joegratz.net

June 29, 2006

No Body Parts, Please.

Google has launched its Google Checkout service, which is somewhat notable for its integration with their AdWords program. But what’s really remarkable is their extremely exhaustive list of things you can’t sell using Google Checkout. Hawkers of miracle cures, satanic-ritual supplies, and body parts will just have to use PayPal.

June 21, 2006

Wendy Seltzer Debates Fritz Attaway on DRM

In just a few exchanges, this debate at WSJ.com between Wendy Seltzer and Fritz Attaway gets deep into the differences driving attitudes toward DRM. Attaway, quite reasonably, wants copyright holders to be able to exercise perfect price discrimination, allowing the user to do only what he’s paid for the right to do — viewing once, viewing many times, copying, and so on. Seltzer believes the collateral damage to technological and cultural innovation caused by legally enforcing DRM restrictions is greater than the benefit to society bestowed by the marginal gain in copyrighted works created due to revenues gained because of those restrictions.

It’s quite refreshing to have the issues stated in relatively precise and empirical terms, rather than the too-common sessions of shouting “Thieves!” and “Greedy corporate pigs!” at each other.

June 16, 2006

Linkblog

If you read joegratz.net through a feed aggregator, you may not have noticed that I’ve jettisoned my music blog in favor of a link blog in the sidebar over to the right. As of today, I subscribe to 83 feeds in my Google Reader feed aggregator. I’ll use the linkblog to highlight the most interesting posts in those feeds — mostly about technology and information law, but occasionally about music or art or San Francisco. Of course, I don’t always agree with the authors of the posts I highlight; I just think they’re worth reading. If you don’t want to keep checking back for linkblog updates, you can directly subscribe to an Atom feed of my linkblog here, or, if you use Google Reader, you can view my linkblog here.

Curious techies: The linkblog bar on the right is just a CSS-styled version of the Google Reader “My Starred Items” clips box. When I want to add an item to my linkblog, I just star it in Google Reader, and the sidebar and feed are automatically updated. It’s pretty easy to do, since the Google clip box JavaScript generates pleasantly semantic XHTML. This post at the Google Reader blog links to my integration of the clip box into my blog design, along with several others.

June 8, 2006

La La

A new music trading service, La La, just went live today. A few of my friends have been using it during its beta period, and I just signed up today. This, I think, is the apotheosis of the First Sale Doctrine. It works like this: each user lists the CDs they own, and the CDs they want. La La matches up the trades, pays the shipping charges, and provides shipping materials, charging the recipient of each disc $1 plus $0.49 shipping. This is all done through a very slick, AJAXy web interface. It’s a truly gorgeous business model. The physical objects they distribute (e.g., envelopes) are ancillary; their real product is pure information (e.g., the address of the person who wants your copy of that old Elvis Costello CD).

There are a few notable elements of the service from a legal point of view, but perhaps the most notable element has no bearing at all on the legality of the service. La La is donating 20% of revenue from trading to the Z Foundation, a nonprofit it formed that “will focus on providing health and dental care that is often inaccessible to working musicians.” (It turns out to be quite an important issue.) The founder has this to say on his blog:

Beyond a community forum, ‘la la’ is blending the economics of music with customers. Today we’re contributing 20% of trading revenue to musicians. Before this is all over, I’ll desparately try to direct 90% of all revenues to working musicians. We owe them nothing less.

Why?

Music is more than just content, it is a key part of our culture. Like great literature and art, it reflects and defines our society. This may be a lot to ask of a ‘CD trading site’.

It will be wonderful (though somewhat surprising) if the exigencies of building a business don’t get in the way of these goals.

From a legal standpoint, what’s interesting is not what the service lets users do, but what the service doesn’t let users do. Trading CDs in this manner is not an infringement of copyright, of course, because the First Sale Doctrine eliminates the copyright holder’s right to control the resale of lawfully made CDs. There’s a weak argument that what La La enables is an “act or practice in the nature of rental, lease, or lending” and is thus not covered by the First Sale Doctrine by operation of 17 U.S.C. 109(b)(1)(A), but I think that argument ultimately fails because no user is ever under any obligation to send any CD to anyone, and they’re definitely not under any obligation to re-trade the CDs they’ve received.

But La La may go beyond what the law requires. First, they prohibit trading “promotional” copies of CDs — copies marked “PROMOTIONAL USE ONLY” and/or “NOT FOR RESALE”. I don’t know of any case that’s dealt with the issue directly, but I can’t think of any reason this language could either vitiate the First Sale Doctrine or create a binding contract. The company’s rationale for this decision is that “promotional CDs are typically marked with language restricting outright ownership, and they may not share an identical song list with the original commercial version.” If the promo CDs contain different tracks, the restriction makes sense from a practical standpoint, but it’s not an infringement of copyright to trade promo CDs.

The second prohibition is much broader. The terms of service state that:

You may not illegally copy CDs or keep copies of CDs you trade. Your access to the Site or Services may be immediately terminated in the event you use the Site or Services for illegal purposes or make unlawful copies of CDs or unlawfully distribute CDs.

Strictly prohibiting trades in burned CDs makes perfect sense, since a CD burned for the purpose of trading it is likely to be an infringing copy under these circumstances, and people expecting original, pressed CDs will be unhappy if they receive CD-Rs. But users “may not . . . keep copies of CDs [they] trade”? It’s not entirely clear whether users have a right, under section 107 or section 1008, to make a personal-use copy of a CD when they intend to trade away the original after the copy is made. The trading intention might affect the fair use analysis and might change whether the copying is “noncommercial” in nature in the section 1008 analysis, but it might not. And if a person made a lawful fair use or section 1008 copy and only later decided to trade away the original, the lawfulness of their copy wouldn’t suddenly change.

The provision prohibiting keeping copying CDs you trade is practically unenforceable, since La La has no way of knowing what you do with your own CDs, so its inclusion is slightly puzzling. Maybe it’s intended as moral suasion; on the About La La page, the founder says:

I ask you to do your part by doing the right thing: remove songs from your iPod or PC if you’ve agreed to send the CD to another member.

If you want to listen to that CD again, just add it to your Want List and help us support that artist you can’t get enough of. You’ll have access to plenty of good music to enjoy in the meantime. We’ll make sure of that!

Respect the artists and Karma will be on your side.

It’s also a hedge against a Grokster-style inducement claim. Assuming arguendo the doubtful prososition that a consumer infringes when she copies a CD to her iPod then trades the CD for another, La La could be liable if they promoted such uses of the service. By explicitly disallowing such actions, La La is much more likely to avoid any secondary infringement liability even if its users’ personal copies somehow turn out to be infringing.

Their heart seems to be in the right place, their model is sound, and their interface is fantastic. I look forward to seeing how La La is received by music lovers and by the music industry.

June 1, 2006

11th Cir.: Stored Communications Act Doesn’t Protect Generally-Accessible Web Pages

Via How Appealing comes the 11th Circuit’s opinion this morning in Snow v. DirecTV. The issue arises on a motion to dismiss for failure to state a claim; the facts alleged in the complaint are as follows. Snow ran a web forum for defendants in antipiracy suits brought by DirecTV. The front page of that site included a clickwrap agreement requiring visitors to affirm that they were not affiliated with DirecTV before allowing entry. DirecTV and its agents accessed the forum despite this prohibition.

Snow sued under the Stored Communications Act, 18 U.S.C. 2701, which generally prohibits unauthorized access to stored electronic communications. But 18 U.S.C. 2511(2)(g)(i) limits the reach of the Stored Communications Act such that it is not a violation “to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public” (emphasis added). The court found that, while Snow’s forum expressly denied authorization to DirecTV and its agents, they didn’t need authorization because the site was readily accessible to the general public. Under the court’s reasoning, any web site that is not protected by a password or other information not readily accessible to the general public is not protected by the Stored Communications Act.

It appears to me that the plaintiff in this case just chose the wrong cause of action. A garden-variety breach of contract claim would have, I think, succeeded, though the damages to Snow for such a breach would presumably be very small, while damages under the SCA were likely to be much larger.

When I saw my first “no p0lice a11ow3d, suxx0rs!” notice on a dodgy BBS in 1989 or so, I found it hard to believe that through the simple talisman of prohibiting access, an electronic forum could keep out anyone it disliked. The Eleventh Circuit evidently didn’t believe it either.

UPDATE: Orin Kerr posts a quick take on the case. He argues that instead of relying solely on the fact that the website was readily accessible to the general public and thus that no authorization was needed, the 11th Circuit should have held that the Terms of Service did not affect DirecTV’s authorization vel non. Such a broader holding would make clear that it isn’t a crime to violate a website’s terms of service, just a breach of contract. The broader holding wouldn’t make any difference in this case, but it would have a big effect on whether a user of a password-protected website whose terms of service revoke authorization in the event of breach commits a crime when he accesses the service but violates the contract. (Think Westlaw.) I agree with Professor Kerr that authorization (as the term is used in ECPA) should not be automatically revocable solely by operation of contractual terms.

UPDATE 2: I had forgotten that Cindy Cohn and Kevin Bankston of the EFF, in an amicus brief, were the ones who introduced the ultimately successful argument that the “readily accessible to the general public” language of section 2511(2)(g)(i) is fatal to Snow’s claim. Kudos, Cindy and Kevin.

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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