September 30, 2004

Victory in Diebold

After a rather long delay, the judge in the Diebold case (previous coverage here, here, and here) ruled against Diebold on every major issue. This is great news, and Wendy’s post at Copyfight sums it up pretty well.

This is the first opinion I can think of that has found that a copyright holder “knowingly materially misrepresented” that a copyright was infringed when there was, in fact, copying of a copyrighted work, but the copying was obviously fair use. This requires copyright holders, for the first time, to go through some kind of low-level rational fair use analysis before sending a DMCA takedown notification. This is very, very good, even though it seems unlikely to be applied in cases where the facts are even a little better for the copyright holder.

September 27, 2004

Virgin Digital: Pretty Good EULA

I’m not a huge fan of adhesion contracts, but they make the world go ’round. I don’t think I’ve ever seen an End User License Agreement as amusing as this one I was just presented with while installing the Virgin Digital music client. It’s a EULA with in-jokes about 1960s performance art movements, which is all too rare, and which I support wholeheartedly. The license is behind the cut.

(UPDATE: In case you were wondering, the selection on the Virgin Digital service isn’t good enough. I can now confirm that the program doesn’t show you anything clever upon uninstallation.)


September 24, 2004

A Victory for “Limited Times”

A United States District Judge in New York struck down the 1994 anti-bootlegging statute because it grants an effectively perpetual copyright. Nothing else seems to be available yet, even on PACER.

This is great news, and I’d sort of been waiting for this to happen. The statute pretty clearly establishes a perpetual copyright. In the last notable criminal bootlegging case, United States v. Moghadam (11th Cir. 1999), the court went through some pretty deep constitutional analysis, holding that the statute was enacted under the commerce clause and rejecting Moghadam’s appeal that the statute is invalid because it is inconsistent with the Copyright Clause’s fixation requirement. Moghadam failed to raise the “limited times” issue, so the court could not invalidate the law on these grounds, though it seemed inclined to do so.

More to come once I can get my hands on the Judge’s order.

Via Copyfight.

UPDATE: Larry posted the judge’s order. His PDF file was 64MB in size, which seemed excessive for an 18-page monochrome document; here’s a 500K PDF of the decision. (To view it, you’ll need a recent version of Acrobat Reader; it seems it doesn’t work in, for example, OSX’s “preview” program because it’s using a newer image compression algorithm.)

The Presumption of Wireless

I’m sitting in a random crepe shop on Polk Street in San Francisco. A friend and I walked in and sat down, confident that there would be free wireless internet access available for us to work while we creped. And, sure enough, six different wireless networks are available — one paid, the other five free and open. (Indeed, the mildly fleabag-esque hotel I’m staying at advertises the free wireless access point it’s set up, accessible from nearly every room.)

In a high-density area like this, there was a presumption of wireless; we could be pretty sure that wherever we stopped, we’d be able to access the ‘net for free. Right now, I only presume there’s wireless in the densest areas of big cities. But as the penetration of broadband and cheap wireless access points spreads out, I can see a future where there’s a presumption of wireless almost anywhere within an even marginally metropolitan area.

When wireless is not only free but ubiquitous, the value of expensive 3G networks will decrease rapidly and the value of devices like the Pulver WiSip phone will increase rapidly.

I can’t wait.

September 22, 2004

Rosie O’Donnell: Bricoleur, Infringer, or Both?

This news story reports on a new lawsuit against Rosie O’Donnell brought by two courtroom sketch artists. They claim they sent digital thumbnails of their sketches to O’Donnell so she could decide which she wanted to buy. O’Donnell then incorporated parts of the sketches into a painting/collage “to convey her emotional experience”.

The article indicates that the artists claim copyright infringement, and the rhetoric of the attorney’s quotes indicates that there’s probably a Lanham Act “passing off” claim in there too, along with the standard state law claims for unfair competition and the like.

On its surface, this seems like one of the Nagel tile cases, in which a company which attached preexisting, authorized copies of artworks to tiles and sold them was sued for infringement. Those cases resulted in a circuit split, the Ninth Circuit ruling that the tile was an infringing “derivative work” and the Seventh Circuit ruling that the tile was legal, since people who buy authorized copies of copyrighted works can do whatever they want to the copies — resell them, cut them up, burn them, anything. Scholarly opinion has been solidly in favor of the Seventh Circuit’s approach.

But if the plaintiffs’ allegations are true, this case is different. In this case, O’Donnell’s work is on paper, and the sketches were sent digitally. O’Donnell would have had to print out the sketches before incorporating them in her collage. Rosie seems likely to lose unless she can show that her use of the sketches was fair use, which I sort of doubt. That printing is an unauthorized, infringing copy, so the “first sale” doctrine that determined the result in the Seventh Circuit tile case doesn’t apply.

But why shouldn’t it? Why does it make any sense that if the artist sends the thumbnails digitally the case comes out one way and if she sends them in the mail the case comes out another? Copyright law needs to recognize that even though all sorts of digital transfers of works are technically “copies”, they should be treated like movements of a single, authorized, physical copy for the purposes of the first sale doctrine.

September 20, 2004

Wired on Kahle

Katie Dean has this Wired News story on Kahle v. Ascroft. There are some great quotes in there, and I think it lays out the issues really well.

September 18, 2004

Swift Boat Veterans for Fair Use

ABC News has asked Swift Boat Veterans for Truth to stop using a clip of a Good Morning America interview with John Kerry in this ad [MOV], citing copyright concerns. The clip is edited to make it look as if Kerry is contradicting his statements in a 1971 interview, with which the 2004 GMA interview is interleaved.

It’s rather dastardly; a careful listen shows that Kerry says nothing inconsistent with the proposition that he threw away his own ribbons and the medals of other veterans. And at the end, it edits together two clips — “We threw away the symbols of what our country gave us” / “And I’m proud of that” — which make it seem that Kerry is expressing pride about something he didn’t express pride about in the interview.

But not all things that are dastardly are copyright infringement, and this ad is pretty clearly fair use. The purpose and character of the use is political advocacy, also weighing in SBVT’s favor. The work is more or less entirely factual — it’s video of what Kerry actually said. This weighs in favor of SBVT. The ad only used very short clips compared with the entire interview; indeed, this out-of-context use is what ABC complains about, but it weighs against ABC in the fair use analysis. And a 30-second political ad is not a market substitute for a newsmaker interview on GMA, so the final factor weighs in favor of SBVT.

So they’re jerks, but they’re not infringers.

UPDATE: Commenters below ask whether Kerry could go after SBVT on a defamation, slander, or libel theory. However, Kerry is about as public as a public figure gets, meaning the bar for such claims is pretty high. New York Times v. Sullivan says to prevail, Kerry would have to show that SBVT’s statement was false and that they made their statement “with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” The falsehood prong might be hard to prove. Let’s take the most egregious bit — the “We threw away the symbols of what our country gave us” / “And I’m proud of that” edit. What falsifiable statement is SBVT making? At the very most, they might be saying that Kerry has expressed pride in throwing away the medals. The statement of pride is ambiguous enough that it would be hard to rule any implications false. And SBVT could argue, probably successfully, that they were just saying that Kerry said both of these things, and that the white flash in between makes clear to the viewer that they weren’t said one right after the other. SBVT would probably prevail, since it would be very difficult to prove that SBVT was reckless or knowingly lying in this situation.

Although in situations like this the fact is aggravating, merely misleading speech is protected by the First Amendment.

September 15, 2004

Happy New Year

Happy Rosh Hashanah. L’shanah tovah; have a sweet 5765. (I’m a little early, but you know what they say — it’s sundown somewhere.)

Of course, there’s an internet audio geek angle. Congregation Emanu-El of the City of New York, the nation’s largest reform congregation, is broadcasting high holiday services via RealAudio streams. They have what sounds like a scripted, abbreviated Erev Rosh Hashanah service streaming now. The shofar doesn’t sound quite as majestic at 16kbps, but I suppose it’ll do for those who can’t make it to services.

September 10, 2004

INDUCE Act, Take Two

The Copyright Office today released a new draft of the INDUCE Act. The content of the legislation is still in flux, but its purpose is and has always been to make a smoking hole in the ground where the P2P software companies used to be. The new draft is much narrower than previous ones, focusing on the business model of the defendant rather than the functions performed by the defendant’s technology.

It’s still impossible for a defendant to win on summary judgment, though. Let’s take the iPod as an example. The iPod is unquestionably “a cause” of public dissemination. But for the iPod, at least one marginal user wouldn’t be on P2P, since the iPod makes his MP3s more useful; but for the downloading activity connected with the iPod, the user wouldn’t disseminate by running the P2P app. One of the things you learn in first-year Torts is that things get hairy quickly when your standard of causation is lower than proximate cause or reasonable foreseeability; you end up suing the tortfeasor’s mother for giving birth to him, or suing the cabbie who brought the tortfeasor to work that day. So the standard for causation in this draft is dangerously low, and unless the causation requirement is tightened up in a later draft, nothing will be too remote a cause. The plaintiff will never lose because they failed to prove sufficient causation.

As for the three-part test — you’d need a lot of facts to determine whether the iPod would be commercially viable without P2P, or whether most iPods are bought for use with illegal MP3s, or whether Apple relies on P2P to attract people to the iPod. All a copyright holder would have to do is dig up enough marketing memos during discovery to give rise to a genuine question as to facts material to those determinations. Even under the revised bill, something like the EFF’s iPod complaint would probably get past summary judgment.

And that means the bill must be stopped, even though it’s guys like me who would be able to rack up untold billable hours fighting off bogus INDUCE lawsuits.

September 9, 2004

Sharman Sues RIAA For Infringement

No, we’re not in a Yakov Smirnoff joke (“In Soviet Russia, infringers sue YOU!”). Altnet, a division of Sharman Networks (parent company of Kazaa), has sued the RIAA over their anti-piracy efforts. I can’t find it on PACER, so I don’t know for sure, but Altnet has sued in the past over their ’791 patent, which describes a hash-based method of cataloging media.

It appears, however, that all the RIAA will have to do is wait. According to the article, Altnet has a little over $500,000 in cash on hand. Conventional wisdom is that it’s impossible to do a patent trial for less than a million dollars. So it seems they’ll peter out someplace down the line.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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