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United States District Judge Walker D. Miller of the District of Colorado filed an order Wednesday enjoining the enforcement of certain reporting requirements recently imposed on distributors of pornography while the plaintiffs’ case against the justice department proceeds.

18 U.S.C. 2257 sets forth certain recordkeeping requirements designed to ensure that all performers who appear in pornography are over 18 years of age. The statute regulates only those who participate in “hiring, contracting for managing, or otherwise arranging for the participation of the performers depicted,” not those who merely publish or distribute preexisting pornographic materials. 18 U.S.C. 2257(h)(3).

But Justice Department regulations eliminate this exception, regulating:

any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of an actual human being engaged in actual sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing.

28 C.F.R. 75.1(c)(2). Section 75.1(c)(4)(iii) exempts anyone who doesn’t arrange for the participation of performers, as the statute requires, but only so long as they don’t participate in “those activities identified in paragraphs (c) (1) and (2) of this section” — which makes the exemption meaningless.

The Free Speech Coalition, an association of pornographers and disseminators of pornography, sued to enjoin enforcement of section 2257 on three grounds. First, they argued that the Justice Department regulations covered a wider range of activities than the statute allows — in legal terms, that the regulation was ultra vires. Second, they argued that the statute as a whole violates their First Amendment rights. Third, they argued that the statute violates their constitutional right of privacy.

Ultra Vires. The judge ruled in favor of the Free Speech Coalition on the ultra vires issue, finding that the statute did not give the Justice Department the power to regulate anyone who does not participate in “hiring, contracting for managing, or otherwise arranging for the participation of the performers depicted.” This finding was not surprising, given that the Tenth Circuit Court of Appeals (whose jurisdiction includes the District of Colorado) has ruled that a previous version of the regulation containing an identical exception was ultra vires. See Sundance Assoc., Inc. v. Reno, 139 F.3d 804, 805 (10th Cir. 1998). The court enjoined the Attorney General from enforcing the regulation against those plaintiffs whose business “does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performer.”

First Amendment. The plaintiffs advanced various First Amendment theories. Plaintiffs’ arguments that section 2257 bans certain speech, that it is a content-based regulation of speech triggering strict scrutiny, and that it fails to advance the government’s legitimate interest in controlling child pornography failed. Finding that intermediate scrutiny applied, the court analyzed whether the regulation was narrowly tailored, not burdening “substantially more speech than is necessary to further the government’s legitimate interests.” The court found that while the regulation as a whole survived intermediate scrutiny, it was substantially overbroad in two respects. First, the court struck down the requirement that operators of internet chat rooms keep copies of their live “shows.” Second, the court struck down the requirement that the producer of a work keep records of every URL at which that work can be accessed, even if the work resides an a website not controlled by the producer.

Right of Privacy. The plaintiffs’ remaining right of privacy claim was that the disclosure of the business address where records are kept, as is required by section 2257, violated the producers’ right of privacy. The court rejected this claim because the producers fialed to show a likelihood that they would be harmed by the disclosure.

While this is only a preliminary injunction, it indicates Free Speech Coalition’s likelihood of ultimate success in this lawsuit. The chilling effects on lawful, protected speech we’ve seen as a result of the Justice Department’s overbroad regulations should dissipate if the plaintiffs ultimately succeed.

It appears that the DRM-related lawsuits against Sony are close to settlement; a provisional settlement has been reached.

There’s been a good deal of coverage today of Google’s new music search service. But the most interesting part, to me, hasn’t received much notice. On the result page for each individual song, there’s a two-line snippet of the lyrics, followed by deep links to copies of the lyrics on the usual lyrics-sites-of-questionable-legality. The snippets are short and help to identify the song, so they’re probably privileged as fair use. In my opinion and that of many others, a link alone is almost never an infringement, and Google would fall under the information location tool safe harbor in any case.

This feature comes at an interesting time in the life of lyrics-sites-of-questionable-legality. Since the death of the University of Wisconsin-Parkside lyrics archive (which died, incidentally, due to lack of institutional support, not because of copyright concerns, and which was mirrored by AOL until 2002), a number of sites have popped up offering copies of the lyrics to popular songs. These sites became so comprehensive that a third party wrote a program to automatically download lyrics for synchronization to iPods. The developers of the program, pearLyrics, ceased distribution after a threatening letter from a music publisher. (The underinformed are advised to direct their ire at the NMPA, not the RIAA.)

Fred von Lohmann wrote an essay arguing that when a consumer downloads a copy of the lyrics to a song of which he owns a legitimate copy, the consumer is engaging in fair use. There’s been a good deal of debate on the issue among Those Who Should Know on the Pho listserv, with reasonable positions staked out on both sides.

Boy, is it an interesting week to be a lyric. And it seems likely to get even more interesting.

This is outside the usual purview of this blog, but is such astonishing and upsetting news that it nonetheless merits a brief post. The New York Times reports today that the National Security Agency, a body that since its creation had been limited to foreign surveillance, has been tapping the phones and reading the emails of American citizens since 2002 without a warrant from any court.

The story notes:

Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said.

That may have been wise of them.

Daniel Wallace’s pro se antitrust suit against the Free Software Foundation, covered previously here and here, was dismissed today for failure to state a claim upon which relief can be granted. The judge’s order is here.

The court found that Wallace had alleged vertical price fixing in violation of the rule of reason, but had failed to allege any antitrust injury, since he alleged only harm to himself as a competitor rather than harm to competition or to consumers.

As Frank Field notes, my friend Derek Slater has had a busy few days, releasing a study on consumer-to-consumer music preference communication tools — a transition from mixtapes to playlists. The study was co-authored with Mike McGuire of GartnerG2. It’s received attention from the Boston Globe, and Derek will be leading a discussion today about the report at Harvard Law School.

On Friday, the Seventh Circuit released its opinion in BMG Music v. Cecilia Gonzales. Judge Easterbrook, writing for a unanimous three-judge panel, found that Ms. Gonzales could not avoid the $22,500 judgment against her by the affirmative defense of fair use or that of innocent infringement. In the district court, BMG moved for summary judgment holding that Gonzales was liable for the $750 minimum statutory damages for each of the 30 songs she admits she downloaded, for which she did not own CD copies.

Fair Use. Gonzales argued that her downloads constituted fair use, since she was “just sampling music to determine what she liked enough to buy at retail.” The court rejected this argument, finding that there were plenty of ways for Gonzales to sample music before a purchase other than P2P downloading. These other ways to find music, such as broadcast radio, internet radio, and subscription music services “share the feature of evanescence: if a listener decides not to buy (or stops paying the rental fee), no copy remains behind.” In contrast to these licensed previews, Easterbrook writes, an unlicensed copy “downloaded, played, and retained on one’s hard drive for future use is a direct substitute for a purchased copy—and without the benefit of the license fee paid to [sic] the broadcaster.”

Easterbrook next confronts a common colloquial argument in defense of copyright infringement: that the infringing activity should be free from liability because it “is good advertising for copyright proprietors, expanding the value of their inventory.” To the contrary, the court held that:

Copyright law lets authors make their own decisions about how best to promote their works; copiers such as Gonzalez cannot ask courts (and juries) to second-guess the market and call wholesale copying “fair use” if they think that authors err in understanding their own economic interests or that Congress erred in granting authors the rights in the copyright statute.

That passage seems likely to be cited frequently by plaintiffs in copyright cases where the naive “but I’m really doing them a favor” argument is presented.

Damages. Unlike the fair use argument, which holds broad interest, Gonzales’ damages argument is pretty dry. If you’re not a procedure geek or a copyright geek, please feel free to skip the following.

Gonzales, understandably, wanted to plead her case before a jury; tens of thousands of dollars in damages arising from a few dozen MP3s seems excessive to most people. But BMG was clever. They moved for summary judgment only with regard to the 30 MP3s that Gonzales admitted she downloaded and retained without owning CD copies, and only asked for the $750 minimum in statutory damages for each song. This left the jury with nothing to decide. She admitted she’d copied the songs, leaving only the question of damages, and BMG asked for the smallest damages the jury could lawfully award.

She apparently first argues that, even if $750 is the minimum, the jury should be offered an opportunity to disregard that minimum, but such a verdict would necessarily be set aside by the district court, since there is no power of jury nullification in civil cases, and no right of jury nullification in any case.

Gonzales next argues that she is an “innocent infringer,” and thus eligible for a reduction in statutory damages to only $200 per work under section 504(c)(2) of the Copyright Act. But section 402(d) says that the innocent infringer defense is unavailable if proper copyright notice “appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access.” The MP3s in question carried no copyright notices, but the court found that Gonzales had “access” to CD copies of the songs, which did carry proper copyright notices. The court does not describe how or why this “access” exists, but it apparently finds access in the fact that Gonzales could have gone to the record store and inspected authorized copies. “Gonzalez,” the court found, “readily could have learned, had she inquired, that the music was under copyright.”

I think the court is on shaky ground here. The innocent infringer defense should act as an incentive for copyright owners to place proper copyright notice on copies they distribute, while lessening the punishments for infringers who had no reason to think they were infringing. Perhaps Gonzales’ innocent infringement argument should fail, but not for the reasons the court cites, and almost certainly not without a jury trial. The court finds that Gonzales had access to CD copies of the songs she downloaded — but how? Does Gonzales admit that the CDs were sold in local stores? Did the court take judicial notice of the contents of the racks at Sam Goody? If so, why didn’t Gonzales get a chance to object and show that she did not have access? Further, if “access” in the copyright context now means that someone could have inspected a copy of a work had they inquired, we may find some mighty odd results in cases looking to whether a small-potatoes plaintiff has shown that a big-time movie studio had access to her unsolicited screenplay, or examining whether a technological measure “effectively controls access to a work.” In this case, “the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access” were the MP3s she downloaded, and they bore no notice.

Under the circumstances, a jury should have been be asked to decide whether Gonzales had any reason to believe her acts were infringing. Maybe she did — knowing generally that unauthorized copying is usually infringement and that practically all sound recordings are copyrighted — or maybe she didn’t. Gonzales never possessed the CDs that had proper notice, and, if she really believes she’s engaging in fair use, she shouldn’t be required to conduct an investigation into whether proper notice of copyright appears on authorized copies in order to assert an innocent infringer defense.

Rhapsody now works, through a browser-based interface, on Mac and Linux as well as Windows. This leverages the real difference between Rhapsody and all of the other music subscription services (Napster 2.0, Virgin Digital, et al.): they had a perfectly good proprietary streaming protocol before Windows Media DRM 10 came along and allowed tethered downloads and forced platform lock-in. This new feature relies on a browser plug-in that will likely be difficult for Rhapsody’s competitors to replicate.

Right now, I’m listening to Sondheim Sings: Volume Two in a hotel room in Pasadena on my PowerBook. Awesome.

At Edge, a new and erudite essay on universal libraries and Google Print from George Dyson.

There is, I believe a small and inconsequential error in one of his colorful examples. His early edition of Leviathan was “printed for Andrew Crooke, at the Green Dragon in St. Pauls Churchyard, 1651.” He takes this to mean that it was printed by a firm called Green Dragon for a bookseller named Andrew Cooke, which is probably wrong. It was, instead, printed by an anonymous stationer for Andrew Cooke, whose shop, located in St. Paul’s Churchyard, is identified by a sign featuring a green dragon.

On Dave Farber’s Interesting-People list, Phil Karn posted an excellent turn of phrase, succinctly communicating a political message in the language of computer security:

The sad fact is that “national security” has become the root password to the Constitution. The only effective defense against a “rooted” system is not to put any sensitive information in it in the first place.

I don’t agree; I believe the Constitution remains an effective bulwark against tyranny. But Karn’s metaphor is a brilliant one nonetheless.