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April 30, 2005

Copyright Renewal Records

Via Elizabeth Townsend comes a link to Michael Lesk’s database of copyright renewal records. These records are of use to anyone researching the copyright status of a book published in the United States between 1923 and 1963. The database does not include any works other than books.

This is, incidentally, the same Michael Lesk who designed UUCP and worked on the original UNIX team at Bell Labs.

April 29, 2005

Patry Starts Blogging

Bill Patry, copyright scholar and treatise author, has begun blogging. He begins with a post on the “Yiddish with Dick and Jane” case, which I blogged about here.

Tiger

TigerDirect is suing Apple for a temporary restraining order barring its use of the trademark “Tiger” in connection with the new version of its operating system software, which comes out today. TigerDirect has a registered trademark in the word “Tiger” covering “Mail order catalog services featuring computers and computer related products; and Retail store services featuring computers and computer related products” and a registered trademark in the word “Tigersoftware” covering “catalogues promoting computer software”.

Apple applied for registration of a trademark in the word “Tiger” covering “computer operating system software.” TigerDirect filed an opposition with the Patent and Trademark Office — an administrative proceeding in which TigerDirect tries to convince the PTO that Apple shouldn’t be allowed to register the mark. That proceeding is ongoing; you can view the documents here. Apple has filed a counterclaim in the opposition proceeding seeking to cancel TigerDirect’s “Tiger” and “TigerSoftware” marks.

The opposition proceeding is still in its discovery period, so it’s understandable that TigerDirect saw a need to go to an Article III court for a speedier resolution. The last set of briefs before the opposition is resolved aren’t due until July of 2006, by which time Apple will probably have released its next version of Mac OS, which will inevitably be named something like Ocelot to avoid any trouble.

UPDATE: TigerDirect’s complaint and the brief supporting its motion for a temporary restraining order are available. The complaint is written in a rather overbearing, argumentative style, but doesn’t contain much that’s surprising. The only item of note is paragraph 31, in which TigerDirect alleges that Apple’s harm to its search engine ranking for the term “Tiger” is relevant to its claim.

April 28, 2005

KYCY Goes All-Podcast

KYCY, a San Francisco AM station, is moving to an “all-Podcast” format, in which listeners can contribute talk-radio content to be broadcast on the station. Xeni Jardin has this report on Wired News.

Interestingly, while the content will be broadcast over the AM airwaves and streamed from the station’s website, the “all-Podcast” station may not be able to make its content available in podcast form. KYCY has said it may be allowing contributors to use major-label music, which is podcast-incompatible.

Cledus T. Judd

In a last-ditch attempt to put off finishing my Administrative Law outline, I’ve been putting together a Rhapsody playlist of songs that make puns on legal terms — Belle and Sebastian’s “Legal Man”, The Story’s “The Perfect Crime”, and Jenny Toomey’s rendition of Franklin Bruno’s “Union Busting” are all on the list already.

I found a song that doesn’t fit my playlist’s theme, but that seemed worth mentioning nonetheless. It’s called “Stoled: The Copyright Infringement Incident” by Cledus T. Judd, and it’s apparently parody of “Sold: The Grundy County Auction Incident” by John Michael Montgomery.

The chorus:

And I said,
Hey John Michael Montgomery won’t mind
If I take a song and make it mine all mine
Like I did so many times with old Tim McGraw’s
Yeah I never heard anything sound so fine
Mind if I borrow one or two of your lines
Well I stole it once stole it twice
I STOLE it from a writer on Music Row
Well he just moved to town and he didn’t know
About ASCAP, SESAC, or BMI
So he might as well kiss his song goodbye.

Here’s a Rhapsody playlist of the parody and its source.

While procrastinating in a similar vein yesterday, I put together this playlist, which counts from “One” to “Twenty-Four”.

PlaceSite

Some graduate students at Berkeley are doing this very cool location-based social software project. When a user connects to the wireless network at a participating cafe, they are presented with a captive portal page which allows them to connect with others who are physically in the cafe with them.

While this seems like a pale imitation of spontaneous cafe conversations, it’s meant to enhance face-to-face interactions and fight the “zombie effect” — when there are a bunch of social people in an inherently social physical space, but nobody interacts because they’re all intent on their cell phones or laptops.

April 27, 2005

President Signs FECA

Today, President Bush signed the Family Entertainment and Copyright Act into law.

What does this mean?

  • Clandestine videotaping of movies in movie theaters is now a crime (but in nearly all cases, it already was).
  • Sharing music that’s not yet out on CD or movies that aren’t yet out on DVD on the internet is now a crime (but in nearly all cases, it already was).
  • Devices and services that allow parents to automatically block out the dirty parts of movies are exempt from copyright liability (but they might have escaped liability anyway, and the exemption is very narrowly written).
  • It renews funding for film preservation and fixes a clerical error in the Copyright Act.

As I’ve mentioned before, this is not that bad.

What’s next on the legislative agenda? I speculate (wildly) that a heavily watered down INDUCE Act and a law patterned on the Glushko-Samuelson Clinic’s orphan works proposal will be rolled into one bill and introduced late this fall.

The Foibles of Interactive Art

Sarah Boxer has this very funny “Critic’s Notebook” piece in this morning’s New York Times. It describes the writer’s annoyance with four tropes of interactive art — “prurience, ritual, ungraciousness and moral superiority” — and with artwork that doesn’t function as intended.

I hope this piece becomes a standard in course packs. While there’s virtually no art better than fully-theorized, fully-realized interactive work, there’s virtually none worse than pretentious, tired, broken gizmos filling a gallery.

April 25, 2005

New Rhapsody Portable Service

According to this Reuters story, at its press conference tomorrow RealNetworks will announce a portable subscription music service based on Microsoft’s Janus DRM technology. The subscription will cost $14.95, $5 more than a normal, non-portable Rhapsody subscription.

The overall arc (a portable service) is entirely expected; the particulars have a number of interesting implications. One is that RealNetworks is more or less giving up on using its own codecs or its own DRM in connection with Rhapsody. If they were serious about getting Helix DRM into the iPod or any other portable player, for example, this would be a strange move. They’re also matching — but not undercutting — Napster’s price for the very same product, which doesn’t strike me as a terribly bold move for a company that’s second or third to the market.

UPDATE: They’ve added community features and bumped the bitrate to 160kbps. You can now move files you’ve purchased (though not subscription files) to an iPod. And it acts as a system-wide media library.

Distribution

Susan Crawford examines one of the interesting quirks in the recently-passed Family Entertainment Copyright Act. Section 106 of the Copyright Act grants copyright holders an exclusive right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending”. This has universally been understood as an exclusive right to the distribution of physical copies — a right that terminates when each copy is first sold to the general public, under section 109.

But the FECA includes new criminal penalties for infringement of the distribution right with regard to a prerelease work “by making it available on a computer network accessible to members of the public”. Are they referring to infringements of the 106(3) distribution right? That would be a bit odd, since “making available” on a computer network does not necessarily involve “sale or other transfer of ownership, or by rental, lease, or lending”. It involves no transfer of a possessory interest in any particular physical object at all.

Now, perhaps courts will place a gloss on the section 106 language, holding that the distribution right was really meant to control all acts constituting publication, even the making of a copy by means of a transmission. But that’s barely a plausible meaning of the words in the statute, and I think a court could just as easily find that the new law is a nullity if it controls only acts infringing 106(3) rights. It’s impossible, I would argue, to violate an exclusive right to “sale or other transfer of ownership, or by rental, lease, or lending” by offering a download over a computer network.

But “distribution” isn’t a term defined in the Copyright Act, and I suspect that the drafters of this legislation mean the term in its everyday sense, not in its 106(3) sense. The best argument for the other side would be that 106(3) defines an infringing subclass of all possible acts of distribution, and that FECA criminalizes any act of distribution of prerelease works over computer networks, even if the act infringes the exclusive right of reproduction or public performance and not the exclusive right of distribution.

It will be interesting to see whether this issue comes up when the first FECA case comes around.

UPDATE: Via John Palfrey comes a link to a blog entry on this issue by Cathy Kirkman of Wilson Sonsini, who writes the Silicon Valley Media Law Blog. She notes that FECA might affect the scope of the distribution right, and points to the ongoing litigation against Hummer Winblad, the original VC backers of Napster.

She points out that in litigating the question of whether “making available” on Napster constituted infringement, both sides refer to the Hotaling case. In that case, the Fourth Circuit held that placing an unauthorized copy of a work on a library’s shelves and in its card catalog constituted an infringing act of distribution. But Hotaling is clearly distinguishable from an online-downlading scenario for one critical reason: the library in Hotaling was offering to lend physical copies. “Lending” is within the scope of 106(3); “copying”, “transmitting”, and “uploading” are not. In the ongoing Napster litigation, as in the FECA context, the 106(3) exclusive right should be limited to physical distribution of preexisting physical copies.

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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