September 2004 Archives

Radio, Radio

Lately, the Brian Lehrer Show on WNYC has explored some interesting topics, including Media Ownership [Real Audio stream] and FCC regulations. The show's blog hosts additional comments: Media Ownership and What the FCC.

The Media Ownership discussion is part of 30 issues in 30 days-- a series of discussions about actual issues in the campaign.

Today, Lehrer discussed sampling and copyright with Robert Greenwald (creator of "Outfoxed," which I happened to watch last night) and Mike Bell-Smith (creator of Downhill Battle's Three Notes and Running): Video Sampling.


iPac is a new political action committee which seeks to "preserve individual freedom through balanced intellectual property policy."

1. Creators of ideas and inventions have the right to be compensated for their work, but not to limit political expression, veto technological innovation, or restrict education and scientific research.

2. Intellectual property laws should be judged by their potential to foster new creativity, as required by the U.S. Constitution.

3. Intellectual property laws should be clear and explicit, so anybody can create without fear of lawsuits.

So far, this group has endorsed six candidates-- three Democrats and three Republicans.

Amazon, Microsoft target spam in court Amazon, Microsoft team for spam suits
IT industry leaders and Microsoft said Tuesday that they have joined forces to file several lawsuits targeting individuals accused of carrying out Internet crimes such as spamming, phishing and e-mail address spoofing.

Copyright Law for P2P Developers

Is the Patent System Broken?

NYY Times: Does the Patent System Need an Overhaul?

Two professors conclude in a new book that a couple of unrelated and seemingly innocuous administrative reforms of the patent system have caused a shift away from encouraging innovation in favor of exploiting patents largely for lawsuits.

Josh Lerner and Adam B. Jaffe have written a book with a title: "Innovation and Its Discontents: How Our Broken Patent System is Endangering Innovation and Progress, and What To Do About It," to be published in November by Princeton University Press.


Survivor v. Survivor

Survivor (television show and cross-marketed CD) does not infringe "Survivor" mark registered by Survivor (the band): Frank Sullivan v. CBS, No. 02-2058 (7th Circuit, Sep. 24, 2004).

EFF: Deep Links

EFF: Your Vote Is Safe - We've Got Paperclips

Approximately five minutes into the audience participation portion of the Election Systems & Software (ES&S) demonstration, the iVotronic machine inexplicably froze; no amount of touch-screen prodding could elicit a response. Not a problem, the ES&S presenter assured bemused observers. All that was required was a system reboot, a bit of technical wizardry that was accomplished with the assistance of a straightened paperclip.

Anti-spyware bill lacks teeth

In the San Jose Mercury News, Columnist Dan Gillmor recommends a veto of a pending spyware bill in California: Anti-spyware bill lacks teeth; Schwarzenegger should veto it
SB 1436 started out as an anti-spyware bill with teeth, but has unfortunately degenerated into something the governor should veto.... But as several organizations including the Privacy Rights Clearinghouse and American Civil Liberties Union have pointed out in their calls for a veto, the legislation has effectively been turned into a giant loophole.
More later...

I Want My DTV

Sen. John McCain (R-AZ) introduced S.2820, "A bill to ensure the availability of certain spectrum for public safety entities by amending the Communications Act of 1934 to establish January 1, 2009, as the date by which the transition to digital television shall be completed, and for other puropses."

Wired News: Uncle Sam Wants Your Airwaves 

The bill highlights a congressional conundrum. On one hand, lawmakers are loath to turn off analog signals all at once, which would render an estimated 45 million analog TV sets -- those not hooked up to a cable or satellite service or to a digital-to-analog converter box -- utterly useless. And they are reluctant to spend money on any program that smacks of corporate favoritism.

Instead of waiting for the marketplace to set the pace of transition to digital television, the legislation would spend $1 billion to compensate Americans who rely on over-the-air broadcast television for analog sets and lack cable, satellite or digital TV tuners.

In order to ease the transition to DTV, the FCC granted television broadcast licensees additional spectrum, at no cost, in order to enable a transition period where both analog and digital signals are broadcast, with the intention that the licensees would return the extra spectrum at the end of a brief transition period.

The transition period to DTV is occurring much more slowly than initial forecasts. Under the current law, broadcasters can keep the analog spectrum until 2007 or until after at least 85 percent of households can receive broadcast DTV signals, whichever comes last. That transition will not occur by 2007 at current rates. eMarketer predicts that only 60.4% of households will have the capability to receive DTV by 2007.

The extra spectrum that is used by broadcasters during the transition period would provide substantially more benefits the public if it is auctioned off to the highest bidder or used for public services. The auctions would likely generate significantly more revenue than the $1 billion needed to compensate analog television owners.

For discussion: would a sudden transition to digital broadcast violate the Takings Clause if analog television owners are not compensated?

Before the text of the bill has even been posted to Thomas, Wired News reports: Broadcasters Gut Digital TV Bill

n a markup of the bill in the Senate Commerce Committee on Wednesday, Sen. Conrad Burns (R-Montana), along with Sen. Ernest "Fritz" Hollings (D-South Carolina), successfully put forth an amendment erasing the 2009 deadline favored by McCain. It also would require the broadcasters to give up just four 6-MHz channel slots in the UHF band (TV channels 63, 64, 68 and 69).

Under the amendment, which the committee passed in a 13-9 vote, the broadcasters wouldn't have to give anything back at all in a particular market if the Federal Communications Commission concluded that such a move would create a "consumer disruption" -- the two key words. Critics fear broadcasters could get that ruling in many markets.

More Concerns About E-Voting

Wired News: Activists Find More E-Vote Flaws

Voting activist Bev Harris and a computer scientist say they found more vulnerabilities in an electronic voting system made by Diebold Election Systems, weaknesses that could allow someone to alter votes in the election this November.

Diebold said Harris' claims are without merit and that if anyone did manage to change votes, a series of checks and balances that election officials perform at the end of an election would detect the changes.

Wired News: E-Vote Fears Soar in Swing States

just as the Kerry and Bush campaigns are spending most of their efforts in those states where neither holds a heavy margin in the polls, voting advocacy groups concerned with the integrity of voting technology are devoting their resources toward the states which matter most.

NY Times letters to the editor discuss The Real Problem With Electronic Voting: "It's our election! We should own the software. Paper ballots are a low-tech, fairly easy fix for this election, even now. We need them."

After receiving more than 542,000 complaints, the FCC assessed a $550,000 fine, the statutory maximum, against CBS for broadcasting the Super Bowl halftime show's "wardrobe malfunction." The fine was assessed on 20 CBS-owned local stations and not the other 200 independently-owned affiliates that broadcast the halftime show.

Notice of Apparent Liability for Forfeiture

At the outset, review of the Broadcast Videotape leaves no doubt that the Jackson/Timberlake segment is both explicit and graphic. The joint performance by Ms. Jackson and Mr. Timberlake culminated in Mr. Timberlake pulling off part of Ms. Jackson’s bustier and exposing her bare breast. CBS admits that the CBS Network Stations broadcast this material, including the image of Ms. Jackson’s bared breast, but argues that the exposure of her breast was unexpected and the duration of the exposure was for only 19/32 of a second. Although the exposure was brief, it was clearly graphic.

Powell: "As countless families gathered around the television to watch one of our Nation’s most celebrated events, they were rudely greeted with a halftime show stunt more fitting of a burlesque show."

Copps: "I am concerned by the precedent we establish in failing to assess a penalty against non-Viacom-owned affiliates that aired the Super Bowl."

Adelstein: "I find today’s remedy totally inadequate. After all the bold talk, it’s a slap on the wrist that can be paid with just 71⁄2 seconds of Super Bowl ad time. The $550,000 fine measures up to only about a dollar per complaint for the more than 542,000 complaints that flooded into the FCC after the broadcast. ... I fear that today we’re responding to a “wardrobe malfunction” with a regulatory malfunction."

The Governator asks to see ID

The San Fransisco Chronicle reports: Governor signs Internet piracy bill / E-mail address required to share movies, music online

Aiding the industry that helped him gain worldwide fame, Gov. Arnold Schwarzenegger signed legislation Tuesday aimed at discouraging online piracy by requiring anyone disseminating movies or music on the Internet to disclose their e-mail address.

California file sharers who trade songs or films without providing an e- mail address will be guilty of a misdemeanor, under the first-in-the-nation measure that could make it easier for law enforcement to track down people who illegally download copyrighted material.

The bill is SB1506.

Previously: California to force file sharers to wear name tags.

CBO, WEF, DRM and other TLAs

David Weinberger reports on a speech by Douglas Holtz-Eaken, Director of the Congressional Budget Office at a World Economic Forum meeting discussing copyright regulation: The CBO Challenge
Move slowly. "A great deal of caution should be taken about changes in copyright law." Why? Because the laws of unintended consequences are particularly applicable. He said he urges Congress to ensure sufficient property rights only to provide incentives for creativity, and allowing the greatest possible use of creative works.... There's no reason to craft copyright laws to protect the status quo. Instead we should focus on copyright as a means of allocating creative works." He ended by saying: "One of the most interesting things is the ability of DRM to enact a vast array of different contractual arrangements between producers and consumers. Congress should forebear to legislate which type of DRM. And we're aware of the law of unintended consequences.

NY Lawyer: DC Comics' 'Kryptonite' Trademark Survives Court Challenge by Maker of Bicycle Locks

A federal judge has ruled that the owner of the Superman franchise, DC Comics, owns a valid trademark in "kryptonite" that can be protected from dilution and infringement by a bicycle lock company that adopted the name.

Southern District Judge Richard Owen issued several summary judgment rulings favorable to DC Comics in DC Comics v. Kryptonite Corp., 00 CV. 5562, including a finding that kryptonite, "Superman's one fatal flaw," is a protectable symbol under the Lanham Act.

The court did not dismiss a breach of contract claim about limited trademark use.

Related miscellany:
Kryptonite bicycle locks are vulnerable to ball-point pens.

Apple Corps. and Apple Computer are involved in litigation over a contract regulating limited trademark use.

Miscellaneous Events

Election Law @ Moritz: Electronic Voting: The 2004 Election and Beyond. Thu, Sept. 23, 2004. This will be webcast.

Cardozo and Yale: Bellhead/Nethead: The FCC Takes On The Internet. Tue, Sept. 28, 2004 at Cardozo School of Law.

New York Law School and Yale Law School present State of Play II: Reloaded, about the interaction of law, video and virtual worlds. Oct 28-30, 2004 at NY Law School.

Copyright Trolling

National Law Journal: Trolling for Copyrights

Under the URAA, foreign works that had been allowed into the public domain in the U.S. as a result of failure to follow U.S. copyright formalities are now eligible for automatic copyright restoration. Works that were once a free-for-all for artists and entertainers in the U.S. are now off-limits.

VoIP, eh?

In the Toronto Star, Michael Geist contemplates the potential of VoIP regulation in Canada: No need for Dickensian approach to voice-via-Web

While most industry observers seem convinced that VoIP is the wave of the future, the regulatory framework surrounding the emerging technology remains uncertain. This week the Canadian Radio-television and Telecommunications Commission (CRTC) will hold three days of hearings on VoIP regulation

Posner on Fair Use

In the inaugural volume of The Economists' Voice, Judge Richard Posner writes about Eldred and Fair Use

Larry Lessig flagellates himself about losing the Eldred case, which upheld the legality of copyright extensions. He shouldn’t: Eldred was unwinnable. (The Court’s 7-2 vote is one clue). Besides, the worst of the Sonny Bono Copyright Term Extension Act’s effects can still be made to disappear, if courts deem it “fair use” to copy an old work whose copyright owner hasn’t taken reasonable steps to provide notice of his rights.

Judge Posner based this piece on work for a forthcoming article in the California Law Review (with Bill Patry) and guest-blogging at Lessig Blog.

LIttle Orphan Copyrights

Wired News previews Kahle v. Ashcroft, which contests the copyrighted status of so-called "orphaned works": Saving the Artistic Orphans 

Valuable resources are being lost to students, researchers and historians because of sweeping changes in copyright law, according to digital archivists who are suing the government.

These resources -- older books, films and music -- are often out of print and considered no longer commercially viable, but are still locked up under copyright. Locating copyright owners is a formidable challenge because Congress no longer requires that owners register or renew their copyrights with the U.S. Copyright Office.

Previously: A New Constitutional Copyright Challenge

Barbarians at the Digital Gate

NY Times: Barbarians at the Digital Gate

The rapid proliferation of [spyware and adware] has brought Internet use to a stark crossroads, as many consumers now see the Web as a battlefield strewn with land mines.

At the same time, major advertisers and big Internet sites are increasingly tempted by adware's singular ability to display pop-up ads exactly when a user has shown interest in a particular service or product.

Also: Adware archive

IP Writing Competition

NY State Bar Association: Law Student Intellectual Property Award Writing Contest for 2004.

The submission deadline is Nov. 4, 2004. Not that I want to encourage other entries...


Eighth Circuit rules that black-and-white cow spots are not functional, but can be protected as trade dress. Gateway, Inc. v. Companion Products, Inc.:

Black-and-white cow spots are an arbitrary embellishment that serve only to distinguish Gateway computers from computers produced by other manufacturers. The purely decorative nature of the design plays no part whatsoever in the performance of Gateway's computers. Surely, no consumer believes that the presence of this design affects the operation of electronic components and peripherals associated with Gateway. Gateway's competitors in the field of computers and their peripherals are not hindered in the least from producing comparable or superior products dressed in some other manner than black-and-white cow spots.

(via How Appealing)

DMCA Down Under?

Wired News: U.S. Exports DMCA Down Under

Australia appears ready to adopt U.S-style copyright laws, courtesy of a Free Trade Agreement deal negotiated between the two countries

But the agreement has some Australian civil liberties advocates and lawyers crying foul. They say it's nothing more than a money-grab by the powerful U.S. copyright owners lobby, and claim the Australian government has sold consumers' rights to media conglomerates in the United States for dubious trade concessions in other industries.

Apple to settle with Apple?

The Beatles' Apple Corps. sued Apple Computer to protect its trademark rights, claiming that the Apple iTunes Music Store (and infringe Apple's trademark and violates an earlier settlement between the companies: Apple takes Apple to court

Variety reports that a settlement may be imminent: Inside Move: Beatles' suit could upset the Apple cart

Word among the legal community is that an out of court settlement could be imminent and that it will massively dwarf the $26.5 million paid to the Fab Four's company in 1991 in a row over trademark use.

One lawyer told Daily Variety, "People are expecting this to be the biggest settlement anywhere in legal history, outside of a class action suit. The numbers could be mind boggling."

It will be very interesting to see what form this settlement takes...

Free Riding on IP

Stanford's Mark Lemley writes: Property, Intellectual Property, and Free Riding

Courts and scholars have increasingly assumed that intellectual property is a form of property, and have applied the economic insights of Harold Demsetz and other property theorists to condemn the use of intellectual property by others as free riding. In this article, I argue that this represents a fundamental misapplication of the economic theory of property. The economics of property is concerned with internalizing negative externalities - harms that one person's use of land does to another's interest to it, as in the familiar tragedy of the commons. But the externalities in intellectual property are positive, not negative, and property theory offers little or no justification for internalizing positive externalities. Indeed, doing so is at odds with the logic and functioning of the market.

A federal district judge struck down a Pennsylvania state statute, the Internet Child Pornography Act, 18 Pa Cons. Stat. §§7621-7630, which would impose criminal liability on an ISP which "merely provides access to child pornography through its network and has no direct relationship with the source of the content." Center for Democracy and Tech. v. Pappert. The court finds the Pennsylvania statute unconstitutional under both the First Amendment and the Dormant Commerce Clause:

Based on the evidence presented by the parties at trial, the Court concludes that, with the current state of technology, the Act cannot be implemented without excessive blocking of innocent speech in violation of the First Amendment. In addition, the procedures provided by the Act are insufficient to justify the prior restraint of material protected by the First Amendment and, given the current design of the Internet, the Act is unconstitutional under the dormant Commerce Clause because of its affect on interstate commerce.

The elimination of child pornography is an important goal and those responsible for the creation or distribution of child pornography should be prosecuted to the full extent of the law. To that end, all of the ISPs involved in the case have given defendant their complete cooperation. Notwithstanding this effort, there is little evidence that the Act has reduced the production of child pornography or the child sexual abuse associated with its creation. On the other hand, there is an abundance of evidence that implementation of the Act has resulted in massive suppression of speech protected by the First Amendment. For these reasons, and the other reasons set forth in the Memorandum, the Court is ineluctably led to conclude the Act is unconstitutional. Court strikes down Pennsylvania porn law

AP: Judge Dumps Child Porn Law 

In June, the Supreme Court found the federal Child Online Protection Act (COPA) unconstitutional: Ashcroft v. ACLU. (see also Ashcroft v. ACLU link roundup)

Oracle wins antitrust case Oracle wins antitrust case

U.S. District Court Judge Vaughn Walker sided with Oracle against the Department of Justice, which opposes the proposed merger. The agency took Oracle to court in June, charging that a PeopleSoft buyout would empower Oracle to illegally raise prices and would impair innovation in the industry. Oracle argued that it couldn't raise prices with Germany's SAP and a raft of other rivals competing against it.

In his 164-page ruling, Walker sided with Oracle on most counts: "Plaintiffs have not proved that a post-merger Oracle would have sufficient market share in the product and geographic markets" to be anticompetitive.

U.S. v. Oracle Corp. (N.D.Cal Sept. 2004).


Kevin posted the Copyright Office's Recommended Statutory Language and Explanatory Memo for the Inducing Infringements of Copyright Act. Visit the IICA blawg and The Importance Of... for the full scoop on IICA-related developments.

Moving Right Along

Michael Froomkin: -- Trademark Infringers

There are important and substantial First Amendment protections for political speech that trump the trademark statute. These include a right to parody, and a right to refer to an organization you are criticizing by its own name ("nominative fair use"). But none apply to attempts to create a confusingly similar name for yourself in the hope of confusing the public.

Takes a licking...

Polar Bear Productions, Inc. v. Timex Corp. (9th Cir. Sept. 3, 2004).

This intellectual property case pits the sport of extreme kayaking against the iconic American timepiece, Timex. In an effort to update its image, Timex Corporation ("Timex") arranged with Polar Bear Productions ("Polar Bear") to produce film footage featuring some of the stars of whitewater kayaking, paddling through exotic locales in North and South America and using equipment bearing the Timex logo. The promotion was so popular with Timex that it just kept on ticking and continued using the footage well beyond any permission to do so. The result is a lawsuit that has taken on a life far beyond a simple copyright and trademark case. Now, after two trials, two jury verdicts awarding in excess of $2 million to Polar Bear, and a long history between the parties, the case presents us with several novel issues of copyright law. The consequence of this appeal is a series of rulings resulting in yet another round in the trial court.

Via How Appealing. More later...

Digital Copyright Crisis

In the Boston Globe, Harvard Law professor John Palfrey writes an op-ed about The digital copyright crisis

Given that so many people break the law every day using these networks by copying music files, how can this possibly be a good decision? Indeed, in the short term, the decision appears to be bad for many people who own copyrights -- the record companies, some of the artists who write and sing the songs, and the movie studios. The solution to the problem, though, is not to ban a new technology because it can be used to make illegal copies. Such logic would have left us in a world without VCRs, tape recorders, or photocopy machines. Such logic might even extend to computers themselves. After all, in a digital age, every time we surf the Internet, save a file to our hard drives, or share files on a network, we make copies. Copyright law is out of date.

Keyword Suit Survives Summary Judgment Geico gets green light to sue Google, Overture

The unpublicized Aug. 25 decision by Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia delivered a blow to the two Internet search giants in their efforts to defend ad sales of trademarks as fair use. It could also ultimately threaten their livelihood: Google and Overture make money by selling ads linked to keyword-triggered search results, and many commercially driven searches are tied to trademarked brands such as Geico or Nike.

Previously: Keying Trademark

Super Fine

Washington Post: FCC Plans Record Fine For CBS

The $550,000 indecency fine would be the largest levied against a television broadcaster. The decision could be released as early as next week but may come the week after, said the sources, who would not speak for attribution because the vote has not been made public. The amount represents a $27,500 fine directed at each of the 20 television stations owned by CBS, which in turn is owned by Viacom Inc.

Contracts, Clickwrap and Copyright Misuse

Yet Another $0.99 Legit Download Site

Microsoft opens MSN Music.

Municipal Broadband Time Warner broadband suit advances

A federal appeals court has breathed life back into Time Warner's challenge of an Ohio city law requiring new homes and offices to connect to a municipally owned Net infrastructure.

The 12th U.S. Circuit Court of Appeals' decision on Monday reinstated a lawsuit brought by Time Warner, which was seeking the law's dismissal. The decision was the latest twist in a battle that could ultimately affect the increasing number of cities that own and manage their own broadband networks.

MediaPost: Jupiter Asks eMarketer To Cease And Desist, Suit May Define 'Fair Use' On The Internet

Jupitermedia Tuesday said it sent cease and desist letters to online news and data aggregator eMarketer, ordering the company to discontinue using research from Jupitermedia in eMarketer reports sold in France and the UK. The two companies are already embroiled in a similar lawsuit in the United States and some observers believe the outcome could help determine what constitutes "fair use" of data that is publicly available on the Internet.

Jupitermedia filed legal action against eMarketer in the U.S. District Court for the Southern District of New York on May 13, alleging copyright and trademark infringement. Jupitermeda requests that eMarketer cease its acts and pay any monetary damages, which will be determined at the end of the trial.

Claria Settles reports that Claria has settled the pending consolidated litigation: Pop-up purveyor Claria settles suits

Claria, formerly known as Gator, ended a multidistrict litigation case, or combined lawsuit, with Wells Fargo and Quicken Loans on Aug. 7, according to the plaintiffs' attorney. In recent months, it also has quietly settled with UPS, Hertz, L.L. Bean, Tiger Direct and Six Continents, a Claria representative confirmed.

Terms of the settlements were not disclosed.


Black Box Voting: Look at this -- the Diebold GEMS central tabulator contains a stunning security hole

By entering a 2-digit code in a hidden location, a second set of votes is created. This set of votes can be changed, so that it no longer matches the correct votes. The voting system will then read the totals from the bogus vote set. It takes only seconds to change the votes, and to date not a single location in the U.S. has implemented security measures to fully mitigate the risks.

This program is not "stupidity" or sloppiness. It was designed and tested over a series of a dozen version adjustments.

This is something that officials might want to fix before the general election...

DMCA Decision Opens Doors?

Wired on the E-Vote Beat

Wired News: : E-Vote Recount Rule in Dispute

Florida officials will not require any recounts of votes cast on touch-screen voting machines during Tuesday's state primary, despite a ruling by an administrative judge that counties using electronic voting are not exempt from laws requiring the re-tabulation of votes in close elections.

Election Overseers Want Big Win

State and county election officials from around the country are praying that this year's presidential race ends with a wider margin of victory than it did four years ago when George W. Bush beat Al Gore in Florida by only 547 votes. A close victory this year would likely result in more charges of voter fraud and calls for recounts, two things that election officials don't relish.

Washington Post: High Court Petitioned on Cable Net Access Rule

In the past year, the U.S. Court of Appeals for the 9th Circuit in San Francisco has ruled twice that the Federal Communications Commission erred when it allowed cable companies to bar rivals from their networks. However, those decisions have been put on hold while the Bush administration considered its options. If the Supreme Court rejects the Justice Department's appeal, cable companies would be required to share their lines with rivals, potentially creating more choice for consumers and a vast new market for independent Internet service providers.