October 30, 2005

Turing’s Cathedral

There’s a new essay by George Dyson about his recent visit to Google called “Turing’s Cathedral,” and it’s fantastic — near epiphanic. The point isn’t one of Google-worship, or even techno-utopianism; it’s that humans yearn to work together to create something larger than ourselves — something more beautiful, like a cathedral, or more benificent, like a charity, or more efficient, like a corporation.

And we are creating the Internet. It may turn out to be more beautiful, or more benificent, or more efficient, or more knowing, or even more wise. But it will be larger than ourselves, and it will be of us.

October 27, 2005

Dvorak Recants on Creative Commons Humbug

On the This Week In Tech podcast, John C. Dvorak admits he had the wrong idea about Creative Commons in the article I criticized here.

The rest of the discussion, with special guest Larry Lessig, is also enjoyable.

Thanks, Mia!

October 21, 2005

Post Pre-Release Product Photos On Your Blog, Get Sued For Copyright Infringement

The Copyright Office today released its interim regulations implementing the pre-registration provisions of the ART Act. Under that law, those who distribute pre-release copies of a work intended for later commercial distribution can be sued for copyright infringement even if the copyright holder has not yet finished or registered the copyrighted work, so long as the copyright holder “pre-registered” the work.

The most interesting aspect of the interim regulations is the inclusion of “advertising or marketing photographs” among those classes of works that can be pre-registered. This inclusion comes at the request of the Advertising Photographers of America, who, in their comments in the rulemaking proceeding, stated that preregistration was needed in light of three recent events:

1) The unauthorized pre-release of photographs of the Microsoft Xbox 360 on or about April 22, 2005. The photographs were illegally leaked and were pre-registration available, both the photographer and Microsoft could have enforcement solutions and protection they may not otherwise have had.

2) The unauthorized pre-release of a photograph on or about September 29, 2004, of a not-yet announced personal digital assistant — the PalmOne Tungsten T5. . . .

3) The unauthorized publication by The Nation on or about February 9, 2004 of still photographs produced on the set of the Oliver Stone movie Alexander, prior to the motion picture’s authorized release. . . .

It appears that electronics manufacturers and their photographers want to use the ART Act to stop the leaks of information about not-yet-released products by suing those who disseminate leaked product photos.

Previously, such a suit would have been difficult; you can only sue for copyright infringement after having registered a work, and in order to register you need to deposit the work with the Copyright Office, after which it’s publicly available. Photos of secret products are never registered, since that would let the cat out of the bag. Under the ART Act, as implemented by this new regulation, a company would be able to pre-register photos of its secret product, then immediately sue anyone who leaked the photos or distributed leaked photos. Successful plaintiffs would be able to get up to $150,000 per infringement, plus attorneys’ fees, without having to show any actual damages.

This is not the sort of act that Congress intended to prohibit by enacting the ART Act. Product photographs are posted by gadget blogs because of the facts they contain, not because of any creative content. There’s simply no other way to illustrate a story about a soon-to-be-released gadget except by showing pictures of the device. The use of copyright law to control the dissemination of facts is not in keeping with American copyright policy. Defendants in lawsuits over leaked product photographs are likely to have good fair use and idea/expression dichotomy defenses, but this regulation nonetheless increases the legal risk of fact dissemination, something copyright shouldn’t regulate.

In a potential boon to gadget blogs, however, the Copyright Office declined requests to keep pre-registrations secret, stating that to do so would be “inconsistent with the very concept of preregistration and registration systems.” Pre-registration documents will be available on the Copyright Office web site.

Interestingly, pre-release product photographs can’t be the subject of criminal copyright infringement prosecutions. While the ART Act allows the Register of Copyrights to decide what works can be pre-registered, the Act’s criminal provisions apply only to pre-release computer programs, music, and audiovisual works like movies and TV shows.

October 19, 2005

Publishers Sue Google over Google Print

First it was the authors, now it’s the publishers. Each has sued Google over its Library Project. Unlike the Authors’ Guild lawsuit, however, the publishers’ complaint seeks only an injunction against future infringement, not damages for past infringement.

Also notable is that the publishers are represented by Michael Keller and Jeffrey Cunard of Debevoise & Plimpton. While counsel for the Authors’ Guild has done some litigation on the use of authors’ work in electronic databases, they are not as well-known in the national copyright law community as Keller and Cunard, who, among other things, teach the cyberlaw clinic at Harvard Law School.

October 18, 2005

DJ Spooky Speaks on Rhythm Science

Last night, I went to CCA to hear a talk by Paul D. Miller, a/k/a DJ Spooky, That Subliminal Kid. It was part of a lecture series intended for MFA students, so the art-historical and art-theoretical references were running at a pretty high level, to my delight. Miller spoke about “Rhythm Science,” riffing on the ways technologcal tools have allowed the “unpacking” of music and movement over the past hundred or so years. (I hadn’t realized that “deconstruction” had become a passe term, but it must be; several times, Spooky was obviously talking about deconstruction in the Derridean sense, but talked around the term.)

One notable aspect of the talk was the near-total absence of discussion of copyright law. Miller’s artistic practice, while implicating copyright law at every turn, is particularly unlikely to draw lawsuits because his copying is so transformative that the elements of the original are not recognizable. He’s certainly savvy about the law, and his answer to a question about Creative Commons was thorough and smart, but it seems the law just doesn’t enter into the artistic decisions he makes.

That’s the way it should be.

October 16, 2005

NYT on “The Hidden Cost of Documentaries”

In today’s New York Times, there’s a pretty straighforward article on the increasing costs of copyright licensing and the new limitations they place on documentary filmmakers.

October 7, 2005

A Tap on the Shoulder from the Fourth Circuit

What happens when you combine Footloose with A Civil Action? You get Willis v. Town of Marshall, decided today by the Fourth Circuit Court of Appeals.

Ms. Willis, it seems, frequented town dances run by the Town of Marshall, population 842. She danced — defendants say “provocatively”, she says “exuberantly”. She was banned from the dances for her dancing and for her attire. An offer to “apologize for any inadvertent displays of her underwear” in return for readmission was rebuffed by the Town.

Willis sued for, among other things, abridgement of her First Amendment right to free expression. It is well-settled that most provocative dancing in front of an audience is protected expression. But the Fourth Circuit held that Willis was not a performer, and thus not engaging in protected expression, because she was “dancing for her own enjoyment.”

That ain’t it, kid! That ain’t it, kid!

Willis also alleged that the Town violated the Equal Protection Clause by singling her out for expulsion, even though others were dancing similarly in similar outfits. The Town alleged, but presented no evidence, that Willis was the only dancer expelled because she was the only dancer about whom other patrons complained. The court found that this lack of evidence created a triable issue of fact, making summary judgment inappropriate, and remanded to the district court for further proceedings on the equal protection claim.

October 6, 2005

Edward Rothstein on Copyright and Technological Innovation

Edward Rothstein has this essay in the New York Times. I think it misrepresents the ideological positions of several writers, especially Siva Vaidhyanathan, whose project is primarily descriptive, not prescriptive. However, I don’t think it’s “redbaiting by the oblivious”; the essay makes an important point:

Technological change always leads to anxiety among both parties of this long debate. It also pulls the rug out from under their expectations.

The same should be true now: Some new forms of control will be needed to prevent unrestricted copying and plunder; but technological innovation will undermine attempts to apply too much control. Some flexibility in control is needed to prevent the stifling of communication and commerce, but technological innovation will foil those who believe it should not exist at all.

This doesn’t make things easy: It makes them unpredictable.

He raises, but passes over, the important question of how the legal system should respond in a quicksilver technological environment. He seems to think that the courts should simply stay out — but in a bare-knuckle fight between copy-control technologies and technological innovation, I suspect Rothstein wouldn’t like the results.

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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