August 2006 Archives

In her typically thoughtful column in Wired, Jennifer Granick makes a surprisingly inaccurate statement: "I had just read an article in The New York Times reporting that the Recording Industry Association of America was threatening to sue websites that publish guitar music tablature, or tabs, alleging copyright infringement." What's Next, Ramen Noodles?

It's not the RIAA that is threatening to sue guitar tab web sites. It's the NMPA, the National Music Publishers Association. Granick is not the first writer to make this error-- and it's not entirely inaccurate. There is definitely a large overlap between the NMPA and RIAA constituencies, especially because of consolidation. For example, Warner Music Group is the parent company of music publisher Warner Chapell and the Warner Brothers, Atlantic and Elektra music labels.

The RIAA is not force behind all anti-sharing actions concerning the internet. Only those concerning recorded music. Traditionally, the record labels and publishers are at odds with each other, since each are competing for slices of the music revenue pie.

NY Times: Now the Music Industry Wants Guitarists to Stop Sharing: "In the last few months, trade groups representing music publishers have used the threat of copyright lawsuits to shut down guitar tablature sites, where users exchange tips on how to play songs like “Knockin’ on Heaven’s Door,” “Highway to Hell” and thousands of others."

This all sounds very familiar. Joe Gratz (before leaving on a triparoundtheworld) dug up this Times article from 1996: Tablature Erasa: Guitar Archive Closed by Lawyers: "The University of Nevada at Las Vegas permanently pulled the plug on the central OLGA site on April 25, after suspending it in early February to review assertions by EMI Music Publishing that some of the tablatures electronically available there were an unlicensed usage of the company's songs."

Most guitar tabs are cheat sheets that let musicians know what chord changes form the underlying basis for a song. Sometimes the tabs include graphical instructions on how to play certain melodies on the guitar (but not actual notation.) Tab is incredibly frustrating to read if you know how to read music, because it is an awful medium for conveying rhythm. It is, however, an eminently useful medium for learning guitarists, as it provides more direction on how to play the song than sheet music alone.

Whereas sheet music contains precise notations of the melody of a piece of music, guitar tab contains either a bare sketch of the underlying chord changes or directions on what notes constitute the melody. It is generally possible to play a song based on the sheet music. It is incredibly difficult to recreate the song from even the most detailed guitar tab without listening to a recording of that song.

Guitar tab sites provide a way for community members to help each other figure out how to play songs. They are similar to fake books and the Real Book, which jazz musicians use to learn the standards. (The original Real Book circulated from Berklee College of Music in the 1970s and a licensed version was first released by Hal Leonard last year.) Penn State's Barry Kernfeld writes about Pop Song Piracy, Fake Books, and a Pre-History of Sampling.

Even though guitar tab sites offer reconstructions of songs, rather than copies, guitar tab generally does substitute for sheet music. While not a perfect substitute, for most rock and pop musicians, unlicensed tab is an acceptable substitute for sheet music.

Do guitar tab sites recast the original songs in a new light by simplifying the songs to their barest essence? Are tabs transformative?

Answer: B. Copyright Infringement

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And here I thought I was forever done with anything involving the bar exam. But, the National Conference of Bar Examiners won a copyright case against bar exam prep company PMBR: National Conference of Bar Examiners v. Multistate Legal Studies, Inc., 04-03282-JF (PAED Aug. 22, 2006).

The NCBE administers a little exam twice a year called the MBE. Perhaps you've heard of it? That's right, it is part of the bar exam throughout the US. It is a 200 question multiple choice exam administered over 6 hours in one day.

Each question comprises a brief fact pattern, a lead-in asking the test-taker about a particular legal issue, and four answer choices. Drafting these questions is a lengthy process for which NCBE retains panels of professors, judges, and practitioners. Each MBE contains approximately 60 questions from earlier tests to provide a basis for comparing the performance of applicants on one MBE with that of previous groups. Using these data, plaintiff corrects for variations in the degree of difficulty of the examination when computing individual scores. Questions may appear on several MBEs before being retired.

The bar examiners work diligently to make sure that the MBE is a secure exam. The NCBE requires that proctors read a long warning before the test is administered reminding test takers that the MBE is a "secure exam" and that copying any questions or discussing the content of the exam is a copyright infringement.

PMBR is a company that prepares students for the MBE. It offers 3 and 7 day classes where students show up to learn the law and test-taking skills necessary to do well on the MBE from a videotaped version of PMBR's founder Robert Feinberg. PMBR also sells review books and lectures on CD. In order to best prepare his students for the exam, Feinberg attempted to create practice exams that would be very similar to the actual MBE. So, PMBR needs to be sure that its practice tests are similar enough to the real MBE to be useful study materials. The company's founders have taken a larger number of bar exams than usual.

Given that these individuals are highly paid to prepare students to take (and presumably to pass) the bar exam, their failure rate is strikingly high. Mr. Feinberg, for example, failed five consecutive bar examinations in Alaska before barely passing in February 2004. Once an applicant passes the bar in a given jurisdiction, he may not take it there again. Perhaps even more startling, Ms. Zimmerman twice failed the Kentucky Bar Examination despite passing the essay portion, because her scores on the MBE were so low. Her testimony that she failed because the MBE “is quite a difficult examination” speaks poorly of either her professional qualifications or her credibility as a witness.

In prior orders, the court upheld the validity of the NCBE's copyright. As such, to establish copyright infringement, the defendant must have actually copied from the plaintiff's copyrighted works.

Plaintiff has proven copying both with direct evidence and by demonstrating that there is substantial similarity between the MBE and PMBE questions.

This is the rare case in which there is direct evidence that defendants copied plaintiff’s work. Mr. Feinberg and other PMBR employees regularly write down information about the fact patterns, prompts, and answer choices appearing on MBE examinations that they have taken. Mr. Feinberg admitted that he uses these notes when writing PMBE questions. In order to facilitate this process, PMBR employees sought out the only jurisdiction that allowed test-takers to use scratch paper, taking (and in all but one case failing) the Alaska Bar Exam eight times from 2001 through 2003. In February 2003, Mr. Feinberg was caught leaving the examination room with his scratch paper. In addition, PMBR advertisements brag about how close its
questions are to those on the actual MBE, and Mr. Feinberg has made similar statements. Finally, many PMBE questions reproduce MBE questions nearly verbatim, and others contain trivial variations that suggest awareness of copying.1

The court goes on to cite examples of the substantial similarity between NCBE questions and PMBR questions.

Does copyright prohibit test prep services from creating their own questions that are similar enough to the actual exam to be useful?

This sentence from the court's calculation of damages serves as an interesting aside for those of us who took the July 2005 bar exam: "The July 2005 MBE had to be reprinted at a cost of $59,000 because defendants’ copyright infringement had compromised the initial version."

(via How Appealing)

More:
Concurring Opinions: Copyright and Bar Exam Questions: "The court concluded that many of the questions in PMBR's materials are similar to those on the Multistate Bar Exam."

Frank Pasquale, madisonian.net: The Trouble With Copyrighting Test Questions (and Test Prep Materials): "I hope to criticize the doctrine it’s based on at some point this week. But I’d like first to look at how the exclusionary nature of ‘copy rights’ creates unique problems in the test setting."

7th Circuit Adds RSS Feeds

The 7th Circuit is the first Federal circuit court to publish its own RSS feed of decisions and oral argument (as a podcast): Access As Easy As Tuning In: "The next time you see someone pop on the headphones and get that faraway look in his or her eyes, don't be so sure it's a tune that's beguiling them. It just may be the latest oral arguments from the Seventh Circuit. The circuit is the first federal court of appeals to make RSS feeds of opinions and audio recordings of oral arguments available from its Web site (www.ca7.uscourts.gov/ca7_rss.htm)."

(Via beSpacific.)

Miscellaneous miscellany

Nexus: How are Blogs Affecting the Legal World?

Dahlia Lithwick, Slate: "Private I's? Should the law protect us from kiss-and-tell bloggers?: "

Ken Adams: Who Owns the Copyright?: "Under U.S. law, who owns the copyright in a contract that a law firm drafts for its client?"

SJ Mercury News: Mercury News wins federal copyright lawsuit against photographer: "The photographer, Christopher Harris, sued the newspaper in 2004, alleging copyright infringement over its use of a photograph from the book ``The Life You Save May Be Your Own: An American Pilgrimage'' by Paul Elie. The photograph was of Walker Percy, one of four 20th-century writers profiled in the book."

NY Times: Apple Gets French Support in Music Compatibility Case: "The French constitutional council, the country’s highest judicial body, has declared major aspects of the so-called iPod law unconstitutional, undermining some controversial aspects of the legislation."

Search the AOL Search Database.

New York Times: A Face Is Exposed for AOL Searcher No. 4417749: "The detailed records of searches conducted by Ms. Arnold and 657,000 other Americans, copies of which continue to circulate online, underscore how much people unintentionally reveal about themselves when they use search engines — and how risky it can be for companies like AOL, Google and Yahoo to compile such data."

Orin Kerr: How to Read a Judicial Opinion: A Guide for New Law Students

Georgetown Law Faculty Blog: Google Scholar trademark case ends: "The case was quietly settled out of court in Washington, D.C., earlier this month, with Google and ACS submitting a joint two-page document that says each side will pay its own attorney fees."

Frank Ahrens, Washington Post: So Google Is No Brand X, but What Is 'Genericide'?: "Last month, we noted that 'google' had entered Merriam-Webster's Collegiate Dictionary. It was a landmark for the search engine -- going from nonentity to common usage in only eight years. One would think that a company that existed only in the minds of two college dudes a few years ago would be happy that a major publication such as The Washington Post prominently marked the occasion. One would, that is, until one got a letter from Google's trademark lawyer."

Stephen Nipper: Trademark tips for your web app: "Choosing a good name for your web app is one of the most important things to get right. But without an understanding of the way that trademark regulations work, you could fall at the first hurdle."

Entertainment miscellany

Links presented without comment:

Wall Street Journal: Moguls of New Media: "As videos, blogs and Web pages created by amateurs remake the entertainment landscape, unknown directors, writers and producers are being catapulted into positions of enormous influence."

Jeff Pulver: Jeff's Quick Guide to TV on the Net (TV/IP): "During the past twelve months, as the momentum for Broadband TV has snowballed, an increasing number of media companies have decided to take their content and make it available for viewing on the Internet. In some cases, the content offered is "re-runs" of prime time content, in other cases the Internet is being used to channel "vintage" programming (re-runs of old programs) and there is an increasing number of cases in which new content is being developed by media companies for just the broadband Internet."

Paul Boutin, Slate: The myth of the living-room PC. By : "Computer makers have been trying to find space next to the couch for years, but so far all of these attacks have been repulsed."

New York Times: Internet Is Seizing the Spotlight in the Live-Music Business

The Hollywood Reporter, Esq.: Audioslave's Cornell Claims Negligence Against Attorney, Accountant: "Audioslave frontman Chris Cornell has filed suit in Seattle against his former divorce lawyer and accountant, claiming they negligently allowed his ex-wife to co-own his musical works rather than simply have the right to half of the royalties."

Ray Beckerman, How the RIAA Litigation Process Works

The Future of Music Coalition will hold its: 2006 Policy Summit 2006 on October 5-7 in Montreal.

Coolfer: Hawthorne Heights Sues Victory Records: "In March of this year Victory Records was chest-thumping all the way to a a #3 and controversial debut on the album chart with Hawthorne Heights' album If Only You Were Lonely. Now, as reported by Billboard.com, Hawthorne Heights has sued Victory Records and label head Tony Brummel, claiming Brummel and Victory of 'taking advantage' of the band and 'severely damaging the band's reputation and relationship with its fans.'" (Complaint)

Awwwww. Thanks Andrew,

Though I'm not sure if that's sweet or sad. Surely you must know more people than you let on.

But Andrew is right - I do loves my blogs. And since he's left it up to me to introduce myself, I'll tell you about some of my other loves...

I like artsy things:

lichtenlove.jpg

And furry things:

alpacalove2.jpg

And shooting things:

targetpractice.jpg

I'm currently spending some time south of the Mason-Dixon, thinking about copyright maybe a little too much. But I'll save that for another post.

Telecom and tech regulation reading

BusinessWeek: The Phone Companies Still Don't Get It: " Welcome to Telco Land, a strange country where the biggest players talk more and more about innovation yet approach new ideas with baby steps, build little themselves, and when they think about technology are apt to believe it's a threat they have to fight."

Timothy B. Lee in the New York Times: Entangling the Web: "It’s tempting to believe that government regulation of the Internet would be more consumer-friendly; history and economics suggest otherwise. The reason is simple: a regulated industry has a far larger stake in regulatory decisions than any other group in society. As a result, regulated companies spend lavishly on lobbyists and lawyers and, over time, turn the regulatory process to their advantage."

LA Times: Weighing High-Tech Bills in Analog - Los Angeles Times: "Almost daily when Congress is in session, lawmakers are struggling to comprehend new technology and the government's role in shaping its future. In the biggest spurt of legislative activity since the dot-com boom, advocacy groups and businesses are seeking new laws to shape the fast-evolving digital landscape.… The task is all the more difficult because few in Congress understand what those engineers in Silicon Valley actually do."

Google and Fair Use

News.com's Declan McCullogh looks at the copyright suits where Google is a defendant: Copyright tussles for Google: "As Google becomes more deeply interested in books and video, and expands its search domain beyond Web pages, it has found itself increasingly at odds with established copyright industries including book publishers, journalists, and professional photographers."

Frank Pasquale, Madisonian: Would Google Go Out of Business Without Fair Use?: "I've also thought that the worst outcome in these cases would be Google's decision to use its massive cash reserves to settle all the cases. For that would help set a precedent that might seal its (and perhaps a few other high-market-capped search engines) dominance over the field. Who else would have the cash reserves to compete in the search engine market, given the huge barriers to entry created by licensing fees?"

William McGeveran, Info/Law: Google, Fair Use, and Settlement: "So, not only would settlements lock in Google as the super-dominant player as Pasquale says (and as many techies have begun to fear anyway), it also would short-circuit the movement of the law to a reasonable accommodation of search technology. To be sure, that movement is slow, indirect, and sometimes fumbling, but it is happening."

McGeveran goes on to discuss the analogy of academic fair uses settlements between publishers and universities. The end result being that the actual practices of fair use are constrained to a much smaller set of actions that the law proscribes.

Previously: Thoughts on Fair Use

Program Notes

As I will be on the internets less than usual next week, I've asked Caitlin to come by and be a guest blogger. I'll let her introduce herself, but will note that she is the most blog-savvy person I know who does not blog. Her take on some of these issues may diverge from mine. We'll see.

On another note, I can't express just how thrilled I am to be getting on a plane today after hearing this morning's news from London.

In C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, the US District Court for the Eastern Dist. of Missouri ruled that baseball statistics connected with players' names are facts that can not be protected by copyright or the right of publicity. The court dismissed MLB Advanced Media and the MLB Players' Association motions for summary judgment and granted CBC's request for a declaratory judgment.

1. Right of publicity
The court finds that players do not have a marketable and protectable interest in their playing statistics and that linking a player's name with his statistics does not violate the right of publicity:

Unlike cases where the commercial advantage element of the right of publicity has been found, there is nothing about CBC’s fantasy games which suggests that any Major League baseball player
is associated with CBC’s games or that any player endorses or sponsors the games in any way. The use of names and playing records of Major League baseball players in CBC’s games, moreover, is not intended to attract customers away from any other fantasy game provider because all fantasy game providers necessarily use names and playing records. Indeed, there is no evidence to create a triable
issue as to whether CBC intended to create an impression that Major League baseball players are associated with its fantasy baseball games or as to whether a reasonable person would be under the impression that the baseball players are associated with CBC’s fantasy games any more than the players are associated with a newspaper boxscore. As such, there is no triable issue of fact as to whether CBC uses Major League baseball players’ names in its fantasy baseball games with the intent of obtaining a commercial advantage.

The court distinguishes this case from Palmer v. Schonhorn Enterprises, Inc., 232 A.2d 458 (N.J. Super. 1967), where a fantasy Golf board game used photos of the players. That involved appropriation of a likeness. While the Tony Twist and Here's Johnny cases were based on the defendants' use of key elements of an individual's public persona and likeness, fantasy baseball relies on fact-based statistics, not any individual's likeness.

CBC’s mere use of Major League baseball players’ names in conjunction with their playing records does not establish a violation of the players’ right of publicity. CBC’s use of the baseball players’ names and playing records in the circumstances of this case, moreover, does not involve the character, personality, reputation, or physical appearance of the players; it simply involves historical facts about the baseball players such as their batting averages, home runs, doubles, triples, etc. CBC’s use of players’ names in conjunction with their playing records, therefore, does not involve the persona or identity of any player. Indeed, under the facts of this case there is no triable issue as to whether the persona or identity element of the right of publicity is present.

The court finds that the policy considerations underlying right of publicity law do not preclude these use of statistics:

the policy considerations are aimed at preventing harmful or excessive commercial use of one’s celebrity in a manner which could dilute the value of a person’s identity However, CBC’s use of Major League baseball players’ names and playing records in fantasy
baseball games does not go to the heart of the players’ ability to earn a living as baseball players; the baseball players earn a living playing baseball and endorsing products; they do not earn a living by the publication of their playing records.

Publishing a fantasy baseball game is protected speech under the First Amendment.

Courts have found that First Amendment freedom of expression is applicable in cases where the subject matter at issue involved factual data and historical facts. The names and playing records of the baseball players as used by CBC are, in fact, “bits of baseball history” which educate the public about baseball. Most importantly, the statistical information about Major League baseball players, including their hits, runs, doubles, etc., which CBC disseminates, represents historical facts about baseball players.

The fact that the social commentary is humorous, rather than serious, does not preclude First Amendment protection.

In the context of the matter under consideration, CBC communicates information about Major League baseball players; CBC does not use players’ names and playing records for the purpose of advertising a product or services. As such, the court finds that CBC’s use of the players’ names and playing records is not commercial speech.

Also, it is significant in the matter before this court that if the players’ right of publicity were to prevail over CBC’s First Amendment right of freedom of expression, CBC’s First Amendment right of freedom of expression would be totally extinguished; CBC would be unable to create and operate its fantasy games as the games cannot operate without the players’ names and playing records. To the extent that Advanced Media and the Players’ Association contend that they do not object to the use of players’ playing records but rather only to their names, such use by CBC is not realistic; the records mean nothing without the names. For example, it would be meaningless and useless to its game participants for CBC to report that there were five home runs or ten singles in a baseball game without identifying the players who hit the home runs or singles. As such, CBC would be out of business if it were precluded from using in its fantasy games either players’ names or their names in conjunction with their playing records.

After balancing the interests at issue regarding CBC’s First Amendment right to freedom of expression and those involved in the players’ claimed right of publicity the court finds, in the circumstances of this case, that CBC’s First Amendment right to freedom of expression prevails over the players’ claimed right of publicity; none of the justifications for the right of publicity compel a finding that the First Amendment should not trump the right of publicity. See Cardtoons, 95 F.3d at 972-76; Gionfriddo, 94 Cal. App.4th at 410. The
policy considerations and interests at risk upon restricting CBC’s First Amendment right to freedom of expression outweigh the policy considerations and interests at risk in the players’ claimed right of publicity.

2. Copyright
Relying on National Basketball Ass’n v. Motorola, 105 F.3d 841 (2d Cir. 1997), the court finds that the scores and statistics resulting from a baseball game can not be protected by copyright.

This court has found above that the names and playing records of Major League Baseball players in the context of CBC’s fantasy games are factual information which is otherwise available in the public domain

Indeed, CBC’s fantasy games rely upon “only facts” which result from the playing of baseball games, “not the expression or description of the game.”

3. Contract

The court, therefore, finds that in the circumstances of this case “the strong federal policy
favoring the full and free use of ideas in the public domain” as manifested in the laws of intellectual
property prevails over the challenged contractual provisions in the 2002 Agreement.

Perestroika by Piracy?

The New York Times reports on Chinese groups distributing subtitled versions of Western shows in China, by piracy: Chinese Tech Buffs Slake Thirst for U.S. TV Shows: "What is most remarkable about the effort, which involves dozens of people working in teams all over China, is that it is entirely voluntary. Mr. Ding’s group, which goes by the name Fengruan, is locked in fierce competition with a handful of similar outfits that share the same ambition: making American popular culture available in near-real time free to Chinese audiences, dodging Chinese censors and American copyright lawyers."

Can widespread piracy of copyrighted western works in China be a force for democracy?

In Salon today, Farhad Manjoo applies Chris Anderson's "Long Tail" theory to news: Chasing tail. While Anderson's book is concerned only with the business implications that come from the ability to sell lots of niche products, Manjoo considers the web's ability to connect citizens with niche newspapers, magazines and partisan blogs to be part of the same phenomenon.

Unlimited choice and easy access shake the world in unpredictable ways, causing people to splinter along the lines of niches they enjoy, and sometimes to lose touch with the world beyond. Today it's possible to stop reading newspapers and instead get all your news from the Fox News channel -- indeed, this is something many millions have done.… To put it another way, I worry about the filters. Because the long tail has everything in it, the only way to find anything useful there is by using some kind of filter.

The web allows for a democratization of information, which, in turn, creates the need for more information literacy. In other (less annoyingly pretentious) terms, the fact that it's cheap to publish on the internet puts a great deal of biased, incomplete or simply wrong information on the same level as balanced, thorough and authoritative information. Individual citizens, students and researchers need to be more attentive to sources and details when sifting through such information and spend more time verifying and fact checking claims.

Where in pre-internet environment, a number of filters sat between crackpot theories and a researcher. Those filters (reporters, publishers, librarians) still help to judge accuracy and reliability, but the unfiltered internet makes it easy to find the unfiltered and unreliable and individuals now need to have the skills to determine what is credible and what is not.

On the other hand, sometimes more filters can distort the truth. Salon.com editor Scott Rosenberg discusses the difference between blogs and comments at his personal blog, Wordyard: Lanny Davis, bile, and the distinction between "blog" and "comments": "The simple distinction between the proprietor of a site — the 'blogger' — and the poster of comments is being forgotten or deliberately ignored here to score a political point.… In open online environments, it simply makes no sense to hold the publisher/blogger/site owner responsible for every opinion, attitude and flame that visitors post. If that's where we're headed, we might as well just shut down the Net and go home."

47 USC §230 provides a "safe harbor" for the hosts of online forums (such as blog comment pages), so that the publishers are not considered the publisher or speaker of comments posted by unrelated third parties. Of course, although the law exempts site owners from liability, it does not prevent unwitting or unscrupulous commentators from attributing to a site owner the words of an unrelated comment poster.

Previously: Information Literacy

Labels v. LimeWire

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Major record labels filed a law suit in the Southern District of NY against P2P file sharing company LimeWire: Arista Records LLC v. LimeWire LLC, 06-CV-5936.

"he very design and promotion of LimeWire show that Defendants know (actually as well as constructively) of the massive infringement of Plaintiffs' copyrights occurring via LimeWire. Defendants' knowledge and intent are apparant in other respects as well. For example, Defendants make it easy for a user to donload and install LimeWire even after indicating that he/she 'intend[s] to use LimeWire for copyright infringement.' Following a perfunctory refusal by Defendant's web site, the user simply navigates back to the prior page, changes his/her answer, and is allowed to continue with the download.

The complaint establishes 5 theories of liability:

  1. Inducement of Copyright Infringement
    Defendants have induced and continue to induce infringement by, for example, aiming to satisfy a known source of demand for copyright infringement, including the market comprising users of other infringing services that were shut down or compelled to block access to Plaintiffs’ copyrighted works, such as Napster, Grokster, and Kazaa.

  2. Contributory Copyright Infringement
    Defendants are liable as contributory infringers for the copyright infringement committed via LimeWire software and services. Defendants have knowledge of the massive infringement that has occurred and continues to occur through LimeWire, and Defendants have caused, enabled, facilitated, and materially contributed to that infringement.

  3. Vicarious Copyright Infringement
  4. Defendants are liable as vicarious infringers for the copyright infringement committed via LimeWire software and services. At all times relevant to this action, Defendants (i) have had the right and ability to control and/or supervise the infringing conduct of LimeWire users, and (ii) have had a direct financial interest in, and derived substantial financial benefit from, the infringements of Plaintiffs’ copyrighted sound recordings via LimeWire.

  5. Common Law Copyright Infringement of Pre-1972 Recordings

  6. Unfair Competition as to Pre-1972 Recordings

William Patry, The Patry Copyright Blog: RIAA v. LimeWire:

We are in a new era and this complaint reflects that era.

I happen to think the new era sucks, but it is here and we had best come to grips with it. The LimeWire case is likely to provide the inducement for that waking up. Aside from what I regard as the Supreme Court's insitutional irresponsibility, my objection to the Grokster opinion (which is not a defense of Grokster the company), is that it only added to the conceptual morass begun with Sony by creating a new, third category of third-party liability, and without any perceived need for it by the parties, Congress, or anyone else. It was, I believe, merely a way to paper over the court's inability to do the job it took upon itself: determine how to apply Sony to the Internet. When the Court shirked that responsbility, it apparently felt it too had to something to show it was tough on pirates (you're not alone Mr. Attorney General!), hence the inducement theory.

Yes, it's New Jersey. No, it's not the plot from a recent Aqua Teen Hunger Force episode. This is actually a software license contract dispute.

Seriously.

Hoboken has a parking garage that uses a robotic elevator/conveyor system to park cars more efficiently than the typical garage layout. But, the software that runs the intelligent system was licensed to the company managing the garage, not to the owners of the garage.

Wired News reports: Giant Robot Imprisons Parked Cars: "In the course of a contract dispute, the city of Hoboken had police escort the Robotic employees from the premises just a few days before the contract between both parties was set to expire. What the city didn't understand or perhaps concern itself with, is that they sent the company packing with its manuals and the intellectual property rights to the software that made the giant robotic parking structure work."

More Reality TV Law

Here's a student note published in the Vanderbilt Journal of Entertainment and Technology Law: J. Matthew Sharp, NOTE: The Reality of Reality Television: Understanding the Unique Nature of the Reality Genre in Copyright Infringement Cases, 8 Vanderbilt J. of Entertainment and Technology Law 177 (Winter 2005). It discusses The Simpsons, reality tv and copyright.

PHOSITA®'s Laura Woods uses TESS to figure out the next great reality TV hit: Reality TV junkie: "What do intellectual property attorneys do in their spare time?  On this Friday, I have decided to let you in on one of my hobbies –  looking up future TV reality show names on the United States Patent and Trademark Office website.  See, an interesting little fact unknown to the rest of the world is that production companies usually like to file trademarks on the TV reality show names long before they air on TV."

Previously: Reality TV and the Law

Wikiality

On Monday's Colbert Report, Stephen discussed the Wikipedia process in The Wørd segment ("Wikiality"):

Last week, The New Yorker published an article on Wikipedia: Know it All: Can Wikipedia conquer expertise? "Wikipedia remains a lumpy work in progress. The entries can read as though they had been written by a seventh grader: clarity and concision are lacking; the facts may be sturdy, but the connective tissue is either anemic or absent; and citation is hit or miss."

The New Yorker article goes to the information literacy critique of Wikipedia. On a macro level, Wikipedia has generally good rate of accuracy (at least if we were thinking of it as a baseball batting average.) But Wikipedia has a far lower level of accuracy for any individual fact.

At Freedom to Tinker, David Robinson contemplates: The New Yorker Covers Wikipedia "When reading Wikipedia, one has to react to surprising claims by entertaining the possibility that they might not be true. The less plausible a claim sounds, the more skepticism one must have when considering it."

The Onion's take is (as usual) dead on: Wikipedia Celebrates 750 Years Of American Independence: "Wikipedia, the online, reader-edited encyclopedia, honored the 750th anniversary of American independence on July 25 with a special featured section on its main page Tuesday."

Marshall Poe, in The Atlantic Monthly, thinks that the hive mind works well: The Hive: "Can thousands of Wikipedians be wrong? How an attempt to build an online encyclopedia touched off history’s biggest experiment in collaborative knowledge."

ikkyu2, a neurologist and contributor to Wikipedia articles on neurology cogently discusses Wikipedia's expert problem: What's Wrong with Wikipedia: "I still like the Wikipedia, but not as an encyclopedia. It's just an enjoyable, relaxing way to fool around and waste some time; enjoyable for its own sake, but not useful as a finished product. I would never recommend it to my patients nor to anyone else as a source of reliable information."

Windy City Mike: Why I Quit Wikipedia "The problem is: Wikipedia believes truth derives from consensus. It doesn’t. Pablum derives from consensus; popular belief derives from consensus. And if you’re lucky, the least offensive common denominator of the truth derives from consensus.…Wikipedia articles do not represent truth; they represent popular consensus."

Anil Dash looks at Wikipedia through the spectrum of community governance: Antipedia: "The real issue is that Wikipedia is a not-so-small community of people, facing the same challenges of governance, accountability, and policing that any community this size would face. I can't help but think that most of these issues arise because Wikipedia essentially runs with the equivalent of a Declaration of Independence but no Constitution."

Previously: The Problem with Wikipedia (Apr. 19)
Wikipedia and Authority (Dec. 19, 2005)
Wikipedia Woes (Dec. 16, 2005)

Helping or hurting your cause?

If there was ever a reason for why a corporate-controlled internet might not be such a bad idea, it is this video from "internet celebrities" Tron Guy, Leslie Hall and Peter Pan… If it was the Star Wars kid and Mahir, then you might have something.

Is anyone who matters going to care about net neutrality if a non-neutral, discriminatory internet means simply that Tron Guy, Goatse or the latest All Your Bases Are Belong to Us mashup might take longer to load?

Does "God Save the Internet" by "The Broadband" (Note: not the excellent NYC band Broadband) fall on the lame side of the spectrum of creative advocacy?