About this Author
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 @
Copyfight
LawMeme
Listen to the weekly audio edition on IT Conversations:
The Importance Of ... Law and IT.
Feel free to contact me about articles, websites and etc. you think I may find of interest. I'm also available for consulting work and speaking engagements. Email: ernest.miller 8T gmail.com
|
Category Archives
July 13, 2005
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
Blink ›
Geist Savages the Harry Potter Injunction Some More
Michael Geist is really going after the injunction a Canadian court has issued regarding the accidental sale of Harry Potter books before they officially go on sale in a couple of days (Harry Potter Injunction). It baffles me that this injunction is considered to be part of copyright law, just as I don't really consider Harper & Row to be part of copyright law. Both cases seem much more similar to trade secret cases than copyright law.
posted by Ernest Miller |
 |
# |
0 |
0
July 11, 2005
Blink ›
Ludicrous Copyright Response Letters
JD Lasica has an excellent collection of letters he has received from various studios when he asked permission to use short clips from their movies in home movies he was producing for family use only (When the Studios Won't Give Permission). Some of the responses are risible, others are just sad. There should be no permission necessary for the creation of works in which there is no public distribution. Life would be much simpler and just.
posted by Ernest Miller |
|
# |
0 |
0
Blink ›
CoCo on German Copyright Decisions
Constitutional Code has a great roundup of information on several decisions in German courts regarding the copyfight (German File-Sharing Round-Up: TV P2P & Advertisement). One version of P2P software cannot be distributed, it is illegal to link to allofMP3.com, and although internet portals are protected against damages for linking to sites that permit infringing, injunctions may still issue against them. Read the whole thing.
posted by Ernest Miller |
|
# |
0 |
0
Blink ›
Fair Use of Citizen Journalism Photos by Big Media
posted by Ernest Miller |
|
# |
0 |
0
Blink ›
Anti-Spoofing Technologies and Grokster
Ed Felten points to a report (behind a firewall) that the RIAA is making the argument that anti-spoofing technologies on P2P networks may be evidence of inducement under Grokster (RIAA Saber-Rattling against Antispoofing Technologies?). Ed is entirely right that anti-spoofing technologies have both good and bad uses (you want to make sure you get a good connection/copy of that open source program). It is unlikely that these technologies alone will create liability (fact dependent Sony test necessary, however). Nevertheless, I can see under Grokster that if a court does find other evidence of intent that, like using an advertising-based business model or not employing filtering, a court could find the use of anti-spoofing technology to be further evidence of intent. So, if there is no initial evidence of intent, anti-spoofing is probably good. But, if the court finds evidence of intent, then anti-spoofing could be found to be further evidence of bad intent. What a mess.
posted by Ernest Miller |
|
# |
0 |
0
Blink ›
BBC Blasted for Making Music Freely Available
One would think this is parody, but apparently it is not. The Independent reports that classical music labels are lambasting the BBC for making MP3s of classical music available for free download (Downloading Trouble at the BBC). The BBC has been lambasted by classical music labels for making all nine of Beethoven's symphonies available for free download over the Internet. ... But the initiative has infuriated the bosses of leading classical record companies who argue the offer undermines the value of music and that any further offers would be unfair competition. Managing director of the Naxos label, Anthony Anderson, said: "I think there is a question of whether a publicly funded broadcaster should be doing this and there is the obvious issue that it is devaluing the perceived value of music. You are also leading the public to think that it is fine to download and own these files for nothing." Heaven forfend! via Scripting News
posted by Ernest Miller |
|
# |
0 |
0
July 07, 2005
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
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
Blink ›
Senate Hearings on Grokster Decision
posted by Ernest Miller |
|
# |
0 |
0
July 06, 2005
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
Blink ›
Von Lohmann on 17 USC 115 Reform
EFF's Fred von Lohmann has some positive things to say about the Copyright Office's proposal to reform 17 USC 115 (A Worthy First Step). This is an important step in the right direction, creating the prerequisites for a real, market-based solution to the P2P dilemma. Of course, it will still be up to the record labels (which own the copyrights in the sound recordings) to join the MROs or create their own collecting societies to license P2P users directly, but the MRO example, if successful, may provide just the push that the record industry needs. At a minimum, this reform should accelerate the licensing of digital music services and novel online uses, like podcasting, that should not be held hostage to internecine squabbles between middlemen, all of whom claim to represent the same rights holders.
posted by Ernest Miller |
|
# |
0 |
0
Posted by Ernest Miller
Comments (0)
+ TrackBacks (0) | Category: Copyright | File Sharing
July 05, 2005
Posted by Ernest Miller
Comments (0)
+ TrackBacks (0) | Category: Copyright | File Sharing
July 04, 2005
Blink ›
German Publisher's Group Pushing to Poison DNS
Constitutional Code brings some disturbing news from Germany (DNS Poisoning Requested From Providers by Rights Organisation). The German rights organisation for composers, lyricist and publishers, GEMA, has asked 42 access providers to poison their DNS servers in order to block sites that provide links to eDonkey files. In short, DNS poisoning obstructs the process of converting a URL to a numeric IP address. The GEMA apparently expects the access providers to configure their DNS servers so that "inquiries by end-users are not passed to the correct server, but to an invalid or another pre-defined side." The GEMA also demands that the providers sign a testimony,with which they commit themselves to ensure full blockage under a contractual penalty of 100.000 euro if any of their customers can still reach the targeted site after July 25th.... In the Pennsylvania child pornography case, slightly reminiscent of this one, new legislation allowed the government to aks access providers to block sites, using DNS poisoning amongst others. In that case there was a law to challenge, constitutional restraints to invoke, a court to review the pressure put on the public (government) - private (users) relationship. While laws may be applicable in the German case, users could "constitutionally" loose out if private demands are enforced by private parties. A judicial review is appropriate here, if for one thing, to test how far decisions to block the information flow can be pushed and taken within the private realm. Even if there's arguably illegal activity involved. Because there always is....arguably. [links, emphasis in original] Definitely not good.
posted by Ernest Miller |
|
# |
0 |
0
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.
Comments (0)
+ TrackBacks (0) | Category: Copyright | File Sharing
July 03, 2005
Blink ›
Defending the Commons in India
Nice essay on the public domain in The Hindu (Pirates of the Commons). CONTROLLING access to literary works to prevent copies from being made is a practice that goes back millennia. The Royal Library of Alexandria was so notoriously difficult to get into that Ptolemy III had to bribe his way in with 15 talents of silver.
Innovations do not bloom in an intellectual vacuum where access to knowledge is controlled. Read the whole thing. via Open Access News
posted by Ernest Miller |
|
# |
0 |
0
July 02, 2005
Blink ›
Hodder: Grokster Victory in 5-8 Years
Mary Hodder's analysis of the ultimate impact of Grokster is very similar to mine (The 5-8 Year Problem: Asking the Ocean To Turn Back Won't Work With Digital Media Tides). In 5-8 years, I think the Grokster problem will be solved by a combination of: 1. business model changes by legacy media; 2. changes in demographics because the fact is there will be a critical mass of users who have grown up with digital models in the heads (who are now young enough not to be of voting age but soon will be); and 3. where enough activity online is about people sharing and trading their own stuff (user generated media). It will be little media makers, supplying their own demands, who will solve this legal problem, first. Legacy media will follow behind them. All those legacy media companies, in order to continue to be as relevant to the masses as they have been in the recent past will have to come to the party and play in order to keep their stuff in front of our eyes. That is, the digital media party online, where they find that in order to participate, they have to give up some control of their copyrighted works, and rethink their models to include things like giving away some media in order to make money in some other place. Apparently she has had a drink of the P2P Kool-Aid as well. See Kicking the Sony Can Down the Road for my take. Time is on our side.
posted by Ernest Miller |
|
# |
0 |
0
Posted by Ernest Miller
Comments (0)
+ TrackBacks (0) | Category: Copyright | File Sharing | News
July 01, 2005
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
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
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
Posted by Ernest Miller
Comments (0)
+ TrackBacks (0) | Category: Copyright | File Sharing
June 28, 2005
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
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.
Comments (4)
+ TrackBacks (0) | Category: Copyright | File Sharing
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?
- Making a deal with the recording industry (iTunes)
- Encryption of content offered (also iTunes)
- A network optimized to some other explicit purposes (Freenet, privacy and anonymity, or even email -- personal communications)
- 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.
Comments (2)
+ TrackBacks (0) | Category: Copyright | File Sharing
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.
Comments (6)
+ TrackBacks (0) | Category: Copyright | File Sharing | Open Source
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.
Comments (0)
+ TrackBacks (0) | Category: Audio Edition | Copyright | File Sharing
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 l |
