Donna Wentworth
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Ernest Miller
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Elizabeth Rader
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Jason Schultz
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Wendy Seltzer
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Aaron Swartz
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Alan Wexelblat
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About this weblog
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.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

a Typical Joe
Academic Copyright
Jack Balkin
John Perry Barlow
Blogbook IP
David Bollier
James Boyle
Robert Boynton
Brad Ideas
Ren Bucholz
Cabalamat: Digital Rights
Cinema Minima
Consensus @ Lawyerpoint
Copyfighter's Musings
Copyright Readings
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
Cruelty to Analog
Culture Cat
Deep Links
Derivative Work
Julian Dibbell
Digital Copyright Canada
Displacement of Concepts
Downhill Battle
Exploded Library
Bret Fausett
Edward Felten - Freedom to Tinker
Edward Felten - Dashlog
Frank Field
Seth Finkelstein
Brian Flemming
Frankston, Reed
Free Culture
Free Range Librarian
Michael Froomkin
Michael Geist
Michael Geist's BNA News
Dan Gillmor
Mike Godwin
Joe Gratz
James Grimmelmann
Groklaw News
Matt Haughey
Erik J. Heels
Induce Act blog
Inter Alia
IP & Social Justice
IPac blog
Joi Ito
Jon Johansen
JD Lasica
Legal Theory Blog
Lenz Blog
Larry Lessig
Jessica Litman
James Love
Alex Macgillivray
Madisonian Theory
Maison Bisson
Kevin Marks
Tim Marman
Matt Rolls a Hoover
Mary Minow
Declan McCullagh
Eben Moglen
Dan Moniz
Danny O'Brien
Open Access
Open Codex
John Palfrey
Chris Palmer
Promote the Progress
PK News
PVR Blog
Eric Raymond
Joseph Reagle
Recording Industry vs. the People
Lisa Rein
Thomas Roessler
Seth Schoen
Doc Searls
Seb's Open Research
Shifted Librarian
Doug Simpson
Stay Free! Daily
Sarah Stirland
Swarthmore Coalition
Tech Law Advisor
Technology Liberation Front
Siva Vaidhyanathan
Vertical Hold
Kim Weatherall
David Weinberger
Matthew Yglesias

Timothy Armstrong
Bag and Baggage
Charles Bailey
Beltway Blogroll
Between Lawyers
Blawg Channel
Chief Blogging Officer
Drew Clark
Chris Cohen
Crooked Timber
Daily Whirl
Dead Parrots Society
Delaware Law Office
J. Bradford DeLong
Betsy Devine
Ben Edelman
Ernie the Attorney
How Appealing
Industry Standard
IP Democracy
IP Watch
Dennis Kennedy
Rick Klau
Wendy Koslow
Elizabeth L. Lawley
Jerry Lawson
Legal Reader
Likelihood of Confusion
Chris Locke
Derek Lowe
MIT Tech Review
Paper Chase
Frank Paynter
Scott Rosenberg
Scrivener's Error
Jeneane Sessum
Silent Lucidity
Smart Mobs
Trademark Blog
Eugene Volokh
Kevin Werbach

Berkman @ Harvard
Chilling Effects
CIS @ Stanford
Copyright Reform
Creative Commons
Global Internet Proj.
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office

In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline


August 16, 2004

Future of Music Coalition on the INDUCE ActEmail This EntryPrint This Article

Posted by Elizabeth Rader

Somehow I missed this earlier, but better late than never, here is the FMC's August 4 letter to the Senate about the INDUCE act. FMC points out that musicians are stakeholders in the decision how to respond to infringement and arguable fair uses of copyrighted recordings, and the RIAA does not speak for all recording artists. Recording artists have varying perspectives on peer-to-peer, but even those who feel they lose sales from file sharing do not necessarily support the INDUCE act or the RIAA's tactics, such as "blacklisting" companies that do business with peer-to-peer services. Many are concerned that the INDUCE act overreacts to the reality of file sharing and could, in the process preventing the development of innovative business models for music distribution that could help many recording arts. The letter highlights the amazing growth and diversity of legal digital music distribution services and expresses optimism about the future of music. This is familiar ground, but senators need reminding that the major labels and recording artists have distinct and often opposing interests and that the artists are often closer allied with the consumers who listen to their work.

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

August 12, 2004

Guest RoomEmail This EntryPrint This Article

Posted by Elizabeth Rader

It's always interesting when guests blogsit for Larry, and Rep. Rick Boucher is no exception. Check out the lively discussion of compulsory license schemes in the comments over on Lessig Blog.

Comments (0) + TrackBacks (0) | Category: IP Markets and Monopolies

August 11, 2004

No Crystal Ball for outcomes of proposed copyright changesEmail This EntryPrint This Article

Posted by Elizabeth Rader

CNET has this story about the Congressional Budget Office's report on copyright legislation regulating new digital technologies. As described, the report seems pretty wishy-washy. DRM could impose costs on consumers, continued "piracy" might reduce incentives for artists, and compulsory license schemes might cut transaction costs but also could reduce supply or demand. It sounds like there's something for everyone in there, but is this kind of report really useful to Congresspersons trying to decide what do to, or merely to give them something to quote to support a position they've already chosen?

Postscript: Having now read the report itself in addition to just the CNET description, I'm sorry I used the term wishy-washy. Possibly, as an advocate, I am so used to taking a position I expect every piece of writing to do so. The report is really quite a good overview of the copyright debate, which points out the complexity that many persuasive writings on the subject try to avoid. This certainly shows hill types that there's a lot more to copyright issues than can be captured in 2 page letters ranting about piracy. That said, the report is, intentionally, limited to economic perspectives. There's no discussion of the effects, for example, of labelling millions of children criminals, and very little about upsetting consumers' reasonable expectations about what they can do with media they possess.

Comments (1) + TrackBacks (0) | Category: Laws and Regulations

July 20, 2004

Judiciary Committee To Discuss Induce Act ThursdayEmail This EntryPrint This Article

Posted by Elizabeth Rader

The U.S. Senate Committee on the Judiciary will hold a hearing on Thursday at 2PM, on the INDUCE Act, which would place liability on those who induce or enable others to infringe copyrights.

Background on the bill here courtesy of Public Knowledge.

Comments (1) + TrackBacks (0) | Category: Laws and Regulations

July 16, 2004

Fair Use It Or Lose It - More Talking in the LibraryEmail This EntryPrint This Article

Posted by Elizabeth Rader

There's some interesting repartee going on in The Library, discussions between Siva Vaidhyanathan and Peter Hirtle of LibraryLaw Blog as to the scope of fair use with respect to nonfiction. Hirtle, applying the traditional fair use factors, explains how a reasonable librarian might conclude copying a whole chapter of a book for school-assigned reading is not fair use. Why not just put a statement in the front of the book giving permission for such uses? The terrible secret, Siva asserts, is that authors typically do not control their works. Publishers do, and publishers don't just apply copyright law but an imaginary, extreme copyright policy. They should be smarter and bolder, given that they are both owner and users of copyrights.

Comments (0) | Category: IP Use

Audible Magic Only Illusion of Security?Email This EntryPrint This Article

Posted by Elizabeth Rader

The debate on DRM technology Audible Magic's CopySense continues, with Ed Felten adding his thoughts to Chris Palmer's and Ernest's. Felten wonders if it isn't even possible to defeat CopySense without resorting to encryption. "It may turn out -- and I suspect it would, if independent experts were able to study Audible Magic's technology -- that copyrighted music files could be tweaked in a way that made them undetectable to Audible Magic's algorithms, while still sounding fine to typical human listeners." Ah, the hand is quicker than the eye.

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

eBay Quietly Tests Facilitating Sales of Digital DownloadsEmail This EntryPrint This Article

Posted by Elizabeth Rader

Look who's auctioning: My eyes popped this morning when I saw that eBay has announced that for 180 days it will allow sellers to offer digital downloads, through a new subcategory of its music section. This is one of these ideas that, once you hear it, you wonder why it wasn't done a long time ago. You can find nearly everything else on eBay, so why not? Seems that eBay has only considered digital music verboten for fear of being stuck in the middle of an infringement suit (like that recently filed by Tiffany's). The plan now is that sellers have to warrant that they own the copyright to the recordings being offered. This is in marked contrast to the policy with respect to cds, which are clearly covered by the first sale doctrine. I wonder if this is enough. My suspicion (though I have had many,many great experiences with eBay) is that some sellers will glibly drop in the required language without much concern about whether or not they own copyright. If that happens, I'd expect eBay to pull the plug faster than you can say "Buy it now."

Comments (4) + TrackBacks (0) | Category: IP Markets and Monopolies

Reading Between The LinesEmail This EntryPrint This Article

Posted by Elizabeth Rader

Ernest Miller has annotated the RIAA's letter to the senators supporting the INDUCE act. The letter's on the long side and the comments- some astute, some snarky, make it longer, so there's already an abridged annotated RIAA letter here. I'm still mulling over whether this kind of annotation is an effective form of argument.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

June 28, 2004

More on Barbie's battles...Email This EntryPrint This Article

Posted by Elizabeth Rader

Here's an article about the Mattel ruling in the New York Times today, quoting Jonathan Zittrain.

Comments (2) + TrackBacks (0) | Category: IP Abuse

Mattel Spanked for Bringing Objectively Meritless Suit Against ArtistEmail This EntryPrint This Article

Posted by Elizabeth Rader

From the Trademark Blog via Donna: U.S. District Judge Ronald S.W. Lew showed some backbone in Mattel v. Walking Mountain Productions, awarding the defendant $1,584,089 in attorney's fees and $241,797.09 in costs expended to defend Mattel's suit for copyright infringement (Barbie infringement, to be specific) on grounds of fair use and nominative use. The court found that Mattel's copyright claims were objectively unreasonable and Mattel's attorneys should have known better. As for motivation, "it appears Plaintiff forced Defendant into costly litigation to discourage him from using Barbie's image in his artwork." This is a just result, and I'm looking forward to citing this opinion, but how many artists accused of infringement by a large corporation can afford to incur close to $2 million in attorneys' fees to defend their rights, even if they have a chance of getting it back at the end of the suit?

Comments (1) + TrackBacks (0) | Category: IP Abuse

June 24, 2004

Ashcroft to Brewster Kahle: Get LostEmail This EntryPrint This Article

Posted by Elizabeth Rader

As expected, the Government has moved to dismiss Brewster Kahle and Prelinger Archive's suit challenging the term of copyright and pointing out its effect on our ability to access our culture. Download file. A briefing schedule and date for oral argument will likely be set at an upcoming case management conference.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

June 23, 2004

Government seeks Summary Judgment in Golan v. Ashcroft case challenging copyright restorationEmail This EntryPrint This Article

Posted by Elizabeth Rader

Pleased with its win in the D.C. District, the Government asks the District of Colorado to follow suit. More here.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

June 14, 2004

Lessig Legal Team Seeks Copyright Stories for Brewster Kahle v. John Ashcroft lawsuitEmail This EntryPrint This Article

Posted by Elizabeth Rader

Lawrence Lessig and his legal team are asking for your help. Kahle v. Ashcroft is a lawsuit that challenges changes to U.S. copyright law that have created a large class of "orphan works" -- creative works which are out of print and no longer commercially available, but which are still regulated by copyright.

The Kahle team is collecting examples of people being burdened by these copyright-related barriers to the use of orphan works. Visit the Kahle Submission Site and tell us your story.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

June 8, 2004

Statutory Copyright Damages- doing the mathEmail This EntryPrint This Article

Posted by Elizabeth Rader

The First Circuit has issued an opinion discussing how to calculate statutory damages for copyright infringement. Venegas Hernandez v. Sonolux Records. Nos. 03-2014, 03-2015 (First Circuit June 7, 2004). 17 USC Section 504(c) states that a copyright owner can elect to recover statutory damages "For all infringements involved in the action, with respect to one work, for which any infringer is liable individually." The issue is whether that means you multiply the amount of statutory damages by the number of plaintiff's copyrighted songs involved in the suit (here, two songs) or the number of infringing works for which the defendant is liable (here, sixteen infringing albums which each included at least one of the plaintiffs' songs). Answer- the number of infringed works.

...continue reading.

Comments (4) + TrackBacks (0) | Category: Laws and Regulations

June 3, 2004

Ms. Peters Tells Her Side of the StoryEmail This EntryPrint This Article

Posted by Elizabeth Rader

Posted over on my blog and on Joe Gratz's blog... you can find the testimony of MaryBeth Peters (PDF), Register of Copyrights, in an oversight hearing this morning before the House Judiciary's subcommittee on Courts, the Internet & IP. A slightly different view of the role of copyright in our society than you usually see here...

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

May 21, 2004

How Has Copyright Restoration Harmed You?Email This EntryPrint This Article

Posted by Elizabeth Rader

As promised, more big news in the Golan v. Ashcroft case challenging Congress's restoration of copyrights in certain works that were in the public domain. The task before us now is to gather and develop facts about how people used the works affected by copyright restoration before Congress passed the URAA and how they are harmed by the inability to use these works now. To help us collect these stories, we've launched a wiki-style tool. Check out this new site built by Aaron Swartz and please share your story (if you have one) and spread the word (as appropriate) to others so they can share theirs.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

May 20, 2004

Roll On, Golan (v. Ashcroft)Email This EntryPrint This Article

Posted by Elizabeth Rader

May 19, 2004: The Court held a case management conference in Golan v. Ashcroft, the suit challenging the constitutionality of Congress's "restoring" copyright to certain works in the public domain. Lawyers at the Center for Internet & Society and Edward Lee from Moritz College of Law at Ohio State University are handling the case. Having just lost its motion to dismiss, the Government tried to stay discovery pending its proposed motion for summary judgment (same motion, different name? Why not just call it a motion for reconsideration?) Our local counsel, Carolyn Fairless and Hugh Gottschalk of Wheeler Trigg & Kennedy, succeeded in convincing the Magistrate Judge that discovery should go forward. We are looking at trial in about one year. Look for more news soon about this case.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

May 12, 2004

Common Sense on Compilation Copyright- The Dorothy Parker CaseEmail This EntryPrint This Article

Posted by Elizabeth Rader

The Second Circuit this week issued a very interesting decision reversing a district court's summary judgment and injunction enforcing a copyright on a compilation of poems. In 1996, Stuart Silverstein published a book of Dorothy Parker's previously uncollected poems, claiming copyright in his compilation. In 1999, Penguin Putnam Inc. published Dorothy Parker: Complete Poems, which includes 3 previously published collections of Mrs. Parker's poems plus a section of all but one of the poems in Silverstein's compilation, in chronological order rather than in the order in which Silverstein had arranged them in his book. The lower court granted summary judgment for Silverstein and enjoined sales of Penguin's book. The Second Circuit reversed, holding that Silverstein's copyright in the mere selection of the poems in his compilation was too narrow to support an injunction against publication of the Penguin book.

...continue reading.

Comments (1) + TrackBacks (0) | Category: IP Use

April 19, 2004

Court Rules Yoga Nonprofit Has Standing for Declaratory Judgment suit against BikramEmail This EntryPrint This Article

Posted by Elizabeth Rader

We just received the Court's Opinion and Order denying Bikram Choudhury's motion for judgment on the pleadings or summary judgment in the suit brought by Open Source Yoga Unity. The Court found that "on balance, on July 9, 2003, OSYU did represent its members and did provide the means by which they could express their collective views and protect their collective interests." The Court found that OSYU's members had reasonable apprehension of suit or reason to believe their ability to practice and teach yoga might be taken away as a result of Bikram suing someone else and establishing precedent. The Court rejected Bikram's "unclean hands" argument and the argument that his hundreds of licensees are necessary parties. She was also unpersuaded by the argument in a footnote that copyright misuse is not cognizable as an affirmative claim. We'll get to make some law here.

Comments (0) + TrackBacks (0) | Category: IP Abuse

April 2, 2004

FCC Ya LaterEmail This EntryPrint This Article

Posted by Elizabeth Rader

The Ninth Circuit denied the FCC's motion for rehearing en banc of its decision in the Brand X case concerning open access to cable Internet systems. In this case the court, invoking stare decisis, ruled that Internet service is a telecommunications service, not merely an "information service." Good news for consumers.

Comments (0) | Category: Laws and Regulations

March 30, 2004

Your Permanent RecordEmail This EntryPrint This Article

Posted by Elizabeth Rader

A trendy topic of late seems to be that with the improvements in search technology and the increasing prevalence of message boards, blogs and other ways to express yourself on the Net, people will increasingly be able to find out what you've written and done in the past. Even law firms have apparently begun to take an interest in their employees' or candidates' online acts.

My first reaction is one I have over and over in Internet law... firms--did you really think your employees never talk about the firm and its goings-on? Did you really think your candidates had no opinions other than those they glibly recited in their interviews and fancy lunches? Lawyers--did you really think the firm would never check your background? Did you really think the firm wouldn't notice if you're writing about it? My second reaction is also typical: Firm--get a thicker skin. Lawyers---own up to your past and, today, if you're ashamed for someone to read what you're saying, why are you saying it in the first place? I know there are important reasons for anonymity, but I also think far too many people use "privacy" as an excuse to just avoid standing up for what they believe, or to get away with things they know are criminal, embarrassing or just plain icky.

...continue reading.

Comments (1) | Category: Privacy

March 16, 2004

District Court Rules In Golan v. AshcroftEmail This EntryPrint This Article

Posted by Elizabeth Rader

District Judge Lewis T. Babcock granted in part and denied in part the Government's Motion to Dismiss. Here's the opinion. The Court dismissed Count IV, challenging the Sonny Bono Copyright Term Extension Act, holding that the Supreme Court's decision in Eldred rejected the theory pleaded in the Amended Complaint, based on Justice Breyer's dissent. (We beg to differ). The Court refused to dismiss any of the Counts challenging Copyright Restoration under the Uruguay Round Agreement Act. Count I alleges that the URAA violates the Copyright Clause of the Constitution because Congress attempted to grant copyright in works that were already in the public domain. Count II alleges that the URAA infringes the public's first amendment rights. Count III alleges that violates Plaintiffs' rights to substantive due process by unfairly depriving them of property without due process of law. The Court found that none of these issues was decided in Eldred and seemed to find the Government's arguments unpersuasive.
More on Lessig's blog and a press release from the Center for Internet & Society to come soon.

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