Copy-Prevention System).

Comments (0) + TrackBacks (0) | Category: Copyright | Digital Rights Management | File Sharing

Printed Porn Dying - Publishers Blame Old Models, Not Piracy

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Posted by Ernest Miller

Newsday runs an AP wirestory on the demise of the printed pornographic magazine in the age of the internet (With Internet competition, adult magazines see circulation woes). Obviously, the availability of porn via the internet is having an effect on the availability of printed porn - though Larry Flynt's quote "I'm not going to say it's going to become extinct because some people will always want to feel that magazine in their hands" brings up some disturbing imagery.

Techdirt makes the good point that pornographers often lead the way in adopting and adapting to new technologies - perhaps this is another example of such evolution in progress (Internet Competition Killing Off Adult Magazines). Videotape, of course, essentially killed off the adult theater - though it didn't kill off movie theaters in general, so the analogy isn't inexact.

One thing the article doesn't go into is the prevalence of pornographic piracy, which is likely as prevalent as music file sharing. No blaming the failure of Screw Magazine on piracy from Al Goldstein, for example. Instead, Goldstein says, "we [porn magazine publishers] are an anachronism; we are dinosaurs; we are elephants going to the bone cemetery to die. ... The delivery system has changed, and we have to change with it if we want to survive."

Of course, there is still old media thinking in the case of some internet pornographers. According to an AP wirestory in USA Today, a pornographic website is suing two models for violating a non-compete agreement when the models quit one website to pose for another (Internet adult business in legal battle with former models).

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Internet

November 09, 2003

Madster Seeks Supreme Court Cert

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Posted by Ernest Miller

Slyck, a P2P news site, reports that Madster (the P2P program formerly known as Aimster) is seeking a Writ of Certiorari to have their case heard before the US Supreme Court (P2P Company Takes Battle to Supreme Court). You can read the petition here: Petition for Writ of Certiorari (03-658). The case was brought by members of the recording industry alleging contributory and vicarious copyright infringement by Madster. The district court granted a broad preliminary injunction against Madster and the Seventh Circuit upheld the preliminary injunction. Read the Seventh Circuit's decision (authored by Judge Richard Posner) here: In re Aimster, 334 F.3d 643 (7th Cir. 2003).

I don't think the Supremes will take the case and, frankly, I hope they don't. This would be a bad set of facts and argument to use as the basis for the court to take another look at Sony v. Universal.

via Zeropaid

Comments (1) + TrackBacks (0) | Category: Copyright | File Sharing

November 07, 2003

Motion Picture Studio Chiefs Want MPAA to Adopt Anti-File-Sharing Litigation Strategy

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Posted by Ernest Miller

I don't often link to Mickey Kaus (he generally covers stuff that I consider off topic for this blog), but I certainly read him on a daily basis. Today he has an interesting post about the appearance of a conflict of interest with regard to the author of a recent puff piece profile of Jack Valenti in the New York Times (Another Easy One for Daniel Okrent, Public Editor!). Seems the author of the piece is the spouse of Amy Pascal, one of the Vice-Chairman of Sony Pictures Entertainment. Interesting enough ... but there was something even more interesting in Kaus' piece:

But here's what Weinraub was either too inhibited or uninformed to report: Valenti's bosses, the studio heads, are not happy with him. Why? Because he doesn't want to pursue a litigation strategy to combat the threat of piracy (maybe because he doesn't want to end his long Motion Picture Association career in an atmosphere of contention and controversy). But the studios are insisting on litigation. [emphasis in original]

So, seems like the MPAA will soon turn towards a litigation strategy similar to the RIAA's. Frankly, it makes sense to me.

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing

Copyright Scholar Ray Patterson has Passed Away

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Posted by Ernest Miller

Larry Lessig reports sad news (extraordinarily sad news). Noted copyright scholar and historian Ray Patterson has passed away. I never met him, but his writings have certainly informed my thinking about copyright and I would highly suggest his work to anyone interested in copyright issues. He will be missed.

Comments (0) + TrackBacks (0) | Category: Copyright | News

November 04, 2003

Beastie Boys Sampling Not Infringement

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Posted by Ernest Miller

The Ninth Circuit has issued a divided opinion finding that the Beastie Boys are not guilty of copyright infringement for their sampling of a six-second, three-note segment of a performance by accomplished jazz flutist, James W. Newton. The decision is here (Newton v. Diamond, et. al. [PDF]).

While the decision is a victory for those who think that copyright law is over inclusive, it is not a particularly important decision per se because the facts are rather unique. However, the case is an interesting one and certainly illustrates the complexities and strangeness of current copyright law.

In this case the Beastie Boys had properly licensed the right to sample Newton's performance. However, Newton was suing for infringement of his underlying composition (sound recordings and their underlying compositions almost always being separate in current law). Thus, the court was forced to consider only the elements of infringement relating to the composition, not the performance. This hurt Newton's case since the richness of jazz is often more about the performance than the composition:

In filtering out the unique performance elements from consideration, and separating them from those found in the composition, we find substantial assistance in the testimony of Newton’s own experts. His experts reveal the extent to which the sound recording of “Choir” is the product of Newton’s highly developed performance techniques, rather than the result of a generic rendition of the composition. As a general matter, according to Newton’s expert Dr. Christopher Dobrian, “[t]he contribution of the performer is often so great that s/he in fact provides as much musical content as the composer.” This is particularly true with works like “Choir,” given the nature of jazz performance and the minimal scoring of the composition.

Once the court eliminated the special performance aspects of the sampled element (which was properly licensed), the question was whether or not the copying from the underlying composition was de minimus or not. An important element of the decision was whether the three-note sequence was particularly special:

This evidence is consistent with the opinion of Beastie Boys’ expert, Dr. Lawrence Ferrara, who stated that the sampled excerpt from the “Choir” composition “is merely a common, trite, and generic three-note sequence, which lacks any distinct melodic, harmonic, rhythmic or structural elements.” Dr. Ferrara also described the sequence as “a common building block tool” used over and over again by major composers in the 20th century, particularly the ‘60s and ‘70s, just prior to James Newton’s usage.”

Frankly, I'm surprised you need a court to determine that a three-note sequence (even if over another note) is so easily distinguished. How many possible three-note sequences are there? Haven't all of them been used at one time or another? Couldn't one easily write a program that would publish all possible sequences? The district court found that the three-note sequence lacked originality and was not copyrightable, but the appeals court didn't reach that issue.

The appeals court properly found the copying de minimus under the appropriate standard:

On the undisputed facts of this case, we conclude that an average audience would not discern Newton’s hand as a composer, apart from his talent as a performer, from Beastie Boys’ use of the sample.

The dissent, on the other hand, believed that the three notes would be distinctive no matter who performed them.


via How Appealing

Comments (0) + TrackBacks (0) | Category: Copyright

Harvard's Unjust Application of the DMCA

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Posted by Ernest Miller

Derek Slater hosted one of the mirrors of the Diebold memos on a Harvard server (Diebold, Harvard, and Me). Soon thereafter, Harvard received a notice-and-takedown from Diebold targeting Slater's mirror. Derek has taken the mirror down, and will not be contesting Diebold's actions (he is busy with other projects). However, Harvard has a policy of terminating network access for a year for people who have have received two notice-and-takedown letters (Even Harvard's Dean Misreads the DMCA Safe Harbor). The letter from Diebold would count as Derek's first strike. This two-strikes (without further investigation) and you're cut-off policy is bad in and of itself. However, as applied to Derek it is certainly unjust. Harvard should revise its "repeat offender" DMCA policy and not count Derek's actions as those of a repeat offender.

Good luck, Derek!

UPDATE 1205 PT

Derek writes to inform that he has not actually taken the materials down and has not yet decided on a plan of action.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

EFF, Stanford Support Diebold Countersuit

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Posted by Ernest Miller

Copyfight had the first news and a collection of interesting links for EFF's and Stanford's Cyberlaw Clinic's support for a lawsuit against Diebold (EFF, CIS Seek Court Order Against Diebold). The documents filed in the case can be found here (EFF Archive: Online Policy Group v. Diebold, Inc.).

While I applaud the efforts to shut down Diebold's attempt to silence the publicizing of evidence justifying the complaints of Diebold's critics, I'm not sure how viable some of the legal arguments being made are. Some are certainly stronger than others, but it will not be an easy case to win. For example, while I certainly think that publishing the memos is fair use, I don't think the case for fair use is so clear that Diebold "knew" that the copyright claims were false. On the other hand, Diebold certainly should have known that linking to documents hosted on another site is not covered by the DMCA notice-and-takedown claims. The misuse of copyright argument is clever, and I hope it succeeds, but it will be tough going as the doctrine isn't quite clear and most cases deal with issues relating to anti-trust, not political expression.

At the very least, however, the lawsuit should force Diebold to actually litigate the issues rather than merely rely on the notice-and-takedown provisions. Moreover, the arguments in the case will certainly be precedent-setting and very interesting.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

October 31, 2003

Independent Creation, the "Halloween" Mask and Classic Movie Makeup

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Posted by Ernest Miller

Perhaps some of the most famous copyrights this time of year are the copyrights for the designs of the classic Universal Studios Monsters (Frankenstein’s Monster, Bride of Frankenstein, The Wolf Man, Dracula, The Mummy, Phantom of the Opera and the Creature of the Black Lagoon), which were created by Jack Pierce. Sometimes, of course, copyright doesn't lead to lawsuits, but inspires alternate creation, such as the more "realistic" design of Frankenstein's Monster in the Hammer Films classic The Curse of Frankenstein.

However, such outcomes aren't always the case. Even something as simple as the everyman "Michael Myers Mask" used in the original "Halloween" movie has had its share of controversy.

In Don Post Studios, Inc. v. Cinema Secrets, Inc. [PDF], which was decided in 2000, a strange sort of independent creation case took place. Don Post Studios, who had designed the mask used in the 1978 movie (for a payment of $150), was marketing a similar mask to the public under their own auspices. Cinema Secrets, a major supplier of Halloween masks and such, had licensed the mask design from the makers of the movie, and was marketing their version to the public. Don Post sued for copyright infringment (among other things), claiming that Cinema Secrets had copied the Don Post mask. Cinema Secrets won the copyright issues on a claim of independent creation (among other things): Cinema Studios' mask was based on the movie, not the Don Post mask. The winning claim brings a whole new meaning to the term "independent creation."

Interesting fact: the infamous mask used in the movie was a modified version of a "Captain Kirk" mask based on a foam master of William Shatner's head. Scary, indeed.

Comments (0) + TrackBacks (0) | Category: Copyright | Halloween | Oddities

Pumpkin Carving DRM

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Posted by Ernest Miller

SpookMaster is one of the leading websites for those interested in advanced jack-o-lantern patterns. The website is a commercial enterprise, and though they have some free designs, they make money by selling the pumpking carving patterns. They have somewhat traditional designs such as "Frankie" and "The Bewitching Hour," as well as more contemporary designs, such as "Arnold Schwarzenegger." You might think that it would be relatively easy to copy the patterns which are shown on the site, and thus avoid paying for the patterns, but you would be wrong. Be sure to pay attention to the copyright notice:

If you try to copy an example pumpkin from the website you get the message These sample patterns look just like the real thing but they are NOT CARVEABLE. The sample patterns have been designed to look exactly like the carved patterns but with a few minor (unnoticeable) changes that make them impossible to carve. We don't do this to be mean, we do it to protect our business. [emphasis in original]

For added fun, try to copy and paste from their website and see what happens.

Readers may also be interested in the copyright notice on this Jack-o-Lantern Bookmark Crochet Pattern:

This pattern is COPYRIGHT © Jackie Karp 2002
Do NOT post on other web sites, crochet groups etc or copy illegally. It is free for personal use ONLY! Do not pass it on to other people via email or by copying it as you are taking traffic away from this site by doing so

Comments (0) + TrackBacks (0) | Category: Copyright | Digital Rights Management | Halloween | Oddities

Happy Halloween, Nosferatu (No Thanks to Copyright)

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Posted by Ernest Miller

Tonight, while the trick-or-treaters visit, I will be screening Nosferatu in my driveway on an 80" HDTV projection screen.

Released in silent black and white in 1922, Nosferatu is an unauthorized adaptation of the novel "Dracula" by Bram Stoker and is widely considered one of the classics of cinema. Certainly, many think it is the best adaptation of Dracula in film, one of the most influential horror movies of all time and a masterpiece of Expressionist filmmaking. Thanks to copyright law, however, this film was very nearly lost to us (The Saga of Nosferatu).

Florence Stoker, widow of Bram Stoker (who had died in 1912), sued the producers of Nosferatu for infringement and won. As part of the 1925 decision, all copies of Nosferatu were to be destroyed. Most were. Over the next few years, any copies that became public were also destroyed. This may have meant the end of the film, except that a few isolated copies managed to survive Florence Stoker's death in 1937.

Thank goodness for "pirates."

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | Halloween

October 29, 2003

Civil Disobedience to Diebold Moves onto P2P Networks

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Posted by Ernest Miller

bIPlog which had a great set of links on the Diebold/Swarthmore scandal yesterday (Cease and Desist Me, Babe) and was Slashdotted this morning (Diebold Chases Links To Leaked Memos), points to an interesting /. comment (/. Comments):

Yea, that's right, go on kazaa and type in Diebold and you'll find the mail....on over a hundred different hosts with quick speedy downloads to par!

Same's true for all the p2p apps, even the waste network I'm on! Sorry Diebold, I'm not gonna stop hosting your memo's until your entire goddamn corperation is taken down and the lie is revealed.

When will companies learn that often times the best way to solve a problem is to ignore it? Diebold's heavy-handed efforts to stamp out the distribution of the memos is only increasing their distribution and public awareness.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | File Sharing | Freedom of Expression

Would We Still Have Libraries?

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Posted by Ernest Miller

Jenny Levine, aka The Shifted Librarian, has a great line in her short post on this blog and the DMCA exemptions (Chipping Away at Fair Use). If I had a "quote of the week", this would definitely be it:

If public libraries didn't already exist, would we be able to start them in this day and age? My guess is no.

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | Digital Millennium Copyright Act

Props for Jack Valenti

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Posted by Ernest Miller

You know, I actually have to give Jack Valenti props over the recent screener brouhaha, which he discusses in an OpinionJournal commentary this morning (Sorry, Screeners). One of my biggest complaints about the MPAA has been that they've concentrated their anti-piracy efforts on the average consumer, the vast majority of whom are not engaged in nor have any desire to engage in piracy. At the same time, the MPAA was ignoring the piracy that was coming from within their own industry. For these reasons, I considered the MPAA to be a pack of hypocrites. Now, however, the recent screener ban has made me reconsider my opinion. This doesn't mean that I agree with the MPAA, just that I am no longer so sure they are inconsistent weasels. Weasels, yes, inconsistent, not so much anymore.

...continue reading.

Comments (0) + TrackBacks (0) | Category: Broadcast Flag | Copyright | File Sharing

Diebold Protest Growing

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Posted by Ernest Miller

WIRED is continuing coverage of the Swarthmore/Diebold scandal and gets some quotes from Swarthmore's Dean Gross (E-Vote Protest Gains Momentum). However, the issue of taking down links to sites that link to the memos is not directly addressed:

However, Gross said that the cease-and-desist letter specified taking down links to the memos, and school lawyers felt they had to comply.

But the issue isn't direct links to the memos (though the EFF is challenging that), but links to sites that have direct links to the memos.

In another update, the Why War? website now shows nineteen active mirrors for the memos and three mirrors shutdown due notice-and-takedown letters from Diebold (Targeting Diebold with Electronic Civil Disobedience). Students from a total of twenty schools are participating.

bIPlog has a good round up of stories and cheekily requests a cease-and-desist letter (Cease and Desist Me, Babe).

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

October 28, 2003

Diebold Countering Civil Disobedience with More Notice-and-Takedown Letters

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Posted by Ernest Miller

Why War? reports that two of the universities (Amherst and MIT) which have students engaging in electronic civil disobedience by hosting the infamous Diebold memos have received notice-and-takedown letters from Diebold. On the other hand, students at three more universities have joined the protest (Targeting Diebold with Electronic Civil Disobedience). The student at MIT who was the indirect target of the letter has his homepage here (C. Scott Ananian).

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

Swarthmore's Professor Burke on the Diebold/Swarthmore Scandal

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Posted by Ernest Miller

Prof. Timothy Burke of Swarthmore's History Department has a thoughtful post on the Swarthmore/Diebold scandal (Caveat Emptor). While appalled by Diebold's actions and proud of the students who have revealed the mendacity of Diebold, he finds fault with some of the students' tactics and defends Swarthmore's response. Much of his argument is well-taken and provides good guidance for civil protests on college campuses (such as, don't ask /. readers to email the Dean en masse).

However, I do take exception to the claim that I and others "[repeat] what they’re finding at the Why War? website as if it’s the absolute gospel truth, and [exhibit] zero curiosity about the totality of the story." I do not believe that accurately characterizes my following of the story. For example, in this post (Swarthmore Crackdown on Protesting Students Reaches New Low), I am clearly skeptical of the claims of the Why War? website:

Now, Swarthmore is allegedly terminating the internet connection of any student who links to the Why War? website .... If the allegations are true, this is a tremendous violation of freedom of expression and academic freedom. [emphasis added]

In accordance with my skepticism, I actually tracked down, telephoned, and spoke with two principles of the story, a student whose website was shut down and a member of Swarthmore's IT department. I hardly think making phone calls to confirm the posting is "exhibiting zero curiosity."

I'll also note that as a followup, I spoke with a member of Swarthmore's IT department again yesterday. The linking policy is, as of last night and according to this individual, unchanged. Students may have a text-based link to the Why War? site, but not an active HTML link to the site.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression