Alito on Copyright and More

William Patry discusses Judge Alito’s decision in one copyright case and thinks that it bodes well: Judge Alito and Copyright

Copyright lawyers should cheer the appointment of Judge Samuel Alito to the Supreme Court. In 2004, Judge Alito was the author of the en banc opinion in Southco, Inc. v. Kanebridge Corp., 390 F.3d 276. He was also the author of a panel opinion in the same case three years earlier, 258 F.3d 148. Both opinions are thoughtful looks at basic questions of originality.

Laura Quilter looks at Judge Alito’s record on copyright, First Amendment and internet law cases: Alito on Copyright, First Amendment, Cyberlaw:

I haven’t found much in the 3rd Circuit case law that suggests Alito has dealt with a lot of the most pressing copyright questions or the constitutional copyright questions, beyond originality. He has been good on originality, and in general he appears to be careful and thoughtful about copyright.

C.E. Petit is “not entirely displeased” with the Alito nomination, but thinks the Court could use a justice versed in the scientific method: Scrivener’s Error: Just a Short Note:

What really bothers me, though, is that there hasn’t been a scientist on the Court in a looooooooooong time. The closest we’ve come has been Justice Blackmun, and that’s far from satisfactory. Instead, we have something much closer to Paul V trying to determine whether the Earth really did move after condemning to Galileo.1 Some of the greatest errors in administrative law (and, to a lesser extent, in intellectual property law) have come because the Justices, their clerks, and the lawyers arguing before them had not internalized the scientific method… and thereby missed significant policy implications.

Copyright may be one of the more interesting, but in all likelihood not the most important issue on which the next Supreme Court justice will rule. Scotusblog (not surprisingly) offers a solid roundup of reactions from bloggers and interesst groups: Blog Coverage of the Alito Nomination

Filtering blogs

Wired News reports on companies that are using filtering software to prevent access to blog sites: No Longer Safe for Work: Blogs:

Robert Mason (not his real name) would love to spend a few minutes during lunch catching up on blog posts from around the web, but his company doesn’t allow it. The financial institution where Mason works as a vice president has security filters set up to block access to — among other things — any website that contains the phrase ‘blog’ in the URL.

It can be dangerous to let employees access to a type of technology that can connect those employees with frequently-updated sources of information about work-related topics, right?

How a faux French band wound up in federal court

Dan Crane, who played guitar as “Jean-Luc Retard” in the band Les Sans Culottes recounts the fun of federal trademark litigation over the band name in Slate: Nom de Guerre – How my faux French band wound up in federal court.: “On June 20, 2005, my faux French band Les Sans Culottes showed up for our strangest gig to date: an appearance in federal court.”
This is why intra-band operating agreements are a good idea.

Beware of the Loose Seal

The NY Times reports: Protecting the Presidential Seal. No Joke.: “You might have thought that the White House had enough on its plate late last month, what with its search for a new Supreme Court nominee, the continuing war in Iraq and the C.I.A. leak investigation. But it found time to add another item to its agenda – stopping The Onion, the satirical newspaper, from using the presidential seal.”
See 18 U.S.C. §713: Use of likenesses of the great seal of the United States, the seals of the President and Vice President, the seal of the United States Senate, the seal of the United States House of Representatives, and the seal of the United States Congress

Sports and Old Media

After a season lost to labor problems, the NHL is back playing hockey, but with significant changes in the game and the business. New rules are resulting in more penalties. The new collective bargaining agreement has teams and players concerned with salary caps. OLN, the league’s new cablecast partner, has lower ratings than ESPN.
The OLN cablecasts are probably an improvement over the ESPN versions, because the top OLN broadcast team, Mike Emrick and John Davidson (who will also call the NBC broadcasts), are much better than ESPN’s woefully mediocre top pairing of Gary Thorne and Bill Clement. Adding Davidson to the booth for ABC broadcasts did somewhat ameliorate the awfulness of the Thorne and Clement pairing.
Best known for covering the Tour De France cycling and World Cup skiing, OLN picked up the hockey contract as a way to become a competitor to ESPN and Fox Sports. And even though I’d love a sports channel of just hockey and alpine skiing, OLN needs more programming to fill its schedule, which leads to fun moments like this one described by columnist John Buccigross: Observations from my hockey night:

During last Monday night’s Sabres-Penguins game on cable station OLN , I heard Mike Emrick read an OLN promo for Ted Nugent’s meat-seeking reality hunting show. At one point, while reading the ‘Ted or Alive’ promo, Emrick said, ‘And at some point, Uncle Teddy will bite the head off a wild boar while killing an elk with nothing but a fishing hook.’ Or something close to that. It was truly a seminal television moment.
While Emrick read the promo, you could hear in his voice, ‘I can’t believe I am actually reading a promo for a Ted Nugent animal shooting-spree television show.’ It was priceless.

Not many viewers had the opportunity to watch that gem. OLN only reaches about 65 million homes, which is about 25 million fewer than ESPN and ESPN2. Cablevision and Dish Network subscribers who receive OLN were not able to watch the hockey game. Richard Sandomir in the New York Times reports: Now You Almost See Hockey. Now You Don’t.

If you’re a Cablevision or a DISH Network satellite subscriber who looked forward to watching National Hockey League games on OLN, you’ve fallen victim to an anti-fan policy that boggles the mind.
The games you’ve expected to see since last Monday have been replaced by other programs on OLN – which, until making its deal with the N.H.L., was known largely for carrying the Tour de France – because its parent company, Comcast, wants to boost the number of its own subscribers.

Despite the expectation that they will experience a mediocre season, OLN featured the New York Rangers in its opening day cablecast and will feature the Rangers 7 more times throughout the season. Cablevision happens to own the New York Rangers. The result of this situation is that Cablevision subscribers to OLN were not able to watch the Rangers opening game at all.
Rangers blog Hockeybird explains: Disgraceful

Cablevision (which also owns the Rangers and the MSG network), does not carry OLN on its basic tier. In order to get OLN, Cablevision subscribers need to pay about $5 dollars extra per month for an additional “sports tier”, which would give them OLN, along with several other channels, including the Golf Channel and Fox College Sports.
HOWEVER…….OLN feels it should be carried as a basic tier network as it is in most areas of the country, and is not permitting its coverage of NHL games to be shown on Cablevision, EVEN IF THE SUBSCRIBER PAYS EXTRA FOR THE NETWORK. The National Hockey League is fully aware of this situation, and is permitting OLN to engage in this practice.

Most of these Cablevision subscribers have no other choice for cable television, since municipalities generally grant a monopoly franchise to one cable operator. The major cable operators all belong to media conglomerates. Cablevision owns the Madison Square Garden, the Rangers, the Knicks and the MSG and Fox Sports NY networks. Comcast owns OLN among other cable channels. Time Warner Cable is part of the Time Warner mothership. In the lack of an open market for cable channels, where customers can choose which networks to subscribe to, the cable providers compete with various bundles.
Sports programming attracts fans who want access to every game, so holding sports programming hostage is a common tactic of competition in cable television. This summer, Time Warner subscribers were unable to watch Mets games on MSG and FSNY while Cablevision and Time Warner negotiated for licensing fees.
This pseudo monoply power restricts access not just to cable television programming, but is contributing to stagnation in the market for home broadband. See, Free American broadband!

Most Japanese consumers can get an Internet connection that’s 16 times faster than the typical American DSL line for a mere $22 per month.
Across the globe, it’s the same story. In France, DSL service that is 10 times faster than the typical United States connection; 100 TV channels and unlimited telephone service cost only $38 per month. In South Korea, super-fast connections are common for less than $30 per month. Places as diverse as Finland, Canada and Hong Kong all have much faster Internet connections at a lower cost than what is available here. In fact, since 2001, the U.S. has slipped from fourth to 16th in the world in broadband use per capita.

Because of the same monopoly power granted to incumbent telephone and cable operators and in the absence of a national broadband policy, cable and DSL providers have few reasons to offer services at rates (of both speed and price) comparable to those available overseas.

Publishers Sue Google, Too

Following on the heels of authors, The Association of American Publishers is suing Google:

The Association of American Publishers (AAP) today announced the filing of a lawsuit against Google over its plans to digitally copy and distribute copyrighted works without permission of the copyright owners.  The lawsuit was filed only after lengthy discussions broke down between AAP and Google’s top management regarding the copyright infringement implications of the Google Print Library Project.
The suit, which seeks a declaration by the court that Google commits infringement when it scans entire books covered by copyright and a court order preventing it from doing so without permission of the copyright owner, was filed on behalf of five major publisher members of AAP: The McGraw-Hill Companies, Pearson Education, Penguin Group (USA), Simon & Schuster and John Wiley & Sons.

Citing to the Blogosphere

The newest (18th) edition of the Bluebook features a new rule for citing to blog posts:

Posting to blogs take one of two formats. If there is only one poster to the blog, cite as a Web page, but include the date and time-stamp to indicate the specific posting cited. If there are multiple posters on the blog, cite as a posting to a discussion forum. In both cases, indicate the title of the blog before the URL:
single poster – How Appealing, (Sept. 1, 2004, 21:20 EST).
multiple posters – Posting of Lyle Denniston to SCOTUSblog, (Sept. 28, 2004, 13:26 EST).

Instead of taking advantage of permalinks and post titles, this citation format makes it more complicated and difficult to find a cited resource.
Anthony Rickey notes that the Yale Law Journal’s new website, The Pocket Part, suggests that authors disregard the Bluebook suggested form for citing to blogs and use a citation format that makes sense: Bluebook Followup: Do As We Say, Not As We Do: “Nice to see one of the Gang of Four deciding that the rules on blog citation don’t make sense.”
One argument (made in a comment to Rickey) is that the Pocket Part is a “web site,” not a “blog.” Why are the rules for citation different? How are authors supposed to to evaluate whether an internet resource is a “web site” or a “blog?”
The Bluebook rule actually makes some amount of sense for an internet resource that has no more precise way to point to a specific page. But why not cite the author’s name in a single author blog? What is to be done with blogs that use only category-based archiving, rather than date-based archiving?

Tragedy of the digital commons

The internet is a network of networks, decentralized and generally unregulated– a digital commons. Is the internet suffering a tragedy of the commons?
Wikipedia has a concise summary of the evolution of the spam problem on the net: Spam. First, Usenet fell to the assault of spam. Then, e-mail. Now, the web is under assault.
Matt Haughey noticed how spammers are abusing Google’s Blogspot service: When it rains, it pours:

It looks like one monster spam blogger has unleashed a boatload of new blogspot blogs, always in the form of keyword-(random number) (like They suck in RSS feeds from blogs like mine and boingboing and others, then insert random phrases into the copy, with a link to their own sites using phrases they want to game google with

Mark Cuban: The Shit hit the fan today: “The blogosphere was hit by a splogbomb. Someone did the inevitable and wrote a script that created blog after blog and post after post.”
Are all open digital communities subject to the spam dilemma? How do we bar unproductive uses of the digital commons without raising the barrier to entry and blocking other voices?
The internet revolutionizes communications, making it possible for anyone to reach a global audience. That has a downside.