April 2005 Archives

Five things

Courtesy of Martin Schwimmer, Five things to do when you receive a Cease and Desist letter. Number 1? "Do not contact the other side and discuss the case."

Analog to digital in TV-land

Mark Cuban: Shutting off Analog TV, The transition to Digital - It’s Time - Blog Maverick - www.blogmaverick.com _: "The conventional wisdom among cable networks is that the market of HDTV consumers is still too small for them to cost justify investing in new content, equipment and distribution, which for the biggest network conglomerates will reach hundreds of millions of dollars in conversion costs, incremental equipment and distribution costs."

Engadget's Stephen Speicher: The Clicker: From analog to digital: "First, the terms “analog” and “digital” are a bit of a misnomer. Both digital television (DTV) and traditional television are broadcast using analog signals. The difference comes not from how they broadcast but instead from what they broadcast. When traditional televisions tune into an analog signal they see a series of waves. These waves are directly used to drive the television."

Previously: I want my DTV, Spectrum Free-for-all, Spectrum Wars

Legislatin' the Rain

Rick Santorum (R-PA) introduced National Weather Services Duties Act of 2005 (S.786), which will prohibit the National Weather Service from providing data or services that compete with weather data products from the private sector.

(b) COMPETITION WITH PRIVATE SECTOR- The Secretary of Commerce shall not provide, or assist other entities in providing, a product or service (other than a product or service described in subsection (a)(1)) that is or could be provided by the private sector unless--
(1) the Secretary determines that the private sector is unwilling or unable to provide such product or service; or
(2) the United States Government is obligated to provide such product or service under international aviation agreements to provide meteorological services and exchange meteorological information."

The AP reports: Santorum's bill would change National Weather Service offerings: "The bill would protect the 14 private weather service companies in Pennsylvania — including AccuWeather in State College, Pa., Santorum spokeswoman Chrissy Shott said. AccuWeather, which says it employs about 340 people, provides weather data to a variety of outlets — including media organizations such as The Associated Press."

By releasing data for only the cost of reproduction, the US government stimulates innovative services in the weather field. In a February article in the Financial Times, James Boyle discusses the benefits the public has received from this free access to weather data: Public information wants to be free

The United States makes complete weather data available to anyone at the cost of reproduction. If the superb government websites and data feeds aren’t enough, for the price of a box of blank DVD’s you can have the entire history of weather records across the continental US. European countries, by contrast, typically claim government copyright over weather data and often require the payment of substantial fees. Which approach is better? If I had to suggest one article on this subject it would be the magisterial study by Peter Weiss called “Borders in Cyberspace,” published by the National Academies of Science. Weiss suggests that the US approach generates far more social wealth. True, the information is initially provided for free, but a thriving private weather industry has sprung up which takes the publicly funded data as its raw material and then adds value to it. The US weather risk management industry, for example, is ten times bigger than the European one, employing more people, producing more valuable products, generating more social wealth.

When the public sector makes available scientific data for free or at cost, everyone wins. See State Support for Information Access. Public data is a public good. By allowing the state to provide more data, the private sector will likely become more innovative. A state-supported monopoly leads to stagnation, not progress and innovation.

At what price does Senator Santorum put the benefits of a donor ahead of the public interest? Ezra Klein estimates $7,500: Cheap as Well as Nasty.

Between Lawyers: Chilling Effect on Frost Forecasts

Gothamist: Wither the Weather?

Copyfight's Donna Wentworth also recalled Boyle's FT article: Help Break the IP Stupidity Pact

Spitzer targets Spyware

The NY Attorney General is suing spyware distributor Intermix Media: State sues major "spyware" distributor: "The lawsuit arises under the State's General Business Law, which prohibits false advertising and deceptive business practices, and New York's common law prohibitions against trespass. Legislation specifically directed at 'spyware' and 'adware,' including bills applying or strengthening criminal sanctions for its distribution, has been proposed both in Congress and in the New York legislature, as well as legislatures across the country."

Verified Petition: People v. Intermix Media, Inc.
Brookman Affirmation

EFF Deep Links: Spitzer Suit Shows the Right Way to Fight Spyware: "The lawsuit is a step forward for end-users' rights to control their own computers, and shows the right way to address the spyware problem: with lawsuits, not new laws."

DeLay Hates the Internet

The AP reports some choice comments from Rep. Tom Delay (R-TX) DeLay Continues Attacks on Federal Courts: "'We've got Justice Kennedy writing decisions based upon international law, not the Constitution of the United States? That's just outrageous,' DeLay told Fox News Radio on Tuesday. 'And not only that, but he said in session that he does his own research on the Internet? That is just incredibly outrageous.'"

A Supreme Court justice doing his own research? On the internet? As if there's some giant archive of law on the internet?

More Budweiser tm

The AP reports about the latest front in the global dispute between Budejovicky Budvar and Anheuser-Busch over the Budweiser trademark: Brewery Claims Victory Over Anheuser-Busch: "Czech brewery Budejovicky Budvar said Wednesday it won the latest round of its global legal battle against U.S. beer giant Anheuser-Busch Cos. Inc., gaining the right to sell its beer under its original brand names in Cambodia."

Previously: This Trademark's for who?

P2P and Grokster at the City Bar

The Association of the Bar of the City of New Yorl: One Click Over the Line: P2P Technology, Grokster, and What the Future Holds, Monday, May 02,2005 6-7:30 pm. With Susan Crawford (Cardozo), Steve Marks (RIAA), Adam Eisgrau (P2P United), Sarah Deutsch (Verizon), Sonia Katyal (Fordham).

(via TechLawAdvisor.)

Fan Fiction and Movie Ratings

NY Times: Please Don't Call It a G-Rated Dispute: "Recently the [Motion Picture Association of America] sent e-mail messages and letters to people who write online fan fiction, demanding that they stop tagging stories with the ratings. Fan fiction, which uses characters from popular TV shows, movies and novels in original stories, has used movie ratings for years as a way to help adults find stories with mature content and to steer children away from it. Too many children looking for Harry Potter stories were stumbling onto new and unexpected uses for wands."

An in-progress essay about fan fiction and the law is available from Scrivener's Error: Warped Weft: Fan Fiction: "'Fan Fiction' is fiction written by fans (recalling that the word 'fan' is an elision of 'fanatic' is not out of place!) and set in the universe of their fanaticism. Some of these stories are mere 'continuations' or 'prequels' or whatever based very closely indeed upon the object of their desires"

Bloggers and the law

NY Times: When the Blogger Blogs, Can the Employer Intervene? "[Employee/bloggers] are also learning that the law offers no special protections for blogging - certainly no more than for any other off-duty activity."

Last week, the NY Public LIbrary presented Who Owns Culture with Stanford Law professor Lawrence Lessig, Wilco frontman Jeff Tweedy and author Steven Johnson. The panel discussed the value of free and unfettered access to music on the internet.

The NY Times reported, Exploring the Right to Share, Mix and Burn

Both Mr. Tweedy and Mr. Lessig used their talk to say that the Web, in an age where conglomerated FM radio has squeezed out virtually all possibility of hearing anything worthy and new, is where fans are best exposed to music they might want to buy. And during the presentation (which was streamed live on Wilco's Web site), Mr. Lessig added that the decision to outlaw downloading would have a profoundly inhibiting effect on the creation of culture. He said that in every instance, from the player piano to radio to VCR's to cable, the law had landed on the side of the alleged "pirates," allowing for the copying or broadcasting of cultural works for private consumption. Thus far, both the music industry and the film industry has succeeded in making it illegal for consumers to download their products.

Lessig responded: from the continuing-disappointment-that-is-the-NYTIMES department: "I'm not sure why there needs to be a NYTimes, if its role is simply to reinforce what people already think, especially with pieces like this. God forbid the Nation's paper of record should reflect something more subtle or complex than the crudest view of an important debate."

Other bloggers reported the event, including Jason Kottke and Andrew Hultkrans

Earlier in the day, Prof. Lessig spoke at Brooklyn Law about default rules of copyright in the digital age, access to scholarship and the Creative Commons project. Lessig's basic premise is that the application of existing copyright law to the digital world considers certain uses, which would be considered normal uses of copyrighted material in the analog world, to be infringing uses, because in the digital realm, we make copies in lieu of moving physical objects around. As the cost of copying drops to zero, the law still treats each copy as if it is an infringing use, rather than a normal use. The way that we use information in the digital world should reflect the realities of the technology and encourage the free flow of information as the primary goal, not the monetizing of each individual transaction.

The internet changes the economics of copyright in substantial ways. Whereas before computers, distribution of copies required the distribution of physical copies which have a significant marginal cost. On the internet, the marginal cost of making a copy drops close to zero. The economics of access to information are different on the internet, which removes many of the cost barriers to distribution. (Although the marginal costs of making digital copies is tiny, the initial cost is still relatively high.)

The commercial value in a copyrighted work varies with time. As time goes on, most works exhaust their potential commercial value, e.g. out of print books. The relevance of the work, the popularity of the creator and the passage of time are among the factors that increase or decrease the value of a work. As an artist gains notoriety, earlier works may appreciate in value. Preemptive non-commercial licensing allows the artist to use his existing work to gain that notoriety without sacrificing the potential of future commercial exploitation. It also allows individuals to access the work in its post-commercial life.

The Creative Commons(CC) project is a sensible way for creators and copyright owners to preemptively license their works to allow for such "normal" uses while still protecting the works from unlicensed commercial exploitation by third parties. Academics should be the most accepting towards adopting CC licenses, because most are mainly interested in discussing their ideas and contributing to public discourse. Prof. Lessig has decided to no longer "publish in any academic journal that does not permit me the freedoms of at least a Creative Commons Attribution-Noncommercial license."

Unfortunately, not even law students and lawyers, much less the general public, fully understand the impact of these licenses. With the numerous different possibilities the CC licensing schema provides for licensing, the terms can be confusing. Creators will be reluctant to license their works without understanding more about copyright law and their potential options. A license that allows for non-commercial use and requires attribution is significantly more restrictive than a license that allows for commercial use, allows for the creation of derivative works with no attribution requirement. The Creative Commons licenses allow for various permutations and freedoms.

Consider the example of the smart lawyers behind the Between Lawyers blog, who debated whether to adopt a CC license for their new blog. Dennis Kennedy writes, "The CC licenses are also very hard to find on the CC website. A visit to the CC site and blog will make you sympathetic to the arguments of those who criticize the CC licenses as more of a marketing gimmick than a legal standard. I'd like to see more explanation of the licenses and discussion of current issues (e.g., the issues Marty Schwimmer raised about Bloglines) and less self-congratulatory material." (They eventually went with the Attribution-NonCommercial-NoDerivs 2.0 license).

Of course, parties can still contract around the Creative Commons license. This makes it ideal for creators who want their works to be seen and heard, but want to share in any profit resulting from uses of their works. The creators can preemptively license the work and then license it for money later in the copyright's life. Creative Commons does not explain this aspect well enough.

As businesses may be reluctant to adopt GPL software because of the viral aspect of its licenses, some artists may be afraid to use Creative Commons licensed works, because the CC licenses can have a similar viral aspect (the "share-alike" option.)

What can CC do to make more creators comfortable with preemptively licensing their works, especially those creators who are not copyfighters? First, perhaps it needs better names than "Attribution-NonCommercial-NoDerivs." These are descriptive, but potentially confusing for artists without legal counsel and explained better as individual schemes for different works discretely from the over-arching philosophy. Secondly, CC should emphasize that adopting a CC license does not preclude the artist from utilizing the work commercially in the future, except for when it does not.

As CC refines its pitch to creators, it will be interesting to see how widely adopted these preemptive licensing schemes become. Additionally, it will be interesting to see what happens with the first case litigated concerning a CC-licensed work.

Related, Joe Gratz blogged the Publication, the Public University, and the Public Interest conference at the University of Minnesota.

In a different form of accessibility, Orin Kerr finds that Amazon.com is selling individual law review articles.

Copyright Owners and Consumers

In News.com, John Borland reports that record labels are unhappy that Apple is able to offer more consumer-friendly download products than the labels would like: Music moguls trumped by Steve Jobs?: "Frustrated at what they see as Jobs' intransigence on song pricing and other issues, some record executives are now turning their hopes toward other partners, particularly mobile phone carriers eager to get into the business of selling music. They see this new focus as a way to broaden the digital music business, and lessen Apple's dominance over their market in the process."

Apparently, the studios are upset that Apple is giving consumers something that is easy to use and is unregulated enough for the vast majority of uses. Anti-DRM absolutists undoubtedly feel that the Apple implementation is crippled, and there are likely a non-trivial number of outlier uses that are presumptively Fair Uses, but prohibited by the FairPlay DRM. However, the major label copyright owners would much rather see music services work like the mobile phone ringtone or mobile data services. These mobile phone services are deterrent to use, because they attempt to monetize every aspect of the transaction and nickel and dime consumers. These are generally not consumer-friendly services that offer good value.

Elsewhere, Derek Slater breaks the news that hackers are set to crack Napster's Windows Media DRM scheme (note that this is not the Napster-to-Go "Janus" DRM). A Copyfighter's Musings: The Cracking of Napster WMA DRM:

Cody and co. are apparently very near an implementation of a utility that will allow people to turn songs acquired through Napster Light (the a la carte service) and Premium (the non-portable subscription service) into unencrypted files. You have to have paid for the songs first to do this circumvention, because the keys have to be retrieved from Napster. This tool will actually circumvent and remove the DRM, rather than recording from the sound card or employing other similar workarounds to create unencrypted files.

Parks settles with OutKast

The NY Times reports: Rap Group Settles Rosa Parks Lawsuit

The rap group OutKast settled a long-running legal dispute yesterday with Rosa Parks, whose actions helped start the civil rights movement, over the group's use of Mrs. Parks's name in a song.

Mrs. Parks had sued the group in a federal court in Detroit in 1999, saying that its song, 'Rosa Parks' whose lyrics do not name Mrs. Parks but contain the lines 'Ah ha, hush that fuss/Everybody move to the back of the bus' had defamed her and violated her right of publicity.

Solving China's Piracy Problem

Henry Blodget suggests a dozen ideas on How to Solve China's Piracy:

Piracy apologists, who occasionally include the Chinese government, often point out that developing countries have a long tradition of such behavior, starting with the U.S. (Charles Dickens was reportedly stiffed for royalties by U.S. publishers). In this view, the U.S. companies are hypocrites: Now that we've stolen IP, polluted the environment, and exploited workers to move up the value chain, we want to ban the practices in other countries (an argument that has some truth to it). The U.S. didn't get really tough on intellectual-property rights, people note, until we had intellectual property to lose, and the common wisdom is that the same will hold true for China.

Blogs and Trademarks

Ron Coleman: A Theory of Trademarks in the Blog Era:

Unlike virtually no other mass publication of trademarks that is likely to interest mark owners, the Internet raises few barriers to entry. Blogging presents even fewer ‑ virtually none. Trademark enforcement practitioners who are used to the frustration of chasing after ethereal Internet-based trademark infringers are understandably aghast over the incredible ease, and functional anonymity, with which bloggers can instantaneously upload text, graphics and files, including HTML links. Blogger software platforms, including substantial hosting resources, are available for free from services such as Blogger and many others.

A radio DJ in Troy, NY was fired for airing public domain material in violation of, er, copyright? Master of Whose Domain: "Dennis Karius, a former host of The Portside on WRPI public radio, recently found out just what sort of a climate of fear the recent media and legal attention to copyright violations has spawned. Earlier this year, he lost his radio show as a result of airing audio that he recorded off his television from C-SPAN."

Via Sivacracy: Getting Fired for Sharing the Public Domain.

The Law and Economics of Blogging

Larry Ribstein, Initial Reflections on the Law and Economics of Blogging by Larry Ribstein

Weblogs, or blogs, have proliferated and developed rapidly in recent years, and have attracted significant attention. Moreover, blogs have started to generate significant legal issues. Yet there is so far no coherent economic framework for addressing those issues. This article begins to develop such a framework. Building on blogs' technical features, it identifies the unique aspects of blogs that should have legal ramifications. It then briefly applies this framework to a variety of legal issues.

Prof. Ribstein examines the legal effects of blogging and the journalists’ privilege, application of election laws, copyright and fair use, media ownership restrictions, defamation law, licensing laws, business organization issues.

Journalists and prominent bloggers filed amicus briefs in support of web site publishers in the Apple v. Doe appeal in California, arguing that bloggers should be protected from disclosing confidential sources under California's state shield law.

Journalists Amicus brief. Findlaw reports: News organizations support bloggers in Apple trade secrets case: "Joining the brief were the Tribune Co.'s Los Angeles Times, Hearst Newspapers' San Francisco Chronicle, Knight Ridder Inc.'s San Jose Mercury News, The Copley Press Inc.'s San Diego Union-Tribune and Freedom Communications Inc.'s Orange County Register, as well as The McClatchy Co.'s Bee newspapers in Sacramento, Fresno and Modesto. Also supporting the brief were the California Newspaper Publishers Association and the nonprofit free speech organization California First Amendment Coalition."

The BBC reports: Apple bloggers get press support

Bloggers Amicus brief. From EFF Deep Links: Bloggers Speak Up in Apple Case

The amici urged the court to adopt "a functional test for the newsgatherers' privilege that does not discriminate between reporters, regardless of the medium in which they publish." They ask the court to "adopt a test that will not impede journalists' use of the Internet to report news by limiting their constitutional protections when they publish there."

The amici are (in alphabetical order): Jack M. Balkin, The Center for Individual Freedom , Julian Dibbell, Feedster, Inc., The First Amendment Project, A. Michael Froomkin, Gawker Media, Inc., Gothamist, LLC,, Groklaw, Happy Mutants, LLC, Ben Hammersley, Joichi Ito, Joel Johnson, Kimberly A. Kralowec, LawMeme, Rebecca MacKinnon, Joshua Micah Marshall, The Media Bloggers Association, Markos Moulitsas, Reporters Without Borders, Glenn Harlan Reynolds , Peter Rojas, Jay Rosen, Scott Rosenberg, Doc Searls, Silicon Valley Watcher, Kevin Sites, Eugene Volokh

Farewell to the CD

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Mark Cuban: The countdown for the extinction of CDs is about to begin: "MP3 players are changing peoples listening habits. We don’t carry folders filled with CDs anymore. We carry our library in our MP3 players. We don’t listen to CDs. We listen to playlists that we adjust all the time. We don’t burn CDs anymore, it’s too time consuming. We copy all our music to our MP3 players so it’s all available at our fingertips."

Barry L. Ritholtz: The Big Picture: New Arguments Against P2P: The Phony Moral Debate: "a subtle shift is already underway. As we await the Supreme Court’s decision in the Grokster case, the industry -- or in this case, its apologists -- is positioning itself for a defeat on the merits. They want and need a fall back position, in the event the Supreme Court decides not to overturn the well settled law -- 'substantial non infringing use' -- of Sony BetaMax case."

Television and P2P

D. Branch Furtado, Television: Peer-To-Peer’s Next Challenger, 2005 Duke L. & Tech. Rev. 0007.
The entertainment industry has obsessed over the threat of peer-to-peer file sharing since the introduction of Napster in 1999. The sharing of television content may present a compelling case for fair use under the long-standing 'Betamax' decision. Some argue that television sharing is fundamentally different than the distribution of music or movies since television is often distributed for free over public airwaves. However, a determination of fair use is unlikely because of the fundamental differences between recording a program and downloading it, recent regulation to suppress unauthorized content distribution and shifts in the television market brought on by new technology.
Robert X. Cringely: There's No Show Like an Old Show: "There is an audience, however small, for just about every show ever made. What we need to do is to find a way to make the cost of keeping those shows available less than the benefit derived from people seeing them." News.com: Impatient TV viewers turn to BitTorrent: "According to a new report, the popularity in Australia of one peer-to-peer application--BitTorrent--is driven in part by local television networks that have adopted a strategy of being slow to air current episodes of popular TV shows."

Software Patents and multimedia

The great, open-source VideoLAN project is threatened by software patents: "VideoLAN is seriously threatened by software patents due to the numerous patented techniques it implements and uses. Also threatened are the many libraries and projects which VLC is built upon, like FFmpeg, and the other fellow Free And Open Source software multimedia players, which include MPlayer, xine, Freevo, MythTV, gstreamer."

More Grokster Miscellany

MGM v. Grokster oral arguments (SCotUS). Joe Gratz converted the transcript into text form.

In the NY Times, Hal Varian examines the evolution of the battle between copyright holders and new technologies: File-Sharing Is the Latest Battleground in the Clash of Technology and Copyright: "This is just the latest installment of a longstanding battle between technology companies and copyright holders. It is useful to look at the history of some of these past innovations in trying to understand what policies may be appropriate today."

At News.com, John Borland looks at the parallels between Grokster and the Induce Act introduced into the last Congress: Supreme Court mulls file-swap 'pushers': "Last week, the nation's top court heard arguments from the entertainment industry and file-swapping software companies in a landmark review of the legal status of peer-to-peer networks. In the course of that hearing, several of the justices appeared interested in finding a middle ground that would focus on companies that actively encouraged, or 'induced,' copyright infringement."

Public Knowledge: Gigi in the House — Reflections on Grokster Day: "PK President Gigi Sohn was inside the Supreme Court for the historic oral argument on the Grokster file-sharing case. Here are her thoughts on the events of the day, the argument and possible outcomes and consequences of a decision."

Mike Godwin: Grokster and other matters: Since it seems clear to me that the justices weren't completely satisfied by the answers to these questions, it wouldn't surprise me if the Court decided to hold the case over for reargument on "inducement." If that happens, remember you heard it here first.

In the Washington Post, Drew Clark discusses The Battle Between Tinseltown and Techville: "Creativity and innovation aren't qualities you'd ordinarily expect to be at war with one another. Both involve a type of inventiveness, a vision of something new, a stepping outside of mental boundaries. Yet in America's courts, the companies that rely most on creativity and innovation are at each other's throats."

The Supreme Court denied cert in Chamberlain Group Inc. v. Skylink Technologies Inc. Findlaw reports: High Court Refuses to Hear Garage Door-Opener Case: "A company that makes automated garage door opener systems has failed to persuade the U.S. Supreme Court to review a ruling that rejected its Digital Millennium Copyright Act claims against a competitor."

Blog, don't get fired

Two guides on how to avoid consequences at work from blogging:

EFF: How to Blog Safely (About Work or Anything Else): "Here we offer a few simple precautions to help you maintain control of your personal privacy so that you can express yourself without facing unjust retaliation. If followed correctly, these protections can save you from embarrassment or just plain weirdness in front of your friends and coworkers"

CNN/Career Builder: Avoid getting fired for blogging: "If you're thinking of starting a blog or already have one, here's some advice to make sure your online diary isn't reason for your employer to let you go"

Canadian Copyright and P2P

Michael Geist in First Monday: Piercing the peer–to–peer myths: An examination of the Canadian experience

Canada is in the midst of a contentious copyright reform with advocates for stronger copyright protection maintaining that the Internet has led to widespread infringement that has harmed the economic interests of Canadian artists. The Canadian Recording Industry Association (CRIA) has emerged as the leading proponent of copyright reform, claiming that peer–to–peer file sharing has led to billions in lost sales in Canada.

This article examines CRIA’s claims by conducting an analysis of industry figures. It concludes that loss claims have been greatly exaggerated and challenges the contention that recent sales declines are primarily attributable to file–sharing activities. Moreover, the article assesses the financial impact of declining sales on Canadian artists, concluding that revenue collected through a private copying levy system already adequately compensates Canadian artists for the private copying that occurs on peer–to–peer networks.

Visiting the Pirate's Lair

Henry Blodget visits DVD pirates in Shanghai: Visiting the Pirate's Lair:

The expats explained that buying real DVDs wasn't an option, especially for the Chinese, because real DVDs cost 10 times more and weren't even available. (The TV producer claimed she knew of a store that carried them, but the others disputed this.) Fake DVDs, moreover, often were real DVDs: The same factories that produced and shipped real ones during the day produced and shipped fake ones at night.

This, of course, reveals one of the two fallacies in the media industry's assertion that file-sharing and DVD piracy are the same as 'stealing': Some of the supposed damages from 'lost sales' would never have been sales in the first place. The other fallacy is that the 'theft' of digital property is the same as the theft of physical property—which it isn't. When someone steals a physical product—a car, say, or a DVD from the shelves of Blockbuster—the owner has lost more than a potential sale; he or she has lost inventory. When someone buys a copy of a digital product, however, for which the owner of the copyright has paid nothing, the owner has lost only a potential sale. This doesn't make file-sharing or DVD piracy OK—there must be some way for producers and packagers to get paid—but it does explain, in part, why millions of people who would never shoplift are so eager to collect pirated DVDs.

Patentability of Crustless Sandwich

atently-O reports: Federal Circuit to Decide Patentability of Crustless Sandwich: "On April 6 at 2:00 pm, Judges Clevenger, Gajarsa & Prost will hear in re Kretchman (Case No. 04–1448) that involves peanut butter and jelly sandwich technology.  Smuckers has already received one patent on its highly profitable ‘Uncrustables,’ and is now appealing a patent office rejection of a second, broader set of claims."

Previous sandwich-related posts: The Earl of Sandwich would be proud (sandwich market research) and Is phone food too slow?

Common law copyright in NY

Second Circuit Court of Appeals (Jun. 2004): Capitol Records v. Naxos

This appeal concerns issues of common law copyright under New York law. The allegedly infringing works are restorations of sound recordings of important classical performances originally recorded in England in the 1930s. Plaintiff-Appellant Capitol Records, Inc. (“Capitol”) appeals from the judgment of the District Court for the Southern District of New York (Robert W. Sweet, District Judge) dismissing its suit against Defendant-Appellee Naxos of America, Inc. (“Naxos”). We conclude that the appeal raises unsettled issues of state law that are appropriate for certification to the New York Court of Appeals.…

What may well be the dispositive issue in this case--whether a common law copyright under New York law expires when the work enters the public domain in the country of origin--has never been decided by any New York court, as far as our research discloses. The lack of a state law answer to what may prove to be a determinative question, as well as the absence of any indication of how New York would answer this question, weigh in favor of certification.…

We will therefore certify the following question: “In view of the District Court’s assessment of the undisputed facts, but without regard to the issue of abandonment, is Naxos entitled to defeat Capitol’s claim for infringement of common law copyrights in the original recordings?" This overall question subsumes the following sub-questions: (1) "Does the expiration of the term of a copyright in the country of origin terminate a common law copyright in New York?" (2) "Does a cause of action for common law copyright infringement include some or all of the elements of unfair competition?" (3) "Is a claim of common law copyright infringement defeated by a defendant’s showing that the plaintiff’s work has slight if any current market and that the defendant’s work, although using components of the plaintiff’s work, is fairly to be regarded as a 'new product'?"

The New York Court of Appeals issued a ruling today answering those questions under NY law: Capitol Records v. Naxos:

Neither federal statutory nor constitutional law prohibits the states from providing common-law protection to artistic works that are in the public domain in the counrty of origin.… Until 2067, no federal or state statutory impediment constricts this common-law durational component for pre-1972 sound recordings.

Causes for action for copyright infringement and unfair competition are not synonymous under New York law.

Thus, even assuming that Naxos has created a "new product" due to its remastering efforts that enhance sound quality,11 that product can be deemed to infringe on Capitol's copyright to the extent that it utilizes the original elements of the protected performances.

Annotated decision: Capitol Records v. Naxos wiki

NY Law Journal: N.Y. High Court Expands Copyright Protection for Recordings: "With Tuesday's decision, New York apparently stands alone in its common law protection of the intellectual property rights of composing artists. In a 36-page ruling written by Judge Victoria A. Graffeo, the court said the common law rights of performances, as opposed to published compositions, remain intact forever in New York. Practically speaking, though, federal law will pre-empt New York common law on Feb. 15, 2067."

Ernest Miller: New York - Common Law Copyright Protects 50-Year Old Sound Recording

AP: Court Rules Common Law Protects Recordings: "New York's highest court ruled Tuesday that common law protects a record company's copyright on recordings made prior to 1972 - a decision that could have industrywide ramifications for everything from Bach to the Beatles."

Scrivener's Error: Diamonds May Not Be Forever, But the Recordings Are!???: "What troubles me more about Naxos is that it grasps one lacuna as evidence of positive intent, but refuses to grasp a directly relevant lacuna at all."

(via How Appealing)

-sucks dot com

"The noncommercial use of a trademark as the domain name of a website — the subject of which is consumer commentary about the products and services represented by the mark — does not constitute infringement under the Lanham Act." Bosley Medical Institute v. Kremer (9th Cir., Apr. 4, 2005).

See also: Noncommercial use of BOSLEY MEDICAL trademark as domain name does not constitute infringement:

In a decision released April 4, 2005, the Ninth Circuit has affirmed the district court's determination in Bosley Medical Institute, Inc. v. Kremer that the registration by defendant of the domain name bosleymedical.com did not constitute infringement of plaintiff's BOSLEY MEDICAL trademark. The court remanded the matter for further proceedings, however, on plaintiff's Anticybersquatting Consumer Protection Act (ACPA) claim, as the district court improperly required a showing of commercial use of the domain name as necessary to sustain an anticybersquatting claim.

Eric Goldman: Bosley Medical Institute v. Kremer--Victory for Gripers

Many courts have upheld gripers’ rights so long as do not use TM.com, so this case could be a turning point for letting gripers pick a domain name of choice. The court disagreed with the PETA v. Doughney case on the argument that registering TM.com blocks customers of the TM owner from obtaining the TM owner’s goods, because in this case the bosleymedical.com site was, indeed, about Bosley Medical. The court limits the doctrine to situations where the domain name registrant offers competing services.

Conference blogging

Very meta, no content


The Grokster podcast has been downloaded more than 300 times, which is at least 250 more than I expected. The real question is: how many people listened through to the end? Now I suppose I need to find a topic for a second podcast...

In lieu of actually finishing the posts I started working on today, enjoy April Fool's around the web.