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IP Abuse

November 22, 2004

Perfect 10 Sues GoogleEmail This EntryPrint This Article

Last we heard from Perfect 10, the porn purveyer failed miserably in its Induce Act-like attempt to hold credit card companies liable when people use the cards to purchase access to purloined Perfect 10 pics.

Andrew Bridges, a partner in the firm representing MasterCard, observed that the company's attempt to apply the Napster decision to the case shows how law made in extreme cases -- e.g., to fight peer-to-peer file sharing -- can later be applied in different scenarios (*cough* Induce).

"A lot of copyright [litigation] is being pushed by pornographers who are trying to take advantage of cases brought by more mainstream media," Bridges said.

Now Perfect 10 is at it again, this time filing a filing a complaint (PDF) against a company that it presumably hopes will be an easier target: Google.

Writes John Palfrey:

What's intriguing about Perfect 10's claims, and I suspect their best shot at differentiating their claims from previous assaults on search engines, is the way they're trying to hook nearly the entire set of claims on (in a general sense) the notion that Google gets adwords revenue thanks to the porn company's content that's been copied and distributed on "stolen content websites" who in turn pay Google (so one would presume from the complaint, anyway) for click-throughs -- see paragraphs 27 - 34, then claims 2 (contributory infringement of copyright) and 3 (vicarious infringement of copyright) and the subsequent trademark, unfair competition, and right of publicity claims.

In short, Perfect 10 says: Google is profiting -- a lot -- from the bad acts of others and they should stop doing it and pay us for what they've done.


Reading it in the wake of the Jeff Jarvis interview I linked to below, I can't help but imagine how he might respond: "If 'bad actors' can profit this handsomely from the 'distribution' of copyrighted works via P2P or search, why can't we find a way for the 'good actors' -- the copyright holders -- to profit just as much?"

Later (1:20 p.m.): Wendy Seltzer @ Legal Tags: "Perfect 10's complaint doesn't look so strong, but its basic arguments are recurring ones in the online debates: that IP owners should be able to deputize intermediaries as their copyright, TM, etc. cops. (It's no coincidence that Perfect 10's lawyers include Russ Frackman, counsel to the record labels in MGM v. Grokster.) Sure, holding everyone in the chain liable might help stop infringements, but it would also kill search engines, whose value comes from helping users to find whatever they're looking for, if it exists on the Web."

November 21, 2004

Fair Use -- for $350Email This EntryPrint This Article

Planet Simpson:

I paid $350 (in US funds) to use a handful of quotes from Radiohead songs in my book. [...] I was not required to fork over a single dime to quote from The Simpsons itself, nor to quote at length from Tony Hendra's excellent book Going Too Far, nor to quote from Foucault or Mark Twain or David Foster Wallace. But to use 87 words from the collected lyrics of Radiohead? Three hundred and fifty simoleons. Roughly $4.02 per word. (Which, incidentally, is more than double the highest amount I've ever been paid per word to write for a magazine or newspaper.)

November 17, 2004

On the Birth of TiVo-tisingEmail This EntryPrint This Article

Alan Wexelblat @ Blogbook IP:

Copyfight, among others, has been tracking the varied zigs and zags of TiVO as that company tries to navigate the shark-infested waters of modern electronics. OK, those are [Copyright] Cartel lawyers, not sharks, but who can tell the difference?

Now it appears that TiVo has sold out entirely, but not to the Cartel. Instead, they've climbed into bed with a coalition of 30 big advertisers to implement a "feature" (and I use that word advisedly) that takes away your ability to skip ads. Instead of a simple forward jump, you get to have your commercials overlaid with... wait for it... commercials. But they're TiVo's commercials. Soooo much better.

According to the LA Times story linked above, these "tiverts" as I think I'll call them will pop up during fast-forwards, offering contest entries, giveaways or links to other ads. And of course, this is accompanied by a vast giveaway (well, technically it's probably a sale) of your personal information to the advertisers.

Even if you don't participate in this effort to get you to mainline commercialism, you'll still be part of an intensive "market research" effort in which TiVo will examine your viewing habits on a second-by-second basis (no, I'm not making that up) and then sell THAT data.

"The message we really want to get across," says Davina Kent, TiVo's advertising and research sales manager, "is that we now have a dedicated road map for advertising." It's completely unclear to me whether they have a dedicated roadmap for customer satisfaction.

Another must-read post, on the off-chance you haven't seen it yet: TiVo Sells Your Fast-Forward Button to Advertisers [Cory Doctorow @ BoingBoing].

November 09, 2004

RIAA bloodlust not satisfied with 12-year-old Brianna, sues 10-year-old downloaderEmail This EntryPrint This Article

via the Miami Herald:

When he bought his 10-year-old a computer, Antonio Morrell was just trying to help the boy get ahead in school. Now the Miami construction worker is being sued by the music industry, which has brought its battle against Internet piracy to South Florida for the first time.

More than a dozen record companies have sued 30 South Florida residents, accusing them of illegally downloading music and making it available for others to copy.

Some of those named in the lawsuits told The Herald the record companies have offered to settle for about $4,000 each.

Morrell said he never downloaded any songs. Yet he's named in a lawsuit, he said, because his son, Alessandro -- who was 10 when his father bought him a computer two years ago -- downloaded about 1,000 songs and opened the door for others to copy them.

''I don't see how I could be paying somebody $4,000 for something I didn't do,'' Morrell said. ``I bought the computer for schoolwork. I'm sure he didn't know he was doing anything illegal.''

Morrell said he separated from his wife over a year ago and wasn't around to monitor his son's computer activity.

November 08, 2004

Mitchell v. Project Gutenberg .au: Lawyer Surprised by Effect of C&DEmail This EntryPrint This Article

The NYT reports on the current state of the dispute between Project Gutenberg .au and the estate of Margaret Mitchell over posting of Gone With the Wind. Post CTEA, that work is still under copyright in the U.S. but public domain in Australia.

The NYT gets comment from a lawyer for the Mitchell estate -- who's surprised that his cease-and-desist demands had the effect of taking the work offline in Australia. It's not clear what else he expected:

On behalf of the Trusts, we hereby demand that Project Gutenberg and/or PGA confirm to us within five (5) days of receipt of this letter that you have removed GWTW from the Web Site entirely or that you have taken all necessary steps to prevent the downloading of GWTW in all places in which it is protected by copyright.

Given that geolocation doesn't work and legal advice isn't instantaneous or free, for the most part, what did he expect? If it was just to give a scare, that's the kind of chill we don't need more of.

November 01, 2004

Krispy Kreme goes after 36-year-old ice cream stand for TM infringementEmail This EntryPrint This Article

Another classic case of overly-aggressive IP lawyers:

Channel 6 News asked people Friday when you hear Krispy Kreme, what do you think of?

"Good donuts." "Donuts." "Donuts." "An Ice Cream Cone."

Ice cream cone? Yes. That's what Krispy Kream Drive In on Route 422 in Cambria County sells. The current owners have been in Belsano since 1968.

Christina Hoover owns the Ice Cream shop with her husband. She tells Channel 6 News, "We're an ice cream fast food stand. It's a drive in."

And business is good. Then in the past month two letters from Krispy Kreme donuts. The corporation is not happy with them. But it's not about donuts and ice cream. The problem has to do with the name. Krispy Kreme donuts wants Krispy Kream Drive In to change theirs.

Amy Hughes is the Communications Director for Krispy Kreme. She tells Channel 6 News, "Unfortunately this business is violating a federal regulation trademark that we've had since 1951. And we've respectfully requested that they cease doing so within a reasonable amount of time."

Krispy Kreme couldn't be more wrong. Sure, it may have been using the name in connection with donuts since 1951, but ice cream and donuts are two different kinds of products. No one thinks the KK donut chain sells ice cream cones.

What Krispy Kreme is really arguing is dilution of their "famous" brand. Since going IPO a few years ago, Krispy Kremes have popped up everywhere across the county, from SBC Park in SF to the Excaliber in Las Vegas. So yes, within the last few years, one could argue that they are a "famous" tradermark like McDonalds or Kodak and should be protected from dilution (e.g. someone selling McDonalds backpacks or Kodak bicycles). The problem with this argument is that you can only sue someone for diluting a famous mark after its become famous. Since the Hoovers' ice cream stand has had the name "Krispy Kream" since 1968, they are quite safe from a dilution attack.

October 27, 2004

I'm Mad As Hell, and I'm Not Going to Pay For It AnymoreEmail This EntryPrint This Article

Cory responds below to a Copyfight reader who suggests that the way to avoid being asked to pay for a particular product again and again simply to enjoy traditional "me2me" time- and space-shifting "privileges" (à la HBO ) is to refuse to purchase the product altogether. Needless to say, Cory disagrees:

That's a cool personal moral code, but it's not the one I adopt. Copyright is a limited monopoly given on our behalf to creators. What a creator can and can't demand of you is spelled out by lawmakers, who balance the cost to us of having monopolies in the market with the benefit of creating incentives to produce work we can enjoy.

When a creator conditions use or access of his work beyond the scope of copyright (you must stand on your head, you must not make a backup, you may not sell this on), it's not a fair market in creativity that can be corrected by directing a purchase in the right direction: it's an abuse of a regulatory monopoly that picks my pocket to line a right-holder's.

Monopolies aren't subject to market forces: that's why we have trust-busters. I think that buying from the ethical railway barons would not have caused the monopolistic railway barons to act better. We needed to go in with a fireaxe and bust their trust. I don't think that buying from ethical artists will get the big companies to act better either. Regulation -- the creation and maintenance of copyright -- created this mess, and only regulation -- changes to copyright -- will solve it, IMO.

October 19, 2004

Copyright Takedown Experiment Reveals Horrible ISP PoliciesEmail This EntryPrint This Article

Doom9 sez:

Dutch civil rights organization Bits of Freedom has run an interesting experiment: They put up a text by a famous Dutch author, written in 1871 to accounts with 10 different ISPs. Then they made up an imaginary society that is supposed to be the copyright holder of the author in question, and sent copyright infringement takedown notices to those 10 ISP via email (using a Hotmail account). 7 out of 10 ISPs took down the material, sometimes within hours and without even informing the account holder. One ISP doubted the legitimacy of the claim and asked for some proof that the alleged plaintiff was in fact the copyright holder. Yet another ISP actually realized that copyright had long since run out on the work. That's real scary, don't you think? Made up society, Hotmail addresses and a website is gone.

BOF's paper is available here (PDF)

October 18, 2004

HBO freezes fair use; plugs analog holeEmail This EntryPrint This Article

Going on a trip and want to take the latest episode of The Sopranos with you? Forgetaboutit. Coming this June to a cable or satellite set top box near you, HBO will be locking down all fair use rights on their content -- whether analog or digital. You can make one copy of regular HBO content and no copies of On-Demand content:

Commencing in June, HBO will include a technology in its program services that provides copyright protection information to consumer electronic equipment connected to analog outputs of cable and satellite set-top boxes. The technology (CGMS-A -- Content Generation Management System for Analog) enables compliant digital recording devices to abide by federal digital encoding rules.

In accordance with the federal encoding rules, HBO and Cinemax subscribers will still be able to make a single copy of HBO and Cinemax linear programming, but will not be able to make any copies of HBO-On-Demand or Cinemax-On-Demand programming.

Continue reading "HBO freezes fair use; plugs analog hole"

October 15, 2004

Disney Caught Pirating from Public Domain -- and Children!Email This EntryPrint This Article

When will Disney stop stealing from the public domain? I mean really, it's just like taking a CD from a record store without paying for it... except that the record store owner is dead... and well, the store is really the compendium of human knowledge.. and the CD is part of our collective cultural history. Whatever. Theft is Theft, right?

LONDON, England (CNN) -- An unlikely feud is seeing the film empire that built its name on cartoons for children -- the giant Disney corporation -- at odds with Britain's most famous hospital for sick children.

And it is all over another legendary children's favorite -- Peter Pan, the boy who never grew up.

In what the New York Post billed this week as "Sick kids vs. Disney in Peter Pan dust up," Great Ormond Street hospital for children in London is consulting lawyers over a book published by a Disney subsidiary in the United States.

"Peter and the Starcatchers" by Dave Barry and Ridley Pearson and published by Disney's Hyperion Books is billed as a prequel to the children's classic, "Peter Pan."

Great Ormond Street was left the royalties to Peter Pan in 1929 by the author, J.M. Barrie -- and million of pounds earned from copyright fees have gone towards treating sick children in Britain ever since.

This weekend sees the UK premiere of a film about Barrie's life, "Finding Neverland" -- starring Johnny Depp, Kate Winslet and Dustin Hoffman. The hospital will receive royalties from book excerpts portrayed in the film.

But the hospital charity says is getting nothing from "Peter and the Starcatchers" -- which has been on the New York Times best seller lists, has had an extensive author tour and has its own Web site. They say the book has been published without its permission.

A spokesman for the hospital told CNN that Great Ormond Street held the copyright to Peter Pan in the United States until 2023 -- although it runs out in EU countries in 2007 -- and said: "We are considering our options."

Disney, meanwhile, has insisted that Peter Pan is out of copyright in the United States.

"The copyright to the J.M. Barrie stories expired in the U.S. prior to 1998, the effective date of the U.S. Copyright Extension Act, and thus were ineligible for any extension of their term," Disney said in a statement to the Daily Telegraph.

October 14, 2004

Senator McCain shows spine on IP; defends controlling your own TV/DVREmail This EntryPrint This Article



OCTOBER 11, 2004


• Mr. President, I wish to briefly remark on H.R. 2391 and H.R. 4077, a package of bills referred to as the “Intellectual Property Protection Act of 2004.” I have objected to the further consideration or passage of these bills by unanimous consent.

• From the text of the bills that have been available to date for Senators to review, I believe that one part of this broad legislation, the Family Movie Act, may actually harm consumers while appearing to help them. To be clear, I support the stated goal of the Act’s authors: immunizing from legal challenges a technology that enables parents to skip offensive material from prerecorded copies of films and television. While I applaud the merits of their stated intent, I fear that the very exemption designed to achieve this laudable goal simultaneously creates an implication that certain basic practices that consumers have enjoyed for years -- like fast-forwarding through advertisements -- would constitute criminal copyright infringement. I note that Consumers Union and Public Knowledge, as well as a host of others parties interested in protecting consumers, share my concerns.

• Americans have been recording TV shows and fast-forwarding through commercials for more than thirty years. Do we really expect to throw people in jail in 2004 for behavior they've been engaged in for more than a quarter century?

• I look forward to working with my colleagues in this chamber to address not only these concerns, but also the uncertain liability created for manufacturers that bring other innovative and pro-family products to market in the face of continual threats of extinction from powerful interests who seek to thwart their entry.

• Mr. President, for these reasons, I do not intend to remove my hold on these bills until I am satisfied that consumer interests have been protected in this legislation.

Olsen Twins take a page from Arnold's playbook; threaten t-shirt makerEmail This EntryPrint This Article

IPnewsblog notes:

The Olsen twins are threatening legal action against a California design company unless it ceases the production and sale of a popular t-shirt featuring a drawing of Mary-Kate and the words underneath "save mary-kate." The t-shirt is pictured on the link and was produced after Mary-Kate Olsen, 18, entered a facility in June 2004 for treatment of an alleged eating disorder. The letter sent was sent from the Olsen twins' attorneys to the company, contending that the t-shirt violates the Olsens' publicity, privacy, and trademark rights.

Reminds me of Arnold's threats over the Governator Bobblehead doll.

October 12, 2004

FvL on Grokster Cert PetitionEmail This EntryPrint This Article

As I noted on The Importance Of..., the MPAA and RIAA have filed a petition for a writ of certiorari with regard to the MGM v. Grokster decision (MPAA/RIAA Files Petition for Cert in Grokster Case). Over on Deeplinks, Fred von Lohmann explains some of the reasons why granting cert would not be a good idea (Big Media Attacks Betamax in Court):

Often described as the Magna Carta of the technology industry, the Betamax doctrine makes it clear that innovators need not fear ruinous litigation from the entertainment industry so long as their inventions are "merely capable of substantial noninfringing uses." In today's petition, the entertainment industry urges the Court to reverse that established rule and impose on innovators a "legal duty either to have designed their services differently to prevent infringing uses, or to take reasonable steps going forward to do so." Of course, on that view, Sony's Betamax VCR would never have seen the light of day, since Sony could have designed it differently (in fact, the movie studios suggested back in 1978 that Sony implement a "broadcast flag" system!) or modified it after Disney complained.
I certainly hope that the Supreme Court recognizes that courts aren't the best place to decide what innovation is permissible and what innovation is not and declines the cert petition.

October 08, 2004

New Patent-Battle Hotspot: WiFiEmail This EntryPrint This Article

Acacia is claiming patent rights to "the methods wireless ISPs, WLAN aggregators and other Wi-Fi networks use to redirect users to a common login web page," e.g., the technology behind gateway page redirection. And that Wi-Fi hotspot operators must pay the company $1,000 a year or face a lawsuit.

Says Acacia executive VP of "business development"/general cousel Robert Berman: "Anybody who operates a hotspot with redirection can assume they'll hear from us."

Surprised much? I didn't think so.

BusinessWeek: Are the Copyright Wars Chilling Innovation?Email This EntryPrint This Article

Interesting Commentary in BusinessWeek on the follies of the RIAA's war on innovation:

Today's turmoil over copyrights contains a disturbing new twist, however. Digital technology -- from MP3 players to software that makes it easy to build Web pages -- shatters almost all of the technical barriers to duplicating and sharing copyrighted works. That has caused unparalleled anxiety among copyright holders. As a result, music and movie companies have adopted a strategy of targeting digital technology itself as well as those who design it and those who use it.

In time this could threaten the delicate balance between copy protection and technical innovation. The intent of copyright law in the U.S. is to promote learning and innovation while giving artists, musicians, and writers a limited monopoly on their work. The goal isn't to assure that artists or intellectuals make oodles of cash.

October 06, 2004

CNN Abusing DMCA Takedown?Email This EntryPrint This Article

Glenn Reynolds: "More Crushing of Dissent: Following in the footsteps of the New York Times, CNN has filed a DMCA complaint trying to shut down the National Debate over its CNN parody.

CNN should be ashamed. And perhaps they should read this."

The MPAA, meanwhile, sounds not the slightest bit embarrassed or regretful about having misfired at Linux Australia, brushing off the suggestion that it could be prosecuted under spam laws and boasting that "99.9999 percent of individuals who get them are infringing on the works and they certainly not soliciting a notice of infringement from us or their ISP."

October 05, 2004

Copyright v. DemocracyEmail This EntryPrint This Article

My former boss at the Berkman Center, the thoughtful, energetic and inspiring John Palfrey, explains what the Diebold case teaches: "In the Federalist Papers, James Madison wrote of the Congress' copyright authority that 'The utility of this power will scarcely be questioned.' But the scope of the power must be questioned, just as the students did. Copyright abuse can cost society dearly, especially when issues core to the functioning of our democracy are at stake."

October 04, 2004

Oregon's (Donald) DuckEmail This EntryPrint This Article

Oregon_Ducks_2.gifAn interesting story about a Disney character's use as a university mascot (Donald endures in hearts of Duck fans). It was a simpler time:

The university has had a web-footed mascot since at least the 1920s, when a live duck named Puddles surfaced at football and basketball games. A duck emblem was in use by 1933, and by 1936 it was starting to look more like Donald, catching the attention of Disney officials.

In 1947, Oregon Athletic Director Leo Harris shook hands with Walt Disney himself on an agreement to allow Oregon to use Donald as the mascot. The deal was put in writing in 1974 in a licensing agreement giving the university limited use of Donald at athletic venues.

Wow. A good-natured handshake agreement for almost thirty years.

Of course, such things could not be allowed to continue:

In 1991, the agreement was expanded to allow wider use of the likeness on sweatshirts, glassware and other merchandise.

The frenzied "charging duck" pumping his fists inside a large, eight-sided letter 'O' was a ubiquitous campus logo for years. It was eventually replaced as the UO marketing machine grew and felt confined by Disney's restrictive contract, which forbids the school from selling items with the Donald Duck logo beyond the Oregon border.

Although Donald is much beloved by Oregon fans, a stylized "O" will have to do for out-of-staters.

Ah well.

October 03, 2004

Click Here to Allow Unlawful Restraint of TradeEmail This EntryPrint This Article

John T. Mitchell, who writes beautifully about the damage that code + law (PDF) can do to the public's side of the copyright bargain, has a short-but-powerful response to the BNetD decision (PDF) over @ Freedom-to-Tinker:

When a copyright owner uses the copyright monopoly as leverage to extract an enlargement of its rights even further by conditioning the license upon a waiver of rights granted by law, it thumbs its nose at Congress and enters an agreement in restraint of trade.

In effect, Judge Shaw has ruled that none of the limitations Congress placed upon copyrights (Sections 107-122) are worth the paper they are written on if the copyright owner can get the public to agree to give them up as payment for access to the works.

A travesty, and one that must be appealed.

Speaking of limitations on copyright, Derek Slater brings news that fellow Berkman-ite Dotan Oliar has written a new paper (PDF) on the roots of the Copyright Clause, revealing that (surprise) "promote the progress of science and useful arts" does indeed represent a limit to Congress's power to grant intellectual property rights. Which means, of course, that the courts ought to enforce this limitation. According to Dotan, this requires that we develop a "concept of progress for the Clause" -- and he explores several ways that the courts could do so.

Sounds fascinating. Thanks, Derek.

September 30, 2004

Free Speech Vindicated in OPG v. DieboldEmail This EntryPrint This Article

In a victory for free speech and transparency in electronic voting debates, Judge Jeremy Fogel has ruled that Diebold should pay damages and attorneys' fees for its knowing misuse of the DMCA's takedown provisions. Decision here.

No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were proteced by copyright.
The fact that Diebold never actually brought suit against any alleged infringer suggests strongly that Diebold sought to use the DMCA’s safe harbor provisions—which were designed to protect ISPs, not copyright holders—as a sword to suppress publication of embarrassing content rather than as a shield to protect its intellectual property.

Last October, Diebold threatened dozens of ISPs with lawsuits if they allowed users to post or link to a Diebold email archive documenting flaws in the company's e-voting technology. Online Policy Group, IndyMedia, and two Swarthmore students, Nelson Pavlosky and Luke Smith, didn't want to cave in, so EFF and the Stanford Cyberlaw Clinic sued Diebold on their behalf instead.

Today, that action was vindicated. Judge Fogel ruled that "there is no genuine issue of material fact that Diebold, through its use of the DMCA, sought to and did in fact suppress publication of content that is not subject to copyright protection." He further held that sending claims of copyright infringement to ISPs when their users are not infringing violates the DMCA's Section 512(f) prohibition on "knowingly materially misrepresent[ing]" infringement. Because Diebold "actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations," it was liable to the OPG and Swarthmore student plaintiffs under 512(f).

Along with opening up the e-voting archives, I hope this decision will give new strength and new weapons to other online speakers and ISPs against the chill of aggressive, improper copyright claims.

September 29, 2004

God and MGM at StanfordEmail This EntryPrint This Article

Stanford's ominously-named "Information Security" wrote:

If you believe [the DMCA infringement] notice is mistaken, you have the right to provide a counter-notice. For information on what your rights are, see Section 512 of the Copyright Act. It is available at http://www.law.cornell.edu/uscode/17/512.html.

That code makes it clear that counter-notices are only relevant for "material ... that is removed, or to which access is disabled by the service provider". That is obviously not the case when one is simply notified of an allegation of infringement, so the counter-notice provision seems inapplicable.

Stanford respects the proprietary interests, including copyrights, others have in their original works, and expects the same of its faculty, employees, students and affiliates.

Does it? Stanford orgnized and publicized an orientation-week event ("Frosted Flicks") at which a "digital collage" combining a number of movie trailers and a song was shown. Did Stanford receive permission from each of the movie studios and production companies and record labels involved?

Stanford's CourseWare website provides supplemental material for class, including scanned versions of copyrighted books, thus distributing them to hundreds of students. Stanford is clearly aware of this since before one can download the work one must agree to a notice about copyrights. Did Stanford get permission from the authors and publishing companies involved?

It appears some Stanford dorms have televisions in the lobby which show pay networks like HBO, in front of which large groups congregate. Has Stanford gotten permission for such performances?

If, however, a user subsequently receives a second notice, his or her connection is immediately disabled and the user is merely copied on the Disconnect Request.

This seems like an unreasonable and unfair punishment, considering that a DMCA request contains no actual evidence of infringement and there are no sanctions for filing a false one. It is not hard to imagine this power being abused. But Stanford provides no checks on this power; indeed, it amplifies it by quickly disconnecting the user's Internet connection. What purpose does this serve?

You have no legal liability; you are protected by the DMCA. True, the DMCA does require you take some steps to stop repeat offenders, but it does not require such draconian tactics, merely the enforcement of "a policy that provides for the termination in appropriate circumstances of subscribers ... who are repeat infringers".

I thought Stanford wanted to inspire learning and creativity. As your own law professor Lawrence Lessig notes "creativity always builds on the past". Such a draconian "two complaints and you're out" policy hardly seems conducive to encouraging creativity.

September 20, 2004

Cutting Patent Claims Back Down to SizeEmail This EntryPrint This Article

This just in: Consumers Union, Public Knowledge and EFF are working another angle in the fight against over-broad patents: asking (PDF) the courts to take a narrow view of patent claims. Literally.

The case is Phillips v. AWH Corporation, in which a key issue is, interestingly enough, interpretation of the word "baffle" (the physical kind, not the mental one). The appeals court made a specific request for industry and public opinions on interpreting claims. According to the counsel-of-record for the brief, Joshua Sarnoff, this could be the most important patent case ever decided. "Claim meaning is the name of the game in patent law," says Sarnoff. "[The] Federal Circuit has the chance to lay down clear rules to determine claim meaning that will benefit society."

The joint amicus brief (PDF) takes aim at earlier panel decisions finding that patent claims are valid if they are not "insolubly ambiguous." Amici argue that this invites judges to impose a meaning on ambiguous claims, when they should instead reject them outright.

Later: The Foundation for a Free Information Infrastructure (FFII) tells The Register that even narrow interpretation can't rescue software patents from the land of bad ideas: [Our] concern is that this kind of thing could give the impression that we only need to worry about bad patents, that if only patents were awarded according to the rules, properly examined and checked for prior art, everything would be OK. We don't believe that to be the case. We believe, more fundamentally, that the whole nature of patents on computer code is a mistake."

Linux Australia "Shot in the Dark" by MPAAEmail This EntryPrint This Article

One topic of discussion this weekend at the EFF staff and board retreat was what Wendy calls the "Attack of the Subpoena-bots" -- that is, the trend toward automatic weapons-style litigation campaigns. This is when companies or industry groups like the RIAA and MPAA use key-word searches and the like to target possible infringers before firing off round after round of seemingly indiscriminate cease-and-desist letters. The problem with this is that even if the recipient is 100 percent innocent, he or she may have no idea of how to respond to the intimidating legalese/exhorbitant demands in these letters. Rather than risk doing the wrong thing, and eager to avoid the expense of an attorney, the recipient frequently decides to give up rather than to fight -- leading to the widespread chill of perfectly legitimate activities.

Fortunately for the Internet community, every once in a while a stray round hits the wrong guy -- someone not only willing but eager to fight back. Which is evidently what happened when the MPAA recently sent cease-and-desist notices to Linux Australia for providing access to two copyrighted movies: "Grind" and "Twisted." Except that what Linux Australia actually did was provide access to a download of the Twisted framework written in Python, and Valgrind, a tool for developers to locate memory management.

Needless to say, Linux Australia was not amused. And as luck would have it, the group has the legal chops and resources to do something about it:

"This seems to be a huge misuse of resources, an infringement upon various global spam laws, an infringement upon our own Copyright Act under Section 102 and needless stress and cost upon small Australian organizations and companies," [Linux Australia President Pia] Smith said.


"Linux Australia is concerned that this kind of shoot-in-the-dark approach to copyright protection is potentially damaging for Australian organizations and companies," Smith added. "Organizations that participate in such behavior should be held accountable, and forced to put at least some effort into researching the validity of their keyword searches."

Here in the states we're waiting for a ruling to come down that may provide additional protection for those inappropriately targeted by infringement claims: the decision in OPG v. Diebold. As Wendy notes in a recent OJR article, there's a seldom-used section of the Digital Millennium Copyright Act (DMCA) aimed at stopping misuse: 512(f), which provides that anyone who knowingly misrepresents material as infringing "shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer."

[Section 512f] allows one who has been hit with a purposely abusive demand letter to reply, "Not only am I not in the wrong, but you don't have the right to say I am," says Seltzer.

What I'm wondering is what the court will require to prove that Diebold knowingly abused the DMCA to silence its critics -- and how that might compare to what it takes to prove that someone has knowingly violated copyright law.

September 10, 2004

Updating the Copyright ClauseEmail This EntryPrint This Article

Walt Crawford of the excellent Cites & Insights has a new piece over @ EContent in which he updates the Constitution's copyright clause to reflect today's unfortunate reality:

Original: "The Congress shall have power...To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries."

Crawford's update: "Members of the MPAA, RIAA, and AAP shall have the right to control technological change in order to enforce perpetual rights to creative works. Congress shall ensure that the corporate right to control over and payment for every use of those creations takes precedence over outmoded notions such as freedom of speech, fair use, and the first purchase doctrine."

Nice. Or rather, not so.

Crawford notes that he's been writing a lot about copyright in Cites & Insights, and adds that there's no shortage of other sources on the Web -- but "no matter where you look you'd best be paying attention to the evolution of copyright as it hits closer and closer to rights you may have taken for granted." Spot on.

September 07, 2004

RIAA Lobbyist: DRM 'up or INDUCE is gonna getchaEmail This EntryPrint This Article

On the heels of Fritz Attaway's antagonistic comments about P2P the other week, there was an interesting Q&A in CNET last week with Mitch Glazier, head DC lobbyist for the RIAA. I found this exchange particularly illuminating:

There has been speculation that the original Induce Act could make Apple Computer liable for selling like the iPod. Could it?


Why not?

The original Induce Act focused on the totality of the circumstances. There's no way that a company that produces great digital rights management for a licensed product is ever going to be shown to want to profit from piracy.

In other words, the RIAA intends to use INDUCE as leverage to pressure companies into incorporating DRM. If you incorporate "great digital rights management for a licensed product", they won't sue. Leave out the DRM, however, and well.. you enter the marketplace at your own risk.

Also, it appears that Mitch is confusing his Apple products. Apple's iTunes Music Store does put DRM on each of its songs, but the iPod can handle an unlimited number of DRM-free MP3 files without any restrictions. Apple could have designed the iPod to only handle DRM-protected content, but it didn't. Does the fact that it enforces DRM rules for some songs but not for others still mean it can't INDUCE?

Continue reading "RIAA Lobbyist: DRM 'up or INDUCE is gonna getcha"

August 24, 2004

Judge Posner: Misuse Remedies for Copyright's ChillEmail This EntryPrint This Article

Judge Posner, over at the Lessig blog, describes

a very worrisome problem concerning fair use. It has to do with a dichotomy long noted by legal thinkers between the law on the books and the law in action. They often diverge. And fair use is an example of this divergence. As I said in an earlier posting, fair use often benefits rather than harms the copyright holder. However, it doesn’t always; moreover, even if a copyright holder is not going to lose, and is even going to gain, sales from a degree of unlicensed copying, if he thinks he can extract a license fee, he’ll want to claim that the copying is not fair use; and finally, because the doctrine has vague contours, copyright owners are inclined to interpret it very narrowly, lest it expand by increments.

The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright’s breadth.

We at EFF and Chilling Effects have seen these copyright overreachings frequently too. Sometimes, though, we find a little guy who doesn't want to cave in the face of threats, doesn't want to remove the web posting or excise the portion claimed to "infringe," but wants to fight for his fair use and First Amendment rights.

In the case of OPG v. Diebold, when Diebold claimed that copyright in internal emails entitled it to demand that ISPs remove criticism of Diebold e-voting machines, we took OPG's case and sued Diebold for copyright misuse and DMCA misuse. The way misuse works, if you assert more copyright than the law gives you, you're barred from enforcing any copyright in the work until you stop overreaching. Like the owner of the golden-egg-laying goose, if you ask for too much, you get nothing at all.

Judge Posner recommends the doctrine of copyright misuse too -- and as a judge, he doesn't just blog about solutions, but suggested this one in his WIREdata opinion. Let's hope that more courts, and more lawyers for the little guys, can use this doctrine to keep copyright overreaching in check.

August 23, 2004

SP2 Bandwidth Suck Leads Colleges to Block MSFT UpdatesEmail This EntryPrint This Article

From the oops-maybe-we-shouldn't-have-shut-down-SP2Torrent.com dep't, the Washington Post is carrying a story (Windows Upgrade Causing Campus Headaches) about numerous universities actively blocking SP2 updates because, among other things, they take up too much bandwidth to download directly from the Microsoft site:

Worried that the upgrade could conflict with other applications running on university networks, and a related concern that thousands of students attempting to download the software could bring campus computer networks to a standstill, technology administrators at some universities have taken steps to block an automatic service that downloads the software.


"Our primary concern is the impact this will have on our network and the length of time it would take to get from Microsoft directly," said Damon Palyka, a computer security technician at the school.

August 09, 2004

Ok/Cancel: The sunk costs of innovation vs. litigationEmail This EntryPrint This Article

Ok/Cancel is a great blog/webtoon about HCI and UI issues. This week, they hit the nail on the head about how web companies overreact to actual competition in their space -- with threats of litigation vs. inspiration to innovate and actually beat out others in the marketplace.

August 04, 2004

There's One Born Every MinuteEmail This EntryPrint This Article

Teleread reports on public domain price gouging (Public domain classics priced to make Jack Valenti smile). Apparently, eReader.com will provide you 250 public domain ebooks for the low, low, low price of $995. Act now and for $1,495 you can get 500 titles (aka the "Gold" edition)! Purchase the Educational Classics Collection CD now! Operators are standing by:

In a move designed to give schools an affordable way to use eBook technology, eReader.com and Lightning Source Inc. developed The Classics Collection CD, a comprehensive collection of 500 titles that includes "The Red Badge of Courage," by Stephen Crane, "Little Women," by Louisa May Alcott, "Night and Day," by Virginia Woolf, the works of William Shakespeare, and other books commonly found on middle and high school reading lists.

This collection provides schools with a cost-effective way to easily distribute eBooks to students. The eBooks cannot be lost, stolen, or damaged, and the license entitles the school to internally distribute as many copies of the eBooks as it wants, as many times as it wants.

Or, you could download the works via Project Gutenberg for free or, for a very modest fee, get a CD from Blackmask Online.

And don't forget to proof a page or two, okay?

August 03, 2004

Bobblehead Manufacturer Settles with SchwarzeneggerEmail This EntryPrint This Article

Schwarzenegger bobblehead dollThe San Francisco Chronicle reports that a bobblehead manufacturer has settled its free speech case with California Governor Schwarzenegger (Governor's bobblehead says farewell to arms). The company will be permitted to continue to make bobbleheads, sans the rifle and bandolier as pictured to the left. The Smoking Gun has the documents (Bobblehead Detente).

I understand why the company had to settle, a lawsuit would have been very expensive with no guarantee that they would win. However, it is sad that such a case can be brought. I guess that Schwarzenegger is the only one who can lampoon himself with references to his prior profession? He is permitted to call opposing legislators "girlie men," in homage to his previous career as a weight-lifting champion, but heaven forbid someone parodies that in bobblehead form. If someone sells a bobblehead of John Kerry as Vietnam vet, John Edwards as an ambulance chaser, or George Bush as a Texas oilman, I guess they should have the right to sue too?

Previous Copyfight coverage here: Schwarzenegger Threatens to Sue Over Bobblehead Doll, Free Speech? Not on the Gubernator's Watch, and Lawsuit Launched Over Schwarzenegger Bobbleheads.

via How Appealing

August 01, 2004

Embargo LiftedEmail This EntryPrint This Article

...and the numerous reports are now confirmed: "In light of the July 30 deadline that Ludlow had set down in its threat letters to JibJab and its upstream hosting providers, we [EFF] felt we had little choice but to file suit to defend JibJab's fair use and free speech rights.

Both sides continue to exchange correspondence, and JibJab hopes this dispute can be resolved without further litigation. For the reasons discussed in our July 28 letter (PDF) to Ludlow, we continue to believe that 'This Land' is a fair use, especially in light of the fact that Woody himself borrowed the melody from an earlier song."

I can't say more than that about the JibJab case, but here are a few apropos links for those of you following the ongoing conversation about parody v. satire, fair use, free speech, and democracy:

  • Copyrighting the President: "Many are concerned about the ever-expanding reach of copyright law. More are concerned about the ever-increasing concentration of the media. Greenwald's dilemma highlights how the two trends are linked: As media becomes more concentrated, competition to curry favor with politicians only increases. This intensifies during an election cycle. Networks able to signal that they will be 'friendly' - for example, by ensuring that embarrassing moments from interviews won't be made available to others - are more likely to attract candidates for interviews and so on, than networks that don't. Concentration tied to copyright thus gives networks both the motive and the means to protect favored guests" [Lawrence Lessig @ Wired Magazine].
  • Some Troubling Implications about the Jibjab Case: "The social environment right now is politically riven; we are in the midst of the Democratic National Convention and at the heels of the Republic National Convention, with only a few months left before the election. Each side is tossing claims back and forth, promising to be the party that unites the nation. If the EFF successfully argues that Guthrie's song is about national unity, then Jibjab's release in the context of the surrounding sociopolitical climate can most definitely be argued as a parodic gesture. It just makes sense.

    By the same argument, though, Ludlow Music could propel the idea that the animation is a satire on the political campaign. How, then, can a proper decision be reached in the case?" [Free Culture].

  • This Land Is Not the Land We Thought It Was: "Guthrie was a radical in many ways. 'Mean Talking Blues,' a Guthrie song, is unabashedly pro-union, going so far as to portray the capitalist businessman in the persona of the Devil incarnate. We all sang as school kids this apparently very patriotic song extolling the virtues of 'This Land.' But when the mysteriously missing three stanzas are added, it becomes clear that 'This Land' is itself a parody, a takeoff on the happy-go-lucky optimism of a man who sees only good in his country while he overlooks glaring problems and inequalities.

    Face it, by our standards, the man was a radical.

    Anyway, I'm no expert, but when I saw the JibJab piece, my first thought was, ol' Woody woulda liked this one" [Dead Parrot Society].

  • Copyright: Blawg Channel Gets the Joke: "Now, before you dismiss the fact that I saw the parody clearly merely because I practice copyright and trademark law and do this stuff all day, please note that as early as eighth grade, Mrs. Jacobson, our English teacher, lauded my ability to spot metaphors and the like in the assigned reading (a comparative advantage accruing to me by being the only person wonky enough to do the reading).

    Be that as it may, as the Nader/Priceless court says, perceiving the parody clearly (or readily) is not the critical factor - parody can be subtle" [Marty Schwimmer @ The Blawg Channel].

July 29, 2004

Apple vs. Real: A DRM StoryEmail This EntryPrint This Article

Edward Felten, with the definitive post on the below-discussed fracas over Real reverse-engineering for compatibility with Apple's iPod:

Pay attention now, 'cause this story gets kinda complicated.

See, Apple had this product called iPod that lets you listen to music. That sounds like a good idea. But Apple thought it would be better if the iPod could do less. So their engineers pulled a bunch of all-nighters to make sure that the iPod couldn't play just any music a customer might have laying around. They called this DRM. I think that stands for Don't Replay Music.

Now Apple had a competitor called Real. And Real was unhappy that Apple had made its product less useful. So Real's engineers pulled a bunch of all-nighters, so that they could make Apple's product better. They could've spent that time making their own product better, but that would have been a waste after all of the time they had already spent making their own product worse by making it do DRM too.

You still with me? Good.

Okay, so Apple was mighty ticked off that Real had made Apple's product better, without even getting permission or anything. So Apple cried foul. Apple was shocked 'n' saddened that Real was trying to improve Apple's product, like those hacker guys are always doing. So Apple drew a line in the sand, and swore to make its own product worse again.

I don't know about you, but I find this all very confusing. I guess I just don't have a head for business.

Apple vs. Reverse EngineeringEmail This EntryPrint This Article

Four quick pointers:

CNN: "'We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod,' Apple said in a release.

Apple said Thursday it is looking into Real's actions under various laws, including the Digital Copyright Millennium Act (DMCA), which prohibits the manufacture, sale, or distribution of code-breaking devices used to illegally copy software."

Derek Slater: "Along with piracy rhetoric, we now get evil hacker rhetoric. Since when is reverse engineering unethical? Oh right - since the DMCA, which Apple is predictably waving around. Let me remind you that Real was one of the first companies to sue the creator of an interoperating product under the DMCA, so it's not as if they're the innocent defenders of innovation here. This could make for a fine DMCA battle royale, with copyright holders caught in between. Or it could fade away - we'll see."

Ernie Miller: "As if being a hacker is bad thing. What do you call those two guys who built a computer in their garage and started a little computer company named after a fruit?"

ZDNet: "'It is highly likely that Real's Harmony technology will cease to work with current and future iPods,' the company said in its statement."

Oops - I Seem To Be Standing On Your ShouldersEmail This EntryPrint This Article

Fred von Lohmann breaks the news that Woody Guthrie may have "borrowed" quite a bit of "This Land Is Your Land" from The Carter Family, which in turn may have "borrowed" it from someone else.

Writes Fred, "[In] the letter (PDF) threatening copyright litigation over JibJab's animated political parody, 'This Land,' Ludlow's lawyer goes out of his way to attack JibJab for copying 'the entire melody, harmony, rhythm and structure of the [sic] Mr. Guthrie's song.'

Er, sorry there Ludlow, but actually, the entire melody, harmony, rhythm, and structure of 'This Land is Your Land' doesn't belong to you. And I'd like to think Mr. Guthrie would never have claimed credit for them, if he were still alive to ask."

This Use Is Fair UseEmail This EntryPrint This Article

I'm appropriating Andrew Raff's especially apt title to announce that the cat has officially escaped the bag: EFF has taken on JibJab as a client. EFF's reply (PDF) to the latest threat letter (PDF) from Ludlow Music, Inc. discusses the recent debate over whether or not "This Land" is a true parody under copyright law, citing Copyfight author Ernie Miller and the good people over at The Blawg Channel.

Check out Ernie's post over @ Importance Of...; it's got a nice juxtaposition of the text in the Ludlow threat letter and EFF's reply, plus (as always) a whole lot more.

July 27, 2004

Are You Experienced?Email This EntryPrint This Article

Michael Froomkin has started a mini-campaign of interest to Copyfight readers: he's collecting Copyright Experiences to help pool knowledge about the kinds of copyright demands that law journal publishers are making of academics. As part of the initiative, he's soliciting model copyright agreements -- the nitty gritty, fine print details that determine whether or not someone like Siva Vaidhyanathan can freely encourage others to copy and share his work.

(Thanks, Susan!)

July 26, 2004

Rip, Mix, SueEmail This EntryPrint This Article

fusebeerbong097.jpg The NY Post reports that Apple is threatening a lawsuit against upstart music video channel Fuse for ads that parody Apple's silhouettes campaign (Apple Blows Fuse Over Ads). Unlike the happy music listeners in Apple's ads, these ads reportedly feature people doing beer bongs, pole dancing and masturbating. Some iPod owners are reportedly furious as well, which is no surprise considering the rabid devotion strong affection many Mac and iPod owners have for Apple.

Gizmodo now has hi-def versions of all the (somewhat offensive) ads (Apple Parody Fuse Ads).

via Gizmodo

July 23, 2004

RIAA Goes After Store that Supports Music SalesEmail This EntryPrint This Article

Fascinating story about an RIAA crackdown on a popular alternative music store selling DJ mixtape CDs (Busting Berry's Music). The music shop was raided, stock taken, and the store's named dragged through the mud. No warning, no cease and desist, the RIAA simply went full bore after the store for selling something (DJ Mixtape CDs) the recording industry praises in other forums. This was not about selling bootlegs or counterfeits. It was a store promoting music. You'd think the RIAA would be a little more supportive.


The owners suspect they were targeted because they broke "streetdate," the day a release is officially to be sold. Stores frequently receive copies on a Saturday when the albums aren't supposed to go on sale until Tuesday. Seems like something the distributors could handle if the labels didn't like it.

Interestingly, the federal copyright charges against the store were dropped. However, the store was still prosecuted for violating a "true name and address" bill that requires the name and address of the CD manufacturer on CDs. Ridiculous. And the RIAA wonders why music sales are doing so lousy. Perhaps taking legal action against music stores and forcing them to close has something to do with it.

July 21, 2004

Surprise! Competitive Enterprise Institute Finds INDUCE Act Anti-CompetitiveEmail This EntryPrint This Article

The Competitive Enterprise has released an OpEd critiquing the INDUCE Act, set for hearing tomorrow in the Senate Judiciary Committee:

The INDUCE Act is the latest in a string of fast-tracked Senate proposals designed to give major media players more “power tools” to attack downloading, duplicating, and exchanging music and video files over the Web. However, this legislation is not confined to person-to-person (P2P) file exchanges: It would affect cable, PC, PDA, satellite TV and radio, photocopying, and other technologies that allow transmission of data—and threaten the emergence of future technologies. Had such a law been in place during the 1970s, we may not have PCs, CDs, and other technologies we now take for granted.
July 20, 2004

Audible - Do Not Distribute, Alter or Edit Audio of 9/11 HearingsEmail This EntryPrint This Article

Audible, the audio e-books site, is making the 9-11 Commission hearings available for download, free. Go Audible. I'd link to the specific page, but you can't.

In order to download the files you have to register with Audible. Okay. Understandable, sell your personal information for Audible's bandwidth. You also have to download Audible's proprietary file organizer. Again, understandable. These requirements are not particularly admirable, but Audible is a business. Even more strange, however, is that in order to download these public domain hearings, you have to agree to Audible's terms and conditions (which I can't provide a direct link to either):

When you "clickout" or otherwise "purchase" (referred to herein, collectively as "Purchase") Audible Content from the Audible Service, Audible grants you a limited, revocable, non-exclusive, non-transferable license to download or stream such Audible Content to your computer and/or your Device(s) solely for your personal non-commercial use. You shall not copy, reproduce, distribute or use the Audible Content in any other manner. You shall not sell, transfer, lease, modify, distribute or publicly perform the Audible Content in any manner and you shall not exploit it commercially. Do not (A) decompile, disassemble, or reverse engineer the Audible Content or attempt to do so; or (B) modify the Audible Content or create any derivative works therefrom. [emphasis in original]
Gosh how I love the way some companies claim dominion over the public domain.

Bonus: The White House provides the President's weekly radio address in Real format so that you can't download it (White House Radio).

via MacSlash

July 16, 2004

Copyfight's Guide to LawMeme's Guide...Email This EntryPrint This Article

James Grimmelmann @ LawMeme has a post demonstrating the sheer prolific magnitude of Ernest Miller's writing on the Act formerly known as the Induce Act, adding a few well chosen words of his own:

His coverage matters to lawyers, techies, copyfighters, and consumers. That is, everyone. Ignore it at your peril. The IICA is one of the most dangerously misguided and malicious pieces of technology legislation to rear its ugly head in the last decade. Ernie's obsessively detailed articles are a powerful indictment of a bad idea. I have only one thing to add to what Ernie is saying: an index.

Here's one more: No matter what we say about the Induce Act, it could still pass. If you don't like that idea, take a few minutes to tell your senator why.

July 14, 2004

Fair Use It or Lose It, Part IIIEmail This EntryPrint This Article

Peter Hirtle, who knows from fair use, responds to my post on Siva Vaidhyanathan's experience with a professor asking to make fair use of his book. He argues for what I'd characterize as the Creative Commons solution: making the author responsible for asserting affirmatively that people have rights to the work:

Vaidhyanathan, Wentworth, and Finkelstein use [Siva's experience] to discuss how hard it is to use fair use; as Larry Lessig has noted, "fair use in America simply means the right to hire a lawyer." There is a second solution to the problem, however. Namely, Siva could have made clear in the book what users could and could not do with the text. [...]

We can, and should, try to change fair use to make it easier to use. But we should also be as explicit as we can on the uses we allow. For example, on my publications I always try to include the following wording: "Permission is granted for nonprofit educational and library duplication and distribution, including but not limited to reserves and coursepacks made by nonprofit or for-profit copyshops." A statement such as this in Siva's book would have made the whole fair use analysis moot.

I say: Go for it. If copyright is broken, rebuild it with your explicit instructions. And obviously, choose the kind of publishers that embrace such reconstruction.

Speaking of AcaciaEmail This EntryPrint This Article

Here's a link to a preliminary ruling on Monday (PDF) in which a federal court in Los Angeles found that several key terms in disputed Acacia patents are "indefinite."

IP as "Property": Point/CounterpointEmail This EntryPrint This Article

Larry Lessig today brings us a little variety in perspective,: a Hollywood publication -- Variety, no less -- explaining the difference between stealing copyrighted material and making fair use of it:

If Greenwald's use of Fox's content is "fair use" -- as we believe it plainly is -- then it is no more "stealing" than walking across a sidewalk in front of a neighbor's home is trespassing on the neighbor's property.

Copyright is property, but like all property, the rights it grants are limited. "Fair use" is one such limit, constitutionally compelled, giving critics such as Greenwald the right to use a limited amount of copyrighted material without asking permission first.

Democracy depends upon such criticism -- especially as the owners of our culture become fewer in number, and the power they exercise, because of media concentration, increases.

Jason Schultz, meanwhile, engages in a more familiar battle-of-metaphors with Robert Berman, executive vice president of Acacia -- the company whose web streaming patent EFF has targeted for busting:

"Property rights are as important as the right to free speech," Berman told AVNOnline.com July 6. "For example, if someone broke into your garage and stole your SUV, and put a speaker on the top, and was driving around the neighborhood making some political statement, trying to get your SUV back wouldn't be trying to stifle free speech, it would be you trying to get your property back. If somebody is using your property, you have a right to stop them or receive a license or receive royalties."

That, said EFF Staff Attorney Jason Schultz, is "possibly the most twisted and contorted analogy I have ever heard," saying it shows Acacia and similar companies -- other EFF frivolous patent candidates include Clear Channel, Nintendo, Ideaflood, Firepond, and Acceris -- conflate physical property with dreams of intellectual property.

"There's no question now that an SUV in your garage is something you own. But here there's a real question as to whether Acacia actually invented anything new or simply is claiming monopoly on technology that millions of people use every day to express themselves," Schultz told AVNOnline.com. ..."[Acacia] doesn't want to own just the SUV, [they] want to own every single automobile and stereo system in the world, to use [their] contorted analogy."

July 12, 2004

Fox on Fair Use: Lose ItEmail This EntryPrint This Article

Just below, Donna discusses the new documentary (OutFOXed) that criticizes Fox News' "fair and balanced" news reporting (Fair Use It or Lose It, Part II). One of the main issues is whether or not Fox News will sue for copyright infringement against the fair use commentary of the movie. Well, it looks like Fox just may, according to statements from Fox this afternoon: Outfoxed Rope-a-Dope Begins?:

The illegal copyright infringement actions of moveon.org in cooperation with The New York Times, including 'cutting a deal' not to give Fox News Channel adequate time to react, is unprecedented.

University Press Refuses to Be Fair Use Guinea PigEmail This EntryPrint This Article

On the heels of the brouhaha over OutFOXed comes yet another tale of copyright gone bad.

The protagonist is Liane Curtis, who compiled an anthology including excerpts of unpublished work by Anglo-American composer Rebecca Clarke for publication by Indiana University Press. The copyright to this work is held by Christopher Johnson of Oxford University Press, and he accuses Curtis of violating it by using unauthorized excerpts. Ms. Curtis disagrees, arguing that the use is fair -- but her publisher simply doesn't have the resources to back her up in court.

The problem isn't that Ms. Curtis should be able to use any copyrighted materials she chooses -- she may indeed have violated Mr. Johnson's copyrights. It's that without sufficient funds or friends of the pro bono persuasion, there isn't any contest. The threat of a lawsuit is alone adequate to decide the "case" in favor of the copyright holder. This means that even (or especially) in academic publishing, the bottom line is the bottom line -- because, as the Indiana press music editor puts it, "No one has $11-million to test the gray areas."

Sigh. We've seen this scenario play out in a number of different arenas, but it's especially sad to see it happen in academia.

Absurd Copyright Claims CollectionEmail This EntryPrint This Article

Rob Heverly is starting a collection of strange and/or absurd copyright claims (Strange Copyright Claims). One such claim was found in a disclaimer at the bottom of a website "This material may not be published, broadcast, rewritten or redistributed." Well, the fact that it was already on a website indicates it was published.

Anyway, Heverly isn't sure what he'll do with the collection, but he is asking people to send him more examples of bizarre copyright claims.

July 09, 2004

NY Times on DVD DRMEmail This EntryPrint This Article

Yesterday's NY Times' Circuits section had a great article about the impediments of DRM and the DMCA for those who legitimately own DVDs (Whose DVD? A Debate Over Copies). One example used is of a couple who take copies of their large (expensive - lots of money sent to Hollywood already) DVD collection when they travel on their boat. The ability to copy saves hauling the DVDs back and forth and the consequent risk of loss, damage or theft. Well, we may not all own boats in Bermuda, but we can all sympathesize with the couple who have no intention of harming Hollywood.

The story publishes the counter arguments:

The Federal District Court judge in one case, Susan Illston of San Francisco, was unswayed by arguments that users of the company's products did not routinely engage in piracy or otherwise damage the market for DVD movies. "It is the technology itself at issue, not the uses to which the copyrighted material may be put," she wrote in her opinion.
That sounds persuasive. Not.

It is stories like these that will eventually undermine Hollywood's desparate attacks on consumers.

July 08, 2004

Camera & Cell Phone Batteries = Next DMCA Frontier?Email This EntryPrint This Article

Copyfight co-author Jason Schultz @ LawGeek: "First, they came for the after-market printer cartridges. Then they came for the garage door opener remotes. Now, they may come for the cell phone and camera batteries."

RCN's New Tethered Music ServiceEmail This EntryPrint This Article

Yesterday, the Boston Globe regurgitated a press release and "reported" that bundled telecommunications provider RCN has announced a new music subscription service that provides some access to $700,000 songs for $8/month with no downloading fees (RCN starts Net music service). Read the press release: RCN Launches New Fully Integrated RCN Interaction Music Subscription Tier. Actually, the press release is more informative than the news article. Read on...

Continue reading "RCN's New Tethered Music Service"

EFF's Top Ten Patents That Shouldn't Be GrantedEmail This EntryPrint This Article

  1. Streaming video
  2. Voice over IP
  3. Automatically-assigned domain names (e.g. yournamehere.livejournal.com)
  4. Online tests
  5. Intelligent email autoresponders
  6. Live concert recording
  7. Network gaming
  8. Barcode lookup
  9. Nintendo emulation
  10. Storing music

They're looking for law students, prior art searchers, patent attorneys, and technologists interested in helping bust the patents. Of course, if you have examples of prior art, you can submit that too. And if you're affected by the patent, you can can donate some cash or sign up for updates.

Help stop them!

July 06, 2004

Tech Companies Rally Against the Induce ActEmail This EntryPrint This Article

Four quick pointers on the Inducing Infringements of Copyright Act (a.k.a. the Induce Act), which by extending copyright liability to those who "induce" infringement would give copyright holders an incredibly powerful tool to hamper the development of technologies like the iPod:

USA Today: "Internet search giants Google and Yahoo, chipmaker Intel, Internet service provider Verizon, auctioneer eBay, website operator Cnet Networks, and phone company MCI are among 42 companies and groups who signed a letter that will be delivered Tuesday to bill author Sen. Orrin Hatch, R-Utah, requesting hearings on the issue.

Two copyright bills were passed by a voice vote in late June without hearings, which is why the tech industry is concerned."

The letter itself (emphasis, mine): "By combining (1) a new and separate cause of action for "intentional inducement," (2) a lower civil, rather than higher criminal, standard of liability, and (3) a circumstantially "reasonable" test, [the Induce Act] would seem to ensure that massive and intrusive discovery proceedings, and a jury trial, would await any innovator or investor who introduces to the market a product that some copyright owner, someplace, believes will 'induce' infringement."

Copyfight author Ernest Miller "translating" statements by Senator Hatch's office on the possibility of holding hearings on the bill: "Hearin's? Hearin's? We don't need no stinkin' hearin's. And if we tells you the schedule, how we goin' to sneak the bill through?"

The EFF Action Center, where you can send a letter opposing the bill: "Right now, under the Supreme Court's ruling in Sony v. Universal (the Betamax VCR case), devices like the iPod and CD burners are 100% legal -- not because they aren't sometimes used for infringement, but because they also have legitimate uses. The Court in Sony called these 'substantial non-infringing uses.' This has been the rule in the technology sector for the last 20 years. Billions of dollars and thousands of jobs have depended on it. Industries have blossomed under it. But the Induce Act would end that era of innovation. Don't let this happen on your watch -- tell your Senators to fight the Induce Act!"

July 05, 2004

A Tale of Two TethersEmail This EntryPrint This Article

The New York Times had an article the other day about the quality of digital music and whether most people will ever notice the difference (From a High-Tech System, Low-Fi Music). Not directly IP related, but buried below the fold was an interesting discussion of the shift from owning music to renting music and the trade-off between that and committing to a medium:

Continue reading "A Tale of Two Tethers"

July 02, 2004

Backblog: The Induce ActEmail This EntryPrint This Article

I'm with Derek: just because fellow Copyfight author Ernest Miller has been posting his series on the Inducing Infringements of Copyright Act (IICA, formerly the "INDUCE Act") over at Importance Of... doesn't mean you should miss them.

Here's a single link where you can check them all out. And while you're at it, here are two more posts on the IICA that contribute significantly to the conversation:

Susan "Have-you-blogrolled-her-yet?" Crawford's Overstatement and the IICA: "There are reasonable people walking on this earth who will say that the IICA is not a big deal. Rather than jump down their throats, I'm going to suggest that we slow things down, have some hearings, and try to get to the bottom of what's going on."

Edward Felten's Tech Lobbyists Slow to Respond to Dangerous Bills: "Giving the entertainment industry a veto over new technologies would have two main effects: it would slow the pace of technical innovation, and it would create barriers to entry in the tech markets. Incumbent companies may be perfectly happy to see slower innovation and higher barriers to entry, especially if the entertainment-industry veto contained some kind of grandfather clause, either implicit or explicit, that allowed incumbent products to stay in the market -- as seems likely should such a veto be imposed."

June 29, 2004

RIAA Wooing California District Attorneys with Free Drinks, CD give-awaysEmail This EntryPrint This Article

According to P2Pnet and the California District Attorney Association's website, the RIAA is throwing quite a party this Thursday at the DA's yearly convention:

Reception and Awards & Installation Banquet (Thursday, July 1 • 5:30 p.m.)

  • The Recording Industry Association of America (RIAA) is hosting the banquet reception. Banquet attendees will receive two complimentary drinks and be entered into the drawings for free CDs!

  • The 2004-05 CDAA Officers and Board of Directors will be installed at the banquet following the presentation of the annual awards.

Now why would the RIAA be wooing California District Attorneys? Could it be in anticipation of them using AB2735 to criminally convict file-sharers for failing to identify themselves when they swap on P2P networks? I mean after all, they did buy two complimentary drinks for each of them and the possibility of wining a free CD!

But let us not worry. I'm sure that these fine public representatives will not let such blatant pandering influence their unfettered prosecutorial discretion and priorities when deciding which crimes to spend our tax dollars fighting in California. No, really.

June 28, 2004

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

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

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

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?

June 24, 2004

Playing RIAA Attorney for a DayEmail This EntryPrint This Article

With the growing concern over Senator Hatch's Inducing Infringement of Copyrights Act introduced this week, EFF decided to take the debate up a notch today by drafting a mock complaint against one of the most egregious "inducers" -- Apple's iPod music player.

The Complaint, alleged inducement against Apple, Toshina (who supplied the iPod's hard drive), and CNET (who provided a review of the iPod including instructions on how to move musc files between it and multiple computers), lays out exactly how easy it would be to sue a company for inducement on any of their flagship computer products. We tried to make the complaint as simple as possible but at the same time, substantive enough that it would be difficiult for Apple or any other company to dismiss the case before trial. [For all you lawyers out there, try to think of how you could succeed on a 12(b)(6) or Rule 56 motion].

It's often hard to conceive the potential damage Congress can inflict upon us until too long after the fact (e.g. DMCA), so we hope this will help focus the issue.

June 22, 2004

Book Publisher Knopf Rattles Copyright SaberEmail This EntryPrint This Article

In echoes of the infamous copyright case Harper & Row v. Nation Enterprises, Editor and Publisher reports that Knopf, publishers of Bill Clinton's memoir, is threatening to sue Associated Press for running early excerpts from the book last Friday (Publisher of Clinton Memoir Threatens to Sue AP).

Knopf had agreed to let numerous TV outlets interview Clinton over the weekend and Monday before the book' release on Tuesday, and kept the book under wraps, refusing to sell excerpts in advance. A Knopf lawyer cited precedents, but other lawyers indicated AP was safe because it had stuck to the "facts" from the book without extensive verbatim quotes.

I wonder how many of those TV outlets cancelled their Clinton interviews because all the juicy bits in the book had already been revealed at the end of last week. I'm sure the massive publicity rollout has turned into a complete failure.

via LIS News

Tiffany's sues eBay under shaky TM theory for failure to police counterfeitsEmail This EntryPrint This Article

Favorite first-breakfast jeweler Tiffany & Co. has filed a trademark lawsuit against eBay, claiming that it allows too many counterfeit Tiffany items for auction.

The lawsuit asks that eBay be stopped from listing any "Tiffany" merchandise that is not genuine and for eBay to account for profits it made on the sale of counterfeit Tiffany merchandise or else pay up to $1 million for each type of fake Tiffany merchandise sold on the Web site.

While I can understand Tiffany's outrage that as much as 73 percent of all listed items under their name are fake, the rationale for the suit seems to me increadible overbearing and expansive as a trademark theory, especially since everyone knows that eBay explicitly disclaims any knowledge of whether a particular item is authentic or not when you bid on it.

No one expects newspapers to police their classifieds like this; why should eBay be singled out?

June 21, 2004

Fourth Circuit Affirms that Passive Hosting/Viewing of Web Content without Knowledge is not Copyright InfringementEmail This EntryPrint This Article

This just in -- The Fourth Circuit Court of Appeals has affirmed in the Costar v. Loopnet case that ISPs and other providers are not liable for direct infringement when their servers passively copy works that have been uploaded, downloaded, or hosted by users if they didn't have knowledge that the works were infringing. Their rationale: copyright infringement requires as active "volitional" act; setting up automatic servers to upload/download/host content is purely passive and does not include any active participation by the hosting company.

This essentially reaffirms the ruling in RTC v. Netcom from 1995 but was a lingering question after the DMCA safe harbors were passed in 1998, especially given copyright law's purported "strict liability" standard. Moreover, the Court found that even the act of Loopnet employees viewing the photogaphs was not violitional enough to be direct infringement. A very good ruling given the realities of computers and networks.

Full Disclosure: My good friend Kurt Opsahl argued the winning side for Loopnet. Way to go Kurt!

June 18, 2004

CD DRM Keeps Music Off P2P Filesharing NetworksEmail This EntryPrint This Article

Oh, wait, that didn't happen.

There has been a lot of noise regarding the fact that, for the first time, the number one album in the US has CD "copy protection." See, C|Net News (Copy-blocked CD tops U.S. charts). Previous attempts at copy-protected CDs in the US have provoked consumer backlash, but the backlash seems minor this time. One very plausible and likely explanation is that that the "copy protection" is so easily circumvented (press the "shift" key as you insert the "CD" into a Windows PC). See, Ed Felten, Freedom to Tinker (Lame Copy Protection Doesn't Depress CD Sales Much). For more theories and commentary, see, Slashdot (Copy-protected CD Tops U.S. Charts).

Of course, if you don't circumvent the copy protection, there will be no way for you to copy your legitimately purchased music onto an iPod. Ah, format wars at the expense of the consumer. Which DRM monolith with prevail?

"We are actively working with Apple to provide a long-term solution to this issue," a posting on SunnComm's Web site reads. "We encourage you to provide feedback to Apple, requesting they implement a solution that will enable the iPod to support other secure music formats."

Translation: It isn't in Apple's interest to support Microsoft's format or allow people to support iTunes who support Microsoft's format. How else do you explain SunComm begging consumers to do its Apple negotiations for it?

But the format wars are worth it, if it prevents widespread internet piracy:

EMI Music has "been encouraged by the success that SunnComm's MediaMax product has enjoyed," Richard Cottrell, global head of antipiracy for the record label, said in a statement. "We are pleased that SunnComm is developing a product that improves our ability to protect our artists' works, especially during the prerelease phase."

This guy is head of global antipiracy for a record label and he thinks this shift-key-circumvented DRM improves their ability to prevent piracy "especially during the prerelease phase." Man, I want a high paying job like this guy where I don't have to know nothing.

You Just Can't Trust BMW OwnersEmail This EntryPrint This Article

Yesterday, Gizmodo broke the news on details about the upcoming Apple iPod/BMW promotion (Gizmodo Exclusive: iPod Your BMW Secrets Revealed). C|Net News has a brief story as well (Apple turns car owners green). The big hullabaloo is that BMW will be offering an iPod connection kit for some of its cars that includes a docking port for the iPod and will allow users to control some of the iPod's functions from the steering wheel.

Whoo! Those engineers are thinking outside the box! I've got a better idea though, how about a friggin' hard drive in the BMW that you can transfer songs from the iPod to so that you don't have to remember to bring your iPod with you all the time? Maybe you could even have auto-synch capability so that the BMW's hard drive gets updated each time you do bring the iPod along.

Oh, that's right, the iPod doesn't let users upload songs to another device because iPod owners are nothing but dirty, stinking thieves (who can afford very expensive cars).

June 16, 2004

The Sony-fication of Apple?Email This EntryPrint This Article

Jupiter Research analyst David Card points to a Wall Street Journal article that isn't freely available online that has some interesting statements from Steve Jobs (Jobs Changes Tune?):

The Journal says Apple's - or is it Pixar? - Steve Jobs is advising holding off on HD DVDs until they're secure [apparently DRM].

This is actually sort of interesting. Could this be the beginning of some tension between Jobs as consumer electronics/PC person and Jobs as content person? Will this mean the Sony-fication of Apple?


JD Lasica has much more: Has Jobs gone Hollywood?.

June 15, 2004

Videogame Publishers Launch DMCA LawsuitEmail This EntryPrint This Article

CNN reports that videogame publishers are getting into the DMCA action (Video game makers sue software firm). The lawsuit apparently involves the anti-circumvention provisions of the DMCA and is targeted at the publisher of Games X Copy, which allows users to backup and/or run PC games from a virtual drive.

My favorite line from the article:

[Doug] Lowenstein [president of the Entertainment Software Association] said the product nevertheless violates copyright law and is "masquerading as a consumer-friendly tool."

You know, it is unfriendly to consumers because it lets them play games from the hard drive, without having to constantly swap CD-Roms and what not. I can't see how any consumer would want to have to deal with the convenience and all.

My favorite line from Gizmodo's post (Atari, EA, VUG Sue as One):

Not that I want publishers to suffer from piracy, just that I'd wish they'd give their lawyers something better to do than beat a dead horse. Maybe like forming a dance team, or building a soup kitchen to feed their developers.

June 14, 2004

Now Is the Time for All Good Men...Email This EntryPrint This Article

John Naughton of The Observer (hyperlink, mine):

"All that is required for evil to triumph," wrote Edmund Burke, "is for good men to do nothing." His words came to mind last week as I read the daily reports from Geneva about the meeting of the standing committee on copyright and related rights of the (WIPO). The meeting was assembled to discuss a draft treaty to "protect" broadcasters and broadcasting signals.

For "protect" read "unprecedented, restrictive and anti-social powers."

Extra: In case you missed it, here's a brief report on the outcome of the WIPO meeting from last week's EFFector newsletter.

June 10, 2004

Wanted: Stupid PatentsEmail This EntryPrint This Article

Got a stupid patent you're itching to bust? Give EFF the goods, and you might soon see it on the 10 Most Wanted list.

Incredibly Dumb DRM Tactics - iTunes Example #1Email This EntryPrint This Article

Gizmodo has a very interesting story of DRM enforcers making it hard for people to play nice (How to Un-DRM your Un-DRM'd iTunes 4.6 Songs):

Now part of the whole shtick with Hymn is that even though it strips the iTunes DRM, it leaves your email address and other unique purchasing information in the protected AAC file, ostensibly to symbolically signify that Hymn users aren't trying to spread their fairly-purchased music files to the whole world, but instead to whatever devices they want. I unlocked mine so that I could be sure to play them after I had reformatted my machine. I'm pretty sure Apple has a method of reauthorizing your computer, but that's a hassle. But now the new version of iTunes has recognized that the DRM-stripped M4P files were purchased from iTMS and is telling me my (reformatted, reinstalled) machine isn't authorized to play them.

So, here we have a DRM stripping program that is deliberately designed to encourage copyright compliance yet still enable fair use. What does Apple do? They deliberately make such stripping programs untenable. Gizmodo has a work around for the short term. Of course, the likely long term solution will be for Hymn to strip all information from DRM'd files so that they can't be blocked this way.

This helps encourage copyright compliance, how?

June 09, 2004

WIPO - It's a WrapEmail This EntryPrint This Article

Reports Cory @ BoingBoing:

The Broadcast Treaty is a proposal from a WIPO Subcommittee that's supposedly about stopping "signal theft." But along the way, this proposal has turned into a huge, convoluted hairball that threatens to make the PC illegal, trash the public domain, break copyleft and put a Broadcast Flag on the Internet. The treaty negotiation process is unbelievably convoluted and hard-to-follow, and they've just wrapped up the latest round in Geneva. But for the first time, a really large group of "civil society" orgs were accredited to attend. [...] This is the first time that a really exhaustive peek inside a WIPO treaty negotiation has ever been published -- get it while it's legal!

Here are the consolidated notes to which Cory refers. If you care about the public's side of the copyright bargain, they're required reading. Print 'em out and take them home.

June 08, 2004

WIPO - Notes from Day TwoEmail This EntryPrint This Article

The trio that yesterday brought us notes from behind the closed doors of the ongoing WIPO meetings are up at bat again today, this time over @ EFF's Deep Links.

Below, a representative snippet of Cory Doctorow's backchannel commentary, in this instance responding to the idea that we need to give additional rights to broadcasters of sporting events:

[ed - yesterday, the issue of sporting events was raised privately by the Canadian delegation in conversation; the Canadians claimed that in some nations, retransmission of sporting events is not covered by copyright and so when people across the border retransmit without permission no remedies are available. He didn't seem to be interested in the argument that those "works" excluded from copyright are deliberately thus: we have decided as a society to exclude them from copyright for policy reasons, and putting them *back* into copyright through a broadcast right seems like a bad way to deliberate the appropriate scope of copyright -cd]

[ed - This morning I thought about this more and realized that even if you buy his argument, it's still pretty weird: why should the guy who *aims a camera* get the copyright monopoly? Why not teams? Venues? Players? -cd]

More meaty material, including transcribed floor testimony on the proposed Broadcasting Treaty by Cory for EFF, Robin Gross for IP Justice, and Jamie Love for the Civil Society Coalition, here.

June 04, 2004

Blogging Copyright InfringementEmail This EntryPrint This Article

Apparently, weblog publishing magnate Jason Calacanis has received his first copyright infringement cease and desist request, according to an entry on his Nanopublishing Weblog (Fair Use for photos on the web and in blogs: a modest proposal to avoid a major battle):

Today, for the first time, someone got upset at us for using one of their images in a 70 word blog post that is sending dozens of people a day to their website. I’m trying to explain to the person that we’ll take it down if they want, even though we could use a thumbnail/cropped photo by the fair use provisions as reports, but that we would rather work with them to come to a partnership.

Calacanis is right that blogs have not been hit too hard on the copyright issue so far but that is likely to change - especially for money-making blogs such as Calacanis'. Unfortunately, his solution for the image problem isn't too hot:
As a group we need to set a standard when using other people’s photos. Perhaps we should all agree that we won’t use more then 50% of the original photo, cropping out the rest. Nick does this on Fleshbot all the time. Now, granted it is because of the design and to keep the site more “work friendly,” but I think he is on to a model of fair use for bloggers. Also, we could agree that no photo will be over 300x300 pixels and that any time you use an image you should link back to the source (we do this already, as almost everyone does).

Read on...

Continue reading "Blogging Copyright Infringement"

June 02, 2004

Burning DRM's CDsEmail This EntryPrint This Article

Alex: "Hindering Online Music Burned to CD"

Dee dee dee dee dee dee ...

Contestant: "What is ... how do you increase demand for illicit P2P, Alex."

As been noted on this blog previously, it is currently trivial to get around online music DRM. All one has to do is burn the music to CD (which all the major non-subscription services permit to a greater or lesser extent) and then re-rip the music, without DRM, to the hard drive. Basically, this proves that DRM is not really about hindering piracy, but maintaining control (Why Use DRM If It Doesn't Work?).

Anyway, some record labels are apparently considering means to close this means of copying music, according to a report in C|Net News (Labels to dampen CD burning?). Apparently, burning software would permit you to burn a CD that couldn't then be re-ripped.

Frankly, I think this is truly bizarre.

First, it isn't going to work. Whatever scheme they use will be cracked and/or CD's burned using the scheme will cause all sorts of headaches. Second, if it works for burned online music, why not burn all CDs with that scheme? Third, it penalizes those who purchase online music. Do the labels want legitimate online music services to thrive or not? Illicit filesharing will not decrease one iota and may increase thanks to otherwise legitimate purchasers seeking music without onerous DRM schemes.

The only benefit I see is that the labels won't be liable to consumer lawsuits since online music is licensed, not sold. Of course, those who have "purchased" music legitimately and find their contracts changed such that they don't enjoy the same rights down the line will have no one to blame but themselves.

Slashdot has some good commentary on this issue: Recording Industry Hopes To Hinder CD Burning.

June 01, 2004

It Is All About Locking Down the SystemEmail This EntryPrint This Article

Three Items:

Item 1) Below, Donna notes that a recent consultancy report rings the alarm bells about the use of open software platforms on cell phones (Dumb Mobs). If people have the opportunity to run the free services they want on their cellphones, they may be able to avoid paying for similar services. For example, dialing 411 costs money, doing a number lookup via one of dozens of websites is free. The point is, service providers have to lock down the hardware with DRM to make money on the service.

Item 2) Reuters reports that Sun's President and Chief Operating Officer Jonathan Schwartz predicts that hardware will be free in return for paying for a software subscription (Sun Rolls Out New Hardware, Software, Services). Slashdot readers respond (Sun Says Hardware Will Be Free). Actually, this is sort of how the cellphone market works today. Buy a service subscription and you get a free phone, but see item 1 above.

Indeed, the cellphone market model is already struggling and will only struggle more in the forseeable future. If this is the model Sun is adopting ... I'd sell Sun at this point.

Read on...

Continue reading "It Is All About Locking Down the System"

First Sale Hurts Videogame Market Claims Gamespot Guest ColumnistEmail This EntryPrint This Article

Gamespot is running a bizarre guest editorial complaining about the used console game market made possible by the First Sale doctrine (Second-Handed Compliment):

You know, Nintendo, Sony, and Microsoft must have a real love/hate relationship with stores that stock used games alongside their new games--stores like Electronics Boutique or GameStop. It's a pretty amazing concept when you stop to think about it. You can go to any number of these retailers and purchase, say, a used Xbox, used accessories, and used games. You can experience all the joys of the machine just the same as someone who bought it new and spent a few more dollars than you, except that you didn't give Microsoft, the game developers, or the game publishers a thin, red cent. [emphasis in original]

Luckily, he doesn't actually advocate repealing the First Sale doctrine, but would prefer that people not take advantage of it. Presumably the author, if or should he go to college, will buy only brand new textbooks and will not sell back the useless ones at the end of the semester. I imagine he also boycotts libraries out of principle.

I guess he doesn't take into account that profit margins for retailers of new games are razor thin. Without used game sales there wouldn't be as many Electronic Boutiques and GameStops. Used merchandise draws in customers who might also be something new when they buy/sell something old. A used market increases the value of the original merchandise. Suddenly, that $50 game looks like only $40 since I know I can sell for $10 when I'm finished with it. Nah ... first sale only hurts content producers.

via Slashdot

May 25, 2004

From Japan, a Broadcast Flag PreviewEmail This EntryPrint This Article

The Japanese tend to get cool tech far before it reaches the U.S. This time, though, they're previewing un-cool regulation. The Japan Times Online reports on confusion caused by the Japanese version of the broadcast flag, "a special transmission signal that allows only a single copy of the program to be made."

Measures implemented by NHK and private TV broadcasting companies to control the copying of digital television programs have drawn a flood of complaints from TV users, with some saying they have been deprived of certain editing freedoms. ... Because programs that have been copied once cannot be duplicated or edited digitally, editing the programs via a personal computer has become impossible.
(via Slashdot)

Broadcasters and copyright holders claim they're concerned about copyright violation, but this "remedy" sweeps much too broadly. The elderly people confused by why their expensive equipment no longer works as expected weren't likely trying to infringe copyright. Neither would a child who wanted to edit a news clip in which she appeared to a size to send to her parents, or a parent recording a cartoon to save for his kids.

Japan's apparently voluntary system offers us a preview of what the U.S. is in for in July 2005, when the FCC's "broadcast flag" mandate takes effect here. Buy now to get your fully user-configurable technology, or prepare to be surprised by what you can no longer do.

UnFairPlay: Von Lohmann on DRM v. CompetitionEmail This EntryPrint This Article

Fred von Lohmann over @ Deep Links, speculating on the real reason that Apple uses FairPlay DRM:

On a panel (PDF) a few weeks ago, I asked the head lawyer for Apple's iTunes Music Store whether Apple would, if it could, drop the FairPlay DRM from tracks purchased at the Music Store. He said "no." I was puzzled, because I assumed that the DRM obligation was imposed by the major labels on a grudging Apple.

Thanks to the recent Berkman Center report on the iTunes Music Store, I think I understand.

So you're Apple, and you make all your money selling iPods. You invest in the Music Store to make the iPod even more attractive, never intending to make much margin on the 99 cent downloads. But here's the problem -- you really don't want every other maker of portable digital music players to free-ride on your Music Store investment. After all, the Music Store is supposed to make the iPod more attractive than the competition.

Here's where FairPlay comes in. It's a great barrier to entry that keeps the iPod as the exclusive device for the Music Store. Competitors who dare to reverse engineer the protocols or otherwise support interoperability find themselves staring down the barrel of the DMCA.

May 20, 2004

Penn State v. Education IIEmail This EntryPrint This Article

Responding to the news that Penn State won't let students set up servers without a faculty member's express permission, Robert Heverly asks an important question (emphasis, mine):

[It] seems to me that this affects not only computer science students, but all students at Penn State. Why is it that we think that only computer science students ought to be able to experiment with what is one of the most pervasive technologies in university life? I don't get this, and I don't agree with it. The idea that education comes only in formal programs or courses is contrary to my way of thinking about education. Forget "holistic" approaches, that's not what I'm talking about. It's practical, not principle. Here we have a chance to let students, while they're in a place designed to feed their thirst for knowledge, actually experiment on their own, even if it's not their "major." Considering this, we need to broaden the field of our objection here.

Indeed. And I'd like to broaden the objection further still.

I was homeschooled for several years. Universities may be designed to feed the thirst for knowledge, but real learning happens everywhere -- even to people who aren't officially "students" or "researchers." In light of the restrictions imposed by the DMCA, Heverly's question becomes: "Why is it that we think that only computer science students people the Copyright Office deems worthy/appropriate/officially sanctioned ought to be able to experiment with what is one of the most pervasive technologies in university modern life?"

Penn State v. Education?Email This EntryPrint This Article

You know those terrible airport bookstores -- the ones with Danielle Steele bestsellers everywhere and not a drop to read? Ever try to find something in such a bookstore to keep you mentally stimulated for the full duration of a five-hour flight?

Now imagine what it would be like if the world was set up like an airport, with every choice -- even your reading materials -- dictated exclusively by the bottom line. Let's say you had to do your Master's thesis using books made available to you solely on the basis of whether or not someone, somewhere, was making a whole lot of money. These books would be your only tools of study, so you'd have to make do. Your thesis: "Trope Density Analysis of Steele's 'Passion Flower': Sexual Metaphors and Learning."

Okay, so that's completely ridiculous. So why do we see Penn State doing to computer-scientists-in-training precisely what airports do to us? In what universe of social values is it acceptable to restrict/inhibit/extinquish self-driven and truly field-tested learning -- the kind that Bill Gates did in his dorm room at Harvard, before he created an industry -- because we're worried about selling more Britney Spears CDs? Especially when we're not even close to sure that Bill is actually hurting Britney's sales?

Larry Lessig likes to talk about what he calls "permission culture." Often, he's referring to permission to use copyrighted materials. But Penn State school officials are forcing students to get a faculty member's permission to set up a server. For a computer researcher, this is tantamount to asking permission to learn. Meanwhile, because Penn State has partnered with Napster 2, everyone gets automatic access to Britney.

Please. What's wrong with this picture? And why can't Penn State see it?

May 18, 2004

Lawsuit Launched Over Schwarzenegger BobbleheadsEmail This EntryPrint This Article

Nearly three weeks ago a couple of posts on Copyfight noted that Governor Schwarzenegger's personal lawyers had sent a cease and desist letter to Bosley Bobbers, maker of fine bobble head dolls (including numerous political caricatures), for marketing a bobble head likeness of California's highest state official. Now, the New York Times reports that the Governor has not backed down and a lawsuit has been filed (Schwarzenegger Files Suit Against Bobblehead Maker). What part of the word "parody" does Governor Schwarzenegger not understand? One of the wonderful things about democracy is that we are able to ridicule and belittle our politicians. When politicians wield so much power it is a good thing to keep their egos somewhat in check with humorous renditions of their features. I see little reason why a 3D spring-mounted bust should receive less First Amendment protection than a political cartoon.

Previous Copyfight coverage:
Schwarzenegger Threatens to Sue Over Bobblehead Doll
Free Speech? Not on the Gubernator's Watch

May 11, 2004

Sony Electronic's Sad, Preventable DeclineEmail This EntryPrint This Article

Reviewers from the Washington Post (reg. req.) (Sony's Connect Music Service Offers Fair Pricing, Little Else) and New York Times (reg. req.) (From Sony, the Hits and Misses), among others, have given poor marks to Sony's music download service, Connect.

Now, various copyfighters (not officially associated with this blog), are dissecting how Sony's DRM-centric view is crippling Sony Electronics. Joe Gratz starts the discussion by savaging Sony's late entry into the portable digital music player market (Sony’s Missteps). Derek Slater gets physically ill contemplating Sony's foolishness (Sony Music-Tech Makes Me Wanna Retch). Be sure to read his prescient preview of Sony's Connect (Sony to Continue Self-Defeating Music Strategy). Cory Doctorow provides a very good summary of the arguments on BoingBoing (Sony's entertainment business is killing its electronics business):

Sony's acquisition of a couple of minor entertainment companies has had untold consequences. It's a poison pill that is killing Sony, one piece at a time.

They're right.

UPDATE A fine rant, focusing on the fact that Sony's device won't play MP3s, is over at the Digital Music Weblog (Sony Gets Stupider). See also, Gizmodo (Sony VAIO Pocket: Interface Movie and ATRAC Weirdness).

May 10, 2004

Copywrongs and Godwin's LawEmail This EntryPrint This Article

Ubercyberprof Larry Lessig has posted an image on his blog by artist Wulfius Khan that equates copyright law with facism, Copywrong Facism (to tinker is to imagine). Lessig, in an understated post, states that the image "links [Lessig's Free Culture] argument to Ed Felten’s Freedom to Tinker argument in a way I hadn’t quite seen." [link in original]

Frankly, I'm glad that Lessig hasn't seen the argument put that way before. The image features a copyright logo that is clearly reminscent of the Nazi flag. If that was too subtle to make the point, the image also features a photo of a Nazi book burning. I assume that Lessig accidentally overlooked these aspects of the image and focused on the text.

I don't like currrent copyright law. I think current copyright law does a great disservice to culture. However, I don't think that the people on the other side of the argument are the cultural equivalent of Nazis. I also don't think the copyright debate needs to sink into another iteration of Godwin's Law.

May 08, 2004

DRM is a Folding ChairEmail This EntryPrint This Article

...or so argues Frank Field, who's written a not-to-be-missed response to Ernie's previous Copyfight post on the usefulness of digital rights management (DRM) to the entertainment industry, despite the fact that it doesn't work.

Snippet: "[DRM is not] necessarily supposed to work. But it is supposed to tell us that, if we mess with it, we're doing something wrong, and something bad might happen. The more that DRM gets used, and accepted, as an appropriate thing to include in products, the more inured we become to the notion that the thing it protects is property to be owned. And, by accepting it, we'll become less able to frame, much less pose, the question of whether the thing it's defending even should be owned -- and if so, by whom?"

May 06, 2004

Video Art or Copyright Crime?Email This EntryPrint This Article

The New York Times reviews Jon Rouston's movie theater videos, shots of the screen, audience, and ambience at various opening-day movie showings. Critic's Notebook: When One Man's Video Art Is Another's Copyright Crime . The problem is that this art has been outlawed in many states. That's a side effect of the broad anti-camcorder statutes the MPAA has been pushing on many states, including California, despite the fact that its own insiders leak most movies to the public pre-release (study PDF).

It used to be the critics who'd tell us whether art was good or bad, original or imitative. Now it's the lawyers. As the reviewer comments on art's impoverished field:

It does not matter whether you think that Mr. Routson's work is good or bad art; it is quite good enough, in my view. It does matter that the no-camcorder laws may not do much to stem pirating while making it increasingly difficult for artists to do one of the things they do best: comment on the world around them.

May 04, 2004

Tales of DRM TerrorEmail This EntryPrint This Article

Yesterday and today, The Shifted Librarian posted a number of stories relating DRM frustrations and nightmares. She pointed to DRM proponent and Jupiter Research analyst Michael Gartenberg's less than pleasant experience with "authorizing" devices to read a DRM'd ebook (When DRM goes wrong or why I'm not using Microsoft Reader any more). She relates her own poor experience with ebooks as well (I Locked Myself Out Again?):

I bought a book from Palm once. Once. They tied my credit card number to the title, and three years later, I have no idea what that credit card number was, so I can't access the book anymore.

Jenny also points to Larry Borsato's lament that the movie studios aren't giving consumers what they want: Consumer frustration. And let us not forget Jason Schultz's look at iTunes (Meet The New iTunes, Less than the Old iTunes). Finally, one might also note this MSNBC Steven Levy column that touches on similar issues iTunes and Lawsuits:
Then there's the situation with digital rights management, or DRM, these are the protections built into legally sold digital tunes to prevent infringement. But one problem of DRM has nothing to do with piracy. Because different online stores use different DRM schemes, sometimes legally downloaded songs won't work on all playback devices. For instance, the songs you buy from the iTunes store work on only one music player, the iPod, because Jobs refuses to license Apple's protection schemes to others. Can you imagine if the CD you bought from Tower Records only worked on your living-room stereo but not in your car? You'd think that the music labels would want to fix this, but according to Jobs, during the renegotiation the issue of compatibility never came up. Who's looking out for the consumer?

Who indeed?

May 03, 2004

Musician Survey Says P2P lawsuits aren't helpingEmail This EntryPrint This Article

We know what the RIAA thinks about suing individual file-sharers, but what about the musicians and songwriters they supposedly represent?

Well, Pew Internet has finally conducted a survey of 2,700+ musicians/songwriters on their attitudes toward file sharing and the results are rather revealing.

1) 60% of artists do not believe the RIAA lawsuits will help them.
2) Artists are deeply divided on whether P2P is affecting music sales for good or for bad.

Continue reading "Musician Survey Says P2P lawsuits aren't helping"

April 30, 2004

Free Speech? Not on the Gubernator's WatchEmail This EntryPrint This Article

Schwarzenegger bobblehead dollCounsel to Arnold Schwarzenegger sent a cease-and-desist letter threatening a lawsuit against the makers of a Schwarzenegger bobblehead doll. Seemingly oblivious to the fact that the Governor of California is a political public figure, the lawyers demand millions of dollars in compensatory and punitive damages for the "egregious and malicious" "use of Mr. Schwarzenegger's publicity rights."

Best of all, though is the letter's conclusion:

This is a confidential legal notice and may not be published, in whole or in part. Any republishing or dissemination of same, including but not limited to the posting of the contents hereof on the Internet, shall constitute copyright infringement and will subject the re-publisher(s) to civil liability for such actions.
You say infringement, I say fair use. Sorry, but I'm not chilled.
Thanks Jim!

Yes, it's a duplicate post, but you get a photo with this one!

Schwarzenegger Threatens to Sue Over Bobblehead DollEmail This EntryPrint This Article

Bosley Bobbers is a maker of fine bobble head dolls. They maintain a number of political caricatures in their catalog, including such favorites as Tom Daschle, Laura Bush, Tom Delay (with opposition smashing hammer), a Dean, Kerry and Clark 3-some and the governator himself, Arnold Schwarzenegger.

Schwarzenegger's lawyer (Martin Singer of Lavely & Singer) has sent a cease and desist letter to Bosley Bobbers, claiming that the bobblehead caricatures violate Arnold's rights of publicity under California's extraordinarily broad rights of publicity law, California Civil Code Sec. 3344. The Smoking Gun has the C&D letter: Schwarzenegger Threatens Lawsuit over Bobblehead Doll. I'm no fan of the rights of publicity law, which I think gives Hollywood actors far too much control over their image, but this is ridiculous! Governor Schwarzenegger has a right not to be caricatured?!? Give me a break. He should apologize just for threatening such a lawsuit. But it gets worse.

In the last paragraph of the C&D, the governor's lawyer claims that:

This is a confidential legal notice and may not be published, in whole or in part. Any republishing or dissemination of same, including but not limited to the posting of the contents hereof on the Internet, shall constitute a copyright infringement and will subject the re-publisher(s) to civil liability for such actions.

Yeah, right. I dare them to take me to court for publishing that. Lawyers really tork me off sometimes. Thank god for websites like Chilling Effects.

via The Trademark Blog

April 29, 2004

Meet The New iTunes, Less than the Old iTunesEmail This EntryPrint This Article

Jim Heid's Mac iLife 04 Site has an excellent review of the numerous changes in Apple's new version of iTunes 4.5 (iTunes 4.5: More to the store, new ways to play, and ripping without losing).

One of the major changes, he notes, is stricter DRM on the songs you buy from the iTunes Music Store:

In iTunes 4.5, you can authorize up to five Macs or Windows computers to play your purchased music -- up from three. But Apple giveth and Apple taketh away: you can now burn a playlist containing purchased music up to seven times (down from ten). And the old workaround of simply changing the playlist slightly does not work.

So after one year and 70 million songs, $0.99 now buys you less rather than more -- seven hard burns instead of ten soft ones. What will Apple "allow" us to do with the music we "buy" next year? three burns? one? zero?

And what about the songs you've already bought? Don't we get to keep the rights we had before the change?

Well, Apple has conveniently reserved its rights to make changes -- unilaterially -- to its DRM and your ability to make fair use via its Terms of Service and Terms of Sale pretty much anytime it pleases, without even having to give you notice:

Continue reading "Meet The New iTunes, Less than the Old iTunes"

April 23, 2004

Trusted Computing/DMCA v. Diebold's Pentagon PapersEmail This EntryPrint This Article

Ernie breaks a great story about Jones Day suing the Oakland Tribune to take back the memos they wrote about Diebold's risky ventures in California over uncertified e-voting machines.

While Jones Day chose to use legal tools to restrain news reporting and Free Speech in this case, keep in mind that if we had Trusted Computing, Jones Day could have written the documents in a word processing application that required an attestation that the reader was authorized to access the documents before decrypting them.

If this was the case, the reporters at the Tribune would never have been able to read the documents even after they had acquired them because the application would not "trust" them to decrypt the contents. Unless, of course, they attempted to circumvent the attestation requirement and "hack" into the document, thereby invoking dangers under the DMCA.

When the Diebold email archive and memos were posted on the net by the Swarthmore students and others, Diebold sent DMCA take-down notices to shut down their speech. But there, the students were able to respond and repost the documents. They were able to claim fair use as a defense to the allegations that they infringed Diebold's copyrights in its internal memoranda and emails. With Trusted Computing and the DMCA, fair use is no defense. Under current law, circumvention of Trusted Computing and/or DRM is arguably a criminal and civil violation -- whether your purpose is to publish the Pentagon Papers or the Diebold Papers.

April 22, 2004

FBI Raids Public Schools in AZEmail This EntryPrint This Article

While the FBI has had trouble tracking down Osama Bin Laden and other terrorists, they appear to have had no problem locating and raiding another group of alleged lawbreakers: public school childrencopyright infringers.

Federal agents in Phoenix and elsewhere in the country raided schools and other targets in a national crackdown on pirated music CDs and movies.

Agents poured through data and records at a computer command center for the Deer Valley School District in the northwest Valley and blocked the office from the public. It was among other places in Arizona and "quite a few other states" where sealed search warrants were served, the FBI said.

DOJ Press Release on the raids, which not surprisingly, doesn't mention that public schools children were amongst the targets.

Update: Alright, alright. I suppose my post was implying a bit too much. We don't know whether the target of the FBI raid was children or employees. But we do know that the FBI is expending significant tax dollars and public resources in these raids. While this isn't unusual in the context of commercial bootlegging, pre-release distribution and/or organized crime-related copyright infringement, it is unusual if the infringement is standard non-commercial community copying. It signifies quite a step up in scope of the FBIs efforts.

The real question is, what are the tradeoffs? Are there terrorist or other threats they could be investigating instead of busting warez pirates? What are the real costs of such a campaign?

April 21, 2004

MichaelFroomkinWiki: Are You Copyright Experienced?Email This EntryPrint This Article

Prof. Michael Froomkin (U of. Miami) has started a Wiki for people to post their good/bad experiences with copyright and academic presses:

So if you have ever published in a law review or a book with an academic press that does legal topics, please consider adding your copyright experience to this database.

I'm a huge fan of collecting experiences dealing with copyright, both as data to assess the pros and cons of current copyright policies and to provide useful negotiating tools.

April 20, 2004

The Killing Fields of Free CultureEmail This EntryPrint This Article

J.D. Lasica has written a vivid expose of the tragic story of Jed Horowitz, former owner of Video Pipeline and Willful Infringement documentarian:

"My mother was a children's librarian, and she imbued me with a world view that culture is a conversation, that you don't own stories, you share them," he tells me. "What has happened over the past few decades is that culture has become privatized to the point where we're now facing a crisis. We need to remember we can still quote and sample, we still have fair use. As a free culture, we're still allowed to do things without permission."

April 19, 2004

Prelude to a CFPEmail This EntryPrint This Article

Megatokyo, via Jason @ LawGeek: Just about every issue we'll be tackling at CFP.

Speaking of which, here is the URL(s) to watch for weblog commentary on the conference -- there will evidently be a mini-blog for each session. I'll be re-posting the sessions I blog over there here @ Copyfight.

Post script: Here's another spot to catch CFP action -- featuring commentary by Bruce Umbaugh & folks from The Well.

Bad Patents in for a SpankingEmail This EntryPrint This Article

EFF today announced a new initiative that's been in the works for some time: The Patent Busting Project.

The media release contains a few words from two people familiar to Copyfight readers:

"'Patents traditionally only targeted large commercial companies,' said EFF Staff Attorney Jason Schultz. 'Now bad patents are threatening non-profits, small businesses, and even individuals who use software and Internet technology. These threats target non-commercial personal use, such as building a hobbyist website or streaming a wedding video to your friends.'

'More and more, people are using software and Internet technology to express themselves,' said EFF Staff Attorney Wendy Seltzer. 'Patent owners who threaten this expression are creating a chilling effect on free speech.'"

EFF white paper on the project; Wired news piece.

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

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.

April 16, 2004

Copyright in Fireworks DisplaysEmail This EntryPrint This Article

LawLawLaw has been following what might have been a very interesting copyright story regarding whether one can copyright a fireworks performance in a such a way that it would be illegal to broadcast the performance from cameras placed in a public location (Zambelli gets copyright for Thunder script as TV war heats up). According to the Louisville, Kentucky Courier-Journal (Zambelli gets copyright for Thunder script as TV war heats up):

WAVE-TV paid the Kentucky Derby Festival $50,000 for exclusive broadcast rights to Thunder in a bidding process that three of the four major Louisville stations participated in.
But WHAS-TV, which had been the "official" Thunder station for several years, was outbid. It later announced it would broadcast the event without a contract, contending that Thunder is a news event on public property open for anyone to see, including its cameras.

The copyright issue raises many interesting questions, especially in an era where cameras are almost universal accessories. Of course, the case that seems most on point is not exactly a copyright case, but involved the right of publicity for a human cannonball perfomer. Zacchini v. Scripps-Howard, 433 U.S. 562 (1977).

However, The Louisville Channel subsequently reported that WHAS has since backed down from its claim that they would broadcast the show (Spat Over Thunder TV Rights Cools).

April 08, 2004

Broadcast Flag, SupersizedEmail This EntryPrint This Article

Two essential posts on the WIPO Treaty for the Protection of Broadcasting Organizations (PDF), a form of broadcast flag Writ Large that threatens to remove many of the public's rights under the copyright laws of most countries in the world:

WIPO Considering a Ban on Computers: "[This] provision, if adopted, would apparently require signatories to the treaty to ban the importation, sale or distribution of computers" [Edward Felten @ Freedom-to-Tinker].

The Broadcast Flag Treaty - Draft Available: "No more VCR, DVD-R or TiVo for you. So much for time shifting. Goodbye Sony v. Universal, it was nice knowing you" [Co-Copyfighter Ernest Miller @ home].

April 01, 2004

Clarke Unhappy with Remixed Campaign CultureEmail This EntryPrint This Article

Yesterday, I noted (following Freedom to Tinker) the possibilities of our remixing culture's effects on conventional politics (Remix, Reuse and Vote). At the end of my post I wrote:

Bonus: Many such uses [of remixed culture] in a campaign would be classic examples of fair use both as political commentary and parody. Copyright law would have a hard time stopping such uses.

Apparently, former White House counterterrorism chief Richard Clarke doesn't read Copyfight, as this AP wirestory published an SFGate.com demonstrates (Clarke asks anti-Bush group to pull TV ads with his criticisms). Clarke isn't sure of his legal ground, but he wants everyone to know he is unhappy how his words are being used. Of course, CBS isn't too happy with Moveon.org "using CBS News copyrighted material without permission and to advocate a point of view." Too bad. Get used to it. Welcome to the world of Rip, Remix and Vote.

See also, LawMeme's take (IP Law: Bringing Clarke and Bush Together)

Amazon Receives Patent on Browser Cookies; Stallman ProtestsEmail This EntryPrint This Article

ZDNet UK reports that Amazon.com has received a patent on "Use of browser cookies to store structured data." Amazon claims to have invented such use on February 2, 1999.

Understandably, this has angered a number of software/net activitists, including Richard Stallman, who is now threatening to call for a boycott of Amazon.com if they attempt to assert this patent as they did their infamous 1-Click patent:

"If Amazon begins attacking anyone over this, we will relaunch the boycott of Amazon," Stallman wrote in an email to ZDNet.

To read my quick-and-dirty analysis of its first Claim, click here.

March 31, 2004

Rental NationEmail This EntryPrint This Article

BetaNews reports on a new form of DRM from Microsoft that will be part of MSN Music and tightly integrated with MS Windows (Microsoft Remakes DRM for MSN Music Service). This new form of DRM is a secure clock technology code-named "Janus," which

enables songs distributed under a subscription model to be transferred to portable devices, with a built in "time bomb" that enables songs to expire in the event that a customer's subscription lapses.

Although Janus has been publically discussed since at least June 2002, observers hadn't expected it to come out so soon. Undoubtedly, MS is feeling a little pressure from Apple's iTunes.

Continue reading "Rental Nation"

Korean Copyright Owners Demand Reduce Functionality for CellphonesEmail This EntryPrint This Article

The Korea Herald has a rather disturbing story to report with regard to innovation in Korea (Music industry emits static on MP3 phones). Apparently, developers of cellphones in Korea have begun adding MP3 capability to the small, ubiquitous, portable devices. An obvious enhancement for cellphones, I would think. However, the Korean equivalents of the RIAA were upset by this and have essentially forced Korean cellphone manufacturers to reduce the quality of playback for non-DRM'd music:

After fierce debate over the new mp3 phone, the two parties have found some common ground by agreeing that MP3 phones can play illegal music files, but only at low sound quality.
....However, the controversy is still raging with Samsung Electronics insisting that record producers should eventually let them have at least 96kbps.

Hopefully, the RIAA won't try something like this in the States.

UPDATE: The Korea Times has more info: MP3 Phone Disputes Show Sign of Settlement.

March 30, 2004

The King of Copyright Has Left the BuildingEmail This EntryPrint This Article

The Scotsman, "Scotland's National Newspaper," is all shook up about the sad tale of a backwater Scottish town that believes it is the birthplace of Elvis Presley's forefathers (When Copyright is King). The town thought to attempt to promote itself as a place of pilgrimage for the King's fans. Unfortunately,

Within 24 hours of the discovery, Elvis Presley Enterprises had issued a reminder that it owns all the intellectual property (IP) rights in his name, his image and his songs, including the trademark of the very words Heartbreak Hotel.

The article goes on to detail how tightly EPE controls the King's copyrights, trademarks and right of publicity (for someone 26 years dead).

via Not Quite a Blog

March 29, 2004

Berkman on iTMSEmail This EntryPrint This Article

The Berkman Center has released a 100-page case study of the iTunes Music Store, discussing the laws and treaty obligations around the music store, including its DRM system, the triple-pun FairPlay. The study is part of their Digital Music Project and the principal investigator is Terry Fisher, of compulsory licensing fame.

(Unfortunately, the study itself seems to be unreadable in Mac OS X's Preview for some reason. It works fine in Adobe's PDF reader.)

If you're more interested in the technical rather than legal aspects of FairPlay, Jon "DeCSS" Johansen has reverse-engineered it for VLC, so that you can play your songs on GNU/Linux, Windows, OS X, or whatever other system you like as long as you have a Windows system or iPod.

Homework assignment: use Johansen's C code and additional research to write up an English explanation of how the FairPlay system works. Extra credit: include a security analysis.

UPDATE: My crack at the assignment is up. Comments, corrections, and additions are appreciated.

March 27, 2004

Nashville Songwriters Lament Their Dying ProfessionEmail This EntryPrint This Article

AP had an interesting article the other day on the declining number of professional country songwriters in Nashville. The article is mostly a lament about the loss of a culturally significant and important profession, but it also speculates on reasons for the decline, including corporate mergers, media consolidation, and music piracy:

Herbison puts much of the blame on radio consolidation, which he says has made it tough to get airplay and the royalties that come with it. Nine years ago, he said, there were 5,400 country music stations, compared with 1,700 today. The stations' music playlists have also been shrinking to make room for more commercials and talk shows, he said.

"Three people program 85 percent of all country stations in America," Herbison said. "They sit in office towers and don't know George Jones from George Clooney."

Songwriter royalties from CD sales are about 8.5 cents per song; that's usually split between the writer and the publisher. Often, the songwriters' cut is even less because he has to share it with a co-writer.

The big money for most successful songwriters is from performance royalties, which are paid when a song is played on the radio.

"The biggest lick a writer can make is having a single that does good on radio," said Fred Knobloch, who has written songs for Faith Hill, George Strait, Ray Charles and Trisha Yearwood. "You want singles, and you want them bad."

But there are fewer big record labels to release and promote those singles. A series of mergers has left only five major music companies: Universal, Warner Bros. and EMI, plus Sony and BMG, which are planning to merge.

Many in the industry - writers, producers, musicians, publicists - have lost their jobs in the shuffle.

"I get at least a call a week, sometimes two, from people who had jobs in this business a year ago that are looking for work," Knobloch said.


As for music piracy, or downloading music for free from the Internet, everyone believes it's a problem, but not the worst one. Ultimately, many predict, the technology will help songwriters and performers more than hurt them. The challenge now, they say, is for the record companies to catch up to changing technology and consumer demand.

March 25, 2004

Copyrighting Newspaper Headlines?Email This EntryPrint This Article

Japan's English-language Mainichi Daily News reports that a lawsuit alleging copyright infringement for a website that copied newspaper headlines was dismissed (Court denies copyright for Web news headlines). The district court judge ruled that headlines were not creative expression:

"These headlines were created within 25 characters, and either stated objective facts, or used only very short qualifying words, and cannot be described as creative expression," the ruling said.

I know nothing about Japanese law, so I can't comment on that, but it is interesting to consider how such a case might be decided in the US. I'm not so sure a US decision would come out the same way.

For example, the bar for finding creativity is quite low. It depends on the style of headline somewhat, but likely headlines rise above that bar. Heck, the American Copy Editors Society awards prizes each year for the best headlines: ACES 2003 Headline Contest: Winning Entries. So, I don't think the "it isn't creative" line would work.

One could argue that the copying was "de minimis." This is a copyright doctrine which is based on the adage, "the law does not concern itself with trifles," meaning that very small or insignificant amounts of copying don't really count. The law here isn't very clear, but I don't think this defense would fly in this case. It might fly for a headline here or a headline there, but routinely copying every headline is probably not de minimis.

This leaves that old standby, the fair use defense. Without going into an exhaustive discussion, the four factors:

1) What is the character of the use?

Not a good one for the defense. This is pretty obviously a commercial use by the internet service firm. Might be different for a blogger, perhaps.

2) What is the nature of the work?

Probably goes for the defense. Generally, copyright infringement for phrases is pretty thin. The shorter the phrase, the more difficult it will be to distinguish the idea from the expression, especially as the headlines will be tied to some factual circumstances. Unless the headlines are routinely highly imaginative, they most likely tend much more towards the factual.

3) How much of the work is used?

The amount taken and the length of the headlines will be a major, though likely not a decisive factor. It will probably go in favor of the defense.

4) What will be the effect of the use upon the potential market for or value of the copyrighted work?

This will be the critical factor, as usual, I think. I could see it going either way. Even though the headlines would be more likely to spark interest in the full articles and send traffic to the newspaper, there is probably a market for a headline syndication service.

Verdict: Who knows?

via Techdirt

March 24, 2004

Slashdot Calculates RIAA Lawsuit Layaway PlanEmail This EntryPrint This Article

A commenter over at Slashdot has calculated, given the current odds of being sued by the RIAA for file-sharing, how much you would need to save every month to pay off your eventual settlement.

The magic number? $0.01483 per month. Even assuming the RIAA stops settling and gets $1,000,000.00 judgments against every defendant, the number only goes up to about $5.00 per month.*

* Gee, haven't we heard that amount mentioned somewhere else recently?

Here's the text:

Given your numbers an illegal file sharer can calculate their monthly financial risk from RIAA lawsuits.

Your numbers are:
Time (T)=8 months
Probability (P)=1/25290
Cost (C)=3000

With monthly financial risk = (P*C)/T, if each month you put away 1.483 cents, you would on average have enough money to pay your settlement fees by the time you were sued.

Now assume that the RIAA gets more aggressive and settles less, and through the courts gets a $1 million verdict in 100% of the people it sues (1977 people / 8 months). The monthly financial risk then is $4.94 a month.

Real HypocrisyEmail This EntryPrint This Article

Derek Slater points out the hypocrisy of Real Networks' complaints about Apple's proprietary DRM for iTunes when Real is busy promoting its own proprietary DRM called Helix (Pot to Kettle: You are Black). My favorite part of Real's complaint is how it is phrased as advice for the benefit of Apple (Real's Glaser exhorts Apple to open iPod):

"Apple's (market) share will go down if they continue to do this. The only way to presently put songs on an iPod is to (buy) them from iTunes," Glaser said, referring to downloads purchased from online music stores.

Of course, Real fails to note that iPod supports non-DRM'd MP3s. How about that?

Doesn't anyone get that the ongoing DRM Babel is only slowing market adoption and doing very little to inhibit piracy? And, oh yeah, even if one proprietary DRM scheme does manage to dominate the market, are copyright owners really going to be better off with some technology company that has a stranglehold on one layer of the distribution stack?

March 23, 2004

Crawford on the Broadcast FlagEmail This EntryPrint This Article

Not that Crawford. This one.

(Via Jenny Levine @ The Shifted Librarian).

March 22, 2004

Eldred IIIEmail This EntryPrint This Article

First there was Eldred v. Ashcroft, in which Internet publisher Eric Eldred challenged Congress's power to extend the term of copyright seemingly ad infinitum--and failed. Then there was Golan v. Ashcroft, in which music conductor Lawrence Golan continues to fight Congress's "restoration" of copyrights to works that have passed into the public domain.

Now, there is Kahle v. Ashcroft, in which two archives--Brewster Kahle's Internet Archive and the Prelinger Film Archive--have launched a challenge arguing that the Berne Convention Implementation Act (BCIA) and the Sonny Bono Copyright Term Extension Act (CTEA) together create an "effectively perpetual" term with respect to works first published after January 1, 1964 and before January 1, 1978, thereby violating the Constitution's Progress Clause.

"This case is about freeing culture from unnecessary and harmful regulation," said Chris Sprigman, CIS fellow and lead plaintiff attorney in the case. "We will focus on a series of recent changes to copyright law that have failed to benefit copyright owners, but have instead created serious burdens on those who create digital culture."

Complaint here [PDF]; FAQ here.

March 20, 2004

Scoping out Trademark Abuse OnlineEmail This EntryPrint This Article

James Gleick chronicles the increasingly frequent collisions between trademark claims and rationality in Get Out of My Namespace, NYT Magazine. Some of his examples could be drawn straight from the pages of Chilling Effects, where we see corporations threatening those who use similar names in unrelated fields (Pet Friendly, Inc. against Pet Friendly Rentals), or those whose names couldn't plausibly have been confused (PayPal against PayPalSucks.com).

Elsewhere, and even in pre-Internet trademark law, we've solved these problems by distinguishing among namespaces -- different realms in which the same name can have different meanings. Computer programmers recognize that identically named variables can have different values in different scopes; trademark lawyers of 50 years ago recognized that a "Dawn Donut" in New York didn't interfere with "Dawn Donut" in Michigan. The advent of the Internet should make us more careful in scoping our references, not throw sense out the window by giving contested domain names to the highest bidder.

Says Gleick: To cope with the dynamic, entangled, variegated nature of our information-governed world, perhaps the law just needs to relax -- loosen the cords, instead of tightening them.... The law needs to prevent miscreants from pretending to be people they're not or from passing off spurious products -- but that is all. BODACIOUS-TATAS.COM may be unsavory, but it was not fooling anyone; it was not trying to impersonate the House of Tata; its wares were exactly as advertised.

Namespaces will collide. Let them.

March 18, 2004

Trump Now in the IP BizEmail This EntryPrint This Article

Donald Trump is seeking ownership of a brand new property. Nope, not another skyscraper. He wants the catchphrase from his new hit show, The Apprentice. That's right--Trump wants to own the words "You're Fired."

ABC News reports that Trump is looking to "copyright" the phrase, which of course you can't do. You can, however, trademark a phrase, and in this Trump may very well succeed.

The Reuters piece includes a rare touch of evidently borrowed humor: "Trump might have competition: A search of the PTO's database revealed that three other applications for 'You're fired' have been filed. [Wait a beat.] No applications appear to have been filed for 'You're outsourced,' however."

March 17, 2004

Mobile Phone Maker LG Clashes with Korean RIAA over MP3 PhoneEmail This EntryPrint This Article

KoreaTimes runs a story today about the inevitably brewing conflict between mobile device makers and the music industry over use of MP3s:

LG Electronics, the world's fifth-largest cell phone maker, last week started selling its LP3000 model, an MP3 phone that can save 16 music files at a time.


The Korea Association of Phonogram Producers (KAPP) claimed the rollout is against copyright law and said it will seek to block sales of the LP3000.

The organization of the music producers also stopped providing any phonograms to the LG-made MP3 phones starting March 12.

LG Electronics countered that it has incorporated digital rights management (DRM), solutions devised to prevent illegal play of music files, into the LP3000 phones.

However, the KAPP claimed that already back-door programs enabling free play of music files via the LP3000 are available on the Internet.


Following LG, the world's third-biggest cell phone maker Samsung Electronics also plans to release a similar phone within this month.

As the article suggests, this issue is only going to intensify. The RIAA has had enough trouble tracking down infringers based on home ISP accounts. Wait until they try to go after mobile devices, which can be shared, sold, or stolen with incredible ease. DRM can't keep ever song under lock and key. So what's the solution, Trusted Phoning? I hope not...