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.
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.
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.
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.
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.
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."
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.
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?
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.
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 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.
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...
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.
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.
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.
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.
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.
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.
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.