Via Siva Vaidhyanathan, Andrew Raff's round-up of weblog commentary on the Google Print library lawsuit, highlighting the sharp differences of opinion among people who typically agree. To wit:

Larry Lessig:

It is 1976 all over again. Then, like now, content owners turned to the courts to stop an extraordinary new technology. Then, like now, copyright is the weapon of choice. But then, like now, the content owners of course don’t really want the court to stop the new technology. Then, like now, they simply want to be paid for the innovations of someone else. Then, like now, the content owners ought to lose.

[...]

Google’s use is fair use. It would be in any case, but the total disaster of a property system that the Copyright Office has produced reinforces the conclusion that Google’s use is fair use. And for all those people who devoted years of their life to defend the right to p2p file-sharing — here’s your chance to show what this battle is really about:

Google wants to do nothing more to 20,000,000 books than it does to the Internet: it wants to index them, and it offers anyone in the index the right to opt out. If it is illegal to do that with 20,000,000 books, then why is it legal to do it with the Internet? The “authors’” claims, if true, mean Google itself is illegal. Common sense, or better, commons sense, revolts at the idea. And so too should you.

...and Siva himself:

...[This] whole thing looks like a dark, gathering storm. It's not just Google betting the company. It's Google gambling with all of our rights under copyright -- both as copyright producers and users. Many good things could be washed away. This case strikes at the heart of both Google and copyright. It's not some clever fair use algorithm. It's not just one in a string of cases that will slightly expand or slightly constrict users' rights (and, please remember, users are not a party to this suit). It's about the very defining essense of copyright and about corporate copying on a massive and unprecedented scale.

Michael Madison's latest post in some sense serves to bridge the two:

We agree on the stakes; we disagree on the tactics. How do we protect users’ rights and the public domain?

The problem is that the public domain cannot sue to protect itself. (Note the echo of environmental law.) Individual users can sue to protect their interests in the public domain, but we’ve seen first-hand the limits of that strategy. Regardless of your view of the merits of Eldred v. Ashcroft, it was pretty difficult for Eldred’s legal team to get more than 2 members of the Supreme Court to see why any of this mattered.

The next best strategy is to enable proxies to stand for the public domain. Proxies are imperfect in lots of ways, but one thing they have — especially if they happen to be large corporate entities — is a business model that depends on access to information.

...[If] we recognize Google as a proxy, then I continue to believe that sometimes you fight the fights that need fighting, not just the fights you can win.

[...]

I haven’t been an academic so long that I’ve lost the litigator’s sense that sometimes, a case deserves to be litigated and maybe even tried. I think that this is one.

As my EFF colleague Danny O'Brien dryly observes, it looks like the RIAA isn't very happy with its performance in court in the Patricia Santangelo case. It's asking for another try up at bat. Specifically, it has requested a second oral argument and permission to serve a surreply.

What does this mean? Writes Ray Beckerman, Santangelo's lawyer:

The surreply request is unusual because the normal rule is that the party bearing the affirmative burden of persuasion (in this instance Ms. Santangelo) gets to have the last word. The party making the motion bears the burden of persuading the court, and serves its motion papers. The opposing party serves its opposition papers. And then the movant gets the last word -- its reply papers.

I would say that asking for a second oral argument is unusual, because (a) in almost 31 years of working in litigation I've never heard of anyone doing it, and (b) the very asking for it is an admission that the first oral argument was lost.

One can only guess as to why plaintiff's lawyers are doing it. Apparently something happened after August 15th to convince the plaintiff's lawyers that (a) they are losing, and/or (b) the case is more important than they initially thought it was. Or perhaps they are doing it because they are hired guns and their client just ordered them to do it.

What do you think?

Previous relevant Copyfight coverage: Do It Right or Not at All (also be sure to check out Mike Godwin's commentary @ Runaround Suits).

Via Cory Doctorow, a must-read interview with Ray Beckerman, the lawyer for the mom who is standing up to the RIAA in court.

Excerpt:

p2pnet: Where will the money to pay for [the lawsuit] come from?

Beckerman: We expect Ms Santangelo's costs to be picked up by the RIAA, since (a) the copyright statute permits the Court to shift the attorneys fees to the losing party, (b) these cases were clearly frivolous and brought in bad faith, and (c) it is a matter of public interest that the RIAA be deterred from bringing more such meritless cases.

[...]

p2pnet: If there are other people near you who want to be represented, will there a limit to their numbers?

Beckerman: As far as I am concerned there should be no limit to how many people we can represent. If we have too many cases we can hire more lawyers.

[...]

p2pnet: Would you be prepared to collaborate with other lawyers/law firms in the US to help other people in the same situation as Patricia Santangelo?

Beckerman: Absolutely. I am thrilled to help the other lawyers and I know they'll help me as well. That is why I have made the litigation documents available online. So that any attorney who is representing victims of the RIAA onslaught will have the benefit of knowing what we did, and what the RIAA's lame arguments are.

Speaking of the RIAA lawsuits, Public Knowledge's Mike Godwin has a new piece criticizing them. It's not about whether or not the recording industry has a right to sue, explains Godwin. It's about the choice to sue in the first place, and how the RIAA is going about doing it:

[It] seems obvious that the RIAA should pick the lawsuits prudently, based on solid evidence, so that when the cases are publicized it will be clear that the defendants deserved what they got.

That doesn't seem to be what's happening, however.

Instead, we see what Wendy Seltzer calls The Attack of the Subpoena-Bots -- automatic weapons-style lawsuits shot into a crowd of people that Internet searches have identified as potentially guilty of file-sharing copyrighted songs. Eager to avoid the expense of an attorney and recognizing that settling is the cheaper route, most of these seemingly random targets give up rather than fight. Only, every once in a while, they refuse to settle -- an occurence so rare the RIAA attorneys evidently show up in court still thinking they've got the end-game sewn up.

Godwin provides a fr'instance -- a court appearance by Patricia Santangelo, transcribed here. Explains Godwin, "[The judge in the case] refused to be a mere conduit steering Ms. Santangelo to the RIAA's 'conference center' (which should properly be called a 'surrender center')."

Here, an excerpt from the transcript:

MR. MASCHIO: No, all I was suggesting, your Honor, is that, if she doesn't come with an attorney, that the more direct way of doing this -- and this is just to facilitate things -- is to deal directly with the conference center.

THE COURT: Not once you've filed an action in my court.

MR. MASCHIO: Okay.

THE COURT: You file an action in my court, your conference center is out of it. They have nothing to do with anything.

MR. MASCHIO: Okay. I'll give her my card.

THE COURT: If you are here, you are here as an officer of the court. You're taking up my time and cluttering up my calendar, so you will do it in the context of the Court. Maybe it will be with a magistrate judge, but you will be representing your client, not some conference center. And if your people want things to be done through the conference center, tell them not to bring lawsuits.

Nice. And a wonderful reminder that the lawsuits affect real people with real lives -- even busy judges who may chafe at the role they're being asked to play in this unfortunate, ineffective "education" campaign.

Via Derek Slater, a new blog by the lawyers at Beldock Levine & Hoffman LLP who are fighting the "RIAA's lawsuits of intimidation brought against ordinary working people."

We find these cases to be oppressive and unfair, as large law firms financed by the recording industry sue ordinary working people for thousands of dollars.

We have set up this blog in order to collect evidence and input about these oppressive lawsuits.

My brand-new EFF colleague Corynne McSherry and consumer-rights advocate Ed Foster are tag-teaming to bring us the story of a company called Livingsoft that's decided to use its End User License Agreement (EULA) not only to interfere with first sale rights, but also to punish unhappy customers (see Corynne's piece here and Ed's here). The short of it: Livingsoft evidently allows customers who ask nicely to re-sell the product on eBay; those who don't like the product and say so, however, may not.

Explains Corynne, "[The company president told the customer that he] does sometimes grant permission to re-sell the software ..., but only if the seller has a physical or financial necessity (e.g., an injury or family financial crisis) and asks permission 'courteously' in advance, 'acknowledging that they are requesting a favor rather than demanding a right.'" [Ed.: like, oh, I dunno, the right of first sale?] This particular customer, on the other hand, had the temerity to complain that the software "sucks." Therefore, she would have to keep it forever.

As Ed points out, this is hardly an isolated incident. It's part of an ugly trend of companies using EULAs in arbitrary ways to undermine legitimate consumer rights. By including anti-consumer clauses in their click-wrap EULAs, companies like Livingsoft are forcing people to beg just to be treated fairly. Writes Ed:

[Whatever] restrictive language their attorneys want to the throw into a EULA is supposed to carry more weight than our traditional rights. Of course, if you ask real nice and acknowledge you have no rights of any kind, they may grant you a favor. I for one am deeply grateful for the favor Livingsoft has done us by providing such a stark example of how we can expect businesses of all kinds to treat their customers in the world to which we seem to be moving.

If you've had trouble selling software that sucks, you have people in your corner. EFF is gathering information to help people retain their rights in the face of these kinds of unfair EULAs. Send your story to softwarerights@eff.org -- and be sure to include a copy of the offending EULA. We may be able to help.

Brookings Institute Scholar Ben Klemens has a nice little OpEd over on BI's site about patent reform and why there is an important difference between software patents and other kinds of patents:

However, the key distinction between a drug and a method for using a computer is that few of us own the equipment or have the desire to manufacture drugs. Meanwhile, computers are ubiquitous--and as a result, so is software authorship. If you are reading this at work, there is probably someone in your building writing software right now: perhaps in the form of a company web page, or a script to make the accounting database work better. Thus, a patent on a drug creates potential liability for those companies in the pharmaceutical business, while a software patent creates potential liability for any company with its own website or software customizations, regardless of its business.

Copyfight's own Jason Schultz and EFF Development Director Terri Forman have a new op-ed excoriating companies seeking to levy a patent "tax" on online giving and activism:

In recent months, there has been some controversy in the philanthropy world over an unusual topic -- business method patents. The stink has arisen because a few companies that provide services to nonprofits are starting to patent their online techniques versus real technical innovations -- things as basic as using email to alert friends to pressing social issues that need support or sending an online "thank you" card to acknowledge a donation.

As stupid and harmful as a patent on "one-click" shopping may be, it's even worse when the claim is for "one-click" activism and philanthropy. If you give $5 to an organization like EFF (or £5 to this new group), you want every dollar to go to the cause -- not licensing fees for the software you're using to make the donation.

Should people who bought the latest Harry Potter book before the release date be forced not only to return the book but also turn over "any photocopies, photographs or electronic copies of any portion of that book," as well as take a strict vow of silence about any elements of the story? A Canadian court thinks so. University of Ottawa law professor/uber-copyfighter Michael Geist thinks not:

People have legitimately purchased the book, yet now face violation of a court order if they fail to return it immediately, discuss it, or do anything else with the book. While a court might look skeptically on an attempt to bring an action against a purchaser who fails to return the book, why the court would grant such a broad order that reaches down to the underlying purchasers suggests that this could turn into a real horror story.

The order could have been a simple injunction covering the bookstore in question; instead, it sounds like something from the PATRIOT Act. Is this truly necessary?

Yesterday I wrote about the Business Software Alliance's less than sterling regard for the truth (Lies, Damn Lies and BSA Statistics). ZDNet UK made the same call yesterday (Lies, Damn Lies and Statistics).

Unless the BSA gets its act together and replaces overstated and misconstrued data with properly researched and carefully presented facts, it will become known as an arrogant organ of propaganda. There is no doubt that it is correct when it calls organised software piracy a major problem for the industry, but it would do well to remember the story of the boy who cried wolf.

Is the Business Software Alliance accused of using misleading statistics again? Is the Pope Catholic?

Last time it was copyright infringement estimates (The Economist Rails on Flawed BSA Piracy Study). Now, ZDNet UK has published a commentary accusing the BSA of playing fast and loose with software patent statistics (BSA Figures Do Not Add Up).

The BSA's latest study claims to prove that software patents are of equal importance to SMEs and large companies, a claim that political parties and some media organisations have taken at face value. But does the study really show that SMEs are of equal importance, or has the BSA presented the facts in a misleading way to lead people to the conclusions they want them to draw?

What do you think the answer is?

BoingBoing is warning that the MPAA is trying to sneak the Broadcast Flag through the Senate in a giant appropriations bill (URGENT: Call your Senator RIGHT NOW or Live With the Goddamned Broadcast Flag Forever!). They have a handy list of Senators and their phone numbers for those who are on the subcommittee. Call, if you can.

cross posted to The Importance Of...

UPDATE 1740PT
From EFF: You Have 48 Hours to Stop the Broadcast Flag

EFF's action alert, geared to people with senators on the committee, is here. Public Knowledge also provides a number of excellent talking points in an email urging readers to phone their senators

One might think that open access to high resolution 3D scans of Michelangelo's David and other cultural heritage works would be a goal of the works' trustees. Nope. They're busy figuring out how to keep people from "pirating" the data.

•    DocBug : Owning David
•    The Importance Of ... : Free the David

First it was cakes, now it's pinatas:

The LA Times has a very interesting story on the lawsuits by big entertainment companies against one of the dirt-floored businesses in central Los Angeles that sells pinatas in the image of characters subject to copyright and trademark protections. I am quoted in that story as saying that a group of large entertainment companies have to sue these tiny businesses, which apparently have revenues often less than $50,000 per year. This is not my view. ...As with most interesting legal questions, there are two or more sides to any set of facts. ...It is almost certainly the case that executives of these companies felt compelled to enforce these rights by issuing cease and desist letters, seeking to get the infringement to stop without going to court, and then to file suit against a handful of the pinateros.

But far from thinking that these executives are compelled to make such a decision, I think it's absurd to have filed them.

Looks like Rush Limbaugh is a copyfighter at heart. Check out his rant yesterday about the restrictions on podcasting and CD copying:

RUSH: There are some things that we can't influence yet [in podcasting] like music because of copyright problems. I continue to hear from people. I guess this is just a testament you have to explain things a number of times. I continue to hear from people, "Well, other shows..."

I read that and I say, "Pfft. What other shows?"

"Other shows have music."

Uh, I don't know what to tell you, folks. We have a battery of attorneys here, and the battery of attorneys has dug deep, and they've given us their opinion on this and it's pretty deadlocked solid. There's nothing we can do about it because of the fact that if we included music, even snippets, that we would be effectively be distributing other people's property, copyrighted property without compensation. It's just that simple. Now some of you have said, "Well, now, if we download stream every day if we listen to the program live on the Internet we get the music there."

...

So here's what I did because I continue to get so much e-mail about music and the podcasts. I went to some of my partners and I said, "I want you to shoot me straight. Is this really a legal opinion or are you just telling me this because it's cheaper?" You know, I don't care. If it offends them it offends them. "I want to know the truth. Is this really the truth or are you just doing this because it's cheaper to do it this way?"

They were righteously indignant and offended and they said, "No, it has nothing to do with that. The cost is prohibitive." I mean there's no system set up for this kind of thing yet. We're away ahead of the curve to do this legally. I can't explain the people that are doing it in a way that we have been told is illegal, and I can't explain why they're doing it, and the fact that they are doing it does not give us the confidence that we could do it ourselves. We have a big legal team that's looked into this.

But I just want to tell you we're continually working on it, which at this point simply means monitoring developments in this whole copyright and piracy law. I know the Millennium Copyright Act is what this is all about, and until that's changed, none of this is going to change. In fact I just saw a story in my RSS reader today that Sony is coming out with a new system to copy-protect their CDs. There's software on their CDs that will allow a maximum of three dubs, three copies, and then it shuts down. So if somebody goes and buy a CD, they can copy it three times, but that's it and it's not on all their CDs. It's a new technology that they are embedding in the CDs, and of course the DVD industry has gotten even much tougher than the music industry has, but it's a huge deal and we have looked at it in every which way and that's what we have been told by the legal eagles. Whatever anybody else is doing out there is of no consequence to us. Based on what we have learned anybody else doing this is doing so at risk, and that's as much as I will say about it.

For background, see Ernie Miller's Rush Limbaugh to Launch Podcast on June 3rd - No Music Though.

A few weeks ago, Jason Schultz noted here that The Economist had found the BSA's copyright infringement statistics laughably inflated (The Economist Rails on Flawed BSA Piracy Study). Well, the BSA has responded in a letter to the editor, according to ArsTechnica (BSA Disgusted with Critiques of Their Inflammatory Piracy Loss Methodology):

SIR – Your article on software piracy was extreme, misleading and irresponsible ("BSA or just BS?", May 21st). The headline was particularly offensive. The implication that an industry would purposely inflate the rate of piracy and its impact to suit its political aims is ridiculous. The problem is real and needs no exaggeration.

Well, that shows The Economist, doesn't it? They better back off on their analysis or the BSA might respond with another empty denial.

Thanks for having me guest-blog at Copyfight for the past week. I'll be traveling this week, and visiting the Berkman Center for the first time.

One note of warning for the months ahead: Keep an eye on cross-industry standards being worked out behind closed doors. Hollywood is pushing hard to require things like "certification" and "renewability" in the next generation of DVD players and other digital devices. The players you own would obey the Hollywood studios' directives, without your even knowing about it.

I paint the grim picture in the latest free excerpt from Darknet.

Prof. Michael Madison brings our attention to a case in which a stage production of Grease was halted by the rights organization because the female cast was going to play female students in an all-girls school putting on a performance of Grease. Got that? Theatre Follies. So, instead, they will be performing Grease and Desist,

the "gleefully, bad ass, unauthorized, '50's rock musical cabaret" that claims "If the creators of South Park and Charles Ludlum had met late one evening in a dark, smokey bar, done shots of jagermeister and danced -- THIS IS THE LOVE CHILD THEY WOULD HAVE HAD."

Yesterday, I blogged about reports of shrinkwrap licensed books (Shrink Wrap Licensed Books). Today, Joe Gratz writes the more cogent explanation of the issue that I was too lazy to write yesterday (Shrinkwrap Licenses for Books?).

LIS News has a report of increasing shrinkwrap licenses being included with reference books (Books with Licensing Contract on Shrink Wrap). The publisher probably figures some court is likely to uphold the license at some point in the future and then things will be golden.

A friend of mine has a new baby and, with family spread across the globe, likes to use online photo-printing services to share snapshots of the growing baby. She can create an online album, load up photos from the digital camera, and invite relatives to browse and print their favorites. Except when they can't.

It seems one picture, of baby seated against the background of their blue sofa, looked too "professional" for Ofoto (Kodak). Though she was permitted to upload the photo and copy it to her browser (view it online), when she tried to print a copy to hang in the office, my friend was confronted with a copyright-based denial: "Your order has been cancelled because it appears your order contains one of the following... 1. Professional images." She could proceed to print only if she signed an affidavit warranting that she was the photographer or had permission from the copyright owner.

Ofoto's form had no place for my friend to indicate, among other possibilities, that she owned the copyright as work-made-for-hire, or that printing would be fair use. She's now looking for a new online printing service.

Yet even that overreaction is better than what Wal-Mart is doing to people who send photos for digital processing, according to The San Diego Union-Tribune: Snap judgments (via BNA):

[Amateur photographer Zee Helmick had taken photos of her son for a audition, and sent them to Wal-Mart for printing. When she went to pick them up, a Wal-Mart clerk told her] "We can't release the pictures to you without a copyright release form signed by the photographer."
...
The clerk said the photos looked like a professional had taken them, Helmick said. And no matter how much Helmick protested that she, an amateur, had snapped the shots of her son, she said the clerk wouldn't budge.

Helmick didn't have a copyright release with her, so she offered to write a note stating that she had taken the photos. She said Wal-Mart refused even that.

I guess Canon's copyright warning is just one manifestation of a general photo-insanity. Not to mention lawyers going after the free software program Gallery.

In addition to attempts (highlighted in this blog by Donna and by Ernest) to get Congress to write the laws it wants, the Cartel has gone directly into the cop business. The LA Times reports that the MPAA has given the city $186,000 to pay for pole-mounted cameras placed to spy on LA's streetside DVD bootleggers. Because, you know, the police really don't have anything else to do so they really ought to spend their time on this.

And when you can't get real law enforcement to do your legwork, do it yourself. Apparently this has been the philosophy of the Australian music industry's piracy investigations unit, which admitted in court that it had been "tailing" Sharman Networks' CEO Nikki Hemming's premises on a "continuous basis" for several months. I'm not familiar with Australian law, but in the US this isn't precisely legal. I'm particularly taken with this assertion from Speck: "Conducting an investigation into a shadowy organization hiding behind a veil of secrecy and surveillance is a normal practice." Uh, sure thing, mate... if you're the cops!

The Baltimore Sun reports that the copyright holders of Big River, which is based on Mark Twain's The Adventures of Huckleberry Finn, denied permission to C-SPAN to air a performance of a song from that play by high school students on a show that celebrated high school theatre (Racial Roles Bar Students from Show). The reason given by the copyright holder is that the role of Huck was played by an African-American student and the tole of the slave, Jim, was played by a white student.

Apparently, Mark Twain's great commentary on race relations in America could not be sullied by further commentary through cross casting.

When John Milewski, executive producer of Close Up, asked R&H Theatricals in New York - the Rodgers & Hammerstein organization, which holds the license on the play - for the right to air the students' performance, permission was denied. The reason was cross casting, R&H confirmed.

Bert Fink, a spokesman for R&H, said his organization is not against cross casting, citing a 1997 Wonderful World of Disney version of Cinderella that featured R&B artist Brandy in the lead. "But when you're dealing with a theatrical work and race or ethnicity is a key factor, many authors or playwrights feel strongly that ethnicity has to be reflected in the actors who portray the characters," he said.

"In the books, Jim is a runaway slave. He is clearly in the novel an African-American man. And Huck is a free white man - that is central to the story. To ignore that component or to comment on it by switching is not faithful to the story that the musical's authors are trying to tell."

Faithful? Faithful? Heck, it couldn't be more faithful to what Mark Twain was trying to accomplish. Bloody idiots.

UPDATE 0940

Siva Vaidhyanathan debates an IP lawyer commentator regarding the issue (Who is Copyright For?).

Courtesy of boingboing: the story of a teacher in Spain who has been subject to a purge - loss of job, reputation, and apparent revision of history to claim he never taught at the Polytechnic University of Valencia UPV.

The "criminal?" Cory's friend Jorge Cortell. The "crime?" Teaching (to a packed hall) about the law and benefits of legal uses of P2P. Sr. Cortell apparently made the mistake of informing the national police and the attorney general in advance. They exerted pressure that led to Cortell's eventual firing.

Cortell has posted his summary of the story (in English) along with links to blogs and mainstream media coverage.

Props to NTK for pointing out Microsoft's "Thought Thieves" short film competition. This jim dandy of a propaganda front is supposed to encourage people (primarily teenagers) to create films on "how intellectual property theft affects both individuals and society." The mind boggles. Can I please make a film about Burst, InterTrust and the umpty-zump other companies that have sued Microsoft for stealing their intellectual property?

But wait, there's more...

Microsoft helpfully tell us that entries must be the "sole work and creation of the
person submitting the film." This means, to quote NTK, "no sharing your precious intellectual property fluids with your cameraman, Mr Auteur"!

The very name ought to give pause, conjuring up as it does mad scientist images of evil mind rays siphoning out those delicate cranial gems. Never mind the basic intellectual property concept that thoughts are not protected, only various expressions of them. NTK has offered its own prizes for copies of submitted entries; somehow that seems like it'll be much more interesting.