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June 27, 2005

“-ster” Considered Harmful

Prudential concerns prevent me from talking too much about the merits of today’s Grokster ruling. But I do have a few superficial observations:

  • The court seemed to read an awful lot into the names “Grokster” and “OpenNap”. Merely by including some of the same letters as “Napster”, the companies apparently indicated that their intent was identical to that of Napster’s proprietors. It will be interesting to see how the lower courts treat this inference, especially if elements of the case go to a jury.
  • Flash forward to 2035. The place: a law school classroom, during a copyright law lecture. The professor is discussing the Grokster opinion in the context of the string of cases that followed it. A confused student raises his hand. “Professor,” he asks, “Who or what is Modest Mouse?”
  • Footnote Twelve might just be more important than Footnote Four. But nothing will surpass Footnote Eleven.

Grokster Loses

Grokster lost, unanimously. The case was remanded for trial. Opinion by Souter. The best reports so far are is here and here.

Souter’s opinion is here; Ginsburg’s concurrence is here; Breyer’s concurrence is here.

Choice quotes from the opinion:

One who distributes a device with the object of promoting its use to infringe copyright … is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses.

“Each company showed itself to be aiming to satisfy a known source of demand for copyright infringement,” Justice David H. Souter wrote for the court. Souter said “substantial evidence” supported the industry’s case.

June 26, 2005

MIT Blog Survey

Take the MIT Weblog Survey

If you have a blog, you should take this (freakishly well-designed) research survey.

June 25, 2005

Lessig Gets It Wrong On Register’s 115 Reform Proposal

Larry Lessig has criticized the Register of Copyrights’ proposal to replace the section 115 mechanical compulsory. He argues:

Apparently the Register believes performers no longer “need unhampered access to musical material on nondiscriminatory terms.” What progress.

I think he’s wrong on two accounts — his understanding of the practical effects of the Register’s proposal and his characterization of the Register’s goals. (Ernie Miller thinks so too.)

It’s true that the Register’s proposal does repeal the section 115 compulsory license. The section 115 compulsory is the law that allows any recording artist to record any song for a set rate ($0.085 per copy distributed) without having to get permission from the songwriter. A simple repeal of that compulsory license would indeed mean that recording artists would lose “unhampered access to musical material on nondiscriminatory terms”.

But that’s not what’s happening here.

The practical effect of the Register’s proposal is to force ASCAP, BMI, and SESAC (now referred to as “Music Licensing Organizations” or MROs) to offer blanket licenses for reproduction and distribution along with the blanket licenses they already offer for public performance. Access to all works licensed by the three MROs remains unhampered, and even becomes easier.

Now, there certainly are some works that are not licensed by the MROs. But to get any revenue from a musical work copyright, the copyright owner must make public performance rights available through a MRO; policing public performances on a work-by-work basis is impossible. So every musical-work copyright holder who knows they have rights is likely to be a member of an MRO. And virtually all other musical-work copyrights are probably orphan works. Perhaps there’s a sliver of musical works which are not licensed to an MRO, which are not orphan works, and which the copyright holder will deny a license when asked and sue for infringement if the recording artist goes ahead. But that’s a vanishingly small number of works.

So, the practical effect of the Register’s proposal would be to institute a system of unified blanket licensing for the public performance, reproduction, and distribution of substantially all non-orphan musical works, especially by digital means. That’s what the Register is trying to do, I believe. The proposal also appears to be motivated by a feeling that the 115 compulsory enacts a massive and ongoing wealth transfer from songwriters to record companies — a feeling I share.

This is the right way to fight piracy — by making it as easy as possible for digital music services to license the rights they need. The collateral damage to small-time users of musical works will be minimal, and the benefit to consumers will be enormous.

June 23, 2005

Mossberg on Cell Phones and e2e

Walt Mossberg has this column on how wireless phone service providers are developing an iron grip on the wireless data communications equipment consumers use. The carriers are crippling the equipment and services provided to the public in order to pump up short-term profits at the expense of long-term acceptance of the technology.

Of course, there are ways around this.

Just today, I indulged in a bit of e2e-enabling wireless tinkering. I’m a happy and loyal T-Mobile customer, but the $4.95 T-Zones Internet plan I subscribe to along with my monthly cell phone service is extremely limited. Almost all ports are blocked, leaving open only ports for mail checking and WAP (not web) browsing.

Port-blocked internet connections offend my little e2e-loving heart. So how do we get around port-blocked internet connections? By judicious use of proxies!

(Warning: Geekery ahead.)

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FSF Responds to Wallace Complaint

The Free Software Foundation has filed a motion to dismiss Daniel Wallace’s pro se antitrust lawsuit, which I covered previously here. Groklaw’s coverage includes a link to the brief itself, which patiently and devastatingly destroys Wallace’s case.

Wallace strikes me as an exceedingly bright guy; it’s a shame he’s devoting his energies to suing his competitors on losing legal theories instead of writing better software to compete with them.

Copyright Office To Hold Public Roundtables On Orphan Works

The Copyright Office announced today that it will be holding three public roundtables on the orphan works problem this summer. The dates and locations are:

  • July 26, 2005: Washington, D.C.
  • July 27, 2005: Washington, D.C.
  • August 2, 2005: Berkeley, California

If the bar exam the previous week doesn’t kill me, I’ll definitely be attending the August 2nd session. (Does anyone else see positive symbolic value in the fact that the west coast roundtable is being held in the Bay Area instead of in Los Angeles?)

Traditionally, Copyright Office roundtables have been among invited stakeholders only. Kudos to the Copyright Office for opening these important discussions to public input.

June 21, 2005

Register of Copyrights to House: Repeal The Mechanical Compulsory, Restructure Music Rights Collectives

The Register of Copyrights testified this morning before the House Subcommittee on Courts, the Internet, and Intellectual Property, urging them to repeal the section 115 compulsory license for the making and distribution of phonorecords of musical works and to restructure the collective licensing of performance and reproduction rights in musical works.

Her written testimony is here.

It includes a “discussion draft” of the “21st Century Music Licensing Reform Act”, which repeals the section 115 compulsory and authorizes any PRO (ASCAP, BMI, or SESAC) to license the reproduction and distribution, as well as public performance, of any work in its repertoire.

One major concern that any repeal of the section 115 compulsory raises is the issue of “cover” versions of songs. The fact that songwriters are compensated for, but do not control, new recordings of their songs has led to a flourishing of creativity — look, for example, at Seu Jorge’s versions of Bowie songs or Nouvelle Vague’s bossa nova renditions of 80s New Wave classics. The Register’s proposal cleverly avoids this problem by forcing songwriters who license their works for public performance through a PRO (which is pretty much everybody) to license “cover” versions through the same PRO.

The Register’s testimony includes a short statement on piracy, but it’s the sort of statement about piracy that I’m glad to see the Register making. Instead of advocating ever-harsher clampdowns on consumer uses of copyrighted works, she recognizes that piracy can only be minimized by providing a product consumers want at a price they’re willing to pay:

The increased transactional costs (e.g., arguably duplicative demands for royalties and the delays necessitated by negotiating with multiple licensors) also inhibit the music industry’s ability to combat piracy. Legal music services can combat piracy only if they can offer what the “pirates” offer. I believe that the majority of consumers would choose to use a legal service if it could offer a comparable product. Right now, illegitimate services clearly offer something that consumers want, lots of music at little or no cost. They can do this because they offer people a means to obtain any music they please without obtaining the appropriate licenses. However, under the complex licensing scheme engendered by the present Section 115, legal music services must engage in numerous negotiations which result in time delays and increased transaction costs. In cases where they cannot succeed in obtaining all of the rights they need to make a musical composition available, the legal music services simply cannot offer that selection, thereby making them less attractive to the listening public than the pirates. Reforming Section 115 to provide a streamlined process by which legal music services can clear the rights they need to make music available to consumers will enable these services to compete with, and I believe effectively combat, piracy.

The proposed bill reads as follows:

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June 20, 2005

BnetD Oral Argument Audio Available

Streaming audio of today’s oral argument in Blizzard v. BnetD is already available on the 8th Circuit’s website. I’ve converted it to MP3; it’s available via OurMedia here. (Direct link to MP3.)

June 17, 2005

Department of Awfully Interesting Contracts

Two awfully interesting contracts were recently made public:

  1. SNOCAP’s agreement with content licensors. SNOCAP is a private content registry which will be running, in essence, a voluntary collective licensing system for P2P music sharing. Interesting tidbits include the fact that SNOCAP will be using acoustic fingerprinting technology, establishes what appears to be a “first-to-file” policy for resolving disputes among co-owners of rights, and allows rights-holders who don’t wish to participate to block their content on participating P2P networks.
  2. Google’s agreement with the University of Michigan. This is the contract governing the digitization project in which Google is scanning large chunks of the University of Michigan Libraries’ collections. Interesting tidbits include the fact that Google is taking on all liability for copyright infringement arising from the scanning itself and from the public dissemination of Google’s copies, while the University takes on liability for infringement actions arising from its use of its own digital copy. (They seem to really, truly believe that they are privileged to scan copyrighted books, at least to make private copies for Google and the University. This is going to be interesting.) Also, Michigan agrees to attempt to keep anyone from sucking down books in bulk using scripts. All very sensible terms. The agreement was originally confidential, but release was required under Michigan’s Freedom of Information Act.

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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