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Showing posts from 2010

Freedom of Choice (The Copyright Kind)

I’m a lifelong musician and supporter of the arts, online and off.  Music led me to study copyright, which led me to study technology.  The three don’t always play nicely together as anyone who hasn’t had their head completely in the sand for the past fifteen years would acknowledge.  Recently, I attended an alumni event hosted by my undergraduate alma mater, Berklee College of Music.  I spent most of my night discussing copyright law with a fellow alum who works at a rights organization.  I mentioned my legal interests and inevitably we wound up discussing the role of Creative Commons (CC) in the current online ecosystem.  Once he said something along the lines of “Creative Commons is just an arm of Google, and has all the tech companies do their dirty work,” I knew this would be an interesting night.  The rights organizations have an essential role to play, I simply disagree with their litigation choices in a few recent matters and think there are more constructive ways of achiev…

Notes on the AIPLA's Amicus Brief in Viacom v. YouTube

The AIPLA recently filed an amicus brief in Viacom v. YouTube (hat tip, techdirt).  The case is an important decision on its way to the Second Circuit that agrees with other courts in holding that generalized knowledge of potentially infringing activity is not enough for a service provider to fall outside of the safe harbors established in the DMCA.  The AIPLA brief agrees with this point.  However, it relies primarily on a single paragraph of legislative history in disagreeing with the District's favorable citation to Perfect 10, Inc. v. CCBill LLC I think that the AIPLA's conclusions on this point are unnecessary, contradictory and would lead to speech- and market-suppressing policy outcomes that courts have firmly rejected.

Under Section 512(c)(1)(A), an online service provider loses its "safe harbor" when it has “actual knowledge” of infringing activity, is “aware of facts or circumstances from which infringing activity is apparent,” and “upon obtaining such know…

Section 508: Hiding in Plain Sight, and Boxes

A 21st Century Copyright Office
Recently, Public Knowledge released a great report titled "A Copyright Office for the 21st Century, Recommendations to the new Register of Copyrights."  After a 16 year tenure as Register, and prior service at the Copyright Office, Marybeth Peters recently announced her retirement at the end of 2010.  The Public Knowledge report provides a list of ten recommendations to the next Register in addition to commentary reflecting their necessity in light of technological revolution and technical possibility, the expanded policy role of the Office, and the legal basis and/or barriers to implementation of most of the suggestions.&

The report provides just enough detail (for my taste!), excellent references and is not too long and technical.  I congratulate the authors on putting together a concise, accessible list of recommendations.  Highly recommended reading for those interested in these issues.  Below, I offer comments on a provision of the Co…

Some thoughts on COICA and ACTA

S. 3804: Combating Online Infringements and Counterfeits Act ("COICA") is on its way to the full Senate after breezing through Committee 19-0.  It provides procedures for the U.S. Attorney General ("AG") to shut down a web site that is "primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator..." to violate copyright or trademark rights.  The provisions are slightly more detailed in terms of what the AG must show in order to temporarily or permanently shut down a site (not much!), jurisdictional (in rem proceedings) and appeal issues, and other fun stuff found in a piece of legislation (except this one's got a distinct "guilty until proven innocent" ring to it), but that's the gist of it.  See here for a rundown of the threats to free speech, innovation and internet architecture contained in the bill as currently written…

Iraq-a-Whac-a-Mole and Generic TM's

Litigation against alleged wrongdoers online, particularly p2p web sites, has repeatedly been characterized as a game of Whac-A-Mole.  So has the war in Iraq, political campaigning, cybersquatting,  and more.  Speaking of the classic game, what is taking so long for a version of the game on the Wii?!  There is a live trademark on the term for computer and video games.  Like the other registered marks on the term, that one is owned by Bob’s Space Racers, Inc., the manufacturer of the arcade game and assignee of the "Whac-A-Mole" mark(s).  After reading another article about the RIAA's Whac-A-Mole litigation campaign against filesharing sites, I began to wonder whether it should start being referred to as a game of whac-a-mole.  In lawyer terms, I'm beginning to think that the trademark for Whac-A-Mole brand (video games, entertainment, etc.) has become generic and now serves as a reference to any evasive, repeated behavior by the same or similar entities. 

In trade…

The Blind Bystander Effect

The Bystander Effect is a name for the behavior of groups of people individually or collectively ignoring or choosing not to respond to a situation because each person assumes someone else will or already has.  Onlookers might not respond out of fear of the consequences or just not wanting to get involved.  The law (in the United States) even supports this response.  On day one of bar review, we were reminded of first year torts and that there's no legal duty to strangers.  There are exceptions, such as for certain pre-existing relationships, but generally a gold medal swimmer or anyone else is free to walk by a drowning child without diving in or calling for help.  The most famous example of the Bystander Effect is the murder of Kitty Genovese.  Thirty eight onlookers failed to call the police or react as Ms. Genovese was chased and stabbed to death in Queens in 1964.  As Malcolm Gladwell summarizes in The Tipping Point on page 28, “… the lesson is not that no one called despite …

The Steinbrenner Letters

Techdirt alerted me to two recent NY Times article about love letters written by former New York Yankees owner George Steinbrenner.  Rest in peace, Mr. Steinbrenner.  The first NY Times article describes the history of the letters and provides a copy of one of the them.  The second article discusses the effects of the first article and the Yankees' continued objection to their publication.  In short, 77 year old Mary Jane Schriner once dated Steinbrenner and recently shared a series of letters he wrote to her in 1949.  A writer contacted her about publishing a memoir containing the letters and they contacted the team, which claimed that copyright in the letters would be violated if the letters were published.  I’m not saying this just because I’m a Yankees fan, but the team is right.

Without marching through a fair use use analysis under copyright law or the free speech concerns of potentially barring publication of the newsworthy letters, the Times' original publicatio…

Innocent Infringers

I've been working through a laundry list of copyright cases from the past year that I haven't had a chance to dig into yet.  Today's choice was Maverick v. Harper and the "innocent infringer" defense. 17 U.S.C. 504(c)(2) gives courts discretion to reduce an award of statutory damages where "the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright..."  Section 402(d) bars the defense in situations where notice "appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access..."

In the case, Harper asserted that she thought posting files to a shared folder on a p2p network was tantamount to listening to music on an internet radio station.  For a high-schooler who presumably grew up a "digital native", this seems entirely reasonable.  In …

----book

Tonight I had the pleasure of watching a great program on CNBC, “Executive Vision: Leadership in Action – Technology”. The panel discussion spanned nearly every hot topic in technology, including cybersecurity, global development, jobs, U.S. and/versus foreign education, IP, broadband infrastructure and [you name it]. You can find out more about the show and the series here.

One statement struck me: “Social networking has become like air, you don’t notice it until it’s missing.”  I’m sure others have made the same or similar observations; this time it came from Nicholas Negroponte.  I agree with his statement for the most part but come at it from a slightly different angle. In late 2008, when Facebook became (IMHO) overrun by apps and had recently opened registration to anyone (not just those with a .edu or school-specific email), I decided I’d had enough. After watching Myspace become totally overrun by spammers, I feared the worst for Facebook.  I'm fine with opening tech…

The Importance of Sound Recording Preservation

According to a story on variety.com, efforts to preserve sound recordings are met by a "perplex" of issues preventing effective archiving.  Kudos for the great nounification of 'perplex.'  A recent study by the Council on Library and Information Resources "lays the groundwork for the National Recording Preservation Plan that was mandated under the National Recording Preservation Act of 2000 and will be published by the Library of Congress later in 2010." [full text of the Act]. 

As a longtime musician, I hated to see the unfortunate yet crucial discussion of the destruction or neglect of physical masters.  Contributing factors include the prioritization of resources and attention, costs, corporate mergers and organizational issues, and small labels now out of business.  The report also discusses the efforts of private collectors to preserve recordings while expressing concern over the decentralization and inconsistent quality of such efforts.  Th…