Compare/Contrast

On Thursday morning, the House Judiciary Committee will have a full committee markup of the latest version of H.R. 3261 the Stop Online Piracy Act. Here’s some initial analysis from Mike Masnick at Techdirt Lamar Smith Proposes New Version Of SOPA, With Just A Few Changes.
Today, comedian Louis C.K. released his latest standup special, filmed earlier this year at the Beacon Theater in New York, NY as a simple $5 direct download. No DRM, payment simply through Paypal. He’s aware of the risk of piracy and believes that simply offering a product that’s inexpensive and simple enough that it’s a better customer experience.
I hosted a podcast discussion that I’ll be posting later this week — one of the topics we discussed was the fact that a torrent download offers the best viewing experience for any way of watching television programming. (None of the glitches of streaming, none of the commercials of broadcast and none of the interminably long menus of DVDs and Blu-Rays.) Probably the only other one that compares is iTunes (which has the disadvantage of being the most expensive way to watch lots of television.)
Is the best way to compete with casual infringements simply to offer the best experience?

The New Digital Divide

Susan Crawford in the New York Times on The New Digital Divide:

“While we still talk about “the” Internet, we increasingly have two separate access marketplaces: high-speed wired and second-class wireless. High-speed access is a superhighway for those who can afford it, while racial minorities and poorer and rural Americans must make do with a bike path…
“Over the last 10 years, we have deregulated high-speed Internet access in the hope that competition among providers would protect consumers. The result? We now have neither a functioning competitive market for high-speed wired Internet access nor government oversight.”

The market for dial-up internet access was competitive. The market for broadband access isn’t. And without competition, incumbents can simply charge a prevailing rate. There’s no incentive for competition, because it’s not like a homeowner can simply switch from Time Warner to Comcast without moving to a new house that is in a Comcast service area. Competition spurs innovation and reduces rent-taking. A market needs either tight regulation or stiff competition. Home broadband providers are shielded form both.

Termination Station

Larry Rohter, The New York Times, Record Industry Braces for Artists’ Battles Over Song Rights: “Since their release in 1978, hit albums like Bruce Springsteen’s “Darkness on the Edge of Town,” Billy Joel’s “52nd Street,” the Doobie Brothers’ “Minute by Minute,” Kenny Rogers’s “Gambler” and Funkadelic’s “One Nation Under a Groove” have generated tens of millions of dollars for record companies. But thanks to a little-noted provision in United States copyright law, those artists — and thousands more — now have the right to reclaim ownership of their recordings, potentially leaving the labels out in the cold.”
Here’s the relevant section of the Copyright Act:
§ 203. Termination of transfers and licenses granted by the author

(a) Conditions for Termination. — In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions:

    (1) In the case of a grant executed by one author, termination of the grant may be effected by that author or, if the author is dead, by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author’s termination interest. In the case of a grant executed by two or more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it; if any of such authors is dead, the termination interest of any such author may be exercised as a unit by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author’s interest.
    (2) Where an author is dead, his or her termination interest is owned, and may be exercised, as follows:

      (A) The widow or widower owns the author’s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author’s interest.
      (B) The author’s surviving children, and the surviving children of any dead child of the author, own the author’s entire termination interest unless there is a widow or widower, in which case the ownership of one-half of the author’s interest is divided among them.
      (C) The rights of the author’s children and grandchildren are in all cases divided among them and exercised on a per stirpes basis according to the number of such author’s children represented; the share of the children of a dead child in a termination interest can be exercised only by the action of a majority of them.
      (D) In the event that the author’s widow or widower, children, and grandchildren are not living, the author’s executor, administrator, personal representative, or trustee shall own the author’s entire termination interest.

    (3) Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier.
    (4) The termination shall be effected by serving an advance notice in writing, signed by the number and proportion of owners of termination interests required under clauses (1) and (2) of this subsection, or by their duly authorized agents, upon the grantee or the grantee’s successor in title.

      (A) The notice shall state the effective date of the termination, which shall fall within the five-year period specified by clause (3) of this subsection, and the notice shall be served not less than two or more than ten years before that date. A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect.
      (B) The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation.

    (5) Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.

(b) Effect of Termination. — Upon the effective date of termination, all rights under this title that were covered by the terminated grants revert to the author, authors, and other persons owning termination interests under clauses (1) and (2) of subsection (a), including those owners who did not join in signing the notice of termination under clause (4) of subsection (a), but with the following limitations:

    (1) A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant.
    (2) The future rights that will revert upon termination of the grant become vested on the date the notice of termination has been served as provided by clause (4) of subsection (a). The rights vest in the author, authors, and other persons named in, and in the proportionate shares provided by, clauses (1) and (2) of subsection (a).
    (3) Subject to the provisions of clause (4) of this subsection, a further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is signed by the same number and proportion of the owners, in whom the right has vested under clause (2) of this subsection, as are required to terminate the grant under clauses (1) and (2) of subsection (a). Such further grant or agreement is effective with respect to all of the persons in whom the right it covers has vested under clause (2) of this subsection, including those who did not join in signing it. If any person dies after rights under a terminated grant have vested in him or her, that person’s legal representatives, legatees, or heirs at law represent him or her for purposes of this clause.
    (4) A further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is made after the effective date of the termination. As an exception, however, an agreement for such a further grant may be made between the persons provided by clause (3) of this subsection and the original grantee or such grantee’s successor in title, after the notice of termination has been served as provided by clause (4) of subsection (a).
    (5) Termination of a grant under this section affects only those rights covered by the grants that arise under this title, and in no way affects rights arising under any other Federal, State, or foreign laws.
    (6) Unless and until termination is effected under this section, the grant, if it does not provide otherwise, continues in effect for the term of copyright provided by this title.

Were these in fact works for hire? Did the labels ever treat their artists like employees? If the artists are independent contractors, besides the named artists, who of the producers, executives and session musicians count as co-authors of the work?
This could prove to be very interesting… or not.
Update (8/17). The Times today ran a story about a copyright termination lawsuit on the front page of the arts section: A Village Person Tests the Copyright Law “Victor Willis, the original lead singer of the group, filed papers this year to regain control in 2013 over his share of “Y.M.C.A.,” whose lyrics he wrote, under a copyright provision that returns ownership of creative works to recording artists and songwriters after 35 years. His claim to “Y.M.C.A.” and 32 other Village People compositions, however, is being contested by two companies that administer publishing rights to the songs.”
The complaint: Scorpio Music v Willis

National Library Policy

Should the US have a national library policy? In The Atlantic, David Rothman argues for the development of a national digital library: Why We Can’t Afford Not to Create a Well-Stocked National Digital Library System, “Old-fashioned literacy, in fact, rather than e-book standards, should be the foremost argument for a national digital library system–as a way to expand the number and variety of books for average Americans, especially students. Without basic skills, young people will not be fit for many demanding blue-collar jobs, much less for Ph.D.-level work, and economic growth will suffer.”
At the very least, some kind of library lending standard that will allow libraries to standardize on a format for storage and inter-library loans as well as allowing device manufacturers to have a standard to display could be excellent for readers.

Peering into the Pipes

Cecilia Kang, The Washington Post: Level 3 Communications calls Comcast fees for Netflix feeds unfair: “An online networking company that carries video feeds for Netflix has accused Comcast of demanding unfair fees to provide that video to home subscribers, raising questions about the cable giant’s power to control consumers’ access to the Internet.”
Brian Stelter, New York Times, Media Decoder: Netflix Partner Says Comcast Fee ‘Threatens’ Open Internet: “Those issues cut to the heart of Comcast%u2019s imminent acquisition of NBC Universal, which is in the final stages of review by the F.C.C. and the Justice Department. The F.C.C. is considering attaching a condition to the merger that would aim to keep Comcast%u2019s Internet network open to competitors, according to public filings this month.”
Jessica E. Vascellaro, Wall Street Journal, Internet Giants Spar Over Fees: “The dispute fans the flames of the so-called net neutrality debate over how to handle Internet traffic. Federal regulators, who have yet to adopt rules that require Internet service providers to treat similar types of traffic equally, are set to decide this week whether to vote soon on proposed new guidelines. Consumers are caught in the middle. Comcast argued that Level 3 wants to pass the costs to Comcast and its customers. If Level 3 bears the costs, they will eventually fall to users of services like Netflix, according to a person familiar with Level 3’s thinking.”
Without knowing the specific details of the peering agreements between Comcast and Level 3, it’s difficult to say whether this is simply a business dispute over who pays for more bandwidth between Comcast and Level 3 or if it is in fact about charging a competitor more money to send video streaming service into Comcast’s network.
If this is about blocking or impeding Comcast subscribers’ access to the Netflix streaming service, while making it easy to access Comcast’s or NBC’s competitive services for broadband, that’s a prime example of why, in the absence of a truly competitive broadband internet access market, network neutrality regulations are important. If a customer who lives in Comcast’s service area wants to get broadband and also subscribe to Netflix, they may not have any other choice but to use Comcast’s internet service for that access.
Susan Crawford, Bad Timing: Comcast, Netflix, NN, Cable Modems, and NBCU: “The takeaway from today:  No market forces are constraining Comcast – or any of the other major cable distributors, none of which compete with each other.  How will consumers and innovation be protected from their machinations?  The FCC is currently facing two defining moments in US telecommunications policy, and it’s unclear what the Commission is going to do in either case.  Will the FCC act to relabel high-speed Internet transmission services, reversing the radical Bush-era deregulatory turn? Will the FCC block the Comcast/NBCU merger?  Can we expect that anything will happen (at all) to ensure that local monopoly control over communications transport isn’t leveraged into adjacent markets for devices and content?”
Kyle VanHemert, Gizmodo, Comcast Is Bullying Netflix Partners Into Paying a Toll to Deliver Streaming Video: “This is presumably the first volley in what will be a long battle between companies like Netflix and broadband providers, nearly all of whom have their own video on demand services to peddle. And this type of thing is precisely the reason that net neutrality—ensuring that internet providers don’t discriminate in how they deliver their content—has been and will continue to be such a big deal going forward. When service providers strong arm comparatively little guys like Netflix (and the partners upon whom Netflix relies, like Level 3) into paying higher fees, that turbulence eventually shakes down to the customer, either in the form of higher prices or interrupted service.”

Second Circuit: Indecency Regulations Unconstitutionally Chill Protected Speech

Previously, the Second Circuit and Supreme Court disagreed on whether the FCC Indecency regulations were arbitrary and capricious (the Second Circuit finding that they were adopted arbitrarily and capriciously and the Supreme Court overturning and ruling that the Commission ruled on a rational basis to extend indecency enforcement.) In its first pass at this case, the Second Circuit avoided ruling on whether the FCC indecency regulations violated the First Amendment because the Commission failed to satisfy the APA’s prohibition on arbitrary and capricious regulations.
Today’s ruling goes to the core matter: whether the FCC’s indecency regulations are compatible with the First Amendment. In Fox Television Stations v. Federal Communications Comm., the Second Circuit Court of Appeals ruled that the FCC indecency regulations violate the First Amendment because they are unconstitutionally vague, creating a “chilling effect that goes far beyond the fleeting expletives at issue here.”
Although the Supreme Court found broadcast indecency regulation Constitutionally permissible, this court notes the vast change in the media landscape and technological empowerment that makes broadcast less particularly pervasive than it was in 1978. “The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast – almost 87 percent of households subscribe to a cable or satellite service – and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control.”
Where individuals have the option to block content or channels, as on cable television, the First Amendment does not support bans on indecency that are as large. In US v. Playboy, the Supreme Court found that a technology that could block access to channels on a house-by-house basis made a content-based speech restriction unconstitutional.
The court notes that most modern televisions and DTV converter boxes that allow older TV sets to pick up today’s broadcast television signals are equipped with the V-chip, that allows individual television owners to block potentially offensive content from entering their homes. (Previously: Are Indecency Regulations Obsolete?

There is considerable disagreement among the parties, however, as to what framework Pacifica established. The FCC interprets Pacifica as permitting it to exercise broad regulatory authority to sanction indecent speech. In its view, the Carlin monologue was only the most extreme example of a large category of indecent speech that the FCC can constitutionally prohibit. The Networks, on the other hand, view Pacifica as establishing the limit of the FCC’s authority. In other words, they believe that only when indecent speech rises to the level of “verbal shock treatment,” exemplified by the Carlin monologue, can the FCC impose a civil forfeiture. Because Pacifica was an intentionally narrow opinion, it does not provide us with a clear answer to this question. Fortunately, we do not need to wade into the brambles in an attempt to answer it ourselves. For we conclude that, regardless of where the outer limit of the FCC’s authority lies, the FCC’s indecency policy is unconstitutional because it is impermissibly vague.

Vague rules for what constitutes impermissible indecency has a chilling effect on speech. To the extent that restrictions on speech are Constitutional, they must be specific and clear to avoid having a chilling effect on speakers. The prohibition on vague regulations (the vagueness doctrine) serves several important objectives in the First Amendment context:

  • First, the doctrine is based on the principle of fair notice.
  • Second, the vagueness doctrine is based ‘on the need to eliminate the impermissible risk of discriminatory enforcement.’ Specificity, on the other hand, guards against subjectivity and discriminatory enforcement.
  • Although the Commission sought to give broadcasters guidance in its 2001 document, Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. § 1464, the court finds that the Commission’s policy is overly vague, especially after the changes to the fleeting expletive rule.

    “The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word “bullshit” is indecent because it is “vulgar, graphic and explicit” while the words “dickhead” was not indecent because it was “not sufficiently vulgar, explicit, or graphic.” This hardly gives broadcasters notice of how the Commission will apply the factors in the future.
    “The English language is rife with creative ways of depicting sexual or excretory organs or activities, and even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day.
    “The FCC’s current indecency policy undoubtedly gives the FCC more flexibility, but this flexibility comes at a price. The “artistic necessity” and “bona fide news” exceptions allow the FCC to decide, in each case, whether the First Amendment is implicated. The policy may maximize the amount of speech that the FCC can prohibit, but it results in a standard that even the FCC cannot articulate or apply consistently.”

    Because indecency seems to be a case-by-case judgment (where the Commission knows it when it sees it), the court worries that the FCC could apply discriminatory enforcement to chill speech from particular speakers or particular types of speech.

    “We have no reason to suspect that the FCC is using its indecency policy as a means of suppressing particular points of view. But even the risk of such subjective, content-based decision-making raises grave concerns under the First Amendment. Take, for example, the disparate treatment of “Saving Private Ryan” and the documentary, “The Blues.” The FCC decided that the words “fuck” and “shit” were integral to the “realism and immediacy of the film experience for viewers” in “Saving Private Ryan,” but not in“The Blues.” Fox, 489 F.3d at 463. We query how fleeting expletives could be more essential to the “realism” of a fictional movie than to the “realism” of interviews with real people about real life events, and it is hard not to speculate that the FCC was simply more comfortable with the themes in “Saving Private Ryan,” a mainstream movie with a familiar cultural milieu, than it was with “The Blues,” which largely profiled an outsider genre of musical experience.”

    This has a chilling effect on speech.

    “Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose. Indeed, there is ample evidence in the record that the FCC’s indecency policy has chilled protected speech.
    “During the previous proceedings before this Court, amicus curiae gave the example of a local station in Vermont that refused to air a political debate because one of the local politicians involved had previously used expletives on air. The record contains other examples of local stations that have forgone live programming in order to avoid fines. For instance, Phoenix TV stations dropped live coverage of a memorial service for Pat Tillman, the former football star killed in Afghanistan, because of language used by Tilliman’s family members to express their grief. A station in Moosic, Pennsylvania submitted an affidavit stating that in the wake of the FCC’s new policy, it had decided to no longer provide live, direct- to-air coverage of news events “unless they affect matters of public safety or convenience.” If the FCC’s policy is allowed to remain in place, there will undoubtedly be countless other situations where broadcasters will exercise their editorial judgment and decline to pursue contentious people or subjects, or will eschew live programming altogether, in order to avoid the FCC’s fines. This chill reaches speech at the heart of the First Amendment.
    “As these examples illustrate, the absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature. Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all “patently offensive” references to sex, sexual organs, and excretion without giving adequate guidance as to what “patently offensive” means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.”

    And while solidly striking the current indecency regulations as unconstitutional, the court leaves the possibility that the Commission could come up with indecency enforcement regulations that would be constitutional (after all, the Second Circuit can’t overturn Pacifica.)

    Blawg Review #269

    Blawg Review’s editor invited me to host today’s Blawg Review #269 because today, June 21 is not only the summer solstice, but also World Music Day and here in New York City, Make Music New York, where New York will host hundreds of live music performances, from street performers to major concerts.
    So break out your vuvuzela and make your own kind of music and let’s get down to reviewing some blawgs:
    Music related links:
    Did you know that vuvuzela isn’t merely the most annoying sound on Earth, but also a trademark? Vuvuzela, the trademark
    And if you haven’t had enough vuvuzela watching the World Cup, you can read this blog post with vuvuzela accompaniment.
    IP Tango looks at the central, non-vuvuzela related musical issue with the FIFA World Cup: Waka waka chorus – who is the author?
    The official theme of the 2010 South African World Cup is under debate. The singer and songwriter, Wilfrido Vargas, accused Shakira of plagiarism for the use of the chorus of his song titled “ el negro no puede’ in the ‘wake waka’ song – the official theme of the 2010 World Cup.”
    Ben Sheffner, Copyrights & Campaigns: It’s official: Don Henley wins summary judgment over Chuck DeVore on copyright claims: “It’s been a very bad month for Chuck DeVore. On June 8, the Republican Assemblyman from Orange County finished third in the GOP primary for the right to take on Sen. Barbara Boxer (D). And then, just a few days later, federal Judge James Selna issued his formal ruling on Henley’s copyright and Lanham Act claims regarding DeVore’s videos that used Henley’s songs to mock Boxer and President Obama, soundly rejecting DeVore’s fair use defense.”
    Copyright Litigation Blog: Synchronizing Art to a Sound Recording: Do Financial Incentives Demotivate Creativity and Problem Solving?, “Not only is Dan Pink’s video by RSA Animate thought-provoking and relevant to whether or not money stimulates creative activity. It is also relevant to the core purpose of the Copyright Act and arguments raised in defense of draconian copyright: whether or if financial incentives stimulate creativity. Studies by the Federal Reserve and MIT raise the question of whether financial incentives actually decrease creativity.”
    At Techdirt, Mike Masnick asks, Are Bad Copyright Laws Killing Jazz And Harming Jazz Musicians? “That’s a clear, concrete (and, as a jazz fan, depressing) example of an area in which copyright is clearly doing the exact opposite of its intended purpose. I’m really curious to hear from defenders of the copyright status quo (or who believe in even stronger copyright protections) to see how they defend this situation.”
    North of the border, Michael Geist looks at how American-style astroturfing is coming to the debate of copyright legislation in Canada, The Copyright Lobby’s Astroturf Campaign in Support of C-32 “The copyright lobby, almost certainly led by the Canadian Recording Industry Association, has launched a major astroturf campaign in which it hopes to enlist company employees to register their support for Bill C-32 and to criticize articles or comments that take issue with elements of the proposed legislation. The effort, which even includes paid placement of headlines on Bourque.com, is still shrouded in some secrecy.” Later: Copyright Lobby Astroturf Site Adds Mandatory, Uneditable Letter to MPs
    At Law is Cool, Pulat Yunusov looks at the Stakes of Copyright Reform in Canada, “Not many government bills cause so much debate as C-32—the legislation to amend Canada’s Copyright Act—introduced on June 2, 2010. One of C-32’s most contentious innovations is a complete ban on bypassing digital locks on electronic content. James Moore, a federal Minister, said that C-32 offered “a common-sense balance between the interests of consumers and the rights of the creative community.” But his opponents believe Moore’s “common sense” will empower copyright holders and take away traditional rights of consumers.”
    Music Row Law’s Barry Neil Shrum looks at a P2P decision from here in New York: The Limewire Ruling: New King of the Hill for Illegal Downloading Decisions “The U. S. District Court for the Southern District of New York ruled against LimeWire and its parent company, Lime Group, finding them liable for inducement of copyright infringement based on the use of their service by subscribers.”
    Public Knowledge is proposing a Copyright Reform Act and discussing their proposals on: Fair Use and Circumvention, with three more parts coming soon.
    Ad you know, Justin Bieber is the biggest name in pop music today. Justin Bieber, Esq. Has Name To Make ‘U Smile’ (I assume that’s a reference the more pop-centric blawg readers will get.) “The recent graduate of Widener Law School was just embarking on a marketing campaign to drum up work when Justin Bieber, the Canadian teen heartthrob, became a singing sensation.” Bieber also talked with 92.3 FM.
    Is Supreme Court nominee Elena Kagan too pro-Hollywood or too anti-copyright? Chris Castle: Why Artists Should Worry About Elena Kagan’s Supreme Court Appointment. Ben Sheffner: Kagan confirms: I represented the RIAA.
    Play Me, I’m Yours: New York City 2010 “Touring internationally since 2008, “Play Me, I’m Yours” is an artwork by artist Luke Jerram. From 21st June – 5th July, 60 upright pianos will be distributed across New York City by Sing for Hope. Located in public parks, streets and plazas the pianos will be available for any member of the public to play and engage with.”
    Since today was Father’s Day, I spent more of it playing golf with my father than reviewing the web, but fortunately Blawg Review contributors sent me a link to Fatherhood.gov (the National Resposible Fatherhood Clearinghouse) with President Obama’s Father’s Day message. The Library of Congress shares some songs for Father’s Day
    So here are the rest of today’s blawg review, as free jazz improv:
    Did Perez Hilton violate federal child porn laws? “Child pornography and child exploitation have always raised strong public emotions. Regardless of the necessity for new laws, this
    political football is carried by the Left and the Right alike, as nobody can stand up against stronger child exploitation laws and emerge politically unscathed.”
    Evan Brown, Internet Cases. Illinois court sets standard for unmasking anonymous commenters “The rules of civil procedure in Illinois permit an aggrieved party to file a petition with the court asking for an order requiring unknown potential defendants to be identified. This is called a Rule 224 petition.”
    Felix Salmon, Interchange and free checking “Why do most people hate their bank? Because their relationship is based on the lie of “free checking”, and a relationship based on a lie is always going to be a dysfunctional relationship. Checking is never free, but in recent years banks have been able to conjure the illusion of free through a system of regressive cross-subsidies, where the poor pay massive overdraft fees and thereby allow the rich to pay nothing.”
    IP Watchdog No $5.4 Trillion Bounty for False Patent Marking Bounty Hunter “Bounty hunters make their living by capturing fugitives from justice for a monetary reward (bounty). A more recent, modern day version of the bounty hunter is one who pursues patentees for false patent marking under 35 U.S.C. § 292. The recent Federal Circuit case of Forest Group, Inc. v. Bon Tool Co. has made such false patent marking bounty hunting lucrative by saying that each falsely marked item is an “offense” under 35 U.S.C. § 292, and thus subject to a penalty of “up to $500,” with the bounty hunter getting half of the awarded penalty and the federal government the other half. As a result, a rash of such cases (upwards of at least 100 at the moment) have been filed by such modern day bounty hunters as qui tam actions against various patentees alleged to be falsely marking their products.”
    Frank Pasquale, at Concurring Opinions, Just What the Oil Industry Needs: More Trade Secrecy, “I have tried to give the Obama Administration the benefit of the doubt during the Gulf/BP oil disaster. There was a “grand ole party” at Interior for at least eight years. Many Republicans in Congress would have tried to block nominees for Interior who were committed to a major overhaul of the department’s environmental priorities. But the more I read about the controversy, the harder it gets to excuse current players for their actions. Consider just one issue: the use of dispersants in response to the spill.”
    The public and private sectors are going Hollywood to find solutions to the oil spill in the Gulf of Mexico. Last week, Congress heard testimony about Kevin Costner’s Ocean Therapy Solutions.
    Illinois court sets standard for unmasking anonymous commenters
    Bloomsday
    June 16 was Bloomsday (the day of James Joyce’s masterwork Ulysses) Happy Bloomsday. On December 6, 1933, Judge John Woolsey ruled that James Joyce’s Ulysses could be imported into the United States, since it was not, as the United States government maintained, obscene. The Second Circuit affirmed. United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705, 706 (2d Cir. 1934).
    A Fool in the Forest, Bialystock and Bloomsday (Nighttown is the Right Town) Bloomsday is again upon us, honoring that real-yet-fictive day, June 16, 1904, on which Mister Leopold Bloom and Mister Stephen Dedalus made their joint and several legendary peregrinations round and about Dublin, its vicinity and its vicissitudes, all as memorialized by Mister James Joyce in his non-iPad-compliant misterwork, Ulysses.
    Simon Fodden, Slaw, Rats, I missed Bloomsday, “an event I like to note here on Slaw. It happened last Wednesday, which was June 16, the same date on which, in 1904, Leopold Bloom wandered through Dublin as Joyce’s Ulysses.”
    Sexy banker Debrahlee Lorenzana may be a prototypical Rogue Client It happens to every lawyer at some point: You agree to represent a client and realize later it was a big mistake. The client goes rogue on you. You simply didn’t get the full story during intake.
    Kashmir Hill, Confessions Of An Online Stalker “Without ever talking to Noah Brier or anyone who knows him, I could tell you the following: Noah’s family moved into a $353,000 home in the wooded New York suburb of Norwalk, Connecticut, when he was three. The house is now worth over a half million dollars. He was a checkers champion in third grade and fourth grade at Columbus Elementary School (and a runner-up in second grade); it took eleven minutes for his mother to drive him to elementary school.”
    Matt McCusker, Deliberations, No Basis For Biases: How Demographics Fool Even The Best Lawyers Let’s face it, we all stereotype. We all make assumptions about others based on visual information alone. These could be conjectures about grey hair, obesity, a tight skirt, or a body piercing; but people continually make visual judgments of others founded only on personal biases and prior experiences.
    A Public Defender, Life without possibility of redemption “I sat in a prison cell yesterday. And not your regular bullpen where they cram in 4 people who’re waiting to go to court. The real deal. Where our clients sleep at night (and often during the day). That of the 60 square foot variety.”
    David Berkowitz shares the advice he’s learned from speaking in public and giving presentations: Over 100 Lessons from over 100 Events
    Mashup of the day: Lord of the Vuvuzela
    I’m off to watch the finale to David Simon and Eric Overmeyer’s musically excellent show Treme on HBO, and then read Alan Sepinwall’s review and interview with David Simon
    Blawg Review has information about next week’s host, and
    instructions how to get your blawg posts reviewed in upcoming issues.

    Suit of Anarchy

    Hells Angel meets with network, pitches television show about motorcycle gang. Network passes. Years later, network picks up a show about a motorcycle gang. Lawsuit ensues.
    Matthew Belloni, THR, Esq, Ex-Hells Angel Claims FX Stole ‘Sons Of Anarchy’
    Chuck Zito, who describes himself as the former leader of the New York City Hells Angel chapter and a “radio, television and film personality” (we’re not going to argue with him), filed a breach of implied contract lawsuit today claiming that the hit FX drama “Sons of Anarchy” was based on his ideas.”
    The complaint: Zito v. FX Networks
    What makes this story interesting is Sons of Anarchy creator and executive producer Kurt Sutter’s comments about creativity, pitches and the idea/expression dichotomy: DOUCHEBAGGERY IS THE GREATEST FORM OF FLATTERY… AGAIN “HAVING THE FUCKING IDEA IS NOT THE SHOW. THERE HAVE BEEN DOZENS OF OUTLAW MOTORCYCLE TV DRAMAS PITCHED IN THE LAST TEN YEARS. NONE OF THEM HAS MADE IT TO SERIES, EXCEPT SOA. BECAUSE THEY SUCKED. The same way there were dozens of mob family pitches before the Sopranos and crime scene pitches before CSI.”

    Outrageous

    I happened to see this item on Above the Law today: It’s Time For Another Round of Tuition Hikes: “The [Brooklyn Law School] Finance Committee has approved the following tuition schedule for the 2010-2011 academic year: Full-Time: 2 & 3F: $46,284”
    Forty-six thousand dollars per year? Back when I was a rising 2L, I blogged about the 2003-2004 tuition for Brooklyn Law and its competitors in the NY metro area. Brooklyn was charging us $30,200 per year in tuition and $130 in fees. That’s a 53% increase in the cost of tuition over the last 7 years.
    According to the Bureau of Labor Statistics $30,200 in 2003 has the same buying power as $35,781.91 in 2010 — that’s a pretty significant 18% inflation. Yet, Brooklyn Law increased tuition by nearly 3 times the rate of inflation. Are the economic opportunites for a newly-minted JD any better than they were five years ago?