Do-Not-Call List in Limbo

Columbia professor and FindLaw columnist Michael Dorf: The Legal Status of the Don’t-Call Registry.

First, a federal district judge in Oklahoma ruled that the FTC lacked authorization from Congress to establish the no-call registry. Reacting with dizzying speed, Congress overwhelmingly passed and President Bush signed new legislation clearly granting the FTC the necessary authority to maintain and enforce the list.
Before the ink was dry on the new law, however, another federal district judge, this one based in Colorado, ruled that the no-call list violates the First Amendment. If that ruling stands up on appeal, then the only remaining move for Congress would be to propose a constitutional amendment allowing the no-call list. And judging by the speed with which Congress reacted to the Oklahoma ruling, it might do just that.
But the drastic step of amending the Constitution probably won’t be necessary. The district court in Colorado misread the First Amendment.

FTC chairman Timothy J. Muris testified before the Senate Committee on Commerce, Science and Transportation discussing the implications of the Denver court’s ruling and the FTC’s desire to implement the do-not-call list.
The FTC filed an Emergency Motion For A Stay Pending Appeal and Expedited Briefing and Argument with the Tenth Circuit.
Although the FTC list is not going into effect tomorrow, the FCC do-not-call provision remain in force and will go into effect on October 1.

Madonna video infringes photographer’s copyright?

Samuel Bourdin, the son of fashion photographer Guy Bourdin, has sued Madonna, claiming that sets for the video to her song “Hollywood” copied his late father’s images.

The lawsuit, filed Friday in U.S. District Court in Manhattan, accuses Madonna of copyright infringement for her imitation of poses and images in at least 11 works of Bourdin, whose photos were published in French Vogue from the mid-1950s through the late 1980s.

GuyBourdain.org has stills from the video for “Hollywood” next to images from stills from Bourdin’s work: Madonna Copy & Paste Guy Bourdin.

Dialing for Dollars

Yale law professor Ian Ayres contributed an Op-Ed to the NY Times: Dialing for Dollars, which proposes a market solution for the telemarketing problem.

This concept of “authorized intermediation” simplifies the government’s regulatory burden. The trade commission doesn’t have to decide what types of calls to connect; it can simply leave it to the marketplace to offer the kind of filters that families really want. Families would benefit by having greater control of a scarce resource: their privacy.

Ayres describes his proposal in greater detail in a 2003 article in the Yale Journal on Regulation, coauthored by Matthew Funk, Marketing Privacy: A Solution for the Blight of Telemarketing (and Spam and Junk Mail), 20 Yale J. on Reg. 77.

P2P developments

The ACLU, along with five library associations, the Internet Archive and Project Gutenberg, filed an amicus brief in MGM v. Grokster, in support of the defendants-appellees. The ACLU argues four points:

  • Liability for contributory infringement must depend not only on actual knowledge but also on the ability to act upon such knowledge
  • liability cannot turn on an analysis of the percentage of current use that constitutes direct infringement
  • Software developers should not be required to modify their products to facilitate enforcement of copyright
  • Free speech and the public interest are served by rules that allow new and innovative mediums of communication to develop and flourish.

Washington Post: Use of Subpoenas to Name File Sharers Criticized
NY Times: A.C.L.U. Challenges Music Industry in Court
News.com: ACLU takes aim at record labels
Today, the Senate Committee on Governmental Affairs, Permanent Subcommittee on Investigations held a hearing on Privacy & Piracy: The Paradox of Illegal File Sharing on Peer-to-Peer Networks and the Impact of Technology on the Entertainment Industry.
Internet.com reports: RIAA Settles 63 More Infringement Suits
Downhill Battle launches their P2P Legal Defense Fund
Moby on the RIAA:

personally i just can’t see any good in coming from punishing people for being music fans and making the effort to hear new music.
i’m almost tempted to go onto kazaa and download some of my own music, just to see if the riaa would sue me for having mp3’s of my own songs on my hard-drive.

Bizarro World

Need more evidence that we’re in bizarro world? Baseball’s regular season has ended. The Cubs and the Red Sox are both still playing. The Cubs won their division. The Red Sox won the AL wild card. The possibility of a Cubs-Red Sox World Series is not all that remote. The Cubs and the Red Sox. Bizarro, I’m telling you.

Not So Amazin

I went to the Mets game last night, or at least as much of the Mets game that we could stand. The Mets beat the Pirates 5-3 in front of a sparse assemblage that could hardly constitute a crowd. The game, or at least 5 innings, defined dull.
This was one of the many meaningless baseball games that close out the season. There’s little reason to go to these games (unless you get free tickets.) For the Mets, the last 60 games or so have been pointless. Baseball needs to give some reason for non-competitive teams to play the last month (or more) of the season. European soccer leagues have relegation, where the bottom couple of teams from the top league are relegated to the next level down.
Baseball’s minor leagues could, in theory, support a system of relegation, where the worst teams (the Mets, Tigers) would drop down to triple A, while the top Triple A teams would step up to the big leagues. While, in theory, this would be a good idea, the farm systems would make it unfeasible. Assume that the Mets were demoted, while Richmond (the Braves” Triple A team) was promoted. Then, the Mets organization would have no teams at the major league level, while the Braves organization would have none. If the minor league teams were not affiliated with the major league teams, the system might be feasible. The way that baseball works now, such a system is too far-fetched to be possible. With such a long season, baseball needs some incentive for the teams at the bottom.
I agree with Bob Costas that expanded playoffs are inferior to true pennant races, so expanding the playoffs to NHL-like inclusiveness would be dull and pointless. Besides the carrot of the pennant, baseball needs a reason for teams to play in order to avoid the cellar.

Music, Sharers, Lawsuits, Yadda

Studios Moving to Block Piracy of Films Online. “If Hollywood executives have learned anything watching their peers in the music business grapple with online file sharing, it is how not to handle a technological revolution.”
AP: Makers of Kazaa Are Suing Record Labels: “Sharman Networks Ltd., the company behind the Kazaa file-sharing software, filed a federal lawsuit Monday accusing the entertainment companies of using unauthorized versions of its software in their efforts to root out users. Entertainment companies have offered bogus versions of copyright works and sent online warning messages to users.”
Wired News: RIAA Goes After the Wrong Gal: “In a possible case of mistaken identity, the recording industry has withdrawn a lawsuit against a 66-year-old sculptor who claims never to have even downloaded song-sharing software, let alone used it.”
Boston Phoenix: The Empire strikes back. “Amid declining CD sales, weak releases, and the continued rise of online file-sharing, the five major labels are fighting to regain market share”