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November 29, 2005

Michael Robertson To Release Music Locker Service

Sounds like a news flash from 2000, doesn’t it?

Michael Robertson’s current project, MP3Tunes.com, is apprently poised to release a music locker service called Oboe. Robertson posted a teaser screenshot on his blog.

I assume that Robertson and new employee DVD-Jon have come up with some fiendishly clever way around the holding of UMG v. MP3.com, which held that the my.mp3.com music locker service infringed record companies’ copyrights because it copied and replayed the music without permission and without a valid fair use defense. I’m reluctant to speculate based on a pre-release screenshot, but the “Quarantine” and “Webload” buttons look intriguing.

Robertson has said he’ll release Oboe by the end of the year. I look forward to seeing what he’s come up with.

November 27, 2005

The Constitution and Public Buses

Via BoingBoing, I came across the case of Deborah Davis, whose plight presents a really interesting constitutional law hypo.

The defendant was riding a public bus to work. The bus route traversed a federal office park, the Denver Federal Center. Everyone entering the grounds of the Denver Federal Center is required to present ID by the guards at the gate. A federal officer boarded the bus and requested identification; Davis refused and was arrested. She was cited with violating, and is expected to be charged with, violations of 41 CFR 102-74.375 (which, from its language, would seem to be a difficult thing for a citizen to violate, though I’m not an expert in the application of this regulation) and 41 CFR 102-74.385, which requires those present on federal property to obey the lawful directions of federal police officers.

Ms. Davis has not yet been charged with any crime, and it would not surprise me if no charges were brought; federal misdemeanors are not the United States Attorney’s highest priority.

But if it goes forward, the case could raise interesting questions — some of which have pretty clear answers, some of which don’t. May the government require ID for entry to government facilities? May the government require ID of those wishing merely to traverse federal lands? Is the right to travel implicated? Does the Hiibel rule — that ID may be required during a Terry stop — apply here? Is being in a public bus like being on a public road, even when the bus traverses private or federal property (having something akin to the status of diplomatic vehicles in foreign lands)?

SF Chronicle: Why Buy CDs?

This lede would have been unthinkable just a year or two ago:

They’re overpriced, ugly and don’t even make good rearview mirror ornaments. Now that we know they are also potentially poisonous to personal computers, thanks to Sony BMG’s rogue copy-protection technology, there’s really no reason to buy another compact disc ever again.

November 22, 2005

TVMyPod

May a company, acting as a consumer’s agent, assert the consumer’s personal fair use rights, such as time-shifting and space-shifting? It’s a question that arose in the music context, and now it arises in the video context as well. TVMyPod will sell you a video iPod loaded with DVDs of your choice. You actually have to buy the DVDs, and you have to buy them from TVMyPod, so we don’t immediately run into my.mp3.com-type liability.

I’m of two minds on this question. On one hand, I think fair use ought to be an ends-based analysis, and incidental infringing copies in service of a licensed or privileged end result should be privileged. (Yes, such a rule would resolve the Google Print case.) Because a consumer ends up with a video iPod full of his favorite DVDs whether he rips them himself or farms out the work to some corporation, perhaps it’s all fair use.

On the other hand, the personal fair use time-shifting and space-shifting privileges ought to be narrowly drawn to limit unauthorized commercial exploitation of copyrighted works. Seen one way, TVMyPod is selling a fair-use-by-proxy service, but seen another way, TVMyPod is selling you two copies of a movie when you only paid for one. Assuming there is a personal media backup privilege, TVMyPod’s product is isomorphic to Amazon including an extra unlicensed DVD-R copy with every licensed DVD it sells. And I don’t think that would fly.

November 21, 2005

Sony is Sued

In my earlier post on the Sony DRM controversy, I left it to others “to determine whether the use of a resource-hogging, difficult-to-remove rootkit like this one is illegal or merely distasteful.”

Today, several lawsuits were filed by parties who think the Sony DRM software is illegal as well as distasteful.

EFF filed a class action suit. The press release is here, and the complaint is here. EFF is co-counsel with well-known class action firms Green Welling and Lerach Coughlin. The EFF complaint, filed in California state court in Los Angeles, alleges unfair and deceptive trade practices (Cal. Civ. Code section 1770), unfair competition through violation of, among others, the Consumer Protection Against Computer Spyware Act and the Online Privacy Protection Act, breach of the implied covenant of good faith and fair dealing, and false or misleading statements.

The Texas Attorney General filed suit under the Texas anti-spyware laws. The press release is here (including impressively slick print-quality photos and broadcast-quality video), and the complaint is here.

November 1, 2005

Foxtrot on RIAA and MPAA Lawyers

Everybody loves a copyright lawyer.

Sony Music to Consumers: Enjoy Your Rootkit!

Intrepid explorer of Windows internals Mark Russinovich has shown in a brilliant blog post that the DRM on copy-protected Sony Music CDs installs a poorly-written, insecure rootkit when inserted into a Windows computer in an attempt to keep the user from ripping the CD.

Oh, and the software is impossible to uninstall without special tools.

I will leave it to others to determine whether the use of a resource-hogging, difficult-to-remove rootkit like this one is illegal or merely distasteful.

Analog Hole News

So, there’s some bad news. A new discussion draft of a bill to plug the analog hole is going around, and it’s really, really bad policy. Technology-mandate bad. Bad, bad, bad. (Danny O’Brien has more here.)

Note the enormous power shift from the Copyright Office to the Patent and Trademark Office. The bill is to be codified in Title 35, which covers patents, not Title 17, which covers copyrights. And the implementing regulations are to be made by the PTO, not by the Copyright Office. Could this be because this law enacts unlimited-term copyrights for certain uses of certain content, violating the constitution’s “limited times” requirement? Or perhaps it’s because it covers “live events” as well as copyrighted works, violating the constitution’s “writings” requirement. (Such limitations also apply to patents, so the choice of Title 35 over Title 15, if the choice was intended to indicate PTO jurisdiction, is difficult to understand.) It’s an interesting piece of misdirection, but I don’t think it’ll work.

Now, the good news. The Secretary of Commerce and the Attorney General don’t think we need lots of new IP laws:

[United States Secretary of Commerce Carlos] Gutierrez and Attorney General Alberto Gonzales both expressed concerns that passing ‘too many new [IP] laws’ may discourage innovation, and urged the government and industry to rely on education and diplomacy to resolve many of the key issues.

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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