/home/corante/public_html/copyfight/ the politics of IP en-us wex@hovir.com 2013-05-13T08:26:00-05:00 hourly 1 2000-01-01T12:00+00:00 http://copyfight.corante.com/archives/2013/05/13/two_proposals_to_change_the_rules_one_good_one_bad.php There are two proposals starting the crawl toward daylight, both of which could reshape our interactions with certain digital media and devices. Unfortunately, while one would move us forward, one would be a giant step back. Let's look at both. Bad news first: in a move that translates as "It's a good idea because we say it's a good idea", the W3C has decided to go ahead and put official DRM crap into its official standards because see good idea we say so. To begin with, let's be very clear: DRM doesn't help anyone. Someone else putting a lock that... 76410@/home/corante/public_html/copyfight/ Laws and Regulations 2013-05-13T08:26:00-05:00 http://copyfight.corante.com/archives/2013/05/12/cafc_muddies_patent_waters_with_a_power_blender.php There has been a lot written already about last week's Court of Appeals for the Federal Circuit "decision" in CLS Bank v. Alice Corporation and I'm sure there's more to come as people dig into the details of the full house of opinions. For now the writing that most closely mirrors my own view is Gene Quinn over at IPWatchdog. Quinn echoes a number of other commentators who have thrown up their hands in a combination of desperation and frustration and said "seriously, guys, WTF?" First a bit of background for those new to this game: CAFC is supposed to... 76408@/home/corante/public_html/copyfight/ Laws and Regulations 2013-05-12T10:31:51-05:00 http://copyfight.corante.com/archives/2013/05/07/could_the_us_government_finally_be_moving_on_ip_law_problems.php The list of news topics about laws and problems grows week by week: computer intrusion laws being overbroad, DMCA exemptions not being granted for everyday activity with technologies, patent trolling, maximalist copyrighting - all ultimately come down to the laws' failure to keep pace with the rapid evolution of technology and online social/commerce activities. A pair of recent news stories makes it look like Congress might actually be gearing up to do something. In the copyright arena, the Chairman of the House Judiciary Committee, Robert Goodlatte, announced late last month that his committee would conduct a "comprehensive review" of US... 76395@/home/corante/public_html/copyfight/ Laws and Regulations 2013-05-07T08:59:23-05:00 http://copyfight.corante.com/archives/2013/05/01/british_photo_copyright_orphans_concern.php A friend pointed me to an alarmed posting in the British Journal of Photography. The column, by Olivier Laurent, outlines the potential highly negative impacts particularly for photographers of a new copyright framework that is wending its way through the British legal approval process. The original goal of the framework is laudable: find a way for people to be able to make use of orphaned works - those items presumed to be under copyright but whose owners cannot be located. As copyright terms continue to be extended more and more work exists in this weird limbo state - someone has... 76381@/home/corante/public_html/copyfight/ Laws and Regulations 2013-05-01T10:45:41-05:00 http://copyfight.corante.com/archives/2013/04/28/second_circuit_restores_traditional_fair_use_tests.php In overturning Judge Deborah A. Batts's decision, the Circuit court has ruled that her novel interpretation of fair use evaluation conflicted too much with established law and precedent. Quick reminder: fair use is not an absolute doctrine. Rather, it's a series of tests and criteria applied to a reuse that might be copyright infringing to determine whether infringement applies. Different courts have used different sets of criteria or weighed them differently, and interpretations have shifted over time. For example, recently it has been much harder to get fair use protection for parody and other humorous forms of commentary. In this... 76371@/home/corante/public_html/copyfight/ Laws and Regulations 2013-04-28T18:31:27-05:00 http://copyfight.corante.com/archives/2013/04/19/safe_harbor_youtube_wins_another_round.php Yesterday YouTube prevailed again in its long-running fight with Viacom over whether or not the service is protected by the DMCA's "Safe Harbor" provisions. As I noted almost a year ago, the Second Circuit had remanded back down part of the previous YouTube victory for further exploration at the trial level. Earlier, in 2010, YouTube had established that it was a safe harbor-protected entity; the remaining question was whether the service had followed the practices required by the law. YouTube had both to show that it did not have immediate knowledge of infringing material and that once it was notified... 76356@/home/corante/public_html/copyfight/ Laws and Regulations 2013-04-19T08:07:39-05:00 http://copyfight.corante.com/archives/2013/03/19/scotus_reverses_in_kirtsaeng.php Thanks to my friends at Owner's Rights Initiative I just got word that the Supreme Court decision in Kirtsaeng v Wiley has been issued, and the decision has gone 6-3 to Kirtsaeng, reversing the Second Circuit. Publisher's Weekly confirms - as of this writing there hasn't been a statement yet from Wiley, nor have I had time to read the decision and dissents or concurrences. I'm sure there'll be more to say later. But for now all libraries, individual sellers, used bookstores, and the rest of us can breathe a sigh of relief. ETA: decision is here. I'm still reading... 76287@/home/corante/public_html/copyfight/ Laws and Regulations 2013-03-19T10:52:12-05:00 http://copyfight.corante.com/archives/2013/03/06/next_moves_in_the_dmca_mexican_standoff.php Well, that didn't take long. A couple days ago I noted that both the Obama Administration and the FCC had weighed in as being opposed to the Librarian of Congress's decision not to renew the cellphone jailbreaking exemption to the DMCA. I closed by wondering aloud who was going to move next. Well it turns out that both Congress and the EFF have decided to take up the issue. CNET's Declan McCullagh provides a brief history and overview. (I have to wonder if he'll be allowed to continue reporting on this once CBS figures out that DMCA exemptions and changes... 76262@/home/corante/public_html/copyfight/ Laws and Regulations 2013-03-06T17:01:26-05:00 http://copyfight.corante.com/archives/2013/03/04/whitehouse_says_yes_to_unlocking_phones_librarian_of_congress_yawns.php Remember that petition started at whitehouse.gov for people to advocate for the continuing ability to unlock their cellphones? Well, the official response from the Obama administration is in and, to my surprise, it's a very clear "yes you should be able to do that." In fact, the official response from R. David Edelman published this afternoon went further and included tablets and other mobile devices. The response, which is fairly lengthy, notes that this is consistent with past administration position, as published by the Department of Commerce's National Telecommunications and Information Administration. The NTIA had in fact recommended that the... 76255@/home/corante/public_html/copyfight/ Laws and Regulations 2013-03-04T17:01:52-05:00 http://copyfight.corante.com/archives/2013/02/25/for_your_convenience_your_isp_is_now_spying_on_you.php Once upon a time Dave Barry wrote a great column about how corporations in general used the phrase "for your convenience" to mean "we're doing whatever the hell we please but we want you not to hate us for it." Companies make changes that people hate but slap the "for your convenience" label on it on the theory that people are stupid and easily duped. His edge case example was something like a supermarket announcing "For your convenience we've filled the parking lot with rabid weasels. Have a nice day." It's good to see we've made progress. Here in the... 76236@/home/corante/public_html/copyfight/ Laws and Regulations 2013-02-25T16:01:36-05:00 http://copyfight.corante.com/archives/2013/01/29/legal_and_illegal_international_copyright_regimes.php Interesting AP item reported in yesterday's Washington Post: online gambling havens may be setting up to extract a "copyright tax" on US-bred content. The story starts with online gambling, which the island nations of Antigua and Barbuda (among others) have and want gamers to play. The US has a Puritan streak about a mile wide and has blocked its citizens from accessing these offshore casinos. The small nations then went to the WTO, complained of restraint of trade, and won. WTO cases normally come with a judgement intended to even the economic scales. For example, if China loses a WTO... 76172@/home/corante/public_html/copyfight/ Laws and Regulations 2013-01-29T13:45:47-05:00 http://copyfight.corante.com/archives/2013/01/28/dmca_violation_penalty_now_larger_than_terrorism_penalty.php With the wave of a pen, the US Librarian of Congress has decreed that we may no longer jailbreak our smartphones. To do so makes us criminals, subject to fines of up to half a million dollars, and five years' imprisonment. If you also jailbreak your spouse's phone then you're a repeat offender and can get a million dollar fine and ten years. (I am indebted to Robert X Cringely for pointing out that this penalty is larger than the penalty I would get if I hacked the smartphone and turned it into an illegal explosive device.) This debacle was... 76170@/home/corante/public_html/copyfight/ Laws and Regulations 2013-01-28T14:48:50-05:00 http://copyfight.corante.com/archives/2012/12/27/david_post_on_copyright_and_originalism.php Earlier this month David Post posted a commentary (at Volokh Conspiracy) on a recent paper from conservative scholars who looked at the foundations of copyright law. The issue is one that has been raised here as well, for example in the comments to my entry on "What is the Patent Problem?" It has to do with what we believe the founders and authors of the Constitution thought they were doing when they established Congressional authority in Article 1 Section 8. Post says (and I agree wholeheartedly) that the authors of this report are wrong on historical ground, and wrong on... 76101@/home/corante/public_html/copyfight/ Laws and Regulations 2012-12-27T11:31:58-05:00 http://copyfight.corante.com/archives/2012/12/19/kappos_thinks_aia_will_fix_patents.php To which my only possible sub-headline would be "What is he smoking?" Tim Lee's ars technica sub-head is much nicer. Look, the America Invests Act (AIA) is an interesting piece of legislation with some good ideas behind it. Like any bill that makes its way into law, those good ideas are sort of diluted and distorted from their original form in order to make the compromises necessary to get a deal done. Fine. Good. That's how these things work. But in this case, it's not a matter of compromise so much as it is an uncompromising unwillingness to put his... 76084@/home/corante/public_html/copyfight/ Laws and Regulations 2012-12-19T14:09:14-05:00 http://copyfight.corante.com/archives/2012/12/15/is_the_legal_system_itself_creating_patent_trolls.php The short answer may be "yes". Commentary in a recent issue of Greg Aharonian's PATNEWS email newsletter (not on the Web, sorry) highlighted several points that lead one to think we may have brought this on ourselves, at least to some extent. As I noted a couple weeks ago, there's a significant advantage to doing your patent litigation through a non-producing entity (NPE) in that the NPE is effectively immune from competitor counter-suits. Since they make nothing, they violate no patents themselves. In addition, you can (and here I use the term advisedly) 'rig' the NPE to be little more... 76076@/home/corante/public_html/copyfight/ Laws and Regulations 2012-12-15T15:10:06-05:00