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Judge Fogel of the Northern District of California today denied UMG’s motion to dismiss in the Lenz v. Universal litigation (otherwise known as the “dancing baby” case). The order is here. It holds that copyright holders must conduct a fair use analysis before sending a takedown notice under the DMCA.

The United States District Court for the District of Massachusetts has dissolved the temporary restraining order which prevented three MIT students from giving their (really outstanding) presentation about transportation fare system security at this year’s DEFCON. The court also denied the Massachusetts Bay Transportation Authority’s Motion for Preliminary Injunction, so the students are free to share their fascinating research results with the world.

No written opinion has been released, but here’s the Court’s docket entry for the hearing:

Electronic Clerk’s Notes for proceedings held before Judge George A. OToole, Jr: Motion Hearing held on 8/19/2008 re [16] MOTION to Modify Terms But Not Duration of Temporary Restraining Order filed by Massachusetts Bay Transportation Authority, [50] MOTION for Preliminary Injunction filed by Massachusetts Bay Transportation Authority ; After hearing argument from all sides. Court DENIED [50] Motion for Preliminary Injunction and dissolves Temporary Restraining Order; GRANTS [26] Motion for Reconsideration of TRO; [16] Motion for Modification, is MOOT; [33] Motion for Protective Order and [40] Motion for Reconsideration and/or Modification of August 14, 2008 Discovery Order are PENDING.(Court Reporter: Marcia Patrisso.)(Attorneys present: Plaintiff: I. Mahony, M. Bodoin, T. Darling Individual Defendants: C. Cohn, M. Hoffman, A. Kessel, J. Reinstein, L. Kolodney, T. Brown. On the phone: Atty. Granick, Atty. Opsahl, Atty. McSherry, Defendant Z. Anderson, R. Ryan. MIT: J. Swope ) (Edge, Eugenia) Modified on 8/20/2008 (Edge, Eugenia).

Threat Level has more. This makes an auspicious start for the EFF Coders’ Rights Project. Congratulations to the students and to their lawyers!

This post from Boy Genius Report describes a case of the adults intervening when someone in Legal loses their sense of humor over a parody. Good work, Circuit City PR.

Reversing the district court, the Second Circuit today held that Cablevision’s proposed “Remote Storage Digital Video Recorder” does not give rise to direct copyright infringement liability for Cablevision.

The opinion:

• Construes MAI v. Peak to hold that RAM copies can be “fixed,” not that they are always fixed, and imposes a “duration requirement” on fixation, finding that while copies that lasted for “several minutes” could be fixed, copies lasting for only a few seconds were only “of transitory duration,” even though they lasted long enough to be copied.
• Holds that the Netcom/CoStar “volitional conduct” analysis for separating direct from contributory infringement has general application, and is not limited to internet-related copyright issues.
• Holds that transmission “to the public” requires that a particular transmission stream is capable of being received by the public (not just by a single subscriber). This means that the “public-ness” of a performance is measured with respect to one particular transmission, and not in the aggregate across a course of many transmissions. The court explicitly says that it looks only downstream to analyze whether a transmission is a public performance.

Judge Ilston of the Northern District of California held on Friday that the Council on American-Islamic Relations’ use of a four-minute clip of Michael Savage’s radio show in order to criticize the views espoused in that clip was fair use. This is an unremarkable result: CAIR used the material for purposes of criticism, a core fair use.

What is somewhat more remarkable is the procedural posture: Judge Ilston made the fair use determination on CAIR’s Rule 12(c) motion for judgment on the pleadings. Like Judge Pregerson’s opinion last year in Burnett v. Twentieth Century Fox, 2007 WL 1662343 (C.D. Cal. June 4, 2007), Judge Ilston found the fair use defense to be clear from the face of the pleadings, without any development of the factual record through discovery.

This latest example of a court finding fair use to be ’self-evident’ bodes well for the plaintiff in Lenz v. Universal, in which Ms. Lenz argues that her 29-second video of her baby dancing to a Prince song was self-evident fair use, rendering Universal’s takedown notice improper.

In probably the best-written copyright opinion so far this year, the Tenth Circuit Court of Appeals ruled Tuesday, in Meshwerks v. Toyota, that slavish digital modeling is not copyrightable. It’s a really smart opinion, drawing a parallel between the way courts in the 1800s dealt with the new technology of photography to the problem of how courts should deal with the new technology of 3D modeling. The court takes pains to note that some digital modeling would be copyrightable–but not exact copies of existing objects created by someone else, because “the unequivocal lesson from Feist is that works are not copyrightable to the extent they do not involve any expression apart from the raw facts in the world.” (Also, don’t miss the amusing Oscar Wilde anecdote in footnote 6.)

Bravo, Judge Gorusch.

Happily for Cindy McCain (for the second time), recipes qua recipes aren’t copyrightable.

Yesterday, Judge S. James Otero of the United States District Court for the Central District of California issued an opinion granting summary judgment for the defendant in UMG Recordings, Inc. v. Augusto. Judge Otero ruled that, because ownership of “promo CDs” given out by UMG had transferred to the recipients of those CDs, Augusto’s resale of those CDs on eBay did not infringe UMG’s copyrights. Here’s the EFF press release on the decision, and here’s Fred von Lohmann’s post on the decision from the EFF Deep Links blog.

The fight may not be over; UMG has 30 days to appeal to the United States Court of Appeals for the Ninth Circuit. But at least for now, the first sale doctrine means what it says: if a person owns a copy of a copyrighted work, it’s not copyright infringement to sell that copy, regardless of any scary language the copyright holder places on the label.

I’m proud to say that I was part of the team that achieved this victory for consumers’ first sale rights. Our success in this case was made possible by the resources committed to the case on a pro bono basis by the law firm I work for, Keker & Van Nest — most significantly, the commitment of my time, that of partner Mike Page, that of my fellow associate JuNelle Harris, and that of paralegal David Montano.

The work of Electronic Frontier Foundation attorneys Fred von Lohmann and Corynne McSherry was likewise indispensable. Fred was instrumental in the drafting and editing of our briefs, and accompanied me to each of the depositions in the case, providing indispensable advice. Corynne brought her deep knowledge of the DMCA’s anti-misrepresentation provisions and provided essential advice during our preparations for trial, which were running full-steam until yesterday’s ruling.

If you want to see more of these sort of victories for consumer rights online, consider making a donation to the EFF.

As I mentioned once before, I’m a member of the team defending eBay seller Troy Augusto in a copyright infringement lawsuit brought by UMG Recordings, Inc. This is a rather unusual copyright infringement suit, in that even UMG agrees that there was no copying involved. They say that Troy’s resale on eBay of CDs marked “For Promotional Use Only — Not For Sale” was copyright infringement under 17 U.S.C. 106(3), since, they contend, Troy didn’t own the CDs when he sold them (even though he had purchased them).

On Monday, both sides filed for summary judgment. Augusto’s brief is here; UMG’s briefs are here and here. Oppositions are due to be filed April 21st, replies April 28th, and oral argument is scheduled for May 5th in Los Angeles.

Fred von Lohmann at the EFF, who is working with us on Troy’s case, has a recent post on the EFF Deep Links blog titled, “UMG Says Throwing Away Promo CDs is Illegal” (an accurate characterization, believe it or not, of one of the arguments in UMG’s briefs).

The University of Wisconsin - Milwaukee sent the email reproduced below to all students, faculty, and staff this morning. Like the letter sent by UW - Madison a few weeks ago, it indicates that the university won’t forward letters it receives offering to “settle” file sharing cases brought by the recording industry, though it will comply with a lawful subpoena.

SUBJECT: Illegal File Sharing at UWM

This announcement is being sent to all known UWM faculty, staff and student e-mail addresses.

The Recording Industry Association of America (RIAA) has recently increased its threat of lawsuits against students and others who engage in illegal digital file sharing. This is in response to perceived violations of the Digital Millennium Copyright Act of 1998, which specifically addresses copyright infringement of digital materials such as music, movies and software.

As you may know from recent press reports, the RIAA is now targeting individuals who live in university residence halls or use university computing resources. Because the RIAA can only identify violators by their ISP (Internet Service Provider) identifier, they are sending letters to universities requesting that these letters be forwarded to students, faculty and staff.

The RIAA notified UWM of its plans to send settlement proposal letters for individuals on the UWM campus whom they believe are guilty of violating federal copyright laws. These letters request that a monetary settlement be made by the violator in lieu of court action by the RIAA.

After consultation with UW System, our own legal counsel and with our understanding of federal law, UWM has decided that these letters will not be passed on to individuals. However, should RIAA send UWM a lawful subpoena for users’ account information, UWM will comply.

It is important to be aware of copyright law and avoid illegal P2P (peer-to-peer) file sharing.

For more information, visit the UWM Information Security Web Site at https://www3.uwm.edu/imt/security/index.cfm.

If you have questions, please e-mail dmca@uwm.edu.

I’m back from my 80-day trip around the world. You can read about my last two and a half months on my travel blog.

There have been some fascinating developments while I’ve been away, and I’m hoping to write about a few of them in the coming days.

I got an email this morning from a local company called Schmap — presumably as in “map, schmap.” I live in San Francisco and ocasionally post photos from my city wanderings to Flickr, licensing them under a Creative Commons Attribution-NonCommercial license. They’re putting together an electronic city guide and are selecting photos from Flickr to include. Seeking permission to include a cameraphone photo I took at a diner while studying for the bar exam, they wrote:

Your photo(s) shown below have been short-listed for inclusion in our Schmap San Francisco Guide, to be published March 2006.
The creative commons license that you’ve assigned your photo(s) provides for non-commercial use. While all our Schmap destination guides will be FREE to download, some photographers might nevertheless consider these to be commercial (advertising revenue will support free distribution to our readers) . . . .

This strikes me as an exceedingly smart way to develop a pool of free urban photography. Rather than plunging forward and planning to brush off infringement claims from small-time Creative Commons licensors, they decided to ask permission, trusting that photographers’ egos will lead them to grant it. And the license agreement they proffer is really quite fair:

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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 D.C. Circuit today released its opinion in Luck’s Music Library v. Gonzales, holding that the Uruguay Round Agreements Act, which granted new copyrights to foreign works which were in the public domain due (primarily) to failure to adhere to notice, registration, and deposit requirements, is constitutional.

The plaintiffs’ argument was twofold. First, that the Constitution, by directing Congress to provide incentives for creation of works, forbade the enactment of copyright laws that fail to provide such incentive, and that the law at issue here, by granting rights only to works that have already been created, violates that limitation. Second, they argued that both historical practice and Supreme Court precedents indicated that once a work enters the public domain, that status cannot be changed.

The D.C. Circuit rejected both of these arguments. The court found just a sliver of incentive for the creation of new works, in observing that since copyright protections tend to grow and grow, an author, for example, writing in Peru in 1932 might have decided to create a work because he knew that some day the United States might retroactively grant it copyright protection. This, said the court, is enough; Eldred requires only the barest hint of an incentive, and while the incentive here is minimal, it nonetheless, argues the court, exists.

The court rejected the historical and precedential arguments almost without considering their merits. The plaintiffs argued that never before had retroactive copyright protection been extended; the government argued that it had. Without careful analysis of the difference between previous laws and the URAA, the court concluded at least that the historical record was indecisive. And plaintiffs’ most direct argument — that Graham v. John Deere clearly states that “Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available” — was rejected as an irrelevant dictum. The court simply stated, rather unsatisfyingly, that copyright and patent doctrines were not always the same, and that this was one case where they were different.

I wish the plaintiffs good luck before the Supreme Court. One wonders how different this opinion might have looked if the Golan case, which was filed around the same time as Eldred, had gone up on appeal first.

(Full disclosure: I worked on Golan, a challenge to the same law, while I was at the Stanford CIS; because of that work, I have corresponded with counsel to Luck’s Music and assisted once or twice with their research.)

This article in today’s Times of London predicts that Google will offer Voice over IP telephone service to consumers in the near future. The source of this story, a UK telecom analyst, bases her prediction on this job ad seeking a person skilled in negotiating contracts for large international IP networks.

I rarely set forth firm predictions on this blog, but here’s one I’m sure about: Google will not offer VoIP-to-PSTN calling to consumers within the next two years. This supposed “clue” to Google’s future service offerings is nothing of the sort. Google needs lots of colocation space and lots of bandwidth all over the world just to scale the services they already offer to a worldwide customer base. That Google is buying some dark fiber doesn’t mean they’re about to start offering telephone calls or broadband lines or anything else; it means they need gobs of bandwidth between a handful of large data centers worldwide, to keep synchronized copies of their databases in multiple places at once. As they scale the Gmail service, the need for fast sync will become greater, so it’s natural that they’ll need someone skilled in buying the inputs they’ll need to make their product.

You want a Google employment announcement that really means something? They hired Ben Goodger, the Firefox project lead.

(Via Gizmodo, who aren’t as skeptical as I’d expect)

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.

Ernie Miller dissects Orrin Hatch’s floor statement introducing the INDUCE Act. Very well done.