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Via Elizabeth Townsend comes a link to Michael Lesk’s database of copyright renewal records. These records are of use to anyone researching the copyright status of a book published in the United States between 1923 and 1963. The database does not include any works other than books.

This is, incidentally, the same Michael Lesk who designed UUCP and worked on the original UNIX team at Bell Labs.

Bill Patry, copyright scholar and treatise author, has begun blogging. He begins with a post on the “Yiddish with Dick and Jane” case, which I blogged about here.

TigerDirect is suing Apple for a temporary restraining order barring its use of the trademark “Tiger” in connection with the new version of its operating system software, which comes out today. TigerDirect has a registered trademark in the word “Tiger” covering “Mail order catalog services featuring computers and computer related products; and Retail store services featuring computers and computer related products” and a registered trademark in the word “Tigersoftware” covering “catalogues promoting computer software”.

Apple applied for registration of a trademark in the word “Tiger” covering “computer operating system software.” TigerDirect filed an opposition with the Patent and Trademark Office — an administrative proceeding in which TigerDirect tries to convince the PTO that Apple shouldn’t be allowed to register the mark. That proceeding is ongoing; you can view the documents here. Apple has filed a counterclaim in the opposition proceeding seeking to cancel TigerDirect’s “Tiger” and “TigerSoftware” marks.

The opposition proceeding is still in its discovery period, so it’s understandable that TigerDirect saw a need to go to an Article III court for a speedier resolution. The last set of briefs before the opposition is resolved aren’t due until July of 2006, by which time Apple will probably have released its next version of Mac OS, which will inevitably be named something like Ocelot to avoid any trouble.

UPDATE: TigerDirect’s complaint and the brief supporting its motion for a temporary restraining order are available. The complaint is written in a rather overbearing, argumentative style, but doesn’t contain much that’s surprising. The only item of note is paragraph 31, in which TigerDirect alleges that Apple’s harm to its search engine ranking for the term “Tiger” is relevant to its claim.

KYCY, a San Francisco AM station, is moving to an “all-Podcast” format, in which listeners can contribute talk-radio content to be broadcast on the station. Xeni Jardin has this report on Wired News.

Interestingly, while the content will be broadcast over the AM airwaves and streamed from the station’s website, the “all-Podcast” station may not be able to make its content available in podcast form. KYCY has said it may be allowing contributors to use major-label music, which is podcast-incompatible.

In a last-ditch attempt to put off finishing my Administrative Law outline, I’ve been putting together a Rhapsody playlist of songs that make puns on legal terms — Belle and Sebastian’s “Legal Man”, The Story’s “The Perfect Crime”, and Jenny Toomey’s rendition of Franklin Bruno’s “Union Busting” are all on the list already.

I found a song that doesn’t fit my playlist’s theme, but that seemed worth mentioning nonetheless. It’s called “Stoled: The Copyright Infringement Incident” by Cledus T. Judd, and it’s apparently parody of “Sold: The Grundy County Auction Incident” by John Michael Montgomery.

The chorus:

And I said,
Hey John Michael Montgomery won’t mind
If I take a song and make it mine all mine
Like I did so many times with old Tim McGraw’s
Yeah I never heard anything sound so fine
Mind if I borrow one or two of your lines
Well I stole it once stole it twice
I STOLE it from a writer on Music Row
Well he just moved to town and he didn’t know
About ASCAP, SESAC, or BMI
So he might as well kiss his song goodbye.

Here’s a Rhapsody playlist of the parody and its source.

While procrastinating in a similar vein yesterday, I put together this playlist, which counts from “One” to “Twenty-Four”.

Some graduate students at Berkeley are doing this very cool location-based social software project. When a user connects to the wireless network at a participating cafe, they are presented with a captive portal page which allows them to connect with others who are physically in the cafe with them.

While this seems like a pale imitation of spontaneous cafe conversations, it’s meant to enhance face-to-face interactions and fight the “zombie effect” — when there are a bunch of social people in an inherently social physical space, but nobody interacts because they’re all intent on their cell phones or laptops.

Today, President Bush signed the Family Entertainment and Copyright Act into law.

What does this mean?

• Clandestine videotaping of movies in movie theaters is now a crime (but in nearly all cases, it already was).
• Sharing music that’s not yet out on CD or movies that aren’t yet out on DVD on the internet is now a crime (but in nearly all cases, it already was).
• Devices and services that allow parents to automatically block out the dirty parts of movies are exempt from copyright liability (but they might have escaped liability anyway, and the exemption is very narrowly written).
• It renews funding for film preservation and fixes a clerical error in the Copyright Act.

As I’ve mentioned before, this is not that bad.

What’s next on the legislative agenda? I speculate (wildly) that a heavily watered down INDUCE Act and a law patterned on the Glushko-Samuelson Clinic’s orphan works proposal will be rolled into one bill and introduced late this fall.

Sarah Boxer has this very funny “Critic’s Notebook” piece in this morning’s New York Times. It describes the writer’s annoyance with four tropes of interactive art — “prurience, ritual, ungraciousness and moral superiority” — and with artwork that doesn’t function as intended.

I hope this piece becomes a standard in course packs. While there’s virtually no art better than fully-theorized, fully-realized interactive work, there’s virtually none worse than pretentious, tired, broken gizmos filling a gallery.

According to this Reuters story, at its press conference tomorrow RealNetworks will announce a portable subscription music service based on Microsoft’s Janus DRM technology. The subscription will cost $14.95, $5 more than a normal, non-portable Rhapsody subscription.

The overall arc (a portable service) is entirely expected; the particulars have a number of interesting implications. One is that RealNetworks is more or less giving up on using its own codecs or its own DRM in connection with Rhapsody. If they were serious about getting Helix DRM into the iPod or any other portable player, for example, this would be a strange move. They’re also matching — but not undercutting — Napster’s price for the very same product, which doesn’t strike me as a terribly bold move for a company that’s second or third to the market.

UPDATE: They’ve added community features and bumped the bitrate to 160kbps. You can now move files you’ve purchased (though not subscription files) to an iPod. And it acts as a system-wide media library.

Susan Crawford examines one of the interesting quirks in the recently-passed Family Entertainment Copyright Act. Section 106 of the Copyright Act grants copyright holders an exclusive right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending”. This has universally been understood as an exclusive right to the distribution of physical copies — a right that terminates when each copy is first sold to the general public, under section 109.

But the FECA includes new criminal penalties for infringement of the distribution right with regard to a prerelease work “by making it available on a computer network accessible to members of the public”. Are they referring to infringements of the 106(3) distribution right? That would be a bit odd, since “making available” on a computer network does not necessarily involve “sale or other transfer of ownership, or by rental, lease, or lending”. It involves no transfer of a possessory interest in any particular physical object at all.

Now, perhaps courts will place a gloss on the section 106 language, holding that the distribution right was really meant to control all acts constituting publication, even the making of a copy by means of a transmission. But that’s barely a plausible meaning of the words in the statute, and I think a court could just as easily find that the new law is a nullity if it controls only acts infringing 106(3) rights. It’s impossible, I would argue, to violate an exclusive right to “sale or other transfer of ownership, or by rental, lease, or lending” by offering a download over a computer network.

But “distribution” isn’t a term defined in the Copyright Act, and I suspect that the drafters of this legislation mean the term in its everyday sense, not in its 106(3) sense. The best argument for the other side would be that 106(3) defines an infringing subclass of all possible acts of distribution, and that FECA criminalizes any act of distribution of prerelease works over computer networks, even if the act infringes the exclusive right of reproduction or public performance and not the exclusive right of distribution.

It will be interesting to see whether this issue comes up when the first FECA case comes around.

UPDATE: Via John Palfrey comes a link to a blog entry on this issue by Cathy Kirkman of Wilson Sonsini, who writes the Silicon Valley Media Law Blog. She notes that FECA might affect the scope of the distribution right, and points to the ongoing litigation against Hummer Winblad, the original VC backers of Napster.

She points out that in litigating the question of whether “making available” on Napster constituted infringement, both sides refer to the Hotaling case. In that case, the Fourth Circuit held that placing an unauthorized copy of a work on a library’s shelves and in its card catalog constituted an infringing act of distribution. But Hotaling is clearly distinguishable from an online-downlading scenario for one critical reason: the library in Hotaling was offering to lend physical copies. “Lending” is within the scope of 106(3); “copying”, “transmitting”, and “uploading” are not. In the ongoing Napster litigation, as in the FECA context, the 106(3) exclusive right should be limited to physical distribution of preexisting physical copies.

I’ve been listening to some files from this amazing, vast archive of old piano rolls that have been converted to MIDI format. These piano roll enthusiasts built piano roll scanners for automated conversions, based on custom hardware and software. Awfully cool, and some wonderful old performances — at the moment, somewhat fittingly, I’m listening to “California, Here I Come”.

This might not make a bad final exam hypo in a copyright class, come to think of it. There are issues of term expiration (most but not all compositions are pre-1923), of subject-matter coverage (is the musical work protected? how about the performance itself?), and a lovely red herring (is this a pre-1972 sound recording?). The site is in Canada; am I infringing by downloading a song that’s in the public domain in Canada but covered by copyright in the USA? Is he violating U.S. law by making it available to me? And, of course, may we, now, in 2005, copy and sell this guy’s MIDI files of the piano rolls? Discuss.

Ann Bartow at sivacracy.net points out that the lower court decision in the Eminem case I blogged about here was recently upheld on appeal.

Sadly, the appeals court failed to deliver its opinion in rap form, as the lower court did.

I’m blogging from Publication, the Public University, and the Public Interest, a day-long conference sponsored by the University of Minnesota Libraries. The speakers this morning will be Paul Courant, Siva Vaidhyanathan, and Edward Ayers. Below are my impressionistic notes on the proceedings; they are not for attribution. My comments appear in square brackets.

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Last week, the D.C. Circuit Court of Appeals released its opinion in Universal City Studios v. Marybeth Peters. This is a copyright case only in a very attenuated way; the plaintiffs are suing about copyright royalties, and the defendant is the Register of Copyrights, but there’s no substantive copyright law at issue.

The facts are almost farcical, and like every good farce there is a tinge of tragedy. Universal Studios and MGM Studios were both eligible for royalties from cable retransmission of their works, adding up to millions of dollars. These royalties are administered through a compulsory license; the Copyright Office collects a pool of money and distributes it to copyright holders who file timely claims. By statute, each year’s claims must be filed during the month of July. Copyright Office regulations say that a claim is filed in July if it arrives at the Copyright Office in July, bears a July postmark (not a commercial postage meter mark), or was sent via Certified Mail and the claimant can produce the receipt from the post office bearing a July date stamp.

The big studios sent their claims on July 30th or 31st, metering them with their commercial postage meters and sending them via Certified Mail. They arrived at the Copyright Office on August 2nd and 3rd.

And then tragedy struck. The Copyright Office asked for the dated Certified Mail receipts, and the studios couldn’t find them. The studios helpfully pointed out that First Class mail can’t possibly make it from Hollywood to Washington, D.C. in anything less than three days, so they must have sent their claims by July 31st. The Copyright Office helpfully responded that while this may be true, the regulations require a dated receipt. The D.C. Circuit agreed.

And millions of dollars went down the drain.

This all feels a bit like Brazil, Terry Gilliam and Tom Stoppard’s masterpiece of farcical bureaucracy and mixed-up paperwork. That’s fitting, I suppose, since Brazil was released by none other than Universal City Studios.

RealNetworks is apparently having a huge product announcement event at Radio City Music Hall on April 26th. There’s speculation that it will involve either a new version of Rhapsody, a portable subscription music service, or both.

I certainly hope that some update of the Rhapsody client is involved; the current client has been virtually unmodified for three or four years. It needs community features, easier linking to content from web pages, web-based remote control, and better exposure of the API to external programs. It still runs on an older version of the Windows Media codec, too; an upgrade to a newer Microsoft or Real codec, even remaining at 128kbps, would be a great improvement.

Eugene Volokh points to this column in The Nation by Burt Neuborne, former National Legal Director of the ACLU and currently Legal Director of NYU’s Brennan Center for Justice. It’s titled “Addicted to the Courts”, and it’s a warning to liberal activists that court victories must be coupled with grassroots movements showing why the desired result is the fundamentally fair result. Brown had Dr. King’s marches in the south; the ACLU’s women’s rights litigation campaign in the 70s came at the crest of a massive grassroots campaign convincing the public that gender discrimination was wrong; ever-strengthening First Amendment protections were supported by a “constant drumbeat” from a supportive media that convinced consumers that they, too, had an important stake in freedom of expression.

Neuborne’s point is that other progressive victories have not been followed by a grassroots movement to convince the public that there is a strong fairness rationale for the outcome. He singles out abortion, gay rights, and the removal of religious imagery from government display as three areas where the public has not been convinced that the judicial result is the fair result. He argues that the failure to develop widespread public support for these results may prove disastrous in the long term:

Progressives pay a heavy price for failing to defend the fairness of our judicial victories at the grassroots. In the short run, we weaken judicial precedents, leaving them exposed to criticism that they are unfair and undemocratic–which ultimately may result in the selection of judges willing to overturn them. In the long run, we pay an even heavier price by galvanizing opponents bent on freeing themselves from what they perceive as elitist disrespect for democratic governance. The margin of victory in the 2004 presidential election may well have come from religious believers in Ohio who voted against their economic self-interest to protest judicial decisions that appeared to them to attack their belief systems without good reason. As progressives, we owe it to our fellow citizens to seek to persuade them why it’s fair to ask them to forgo acting on deeply felt beliefs. Most of the time, we can tell a compelling story that will convince many, and, at a minimum, provide a basis for engaging the skeptical. If we can’t, maybe the decisions just aren’t worth defending.

Unquestionably, racial equality, gender equality, abortion rights, gay rights, and the separation of church and state are much more important debates than the controversy currently surrounding copyright law and its effect on creative expression. But the copyfight is a social and legal movement modeled on these other campaigns, and we can learn from Neuborne’s wise counsel.

We have grassroots support and we have a clear message. The unfairness of the current environment surrounding copyrights has visceral impact and affects everyday people going about their everyday lives. We have good stories. We have colorful, sympathetic characters. We have a disconnect between the way ordinary people think the system ought to work and the way the system actually works. And out of that groundswell of grassroots support, we are building a movement. We have convinced the populace; we must yet convince the powers.

It is no coincidence that the Brennan Center, which Neuborne heads, is becoming one of the premier academic centers working toward copyright reform.

Andrea Dworkin died on Saturday. She was 58.

I realize this example will only work for a little while, but imagine an encyclopedia that had someone’s death noted in their biography before the first major news outlet had even published an obituary. That’s Wikipedia.

UPDATE: At 12:15 CDT, we get this report from the Guardian.

UPDATE, 12 April 2005: The Guardian Newsblog links to this post and contains some additional information on how the news of Ms. Dworkin’s death was disseminated.