March 2004 Archives

Uploading Is Not Infringement

In Canada, a court ruled that making files available on a file sharing network is not proof of copyright infringement. The Toronto Globe and Mail reports: Court quashes music industry bid for IDs

Justice Konrad von Finckenstein ruled Wednesday that the Canadian Recording Industry Association did not prove there was copyright infringement by 29 so-called music uploaders.

He said that downloading a song or making files available in shared directories, like those on Kazaa, does not constitute copyright infringement under the current Canadian law.

It will be interesting to see if this ruling has any effect on pending cases here in the US.

Update (3:52pm): Via FurdLog, the opinion: BMG Canada Inc. v. Doe, 2004 FC 288.

The court finds that the plaintiffs (Canada record labels) failed to establish a prima facie case of copyright infringement for three reasons:

  1. The affadavits from MediaSentry (a p2p tracking firm employed by the plaintiffs) are hearsay and fail to meet the best evidence rule. The proffered evidence fails to establish that the files being offered are actually infringing files of the plaintiffs.
  2. The plaintiffs failed to provide clear and comprehensive evidence of how the usernames of the Kazaa or iMesh users are connected with the IP addresses identified by MediaSentry.
  3. Finally, "no evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings. They merely placed personal copies into their shared directories which were accessible to other computer users via a P2P service." Downloading songs for personal use is not infringement.
The court goes on to evaluate the practical and privacy concerns in revealing the identity the user of a dynamically-assigned IP address.

Uploading Is Not Infringement

In Canada, a court ruled that making files available on a file sharing network is not proof of copyright infringement. The Toronto Globe and Mail reports: Court quashes music industry bid for IDs

Justice Konrad von Finckenstein ruled Wednesday that the Canadian Recording Industry Association did not prove there was copyright infringement by 29 so-called music uploaders.

He said that downloading a song or making files available in shared directories, like those on Kazaa, does not constitute copyright infringement under the current Canadian law.

It will be interesting to see if this ruling has any effect on pending cases here in the US.

Penguins Everywhere

SF Chronicle: Lawsuits change approach to Linux: Companies more cautious about use of open source

Companies large and small are still deploying new open-source projects just as rapidly as ever, say Cohen and other Linux watchers. Linux and other free programs have just become too big a part of business to abandon, with big hardware vendors selling servers preloaded with Linux and companies like Oracle Corp. pushing Linux as the best foundation on which to run its database software.

They're just doing it more quietly and more cautiously. They're also using more lawyers.

You're Fired

At Findlaw, Irwin R. Kramer evaluates The Donald's likelihood of success in obtaining trademark registration for the phrase "you're fired": The Donald's New Game of Trademark Monopoly

To get his trademark, The Donald must establish that the slogan carries a "secondary meaning" which identifies America's most flamboyant entrepreneur. Put another way, Trump must show that Americans link this phrase directly to him - so closely that this connection has actually become part of its meaning.

Wired: How E-Voting Threatens Democracy

Over the past year, doubts about the accuracy and integrity of e-voting equipment have been growing, thanks to Harris' discovery. Some election officials have called Harris, a 53-year-old mother of five and a self-employed publicist, a wacko, a conspiracy nut and even a threat to democracy for her role in raising the controversy. But day by day, other election officials, secretaries of state, legislators and voters have come to agree with her that something is seriously wrong with electronic voting systems and the companies that make them

Wired: How E-Voting Threatens Democracy

Over the past year, doubts about the accuracy and integrity of e-voting equipment have been growing, thanks to Harris' discovery. Some election officials have called Harris, a 53-year-old mother of five and a self-employed publicist, a wacko, a conspiracy nut and even a threat to democracy for her role in raising the controversy. But day by day, other election officials, secretaries of state, legislators and voters have come to agree with her that something is seriously wrong with electronic voting systems and the companies that make them

Yale Cybercrime Conference

Susan Crawford blogged the Yale Information Society Project conference on cybercrime, Digital Cops in a Virtual Environment.

Jack Balkin: "what are the different forms of cyberprotest, and how do they relate to the freedom of speech?"

Jonathan Zittrain talks "about filtering in China and circumvention of such filtering. And hacktivism."

Lee Tien: "How does a user know when a device has been redesigned to limit what the user can do?"

Paul Ohm: "Technology in the courtroom:  Too much of it, and not enough of it."

Nicolai Seitz on "the problems of transborder enforcement of requests for information."

Marc Rotenberg: "to the extent actors seek to comply with legal obligations and claim that they are "privacy enhancing," then it technologies must incorporate auditing, transparency, all other requirements, because of the enormous risk of government misuse."

Sonia Katyal: "it's important to think about the relationships among public/private law enforcement and surveillance.  Cyberspace allows us to contemplate the limits and possibilities of architecture and law."

Orin Kerr: "computer-related crimes will end up with a different set of procedural rules -- "network" criminal procedures.  Even if crimes remain the same, they're committed in different ways.  New facts will trigger needs for new laws."

Beryl Howell and Alan Davidson: "specific laws directed to specific problems are very important.  So we need to keep updating these laws to fix mistakes and keep up with changes in technology."

Won't Somebody Think of the Children?

Senators Hatch (R-UT) and Leahy (D-VT) introduced the Protecting Intellectual Rights Against Theft and Expropriation Act of 2004 (S.2237) which would add §506a to the Copyright Act (17 USC) to allow the Justice Department to file civil copyright infringement complaints. These civil copyright cases would only require a preponderance of the evidence to prove infringement (rather than the stricter beyond a reasonable doubt standard for a criminal copyright infringement case.)

Wired News: Congress Moves to Criminalize P2P 

Joe Gratz: RIAA's Next Step: A $2 Million Gift From Taxpayers: "[This aproach] shifts the costs of civil copyright enforcement from copyright holders to taxpayers. The direct cost is $2 million dollars – a quick, easy $2 million wealth transfer to rent-seekers from society at large. Perhaps the larger cost is the further erosion of the public’s belief in the separation between government and big business.

Copyfight's Donna Wentworth: Funding the War on Filesharing

Ernest Miller: PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry

Perhaps Hatch doesn't realize this, but most pornography is copyrighted and, as Hatch notes, is frequently distributed via filesharing networks. Since Hatch wants to stop copyright infringement and also discourage the redistribution of pornography, there is only one logical conclusion. This new law is meant to encourage the DOJ to go after those infringing pornography copyrights through P2P filesharing. By suing those engaged in pornography piracy, the DOJ could accomplish two of Hatch's goals at once: reducing infringement and pornography redistribution

Free 'Free Culture'

Lawrence Lessig released his latest book, Free Culture, this week. Lessig has also posted an electronic version, freely available to download, under a Creative Commons license.

WTO Bets on Online Gambling

NY Times: U.S. Online Gambling Policy Violates Law, W.T.O. Rules

The World Trade Organization, in its first decision on an Internet-related dispute, has ignited a political, cultural and legal tinderbox by ruling that the United States policy prohibiting online gambling violates international trade law.

The ruling, issued by a W.T.O. panel on Wednesday, is being hailed by operators of online casinos based overseas as a major victory that could force America to liberalize laws outlawing their business.

Yesterday, in PSINet, Inc. v. U.S. Internet Service Provider Assoc., the Fourth Circuit struck down a Virginia state law which criminalizes the dissemination of material harmful to minors over the Internet. The court relied on both First Amendment and Commerce Clause grounds to affirm the District Court's summary judgment ruling.

Ernest Miller looks at the decision, Divided 4th Circuit Invalidates Virginia's Internet Speech Regulation Statute and notes that "two district judges were sitting by designation and upheld the lower court decision. Appellate Judge Paul Niemeyer dissented. Unfortunately, this increases the possibility of en banc review in what many consider the most conservative Federal Circuit."

In another interesting project from the Cyberlaw clinic at Stanford, the Brewster Kahle, the president of the Internet Archive and Richard Prelinger, who are challenging the constitutionality of the Berne Convention Implementation Act. The suit seeks declaratory judgment:

(1) that the Berne Convention Implementation Act (BCIA) is unconstitutional under the Free Speech Clause of the First Amendment, and
(2) that the BCIA and Copyright Term Extension Act (CTEA) together create an “effectively perpetual” term with respect to works first published after January 1, 1964 and before January 1, 1978, in violation of the Constitution’s Progress Clause.

Kahle v. Ashcroft FAQ

Prof. Lessig: Save the Orphans

Pundit watch: you’ll be able to identify a pundit who has not read either Eldred or the complaint when they suggest the case is the same as Eldred was. It is not. Indeed, the claims are fundamentally different. The only relation between the two is that Kahle/Prelinger v. Ashcroft follows the rules suggested in Eldred for challenging Congress’s transformation of the traditional contours of copyright law. Eldred said: tradition matters. This case says: the tradition was radically changed.

Copyfight: Eldred III

Joe Gratz: New Constitutional Challenge to Copyright Law Revisions

The real villain here is the elimination of formalities (registration, deposit, renewal, and notice) in the 1976 Copyright Act and the subsequent elimination of the requirement of renewal wrought by the BCIA. Formalities are efficient. Only the copyright holder knows how much the copyright is worth to him; it would be costly for anyone else to find out, but he already knows. He’s the least cost information provider
More on this point later...

Net democracy

GrepLaw interviews Joel Reidenberg: Joel Reidenberg on Hack Toolz, Lex Informatica, and Affirming Non-US Democratic Values

Joel Reidenberg, professor at Fordham University School of Law, talks with GrepLaw about how "hack tools" (such as packet interceptors, viral e-mails, filters, and DoS attacks) give democratic states the ability to enforce their freely chosen public policies within their territories. Mr. Reidenberg challenges the conventional wisdom that said either the person or the person’s assets needed to be within the state’s physical territory to enforce the state’s law.

More file sharing suits

Reuters: RIAA sues 532 more file-sharers

Like 1,063 similar suits filed since January, the Recording Industry Association of America employed the "John Doe" litigation method because the names of the infringers accused of illegally distributing copyrighted sound recordings on peer-to-peer services were not yet known.

Wal-Mart Launches Legit Downloads

Reuters: Singing at Wal-Mart

Wal-Mart Stores Inc., the world's largest retailer, said Tuesday it officially launched its online music store, which it began testing in December.

The store, which allows customers to download a song from the Internet for 88 cents, has added new artists and been expanded by 50 percent, the Bentonville, Ark.-based retailer said.

Copyright in Canada, Again

Michael Geist has another article about the Canadian Supreme Court's decision in The Law Society of Upper Canada v. CCH Canadian, this time in the Toronto Star: Low-tech case has high-tech impact

The Law Society of Upper Canada v. CCH Canadian, a Supreme Court of Canada decision released by a unanimous court several weeks ago, instantly ranks as one of the strongest pro-user rights decisions from any high court in the world, showing what it means to do more than pay mere lip service to balance in copyright
Previously: Canada Copyright and Copyright Balancing in Canada.

What Every Citizen Should Know About DRM is a primer on digital rights management (DRM) technologies and their relationship with copyright law. This report was written by Mike Godwin, Senior Technology Counsel at Public Knowledge

(via the New & Improved Copyfight)

10 Years of Spam

Spam's Tenth Birthday

Ten years ago today, spam as we know it was born. On 5 March 1994, a message was posted to some Usenet newsgroups by a law firm called Canter and Siegel, advertising their services for the U.S. Green Card lottery. It sounds mild enough today, but at the time that move and its follow-ups provoked increasing outrage across the Net. Many were appalled that "netiquette" - the unspoken rules that hitherto had maintained order in cyberspace - had been breached, sensing perhaps that things would never be the same again.
And look what it's grown up into: a societal problem that has effectively killed Usenet as a useful resource and is on its way towards knocking off e-mail. We're so proud.

Popping Fresh

GigaLaw: Roundtable Discussion: Pop-Up Ads and the Law

Pop-ups and banner ads are the bane of many Internet users and the boon of companies trying to pitch goods and services. They're also the topic of a number of suits in courts around the country, because when such ads use a search for one company's trademarked term to point potential customers toward a rival, it's potentially trademark infringement.

But what separates mere nuisance from something that's legally actionable? Does timing -- whether a competitor's pitch pops up before or after a consumer makes an online purchase -- matter? What if the pop-up or banner ad clearly identifies the company it serves? How does the consumer's likelihood of confusion come into play? And what First Amendment issues could be triggered if courts choose to squash pop-ups?

I'll have a more substantial post on this issue once I get the seminar paper I am writing about it squared away...

FCC Revisits Profanity

Ernest Miller: FCC Revives Notion of the Profane

In a decision released yesterday, the FCC announced a new doctrine of fining "profane" broadcasts. Although 18 USC 1464 has always given the FCC jurisdiction over "obscene, indecent or profane language," the FCC has never based any fine on "profane" language, preferring to rely on indecency rulings. Given the newness of this interpretation of the law and the vagaries of the definition of "profane," this might be the most far reaching of the FCC's recent assaults on freedom of expression. Could the FCC be getting into the business of regulating hate speech?

Accountant Sues Google

AP: Man 'Googles' Himself, Sues for Libel

Mark Maughan is a certified public accountant with the Brown & Maughan firm. He claims that on March 25, 2003 he was told by friends and family that typing "Mark Maughan" into a Google search engine delivered "alarming, false, misleading and injurious results" about him and the business....

[Maughan's Attorney John] Girardi said the problem lies with Google's patented PageRank algorithm search system. According to the suit, PageRank, created by Google founders Larry Page and Sergey Brin, "reformats information obtained from accurate sources, resulting in changing of the context in which information is presented."


In this week's New York Times Magazine, James Gleick writes about about names, namespaces, trademark and domain names: Get Out of My Namespace

Notorious forms of litigation flow from the overprotection of names. Every small-business owner is burdened by frivolous cease-and-desist letters; sending these is a cottage industry. The Fox News Network was laughed out of court trying to control the use of the words ''fair and balanced''; yet for now, at least, Fox still does own trademark rights in those words, in two categories: television news programs and neckties. The organization that maintains the Dewey Decimal Classification system sued a library-themed hotel for using its numbers -- Room 700.003, for example, dedicated to the performing arts. (The case has been settled.) Pet Friendly of Alabama, maker of rope chew toys, is threatening Pet Friendly Rentals of California. Santa Claus has been trademarked in several hundred ways. None of this serves the public interest. It's wasteful overhead, it's expensive and it's noxious.


Pew internet & American Life Project: The CAN-SPAM Act has not helped most email users so far

The impact of the CAN-SPAM legislation is mixed, but not very encouraging so far. The vast majority of email users report no change in the volume of spam arriving in the in-boxes of either their personal or work-related accounts. A slightly larger percentage of email users report their volume of incoming spam has actually increased rather than decreased since January 1. At the same time, some email users say they are getting less spam both in their personal email accounts and in their work accounts.
Previously: CAN-SPAM Can't Stop Spam

Cybercrime Convention Commences

With the approval of a fifth country, Lithuania, the Council of Europe Convention on Cybercrime now goes into effect.

Press Release: Entry into force of the Council of Europe Convention on Cybercrime

The convention, which is the first international treaty on crimes committed via the internet and other computer networks, is the result of four years’ work by experts from the 45-member Council of Europe and from non-member countries including the USA, Canada and Japan.

Michael Froomkin: Cybercrime Treaty Goes Live "It’s widely believed that the US wrote this and pushed it through the Council, both to get access to foreign communications and especially to impress on Congress that Carnivore in the US should be seen as business as usual, and something demanded by our allies."

The Cyberlaw Clinic at Stanford's Center for the Internet and Society represents the plaintiffs in Golan v. Ashcroft: "CIS filed this suit on behalf of a University of Denver, Colorado conductor and others, seeking to have the CTEA and the Uruguay Round Agreements Act declared unconstitutional. The suit challenges Congress’s ability to reclassify works that have already passed into the public domain as copyrighted, thereby giving ownership back to private entities."

The suit survived its first challenge when the District Court rejected the Attorney General's motion to dismiss. While dismissing the Eldred-related claim, the court found enough merit in the other three Constitutional claims: IP clause (Art. I §6), Free Speech (First Amendment) and substantive due process (Fifth Amendment.)

50 million iTunes

Apple announced that it has sold more than 50 million iTunes downloads: "iTunes users are now downloading 2.5 million songs per week, which is an annual run rate of 130 million songs per year."

P2P and Secondary Liability

The Progress & Freedom Foundation, a conservative think-tank based in DC, recently released a new report concerning P2P and copyright: Liability of P2P File-Sharing Systems For Copyright Infringement By Their Users.

Based on the current uses of P2P file-sharing systems, the policy arguments for holding them secondarily liable for the infringements of their users are very strong. These systems are used for legitimate purposes, like distributing public domain works. And they do offer certain advantages in fulfilling such functions. But there are generally alternative means of distributing such works online. And at present, those noninfringing uses are quite small relative to the use of these systems for widespread Internet piracy. This piracy threatens great harm by undermining markets in digital content.

Personality rights around the world

Script-ed, a new publication from the AHRB Research Centre for Studies in Intellectual Property and Technology Law  based in the School of Law at the University of Edinburgh, features this article: Comparative Aspects of Personality Rights: Research Project and Case Studies

This is a comparative analysis of the measures instituted in a variety of jurisdictions to protect different aspects of the human personality, such as image, identity, personal privacy, dignity and related economic interests. As part of this project, co-directors have devised a series of case studies, the purpose being to discover not only if there is a commonality in the ethic underlying the protection of personality, but also to ascertain at what level the public interest might operate to restrict or define the scope of the rights
(via beSpacific)

A bill (AB 2735) introduced into the California state legislator would make unauthorized file sharing a crime, "punishable by a fine
not exceeding $2,500, imprisonment in a county jail for a period not
exceeding one year, or by both that fine and imprisonment for a
person who is not the copyright owner to knowingly electronically
disseminate a commercial recording or audiovisual work without
disclosing his or her true name and address, and the title of the
recording or audiovisual work."

LA Times: Setting a Trap for Net Pirates

The Culver City Democrat is pushing a bill that would require California file sharers to attach their real names and addresses to the copyrighted goodies they let others download over networks like Kazaa and Morpheus.

Critics of the bill note that because the bill requires all file sharers to use their real name and address, regardless of the content of the files they share, it is probably an unconstitutional restriction on the First Amendment protections for anonymous speech.

EFF: California Bill Backed by Hollywood Attacks Internet Privacy

"These California anti-anonymity bills would force everyone - including children - to put their real names and addresses on all the files they trade, regardless of whether the files actually infringe copyrights," said EFF Legal Director Cindy Cohn. "Because the bills require Internet users to post personally identifying information, they fly directly in the face of policy goals and laws that prevent identity theft and spam and protect children and domestic violence victims."

Ernest Miller: "True Name and Address" Bill for All Filesharers Introduced in Calif

Even worse, there is no exception for permission of the copyright holder. So, if I record a song and post it under a Creative Commons license that permits redistribution but reserves commercial use rights, you can go to jail for redistributing it. I mean, really, what more can be said about such an overbroad bill?

Critical Information studies

Siva Vaidhyanathan attempts to define the field his scholarly work fits in and dubs it Critical information studies

Economists, sociologists, linguists, anthropologists, ethnomusicologists, communication scholars, lawyers, computer scientists, philosophers, and librarians have all contributed to this emerging field. Critical Information Studies interrogates the structures, functions, habits, norms, and practices that guide global flows of information and cultural elements. Instead of being concerned merely with one’s right to speak (or sing or publish), Critical Information Studies asks questions about access, costs, and chilling effects on, within, and among audiences, citizens, emerging cultural creators, indigenous cultural groups, teachers, and students. Central to these issues is the idea of “semiotic democracy,” the ability of citizens to employ the signs and symbols ubiquitous in their environments in manners that they determine.
(via Copyfight)

You're Fired

Trump applies for trademark on phrase "You're Fired."

Privacy Policies

New Study Reveals Corporate Privacy Spending Patterns

The study, commissioned by IBM, surveyed 44 U.S.-based multinational organizations and revealed that while privacy protection is growing in importance for businesses, investments in privacy initiatives are significantly lower when compared to other corporate compliance initiatives, such as environmental or ethics programs. For example, when compared to spending on environmental programs, the study shows that 95 percent of respondents feel that their organizations spend less on privacy than on environmental initiatives.
(via beSpacific)

eMarketer: Effects of Poor Privacy Policies

Will IP Survive?

In the Financial Times, Ricgard Epstein asks Can IP survive its critics?

Intellectual property is in an age of paradox. Empirically, there is no question that the set of property rights over such valuable assets as patents and copyrights has gotten stronger in the past 30 or 40 years, both in the United States and the European Union. Yet at the same time critics on both the left and right of the political spectrum have lashed out against the dominance of IP rights. In some instances, they seek narrow fixes: a special regime for research tools or experimental use in patent law, or an expanded fair use doctrine in copyright. Those proposals have to be judged on their individual merits, without any a priori presumption for either contraction or expansion.

US v. Online Gambling

NYT: U.S. Threatens Action Against Online Gambling

Federal prosecutors have begun a wide-ranging effort to curb the growing popularity of online gambling in the United States by quietly threatening legal action against American companies that do business with Internet casinos and sports betting operations based outside the country, lawyers and industry executives say.

Stanford Privacy Symposium

This weekend, the Stanford Law, Science and Technology Program held a symposium on Securing Privacy in the Internet Age which sounds like it was very interesting.

Here are some posts covering the event from Stanford's Center for Internet & Society weblog: Live from CIS Privacy Symposium, Approaches to Reform, From Contractual Freedom to Strict Liability, Challenges for the Chief Privacy Officer

From bIPlog: Privacy on Several Fronts

Michael Froomkin (who spoke about National ID Cards) posted some Notes From the Stanford Privacy Conference

Compulsory Hearing

Last week, the House Judiciary Committee held a hearing concerning Section 115 of the Copyright Act: In Need of Update?. §115 is the compulsory license provision.

Testifying at the hearing were Marybeth Peters (Register of Copyrights), Jonathan Potter (Executive Director, Digital Media Association ), Carey Ramos (on behalf of the National Music Publishers Association
) and Cary Sherman (Recording Industry Association of America).

View a webcast of the hearing.

Derek Slater summarizes: Hearing on Section 115

Wiretap dancing

The Justice Department, DEA and FBI filed a petition with the FCC for an expedited rulemaking process to grant law enforcement expanded authority to wiretap packet-based communications-- particularly those that go over the internet.

LawMeme provides a concise analysis: FBI seek to expand the system-formerly-known-as-Carnivore

Under the FBI's proposal, all broadband Internet providers, including cable modem and DSL companies, would be required to rewire their networks to facilitate police wiretapping. Companies would bear "sole financial responsibility for development and implementation of CALEA solutions" but would be authorized to raise prices to cover their costs.

Washington Post: Easier Internet Wiretaps Sought

Justice Department lawyers argue in a 75-page FCC petition that Internet broadband and online telephone providers should be treated the same as traditional telephone companies, which are required by law to provide access for wiretaps and other monitoring of voice communications. The law enforcement agencies complain that many providers do not comply with existing wiretap rules and that rapidly changing technology is limiting the government's ability to track terrorists and other threats. FBI adds to wiretap wish list

Legal experts said the 85-page filing includes language that could be interpreted as forcing companies to build back doors into everything from instant messaging and voice over Internet Protocol (VoIP) programs to Microsoft's Xbox Live game service. The introduction of new services that did not support a back door for police would be outlawed, and companies would be given 15 months to make sure that existing services comply.

Ernest Miller: A Race the FBI Can't Win: The Increasingly Asymmetric Costs of Wiretap Surveillance vs. Wiretap Avoidance

If I were the FBI, I wouldn't waste my time on a battle I ultimately couldn't win and instead would concentrate my efforts on the place where I could still achieve my goals - the ends. You want to know what someone is up to online? I would recommend, for example, key loggers, "real" spyware, and social engineering. It ain't gonna be easy, but you have a chance of winning in the long term. The sooner you quit a race you can't win, the faster you can enter a race where you have a chance.

AGs to target P2P?

Wired News: Who's Teaming Up Against P2P? 

A draft letter purportedly circulated by [California Attorney general] Bill Lockyer to fellow state attorneys general characterizes P2P software as a "dangerous product" and describes the failure of technology makers to warn consumers of those dangers as a deceptive trade practice.

Starbucks to sell digital music

BusinessWeek: Starbucks Tunes In to Digital Music

The company thinks the service will significantly add to its $4.1 billion in annual revenue while enhancing its brand. As for the music industry, still reeling from digital piracy and sharply declining sales of CDs at brick-and-mortar record stores, Starbucks could make shopping for music both legit and fun again. "There is no question in our minds that this is the future of music distribution,'' says Hal Gaba, who co-owns Concord Records with producer Norman Lear. "It's a significant enhancement of the iTunes experience.''
Burned CD's? How 1999.

EFF: FCC Faces Suit on Regulation of Digital Broadcast Television: "The Electronic Frontier Foundation (EFF) joined five library associations, Public Knowledge, the Consumer Federation of America, and the Consumers Union in suing the Federal Communications Commission (FCC) last week to block overbroad regulation of next-generation televisions and related devices."

Statement of Issues to be Raised

Ernest Miller: FCC Sued Over Broadcast Flag - Yay!

FCC Adopts Broadcast Flag, Flagged, Waving the Broadcast Flag

TechTV: Understanding the Broadcast Flag

Fair Use? Priceless

Jason Schultz: Nader Wins Priceless Fair Use Victory v. MasterCard

Today, after four years of discovery battles and summary judgment briefing, the trial court ruled that Nader's use was, in fact, fair. A strong victory against overzealous copyright and trademark ownership and for non-commercial political speech.
SDNY: Mastercard Int'l Inc. v. Nader 2000

Houston Chronicle: Nader cleared in parody ad flap

An Apple a Day

Today brings news about a copyright suit in France against Apple Computer and a trademark suit by Apple in China:

AP: Apple faces claim for unpaid royalties levy on iPod

The Society of Music Creators, Composers and Publishers, or Sacem, accuses Apple of consistently refusing to pay the [blank media royalty] levy on sales of the iPod, which contains a hard disk drive.
Like France, Canada also employs a levy on recorded media. See e.g. Canadian copyright levy on blank audio recording media

China Daily: Trademark at core of Apple case apples.jpg

US-based Apple Computer Inc has brought an action against the trademark appraisal committee under China's State Administration for Industry and Commerce, after its request for trademark logo of Apple in the range of clothing had been rejected by the committee.

Lessig in NYC

Larry Lessig will speak at the 92nd St. Y about Free Culture: Creativity and Its Enemies on Tue, Mar 23, 2004, 8:15pm.

CAN-SPAM hits the big time

Last week brought us the first lawsuit filed under CAN-SPAM and this week brings us suits filed by Microsoft, AOL, Earhtlink and Yahoo!. The complaints are available from FindLaw.

NY Times: Internet Providers Sue Hundreds Over Unsolicited E-Mail

Digital Camera Patents

NY Times: Kodak Accuses Sony of Patent Violations on Digital Imaging

In a suit filed Monday in Federal District Court in Rochester, Kodak, which is struggling to make its brand name synonymous with digital photography, just as it once was with film, charged Sony with infringing on 10 patents that were issued to Kodak from 1987 to 2003. The patents covered various aspects of capturing, storing and displaying both still and moving digital images.

Does an enterprising reader want to spend a few minutes digging through the USPTO site to find out what these patents are for extra credit? I'm mildly curious, but otherwise occupied with some initial interest confusion issues...

FTC Spyware Workshop

The FTC will be hosting a workshop on spyware on April 19.

EU passes Anti-Piracy Directive

The European Parliament passed the Intellectual Property Rights Enforcement Directive by a vote of 330-151. The legislation provides for broad protections of a variety of intellectual property rights in order to prevent piracy and "misleading or parasitic copying." The final version of the bill does not include criminal penalties for infringers, but provides for civil and administrative sanctions. Any penalty must be "effective, proportionate and deterrent, and take account of the intentional or unintentional character of the infringement."

BBC News: EU backs tighter rules on piracy: "Before the vote, critics said the law was flawed as it applied the same penalties to both professional counterfeiters and consumers. But a late amendment limited them to organised counterfeiters and not people downloading music at home."

Internaional Herald Tribune: EU backs deal on copyright piracy: "After a year of intense lobbying, both critics and supporters of the anticounterfeiting measures were disappointed by the compromise approved by the European Parliament."

Canada Copyright

The Toronto Globe and Mail gets some more reactions to the Canadian Supreme Court decision in CCH Canadian Ltd. v. Law Society of Upper Canada: Court's copyright ruling in spotlight: "It's the most important copyright law we have had in Canada in years," Michael Geist, a law professor at the University of Ottawa, said in an interview."

Previously: Copyright Balancing in Canada

Ernest Miller: Klingon is Copyrighted

Can you really copyright a language? You can copyright a dictionary, certainly, but can you copyright grammar? I'm not sure you can copyright grammar at all, since it is a set of rules regarding word usage. Grammar is an idea, that can probably only be expressed in a fairly limited number of ways, even if fanciful.

Inmate seeks to Copyright Name

NY Newsday: Inmate seeks to copyright name

A Rikers Island inmate wants the Queens judge and prosecutor handling his drug case to pay him $500,000 any time either one uses his name without permission.

James Walker is one of many state and federal inmates nationwide who are copyrighting their names and filing substantial liens against the judges and lawyers involved in their cases.

One lawsuit per uploader

Wired News: One File Swapper, One Lawsuit 

A federal judge ruled on Friday that the music industry cannot sue over 200 alleged file sharers in one swoop and that the companies must sue each defendant individually.

The Recording Industry Association of America grouped 203 so-called "John Doe" defendants -- "John Doe" because their identities are not yet known -- into one lawsuit when it sued them in federal court in Philadelphia last month. All of those sued use Comcast as their Internet service provider.

Mar. 9: Ernest Miller wonders if this Victory for EFF Creates Problems for EFF's Filesharing Solution

Pornographers Lead the Way

USA Today reports that the online porn industry is moving to adopt new technologies, like DRM, faster than mainstream entertainment and media companies: Online porn often leads high-tech way

Porn's recent tech tinkering could have sweeping implications for the music and movie industries, which are trying to protect digital content from being stolen and traded. Each day, millions of video clips and photos are filched from for-pay porn sites and traded, forcing the red-light districts of cyberspace to find novel ways to protect digital content.

Reuters: Feds reject Eolas browser patent

The U.S. Patent and Trademark Office has invalidated a claim to Web browser technology central to a case against Microsoft, a move that could spare the software giant from paying more than half a billion dollars in damages, according to documents obtained on Friday.

Limited Medical Privacy

NY Times: Bush Administration Sets Forth a Limited View on Privacy

In a sharp departure from its past insistence on the sanctity of medical records, the Bush administration has set forth a new, more limited view of privacy rights as it tries to force hospitals and clinics to turn over records of hundreds and perhaps thousands of abortions.

Federal law "does not recognize a physician-patient privilege," the Justice Department said last month in court papers that sought abortion records from Planned Parenthood clinics in California, Kansas, Missouri, Pennsylvania, New York City and Washington. Moreover, the department said in another abortion case, patients "no longer possess a reasonable expectation that their histories will remain completely confidential."

First suit under CAN-SPAM

Wired News: ISP Files First Can-Spam Lawsuit 

Hypertouch, based in Foster City, California, filed the suit on Thursday claiming the owner of and its marketing affiliate BlueStream Media violated provisions of the Can-Spam Act by sending out e-mail advertisements containing missing contact information. The suit claims that BlueStream Media forged the header information that can help e-mail recipients identify where a message originated

Hypertouch has the complaint

DVD Code Injunction Overturned

In DVD Copy Control Assoc., Inc. v. Bunner, a California Appeals Court overturned a grant of a preliminary injunction against Andrew Bunner, who posted the DeCSS code to a web site. DeCSS is used to encrypt DVD content.

Jason Schultz: EFF wins DVD-CCA v. Bunner Appeal

EFF: Court Overturns Ban on Posting DVD Descrambling Code, Finding a Free-Speech Violation

Ernest Miller: DeCSS Injunction Lifted in Trade Secrets Case: "This is a solid, black letter law decision."

Doug Simpson: What DVD CCA v. Bunner is NOT

It does not protect one who is the first to crack a secret and then misappropriate or share it. It does not protect those who share misappropriated secrets in a closed community. It does not protect one from potential liability under laws other than the Uniform Trade Secret Act (UTSA). Those might include federal laws such as the Digital Millenium Copyright Act (DMCA) or state laws such as California Penal Code Sections 499c or 1203.33 or proposed federal or state laws protecting databases.

Copyright Reform Act Passes House

The House of Representatives passed The Copyright Royalty and Distribution Reform Act of 2004 (H.R.1417).

If this bill passes the Senate and is signed into law, it will amend Chapter 8 of the Copyright Act (Title 17 of the US Code) to replace copyright arbitration panels with 3 full-time Copyright Royalty Judges, appointed by the Library of Congress. House Passes Bill to Help 'Webcasters'

Mi2N: Whip Hoyer Lauds Passage Of Copyright Reform Act

P2Pnet: HR 1417 will help webcasters

Database Protection

Here are two analyses of the problems and shortcomings of The Database and Collections of Information Misappropriation Act (HR 3261):

At FindLaw, Brandi Karl: The Database Protection Bill: How the Current Congressional Database Protection Bill Would Go Beyond

At LawTechGuru, Jeff Beard: But Can I Buy a Vowel

Previously: The Anti-Feist

Copyright Balancing in Canada

The Supreme Court of Canada recently decided a copyright case in which it discusses the balancing of users' rights against those of copyright holders: CCH Canadian Ltd. v. Law Society of Upper Canada

University of Ottawa law professor Michael Geist notes a recent Canadian Supreme Court decision where: Canadian Sup. Court favors users over stronger copyright rules

Earlier today the Canadian Supreme Court issues a copyright decision that may rank as one of the strongest pro-user rights decisions from a high court in recent memory. In the unanimous decision, written by the Chief Justice, the court now appears to be considering all copyright law interpretation through the lens of balancing user rights with creators rights. The decision shows what it means to do more than pay lip service to balance in copyright -- trying to balance the interests of both users and creators means considering the impact in all aspects of copyright law and seeking to establish tests that respect the interests of both perspectives.

More analysis from Matthew Skala

Globe and Mail: Supreme Court rules against publishers' copyright group

LexisNexis InfoPro: Copyright law safe in library, court says

Make Your Own Jay-Z Remix

| 1 Comment

Fans of the Grey Album can make their own remixes using the Jay-Z Construction Set

DMCA Database Decision Dissected

Security Focus takes a look at Inquiry Management Systems v. Berkshire Information Systems and wonders Is password-lending a cybercrime?

The fallacy of this decision becomes clear if you consider that the customer himself could have logged in with his or her password, obtained the documents and records, and given them to Berkshire -- and this would have been a simple breach of contract, not a crime.

Under this decision, anytime you share your userid and password you're potentially committing or facilitating a felony. If you subscribe to, for example, the New York Times website (a free login) and let someone else log in with your userid, you might end up in the slammer -- at least if you appear before Judge Buchwald.

Previously: DMCA Doesn't Protect Databases

Digital Music Forum Report

Derek Slater: Digital Music Forum: What the Industry Players Do and Don't Get

The Digital Music Forum featured many people who "get it." It also featured many who clearly do not... There were online music vendors who understand that they must meet many different consumer types and provide a variety of options. While the vendors debated the merits of a la carte v. download subscription services, they made the more general point that they should not try to squeeze people into narrow options.

Faith-based FCC Fines

Sen. Zell Miller Introduced a Bill to Crack Down on Indecent Broadcasts (S. 2147):

Under Miller’s bill, the Broadcast Decency Responsibility and Enforcement Act of 2004, violators would be fined 25 cents times the number of individuals who viewed or listened to the broadcast. For instance, according to ratings by Nielsen Media Research, an estimated 140 million viewers watched last month’s Super Bowl. Under Miller’s bill, if the Federal Communications Commission (FCC) were to find the events of the halftime show indecent, Viacom, CBS and the offending artists would all be subjected to a $35 million fine (140 million viewers X 25 cents).

I'll just let Lawmeme's James Grimmelman describe the most odious portion of the bill:

But then the act takes a striking turn: after paying for administrative costs, all such fines would be redirected to faith-based programs. This is the part that makes my skin crawl; the BRDEA feels like compelled religious speech, which has to be some kind of First Amendment combo special.

The FCC would also be directed to appoint a Council of Decency: a nine-member board to advice it on "standards of decency as applied to broadcasts over which the Commission has jurisdiction." Three of these new Decency Nazgul would be ministers.

(via The Importance Of)

Won't somebody think of the children?

Today, the Supreme Court heard oral arguments in Ashcroft v. ACLU, the second challenge to the Child Online Protection Act (COPA) on First Amendment grounds.

The ACLU has a comprehensive list of resources: Ashcroft v. ACLU II.

The first time the case was on appeal in 2000, the Court kept the ban in place but sent the case back for further evaluation. In March 2003, the Third Circuit Court of Appeals again ruled that the statute was unconstitutional because the statute deprives adults of protected speech on the Internet. Therefore, the statute suffers from the same constitutional flaws that had led the Supreme Court in 1997 to strike down a predecessor law in Reno v. ACLU.

Oyez: Ashcroft v. American Civil Liberties Union

Washington Post: Supreme Court Revisits Online Pornography Issue

The Bush administration's top Supreme Court lawyer says he typed the words "free porn" into an Internet search engine on his home computer and got a list of more than 6 million Web sites. That's proof, Solicitor General Theodore Olson told the Supreme Court on Tuesday, of the need for a law protecting children from a tide of online smut.

NY Times: Justices Hear Arguments on Internet Pornography Law

Neither side got a free ride from the justices in the discussion of the Child Online Protection Act, a 1998 law that makes it illegal for commercial Web sites to make available to children 16 and under material that is not necessarily obscene but could be considered "harmful to minors" under a complex, three-part formula in the law. Don't worry, be sexy

AP: Technical Problems Reported in E-Voting

Scattered technical problems were reported in the early hours as voters in 10 states, including California, New York and Ohio, went to the Super Tuesday polls to choose a Democratic presidential nominee and decide primary contests for congressional and state races.

Piracy Around the World

Lessig on Eldred

In Legal Affairs, Larry Lessig: How I Lost the Big One

I took the phone off the hook, posted an announcement of the ruling on our blog, and sat down to see where I had been wrong in my reasoning. My reasoning. Here was a case that pitted all the money in the world against reasoning. And here was the last naïve law professor, scouring the pages, looking for reasoning.

(via How Appealing)

The Special Problem of Digital IP

The Digital Connections Council of the Committee for Economic Development report Promoting Innovation and Economic Growth: The Special Problem of Digital Intellectual Property provides policy recommendations for dealing with issues in digital intellectual property:

1. Because quick legislative or regulatory solutions for the problem of digital copyright protection pose risks to innovation and economic growth and are likely to have unintended consequences in a period of rapid technological change, we should move slowly. Our first concern should be to "do no harm."

2. The development and testing of new business models for the distribution of creative content should be given the highest priority by the content industries. We should not turn to law or regulation to protect any particular business model.

3. Existing solutions to the issue of unauthorized uses, such as enforcement and education should continue to be explored.

4. We recognize the need for for digital rights management (DRM) systems that will allow creators to be rewarded for their efforts. We are skeptical about government-mandated DRM, and we recommend that manufacturers not be required to build in mandated copy protection technologies.

5. Market-based economic tools that provide incentives for copyright-holders to facilitate follow-on innovation should be considered-- including measures to provide earlier dedication of copyrighted materials to the public domain.

NY Times: Report Raises Questions About Fighting Online Piracy

Greenspan on IP

Federal Reserve Chairman Alan Greenspan discussed Intellectual property rights at the Stanford Institute for Economic Policy Research Economic Summit, Stanford, California on February 27:

Only in recent decades, as the economic product of the United States has become so predominantly conceptual, have issues related to the protection of intellectual property rights come to be seen as significant sources of legal and business uncertainty. In part, this uncertainty derives from the fact that intellectual property is importantly different from physical property. Because they have a material existence, physical assets are more capable of being defended by police, the militia, or private mercenaries. By contrast, intellectual property can be stolen by an act as simple as broadcasting an idea without the permission of the originator. Moreover, one individual's use of an idea does not make that idea unavailable to others for their own simultaneous use. Even more importantly, new ideas--the building blocks of intellectual property--almost invariably build on old ideas in ways that are difficult or impossible to trace. From an economic perspective, this provides a rationale for making calculus, developed initially by Leibnitz and Newton, freely available, despite the fact that those insights have immeasurably increased wealth over the generations. Should we have protected their claim in the same way that we do for owners of land? Or should the law make their insights more freely available to those who would build on them, with the aim of maximizing the wealth of the society as a whole? Are all property rights inalienable, or must they conform to a reality that conditions them?

E-Voting in the US and India

| 1 Comment

At tomorrow's "Super Tuesday" presidential primaries, voters in California, Maryland and georgia will be voting using the oft-maligned Diebold e-voting machines."Electronic Vote Faces Big Test of Its Security

"People complain about hanging chads," said Aviel D. Rubin, technical director of the Information Security Institute at Johns Hopkins University in Baltimore and a co-author of the first study that found security flaws in the Diebold machines. "But if an electronic machine has malicious code in it, it's possible that all of the chads are hanging — and then you have to question every vote."
NY Times:Graphic: Counties Using Electronic Voting Systems

While the US hesistates to fully adopt electronic voting, India plans to have its first fully-electronic general election vote. BBC News: Gearing up for India's electronic election. India's 668 million registered voters will use more than 500,000 electronic voting machines from two suppliers: Bangalore-based Bharat Electronics Limited (BEL) and Electronics Corporation of India, based in Hyderabad.

Big money in domain names

NY Times: Domain Names Are Big Again

Dot-com domain names are fetching respectable prices again, after more than three years of attracting scant interest. Names like, and others have recently sold for more than $100,000, according to Domain Name Journal, a trade publication, while Web sites like, which offers a dating service, and sites selling pornography like are crossing the million-dollar threshold.