joegratz.net

I’m a contributor to IPac, and you should be, too. Katie Dean of Wired has this story about the group, which is committed to helping candidates who endorse sensible, technology-friendly IP policy.

IPac also recently launched its blog, which will follow policy developments.

An enterprising GrokLaw reader obtained a copy of the 1994 settlement between the University of California and UNIX Systems Laboratories through California’s open records law. This document, never previously made public, appears to indicate that SCO’s litigation compaign will necessarily be limited to contract claims against licensees. Anyone not in privity of contract with SCO (for example, you or me or Linus or Red Hat) is probably safe.

The role of GrokLaw and its enthusiastic contributors in this litigation is ripe for academic commentary. A small segment of the public is so interested in the case that they pore over and analyze all of the public documents, occasionally (as here) conducting discovery themselves, though without the subpoena power. This seems likely to be a special case, since the members of the public interested in this case (Linux geeks) are both unusually passionate about the cause and unusually skilled at acquiring and organizing information. But the sophistication with which Pamela Jones and her army of helpers has taken to the dissection of this case has implications for the future of “community-based litigation”. Berkman’s OpenLaw project tried it on the appellate level, and GrokLaw is giving it a try in document-heavy corporate litigation. I wonder what (if anything) will be the next project to harness lawgeeks.

I’ve been a Wired reader since Issue 1.1. I’ve watched it get thicker, then thinner, then thicker again. But what I’ve always loved about the magazine’s physical feel is the cover stock they used — it a really nice, thick, heavily matte-coated stock. The colophon even used to say exactly what kind of paper and coating they used for the cover.

Now, with issue 12.12, they’ve switched to a glossy cover. Ick. I know it seems trivial, but it makes a big difference to what it feels like to hold and read the magazine. Somehow, the reading experience now feels so much . . . Condé-Nastier.

Tommy O’Reardon at Copyfutures has a good post proposing a solution to the peer-to-peer “problem”. He feels nobody is adequately considering the solution of simply suing as many p2p uploaders as possible. With reference to a recent paper by Mark Lemley and Tony Reese, he argues that by taking out the “keystone” uploaders, we can protect copyright holders while leaving technological innovation untrammeled.

If it’s effective, I don’t think it’s a bad solution. Indiscriminately distributing major-label music on public p2p networks is behavior that is justly punishable. But there are reasons to believe it won’t work, or won’t work well. First, a large proportion of the defendants will be judgment-proof, and civil enforcement won’t do any good. Second, without large-scale criminal enforcement, many “keystone” infringers simply won’t be deterred. Teenagers think they’re invincible, or think they’re hiding their tracks — and sometimes they are hiding their tracks. Plus, there’s a reason upper-middle-class kids don’t get sent to jail for most of the bad things they do; their parents have political power, and won’t stand for it.

Finally, users can just download things from users in other countries. International ‘net connections are fast, and are getting faster. Putting all of America’s keystoners behind bars won’t win the War on Piracy, since downloaders aren’t willing to “Just Say No.”

District Judge Maxine M. Chesney of the Northern District of California has granted the government’s motion to dismiss Kahle v. Ashcroft just weeks before the motion was set for oral argument. My previous posts on the case and related issues are here.

This is a personal disappointment for me, since I spent much of the summer working on the case at the Center for Internet and Society.

The court’s order is not yet posted on the Center’s web site, likely due to the Thanksgiving holiday. I grabbed it from PACER, though, and you can download a PDF of the decision here.

The Court doesn’t say anything particularly surprising. Chesney sees all challenges to CTEA foreclosed by Eldred, and chooses to apply rational basis review to challenges to all other copyright statutes. Under Chesney’s simple reasoning, any law that creates more or stronger copyrights is rationally related to the progress of science and automatically passes constitutional muster. Because all of the challenged statutes grant more rights to copyright holders, Chesney reasons, they must all be immune to further constitutional scrutiny.

Chesney is wrong, and I wish Chris Sprigman, Larry Lessig, and the rest of the Kahle team luck in their appeal to the Ninth Circuit.

Adam Liptak has this article in today’s New York Times about the unusual number of religious law schools that have opened recently, including St. Thomas here in Minneapolis.

As described in the article, finding a uniquely religious viewpoint on, say, the Erie doctrine seems a bit of a stretch.

The article concludes with a truly classic and appropriately corny instance of the Times’ trope of ending most stories with a telling, lingering quote:

The school is not yet accredited by the American Bar Association, which means its students are taking an enormous risk. If accreditation is not granted by the time they graduate in 2007, they will not be eligible to take the bar examination. Dean Green said the subject kept him awake at night.

Tuition is about $18,000 a year, though several students said they had received generous scholarships.

One student, Dustin Barr, said he had weighed the scholarship against the possibility of three largely wasted years.

“You want to come out of law school debt free,” he said. “On the other hand, what’s a $30,000 debt if you’re making good money as a lawyer?”

“There was,” Mr. Barr concluded, “an element of faith in my decision to come here.”

I suppose this isn’t all that different from any other group of law students on their knees praying for a job after graduation — just a bit more literal.

Malcolm Gladwell has this must-read piece in this week’s New Yorker about the interaction between creativity, social copying norms, and copyright laws.

The Chronicle of Higher Education has this profile of cultural studies scholar, copyfighter, and all-around cool guy Siva Vaidhyanathan.

So it turns out that some of the sample WAV files that come with Windows were edited with Sound Forge 4.5. Not surprising — that was my editor of choice in my sound designer days.

The surprising thing is that Microsoft was using a pirated copy of Sound Forge.

See, Sound Forge marks every WAV file it creates with the name of the program and the name of the user that copy is registered to. And in the case of the Windows Media Player demo WAVs, that name is Deepz0ne. You can see the output here, and I’ve confirmed it by opening the copies of the WMP demo WAVs up in a hex editor on my machine. Deepz0ne is a member of the renowned audio software cracking group Radium. (This group may be the most influential factor in my successes as a sound designer for theatre — but I digress.) They released cracked versions of all manner of audio software in the late 1990s until they petered out in 2000. The really remarkable thing about Radium was that they weren’t just pirates; they made installers that were slicker than the real thing, and occasionally released their own codec packs that proved more reliable than the official versions.

So the lesson here is twofold. First, scour every bit you release, especially when pressing millions of CDs and installing files onto every Windows desktop in the world. And second, pirating software is bad and wrong, but everybody does it when they need a special-purpose tool for a one-time job — even Microsoft.

The government has filed its brief in opposition to the EFF’s motion to unseal the record in the Indymedia server seizure case. Predictably, they challenge the plaintiffs’ standing and assert that the treaty which required the seizure of the servers trumps all domestic law, possibly including the Fourth Amendment.

Warning: I am going to be exceedingly picky in the balance of this post. It’s one of the occupational hazards of being a law review editor. This pickiness about seemingly trivial matters doesn’t mean there aren’t gaping holes in the government’s substantive legal argument; for example, if the treaty power trumps the Bill of Rights, that’s a huge and unwarranted expansion of the executive’s power. Simply put, if their argument is right, then the United States could just enter into a treaty with some other country requiring that both countries ban all criticism of government officials, and nobody would be able to challenge that under the First Amendment. Silliness. And they’re breathtakingly conclusory about the issue of whether the seizure was necessitated by a compelling government interest; they say that it was, without providing any argument, reasoning, or authority for their conclusion.

But on with picayune matters. What wasn’t predictable about this especially brief brief (it’s four pages long) is how sloppy it is. The length may be a strategic choice, sending the message that the government thinks the matter so trivial that it can be tossed aside lightly. If the message was that the government doesn’t think this case is very important, they reinforce that message by being extremely sloppy in a number of places. One wonders whether anyone read this thing before it went out the door.

• Grammar errors. Come on, guys. Make your subjects and verbs agree.
  • “The United States responds herein and ask that said request be denied for grounds would show as follows:…”
  • “…the United States would show that pursuant to Article 8 of the treaty between the United States and the requesting country, entitled ‘Protecting Confidentiality and Restricting Use of Evidence and Information’ states in part; ‘2. If deemed necessary…’.”
• Citation errors. This isn’t even hard stuff; I’m not taking points off for italicizing the period in Id. or anything like that. Just basic bluebooking failures.
• “…the ruling in U.S. v. Chagra, 701 F.2d 354 (5^th Cir. 1983)…”. You don’t italicize anything in the cite after the name of the case. You always spell out “United States” when the United States is a party. You don’t superscript the “th” in “5th”.
• “Walker v. City of Mesquite, 858 F.2d 1071, (5th Cir.(Tex.) Oct 31, 1988), holding Chagra was a ‘unique situation’ and thus not precedent for expanding standing to unanmed party members in a class action suit at 1075, footnote 1.” Well, we got the italics right this time. But there’s no comma after the reporter citation. And you don’t put in the name of the state where the case arose or the exact date of the decision in the parenthetical after the reporter cite. (That’s what happens when you just cut and paste from Westlaw, guys.) And you can’t start a textual sentence with a citation. And besides, even if you could, your sentence would be lacking a verb. And you don’t put the jumpcite at the end of a sentence, you put it in the citation. This is just strange. The correct citation would be Walker v. City of Mesquite, 858 F.2d 1071, 1075 n.1 (5th Cir. 1988) (holding Chagra was a “unique situation” and thus not precedent for expanding standing to unanmed party members in a class action suit).
• They probably would have made more citation errors, but those are all the citations they made. As I said above, the brief is breathtakingly conclusory, but they didn’t even cite sources they quoted from. The cite for the allegedly applicable treaty, which they never even name, is Treaty Between the United States of America and the Italian Republic on Mutual Assistance in Criminal Matters, Nov. 9, 1982, U.S.-Italy, 98 U.S.T. 25 (entered in force November 13, 1985). Presumably they wanted to keep everyone from knowing that Italy was the Requesting State. Not terribly effective when you quote from the treaty.

It’s sort of stunning.

Though the ruling itself is not yet out, the FCC has voted to preempt state regulation of VoIP.

This is great news, though in the near term it’ll make me scramble to include it in my article on recent developments in VoIP regulation, forthcoming this December in Volume 6, Issue 1 of the Minnesota Journal of Law, Science, and Technology.

In PC World, Anush Yegyazarian advances a novel and potentially powerfully damaging reframing of the Alternative Compensation Systems issue. She calls such proposals “paying for piracy in advance,” complaining that they force all consumers to bear the costs of piracy:

That means someone who downloads only from legal music services and plays by the rules, burning to CD only what they’re allowed, is penalized along with the person who copies every one of their neighbor’s discs or downloads and burns hundreds of copyrighted songs illegally available from a peer-to-peer network. And, of course, it penalizes people who aren’t burning music at all: for example, those who buy media to archive photos and files. Everyone is presumed guilty of music piracy; and everyone must pay the costs.

It’s a bit like saying that property taxes that go to fund public schools are unfair because they make all of us pay costs imposed by the bad apples who choose to send their kids to public school instead of “playing by the rules” and sending their kids to private school. Yegyazarian fails to recognize that under an ACS, activities that are presently antisocial “piracy” will be perfectly lawful and socially beneficial. The criticism that flat fees fail to discriminate between high- and low-volume media consumers is a valid one, but this is not an issue of making everbody pay for internet piracy. Instead, it’s about bringing efficiency of enforcement to a market where effective enforcement is presently impossible.

A recent article New York Times (reprinted in the San Francisco Chronicle) discusses trademark protection of classic modernist furniture designs.

Somebody sees something nice in your home — a recognizable luxury object, like an Eames chair or a Noguchi coffee table. It’s a knock-off. You know it’s a knock-off. You knew it was a knock-off when you bought it. And both you and the manufacturer know that when somebody sees it in your house, they’re going to think it’s real.

That’s what’s happening in the situations discussed in the article, and that’s what happened in an old Second Circuit trademark case called Mastercrafters Clock & Radio Co. v. Vacheron & Constantin-LeCoultre Watches, Inc.. The defendant made clocks that looked like plaintiff’s clocks. Buyers knew very well that defendant’s clocks were knock-offs; the knock-offs plugged into the wall, while the real thing was powered by changes in atmospheric pressure. The Second Circuit found that there was an actionable likelihood of confusion and ruled in favor of plaintiffs.

It seems we’re in the same situation here; Mastercrafters governs, and Design Within Reach has to stop making fake Mies pieces. But I don’t think the policy behind Mastercrafters lies within the purposes of trademark law. Trademark law is about consumer protection — making sure that consumers aren’t confused about the source of the goods they’re buying. Once they’ve bought the goods, it shouldn’t matter if some other non-buyer is confused. Knock-offs take away some of the cachet of owning an original, but trademark law isn’t around to protect cachet; it exists to make sure that when a buyer looks at a good, he can tell who made it. Selling fake purses in Chinatown is a victimless offense.

(This post was originally going to talk about how Dastar may have overruled Mastercrafters, but since furniture isn’t copyrightable in the first place, Dastar probably has no effect on this situation. I would like to be proven wrong; any contrary opinions?)

That’s right, the Postal Service and The Postal Service are now marketing partners. Ben Gibbard and Jimmy Tamborello will be playing for “800 senior Postal Service executives” at a convention in a few weeks, and their new album may be distributed via local branch post offices. This comes after the Postal Service threatened The Postal Service with a trademark infringement lawsuit over the name, apparently on the theory that people would think The Postal Service was somehow affiliated with the Postal Service. I’m glad to see that one was ironed out.

I am not making this up.

It looks like Charles Bukowski really missed out on some lucrative cross-promotional opportunities.

The issue of Reason magazine that arrived today in my mailbox features a great cover story, “Disney’s War Against the Counterculture: Why a decades-old copyright case matters now more than ever,” by Bob Levin. It’s about the Air Pirates case, in which Disney sued a group of artists who created underground comix featuring Disney characters in various unwholesome storylines. The article is excerpted from Levin’s book about the case.

The article provides really great insight into the characters behind the case, though it fails to deliver on its promise to show why Air Pirates “matters now more than ever”. And, understandably though irritatingly, it confuses Melville Nimmer (copyright god and treatise-writer, dead) with his son, David Nimmer (copyright demigod and treatise-updater, alive) in its discussion of Campbell v. Acuff-Rose. The writer attributes a quote about the 1989 Acuff-Rose decision to Melville Nimmer, who died in 1985.

Before reading the article, I hadn’t realized that John Keker had been involved in Air Pirates. This early involvement may help explain why the firm bearing his name has had a hand in all the cool copyright cases lately.

So, go pick up Reason. It’ll be worth your while.

UPDATE: The article is now available online.

The latest installment of Ernest Miller’s show The Importance of Law and IT is up. In this 45-minute program, Ernest, Jason Schultz, Derek Slater, and I discuss last week’s Sixth Circuit ruling in Lexmark v. Static Control Components.

Thanks to Ernie, Jason, and Derek for a lively, insightful conversation.