Post frequency will remain light here until mid-January.
December 2004 Archives
Reason interviews FCC Chairman Michael Powell: The Reluctant Planner: FCC Chairman Michael Powell on indecency, innovation, consolidation, and competition.
Powell on public support for structural broadcast license ownership regulations: "Look at some of the groups who are most effectively mobilized against us. We’ve never heard of them here at the FCC. I don’t know who Code Pink and MoveOn.org are. In many ways, the anti-war movement suddenly came to the FCC. And that was a hard thing to have seen in advance"
On unlicensed spectrum and WiFi: "the history of the FCC is, when something happens that it doesn’t understand, kill it. We tried to kill cable. We tried to kill long-distance. When [MCI founder] Bill McGowan starting stringing out microwave towers that threatened AT&T, the FCC tried to stop him. The FCC tried to kill cable because it was going to threaten broadcasting. I don’t want to make those mistakes."
On the broadcast flag: "I’m not a copyright expert. I have no interest in becoming a place to resolve digital copyright issues more broadly."
On Brand X: "The Brand X decision is the scariest and worst decision that exists on the books today for the future of the Internet. I think it’s been underobserved and underappreciated how dangerous it is. It says that every Internet transport provider just became a telephone company. That means broadband over power line, that means WiFi, that means ultrawideband, third generation wireless. The costs to consumers in the cable industry alone are breathtaking."
"I think it will be increasingly difficult to argue for content-premised legislation for broadcasters only." But Powell goes on to confuse content-premised regulations with structural ownership regulations in the next sentence when discussing the impact of MoveOn.org. The First Amendment does not prohibit the kind of media ownership regulations that the public supports, but does prohibit content-based regulations.
Not quite in the same way as old Napster, but Napster will introduce an "all-you can download" monthly subscription plan next year. Engadget reports:
Napster’s all-you-can download monthly subscription plan
It looks like Napster is going to be the first to take the plunge and use Microsoft’s new digital rights management system (codenamed Janus) that lets online music stores rent, rather than sell, downloads to people. We know what you’re thinking, and honestly, we don’t like the idea of renting music either, but this time you can’t mess with the price—for fifteen bucks a month you can download as many songs from Napster as you want and copy them on your MP3 player as long as you keep paying the monthly fee (or someone figures out how to hack the DRM).
If successful, this type of service will end up converting music (from a consumer standpoint) from a product to a service with a monthly subscription fee... Interesting...
Does the phrase "back that ass up" possess enough expressive creativity to be copyrighted? We may never know, since the Fifth Circuit decided its appeal in Positive Black Talk v. Cash Money Records on a plain error review of the jury instructions on probative similarity and the relationship between access and similarity rather than on originality of the key phrase.
How big of a problem is spam? It may account for as much as 93 percent of all email volume. It certainly seems as if we get 93 spams for every legitimate email here at AndrewRaff.com World HQ. Fortunately, a federal court and a regulatory agency are in action, fighting the rising tide of spam.
The AP reports: Judge Awards $1 Billion in Spam Lawsuit: "A federal judge has awarded a Clinton [Iowa] Internet service provider over $1 billion in a lawsuit against companies that used the service provider's equipment to send spam" District Judge Charles R. Wolle filed the default judgments against three companies under the Federal RICO Act and the Iowa Ongoing Criminal Conduct Act.
Some of the criteria for determining whether a message is primarily a commercial message include:
- For e-mail messages that contain only the commercial advertisement or promotion of a commercial product or service (“commercial content”), the primary purpose of the message will be deemed to be commercial;
- For e-mail messages that contain both commercial content and “transactional or relationship” content, the primary purpose of the message will be deemed to be commercial if either:
- a recipient reasonably interpreting the subject line of the e-mail would likely conclude that the message contains commercial content; or
- the e-mail’s “transactional or relationship” content does not appear in whole or substantial part at the beginning of the body of the message;
- For e-mail messages that contain both commercial content and content that is neither “commercial” nor “transactional or relationship,” the primary purpose of the message will be deemed to be commercial if either:
Factors relevant to this interpretation include the placement of commercial content in whole or in substantial part at the beginning of the body of the message; the proportion of the message dedicated to commercial content; and how color, graphics, type size, and style are used to highlight commercial content; and
- a recipient reasonably interpreting the subject line of the message would likely conclude that the message contains commercial content; or
- a recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is commercial.
- For e-mail messages that contain only “transactional or relationship” content, the message will be deemed to have a “transactional or relationship” primary purpose
The Mac Observer reports Apple Subpoenas Mac Rumor Sites Over Audio Product. In order to obtain the identity of a leaker who "misappropriated Apple's trade secrets regarding future product information," after those trade secrets appeared on three websites.
Duke Law Center for the Study of the Public Domain: Arts Project Moving Image Contest: "The contest asked entrants to create short films demonstrating some of the tensions between art and intellectual property law, and the intellectual property issues artists face, focusing on either music or documentary film."
The NY Times reports: Lawsuit Accuses Fox of Copying Wife-Swap Show
The British production company that created the reality series "Wife Swap" and sold it to ABC filed suit against Fox yesterday, charging that its reality series "Trading Spouses" was a "blatant and wholesale copycat" of the British show.
Via The Trademark Blog, see "Reality Check: When Will 2 TV Shows in the Same Genre Be Considered Substantially Similar Under Copyright Law?" from 21 Entertainment and Sports Lawyer 2 (Summer 2003).
Wired News: P2P Battle Reaches FTC
The Federal Trade Commission officially entered the brawl over peer-to-peer software Wednesday as it hosted the first day of a two-day P2P workshop in which both sides accused each other of trying to deceive government regulators.
Representatives of P2P software companies charged that content interests have tried to demonize P2P in an attempt to effectively kill it. Content providers, meanwhile, argued that they merely want to make P2P networks more responsible to consumers and more respectful of copyright holders.
Computer software should not be protected by copyright laws designed for music, literature and other creative works, according to a lawsuit filed in a U.S. court in San Francisco.
Intellectual-property consultant Greg Aharonian hopes to convince the court that software makers can protect their products adequately through patents, which provide more comprehensive protection, but are difficult to obtain and expire in a shorter period of time
The complaint, via Joe Gratz, who notes: "Unsurprisingly for a pro se constitutional litigant, his complaint is long on argument and short on factual allegations. And his theory – that software copyright is void for vagueness – is simply not going anywhere."
Kaiser Wahab: Attorney to Ashcroft: Should Software be Copyrighted at All? No.: "Expressly barring copyright registration for software code would have tremendous ramifications for the raging software piracy war."
Chris Cohen: Lawsuit filed to force protection of sotware with patent instead of copyright: "I don't know if this is a really interesting idea or if it's just nutty. One thing is for sure, regular copyright terms for software is ridiculous - like most copyrighted material it is utterly worthless after 100 years or more."
The New York Times reports: Google Is Adding Major Libraries to Its Database: "Google, the operator of the world's most popular Internet search service, plans to announce an agreement today with some of the nation's leading research libraries and Oxford University to begin converting their holdings into digital files that would be freely searchable over the Web."
LawMeme: Google to Help Libraries Put Collections Online "I look forward tremendously to having all that public domain material online: watch out publishers, because you're about to have to start competing with free in a whole new way."
John Battelle's Searchblog discusses the new development and their implicataions:
Google Library: Talk About a Long Tail..., Google To Launch Major Pilot Program with Harvard, Stanford, U Mich, Others, Print Implications: Google As Builder
Michael Madison: Google Print and P2P: "Is Google Print an information conduit? A massive, rogue P2P technology? Is it a contributory infringer? A publisher? From whom, if anyone, does it need licenses, and who, if anyone, should regulate it, and how, if at all?"
Scott Rosenberg: Google's commitment to the public: Google and the public good: "Google's leaders are demonstrating that their corporate mission statement -- 'to organize the world's information and make it universally accessible and useful' -- is not just empty words. If you're serious about organizing the world's information, you'd better have a plan for dealing with the legacy matter of the human species' nearly three millennia of written material. So, simply, bravo for the ambition and know-how of a company that's willing to say, 'Sure, we can do it.'"
Lauren Weinstein: The Dark Side of Google: "Google has created a growing information repository of a sort that CIA and NSA (and the old KGB) would probably envy and covet in no uncertain terms -- and Google's data is virtually without outside oversight or regulation."
If Google is digitizing this vast collection of public domain works, what obligations, if any, does it have to the public?
Michael Madison analyzes a trademark suit by the American Chemical Society against Google concerning the mark "scholar": ACS Sues Over Google Scholar
The American Chemical Society announced last Friday that it is suing Google over the Google Scholar service. ACS runs SciFinder Scholar, a service for accessing scientific literature published by CAS (the Chemical Abstracts Service), and ACS argues that it owns trademark rights to the word “Scholar,” at least in the context of information retrieval.
At any intuitive level, this is wacky stuff.
AP reports: Google Wins Trademark Ad Lawsuit
U.S. District Judge Leonie Brinkema rejected a claim by auto insurance giant Geico Corp., which argued that Google should not be allowed to sell ads to rival insurance companies that appear whenever Geico's name is typed into the Google search box.... But Brinkema said the case would continue to move forward on one remaining issue, whether ads that pop up and actually use Geico in their text violate trademark law.
Wired News reports: Hollywood Wants BitTorrent Dead: "In the United States and the United Kingdom, the Motion Picture Association of America, the main lobbying arm of U.S. film studios, filed civil lawsuits against more than 100 operators of BitTorrent "tracker" servers that point to locations where digital files of movies, music and other content can be found."
Findlaw provides the complaints.
Both people who purchased tracks from the Real download store to play on their iPod may have a problem. News.com reports:
Apple fights RealNetworks' 'hacker tactics': "Apple Computer has quietly updated its iPod software so that songs purchased from RealNetworks' online music store will no longer play on some of the Mac maker's popular MP3 players."
Reuters reports: FCC Chief Urges Denying 'Private Ryan' Complaints
FCC Chairman Michael Powell has concluded the agency should not take action against the other 159 stations that aired ["Saving Private Ryan"] because the language was part of accurately portraying the story about the Allied invasion of Normandy during World War II, the FCC official said.
David Pogue wonders why television programs are scarce after initial broadcast: A Lesson for Broadcasters: "A network spends thousands of dollars promoting and advertising their shows, BEGGING people to watch them-but then once they've aired, they don't want anyone to see them?"
Previously: Market failure on the long tail
Analee Newitz on DRM and technological lock-in/lock-outs: Techsploitation
Our toys are broken because entertainment companies have gigantic sticks jammed into their asses about something called "intellectual property," which they guard with everything from lawyers to cops. In their zeal to stop people from using their legitimately purchased content, these companies have gummed up their media with so much copy-prevention garbage that it's practically impossible to watch or listen to anything at your leisure. You might as well wrap your digital media presents in chains.
Salon.com: When dot-com patents go bad
When faced with two choices -- selling a company's patents as part of its overall assets or selling the patents alone -- the court (and the market) chose the latter. This means that in the eyes of the legal system and the marketplace, the Commerce One patents were more valuable to independent licensing firms as legal threats than they were to an actual company that makes a Web services product.
I am curious about who is reading this site. Seriously, who are you and why are here? If you are a regular reader of this little blog, please fill out this little survey. I would very much appreciate it. (It may not work too well within RSS readers.)
[form deleted because it was picked up by comment spam bots]
Michael Madison examines the connection between the two internet law cases which were granted cert. by the Supreme Court, MGM v. Grokster and Brand X Internet Service v. FCC: On Grokster and Brand X: "Both cases have to do with how the law deals with communications networks, and specifically with who gets to build them, and who gets to set the rules for how they’re built."
The Washington Post goes behind the scenes with the Parents Television Council: Fighting Indecency, One Bleep at a Time
The Washington Post reports that the FCC is investigating indecency complaints about the Opening Ceremonies of the 2004 Olympics: FCC Wary of Greeks Baring Gifts at Games
The NY Times' Frank Rich discusses The Plot Against Sex in America
Wal-Mart Stores Inc., which promotes itself as a seller of clean music, deceived customers by stocking compact discs by the rock group Evanescence that contain the f-word, a lawsuit claims...
"I don't want any other families to get this, expecting it to be clean. It needs to be removed from the shelves to prevent other children from hearing it," said plaintiff Trevin Skeens of Brownsville.
From the Berkman Center for Internet and Society at Harvard Law School, Has the Web Changed Politics and The Internet’s Effect on Politics: A Working Hypothesis, v2.0
News.com reports: FTC spotlights proposals on P2P risks: "The head of the Federal Trade Commission sent a letter to Congress on Tuesday highlighting efforts that file-swapping companies are making to disclose potential online risks."
The FTC will host a workshop about P2P Filesharing on Dec. 15 and 16.
Available on the FTC site are the public comments about the consumer protection and competition issues in P2P file sharing technology.
LA Times reports: U.S. Supreme Court to Hear File-Sharing Case
Law.com: High-Stakes File-Sharing Case Seeks Supreme Court's Ears: "Young Supreme Court law clerks, who help their justices screen cases and draft opinions, may be assigned a new task this week: explaining Grokster and Morpheus to their bosses, average age 70.7."
Courtesy of SCOTUSblog, cert. petition and briefs filed in Grokster
A party raising the statutory affirmative defense of fair use to a claim of trademark infringement does not have a burden to negate the likelihood of confusion. In fact, some level of confusion may be acceptable as part of fair use. KP Permanent Make-Up v. Lasting Impression
Wired News: Spyware on My Machine? So What?: "Not all web surfers think spyware is a problem. Some say the snoopy software is a fair trade-off for free applications, even with the intrusion into their computers and lives."
Law.com: et tu, Marvel?
For kids reared on comic books, what could be more natural than tumbling into the backyard with their friends to make up new adventures for their favorite superheroes? How many comic book fans adorned their grade-school notebooks with hand-drawn images of the X-Men, the Incredible Hulk, and Captain America?
Apparently Marvel Enterprises Inc., which owns the copyright and trademark rights in these classic superhero characters, thinks that these generations of American children were all infringers, little better than the downloaders targeted by the music and movie industries.
The Trademark Blog has a nicely illustrated post: Marvel v. City of Heroes : "Marvel Comics says that City of Heroes infringes Marvel's trademarks and copyrights, and has filed this complaint. Marvel says that, for example, Statesman, is just like Captain America, except that COH put the helmet of Magneto (a Marvel villain) on him."
Mediaweek finds that the FCC Activists Dominate Content Complaints
Through early October, 99.9 percent of indecency complaints—aside from those concerning the Janet Jackson “wardrobe malfunction” during the Super Bowl halftime show broadcast on CBS— were brought by the PTC, according to the FCC analysis dated Oct. 1. (The agency last week estimated it had received 1,068,767 complaints about broadcast indecency so far this year; the Super Bowl broadcast accounted for over 540,000, according to commissioners’ statements.)
Jeff Jarvis: FCC -- and media -- duped by Brent Bozell's complaint factory: "Wake up, reporters. Do the real story. A tiny fringe group and the FCC are trying to censor our media and cripple the First Amendment and lazy reporters are swallowing their garbage as they draw grand conclusions about the state of debate in America."
Jack Balkin: The FCC's authority to regulate indecency: "The FCC's authority to regulate indecency consistent with the First Amendment comes from the claim that children are always present (or potentially present) in the audience and that television is a "pervasive" medium. "
After finding out that credit card companies are not responsible for misappropriations of its photographs, Perfect 10 is now suing image search provider Google for directing web searchers to "stolen content websites." Perfect 10 v. Google.
John Palfrey: Pornographer sues Google on 12 grounds: "On a quick read, I'm not sure how the plaintiffs will distinguish their complaint regarding direct infringements with respect to the thumbnails of Perfect 10's copyrighted images rendered by Google from the way that the Kelly v. Arriba Soft court handled it."
Wendy Seltzer: Perfect 10 Takes Aim At Google: "Perfect 10's complaint doesn't look so strong, but its basic arguments are recurring ones in the online debates: that IP owners should be able to deputize intermediaries as their copyright, TM, etc. cops. (It's no coincidence that Perfect 10's lawyers include Russ Frackman, counsel to the record labels in MGM v. Grokster.) Sure, holding everyone in the chain liable might help stop infringements, but it would also kill search engines, whose value comes from helping users to find whatever they're looking for, if it exists on the Web."
The Trademark Blog: Google Image Search Returns Trademark and Copyright Suit
Previously: Not quite perfect
In Corante's The Future of Digital Media, Ernest Miller interviews U.Va. lawprof Tim Wu
On Copyright: "Today’s copyright law problem is structural. The law does too much to serve the interests of disseminators—the film industry, recording industry, and publishers—often at the expense of both authorship and consumer welfare. In historical terms, we’ve gone backward: I think we’re closer to where Copyright law was in 1700, when copyrights were all vested in book publishers, than it was in 1900, when authors still sometimes won fights with their publishers."
Telecom: "The FCC has become like that guy at the office who spends all his time surfing the web instead of doing what he promised to do."
Rossi v. MPAA, (9th Cir. 2004): "the “good faith belief” requirement in [DMCA] § 512(c)(3)(A)(v) encompasses a subjective, rather than objective, standard of conduct."
Joe Gratz finds time to read the opinion and discuss: 9th Cir.: Subjective Belief of Infringement Is Enough for Takedown Notice
(via Tech Law Advisor)
Displacement of Concepts: Why everyone needs to worry about English defamation law.
If you say anything about anyone who has a reputation in England, and you could have foreseen that that statement would go up on the web, you're likely to be sued for libel in England. It doesn't matter that everyone concerned was in the US, it doesn't matter that you were talking to a US newspaper with no print circulation or target audience in England, it doesn't matter that what you said was permitted comment in US law and dealt with mainly US issues. You could still be dragged through expensive and lengthy proceedings in the English courts.
Remember, unlike in the US, English defamation law has no public figure doctrine.
Ben Edelman takes a look at the latest version of Claria's end-user license agreement and finds that the latest changes are, not surprisingly, hostile to consumers: Gator's EULA Gone Bad: "In 5,900+ words of text, there's no shortage of space for Gator to describe itself in terms that ordinary users can understand. But a search of the license shows Gator has failed even to mention the words and phrases most users associate with Gator's products."
LawMeme's Jaes Grimmelman writes: Ben Edelman Gives Gator's EULA the Once-Over
This agreement, whether characterized as a "license" to use Gator's copyrighted software or a "contract" between you and Gator, is still a manipulative, low-down, dirty, no-good document.... The reasonable trade at the core of many of these agreements--you can use the software, but don't repackage it and sell it as your own--is going to survive, but under the right circumstances, almost any other term could easily be struck down
The washington Post reports that Fox is appealing the FCC ruling that found "Married by America" to violate indecency rules: Fox Calls For Court Review of Standards
"First and foremost, the commission's indecency regulations no longer can withstand constitutional scrutiny," Fox's filing to the FCC reads. "Given the tremendous technological changes that have transformed the modern media environment, the commission simply cannot justify an intrusive, content-specific regulation of broadcasters."
Previously: FCC's Tyrrany of the Minority?
Throughout this year, über-blogger Jason Kottke posted links commentary, rumors, speculation and audio about Ken Jennings' unprecedented domination of Jeopardy. Kottke quickly became the internet's leading source for information about the wild and crazy saga of KenJen.
In the week prior to Jennings' final appearance, Kottke received an audio clip of Jennings' final Final Jeopardy and posted it to his site along with a transcript. The Washington Post picked up the story (This Game Show Contestant Is In 'Jeopardy!') and then Sony contacted Kottke and asked him to remove the audio and then the "spoiler" text.
Kottke complied, noting the chilling effect of Sony's request (Sony, Ken Jennings and Me):
As an individual weblogger with relatively limited financial and legal resources, I worry about whether I can continue to post things (legal or not) that may upset large companies and result in lawsuits that they can afford and I cannot. The NY Times can risk upsetting large companies in the course of their journalistic duties because they are a large company themselves, they know their rights, and they have a dedicated legal team to deal with stuff like this.
Red Herring reports: And the question is, ‘Who is a big bully?’
"I think it’s possible that Sony thinks individual bloggers are more easily intimidated,” said Wendy Seltzer, an Electronic Frontier Foundation staff attorney who specializes in intellectual property law. “I don’t think they had a reasonable request. A short audio clip - not a full show - could be a fair use in the context of news reporting. Jason Kottke was reporting an event that had, in fact, happened. And just because television producers wanted to treat it as suspense media, doesn’t mean that it’s not also news.”
Scott Andrew: Harrassing fans for being fans: "What it basically boils down to is entertainment companies harrassing fans for being fans. And that is no way to win fans."
I suggest that what we need now is a means of organizing them so a blogger who's getting harassed by big corporate or government attorneys can call for help. In some cases, the lawyers may say that the blogger did something wrong. But in most cases, the lawyer can breath fire back at the corporate dragons and skip the harassment stage and get right to the civilized discussion and agreement stage.
Denise Howell follows up (Legal Representation Is A Conversation) noting that Chilling Effects Clearinghouse, a joint project of the EFF and law school clinics at Harvard, Berkeley, Stanford, University of San Francisco, and University of Maine, already provides this exact service to small, independent online publishers.
While Howell thinks that these sort of cases are not the type of cases that lawyers in private practice typically take on as pro bono work, Evan Schaeffer thinks that the idea could work. (Thoughts About a "Bloggers' Legal Defense Society")
In the right set of circumstances--for example, matching contributions by AmLaw 250 defense firms, as well as offers of pro bono assistance from large firms when an in-the-right blogger really can't afford help--we would be willing to invest time and money into starting an organization that would serve as a clearinghouse to get threats into the hands of lawyers who would be prepared to deal with them."> In the right set of circumstances--for example, matching contributions by AmLaw 250 defense firms, as well as offers of pro bono assistance from large firms when an in-the-right blogger really can't afford help--we would be willing to invest time and money into starting an organization that would serve as a clearinghouse to get threats into the hands of lawyers who would be prepared to deal with them.
This is but one example of the broader question of how should the law deal with personal publishers. Doesn't the First Amendment require the same level of protection for the personal press as the establishment press?
In a NY Times op-ed piece, Eugene Volokh suggests that citizen journalists deserve the same level of protection as journalists working in traditional media. You Can Blog, but You Can't Hide: "The First Amendment can't give special rights to the established news media and not to upstart outlets like ours. Freedom of the press should apply to people equally, regardless of who they are, why they write or how popular they are."
Bloggers may have legal problems that extend beyond the traditional boundaries of media law. One area which bloggers have to worry about that journalists employed by mainstream press do not have to is employment law. Former blogger Paul Gutman published a note in the Columbia Journal of Law and the Arts about this issue: "Note. Say what?: Blogging and employment law in conflict". 27 Colum. JL & Arts 145 (2003). (Not available on the web, but it is on Lexis, Westlaw and Hein for those of you with access.)
Last year, I started to plan a panel discussion on "Bloggers and the law: perils and pitfalls of personal publishing." We ended up not going forward with it, because it didn't really work for our audience, but perhaps it may be time to actually run this as a session for bloggers.
Kevin Heller has one solution, the blogosphere needs to form themeslves into a not-for-profit corporation and hire Kevin as General Counsel.
Six Apart (Typepad), Google (Blogger), Tucows (Blogware), LiveJournal and other hosted blog service providers might get some customers by being the first to include access to a lawyer to answer questions about C&D letters concerning material posted on the blogs. But, would that create some level of liability for the service providers that makes such a plan infeasible? Would such a plan be ethical? Would that be a worthwhile use of resources by these companies? (Probably not.)
New York City Comptroller William C. Thompson, Jr. today released a report estimating that New York City is home to a $23 billion annual illegal counterfeiting industry, causing the City to lose more than $1 billion in tax revenues each year.
Thompson issued the report, “Bootleg Billions: The Impact of the Counterfeit Goods Trade on New York City,” at a news conference attended by industry and anti-counterfeiting experts. Overall, the Comptroller noted that New York State and New York City lost a combined total of about $2.6 billion in tax revenue in 2003 as a result of the sale of counterfeit goods.