joegratz.net

After a rather long delay, the judge in the Diebold case (previous coverage here, here, and here) ruled against Diebold on every major issue. This is great news, and Wendy’s post at Copyfight sums it up pretty well.

This is the first opinion I can think of that has found that a copyright holder “knowingly materially misrepresented” that a copyright was infringed when there was, in fact, copying of a copyrighted work, but the copying was obviously fair use. This requires copyright holders, for the first time, to go through some kind of low-level rational fair use analysis before sending a DMCA takedown notification. This is very, very good, even though it seems unlikely to be applied in cases where the facts are even a little better for the copyright holder.

I’m not a huge fan of adhesion contracts, but they make the world go ’round. I don’t think I’ve ever seen an End User License Agreement as amusing as this one I was just presented with while installing the Virgin Digital music client. It’s a EULA with in-jokes about 1960s performance art movements, which is all too rare, and which I support wholeheartedly. The license is behind the cut.

(UPDATE: In case you were wondering, the selection on the Virgin Digital service isn’t good enough. I can now confirm that the program doesn’t show you anything clever upon uninstallation.)

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A United States District Judge in New York struck down the 1994 anti-bootlegging statute because it grants an effectively perpetual copyright. Nothing else seems to be available yet, even on PACER.

This is great news, and I’d sort of been waiting for this to happen. The statute pretty clearly establishes a perpetual copyright. In the last notable criminal bootlegging case, United States v. Moghadam (11th Cir. 1999), the court went through some pretty deep constitutional analysis, holding that the statute was enacted under the commerce clause and rejecting Moghadam’s appeal that the statute is invalid because it is inconsistent with the Copyright Clause’s fixation requirement. Moghadam failed to raise the “limited times” issue, so the court could not invalidate the law on these grounds, though it seemed inclined to do so.

More to come once I can get my hands on the Judge’s order.

Via Copyfight.

UPDATE: Larry posted the judge’s order. His PDF file was 64MB in size, which seemed excessive for an 18-page monochrome document; here’s a 500K PDF of the decision. (To view it, you’ll need a recent version of Acrobat Reader; it seems it doesn’t work in, for example, OSX’s “preview” program because it’s using a newer image compression algorithm.)

I’m sitting in a random crepe shop on Polk Street in San Francisco. A friend and I walked in and sat down, confident that there would be free wireless internet access available for us to work while we creped. And, sure enough, six different wireless networks are available — one paid, the other five free and open. (Indeed, the mildly fleabag-esque hotel I’m staying at advertises the free wireless access point it’s set up, accessible from nearly every room.)

In a high-density area like this, there was a presumption of wireless; we could be pretty sure that wherever we stopped, we’d be able to access the ‘net for free. Right now, I only presume there’s wireless in the densest areas of big cities. But as the penetration of broadband and cheap wireless access points spreads out, I can see a future where there’s a presumption of wireless almost anywhere within an even marginally metropolitan area.

When wireless is not only free but ubiquitous, the value of expensive 3G networks will decrease rapidly and the value of devices like the Pulver WiSip phone will increase rapidly.

I can’t wait.

This news story reports on a new lawsuit against Rosie O’Donnell brought by two courtroom sketch artists. They claim they sent digital thumbnails of their sketches to O’Donnell so she could decide which she wanted to buy. O’Donnell then incorporated parts of the sketches into a painting/collage “to convey her emotional experience”.

The article indicates that the artists claim copyright infringement, and the rhetoric of the attorney’s quotes indicates that there’s probably a Lanham Act “passing off” claim in there too, along with the standard state law claims for unfair competition and the like.

On its surface, this seems like one of the Nagel tile cases, in which a company which attached preexisting, authorized copies of artworks to tiles and sold them was sued for infringement. Those cases resulted in a circuit split, the Ninth Circuit ruling that the tile was an infringing “derivative work” and the Seventh Circuit ruling that the tile was legal, since people who buy authorized copies of copyrighted works can do whatever they want to the copies — resell them, cut them up, burn them, anything. Scholarly opinion has been solidly in favor of the Seventh Circuit’s approach.

But if the plaintiffs’ allegations are true, this case is different. In this case, O’Donnell’s work is on paper, and the sketches were sent digitally. O’Donnell would have had to print out the sketches before incorporating them in her collage. Rosie seems likely to lose unless she can show that her use of the sketches was fair use, which I sort of doubt. That printing is an unauthorized, infringing copy, so the “first sale” doctrine that determined the result in the Seventh Circuit tile case doesn’t apply.

But why shouldn’t it? Why does it make any sense that if the artist sends the thumbnails digitally the case comes out one way and if she sends them in the mail the case comes out another? Copyright law needs to recognize that even though all sorts of digital transfers of works are technically “copies”, they should be treated like movements of a single, authorized, physical copy for the purposes of the first sale doctrine.

Katie Dean has this Wired News story on Kahle v. Ascroft. There are some great quotes in there, and I think it lays out the issues really well.

ABC News has asked Swift Boat Veterans for Truth to stop using a clip of a Good Morning America interview with John Kerry in this ad [MOV], citing copyright concerns. The clip is edited to make it look as if Kerry is contradicting his statements in a 1971 interview, with which the 2004 GMA interview is interleaved.

It’s rather dastardly; a careful listen shows that Kerry says nothing inconsistent with the proposition that he threw away his own ribbons and the medals of other veterans. And at the end, it edits together two clips — “We threw away the symbols of what our country gave us” / “And I’m proud of that” — which make it seem that Kerry is expressing pride about something he didn’t express pride about in the interview.

But not all things that are dastardly are copyright infringement, and this ad is pretty clearly fair use. The purpose and character of the use is political advocacy, also weighing in SBVT’s favor. The work is more or less entirely factual — it’s video of what Kerry actually said. This weighs in favor of SBVT. The ad only used very short clips compared with the entire interview; indeed, this out-of-context use is what ABC complains about, but it weighs against ABC in the fair use analysis. And a 30-second political ad is not a market substitute for a newsmaker interview on GMA, so the final factor weighs in favor of SBVT.

So they’re jerks, but they’re not infringers.

UPDATE: Commenters below ask whether Kerry could go after SBVT on a defamation, slander, or libel theory. However, Kerry is about as public as a public figure gets, meaning the bar for such claims is pretty high. New York Times v. Sullivan says to prevail, Kerry would have to show that SBVT’s statement was false and that they made their statement “with ‘actual malice’ - that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” The falsehood prong might be hard to prove. Let’s take the most egregious bit — the “We threw away the symbols of what our country gave us” / “And I’m proud of that” edit. What falsifiable statement is SBVT making? At the very most, they might be saying that Kerry has expressed pride in throwing away the medals. The statement of pride is ambiguous enough that it would be hard to rule any implications false. And SBVT could argue, probably successfully, that they were just saying that Kerry said both of these things, and that the white flash in between makes clear to the viewer that they weren’t said one right after the other. SBVT would probably prevail, since it would be very difficult to prove that SBVT was reckless or knowingly lying in this situation.

Although in situations like this the fact is aggravating, merely misleading speech is protected by the First Amendment.

Happy Rosh Hashanah. L’shanah tovah; have a sweet 5765. (I’m a little early, but you know what they say — it’s sundown somewhere.)

Of course, there’s an internet audio geek angle. Congregation Emanu-El of the City of New York, the nation’s largest reform congregation, is broadcasting high holiday services via RealAudio streams. They have what sounds like a scripted, abbreviated Erev Rosh Hashanah service streaming now. The shofar doesn’t sound quite as majestic at 16kbps, but I suppose it’ll do for those who can’t make it to services.

The Copyright Office today released a new draft of the INDUCE Act. The content of the legislation is still in flux, but its purpose is and has always been to make a smoking hole in the ground where the P2P software companies used to be. The new draft is much narrower than previous ones, focusing on the business model of the defendant rather than the functions performed by the defendant’s technology.

It’s still impossible for a defendant to win on summary judgment, though. Let’s take the iPod as an example. The iPod is unquestionably “a cause” of public dissemination. But for the iPod, at least one marginal user wouldn’t be on P2P, since the iPod makes his MP3s more useful; but for the downloading activity connected with the iPod, the user wouldn’t disseminate by running the P2P app. One of the things you learn in first-year Torts is that things get hairy quickly when your standard of causation is lower than proximate cause or reasonable foreseeability; you end up suing the tortfeasor’s mother for giving birth to him, or suing the cabbie who brought the tortfeasor to work that day. So the standard for causation in this draft is dangerously low, and unless the causation requirement is tightened up in a later draft, nothing will be too remote a cause. The plaintiff will never lose because they failed to prove sufficient causation.

As for the three-part test — you’d need a lot of facts to determine whether the iPod would be commercially viable without P2P, or whether most iPods are bought for use with illegal MP3s, or whether Apple relies on P2P to attract people to the iPod. All a copyright holder would have to do is dig up enough marketing memos during discovery to give rise to a genuine question as to facts material to those determinations. Even under the revised bill, something like the EFF’s iPod complaint would probably get past summary judgment.

And that means the bill must be stopped, even though it’s guys like me who would be able to rack up untold billable hours fighting off bogus INDUCE lawsuits.

No, we’re not in a Yakov Smirnoff joke (”In Soviet Russia, infringers sue YOU!”). Altnet, a division of Sharman Networks (parent company of Kazaa), has sued the RIAA over their anti-piracy efforts. I can’t find it on PACER, so I don’t know for sure, but Altnet has sued in the past over their ‘791 patent, which describes a hash-based method of cataloging media.

It appears, however, that all the RIAA will have to do is wait. According to the article, Altnet has a little over $500,000 in cash on hand. Conventional wisdom is that it’s impossible to do a patent trial for less than a million dollars. So it seems they’ll peter out someplace down the line.

The San Francisco Chronicle reports on radio station objections to parts of Microsoft’s new radio service. The “Local Stations” feature of the new MSN Radio service allows users to listen to webcasts that are “like your favorite local stations, but with fewer ads, no DJ chatter, and less repetition,” with a different webcast for each of the top stations in each market. You can also skip songs you don’t like.

Services like MediaGuide sell playlists for thousands of stations across the country, and my guess is that Microsoft is buying the information and using it to automatically set up a pool of music that would be heard on each station. A quick spot check of KDWB and KSTP in the Twin Cities indicates that they’re not precisely tracking the real-time playlist of each station, instead closely replicating each station’s format.

As the article indicates, there might be a trademark issue here; Microsoft is using the stations’ trademarks (those silly slogans like “93X Rocks”) in connection with a service that is not provided by the trademark holder. But Microsoft’s use is probably permissible because it’s descriptive and makes clear that the goods are similar, though not the same — the usual “If you like Plaintiff, you’ll love Defendant!” case.

But might there be a copyright issue as well? Of course, the local stations don’t hold copyright in the songs themselves, but they’re creating an original selection and arrangement of those songs and broadcasting it. Original selection and arrangement of independent works is itself copyrightable. Microsoft is copying the selection, but not the arrangement (since Microsoft’s order is at least seemingly random). Some employee of the local radio stations (or, more realistically, of Clear Channel) is doing the creative work of selecting the songs that get added to the rotation; Microsoft is copying that creative work.

Microsoft would be able to assert a number of objections to the validity of the copyright, perhaps most interesting of which would be “scenes a faire”, the doctrine under which stock elements found in most works of a given genre cannot be the subject of successful infringement actions. Microsoft might argue that the selection of songs in KDWB’s playlist is, in its entirety, a scene a faire of the Contemporary Hit Radio format, and is thus uncopyrightable.

To my knowledge, the copyrightability of radio station formats hasn’t ever really come up. Stations competing in a single local market have to differentiate themselves to keep listeners, so near-verbatim copycatting is a bad competitive strategy. And since local stations don’t compete with stations in other cities, long-distance copycatting is unlikely to be noticed or acted upon. Here, though, the local stations have a competitor that can give the consumer a better experience (no ads, skipping bad songs, better song information) at the same price, with the same playlist.

It will be interesting to see what effect, if any, moves like this one have on revisions to the webcasting provisions of the Copyright Act. Broadcasters were opposed to webcasting in the past, but this seems likely to kick the National Association of Broadcasters’ substantial lobbying machinery into high gear.

In Bridgeport Music v. Dimension Films, the Sixth Circuit sets forth a bright-line rule for digital sampling: “Get a license or do not sample.”

In the usual copyright infringement analysis, one of the threshhold questions is whether the copying was de minimis — so small and trifling that it’s a waste of time to fight about it. If I copy three or four notes from your song into my song, a court would probably find that, while I have infringed, my infringement is de minimis and I’ll prevail if you sue me.

The Sixth Circuit holds that in the context of digital sampling, there’s no such thing as a small or trifling sample. Why?

[E]ven when a small part of a sound recording is sampled, the part taken is something of value. No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both.

When considering the effects of their new rule on creativity, the court has this to say:

We do not see this as stifling creativity in any significant way. It must be remembered that if an artist wants to incorporate a “riff” from another work in his or her recording, he is free to duplicate the sound of that “riff” in the studio. Second, the market will control the license price and keep it within bounds. The sound recording copyright holder cannot exact a license fee greater than what it would cost the person seeking the license to just duplicate the sample in the course of making the new recording. Third, sampling is never accidental. It is not like the case of a composer who has a melody in his head, perhaps not even realizing that the reason he hears this melody is that it is the work of another which he had heard before. When you sample a sound recording you know you are taking another’s work product.
…
[T]o pursue further the subject of stifling creativity, many artists and record companies have sought licenses as a matter of course. Since there is no record of those instances of sampling that either go unnoticed or are ignored, one cannot come up with precise figures, but it is clear that a significant number of persons and companies have elected to go the licensing route. Also there is a large body of pre-1971 sound recordings that is not protected and is up for grabs as far as sampling is concerned.

We have thus moved from a misunderstanding of the structure of the music industry (little guys can’t afford licenses) to a material misstatement of the applicable law. You can’t just sample pre-1971 sound recordings at will; while they’re not protected by federal copyright law, they are protected by various overlapping state law provisions. The last time someone sampled freely from a pre-1971 sound recording, we all know what happened.

This is a really scary opinion written by a court relying too heavily for my comfort on law review articles published when sampling was in its infancy. The justification for the de minimis analysis does not go away when the copying is not only teeny tiny, but also intentional. The law does not concern itself with trifling infringements not because those infringements are likely to be accidental, but because it simply isn’t worth the trouble, in an efficient dispute-resolution system, to spend years in litigation over a three-note guitar arpeggio. This dispute demonstrates the inefficiency in the system; the plaintiffs went ahead with litigation over this one sample in order to establish a reputation as a tough bargainer and to try to establish a precedent useful to them in later litigation. Their prayers were answered by the Sixth Circuit, which gave them a strict bright-line rule that fails to adequately consider the structure of the music industry and of musical creativity.

In an email to me after my last post about his cases, Bill Purdy expressed pride that I had dubbed him “our own Twin Cities cybersquatting anti-abortion nutcase”. And so, our own Twin Cities cybersquatting anti-abortion nutcase appears again, this time on appeal to the Eighth Circuit in Coca-Cola v. Purdy [PDF].

Purdy appeals (this time with an attorney) from the district court’s grant of a preliminary injunction instructing him to stop pointing various domain names he’d purchased — for example my-washingtonpost.com and drinkcoke.org — to an anti-abortion website he helps run. Purdy failed to comply with the preliminary injunction and was held in contempt of court; he appeals this finding as well.

All of Purdy’s appeals failed; the court found a bad-faith intent to profit in the presence of merchandise sales and appeals for donations on the cyberaquatted sites, and the rest followed from there. The issues of famousness and likelihood of confusion were pretty quickly dispensed with; when you go to mymcdonalds.com, you expect a site whose source is McDonalds. Coke even had an email from one (bestially stupid?) consumer who was actually confused and thought the site was affiliated with Coke after seeing it.

After finding that Purdy’s use was deceptive (indeed, that deception was the whole point of the exercise), Purdy’s objection that the preliminary injunction was a prior restraint repugnant to the First Amendment quickly fell, since “the First Amendment does not protect the deceptive use of domain names that are identical or confusingly similar to another’s trademarks.”

Purdy’s appeal of the contempt sanctions was rejected on procedural grounds; since he is a party in the litigation out of which the sanction arose and the litigation is still pending, he must wait until a final decision is reached in the underlying litigation before he may appeal the finding of contempt.

After this decision, the Faegre litigation and all of Purdy’s future enterprises — and there are sure to be future enterprises — should get shut down pretty quickly. What’s interesting is that Purdy might have avoided this outcome with a few changes to his approach that might not have affected his message. If he had omitted any commercial content and targeted companies specifically, making specific commentary on their pro-aobrtion stance, he might have prevailed on appeal. Of course, his other conduct — transferring the domain name to a shady foreign character who may or may not exist in order to frustrate the trademark holder’s demands — means that the court might have found bad faith anyway.

By all accounts, Purdy is a charming fellow, and his lawyer on appeal seems to have done as good a job as he could have given the facts of the case and the preceding events in the litigation. But this conduct — deliberate confusion of consumers by using famous marks in domain names — is precisely what the ACPA was designed to punish. Purdy should have lost and, I predict, will continue to lose. He may stay in the news, however — especially when he finally, inevitably gets himself hauled to jail for contempt — and it seems that’s what he’s in it for.

I’m back from a weeklong drive from sunny, beautiful Palo Alto to temporarily sunny, temporarily beautiful Minneapolis via Mount Saint Helens, Mount Rainier, Glacier, and Yellowstone National Parks. I am now sufficiently fed up with beautiful scenery that I’m ready for a Minnesota winter.

Postings will now resume apace.