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Jim Walsh of the Minneapolis alt-weekly the City Pages has this rather beautiful column on the ways the iPod and iTunes foreground music in the lives of their users.

The “record player” is now the size of an Altoids box, and what that means is that come Saturday, four million free spirits who very likely don’t own a turntable will ignore the puritans who would dismiss the iPod as trendy or tinny. They will hit “shuffle,” wait for the universe to play mix-tape master, and allow their inner Greil Marcuses to suss out the secret link between Neko Case’s rave-up of the old spiritual “This Little Light of Mine (I’m Gonna Let It Shine),” Hilary Duff’s “Haters,” and the Midnight Evils’ “Go, Motherfucker, Go.”

In her 1984 book Software for People, electronic music pioneer Pauline Oliveros wrote about the way the then-new Walkman changed its users’ relationship with the sonic world around them. She argued that the ability to choose ambient sounds at all times meant losing the serendipitous beauty of the sound environment.

The end of Walsh’s column shows the flip-side of Oliveros’ concerns, borrowing (serendipitously? subconsciously?) her software metaphor:

It means that four million people will be giving, receiving, listening to, and talking about music on Saturday, and what that means is that four million minds and hearts will be reconfigured like so much upgraded software, and the truth is, what that means is we have no idea what that means. Yet.

Proof that privacy watchdog groups like EPIC have truly arrived? This week’s Onion makes fun of them in an article titled “Privacy Advocates Refuse To Release New Report.”

I thought it was too trademark-geeky to mention, but this post on The Trademark Blog hit it right on the head:

If you saw the Lemony Snicket movie and you are a trademark lawyer that can’t leave work at the office, then you laughed at the Realtor gag and wondered if the NAR [National Association of Realtors, which has been getting into numerous situations like these] would write a nasty letter to the film’s producers because it used REALTOR as a generic term.

Incidentally, it’s a great movie (and, in my case, an unusual opportunity to explain genericide to my little brother).

This brief filed a few days ago by Michael Lynn of Lynn Tillotson & Pinker is an instant classic. Who knew Akin Gump was the Grinch?

This blog will be on hiatus until January 7th. I wish you a happy 2005. In the holiday spirit, you may wish to send lumps of coal (literally) to the RIAA and MPAA by donating to IPac, the EFF, or Public Knowledge.

I won’t be able to review my top ten albums of the year as I did last year. However, here are some of my favorite 2004 releases:

• DJ Danger Mouse - The Grey Album
• Magnetic Fields - i
• A.C. Newman - The Slow Wonder
• Sarah Harmer - All of Our Names
• Rilo Kiley - Less Adventurous
• Elliott Smith - From A Basement On the Hill

All but the Grey Album are available via the usual legal music services; the Grey Album is available here.

According to this AP story, United States District Judge Leonie Brinkema has granted partial summary judgment in favor of Google. She ruled that while Geico could go forward with its trademark claims in those cases where Google ads actually contained the word Geico, Google is not liable when Geico’s competitors’ ads are merely triggered by the presence of the word Geico in search queries, search results, or web pages.

Since advertisers control the text of the ads, the remaining issue — liability for use of the word “Geico” in competitors’ ad copy — will come down to whether Google knew that Geico’s trademark rights were being violated (if advertisers’ use of the word “Geico” was indeed infringing).

Congratulations to Mike Page of Keker and Van Nest and the rest of the Google legal team for winning this early battle.

Long-time intellectual property gadfly Greg Aharonian has filed Aharonian v. Ashcroft (N.D. Cal., Case No. 5:04-cv-05190), apparently seeking a declaration that software copyrights are unconstitutional or otherwise invalid. (I can’t say for sure, since the complaint isn’t up on PACER yet; I’m going on this Reuters report.)

He’s been making these arguments on various IP listservs for years, and has a lot of expertise for a non-lawyer. Whether he’ll be able to navigate the vagaries of constitutional litigation pro se is uncertain, though he did write this do-it-yourself guide to filing constitutional cases.

He appears to be arguing that copyright laws, as applied to software, are void for vaugeness and thus unconstitutional under the Due Process Clause. This is not a winning theory. Just because the Supreme Court hasn’t yet decided which infringement test (Whelan or Altai or something else) applies for computer software doesn’t mean we’re completely at sea. I’ll be interested to read the complaint when it’s available.

UPDATE: The complaint is available. It’s no better than expected. Unsurprisingly for a pro se constitutional litigant, his complaint is long on argument and short on factual allegations. And his theory — that software copyright is void for vagueness — is simply not going anywhere. Just because the applicable tests are confusing and often require expert testimony doesn’t mean they are unconstitutional. I like his idea of filtering patentable material, though constitutional litigation is not the forum in which to have such a rule implemented. (Also, note to future pro se constitutional litigants: don’t make up your own citation style. It just reminds us you’re not a lawyer every time you cite to authority.)

This New York Times article by John Markoff and Edward Wyatt confirms what we’ve been strongly suspecting for some time: Google has plans to digitize large portions of the holdings of several of the world’s major research libraries in the coming years. Public domain materials will be available in their entirety, and the article hints that short excerpts from materials still under copyright will be available.

This is great news. Having this material available has the potential to place in the foreground the importance of the public domain. Further, Google may have the resources and incentive to figure out comprehensively which post-1923 books are already in the public domain for failure of formalities.

It will be interesting to see how Google and the libraries plan to justify digitizing entire copyrighted books without a license. Even if they’re not included in the public database, merely digitizing them involves making one or more unauthorized copies. I’m sure they have a plan; my plan might be to make deals with all the copyright holders you can find, then just digitize the whole thing and settle with any copyright holders you couldn’t find. But that might be expensive, even for Google.

Neil Turkewitz, Executive Vice President of the RIAA, wrote this essay titled “Copyright, Fair Use and the Public Interest”. In it, he explains why he thinks strong copyright is in the public interest and why he thinks copyfighters have it all wrong.

The thing is, apart from his extremely inaccurate characterizations of the positions of Lessig and the EFF, there’s not much to disagree with in the essay. Take those out and you’ve got a nice, noncontroversial copyright piece.

What this piece really showed me is that there are at least some smart copyright maximalists out there who fundamentally misunderstand the copyright minimalist position. To my knowledge, nobody’s arguing that all of the people uploading and downloading MP3s of major label content on P2P networks are engaging in fair use, or engaging in some expressive activity privileged by the First Amendment. Larry Lessig certainly isn’t. But Turkewitz seems to think he is, and it’s no surprise that Turkewitz is able to handily knock down the straw man he’s built.

The Supreme Court has decided to review the Ninth Circuit’s decision in Grokster. This is, on balance, marginally bad news; we might win bigger, but we might lose altogether. On the plus side, we get to see Fred von Lohmann go before the Justices, which should be fantastic.

This amazing flash video by Robin Sloan and Matt Thompson tells one future history of media. Smart ideas, beautifully produced.

In an opinion released today, the Supreme Court ruled that in trademark cases, a finding of likelihood of confusion does not bar an affirmative defense of fair use.

It’s important to remember that this is trademark fair use we’re dealing with here, which has nothing to do with copyright fair use. The statute says that a party can successfully defend against a claim of trademark infringement when they can show that they are using the mark “fairly and in good faith only to describe the goods or services of such party, or their geographic origin.” So if I advertise my cookies as “much yummier than Oreos”, Nabisco can’t come after me.

The Supreme Court held, unsurprisingly and unanimously, that the affirmative defense of trademark fair use does not place a burden on the defendant to prove that his use was not only descriptive, but also unlikely to cause consumer confusion. This is really the only reading of the statute that makes sense, since likelihood of confusion is one of the elements of a prima facie trademark infringement case; the plaintiff has to prove it in order to win, whether or not the defendant raises any affirmative defenses. I think Justice Souter says it pretty well:

If a plaintiff succeeds in making out a prima facie case of trademark infringement, including the element of likelihood of consumer confusion, the defendant may offer rebutting evidence to undercut the force of the plaintiff’s evidence on this (or any) element, or raise an affirmative defense to bar relief even if the prima facie case is sound, or do both. But it would make no sense to give the defendant a defense of showing affirmatively that the plaintiff cannot succeed in proving some element (like confusion); all the defendant needs to do is to leave the factfinder unpersuaded that the plaintiff has carried its own burden on that point. A defendant has no need of a court’s true belief when agnosticism will do. Put another way, it is only when a plaintiff has shown likely confusion by a preponderance of the evidence that a defendant could have any need of an affirmative defense, but under Lasting’s theory the defense would be foreclosed in such a case.

While it’s true that there is no likelihood of confusion in most descriptive uses of trademarks, this ruling makes clear that descriptive use is allowed even when it might confuse consumers. Since any other ruling would completely eliminate the fair use doctrine in trademark law, this is a very good thing.

I just got an email from my mother, who apparently reads my blog. Reading Dan Hunter’s article linked in my last post, she noticed something I’d missed. Stephen Manes, a columnist for Forbes, has been a vociferous critic of Larry Lessig (who had strong responses to the criticisms). The name rang a bell when I read his rather irritating columns about Lessig, but I figured it was just because I’d read one of his columns in the past, or he’d been mentioned on some blog I read.

Nope. Turns out, Stephen Manes wrote The Obnoxious Jerks, my absolute favorite book from ages 9 to 11 or so. His book Comedy High came out when I was in sixth grade, and that was a favorite, too. And I have a fond memory of staying up all night, hiding under the covers on a school retreat in fourth or fifth grade with a flashlight, reading Manes’ 1989 release It’s New! It’s Improved! It’s Terrible!. However, I never liked Chicken Trek, vastly preferring The Hoboken Chicken Emergency as young adult novels about fowl subjects go.

Perhaps Manes should stick to what he does best.

Two must-reads from this past week:

• Dan Hunter’s feature article about Larry Lessig and the student Free Culture movement in Legal Affairs, titled Marxist-Lessigism.
• Ernest Miller’s interview with Tim Wu, the second installment in the Future of Digital Media series. As usual, Wu says some incredibly insightful things. (For those deeply interested in the development of copyright law, his recent paper Copyright’s Communications Policy is brilliant.) A few snippets:
  

  What has happened, for instance, to large-scale spectrum reform? There is no one — from Yochai Benkler to Adam Thierer — who has a kind word for the present allocation of spectrum. It’s an ongoing disgrace. But as spectrum reform sits on some kind of back burner, the FCC spends its time attending to Janet Jackson’s halftime show. It is almost, at times, as if there are two FCCs.

  When laws hide their dirty laundry in other legal regimes, it becomes hard, even for legal experts, to keep track of what the government is doing. The crossover of Copyright and Communications policy is a sterling example.

  I think things are even worse than Cass Sunstein predicted. What Cass wrote about in the 1990s was the basic problem of debate polarization. But I don’t think he expected that even facts themselves would come up for grabs, leaving each side living in fully constructed parallel universes of disinformation.

  I don’t blame the blogs. Here is the problem: we are living with the unexpected consequences of low-cost information dissemination, or “cheap speech.” Cheapness is generally good, but it also creates strange consequences. Cheap corn, for example, makes us fat. Cheap drugs, like crack cocaine, can destroy neighborhoods. And cheap information is making us stupid.

The Pew Internet and American Life Project today released “Artists, Musicians, and the Internet”, a report on the results of a wide-ranging project undertaken with the help of the Future of Music Coalition to survey musicians and other artists on their attitudes toward the Internet and digital copyright.

According to the survey, musicians see the Internet both as a great boon to their ability to get their music heard all over the world and a potential danger to their ability to monetize their art. There are lots of ways to spin these numbers, but one of the most telling is this: 70% of musicians said that file-sharing services are good for artists because they help promote and distribute an artist’s work, but 58% said that file-sharing services are bad because they allow people to copy an artist’s work without permission or payment. A full 35% said both — which I think would be my response.

Kudos to the Future of Music Coalition and to Pew for putting together this important report, which I hope will amplify the voice of the artist in debates over copyright and the Internet.

The College Board, administrator of the SAT, sent a letter to its perennial gadfly the National Center for Fair and Open Testing asking them to remove a table showing vast disparities in SAT scores between students of varying ethnic backgrounds and income levels. The FairTest table takes its data from graphs like these in the College Board’s 2004 report on test-takers. The College Board letter claims that because it owns “all right, title, and interest in the featured works” and fairtest.org’s “misuse overtly bypasses our ownership and significantly impacts the perceptions of students, parents, and educators regarding the services we provide”, fairtest.org must “cease displaying any and all College Board copyrighted materials” until they receive permission.

In its response, fairtest.org argues that “[s]ince the raw data on SAT scores, from which this chart is derived, are widely available in the public domain, having previously been published by a variety of news media outlets and research journals, they are not subject to copyright protection.”

Close.

The facts contained in the fairtest.org chart are indeed in the public domain, but not because they were previously published. The facts about which groups received which scores are in the public domain because they are facts. It’s either true or false that African American test-takers, on average, scored 227 points lower than Asian American test-takers; there’s no copyrightable expression involved. And fairtest.org doesn’t present the data in the same order or the same graphical layout as in the College Board’s report, so they aren’t copying any original selection and arrangement.

Somewhat ludicrously, the College Board also appears to claim copyright in facts about its rival, the ACT; the letter demands that both the fact sheet on the SAT and the fact sheet on the ACT be taken down.

It will be interesting to see what, if anything, happens when the grownups at the College Board get involved. Why don’t I think the College Board’s higher-ups are involved? Because if you saw the sentence “You should not presume permission, it must be formally granted” on the SAT, you’d replace the comma with a semicolon.

UPDATE: The New York Times has this story on the matter.

The AP reports that a new crop of photos depicting abuse of American detainees during home raids in Iraq was discovered by an AP reporter doing a Google image search. The photos were posted on a commercial photo-sharing site, and the AP was able to obtain copies… by ordering them for $0.29 each from the site.

Military authorities are investigating.

Via boingboing. I read the boingboing post with my mouth literally agape. Personal media changes everything — especially unexpected things.