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Prudential concerns prevent me from talking too much about the merits of today’s Grokster ruling. But I do have a few superficial observations:

• The court seemed to read an awful lot into the names “Grokster” and “OpenNap”. Merely by including some of the same letters as “Napster”, the companies apparently indicated that their intent was identical to that of Napster’s proprietors. It will be interesting to see how the lower courts treat this inference, especially if elements of the case go to a jury.
• Flash forward to 2035. The place: a law school classroom, during a copyright law lecture. The professor is discussing the Grokster opinion in the context of the string of cases that followed it. A confused student raises his hand. “Professor,” he asks, “Who or what is Modest Mouse?”
• Footnote Twelve might just be more important than Footnote Four. But nothing will surpass Footnote Eleven.

Grokster lost, unanimously. The case was remanded for trial. Opinion by Souter. The best reports so far are is here and here.

Souter’s opinion is here; Ginsburg’s concurrence is here; Breyer’s concurrence is here.

Choice quotes from the opinion:

One who distributes a device with the object of promoting its use to infringe copyright … is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses.

“Each company showed itself to be aiming to satisfy a known source of demand for copyright infringement,” Justice David H. Souter wrote for the court. Souter said “substantial evidence” supported the industry’s case.

If you have a blog, you should take this (freakishly well-designed) research survey.

Larry Lessig has criticized the Register of Copyrights’ proposal to replace the section 115 mechanical compulsory. He argues:

Apparently the Register believes performers no longer “need unhampered access to musical material on nondiscriminatory terms.” What progress.

I think he’s wrong on two accounts — his understanding of the practical effects of the Register’s proposal and his characterization of the Register’s goals. (Ernie Miller thinks so too.)

It’s true that the Register’s proposal does repeal the section 115 compulsory license. The section 115 compulsory is the law that allows any recording artist to record any song for a set rate ($0.085 per copy distributed) without having to get permission from the songwriter. A simple repeal of that compulsory license would indeed mean that recording artists would lose “unhampered access to musical material on nondiscriminatory terms”.

But that’s not what’s happening here.

The practical effect of the Register’s proposal is to force ASCAP, BMI, and SESAC (now referred to as “Music Licensing Organizations” or MROs) to offer blanket licenses for reproduction and distribution along with the blanket licenses they already offer for public performance. Access to all works licensed by the three MROs remains unhampered, and even becomes easier.

Now, there certainly are some works that are not licensed by the MROs. But to get any revenue from a musical work copyright, the copyright owner must make public performance rights available through a MRO; policing public performances on a work-by-work basis is impossible. So every musical-work copyright holder who knows they have rights is likely to be a member of an MRO. And virtually all other musical-work copyrights are probably orphan works. Perhaps there’s a sliver of musical works which are not licensed to an MRO, which are not orphan works, and which the copyright holder will deny a license when asked and sue for infringement if the recording artist goes ahead. But that’s a vanishingly small number of works.

So, the practical effect of the Register’s proposal would be to institute a system of unified blanket licensing for the public performance, reproduction, and distribution of substantially all non-orphan musical works, especially by digital means. That’s what the Register is trying to do, I believe. The proposal also appears to be motivated by a feeling that the 115 compulsory enacts a massive and ongoing wealth transfer from songwriters to record companies — a feeling I share.

This is the right way to fight piracy — by making it as easy as possible for digital music services to license the rights they need. The collateral damage to small-time users of musical works will be minimal, and the benefit to consumers will be enormous.

Walt Mossberg has this column on how wireless phone service providers are developing an iron grip on the wireless data communications equipment consumers use. The carriers are crippling the equipment and services provided to the public in order to pump up short-term profits at the expense of long-term acceptance of the technology.

Of course, there are ways around this.

Just today, I indulged in a bit of e2e-enabling wireless tinkering. I’m a happy and loyal T-Mobile customer, but the $4.95 T-Zones Internet plan I subscribe to along with my monthly cell phone service is extremely limited. Almost all ports are blocked, leaving open only ports for mail checking and WAP (not web) browsing.

Port-blocked internet connections offend my little e2e-loving heart. So how do we get around port-blocked internet connections? By judicious use of proxies!

(Warning: Geekery ahead.)

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The Free Software Foundation has filed a motion to dismiss Daniel Wallace’s pro se antitrust lawsuit, which I covered previously here. Groklaw’s coverage includes a link to the brief itself, which patiently and devastatingly destroys Wallace’s case.

Wallace strikes me as an exceedingly bright guy; it’s a shame he’s devoting his energies to suing his competitors on losing legal theories instead of writing better software to compete with them.

The Copyright Office announced today that it will be holding three public roundtables on the orphan works problem this summer. The dates and locations are:

• July 26, 2005: Washington, D.C.
• July 27, 2005: Washington, D.C.
• August 2, 2005: Berkeley, California

If the bar exam the previous week doesn’t kill me, I’ll definitely be attending the August 2nd session. (Does anyone else see positive symbolic value in the fact that the west coast roundtable is being held in the Bay Area instead of in Los Angeles?)

Traditionally, Copyright Office roundtables have been among invited stakeholders only. Kudos to the Copyright Office for opening these important discussions to public input.

The Register of Copyrights testified this morning before the House Subcommittee on Courts, the Internet, and Intellectual Property, urging them to repeal the section 115 compulsory license for the making and distribution of phonorecords of musical works and to restructure the collective licensing of performance and reproduction rights in musical works.

Her written testimony is here.

It includes a “discussion draft” of the “21st Century Music Licensing Reform Act”, which repeals the section 115 compulsory and authorizes any PRO (ASCAP, BMI, or SESAC) to license the reproduction and distribution, as well as public performance, of any work in its repertoire.

One major concern that any repeal of the section 115 compulsory raises is the issue of “cover” versions of songs. The fact that songwriters are compensated for, but do not control, new recordings of their songs has led to a flourishing of creativity — look, for example, at Seu Jorge’s versions of Bowie songs or Nouvelle Vague’s bossa nova renditions of 80s New Wave classics. The Register’s proposal cleverly avoids this problem by forcing songwriters who license their works for public performance through a PRO (which is pretty much everybody) to license “cover” versions through the same PRO.

The Register’s testimony includes a short statement on piracy, but it’s the sort of statement about piracy that I’m glad to see the Register making. Instead of advocating ever-harsher clampdowns on consumer uses of copyrighted works, she recognizes that piracy can only be minimized by providing a product consumers want at a price they’re willing to pay:

The increased transactional costs (e.g., arguably duplicative demands for royalties and the delays necessitated by negotiating with multiple licensors) also inhibit the music industry’s ability to combat piracy. Legal music services can combat piracy only if they can offer what the “pirates” offer. I believe that the majority of consumers would choose to use a legal service if it could offer a comparable product. Right now, illegitimate services clearly offer something that consumers want, lots of music at little or no cost. They can do this because they offer people a means to obtain any music they please without obtaining the appropriate licenses. However, under the complex licensing scheme engendered by the present Section 115, legal music services must engage in numerous negotiations which result in time delays and increased transaction costs. In cases where they cannot succeed in obtaining all of the rights they need to make a musical composition available, the legal music services simply cannot offer that selection, thereby making them less attractive to the listening public than the pirates. Reforming Section 115 to provide a streamlined process by which legal music services can clear the rights they need to make music available to consumers will enable these services to compete with, and I believe effectively combat, piracy.

The proposed bill reads as follows:

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Streaming audio of today’s oral argument in Blizzard v. BnetD is already available on the 8th Circuit’s website. I’ve converted it to MP3; it’s available via OurMedia here. (Direct link to MP3.)

Two awfully interesting contracts were recently made public:

1. SNOCAP’s agreement with content licensors. SNOCAP is a private content registry which will be running, in essence, a voluntary collective licensing system for P2P music sharing. Interesting tidbits include the fact that SNOCAP will be using acoustic fingerprinting technology, establishes what appears to be a “first-to-file” policy for resolving disputes among co-owners of rights, and allows rights-holders who don’t wish to participate to block their content on participating P2P networks.
2. Google’s agreement with the University of Michigan. This is the contract governing the digitization project in which Google is scanning large chunks of the University of Michigan Libraries’ collections. Interesting tidbits include the fact that Google is taking on all liability for copyright infringement arising from the scanning itself and from the public dissemination of Google’s copies, while the University takes on liability for infringement actions arising from its use of its own digital copy. (They seem to really, truly believe that they are privileged to scan copyrighted books, at least to make private copies for Google and the University. This is going to be interesting.) Also, Michigan agrees to attempt to keep anyone from sucking down books in bulk using scripts. All very sensible terms. The agreement was originally confidential, but release was required under Michigan’s Freedom of Information Act.

This story of Customer Service Representative stupidity, if true, is outrageous:

I purchased a Dell server today for work, through our account representative at Dell. At the end of the order process, just before confirmation, the Dell representative said:

Federal law requires that we ask what will this server be used for?

I asked, incredulously, “Why the hell does the federal government care?” to which the Dell representative replied “PATRIOT Act”.

Of course, that’s bunk. Dell just wants the data for marketing purposes, and I suspect this particular CSR is making up the “federal law requires” bit himself.

It is extremely easy, and extremely pernicious, for businesses that deal with the public to falsely claim that some self-serving policy is a legal requirement (invariably “federal”). I’m reminded of Cory Doctorow’s battle with American Airlines about TSA regulations that may or may not actually exist.

I don’t see any First Amendment problem with instituting criminal penalties for knowing misrepresentation of government requirements in connection with the collection of customer information. Would such a law be good policy?

This is utterly puerile, juvenile, beneath all of you, and has no place on this blog. But I can’t resist.

I took this phonecam picture in the parking lot during a break in a bar review lecture today. When the door’s closed, the van says, “U.S. Auto Glass Depot”.

Perhaps the van painter intended an homage to Al Jaffee’s MAD Magazine Fold-Ins.

Last night, my friend Joyce and I went to the Meat Beat Manifesto show at the Great American Music Hall. I’m not usually a big electronica fan, but it was a truly great performance.

What made it so exciting? Live renditions of electronic music are usually boring to watch, consisting of a few guys triggering samples and twisting knobs while shuffling back and forth. If you’re lucky and you’re at an Amon Tobin show, you’ll get some Winamp-like visualizations on a screen behind the knob-twister.

Here, though, the visuals were spectacular. Cut-together clips from movies, TV shows, educational films, space-age stock footage, a few shots of rapidly counting nixie tubes, and (my favorite) a montage of the covers of old albums by Otto Luening, Vladimir Ussachevsky, and Pierre Schaeffer.

And it all had to be illegal. Thousands upon thousands of individual infringements — each sample from a movie or TV show, each uncleared photograph and film clip, without which the music would have fallen flat and the visuals would have disappeared.

The evening strengthened my belief that fair use should privilege this sort of transformative art, even though I don’t think it’s privileged under current law.

Rob Kaye has a good response to Judge Patel’s recent ruling in the Napster investors case, in which the court ruled that offering to upload a file via a P2P network, with nothing more, is not a copyright infringement.

He says that this means that a copyright owner alleging infringement from uploading “would need to get some sort of transfer log or somehow have sniffed your download packets to prove the infringement.” I think he’s right; the most obvious method of nabbing uploaders — just downloading the files from them to show infringement — seems unlikely to work.

As some of you know, I’m studying for the bar exam this summer. The review course has just reached Criminal Law, a subject outside my usual areas of interest and expertise. But the course reminded me of one of my favorite parts of criminal law — factual impossibility. I like the doctrine because it, like much of Torts, has a silent-movie slapstick feel to it. For example, to use an ancient hypo, if you take an umbrella from the umbrella stand intending to steal an umbrella, and the umbrella turns out to be yours, you’re guilty of attempted larceny but not of larceny itself. (This is slightly different from legal impossibility, in which the hapless would-be criminal does something he thinks is illegal but which is, in fact, legal — for example, someone who intends to perjure himself by taking the stand and lying about immaterial matters, which isn’t perjury at all.)

A copyright holder wishing to sue uploaders is placed in a similar situation. It can prove that the file offered for upload on a P2P network is indeed the file it purports to be by downloading the file from the defendant. But by uploading the file to the copyright holder, did the defendant really commit a copyright infringement? After all, the recipient is authorized to make the copy, and it was the recipient who initiated the act of copying.

If I am a pirate and a copyright holder (or his confederate) downloads his own song from me, isn’t there an implied license for me to send it to him? And isn’t infringement factually impossible? Sure, I have the requisite mental state to infringe, but, unbeknownst to me, the transmission and copying is authorized.

Were there a civil action for attempted copyright infringement, the defendant here would certainly be liable. But there is no such cause of action, and it seems that an infringing upload to the copyright holder himself is factually impossible.

This post on LISnews asks about the enforceability of shrinkwrap licenses on books. The idea is that publishers can place restrictions over and above copyright restrictions by requiring the reader to agree to a contract before he or she can use the book.

In general, restraints on what buyers can do with copies they buy are preempted by the First Sale Doctrine, codified at section 109 of the Copyright Act. Whether a shrinkwrap on a book constitutes a valid contract that can allow publishers to sue users who violate its terms without infringing copyright is a question that has not been definitively answered.

However, in thinking about the question, it’s fruitful to look back at the case that gave us the First Sale Doctrine in the first place — Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908). That case, though decided almost a hundred years ago, presents a nearly perfectly analogous fact situation. Right under the copyright notice, Bobbs-Merrill inserted the following language:

The price of this book at retail is $1 net. No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright.

Looks to me like a primitive “browsewrap” license. Bobbs-Merrill didn’t involve a contract claim, but I suspect that’s because nobody really thought that you could form a contract just by opening and reading a book. (Now we know better. Ahem.)

The common law used to frown on restraints on alienation — situations where parties were bound to forego selling their own property just because someone else said so. Let’s hope that when this issue comes before a court, they keep in mind the spirit of Bobbs-Merrill — the idea that once a particular authorized copy of a work has entered the stream of commerce, the copyright holder no longer controls the later sale, modification, or disposal of that particular copy.

UPDATE: Michael Madison has these comments.

So somebody’s selling a complete set of WIRED Magazine, starting in 1992 with issue 1.1, on eBay. At press time, bids are already at nearly $800.

I don’t have issue 1.1, but I have everything else up until about 2000, when I stopped keeping them. I suspect a 2000-2005 set would be rather easy to come by, placing the value of that particular box in my parents’ basement at several hundred dollars.

So, Mom, don’t throw it away.

A friend pointed me to Pirate Cat Radio, a 220-watt unlicensed FM station broadcasting at 87.9 FM from the Mission District of San Francisco. (I’m listening right now.) They seem pretty well-run and rather awesome, if … well … totally illegal in about six ways off the top of my head.

They claim, however, to be broadcasting legally; this claim seems to be in earnest. They say that 47 CFR 73.3542 makes it “technically legal to operate a radio transmitter with out a formal license”, “thanks to George Bush for declaring the ‘War Against Terrorism’”. Part 73.3542 does indeed change the requirements for licensing during wartime or other emergency, but — here’s the thing — it doesn’t just throw open the gates to everybody. It just relaxes the formal application requirements and allows the FCC to accept and grant informal applications that don’t meet the usual specifications. Unless they have submitted an informal application and the FCC has issued a license in response to the application, I’m afraid their project seems to remain illegal.

If Kevin Martin “got religion” Monday morning and granted them a license, after reading their application and finding an emergency, he probably couldn’t be overturned by a court, but the regulation does not require the FCC to issue a license, so Pirate Cat remains (regrettably, perhaps) unlicensed.