September 30, 2005

Brilliant Infringement

Some days, I just see infringement everywhere I look.

BoingBoing (and the New York Times) point to a set of truly brilliant movie trailers put together by staff at P.S. 260, a postproduction house in New York:

Let’s play “count the infringements”! (On the other hand, talk about transformative use.)

September 28, 2005

Google Print: Statutory Damages?

Seth Finkelstein recently pointed out an aspect of the Google Print project that I’d missed.

Ordinarily, a copyright infringer who copies a work knowing that it’s copyrighted is liable for statutory damages of up to $150,000, even if the actual damages were low or nonexistent.

Google knows that the books it’s scanning are copyrighted, and might be on the hook for a huge statutory damage hit if their use turns out not to be fair use.

There’s only one exception to the statutory damages rule. If you’re a library, an educational institution, a public broadcaster, or an agent of one of those entities, and you have reasonable grounds to believe that your use is fair use, there are no statutory damages.

Seth thinks Google will be able to avoid statutory damages, since they’re acting as the agent of educational institutions and libraries, reasonably believeing that they’re engaging in fair use. And I can’t immediately think of a reason this stratagem shouldn’t have worked — it’s brilliant, really.

Except that they contracted around it. There’s boilerplate in paragraph 12.4 of the scanning contract between Google and the University of Michigan (the only such agreement that’s been made public) that reads as follows:

The Parties to this Agreement are independent Parties and nothing herein shall be construed as creating an employment, agency, joint venture or partnership relationship between the parties.

I wonder why they did that instead of creating a limited agency relationship for the purpose of the potentially infringing activities. The copyright lawyers working on the project are too smart to have missed the statutory damages exception. They must be really sure they can win the fair use case.

September 23, 2005

First Sale Handbags

These are cool. So is the statute that makes them legal.

September 19, 2005

Zipcar Comes To San Francisco

While walking home from the Van Ness Muni Metro station today, I noticed, of all things, a Zipcar in an otherwise-empty parking lot on Hayes and Franklin.

I thought for a moment that there had been some mistake, that some foolhardy road-tripper had driven one from Cambridge or D.C., where Zipcars belong. Here in San Francisco, we have our own, home-grown, non-profit car sharing organization called City CarShare, with more than 30 spots to pick up a car within the City alone. We don’t need no stinking Zipcar.

But it turns out there’s no mistake. San Francisco is the newest Zipcar market. So, people in my neighborhood can now choose. Join Zipcar, and you’ll be able to drive one lonely Mazda Mazatlan at Hayes and Franklin for $8.50 an hour. Join City CarShare and you’ll have access to 4 shiny Honda Civic Hybrids and a pickup truck two blocks away at Gough and Grove, plus two green Turbo Beetles a few more blocks away at City Hall, all for $4.00 an hour and $0.44 a mile.

The availability in this neighborhood is representative; while City CarShare has 33 car locations in the city, Zipcar has 7. Zipcar is cheaper only when driving more than 10 miles for each hour you have the car, and for trips like that you ought to be taking BART or Caltrain anyway. I’m sticking with City CarShare.

September 15, 2005

Jennifer Granick Begins “Circuit Court” Column For Wired News

Jennifer Granick, Executive Director of the Stanford Law School Center for Internet and Society, has started writing a bi-weekly column on technology law for Wired News called “Circuit Court”. The first installment is here. It discusses, in a refreshingly concrete way, the harms that “trespass-to-chattels” theories of unauthorized computer access could cause.

September 14, 2005

Tinker-Ready Hardware

There’s an emerging market for consumer electronics that are tinker-ready. It may be small, but it inspires passionate consumer loyalty, and tinkerers will pay a premium for the privilege.

I was reminded of the value of tinker-ready hardware in the past few days, as I played with a new gadget. I got a Roku SoundBridge m500 digital music player (for fifty bucks rather than the usual $200, but that’s another story). It sits on my WiFi network and allows me to select audio to be streamed over the network. It can play MP3 streams of internet radio natively, and interfaces seamlessly with both iTunes and Rhapsody. Out of the box, it’s a useful piece of kit.

But, brilliantly, the engineers at Roku didn’t stop there. You can add your own favorite radio stations to the machine’s internal list via a very slick web interface, which is handy. The real fun comes when you telnet to the box on port 4444. With a very simple, command-driven interface, it’s possible to take near-complete control of the device. You can play back Rhapsody tracks or SomaFM radio stations. You can draw arbitrary text on the display. You can adjust the volume, connect and disconnect from servers, and so on. Happily, it’s all relatively well-documented.

This increases the utility of the device substantially. For example, even with my limited programming skills, I was able to write a Python script to turn on the device, turn the volume up all the way, and play back KCRW’s News webcast. That, plus a cron job on my Linux box running the script every weekday morning, turns the SoundBridge into a very slick, very configurable alarm clock. I’m thinking about making it scroll various bits of useful morning information when it wakes me up, like the weather conditions or the number of unread emails in my Inbox.

Yes, I just used an awful lot of silicon to emulate a $10 clock-radio, but that’s not the point. The point is that Roku let me take control of the hardware I own in a way that few consumer electronics vendors do. And now I’m hooked.

September 13, 2005

“‘American Copyright Law Is Biased Against Citizens’ was too long for the screen.”

My longtime friend (and current 1L) Adam sends a link to this Diesel Sweeties strip.

September 11, 2005

D. Conn.: National Security Letter Gag Provision Violates First Amendment

A judge in the District of Connecticut ruled Friday that the National Security Letter gag provision violates the First Amendment as applied. The judge granted the anonymous plaintiff’s request for a preliminary injuction barring enforcement of the provision, which prohibits recipients of National Security Letters, special secret government subpoenas in national security cases, from disclosing even the fact that they have received such letters. The court stayed its grant of preliminary injunction until September 20th to allow time for the government to file an appeal.

All that’s public about the plaintiff is that it is a Connecticut organization that is a custodian of library records. I’m not an expert on the National Security Letter law, but it would appear, given the cited provision, that the records sought were related to telephone or electronic transactions.

Of note is the fact that the opinion, as released to the public by the Court, is redacted. Some portions are under seal (viewable by the parties but not the public); other portions are classified (viewable by the government but not the plaintiff). The judge directs the government to help plaintiff’s lead counsel get sufficient security clearance that she can, for instance, read the court’s entire ruling.

The thought of what Ann Beeson could do with, say, a Top Secret-SCI / SI security clearance makes me smile.

September 2, 2005

P2P Defendant: RIAA’s Own Downloads Can’t Prove Infringement

Keith Irwin, in a comment, points out that lawyers for RIAA lawsuit defendant Patricia Santangelo appear to be basing her defense in part on the theory I outlined in this post. I noted that it could be difficult for the RIAA to show infringement without proof that someone other than the RIAA had downloaded one of the songs in question. Irwin sends a link to an MTV News story quoting Santangelo’s attorney:

“As an exhibit in the complaint, they typed up a list of six songs that RIAA investigators downloaded from a shared account that was supposedly on my client’s computer,” Rogers said. “The complaint said those files were there for sharing, but they have no evidence that anyone did share them. For them to prove copyright infringement, they have to show that there was unauthorized distribution of a copyrighted file to the public. If they knew some 16-year-old who downloaded those songs from my client’s drive, that would be copyright infringement, but if their own investigators did it, it’s not distribution to the public. A copyright owner cannot infringe on their own copyright.”

I almost certainly wasn’t the first to think of it, but it’s nice to see other minds thinking alike. It will be interesting to see whether this theory works in the real world. Santangelo’s lawyers’ blog, including links to case documents, is here.

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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