tag:blogger.com,1999:blog-125055622024-03-15T11:42:21.272-04:00The Patry Copyright BlogWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger686125tag:blogger.com,1999:blog-12505562.post-9282281387400868832010-03-23T23:23:00.002-04:002010-03-24T12:07:57.076-04:00The Singaporean Cablevision Case<p class="MsoNormal"><!--StartFragment--> </p><p class="MsoNormal" style="margin-top:.1pt;margin-right:0in;margin-bottom:.1pt; margin-left:0in;mso-para-margin-top:.01gd;mso-para-margin-right:0in;mso-para-margin-bottom: .01gd;mso-para-margin-left:0in"><span class="Apple-style-span" style="font-family:Times;"><span class="Apple-style-span" style="font-size: -webkit-xxx-large;"> <!--StartFragment--> </span></span></p><span class="Apple-style-span" style="font-family:Times;"><p class="MsoNormal">Many countries around the world are wrestling with similar, evolving copyright issues in response to new digital technologies. In facing common issues, courts sometimes share insights, but when they do, it's critical that they recognize the full procedural context of a decision from another country, as well as specific substantive legal elements. A recent opinion in Singapore regarding remote storage DVRs shows this danger. Although the facts are complicated given the change in the system in question over time, at bottom the Singaporean litigation – against RecordTV – is for most purposes the same case as the remote storage DVR dispute, Cartoon Network v. Cablevision, decided by the Second Circuit, and in favor of the defendant, Cablevision.</p> <p class="MsoNormal"><o:p> </o:p></p> <p class="MsoNormal">In reading the Singaporean judgment below – a very comprehensive one by Justice Ang -- one gets to the end expecting the same result as in the Second Circuit, only to find judgment for plaintiff. Hopefully, the High Court will reverse. The disparity between the trial court’s findings of fact and its conclusions of law, as well as a misreading of Judge Walker’s opinion in Cablevision, are responsible for much of the disconnect. The principal misreading was based on the posture of Cablevision: a direct infringement suit against Cablevision, rather than as inRecordTV, a secondary liability suit. This posture was the result of the plaintiff’s fear – justifiably – that they would have lost on a secondary liability claim because of the Supreme Court’s Sony opinion: users of Remote Storage DVRs are engaging in fair use, and just like VCR manufacturers, those supplying Remote Storage DVRs are supplying a staple article of commerce that has substantial non-infringing uses. Plaintiffs claiming otherwise bear the burden of proving infringement.</p> <p class="MsoNormal"><o:p> </o:p></p> <p class="MsoNormal">Nothing in the Second Circuit’s opinion is contrary the conclusion that on the facts, a claim of contributory infringement would have failed; indeed, during oral argument it was quite clear to me the court of appeals would have held for Cablevision had the case been brought as a secondary liability case. Judge Ang thought to the contrary, and he was in this regard, I respectfully submit mistaken. He certainly was mistaken as a matter of Singaporean fair use law, given the statutory provision permitting consumers to make “a cinematographic film of [a] broadcast or cable programme for . . . private and domestic use.”</p> <p class="MsoNormal">One could understand Judge Ang’s opinion if he had found that RecordTV and not consumers make the copy, but he didn’t: he agreed with the Second Circuit that users, not RecordTV make the copies. Yet, Judge Ang found RecordTV liable for “authorizing” infringements by the users. Authorizing a fair use cannot form the basis for a finding of contributory infringement since there must be a primary infringement to contribute to. Perhaps the court was influenced by the number of people who can access the service, a possibility that is heightened by its finding that RecordTV was engaging in a public performance. However, two million private performances do not make one public performance, no more than gathering together in an unoriginal way two million uncopyrighted facts results in a copyrighted compilation, as we learned from the Feist opinion. A stream that can be seen only by one viewer is a private performance, else the very distinction between public and private would be erased.</p> <!--EndFragment--> </span><p></p> <!--EndFragment--> <p></p>William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com0tag:blogger.com,1999:blog-12505562.post-21681426975089911572009-08-06T22:34:00.002-04:002009-08-06T22:38:17.449-04:00My new blogI launched a new blog today, called Moral Panics and the Copyright Wars. <a href="http://moralpanicsandthecopyrightwars.blogspot.com/">Here's</a> the link. The blog is based on a book I just published of the same title, available <a href="http://www.amazon.com/gp/product/0195385640/ref=s9_simz_gw_s0_p14_i1?pf_rd_m=ATVPDKIKX0DER&pf_rd_s=center-2&pf_rd_r=12Y9X2YPC55K0PJKHAS6&pf_rd_t=101&pf_rd_p=470938631&pf_rd_i=507846">here</a> and <a href="http://search.barnesandnoble.com/Moral-Panics-and-the-Copyright-Wars/William-Patry/e/9780195385649/?itm=1">here</a>.William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com6tag:blogger.com,1999:blog-12505562.post-52002337678379551762009-07-18T14:41:00.002-04:002009-07-18T14:58:06.255-04:00Rocky Mountain Ratings<!--StartFragment--> <p class="MsoNormal"><span class="Apple-style-span" style="font-size: 19px; ">A recent decision by a district court in Colorado<i style="mso-bidi-font-style: normal">,<a href="http://www.cod.uscourts.gov/Documents/Judges/Opinions/06-CV-02351-JLK.pdf"> Health Grades, Inc., v.</a><span style="mso-spacerun: yes"><a href="http://www.cod.uscourts.gov/Documents/Judges/Opinions/06-CV-02351-JLK.pdf"> </a></span><a href="http://www.cod.uscourts.gov/Documents/Judges/Opinions/06-CV-02351-JLK.pdf">Robert Wood Johnson University Hospital, Inc.<span class="Apple-style-span" style="font-size: 16px;"> </span></a><span class="Apple-style-span" style="font-style: normal; ">(HT to <a href="http://blog.ericgoldman.org/archives/2009/07/republishing_th.htm">Eric Goldman </a>and Mike <span class="blsp-spelling-error" id="SPELLING_ERROR_0">Masnick</span> at <a href="http://techdirt.com/articles/20090716/0303275568.shtml"><span class="blsp-spelling-error" id="SPELLING_ERROR_1">Techdir</span></a>t) raises once again courts’ confusion over foundational holdings by the Supreme Court in its 1991 <i style="mso-bidi-font-style:normal"><span class="blsp-spelling-error" id="SPELLING_ERROR_2">Feist</span></i> compilation opinion, confusion that has resulted in inappropriate extension of copyright to facts, prices, and ratings. In the Colorado case, the opinion was on a Rule 12(b)(6) motion to dismiss, meaning that there has been no decision on the merits of the <span class="blsp-spelling-error" id="SPELLING_ERROR_3">protectibility</span> of the material in question, and also meaning that there can be no present appeal.</span></i></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt"><o:p> The Colorado case is hardly the first time a ratings company has sought to stop another company from publicizing a favorable review. An early, <span class="blsp-spelling-error" id="SPELLING_ERROR_4">pre</span>-<i style="mso-bidi-font-style:normal"><span class="blsp-spelling-error" id="SPELLING_ERROR_5">Feist</span></i> opinion, <i style="mso-bidi-font-style: normal">Consumers Union of <span style="mso-spacerun: yes"> </span>United States, Inc. v. General Signal Corp.,</i> 724 F.2d 1044 (2d Cir. 1983), <span style="mso-spacerun: yes"> vacated </span>a preliminary injunction against a vacuum manufacturer which quoted accurately from plaintiff’s review. Here are the quotations used:</o:p></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt"><span class="Apple-style-span" style="font-style: italic;">-“Regina <span class="blsp-spelling-error" id="SPELLING_ERROR_6">Powerteam</span>-far ahead of the pack in cleaning ability.”</span></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt"><span class="Apple-style-span" style="font-style: italic;">-Of all the lightweights tested “only one worked well.”</span></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt"><span class="Apple-style-span" style="font-style: italic;">-On medium pile carpeting <span class="blsp-spelling-error" id="SPELLING_ERROR_7">Powerteam</span> “did the job with the least effort.”</span></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt"><span class="Apple-style-span" style="font-style: italic;">-In fact, it's the only one Consumer Reports calls an “adequate substitute for a full-sized vacuum.”</span></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt">On appeal, the Second Circuit observed, “In truth, CU is not really objecting to Regina's copying <span class="blsp-spelling-error" id="SPELLING_ERROR_8">CU's</span> expression. The statement of policy in its magazine and its position in its brief before us is that any mention of CU in commercial advertising will diminish its effectiveness as an unbiased evaluator of products.” Based on this, it is not surprising the court of appeals vacated the injunction, but it did not examine what was copyrightable in plaintiff’s work, probably because the quotations were from an article. The copying was <span class="blsp-spelling-error" id="SPELLING_ERROR_9">de</span> <span class="blsp-spelling-error" id="SPELLING_ERROR_10">minimis</span> at best, but the decision rested on fair use.</span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt">The facts in the Colorado case were described this way by Judge Kane: </span></p><p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt"><span class="Apple-style-span" style="font-style: italic;">“Health Grades is a Delaware corporation based in Golden, Colorado.</span><span style="mso-spacerun: yes"><span class="Apple-style-span" style="font-style: italic;"> </span></span><span class="Apple-style-span" style="font-style: italic;">It is in the business of developing and distributing objective ratings of hospitals, physicians and other <span class="blsp-spelling-error" id="SPELLING_ERROR_11">healthcare</span> providers.</span><span style="mso-spacerun: yes"><span class="Apple-style-span" style="font-style: italic;"> </span></span><span class="Apple-style-span" style="font-style: italic;">Its “1-3-5 Star” ratings and provider awards are based on data and information obtained from a variety of sources, most of which are <span class="blsp-spelling-corrected" id="SPELLING_ERROR_12">publicly</span> available.</span><span style="mso-spacerun: yes"><span class="Apple-style-span" style="font-style: italic;"> </span></span><span class="Apple-style-span" style="font-style: italic;">Health Grades determines its ratings and awards for individual providers by analyzing these data using its own proprietary methodologies. Health Grades publishes its ratings and awards for <span class="blsp-spelling-error" id="SPELLING_ERROR_13">healthcare</span> providers, along with other information, on its website.”</span></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt"><span class="Apple-style-span" style="font-style: italic;">“Members of the public may access and view the ratings, awards and other information on Health Grades’ website by executing a “click-through” Limited License and User Agreement </span><span style="mso-spacerun: yes"><span class="Apple-style-span" style="font-style: italic;"> </span></span><span class="Apple-style-span" style="font-style: italic;">(Limited License) set out on the website. </span><span style="mso-spacerun: yes"><span class="Apple-style-span" style="font-style: italic;"> </span></span><span class="Apple-style-span" style="font-style: italic;">The Limited License grants “a personal, revocable, </span><span class="Apple-style-span" style="font-style: italic;"><o:p></o:p></span></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt"><span class="Apple-style-span" style="font-style: italic;">nonexclusive, non-transferable license to access and view this Site and the Site Materials, and to copy, download, store and/or print only a single copy of any Site Materials, solely for your non-commercial use and not for resale or distribution to anyone else.”</span></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt"><span class="Apple-style-span" style="font-style: italic;">“<span class="blsp-spelling-error" id="SPELLING_ERROR_14">RWJ</span> is a hospital located in Hamilton, New Jersey.</span><span style="mso-spacerun: yes"><span class="Apple-style-span" style="font-style: italic;"> </span></span><span class="Apple-style-span" style="font-style: italic;">From 2004 through 2006, <span class="blsp-spelling-error" id="SPELLING_ERROR_15">RWJ</span>, </span><span style="mso-spacerun: yes"><span class="Apple-style-span" style="font-style: italic;"> </span></span><span class="Apple-style-span" style="font-style: italic;">through its authorized employees, accessed the Health Grades website more than 200 times after entering into the required Limited License.</span><span style="mso-spacerun: yes"><span class="Apple-style-span" style="font-style: italic;"> </span></span><span class="Apple-style-span" style="font-style: italic;"><span class="blsp-spelling-error" id="SPELLING_ERROR_16">RWJ</span> then proceeded to use materials from the </span><span class="Apple-style-span" style="font-style: italic;"><o:p></o:p></span></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt"><span class="Apple-style-span" style="font-style: italic;">Health Grades’ website, specifically including Health Grades’ name and the ratings and awards it had given <span class="blsp-spelling-error" id="SPELLING_ERROR_17">RWJ</span>, in at least nine press releases and articles promoting the hospital and/or its services.</span><span style="mso-spacerun: yes"><span class="Apple-style-span" style="font-style: italic;"> </span></span><span class="Apple-style-span" style="font-style: italic;">Health Grades’ name and its ratings of and awards to <span class="blsp-spelling-error" id="SPELLING_ERROR_18">RWJ</span> were also published on the </span><span class="Apple-style-span" style="font-style: italic;"><o:p></o:p></span></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt"><span class="Apple-style-span" style="font-style: italic;"><span class="blsp-spelling-error" id="SPELLING_ERROR_19">RWJ</span> Hamilton website.</span><span style="mso-spacerun: yes"><span class="Apple-style-span" style="font-style: italic;"> </span></span><span class="Apple-style-span" style="font-style: italic;"><span class="blsp-spelling-error" id="SPELLING_ERROR_20">RWJ</span> did not have permission from Health Grades to use its name, ratings or awards in this manner. “</span><span class="Apple-style-span" style="font-style: italic;"><o:p></o:p></span></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt"><o:p><span class="Apple-style-span" style="font-style: italic;"> </span></o:p></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt">In rejecting defendant’s argument that the ratings are facts, and therefore <span class="blsp-spelling-error" id="SPELLING_ERROR_21">unprotectible</span>, the court held:</span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt"><span class="Apple-style-span" style="font-style: italic;">“According to its complaint, Health Grades’ <span class="blsp-spelling-error" id="SPELLING_ERROR_22">healthcare</span> ratings for <span class="blsp-spelling-error" id="SPELLING_ERROR_23">RWJ</span> and other medical providers are a product of Health Grades’ collection of data and information from a variety of sources, which it then analyzes and weighs using its own proprietary methodologies to produce a Health Grades’ rating of 1, 3 or 5 stars and/or awards for each <span class="blsp-spelling-error" id="SPELLING_ERROR_24">healthcare</span> provider reviewed. These ratings and awards are not, therefore, facts “discovered” by Health Grades in the manner <span class="Apple-style-span" style="font-style: normal; "><span class="Apple-style-span" style="font-style: italic; ">described in <span class="blsp-spelling-error" id="SPELLING_ERROR_25">Feist</span>, but rather are expressions created by Health Grades.</span><span style="mso-spacerun: yes"><span class="Apple-style-span" style="font-style: italic; "> </span></span><span class="Apple-style-span" style="font-style: italic; ">These ratings only exist because Health Grades has selected, weighed and arranged facts it has discovered to present the collected data in a form, Health Grades’ ratings and awards for specific health care providers, that can be used more effectively by the reader to make judgments about providers.</span><span style="mso-spacerun: yes"><span class="Apple-style-span" style="font-style: italic; "> </span></span><span class="Apple-style-span" style="font-style: italic; ">Taking Health Grades’ allegations as true, therefore, its <span class="blsp-spelling-error" id="SPELLING_ERROR_26">healthcare</span> provider ratings are independent <span class="Apple-style-span" style="font-style: normal; "><span class="Apple-style-span" style="font-style: italic; ">creations by Health Grades and display at least the minimal degree of creativity necessary to be deemed <span class="blsp-spelling-error" id="SPELLING_ERROR_27">origi</span></span><span class="blsp-spelling-error" id="SPELLING_ERROR_28">nal</span> </span>expressions.”</span></span></span></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt">The court confused <i style="mso-bidi-font-style:normal"><span class="blsp-spelling-error" id="SPELLING_ERROR_29">Feist</span></i>’s holding that an original selection, coordination, or arrangement of facts is <span class="blsp-spelling-error" id="SPELLING_ERROR_30">protectable</span> <i style="mso-bidi-font-style:normal">as a compilation</i>, with protection for the facts themselves. Originality will always be the result of judgment, artistic, or otherwise, but not all exercises of judgment are copyrightable. The judgment that this is the best route to go home is no more <span class="blsp-spelling-error" id="SPELLING_ERROR_31">protectible</span> than a judgment about what a fair price is for a coin, a car, a commodities futures contract, or how many stars a hospital deserves.</span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt"><span style="mso-spacerun: yes"> </span>To be fair to Judge Kane, he relied on an opinion by the great judge Pierre <span class="blsp-spelling-error" id="SPELLING_ERROR_32">Leval</span> <i style="mso-bidi-font-style:normal">in <span class="blsp-spelling-error" id="SPELLING_ERROR_33">CCC</span> Information Services, Inc. v. <span class="blsp-spelling-error" id="SPELLING_ERROR_34">Maclean</span> Hunter Market Reports, Inc.</i> , 44 F.3d 61 (2d Cir. 1994). <i style="mso-bidi-font-style:normal"><span class="blsp-spelling-error" id="SPELLING_ERROR_35">CCC</span> Information Services</i> proves that even the great have not so great days, and Judge <span class="blsp-spelling-error" id="SPELLING_ERROR_36">Leval</span> would, I believe, agree that the opinion was not successful. In reversing a district court opinion that had found that the Red Book was unoriginal, the court of appeals held:</span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt"><span class="Apple-style-span" style="font-style: italic;">The district court was simply mistaken in its conclusion that the Red Book valuations were, like the telephone numbers in <span class="blsp-spelling-error" id="SPELLING_ERROR_37">Feist</span>, <span class="blsp-spelling-error" id="SPELLING_ERROR_38">pre</span>-existing facts that had merely been discovered by the Red Book editors. To the contrary, <span class="blsp-spelling-error" id="SPELLING_ERROR_39">Maclean</span>' s evidence demonstrated without rebuttal that its valuations were neither reports of historical prices nor mechanical derivations of historical prices or other data. Rather, they represented predictions by the Red Book editors of future prices estimated to cover specified geographic regions. According to <span class="blsp-spelling-error" id="SPELLING_ERROR_40">Maclean's</span> evidence, these predictions were based not only on a multitude of data sources, but also on professional judgment and expertise. The testimony of one of <span class="blsp-spelling-error" id="SPELLING_ERROR_41">Maclean</span>' s deposition witnesses indicated that fifteen considerations are weighed; among the considerations, for example, is a prediction as to how traditional competitor vehicles, as defined by <span class="blsp-spelling-error" id="SPELLING_ERROR_42">Maclean</span>, will fare against one another in the marketplace in the coming period. The valuations themselves are original creations of <span class="blsp-spelling-error" id="SPELLING_ERROR_43">Maclean</span>.</span></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt"><o:p> </o:p></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt">In the end, however, the decision properly turned on the originality of the Red Book as a compilation—and therefore an infringement—of the compilation authorship, and thus the court's discussion of valuations as individually <span class="blsp-spelling-error" id="SPELLING_ERROR_44">protectible</span> is dictum. The dictum is erroneous. Judge <span class="blsp-spelling-error" id="SPELLING_ERROR_45">Leval</span>' s basic point—that valuations are constructed not discovered—is true enough, but not determinative. Protection is not based on one being merely the originator of the material in question: If that were true, protection could be granted to ideas, methods of operation, systems, and the like. Instead, to be an “original work of authorship,” the material must also (1) not be <span class="blsp-spelling-error" id="SPELLING_ERROR_46">de</span> <span class="blsp-spelling-error" id="SPELLING_ERROR_47">minimis</span>, and (2) not be an idea, method of operation, or the like. Prices fail on both counts, as the Copyright Office observed in Examining Division, Literary Online Practices, Chapter 20. C.II. D.3.d (2003): “Prices are not generally considered copyrightable because the determination of prices is considered a business decision and thus they represent facts”). <span style="mso-spacerun: yes"> </span>The Office also later criticized <i style="mso-bidi-font-style: normal"><span class="blsp-spelling-error" id="SPELLING_ERROR_48">CCC</span> Information Services</i> in a <span style="mso-spacerun: yes"> </span>May 25, 2005 “Statement of Interest of the Register of Copyrights” submitted in <span class="Apple-style-span" style="font-style: italic;">New York Mercantile Exchange, Inc. v. <span class="blsp-spelling-error" id="SPELLING_ERROR_49">IntercontinentalExchange</span>, Inc.</span>, 389 F. Supp. 2d 527 (S.D. N.Y. 2005), where the court held: “The argument that <span class="blsp-spelling-error" id="SPELLING_ERROR_50">NYMEX</span> settlement prices do not embody facts is without merit. The numerical settlement price that arises from <span class="blsp-spelling-error" id="SPELLING_ERROR_51">NYMEX</span>' s judgment and discretion rejects no more than pure fact or idea of the present price of a futures contract. Regardless of the judgment and creativity involved in determining each <span class="blsp-spelling-error" id="SPELLING_ERROR_52">NYMEX</span> settlement price, there is plainly only one settlement price . . . Moreover, because <span class="blsp-spelling-error" id="SPELLING_ERROR_53">NYMEX's</span> settlement prices are the actual prices and are the only way to express the idea of a settlement price stated in numbers—the expression of the price is therefore not sufficiently distinct from the idea of the price to warrant copyrighted protection.”). <span class="Apple-style-span" style="font-style: italic;">See also Miracle Blade, <span class="blsp-spelling-error" id="SPELLING_ERROR_54">LLC</span>. v. <span class="blsp-spelling-error" id="SPELLING_ERROR_55">Ebrands</span> Commerce Group, <span class="blsp-spelling-error" id="SPELLING_ERROR_56">LLC</span>.</span>, 207 F. Supp. 2d 1136, 1150–1151 (D. Nev. 2002) (“Plaintiff's allegations that defendant copied plaintiff’s price should also not be considered since price is a non-copied plaintiff’s price should also not be considered since price is a non-copyrightable fact.”); <span class="Apple-style-span" style="font-style: italic;">Project Development Group, Inc. v. O.H. Materials Corp.,</span> 766 F. Supp. 1348, 1354 (W.D. Pa. 1991), <span class="blsp-spelling-error" id="SPELLING_ERROR_57">aff</span>’d, 993 F.2d 225 (3d Cir. 1993) (“The quantities estimated and prices selected, by nature of the estimate and bid process, do not possess the requisite originality under the copyright laws.”).</span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt">Judge Kane also relied on a 9<sup><span class="blsp-spelling-error" id="SPELLING_ERROR_58">th</span></sup> Circuit opinion, <span class="Apple-style-span" style="font-style: italic;"><span class="blsp-spelling-error" id="SPELLING_ERROR_59">CDN</span> Inc. v. <span class="blsp-spelling-error" id="SPELLING_ERROR_60">Kapes</span></span>, 197 F.3d 1256 (9 Cir. 1999), which confusingly stated the question presented as follows:</span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt"><span class="Apple-style-span" style="font-style: italic;">Whether <span class="blsp-spelling-error" id="SPELLING_ERROR_61">CDN's</span> selection and arrangement of the price lists is sufficiently original to merit protection is not at issue here. <span class="blsp-spelling-error" id="SPELLING_ERROR_62">CDN</span> does not allege that <span class="blsp-spelling-error" id="SPELLING_ERROR_63">Kapes</span> copied the entire lists, as the alleged <span class="blsp-spelling-error" id="SPELLING_ERROR_64">infringer</span> had in <span class="blsp-spelling-error" id="SPELLING_ERROR_65">Feist</span>. Rather, the issue in this case is whether the prices themselves are sufficiently original as compilations to sustain a copyright.</span></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;mso-bidi-font-size:12.0pt">This passage is hopelessly contradictory. The first sentence seems to indicate the court was not evaluating the work as a compilation, a conclusion heightened by the reference to “the prices themselves.” This view is undercut by the Court's final statement of the issue as whether there is sufficient originality as a compilation. Later in the opinion, the court states that “the prices listed are not mere listings of actual prices paid; rather they are <span class="blsp-spelling-error" id="SPELLING_ERROR_66">CDN's</span> best estimate of the fair value of that coin,” but in the next paragraph the court stated “Our holding that the prices are copyrightable is consistent with . . . <span class="blsp-spelling-error" id="SPELLING_ERROR_67">CCC</span></span></p> <span style="font-size:14.0pt;mso-bidi-font-size:12.0pt;font-family:Cambria; mso-ascii-theme-font:minor-latin;mso-fareast-font-family:Cambria;mso-fareast-theme-font: minor-latin;mso-hansi-theme-font:minor-latin;mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi;mso-ansi-language:EN-US;mso-fareast-language: EN-US">Judge Kane’s holding on the contract claim is worth a separate discussion; while he found the claim preempted under the Copyright Act, he held that a contract claim might not be preempted based on a promise not violate trademark law. One can appreciate plaintiff being irked by defendant’s use of its rating, but the Copyright Act should not be abused to stop what is, even according to Judge Kane, a preempted contract claim.</span><!--EndFragment-->William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com15tag:blogger.com,1999:blog-12505562.post-53296127793602598862009-06-08T10:40:00.004-04:002009-06-08T10:59:43.180-04:00My "new" fair use bookWest Publishing just put out a "new" treatise of mine on <span class="il">fair</span> <span class="il">use</span> in copyright. <a href="http://west.thomson.com/productdetail/154531/40850066/productdetail.aspx">Here</a> is a link to buy it ($200, free shipping!). "New" is in quotes because the book goes back to 1985, when <span class="blsp-spelling-error" id="SPELLING_ERROR_0">BNA</span> published the first edition. The book got off to a good start: the week after it was published the Supreme Court cited it in its Harper & Row, Publishers v. Nation Enterprises opinion, the case about the Nation magazine's unauthorized publication of excerpts from former President Gerald Ford's memoirs before those memoirs were published. The Court later cited it in the 2 Live Crew parody case, as have lots of lower courts. In 1995 a second edition was published. But the book languished beginning in the late 1990s and went out of print. I discovered it was out of print in a funny way: I was asked for two copies of it by an erstwhile client. I called up <span class="blsp-spelling-error" id="SPELLING_ERROR_1">BNA</span> and asked for the copies. They said they doubted they had them because the book was out of print and they had destroyed all the copies. This was news to me, but at least all rights reverted to me. (This didn't include, <span class="blsp-spelling-error" id="SPELLING_ERROR_2">btw</span>, the <span class="blsp-spelling-corrected" id="SPELLING_ERROR_3">electronic</span> files which were on a funky proprietary system).<br /><br />In my contract for the book with West, the problem of not notifying the author when the book goes out of print is well taken care of: under the rights given to West for the "new" book, the book can't ever go out of print even if West decides never to publish another copy and pulls it off of <span class="blsp-spelling-error" id="SPELLING_ERROR_4">Westlaw</span>. Gone, apparently, are the days when authors had their copyrights revert when the book goes out of print, but let's thank our stars for the termination rights in Section 304.<br /><br />Anyway, to continue the saga of the out of print fair use book. In 2007, West published the 7 volume, 6,000 page <a href="http://west.thomson.com/productdetail/139343/40449295/productdetail.aspx">general treatise</a> on copyright I wrote. Given that the fair use treatise was out of date, I folded into that general book most of the old <span class="il">fair</span> <span class="il">use</span> treatise as Chapter 10, revised and updated to about 500 pages. (Since I didn't have the electronic files, see above, this meant <span class="blsp-spelling-error" id="SPELLING_ERROR_5">OCR'ing</span> the hard copy and a lot of clean-up work).<br /><br />I have come to think though, given the increased importance of <span class="il">fair</span> <span class="il">use</span>, and the fact that the <span class="il">fair</span> chapter was lost amongst the 6,000 pages of the larger treatise, that I should spin it off into its own book again, so that's what this "new" book is. While it remains part of the 6,000 general treatise, the spin off has two new chapters not found in the general treatise. One chapter is on the early 18<span class="blsp-spelling-error" id="SPELLING_ERROR_6">th</span> century English cases from whence <span class="il">fair</span> <span class="il">use</span> arose, and the other chapter is on current international issues. The old English cases are both interesting and important for showing the boldness of the common law judges in forging the doctrine. I expect to expand the international chapter in the next edition given the increased importance of limitations and exceptions and the debates about the three-step test.<br /><br />The book will be updated once a year and will be reissued every year as a new soft copy to avoid those ultra-annoying pocket parts as well as loose-leaf inserts.William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com5tag:blogger.com,1999:blog-12505562.post-47377184869532260842009-04-09T13:32:00.002-04:002009-04-09T14:35:22.863-04:00Barbara RingerFormer Register of Copyrights Barbara Ringer died this morning at 83. A very private person, there will be no ceremony. It is impossible to overstate Barbara's contributions to U.S. copyright law, including her highly distinguished service as Register of Copyrights from 1973-1980 and as Acting Register from 1993-1994. A career Copyright Office lawyer, she worked with the legends of the Office, including Abraham <span class="blsp-spelling-error" id="SPELLING_ERROR_0">Kaminstein</span> and Arthur Fisher. Her knowledge of both U.S. and international copyright law was breathtaking and unsurpassed, making me look like a <span class="blsp-spelling-error" id="SPELLING_ERROR_1">pisher</span>. There was no one who knew more about arcana, such as renewal, the manufacturing clause, and conceptual separability. The regulations, which she and then General Counsel Jon <span class="blsp-spelling-error" id="SPELLING_ERROR_2">Baumgarten</span> drafted on passage of the 1976 Act to implement that Act involved a herculean effort, and it was hardly the only one going on at the time: an 1,100 page report to Congress performance rights was also being prepared and was issued in June 1978. But she was also a big picture person, with moving law U.S. so that we could eventually join the <span class="blsp-spelling-error" id="SPELLING_ERROR_3">Berne</span> Convention as a top goal, one widely shared within the Copyright Office; she assisted with that effort even after leaving the Office.<br /><br />Its not that things came easy for her; they didn't. Barbara had to sue to get her position as Register. But Barbara had personal and political skills that could meld together the contentious factions that threatened to tear apart every compromise in the 20 year road to passage of the 1976 Act. Her influence with the Congressional committees was unrivalled, especially in the House of <span class="blsp-spelling-corrected" id="SPELLING_ERROR_4">Representatives</span>, where Chairman Robert <span class="blsp-spelling-error" id="SPELLING_ERROR_5">Kastenmeier</span> had a warm, trusting relationship with her, a relationship made possible by Barbara's impeccable integrity, her concern that every voice be heard, her refusal to let an injustice be done but her pragmatic <span class="blsp-spelling-corrected" id="SPELLING_ERROR_6">willingness</span> to take less than what she might want for the greater good. She also was not afraid to speak her mind, especially on behalf of authors, the real authors. While one hears, constantly, corporate chieftains claiming that they're out there fighting for the creators, we all know that is b.s.: the creators are merely an expense item on a balance sheet, to be reduced as much as possible. We also hear politicians make similar paeans to creators, yet when was the last piece of legislation that was passed that <span class="blsp-spelling-corrected" id="SPELLING_ERROR_7">benefited</span> creators at the expense of corporations? When was the last time you heard a government official suggest such a thing?<br /><br />Barbara did. In what is, I believe, the most arcane copyright case the Supreme Court has heard, Mills Music, Inc. v. Snyder, 469 U.S. 153 (1985), the Court, in a 5-4 decision, rules against the songwriter in favor of the music publisher in interpreting Section 304(c)(6)(A). In brief, the question was who receives the royalties from exploitation of a derivative work prepared during the term of the grant, after termination? It was clear that during the term of the grant, the songwriter received royalties according to his or her contract with the music publisher. But what after the songwriter terminated the music publisher's contract? Did the songwriter receive 100% of post-termination royalties, or, would the songwriter continue to receive royalties according to the contract? (The derivative work, in that case a sound recording of the song, could be exploited post-termination because the statute says so). The Second Circuit, per the great Judge James <span class="blsp-spelling-error" id="SPELLING_ERROR_8">Oakes</span> held for the songwriter, but the Supreme Court reversed.<br /><br />Barbara was outraged, and testified before the Senate about the Court's error and the injustice it worked to authors. About music publishers, she said that had not bargained for the post-termination windfall and had done nothing to deserve it. We shall not see the likes of Barbara again; farewell.William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com9tag:blogger.com,1999:blog-12505562.post-66170055579699499002008-11-30T23:20:00.002-05:002008-11-30T23:37:19.192-05:00In Memoriam Sir Hugh Laddie<a href="Baruch%20dayan%20ha-emet%20%20%28http://www.hebrew4christians.com/Blessings/Special_Events/Bad_News/Dayan_Emet/dayan_emet.html%29"> Baruch dyan ha-emet.</a> “Blessed is the Judge of Truth,” is an expression uttered when one hears news of a terrible loss, especially death. It is the expression I used when I heard of the death of Sir Hugh Laddie, <a href="http://en.wikipedia.org/wiki/Honorifics_for_the_dead_in_Judaism.">zikhrono livrakha.</a><br /><br />Sir Hugh was buried today in London. He was born in 1946. His mother is, I believe still alive at the age of 91. Though he didn’t learn a great deal of Yiddish, his mother was fluent in it: when her grandparents fled Russia to England, the only way to communicate with them was in Yiddish. His father died some time ago, but this last year was the first <a href="http://en.wikipedia.org/wiki/Kol_Nidre">Kol Nidre</a> he had missed, due to his health. Although Hugh did not accept the existence of a divine spirit, Kol Nidre had been for him a day of intense family bonding, and so the inability to go to it this last year was a source of regret.<br /><br />When I stopped my blog, Hugh posted a comment urging me to resume. I haven’t resumed it , but the loss of my dear friend warrants a farewell.<br /><br />Sir Hugh studied at Aldenham School and St Catharine's College, Cambridge. In 1980, he and his co-authors Peter Prescott and Mary Vitoria published the first edition of their landmark treatise, The Modern Law of Copyright and Design. (Last year a fourth edition was published). At the time it was seen as a quite courageous thing to do because the existing standard textbook in England - Copinger and Skone James - was taken for granted. At the time of Hugh’s treatise, there was no perceived need for anything else. Paul Torremans, reviewing the third edition in EIPR in 2001, described some of the chapters as revolutionary: they dared to have views that did not jibe with the status quo, and to express those views publicly.<br /><br />After being called to the bar, Sir Hugh also performed valuable public service: in 1992 he was appointed Vice Chairman of the Copyright Tribunal, a statutory body that settles disputes between collecting societies and users of copyrighted works over royalty rates. In 1986, he was appointed a Queen’s Counsel (having been called to the bar in 1969). From 1981 to 1986, he served as a counsel for Her Majesty’s Treasury, a capacity in which he represented the British Government and the British Patent Office in all areas of Intellectual Property law litigation.<br /><br />After 25 years as a successful IP barrister (during which he developed a well-deserved reputation as an expert patent and trademark lawyer too), he was appointed a Justice of the High Court in 1995, hearing cases in the Chancery Division and Patents Court (which includes copyrights).<br /><br />On the bench, he continued the honesty and humor that was as much a part of his personality as his searing intellect and personal warmth. Here, for example, is an excerpt from <a href="http://news.bbc.co.uk/2/hi/entertainment/3024910.stm">a BBC story</a>, about a dispute between two bands:<br /><br /><span style="font-style: italic;">The judge in a court case involving two groups called Blue has been demonstrating his knowledge of the finer points of the pop and rock world.</span><br /><br /><span style="font-style: italic;">Mr Justice Hugh Laddie is in charge of the case in which pop act Blue are being sued by a 1970s rock band of the same name. The original Blue want to prevent them from using the name, saying their own career and reputation is being damaged. They are suing the contemporary boy band and their label EMI/Virgin, for up to £5m.</span><br /><br /><span style="font-style: italic;">As proceedings began at the High Court, Mr Justice Laddie defied the image of Britain's crusty, out-of-touch judiciary with some pithy examination of counsel. The judge - known for his broad taste in music - appeared surprised when the older band's barrister said their reputation was being threatened.</span><br /><br /><span style="font-style: italic;">"Are you seriously saying that fans of one group would mistake one for the other?" he asked Charles Purle QC.</span><br /><br /><span style="font-style: italic;">“There is somewhat a difference of appearance. One is aged like you and me, the other is a boy band." Mr Purle said: "My clients were a boy band in the 1970s."</span><br /><br /><span style="font-style: italic;">The judge replied: "Oh no. Boy band is a style of music that is a bit more recent than the Charleston."</span><br /><br />He resigned in 2005, the first High Court judge to do so in 35 years. His resignation caused a furor (in British spelling "furore," signifying a great degree of sturm und drang than the shorter, more base U.S. emotion). <a href="http://business.timesonline.co.uk/tol/business/law/article717515.ece%20has">An article</a> in the Times Online awhile after his resignation, a few wonderful quotes from Sir Hugh:<br /><br /><span style="font-style: italic;">I was at the Bar for 25 years. I had a truly stupendous time. I still think, if you’re lucky and get a good practice, it’s a great job.” But with the heavy and tiring workload — “it was the only thing my wife and I would argue about” — he had no doubt about becoming a High Court judge. “There was only one direction — down. You can’t stay at the top for ever.”</span><br /><br /><span style="font-style: italic;">For the first five years, he enjoyed it. But aspects jarred. “One thing is that you are really isolated. You can go all day without speaking to another judge.” So he set up a common room where judges could meet weekly for teas. Laddie, who was senior judge of the Patents Court, also believed strongly that the courts should serve litigants, not the profession. “That meant I was determined to try to cut costs to a point where I used to irritate people.</span><br /><br /><span style="font-style: italic;">“Everyone has egos — it’s a matter of how difficult you find it to control.” Laddie did not endear himself to counsel when, at the start of a case, having read the papers, he would make clear his preliminary views. “Obviously I had provisional thoughts — it would be amazing if I didn’t. Some would say: he’s made up his mind. I hadn’t, of course.”</span><br /><br /><span style="font-style: italic;">Laddie also objected to sitting on Chancery cases beyond his expertise. Had he taken a case outside his field at the Bar, he’d have left himself open to a negligence action, he says. But the moment he was a judge he was expected to do just that. “It was challenging — like high-wire walking — but I didn’t think it fair for clients to be learning at their expense.” Most worrying were the cases involving unrepresented litigants, with applications “ in an area of law that I knew nothing about”.</span><br /><br />Nevertheless, despite the extremely hostile reactions of some of his colleagues to his resignation, <a href="http://news.bbc.co.uk/2/hi/uk_news/magazine/7495502.stm">in July of this year</a>, Sir Hugh defended the British judiciary: "They were not people who used quill pens. They're computer literate, savvy, quite ordinary, nice people and not hidebound traditionalists.”<br /><br />Rather than retiring to the country and practicing his fly-fishing technique, Sir Hugh joined the IP boutique Willoughby & Partners as a consultant. In that capacity, I had the great joy to hire him in 2007 as an expert on UK law for an amicus brief I filed in a case involving Uri Geller. Plaintiff asserted that a resident of Pennsylvania who was a critic of Geller’s committed a violation of UK law by uploading an allegedly infringing video on to YouTube’s servers, from which the video was hosted for others to view. Sir Hugh wrote in his report, however, that “a finding of infringement through authorization is dependent upon there being a finding that the person who was authorized, committed an infringement of United Kingdom copyright by performing, in the United Kingdom, one of the activities set out in section 16(1).” He concluded: “It follows from this that if the primary acts of which the plaintiff complains took place outside the United Kingdom there cannot be infringement of British copyright. Alleging authorization makes no difference to this. It is not an infringement to authorize a non-infringing activity.” After I filed Sir Hugh’s report, plaintiff did not even bother to file an answer and the case was settled.<br /><br />In addition to being a consultant to the Willoughby firm, Sir Hugh became Professor Laddie when, in 2006, he became a Professor of Intellectual Property Law at University College London. There he founded the Institute of Brand and Innovation Law (IBIL). He wrote me a note recently about this post:<br /><br /> <span style="font-style: italic;">I thought that being a Professor entailed nothing more than walking around looking sombre while talking in obscure English. Apparently there's more to it than that. There are lectures, exams, exam-marking and begging people for support funds. At least on the last issue I got some help from a friend. I had sent out a number of begging letters to various firms of lawyers and was having dinner with this friend. I told him what I had done. .. . He asked me whether I had telephoned all the people to whom I had sent a letter. I was horrified. I didn't think it was part of my job to actually phone people up and ask. He pointed out, not unreasonably, that most people do not respond to letters asking for money and that really what you have to do is to speak to them either face-to-face or on the phone so that they feel too embarrassed to refuse. … I have got quite used to it now. I have developed an extremely thick skin and, by English standards, I think I have been rather successful. </span><br /><br />In connection with the University’s Institute of Brand and Innovation Law , in June of this year, he gave an interview on the question of piracy in China and made these remarks. (I would love to know whether they made their way to USTR):<br /><br /><span style="font-style: italic;">China has become a scapegoat for the West’s intellectual property problems, a leading lawyer said today. Sir Hugh Laddie, a former High Court judge, said that although China had issues with counterfeiting and other forms of intellectual property theft, there was a “complete misconception” about the scale of the problem relative to other countries. Sir Hugh said: “Of course there is counterfeiting in China, but the same goes on in the US and Europe. Pro rata, the biggest source of pirated computer software in the world in the US.”</span><br /><br />Sir Hugh’s courage extended to his decisions on the bench, most famously in the Arsenal case. <a href="http://www.schwimmerlegal.com/2002/12/laddie_overrule.html">Marty Schwimmer </a>described Sir Hugh’s actions in the case this way,<br /><br /><span style="font-style: italic;">A vendor sold scarves with the Arsenal football club name and indicia. The issue turns on whether use of a team name in such way is trademark use in that sense that the team name designates the origin of the good, or is the team name and logo merely decorative use in the sense that the wearer of the scarf is merely communicating allegiance to that team. It's my understanding that Laddie himself tends toward the latter view ... . Laddie referred the case to the ECJ. Now that the ECJ has ruled that of course it's trademark use, Laddie has refused to follow its decision, apparently relying on the fact that the ECJ made fresh findings of fact, something it had no power to do.</span><br /><br /><span style="font-style: italic;">The court of appeals reversed him. Reversal by a higher court doesn't of course mean HL was wrong, only that he had the courage to point out the dangerous usurpation by the EU, an "Emperor Has No Clothes" statement that must have embarrassed the court of appeals. May we all emulate him. Nor did his opinion stem from antipathy toward EU rights. Quite the contrary, in his earlier, 2001 Burrell Competition Lecture, "National I.P. Rights: A Moribund anachronism in a Federal Europe," 23 E.I.P.R. 402 (2001), he concludes "Now that we are in a single market, our domestic economy is Community-wide. So should our I.P. rights be. ... I can only hope that the Community trade mark will prove such a success that users will vote with their feet and will use it to the exclusion of national rights."</span><br /><br />In the field of copyright, two of Sir Hugh’s articles should be laminated and placed on your desk so they may be re-read often. The first is his 1995 Stephen Stewart lecture, "Copyright: Over-strength, Over-regulated, Over-rated", published in 18 European Intellectual Property Review 253 (1996). Sir Hugh began the lecture this way:<br /><br /><span style="font-style: italic;">The purpose of this lecture, given in honour of the memory of a clever and perceptive copyright lawyer, is to consider the current state of copyright law in this country. Does it meet current commercial needs? My purpose this evening is to ask questions and possibly raise doubts. Copyright is one of the quartet of monopolies which form the core of what is now known as intellectual property law. The others, of course, are patents, trade marks and registered designs. I suppose that since the introduction of the unregistered design right in the 1988 legislation, there really is a quintet of such rights. Each, in its own way, places a fetter on the right of others to compete in the market-place with the originator of the right or his employer. Therefore, to some extent, each distorts trade.</span><br /><br /><span style="font-style: italic;">If this were all, these monopolies would work against the interests of the public at large. At the simplest level it can be said that the existence of a monopoly enables the monopolist to increase his prices or restrict supply as he pleases. Of course, we know that that is much too superficial a view. It ignores all the benefits to the public at large which can flow from the increased creativity and investment which are the product of a well-balanced monopoly system. But we must always bear in mind that monopoly legislation is the end result of a balancing act: is the restraint on competition justified by the benefits which it gives to society at large? In this lecture I would like to consider this basic balancing act as it applies to copyright.</span><br /><br />One of the areas where he felt the balance was out of whack was with the length of copyright and the low standard for originality, seen in this passage:<br /><br /><span style="font-style: italic;">[A]s a result of the Term Directive, the copyright in the first category of works, that is to say, literary works and so on, is now life of the author plus 70 full years. This additional 20 years has been imposed throughout the Member States of the European Union to bring us into line with the domestic law of Germany. As is now familiar in copyright law, the process was one of leveling up the protection rather than levelling down. The result of this new term is that if, for example, a young computer programmer writes a new piece of computer software, he generates a monopoly which will normally last for over 100 years. Depending on his longevity, it may last more than 150 years. Similarly, if a politician writes letters or speeches which are of general historic interest, they also may be protected for a century or more. Indeed, if a modern-day architect were to design a new Albert Memorial, he would have the satisfaction of knowing that his copyright is likely to be sprightly and in the prime of life long after the concrete and steel of his architectural creation have started to crumble.</span><br /><br /><span style="font-style: italic;">The question to be asked is: what justification is there for a period of monopoly of such proportions? It surely cannot be based on the principle of encouraging artistic creativity by increasing the size of the carrot. No one is going to be more inclined to write computer programs or speeches, compose music or design buildings because 50, 60 or 70 years after his death a distant relative whom he has never met might still be getting royalties. It is noticeable that this expansion of term is not something which has only occurred in the last decade. On the contrary, it has been a trend which has been in evidence for the whole of this century. Before the 1911 Act, the term of copyright in artistic works extended to seven years after the author's death. In 1911 this was extended to 50 years after death. The growth of term is in fact greater than these figures suggest. Life expectancy in 1910 was far shorter than it is now. The result is that a monopoly which was expected to last about four decades in 1910 should now be expected to last on average more than three times as long.</span><br /><br /><span style="font-style: italic;">Indeed, I believe that the same criticism of excessive duration can be leveled at the 50-year flat term which applies to films, recordings and broadcasts. It may be possible to pick out a few creations of exceptional artistic or commercial merit where one could argue for lengthy protection - for example, the recordings of Rostropovich or the Beatles - but is it right that all copyright should be protected on the basis of what might be thought justified for the exceptional few? Furthermore, it is possible to argue that these long copyright terms are not necessary to protect the commercial exploitation of the works themselves. Most works protected by copyright are exploited very rapidly, if at all. This is so whether we are considering films and records or literary works such as computer software. Even books such as those that win the Booker prize are only commercially successful for a short time and then, to all intents and purposes, pass away. Yet the dead hand of copyright lingers on, in most cases serving no useful purpose.</span><br /><br /><span style="font-style: italic;">Another of the problems with copyright law is that, unlike inventions protected by patent or designs protected by registration, the requirements for qualification are so low as to be virtually non-existent. Virtually any written material, any sketch and any film footage or sound recording is automatically protected. This has practical consequences. In Elanco v Mandops, the Court of Appeal accepted, as it had to, that a label of instructions placed on the side of a barrel of herbicide was a copyright literary work. No doubt depending on the youth of the literary genius who wrote it, the label will be protected for more than a century and perhaps for as long as a century and a half - certainly well beyond the date when for safety or commercial reasons the product has been removed from the market. So one of the troubles with copyright, then, is that it springs up to protect nearly every creation of the human mind, be it ever so trivial. As another member of the judiciary put it, the fact that our system of communication, teaching and entertainment does not grind to a standstill is in large part due to the fact that in most cases infringement of copyright has, historically, been ignored.</span><br /><br /><br />He criticized the insane criminalization of the economic tort of copyright infringement: “We have … reached the stage where taxpayers' money is being used to enforce private rights which many might think are more than adequately protected by civil remedies. I should also mention that it appears that in most cases it is not the poor and weak who are using these criminal provisions but the rich and well organised.” Importantly for the current debates around the world on air use versus fair dealing, Sir Hugh came out in favor of fair use, beginning with criticisms of the 1988 UK Copyright Act’s enumerated and lengthy list of possible fair dealings:<br /><br /><span style="font-style: italic;">These detailed and pedantic exceptions to copyright protection, and their predecessors in the 1956 Act, are not only difficult to understand in some cases, but they also reinforce the perception that virtually all reproductions of copyright works, no matter how innocuous, are infringements. Is it surprising then, that when, for the purposes of advertising the film "Carry on Cleo', a poster was created which was a harmless but humorous spoof of a similar poster for the Elizabeth Taylor/Richard Burton film "Cleopatra', it was held to infringe copyright.</span><br /><br /><span style="font-style: italic;">It would be possible to go on criticising the width of our copyright laws, but perhaps I have said enough. It might be more useful to inquire why our law has developed as it has. I have mentioned already the value and size of the industries which now believe they need extensive copyright protection to safeguard their income stream. They, quite properly, lobby for their interests. But who lobbies against them? There is no trade union of copyright infringers. Support for any limitation on copyright is easily portrayed as support for pirates - the usual pejorative global expression for infringers. It is depicted as support for the parasites of industry. Is it surprising, then, that the scope of protection gets ever wider? I suggest that the drafting of the legislation bears all the hallmarks of a complacent certainty that wider copyright protection is morally and economically justified. But is it?</span><br /><br />Sir Hugh’s second speech, his inaugural talk as a professor at UCL, was delivered on December 4, 2007; it is entitled “The Insatiable Appetite for Intellectual Property Rights.” Alas, I do not think it has been published or is available online. In this talk, Sir Hugh noted a point deliberately obscured by the property rights rhetoric, that competition, not ownership is the natural state of affairs:<br /><br /><span style="font-style: italic;">We believe in competition. It is competition which, by and large, delivers better and cheaper goods and services to the consumer. Competition is the whip</span><br /><span style="font-style: italic;">which drives traders to offer more for less to their customers. … If they don’t they will lose market share and profits to competitors who do. In our system, competition is king. It is the enemy of complacency. …</span><br /><br /><span style="font-style: italic;">So where do IP rights fit into this? After all, they appear to undermine the very basis of our economic success. They hinder by creating areas of exclusivity. What are they supposed to deliver which justifies this subversion of the free market?</span><br /><br />Sir Hugh’s answer was this:<br /><br /><span style="font-style: italic;">The function of IP rights is to provide an economic incentive to goods and services, which, absent the would not exist or would take many more years to reach the market. They make up for a defect in the competitive system by supplying an incentive where otherwise there would be none.</span><br /><br />This answer is orthodox, but here is how Sir Hugh ties the orthodoxy into his views on competition:<br /><br /><span style="font-style: italic;">IP rights are the carrot to competition’s stick. Their purpose is not to displace competition but to modify it, to create sufficient economic incentive to justify the labour and investment in new products or art, but, after that incentive has worked its magic, to allow the normal forces of competition to have their way. … [O]nce the incentive has had its effect there is no further justification for its retention. It has done its work and competition should be allowed to return.</span><br /><br />It is this last point that the property rights rhetoric wish to deny, but which Sir Hugh won’t allow. Sir Hugh concluded as follows:<br /><br /><br /><span style="font-style: italic;">We should be trying to hone the system so that the greatest rewards and encouragement go to</span><br /><span style="font-style: italic;">those industries which need and deserve them the most. Where IP rights perform their function of advancing the science or arts, they should be encouraged to do so. Where or to the extent that</span><span style="font-style: italic;"> they do not, they have no justification and the normal discipline of competition should apply. The gluttony which has resulted in the growth of completely unnecessary or excessively long IP rights undermines the system itself. As Shakespeare wrote in Richard II, </span><br /><span style="font-style: italic;">--“With eager feeding food doth choke the feeder.”</span><br /><br />We have lost a great treasure; a man whose erudition and practical experience rightly gave his views tremendous influence; a man whose honesty and candor was as rare as it is essential. Sir Hugh faced death as he did life, and we can learn from him in this too. He did not have a fear of death for himself, but instead worried about how his death would upset his beloved wife Stecia and children. Shortly his death he told me:<br /><br /><span style="font-style: italic;">I am as greedy as the next man and want more of the fun and love-filled days that I have enjoyed in the past. But all these things come to an end at some time and I am not in a position to complain. I have a wonderful wife, three great children, six challenging and fun-filled grandchildren, have had a remarkably enjoyable career and have achieved more than I deserved and, last but not least, have a collection of wonderful and generous friends. What more could I ask for?</span>William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com7tag:blogger.com,1999:blog-12505562.post-49178289282763352362008-08-08T13:03:00.003-04:002008-08-08T13:12:32.313-04:00Restoring Old PostsThe voice of the people has been heard. I will restore the posts, hopefully by tomorrow. This is not what I would prefer, but I respect that almost everyone else feels differently, other than those anonymous posters who were happy for the blog to go anyway. As I mentioned before, because I laboriously deleted the posts one-by-one, I needed a tool to capture the actual URLs for each post, which isn't as easy as it sounds since the URL did not always match the title of the blog. Thanks to Peter Ecklersley, who developed very cool tool to capture the URLs, and the great Blogger support team, almost all have been recaptured. They were recaptured as drafts though and there are posting limits that have to be overridden, so some work needs to be done yet. I will also try and cross reference those posts that were not captured and add them later.<br /><br />Because so many people wrote asking for an archive, I will also compile an archive and send it to those who asked for it. That archive will not contains comments because the actual posts will be available for people to access. Deleting the comments from the archived posts will helpfully reduce the size of the archive, and avoid unanswered questions about the status of comments.<br /><br />Thanks all of you for your kind words, and I hope restoring the links will show will my appreciation.William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com34tag:blogger.com,1999:blog-12505562.post-5485243637686142712008-08-06T16:05:00.004-04:002008-08-06T18:00:30.296-04:00Archiving the BlogIt may sound trite to say I am overwhelmed by the response to ending the blog, but I am. I have read all the requests to either restore old posts or create an archive of them. As much care as I gave to the posts (well, most of the time), I regarded them as ephemera. In the past I weeded out old ones I thought unsuccessful. This time, I deleted them one by one, rather than just killing the blog in its entirety since if I had killed the blog in its entirety, that would have simultaneously killed the last post announcing the end of the blog too. But because I eliminated the posts one by one, to restore them, I would have to restore them one by one, by URL, rather than by name of the post. That's way too much work for something I am not wild about anyway.<br /><br />But, since so many people asked, I am doing this: I am creating a file with most of the posts (weeding out really trivial one). I will organize them by subject matter too, like registration issues, or infringement issues, architectural works, photographs, or discrete policy issues etc. I will finish in a number of days and will happily send the file to anyone who wants it. (You can email me at: williampatry@yahoo.com). I am happy if anyone wants to take the file and host it. I am also happy for anyone to copy any or all of the cached copies and do whatever they want with it. I will also revisit the issue of posting again after I have had a break and if I can figure out the answer to the problems I noted.<br /><br />Thank you all very much for your comments and support. I still have my day job doing copyright, I still have the treatise which I update twice a year, and I may have a book on copyright discourse if I can find something constructive to say.<br /><br /><br />BillWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com18tag:blogger.com,1999:blog-12505562.post-47606692448695378622008-08-01T21:12:00.011-04:002008-08-12T20:56:49.196-04:00End of the BlogI have decided to end the blog, after doing around 800 postings over about 4 years. I regret closing the blog and I owe readers an explanation. There are two reasons.<br /><br />1. The Inability or Refusal to Accept the Blog for What it is: A Personal Blog<br /><br />I have been a full-time copyright lawyer for 26 years. My late mother, <span class="blsp-spelling-error" id="SPELLING_ERROR_0">aleha</span> ha-shalom, told me repeatedly that I had a <a href="http://en.wikipedia.org/wiki/Jewish_education">religious obligation to learn every day,</a> and I have honored her memory by doing exactly that. Learning also involves changing how you think about things; it doesn't only mean reinforcing the existing views you already have. In this respect, Second Circuit Judge Pierre <span class="blsp-spelling-error" id="SPELLING_ERROR_1">Leval</span> once said that the best way to know you have a mind is to change it, and I have tried to live by that wisdom too. There are positions I have taken in the past I no longer hold, and some that I continue to hold. I have tried to be honest with myself: if you are not genuinely honest with yourself, you can't learn, and if you worry about what others think of you, you will be living their version of your life and not yours.<br /><br />I started the blog when I was still in private practice with the above goals in mind and one more: I felt there was no blog devoted to the <span class="blsp-spelling-error" id="SPELLING_ERROR_2">geekery</span> of copyright; meaning a blog where people who loved copyright could come and discuss copyright issues in a non-partisan way. In order to encourage open discussion I permitted not only comments but anonymous and pseudonymous comments. I did that because I wanted to encourage the largest number of people to participate, and after four years I believe that was the right decision. But it is also the right decision to end the blog. While in private practice I never had the experience of people attributing my views to my firm or to my clients. I moved from private practice to Google I put a disclaimer to the effect that the views in the blog (as in the past) were strictly mine. I also set a policy, which I strictly adhered to, of never discussing cases Google was involved in, and I refrained from criticizing those with whom Google was involved in lawsuits. I did not run ads, including not using <span class="blsp-spelling-error" id="SPELLING_ERROR_3">Google's</span> AdSense program. I cannot see what more I could have done to make what was a personal blog more separate from my employer.<br /><br />For the first year after joining Google, with some exceptions, people honored the personal nature of the blog, but no longer. When other blogs or news stories refer to the blog, the inevitable opening sentence now is: "William <span class="blsp-spelling-error" id="SPELLING_ERROR_4">Patry</span>, <span class="blsp-spelling-error" id="SPELLING_ERROR_5">Google's</span> Senior Copyright Counsel said," or "<span class="blsp-spelling-error" id="SPELLING_ERROR_6">Google's</span> top copyright lawyer said... ." There is nothing I can do to stop this false implication that I am speaking on <span class="blsp-spelling-error" id="SPELLING_ERROR_7">Google's</span> behalf. And that's just those who do so because they are lazy. Others, for partisan purposes, insist on on <span class="blsp-spelling-error" id="SPELLING_ERROR_8">misdescribing</span> the blog as a Google blog, or in one case involving a think tank, darkly indicating also a la Senator Joe McCarthy, that in addition to funding from Google, there may be other sources of funding too. On Blogger, blogs are free. The blog had no funding because it doesn't cost anything, because I don't run ads, and because it was my personal blog, started before I joined Google.<br /><br />On top of this there are the crazies, whom it is impossible to reason with, who do not have a life of their own and so insist on ruining the lives of others, and preferably as many as possible. I asked myself last week after having to deal with the craziest of the crazies yet, "why subject yourself to this?" I could come up with no reason why I should: My grandfather chose to be a psychiatrist, but I chose a different professional path, one that doesn't obligate me to put up with such nonsense.<br /><br />In the end, I concluded that it is no longer possible for me to have a blog that will be respected for what it is, a personal blog. I don't draw any grand conclusions from this and hope others don't either. The decision was 100% mine. No one at Google ever asked, suggested, or hinted that I should end the blog. To the contrary, in keeping with <span class="blsp-spelling-error" id="SPELLING_ERROR_9">Google's</span> deep commitment to free speech, the company encourages blogs like mine, and has stood completely behind me.<br /><br />2. The Current State of Copyright Law is too depressing<br /><br />This leads me to<span style="font-style: italic;"> </span>my final reason for closing the blog which is independent of the first reason: my fear that the blog was becoming too negative in tone. I regard myself as a centrist. I believe very much that in proper doses copyright is essential for certain classes of works, especially commercial movies, commercial sound recordings, and commercial books, the core copyright industries. I accept that the level of proper doses will vary from person to person and that my recommended dose may be lower (or higher) than others. But in my view, and that of my cherished brother Sir Hugh Laddie, we are well past the healthy dose stage and into the serious illness stage. Much like the U.S. economy, things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like <span class="blsp-spelling-error" id="SPELLING_ERROR_10">Humpty</span>-<span class="blsp-spelling-error" id="SPELLING_ERROR_11">Dumpty</span>, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.<br /><br />It is profoundly depressing, after 26 years full-time in a field I love, to be a constant voice of dissent. I have tried various ways to leaven this state of affairs with positive postings, much like television news shows that experiment with "happy features." I have blogged about great articles others have written, or highlighted scholars who have not gotten the attention they deserve; I tried to find cases, even inconsequential ones, that I can fawn over. But after awhile, this wore thin, because the most important stories are too often ones that involve initiatives that are, in my opinion, seriously harmful to the public interest. I cannot continue to be so negative, so often. Being so negative, while deserved on the merits, gives a distorted perspective of my centrist views, and is emotionally a downer.<br /><br />So between the inability or refusal of some people to accept the blog for what it is -- a personal blog --- and my inability to continue to be <a href="http://en.wikipedia.org/wiki/Cassandra">Cassandra</a>, I decided it was time to pull the plug. I thank profusely all those who have accepted the blog for what it is, and who have contributed so much to it and to my learning over the years. I intend to spend my free time figuring out a constructive way to talk about the difficult issues we face and how to advance toward their solution.William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com208tag:blogger.com,1999:blog-12505562.post-50738005778817333232008-08-01T07:33:00.005-04:002008-08-08T15:43:12.154-04:00It was a Crime Alright but was it Pled Properly?The Sixth Circuit just handed down a case that involves unusual questions of pleading in a criminal indictment, <a href="http://www.ca6.uscourts.gov/opinions.pdf/08a0270p-06.pdf">United States v. <span class="blsp-spelling-error" id="SPELLING_ERROR_0">Teh</span></a>. Defendant <span class="blsp-spelling-error" id="SPELLING_ERROR_1">Thian</span> <span class="blsp-spelling-error" id="SPELLING_ERROR_2">Teh</span> was arrested at the Detroit airport after flying in to the country from Malaysia. Customs had previously seized shipments of counterfeit DVDs sent to defendant's business in Oklahoma. When his luggage was searched at the airport, Customs officials found four boxes with 756 DVDs and 284 DVD sleeve packages. The DVDs were counterfeit and of poor quality. Defendant claimed he didn't know what was in the boxes and that a friend had asked him to deliver them to the friend's daughter. There was bench trial; defendant was convicted and appealed.<br /><br />Defendant was charged with "fraudulently or knowingly import[<span class="blsp-spelling-error" id="SPELLING_ERROR_3">ing</span>] ... merchandise contrary to law." He was charges with violating 18 <span class="blsp-spelling-error" id="SPELLING_ERROR_4">USC</span> 545, which pretty much states what I just quoted. But what was the law that defendant acted contrary to? Obviously the copyright act, but the government never referred to any statute other than Section 545, nor specified at any time how the proof met the contrary to law element of Section 545. This failure, the court of appeals noted, "[w]<span class="blsp-spelling-error" id="SPELLING_ERROR_5">ithout</span> question ... caused considerable confusion for <span class="blsp-spelling-error" id="SPELLING_ERROR_6">Teh</span>, the government, and the district court." The indictment did allege that the DVDs were "counterfeit" and "in violation of ... copyrights," but as defendant pointed out "a copyright is not a law."<br /><br />In the end, the court of appeals confirmed the conviction, as a kind of harmless error, but there is nothing harmless in this type of counterfeiting: it is a cancer on the motion picture industry, and a quite appropriate use of government resources to stop it. Hopefully, in light of the <span class="blsp-spelling-error" id="SPELLING_ERROR_7">Teh</span> case, some of those resources will be allocated to proper drafting of indictments.<br />H.T. to C.E. <span class="blsp-spelling-error" id="SPELLING_ERROR_8">Petit</span>.William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com1tag:blogger.com,1999:blog-12505562.post-88340444194155405952008-07-30T23:05:00.006-04:002008-08-08T15:43:49.974-04:00Educators Forced to Become MPAA's CopsOn July 30<span class="blsp-spelling-error" id="SPELLING_ERROR_0">th</span>, the House and Senate conferees approved the Higher Education Act <span class="blsp-spelling-error" id="SPELLING_ERROR_1">reauthorization</span> conference report, H.R. Rep. 110-803, to H.R. 4137. The bill, expected to become law soon, includes the College Opportunity and Affordability Act. Some may recall efforts last year to condition federal aid to universities on those institutions employing filtering technology. Senate Majority leader Harry Reid would have also mandated that the Secretary of Education compile a 25 “worst offenders" list of those schools with the highest levels of illegal P2P file sharing. The idea <span class="blsp-spelling-error" id="SPELLING_ERROR_2">wasn</span>’t original, <span class="blsp-spelling-error" id="SPELLING_ERROR_3">MPAA</span> had <a href="http://arstechnica.com/news.ars/post/20070402-mpaa-names-its-top-25-movie-piracy-schools.html">already </a>compiled its the top 25 list. <span class="blsp-spelling-error" id="SPELLING_ERROR_4">MPAA</span> head Dan <span class="blsp-spelling-error" id="SPELLING_ERROR_5">Glickman</span> put out this press release at the time:<br /><br /><br /><span style="font-style: italic;">Some college students are abusing powerful taxpayer funded computer networks to download and distribute movies and other copyrighted material which is why we are committed to working with universities to develop and implement plans to address this problem. We commend Senator Reid for his leadership in getting this important legislation passed through the Senate which will help encourage universities to do more.</span><br /><br />At the time, Mr. <span class="blsp-spelling-error" id="SPELLING_ERROR_6">Glickman</span> estimated that downloading at universities cost the industry $500 million annually. Why not the Austin Powers ONE BILLION DOLLARS? Apparently members of Congress later failed to read the <span class="blsp-spelling-error" id="SPELLING_ERROR_7">MPAA</span>’s January 2008 <a href="http://arstechnica.com/news.ars/post/20080122-oops-mpaa-admits-college-piracy-numbers-grossly-inflated.html">admission </a>that its numbers in a commissioned survey about the extent of alleged unauthorized file sharing on campus were way off, the result of alleged “human error.” But even the new number was phony and also failed to take into account the fact that most students live off campus.<br /><br />This raises one of the features of Washington DC that rightly baffles those outside the Beltway: how is that a trade association gets an issue so wrong, but then still manages to get legislation passed that addresses a non-problem that the association deliberately concocted? The answer, supplied by Mr. <span class="blsp-spelling-error" id="SPELLING_ERROR_8">Glickman</span>, is: leadership.<br /><br /><span class="blsp-spelling-error" id="SPELLING_ERROR_9">MPAA</span>’s initial efforts were defeated fortunately, and the history of the bill during late 2007 and early 2008 is recounted in a series of very informative posts by Anne <span class="blsp-spelling-error" id="SPELLING_ERROR_10">Broache</span> for <span class="blsp-spelling-error" id="SPELLING_ERROR_11">Cnet</span> <a href="http://news.cnet.com/8301-10784_3-9866181-7.html?tag=newsmap">here</a> ,<a href="http://news.cnet.com/8301-10784_3-9865842-7.html"> here</a>, and <a href="http://news.cnet.com/Anti-P2P-college-bill-advances-in-House/2100-1028_3-6218834.html">here</a>. Congress, in the bill that just passed, instead of mandating filtering and bad boy lists, mandated various requirements for educators to undertake, all of which involve spouting <span class="blsp-spelling-error" id="SPELLING_ERROR_12">MPAA</span> and <span class="blsp-spelling-error" id="SPELLING_ERROR_13">RIAA</span>’s propaganda. Here are the relevant pages from the Joint Explanatory Statement of the Managers in the Conference Committee report describing the requirements:<br /><br /><span style="font-style: italic;">Institutional and Financial Assistance Information for Students.</span><br /><br /><span style="font-style: italic;">The Senate amendment and the House bill require institutions to make available to current and prospective students the institution of higher education's policies and sanctions related to copyright infringement, including a description of actions taken by the institution of higher education to detect and prevent the unauthorized distribution of copyrighted materials on the institution of higher education's technology system.</span><br /><br /><span style="font-style: italic;">Both the Senate and the House recede with an amendment to replace language in (iv) with language requiring institutions to make available the development of plans to detect and prevent unauthorized distribution of copyrighted material on the institution of higher education's information technology system which shall, to the extent practicable, include offering alternatives to illegal-downloading or peer-to-peer distribution of intellectual property, as determined by the institution of higher education in consultation with the Chief Technology Officer or other designated officer of the institution.</span><br /><br /><span style="font-style: italic;">The Conferees have combined elements from both bills to require institutions to advise students about this issue and to certify that all institutions have plans to combat and reduce illegal peer to peer file sharing.</span><br /><br /><span style="font-style: italic;">Experience shows that a technology-based deterrent can be an effective element of an overall solution to combat copyright infringement, when used in combination with other internal and external solutions to educate users and enforce institutional policies.</span><br /><br /><span style="font-style: italic;">Effective technology-based deterrents are currently available to institutions of higher education through a number of vendors. These approaches may provide an institution with the ability to choose which one best meets its needs, depending on that institution's own unique characteristics, such as cost and scale. These include bandwidth shaping, traffic monitoring to identify the largest bandwidth users, a vigorous program of accepting and responding to Digital Millennium Copyright Act (<span class="blsp-spelling-error" id="SPELLING_ERROR_14">DMCA</span>) notices, and a variety of commercial products designed to reduce or block illegal file sharing.</span><br /><br /><span style="font-style: italic;">Rapid advances in information technology mean that new products and techniques are continually emerging. Technologies that are promising today may be obsolete a year from now and new products that are not even on the drawing board may, at some point in the not too distant future, prove highly effective. The Conferees intend that this Section be interpreted to be technology neutral and not imply that any particular technology measures are favored or required for inclusion in an institution's plans. The Conferees intend for each institution to retain the authority to determine what its particular plans for compliance with this Section will be, including those that prohibit content monitoring. The Conferees recognize that there is a broad range of possibilities that exist for institutions to consider in developing plans for purposes of complying with this Section.</span><br /><br /><span style="font-style: italic;">Numerous institutions are utilizing various technology based deterrent in their efforts to combat copyright infringement on their campuses. According to a report of the Joint Committee of the Higher Education and Entertainment Communities, many institutions of higher education have taken significant steps to deal with the problem. Indiana University, for example, hosts an extensive "Are you legal?" educational campaign for students on the issues, and enforces campus policies on proper use of the network. It acts on <span class="blsp-spelling-error" id="SPELLING_ERROR_15">DCMA</span> notices by disconnecting students from the network and requires tutorials and quizzes to restore service. Second offenders are blocked immediately and are sent to the Student Ethics Committee for disciplinary action.</span><br /><br /><span style="font-style: italic;">Audible Magic's <span class="blsp-spelling-error" id="SPELLING_ERROR_16">CopySense</span> Network Appliance provides comprehensive control over Peer-to-Peer (P2P) usage on a university's network. The <span class="blsp-spelling-error" id="SPELLING_ERROR_17">CopySense</span> Appliance identifies and blocks illegal sharing of copyrighted files while allowing other legitimate P2P uses to continue. It filters copyrighted P2P content by sensing an electronic fingerprint unique to the content itself, which is very similar to the way virus filters operate.</span><br /><br /><span style="font-style: italic;">Red Lambda's "Integrity" is a network security solution dedicated to the management of file-sharing activities via protocols like P2P, <span class="blsp-spelling-error" id="SPELLING_ERROR_18">IM</span>, <span class="blsp-spelling-error" id="SPELLING_ERROR_19">IRC</span>, and FTP. This technology is able to detect all P2P, OS file-sharing, FTP, <span class="blsp-spelling-error" id="SPELLING_ERROR_20">IM</span>, proxy use, <span class="blsp-spelling-error" id="SPELLING_ERROR_21">Skype</span> and application tunneling over HTTP, HTTPS, <span class="blsp-spelling-error" id="SPELLING_ERROR_22">DNS</span> and <span class="blsp-spelling-error" id="SPELLING_ERROR_23">ICMP</span> protocols.</span><br /><br /><span style="font-style: italic;">The University of Maryland, College Park, severely restricts bandwidth for residential networks and block certain protocols. It designed "Project <span class="blsp-spelling-error" id="SPELLING_ERROR_24">Nethics</span>" to promote the responsible use of information technology through user education and policy enforcement. A third violation can result in eviction from the university housing system. Montgomery College in Maryland enforces an Acceptable Use Policy on its wired and wireless networks.</span><br /><br /><span style="font-style: italic;">Additional existing technological approaches can deter illegal file sharing by automatically processing notices sent by scanning vendors then taking actions such as messaging the user via browser redirection, applying the appropriate sanction and automatically re-enable browsing after a timeout or reconnect fee is paid. Other institutions use technology to appropriately manage their campus networks by limiting and/or shaping bandwidth, such as <span class="blsp-spelling-error" id="SPELLING_ERROR_25">Packeteer's</span> packet shaping technology.</span><br /><br />This statement, in all likelihood written by <span class="blsp-spelling-error" id="SPELLING_ERROR_26">MPAA</span>, is extraordinary in many respects, especially for its detailed endorsement of private sector products. No general principles here like the text of the bill, and that of course is one of the abuses of legislative history that Justice <span class="blsp-spelling-error" id="SPELLING_ERROR_27">Scalia</span> and others rightly complain about: the tenor of the legislative history would never have been able to pass as legislative text. But the legislative history was <span class="blsp-spelling-corrected" id="SPELLING_ERROR_28">inserted</span> to serve a long-term agenda: there is likely to be an effort in the next Congress to mandate these technologies. The <span class="blsp-spelling-error" id="SPELLING_ERROR_29">MPAA</span>, with figures no better than the ones they retracted, will complain about universities’ alleged failure to be <span class="blsp-spelling-error" id="SPELLING_ERROR_30">MPAA</span>’s cops, and will lobby for mandated use of technologies, along with forfeiture of federal funding for not doing so. Why not throw in a 10 year federal prison term (no parole in the federal system, <span class="blsp-spelling-error" id="SPELLING_ERROR_31">btw</span>) for the President of a University that <span class="blsp-spelling-error" id="SPELLING_ERROR_32">isn</span>’t up to snuff. Or, how about adopting <span class="blsp-spelling-error" id="SPELLING_ERROR_33">Sarbanes</span>-<span class="blsp-spelling-error" id="SPELLING_ERROR_34">Oxley</span> for university officials who will have to swear on penalty of perjury (and imprisonment) that they have fulfilled <span class="blsp-spelling-error" id="SPELLING_ERROR_35">MPAA</span>’s requirements?<br /><br />Here is the relevant statutory language:<br /><br /><span style="border-collapse: separate; color: rgb(0, 0, 0); font-style: normal; font-variant: normal; font-weight: normal; letter-spacing: normal; line-height: normal; text-indent: 0px; text-transform: none; white-space: normal; word-spacing: 0px;font-family:Palatino;font-size:14;" ><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><b><u><span style=";font-family:Times New Roman;font-size:100%;" ><span style="font-weight: bold;font-size:12;" ></span></span></u></b><span style=";font-family:Times New Roman;font-size:100%;" ><span style="font-size:12;"> </span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >1 SEC. 488. INSTITUTIONAL AND FINANCIAL ASSISTANCE IN</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >2 FORMATION FOR STUDENTS.</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >3 (a) INFORMATION DISSEMINATION ACTIVITIES.—</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >4 Section 485(a) (20 U.S.C. 1092(a)) is amended—</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >5 (1) in paragraph (1)—</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >6 (A) in subparagraph (G)—</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >7 (i) by striking ‘‘program, and’’ and in</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >8 serting ‘‘program,’’; and</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >9 (ii) by inserting ‘‘, and (iv) any plans</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >10 by the institution for improving the aca</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >11 demic program of the institution’’ after</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >12 ‘‘instructional personnel’’; and</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >13 (B) by striking subparagraph (M) and in</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >14 serting the following:</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >15 ‘‘(M) the terms and conditions of the loans</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >16 that students receive under parts B, D, and</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >17 E;’’;</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >18 (C) in subparagraph (N), by striking</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >19 ‘‘and’’ after the semicolon;</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >20 (D) in subparagraph (O), by striking the</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >21 period and inserting a semicolon; and</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >22 (E) by adding at the end the following:</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >23 ‘‘(P) institutional policies and sanctions re</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >24 lated to copyright infringement, including—</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >25 ‘‘(i) an annual disclosure that explic</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >26 itly informs students that unauthorized</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >P96</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >1 distribution of copyrighted material, in</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >2 cluding unauthorized peer-to-peer file shar</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >3 ing, may subject the students to civil and</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >4 criminal liabilities;</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >5 ‘‘(ii) a summary of the penalties for</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >6 violation of Federal copyright laws; and</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >7 ‘‘(iii) a description of the institution’s</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >8 policies with respect to unauthorized peer</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >9 to-peer file sharing, including disciplinary</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >10 actions that are taken against students</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >11 who engage in unauthorized distribution of</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >12 copyrighted materials using the institu</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >13 tion’s information technology system;</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" > </span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" > </span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><b><u><span style=";font-family:Times New Roman;font-size:100%;" ><span style="font-weight: bold;font-size:12;" >...<br /></span></span></u></b></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Times New Roman;font-size:100%;" ><span style="font-size:12;"> </span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >17 SEC. 493. PROGRAM PARTICIPATION AGREEMENTS.</span></span></div>...<br /><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >25 U.S.C. 1094(a)) is amended—</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >1 (i) in paragraph (23)—</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >2 (I) by moving subparagraph (C)</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >3 two ems to the left; and</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >4 (II) by adding at the end the fol</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >5 lowing:</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >……..</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >6 ‘‘(29) The institution certifies that the institu</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >7 tion—</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >8 ‘‘(A) has developed plans to effectively</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >9 combat the unauthorized distribution of copy</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >10 righted material, including through the use of a</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >11 variety of technology-based deterrents; and</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >12 ‘‘(B) will, to the extent practicable, offer</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >13 alternatives to illegal downloading or peer-to</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >14 peer distribution of intellectual property, as de</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >15 termined by the institution in consultation with</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >16 the chief technology officer or other designated</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Arial;font-size:85%;" ><span style=";font-family:Arial;font-size:10;" >17 officer of the institution.’’.</span></span></div><div style="margin: 0in 0in 0.0001pt;font-size:12pt;"><span style=";font-family:Times New Roman;font-size:100%;" ><span style="font-size:12;"><br /></span></span></div></span>William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com8tag:blogger.com,1999:blog-12505562.post-31409798308886399252008-07-30T10:08:00.005-04:002008-08-08T15:44:19.104-04:00US Government Insists on Right to Violate DMCAI previously did a <a href="http://williampatry.blogspot.com/2006/07/united-states-government-dmca-scofflaw.html">posting</a> on the US government’s successful invocation of sovereign immunity in a claim alleging copyright infringement and an anti-circumvention claim under the DMCA. The opinion in that case came from the Court of Federal Claims, a trial-level court. The decision has now been affirmed by the Federal Circuit, Blueport Company, LLC v. United States, 2008 WL 2854127 (CAFC, July 25, 2008)(No. 2007-5140), available <a href="http://www.cafc.uscourts.gov/opinions/07-5140.pdf">here</a>.<br /><br />Congress abrogated the federal government’s sovereign immunity for copyright infringement in 28 USC 1498(c), but a DMCA anti-circumvention violation is not an infringement action; instead, chapter 12 of title 17 is a sui generis right, like semiconductor chips, bootlegging, and vessel boat hull protection. There is no express abrogation of sovereign immunity for DMCA violations, and thus the US government is free to – and appears quite happy to – engage in activity, which if done by individuals or companies, would be illegal, perhaps even criminal. The hypocrisy in the US government’s conduct is breathtaking given USTR’s vigorous efforts to peddle the DMCA internationally. Where are the IIPA, BSA, and other “pro-IP” groups on this scandalous treatment of creators? Will they now press for an amendment to 1498(b) to include violations of the DMCA?<br /><br />The facts in the Blueport case fully support the sense of outrage we should all have over this situation. I will simply copy them verbatim from the CAFC’s opinion so there is no slanting of them. After reading them, ask yourself whether we should ever believe again government officials who talk about the importance of intellectual property:<br /><br /><br /><br />BACKGROUND<br /><br />In this case, Blueport claims that the Government-specifically the U.S. Air Force-infringed Blueport's copyright on a software program known as “the AUMD program.” The AUMD program was written by Air Force Technical Sergeant Mark Davenport. On March 6, 2000, Davenport assigned all his rights in the AUMD program to Blueport.<br /><br />When Davenport wrote the AUMD program, he was employed as a manager of the Air Force Manpower Data System (“MDS”), a database containing manpower profiles for each unit in the Air Force. In his capacity as an MDS Manager, Davenport updated the MDS with new data and provided reports from the MDS to Air Force personnel upon request. Davenport was also a member of the Air Force's Manpower User Group, a group of manpower personnel from each of the Air Force's major commands who provided guidance on the use of the MDS. Based on his experience with the MDS, Davenport concluded that the software the Air Force used to run the MDS was inefficient and began seeking ways to redesign the software program. Davenport initially requested training in computer programming from the Air Force, but his request was denied. Undeterred, Davenport learned the computer programming skills necessary to write the AUMD program on his own time and with his own resources. Davenport then wrote the source code for the AUMD program while at home on his personal computer. Although he wrote the program solely at his home and at his own initiative, Davenport's intent in writing the program was that other Air Force manpower personnel would use it.<br /><br /><br />In June 1998, Davenport shared an early version of the program with a fellow coworker, and both tested the program on the MDS at work during regular business hours. Based on the results of this testing, Davenport made changes to the source code of the AUMD program on his home computer. Davenport did not at that time, or at any time thereafter, bring the AUMD program's source code to work or copy it onto Air Force computers.<br /><br />After these initial tests, Davenport began sharing copies of the AUMD program with other colleagues. At first, Davenport shared the AUMD program with colleagues by giving them a computer disk containing the program or by personally installing the program on their computers. Later, Davenport posted the AUMD program on an Air Force web page so that Air Force manpower personnel could download it directly. As the program became popular within the Air Force manpower community, Davenport's superiors asked him to train additional personnel in its use. During this time, he continued to modify the program based on feedback he received and, as a result, improved its functionality and eliminated programming errors. At some point, Davenport added an automatic expiration date to each new version of the AUMD program so that users were required to download the newest version when the older one expired.<br /><br />In September 1998, Davenport gave a presentation to senior Air Force manpower officers at an annual conference and, according to one of Davenport's superiors, “absolutely sold his audience” on the AUMD program. Davenport's performance report deemed him the “go to troubleshooter for [the] entire [Air Force] manpower community ... [and] the most knowledgeable database manager in [the] career field.” The performance report concluded with a recommendation to promote Davenport immediately.<br /><br />Despite Davenport's success in creating the AUMD program and his willingness to share it, the Air Force eventually decided it was becoming too dependent on Davenport for access to the program. Accordingly, Davenport's superiors asked him to turn over the source code for the program, which Davenport had always kept on his home computer. When he refused to turn over the source code, his superiors threatened him with a demotion and a pay cut, and excluded him from the Manpower User Group's advisory authority.<br /><br />Davenport then assigned all his rights in the AUMD program to Blueport. Subsequently, Blueport attempted to negotiate a license agreement with the Air Force. However, the Air Force refused Blueport's offer and solicited other contractors to recreate the AUMD program. The Air Force ultimately contracted with Science Applications International Corporation (“SAIC”). At the request of the Air Force, SAIC programmers modified the AUMD program's object code to extend its expiration date. This modification allowed Air Force manpower personnel to continue to use the AUMD program despite Davenport's refusal to provide the source code.<br /><br />In 2002, Blueport brought the present claims against the Government for copyright infringement and violations of the DMCA. Specifically, Blueport argues that the Air Force infringed its copyright in the AUMD program. In addition, Blueport argues that the Air Force violated the DMCA by extending the expiration date in the AUMD program's object code-thus circumventing the measures taken by Blueport to prevent unauthorized use of the program. The CFC dismissed Blueport's claims for lack of jurisdiction on the ground that the Government had not waived its sovereign immunity for any of the claims. Blueport now appeals.William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com6tag:blogger.com,1999:blog-12505562.post-84511373438576351942008-07-29T09:19:00.003-04:002008-08-08T15:45:14.833-04:00Is there such a thing as holding legal title to a registration?The question in the title was posed by a decision filed yesterday in Tom Bean v. McDougal Littell (a division of the Houghton Mifflin Company) and R.R. Donnelley & Sons Company, No. 07-8063-PCT-JAT (D. Arizona (James Teilborg, Judge).<br /><br />The relevant statutory provision is 17 USC 408(a)<br /><br /><span style="font-style: italic;">— At any time during the subsistence of the first term of copyright in any published or unpublished work in which the copyright was secured before January 1, 1978, and during the subsistence of any copyright secured on or after that date, the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim …</span><br /><br />This provision, drafted by the Copyright Office, contains from the Office’s perspective a big problem, highlighted in bold. The problem is that the statute clearly permits the owner of a single exclusive right to file a claim of registration. From the Office’s perspective that’s a problem because it might lead to multiple registrations for the same work, and a cluttered public record. But the statute has not been amended since passage in 1976. The Office’s initial, immediate response was to solicit a letter from counsel for the Author’s Guild, the late Irwin Karp, that attempted to make the case for what might be called an indivisible registration for divisible copyright; in short, permitting only a single registration per work. That is the system that exists today, and it makes perfect sense; it certainly makes searches simple.<br /><br />To register a claim you either have to be (1) the author, (2) the assignee of all rights, or (3) an agent for (1) or (2).<br /><br />In regulations implementing this, we find:<br /><br /><span style="font-style: italic;">For the purposes of this section, a copyright claimant is either:</span><br /><br /><span style="font-style: italic;">(i) The author of a work;</span><br /><br /><span style="font-style: italic;">(ii) A person or organization that has obtained ownership of all rights under the copyright initially belonging to the author.1</span><br /><br /><span style="font-style: italic;">1 This category includes a person or organization that has obtained, from the author or from an entity that has obtained ownership of all rights under the copyright initially belonging to the author, the contractual right to claim legal title to the copyright in an application for copyright registration.</span><br /><br />The kicker here is the footnote, which seems to conflict with the text of the regulation. The regulation refers to ownership of all rights. The footnote, by contrast, refers to a concept not found in the statute, a contractual right to claim legal title. What does it mean to have a contractual right to claim “legal title” to the copyright in an application for copyright registration? Must legal title be the ability to exercise rights, or, can it be merely an exclusive right to file for registration? This latter concept is not found in the statute. In asking this question, note that it is a different question than standing under Section 501(a), which reads in relevant part: “The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it.” Here one must be the legal or beneficial owner of an exclusive right, and not merely possess a contractual right to claim legal title in connection with an application. Assignees of a single exclusive right would of course satisfy Section 501(a) and Section 408(a), but would they satisfy the Office’s regulations for registration purposes? Moreover, what if had such a contractual right to claim legal title but no right to actually exercise a Section 106 or 106A right?<br /><br />This last issue arose in the Tom Bean case. The photographer plaintiff, along with 127 others, had signed a copyright registration agreement with Corbis, which granted Corbis “legal title” to the photographs “solely for the purpose of copyright registration.” Under the agreement, Corbis agreed “that it will promptly reassign legal title …. upon written request … .” The collective work registration obtained by Corbis was to extend to the individual photographs. Plaintiff sued defendants over claimed re-uses that were not licensed; defendants sought to dismiss the case for lack of subject matter jurisdiction based on an alleged invalid registration: Corbis allegedly could not be a proper registrant because it had only been conveyed the right to register the works and not the right to exercise any of the Section 106 rights. Corbis, in short, could not have brought an infringement suit, but could it have properly registered the works?<br /><br />Judge Teilborg upheld the registration, but was perplexed by 37 CFR §202.3(a)(ii), writing that because that section “clearly intends to give registration rights to entities other than the author, and because no entities other than the author can have rights under Section 106A(a) “all the rights under the copyright owner originally belonging to the author cannot be taken absolutely literally lest it render 37 C.F.R. §202.3(a)(ii) superfluous.” I don’t know what the court is getting at here. For one thing, registration is not a requirement for VARA [Section 106A] rights. Another way to approach the issue would have been to interpret the regulation as creating two categories: ownership of exclusive rights, and, ownership of the contractual right to claim legal title in an application. But this begs the central question: what does legal title mean in this context? Why the footnote? How is the contractual right to claim legal title different from ownership of Section 106 and 106A rights, and if there is a difference, where in the statute does the statute authorize registration by the merely holder of such a contractual right? One way to look at this is that the Office’s regulations conflict with the statute from two directions: first, by not permitting the owner of a single exclusive right to register a claim to just that right, and second, by permitting a class of people to register that the statute doesn’t permit to register – the holders of a mere contractual right to claim legal title (assuming that right is different from a Section 106 or 106A right).<br /><br />The problem for photographers is a practical one and one that has vexed Congress and the Copyright Office for quite awhile: how to enable photographers to obtain the benefits of registration while still preserving the integrity of the registration system. The Corbis agreement seems needlessly complex to me: why transfer something called a legal title to claim registration, which is then transferred back (how, by the way, do you transfer back a legal right to register a claim once the claim has already been registered?). A much simpler approach, and one the Office permitted under the 1909 Act, is to appoint Corbis (or any other organization) an agent. Agents can register claims for authors (law firms do this all the time).William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com3tag:blogger.com,1999:blog-12505562.post-12884982272952603092008-07-28T09:53:00.003-04:002008-08-08T15:45:39.683-04:00Open Access and the NIHIn 1978, in enacting Section 105 of title 17, Congress faced a choice about what to do with copyrighted works that result from government funding, including basic research funding of scientific, technical, and medical (“<span class="blsp-spelling-error" id="SPELLING_ERROR_0">STM</span>”) journal articles. One approach was simply to preclude any assertion of copyright, treating such works the same way as works created by government employees within the scope of their employment. That approach would have been simple to apply, but might have inhibited the publication of some <span class="blsp-spelling-error" id="SPELLING_ERROR_1">STM</span> journals, at a time when hard copy ruled as the method of distribution. Congress chose a middle approach, discussed here in the 1976 House Judiciary Committee report:, which begins by referring to the definition of “work of the United States government”:<br /><br /><span style="font-style: italic;">A more difficult and far-reaching problem is whether the definition should be broadened to prohibit copyright in works prepared under U.S. Government contract or grant. As the bill is written, the Government agency concerned could determine in each case whether to allow an independent contractor or grantee to secure copyright in works prepared in whole or in part with the use of Government funds. The argument that has been made against allowing copyright in this situation is that the public should not be required to pay a ''double subsidy,'' and that it is inconsistent to prohibit copyright in works by Government employees while permitting private copyrights in a growing body of works created by persons who are paid with Government funds. Those arguing in favor of potential copyright protection have stressed the importance of copyright as an incentive to creation and dissemination in this situation and the basically different policy considerations applicable to works written by Government employees and those applicable to works prepared by private organizations with the use of Federal funds. </span><br /><br /><span style="font-style: italic;">The bill deliberately avoids making any sort of outright, unqualified prohibition against copyright in works prepared under Government contract or grant. There may well be cases where it would be in the public interest to deny copyright in the writings generated by Government research contracts and the like; it can be assumed that, where a Government agency commissions a work for its own use merely as an alternative to having one of its own employees prepare the work, the right to secure a private copyright would be withheld. However, there are almost certainly many other cases where the denial of copyright protection would be unfair or would hamper the production and publication of important works. Where, under the particular circumstances, Congress or the agency involved finds that the need to have a work freely available outweighs the need of the private author to secure copyright, the problem can be dealt with by specific legislation, agency regulations, or contractual restrictions. </span><br />H.R. Rep. No. 94-1476, 94<span class="blsp-spelling-error" id="SPELLING_ERROR_2">th</span> Cong., 2d <span class="blsp-spelling-error" id="SPELLING_ERROR_3">Sess</span>. 59 (1976).<br /><br />With the advent of the World Wide Web, the National Institutes of Health, which provides about $30 billion in research grants, decided the public and other researchers would benefit from having <span class="blsp-spelling-error" id="SPELLING_ERROR_4">STM</span> articles it was funding placed in the National Library of Medicine’s <span class="blsp-spelling-error" id="SPELLING_ERROR_5">PubMed</span> Central on line archive. Acting responsibly, a NIH adopted a voluntary deposit policy several years ago, but participation was extremely low because <span class="blsp-spelling-error" id="SPELLING_ERROR_6">STM</span> publishers were opposed to it and the authors were not well informed about it. So, in the 2008 Labor-HHS Appropriations bill, Congress directed NIH to adopt a mandatory deposit policy. The <span class="blsp-spelling-error" id="SPELLING_ERROR_7">STM</span> publishers lobbied very hard against the bill, both in Congress and in the Administration (e.g., trying to convince HHS to withdraw support of the policy). Congress rejected the opposition, and enacted the mandatory deposit policy.<br /><br />Under the policy, the grantee must ensure that a copy of the author’s final manuscript is electronically submitted to the <span class="blsp-spelling-error" id="SPELLING_ERROR_8">PubMed</span> Central archive, and that no later than 12 months after publication, the NIH may make the full text of the manuscript publicly accessible in <span class="blsp-spelling-error" id="SPELLING_ERROR_9">PMC</span>. The policy went into effect in April of this year, and with no apparent difficulty in compliance. As noted above, NIH provides about $30 billion in research grants, which amounts on average to about $400,000 per grantee. <span class="blsp-spelling-error" id="SPELLING_ERROR_10">STM</span> publishers require the authors/grantees to transfer the copyright as a condition of publication. The publishers manage the peer review process, but the peer reviewers generally aren't paid -- they are members of the community who do the peer review for free. Public institutions pay the salaries of the researchers and the hard costs of the building, lab, materials, energy etc., a very large amount. Publishers thus get the content for free, generally get the peer review for free, and don’t pay a penny toward the costs of the research. Under the current NIH policy, they have a 12 month period of exclusivity for individual articles, and a 95 year term of protection for the journal which they may also load up with all the <span class="blsp-spelling-error" id="SPELLING_ERROR_11">DRMs</span> their little hearts desire. Since time is usually of the essence in <span class="blsp-spelling-error" id="SPELLING_ERROR_12">STM</span> publishing, and subscriptions are sold by the year for a journal and not by individual article, publishers are provided with ample opportunity to recoup their investment and make a profit.<br /><br />The American Psychological Association is reported to have <span class="blsp-spelling-error" id="SPELLING_ERROR_13">to gone</span> off the deep end on the issue. <a href="http://www.earlham.edu/%7Epeters/fos/2008/07/apa-will-charge-authors-for-green-oa.html">As reported </a>in The Open Access News Blog on July 15, 2008:<br /><br /><span style="font-style: italic;">The American Psychological Association may have the worst publisher policy to date for NIH-funded authors. Excerpt:</span><br /><br /><span style="font-style: italic;">In compliance with [the NIH <span class="blsp-spelling-error" id="SPELLING_ERROR_14">OA</span> policy], <span class="blsp-spelling-error" id="SPELLING_ERROR_15">APA</span> will deposit the final peer-reviewed manuscript of NIH-funded research to <span class="blsp-spelling-error" id="SPELLING_ERROR_16">PMC</span> upon acceptance for publication. The deposit fee of $2,500 per manuscript for 2008 will be billed to the author's university per NIH policy....</span><br /><br /><span style="font-style: italic;">Even after collecting the fee, the <span class="blsp-spelling-error" id="SPELLING_ERROR_17">APA</span> will not deposit the published version of the article, will not allow <span class="blsp-spelling-error" id="SPELLING_ERROR_18">OA</span> release for 12 months, will not allow authors to deposit in <span class="blsp-spelling-error" id="SPELLING_ERROR_19">PMC</span> themselves (and bypass the fee), will not allow authors to deposit in any other <span class="blsp-spelling-error" id="SPELLING_ERROR_20">OA</span> repository, and will not allow authors to retain copyright.</span><br /><br /><br />As a commentator pointed out on that blog:<br /><br /><span style="font-style: italic;">Since there is virtually no cost associated with the mechanics of deposit itself, and the NIH policy allows an embargo on public availability of articles of up to one year in order to protect the traditional subscription market, it is hard to see what this policy is intended to accomplish other than to force an additional income stream out of the faculty authors who already provide the <span class="blsp-spelling-error" id="SPELLING_ERROR_21">APA</span> with free content. And there is heavy irony in the <span class="blsp-spelling-error" id="SPELLING_ERROR_22">APA</span>’s assertion that they can do this “as the copyright holder.” ...</span><br /><br />The NIH policy has been raised most recently by a bill reported out by the Subcommittee on Labor, Health and Human Services, Education, and Related Services passed out of a provision for Fiscal Year 2009 appropriations which would continue the NIH policy. <span class="blsp-spelling-error" id="SPELLING_ERROR_23">STM</span> publishers are claiming that the issue is one that arises under the copyright law, and are attempting to have the Judiciary Committee intervene on their behalf. The claim that the NIH policy raises copyright issues is absurd. First, the policy does not reach the journal at all; only individual articles. Publishers’ investment is thus left untouched entirely. Publishers did not invest a dime in the individual articles, and thus have no investment to complain about. They still have a 12 month window of exclusivity for the articles, which is quite long enough to ensure that their only investment – in the journal – is protected. As reviewed at the beginning of this posting, Congress could have chosen to deny all protection to <span class="blsp-spelling-error" id="SPELLING_ERROR_24">STM</span> articles funded in whole or in part by the government. It is surprising by taking a less extreme, balanced approach, Congress is now being attacked by those who contributed nothing financially to the creation of the works.William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com13tag:blogger.com,1999:blog-12505562.post-56168774041758468152008-07-24T08:39:00.004-04:002008-08-08T15:46:09.897-04:00Infringement and the Foreign Sovereign Immunities ActMay a foreign government be sued in U.S. courts for infringement occurring in the United States? The answer, provided by the Foreign Sovereign Immunities Act, 28 U.S.C.A. §§ 1602 to 1611, is no. Section 1603 states: “Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.” Exceptions are provided in section 1605:<br /><br /><span style="font-style: italic;">(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case—</span><br /><span style="font-style: italic;">(1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver;</span><br /><span style="font-style: italic;">(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.</span><br /><br /><br />Given the clear basic immunity, cases focus on the exceptions. One discussion of the exception is in L<span style="font-style: italic;"><span class="blsp-spelling-error" id="SPELLING_ERROR_0">eutwyler</span> v. Office of Her Majesty Queen Rania Al-<span class="blsp-spelling-error" id="SPELLING_ERROR_1">Abdullah</span>, <span class="blsp-spelling-error" id="SPELLING_ERROR_2">Leutwyler</span> v. Office of Her Majesty Queen Rania Al-<span class="blsp-spelling-error" id="SPELLING_ERROR_3">Abdullah</span></span>, 184 F. Supp. 2d 277 (S.D. N.Y. 2001), which involved a dispute between a photographer hired to take pictures of the Queen of Jordan. In reviewing the plaintiff's argument that the defendant's activities fit with the exceptions to <span class="blsp-spelling-error" id="SPELLING_ERROR_4">FSIA</span> immunity, Judge Lynch wrote:<br /><br /><span style="font-style: italic;">[I]t is clear that <span class="blsp-spelling-error" id="SPELLING_ERROR_5">Leutwyler</span> has alleged that the Defendants engaged in at least two series of acts that were unmistakably commercial in nature. First, he argues that the Defendants entered into a contract for him to travel to Jordan to photograph the Royal Family and to grant Queen Rania a limited license to use the pictures for personal use and distribution to Middle Eastern print media. … </span><br /><br /><span style="font-style: italic;">… If representatives of the Royal Family arranged for <span class="blsp-spelling-error" id="SPELLING_ERROR_6">Leutwyler</span> to photograph them, develop the prints, and assign to them rights over the resulting photos, that activity is indistinguishable from the garden-variety commercial transactions that families or business entities throughout the world enter into with photographers to obtain portraits for home or office display</span><br /><br /><br /><span style="font-style: italic;">… Second, <span class="blsp-spelling-error" id="SPELLING_ERROR_7">Leutwyler</span> argues that by allegedly furnishing photos taken by <span class="blsp-spelling-error" id="SPELLING_ERROR_8">Leutwyler</span> for use in the Jordan Diary, a publication that has been sold in the United States, the Individual Defendants facilitated a venture that was unmistakably commercial in nature. … Once again, while the purpose of publishing the diary may have been governmental (disseminating information about Jordan and encouraging tourism), the nature of the activity (publishing and selling books) is clearly commercial. </span><br /><br /><span style="font-style: italic;"><span class="blsp-spelling-error" id="SPELLING_ERROR_9">Leutwyler</span> has therefore sustained his burden of demonstrating that the Individual Defendants engaged in certain “commercial activity,” as that term is defined in § 1603(e), that could give rise to subject matter jurisdiction under the <span class="blsp-spelling-error" id="SPELLING_ERROR_10">FSIA</span>.</span><br /><br />Similarly, <span style="font-style: italic;">in Los Angeles News Service v. <span class="blsp-spelling-error" id="SPELLING_ERROR_11">Conus</span> Communications Co., Ltd., Los Angeles News Service v. <span class="blsp-spelling-error" id="SPELLING_ERROR_12">Conus</span> Communications Co., Ltd.</span>, 969 F. Supp. 579 (C.D. Cal. 1997), the court rejected a claim by the Canadian Broadcasting Corporation that its broadcast of the plaintiff's footage was not commercial within the meaning of the exemption.<br /><br />The <span class="blsp-spelling-error" id="SPELLING_ERROR_13">FSIA</span> (not to be confused with the similarly <span class="blsp-spelling-error" id="SPELLING_ERROR_14">acronymed</span> <span class="blsp-spelling-error" id="SPELLING_ERROR_15">FISA</span>), was raised unsuccessfully again less than a week ago in <span style="font-style: italic;"><span class="blsp-spelling-error" id="SPELLING_ERROR_16">Santilli</span> v. <span class="blsp-spelling-error" id="SPELLING_ERROR_17">Cardone</span>,</span> 2008 <span class="blsp-spelling-error" id="SPELLING_ERROR_18">WL</span> 2790242 (M.D.Fla. July 18, 2008)(No. 8:07-<span class="blsp-spelling-error" id="SPELLING_ERROR_19">cv</span>-308-T-23<span class="blsp-spelling-error" id="SPELLING_ERROR_20">MSS</span>). Here are the facts from the court’s opinion:<br /><br /><br /><span style="font-style: italic;">The pro <span class="blsp-spelling-error" id="SPELLING_ERROR_21">se</span> plaintiff sues the defendants Cornell University (“Cornell”), <span class="blsp-spelling-error" id="SPELLING_ERROR_22">Instituto</span> <span class="blsp-spelling-error" id="SPELLING_ERROR_23">Nazionale</span> <span class="blsp-spelling-error" id="SPELLING_ERROR_24">Fisica</span> <span class="blsp-spelling-error" id="SPELLING_ERROR_25">Nucleare</span> (“<span class="blsp-spelling-error" id="SPELLING_ERROR_26">INFN</span>”), and the <span class="blsp-spelling-error" id="SPELLING_ERROR_27">Universita</span>' Del <span class="blsp-spelling-error" id="SPELLING_ERROR_28">L'Aquila</span> (the “University of Aquila”). Cornell owns and operates <span class="blsp-spelling-error" id="SPELLING_ERROR_29">arXiv</span>, an Internet-based collection of physics manuscripts. The plaintiff alleges that after he attempted to post several of his manuscripts to <span class="blsp-spelling-error" id="SPELLING_ERROR_30">arXiv's</span> high energy physics section, the <span class="blsp-spelling-error" id="SPELLING_ERROR_31">arXiv</span> administrators relocated the manuscripts to the general physics section. Meanwhile, physicists Fabio <span class="blsp-spelling-error" id="SPELLING_ERROR_32">Cardone</span> (“<span class="blsp-spelling-error" id="SPELLING_ERROR_33">Cardone</span>”), Roberto <span class="blsp-spelling-error" id="SPELLING_ERROR_34">Mignani</span> (“<span class="blsp-spelling-error" id="SPELLING_ERROR_35">Mignani</span>”), and <span class="blsp-spelling-error" id="SPELLING_ERROR_36">Alessio</span> <span class="blsp-spelling-error" id="SPELLING_ERROR_37">Marrani</span> (“<span class="blsp-spelling-error" id="SPELLING_ERROR_38">Marrani</span>”) successfully posted their manuscripts to the high energy physics section. The plaintiff alleges that the physicists' papers “violate the most basic laws in physics,” plagiarize the plaintiff's works, and violate the plaintiff's copyrights. The plaintiff alleges that <span class="blsp-spelling-error" id="SPELLING_ERROR_39">INFN</span> provides financial support to <span class="blsp-spelling-error" id="SPELLING_ERROR_40">Cardone</span>, <span class="blsp-spelling-error" id="SPELLING_ERROR_41">Mignani</span>, and <span class="blsp-spelling-error" id="SPELLING_ERROR_42">Marrani</span>, and that the University of Aquila employs <span class="blsp-spelling-error" id="SPELLING_ERROR_43">Cardone</span>. Cornell, <span class="blsp-spelling-error" id="SPELLING_ERROR_44">INFN</span>, and the University of Aquila move to dismiss the plaintiff's claims in the third amended complaint, and the plaintiff responds in opposition.</span><br /><br />The University of Aquila claimed immunity under the <span class="blsp-spelling-error" id="SPELLING_ERROR_45">FSIA</span>, arguing that it was an organ of the Italian government. As noted by the court:<br /><br />T<span style="font-style: italic;">he “organ of a foreign state” requirement commends consideration of (1) whether the foreign state created the agency for a national purpose, (2) whether the foreign state requires the hiring of public employees and pays their salaries, (3) whether the foreign state funds the agency, (4) whether the agency holds an exclusive right to some right in the state, and (5) whether state law treats the agency as dependent on the foreign state. </span><br /><br />The University argued it was an organ of the States because it receives approximately seventy-five percent of its funding from the Italian government, because the Italian government oversees and controls the University's budget, and because the university “conducts research that serves a national purpose.” Not enough the court held. What was required was that:<br /><br /><span style="font-style: italic;">(1) that the university's purpose of teaching and conducting research serves a national purpose, (2) that the Italian government actively supervises the university or requires it to hire public employees, (3) that the university holds exclusive rights, or (4) that Italian law treats the university as dependent upon the government.</span><br /><br />In the end, this holding <span class="blsp-spelling-error" id="SPELLING_ERROR_46">didn</span>’t matter because the court found there was no personal jurisdiction and the copyright claim – for plagiarism, is not a legally supportable claim.William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com7tag:blogger.com,1999:blog-12505562.post-48598540970434213582008-07-23T10:42:00.005-04:002008-08-08T15:46:37.506-04:00The Declaration on the Three-Step testOn <a href="http://williampatry.blogspot.com/2008/04/fair-use-three-step-test-and-european.html"><span style="text-decoration: underline;">April 2d</span>,</a> I did a post on the counter-reformation against amendments to copyright laws in the public interest. It is, apparently, not enough for some copyright holders that their rights have ballooned to unprecedented size and strength: they also have to fight back any efforts to <span class="blsp-spelling-corrected" id="SPELLING_ERROR_0">ameliorate</span> the harsh consequences on the public from the expansion of those rights. One political argument advanced in the push-back against the public is what I call the <span class="blsp-spelling-error" id="SPELLING_ERROR_1">Neo</span>-Blackstone movement: copyright is property, and property represents “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” Blackstone’s ode here (in his Commentaries) to property was never descriptive, not even of then-contemporary English law; it was in fact merely a political wish. Professor Robert Gordon, in a study of the actual state of the law in Blackstone’s time, wrote:<br /><br /><span style="font-style: italic;">What strikes the backward-looking observer</span><br /><span style="font-style: italic;">as curious is simply this: that in the midst of</span><br /><span style="font-style: italic;">such a lush flowering of absolute dominion talk </span><br /><span style="font-style: italic;">in theoretical and political discourse, </span><br /><span style="font-style: italic;">English legal doctrines should contain so </span><br /><span style="font-style: italic;">very few plausible instances of absolute</span><br /><span style="font-style: italic;">individual rights. Moreover, it is curious that</span><br /><span style="font-style: italic;">English and colonial social practices contained so</span><br /><span style="font-style: italic;">many property relations that seem to traduce the</span><br /><span style="font-style: italic;">ideal of absolute individual rights.</span><br />Robert Gordon, “Paradoxical Property,” reproduced in Early Modern Conceptions of Property 95, 97 (John Brewer and Susan <span class="blsp-spelling-error" id="SPELLING_ERROR_2">Staves</span> editors 2996, Rutledge).<br /><br />And as much as Blackstone pushed the view of copyright as a natural property as a lawyer for the London publishers in the great “Battle of the Bookseller,” when he later became a judge, he did not adhere to the view of copyright as vesting its owner with the sole and <span class="blsp-spelling-error" id="SPELLING_ERROR_3">despostic</span> dominion he earlier advanced in his Commentaries. Wonderful evidence of this is provided in a report of the 1774 decision in <span class="blsp-spelling-error" id="SPELLING_ERROR_4">Hawkesworth</span> v. <span class="blsp-spelling-error" id="SPELLING_ERROR_5">Newbery</span>, which held that abridgments (we would call them condensations today), might not violate copyright owners’ rights:<br /><br /><span style="font-style: italic;">The Lord Chancellor was of opinion that this abridgement of the work was not any violation of the author's property whereon to ground an injunction.</span><br /><br /><span style="font-style: italic;">That to constitute a true and proper abridgement of a work the whole must be preserved in its sense: And then the act of abridgement is an act of understanding, employed in a carrying a large work into a smaller corpus, and rendering it less expensive, and more convenient both to the time and use of the reader. Which made an abridgement in the nature of a new and meritorious work.</span><br /><br /><span style="font-style: italic;">That this had been done by Mr. </span><span style="font-style: italic;" class="blsp-spelling-error" id="SPELLING_ERROR_6">Newbery</span><span style="font-style: italic;">, whose edition might be read in a fourth of the time, and all the substance preserved, and conveyed in language as good or better than the original, and in a more agreeable and useful manner. That [the Lord Chancellor] had consulted Mr. Justice Blackstone whose knowledge and skill in the profession was universally known, and who as an author had done honour to his country.</span><br /><br /><span style="font-style: italic;">That they had spent some hours together, and were agreed that an abridgement, where the understanding is employed in retrenching unnecessary and uninteresting circumstances, which rather deaden the narration, is not an act of plagiarism upon the original work, nor against any property of the author in it, but an allowable and meritorious work. And that this abridgement of Mr. </span><span style="font-style: italic;" class="blsp-spelling-error" id="SPELLING_ERROR_7">Newberry's</span><span style="font-style: italic;"> falls within these reasons and descriptions.</span><br /><br />Judgment for defendant abridger. Fair abridgments were permitted in the United States until passage of the 1909 Act. So much for the sole and <span class="blsp-spelling-error" id="SPELLING_ERROR_8">despostic</span> view. But one even sees expressions of the view that the natural state of affairs in copyright is sole and despotic dominion in how to interpret the <span class="blsp-spelling-error" id="SPELLING_ERROR_9">Berne</span> Convention's three-step test. Professor Sam <span class="blsp-spelling-error" id="SPELLING_ERROR_10">Ricketson</span>, the god of <span class="blsp-spelling-error" id="SPELLING_ERROR_11">Berne</span> Convention scholars and an all around great guy, wrote in a 2003 study of rights and limitations in the <span class="blsp-spelling-error" id="SPELLING_ERROR_12">Berne</span> Convention statements that limitations and exceptions will be allowed <span style="font-style: italic;">if </span> “there is a public interest … that justifies overriding the private rights of authors in their works in … particular circumstances.” Sam <span class="blsp-spelling-error" id="SPELLING_ERROR_13">Ricketson</span>, <span class="blsp-spelling-error" id="SPELLING_ERROR_14">WIPO</span> Study on Limitations and Exceptions of Copyright Related Rights in the Digital Environment 4, Standing Committee on Copyright and Related Rights, Ninth Session, Geneva, June 23 to June 27, 2003, <span class="blsp-spelling-error" id="SPELLING_ERROR_15">SCCR</span>/9/7 (April 5, 2003).<br /><br />I don’t accept the private -- public dichotomy advanced here: there is, after all, no such thing as copyright rights privately created and privately enforced. Copyright is created by governments for public reasons and is enforced by public laws and public judges. Copyright laws are created as an entire fabric consisting of certain entitlements given to copyright owners, and certain entitlements given to the public. There is no basis to regard any one entitlement as more privileged or important than another. That leads me to an exciting new declaration on the three-step test recently issued by three very prominent European scholars: <span class="blsp-spelling-error" id="SPELLING_ERROR_16">Reto</span>. M. <span class="blsp-spelling-error" id="SPELLING_ERROR_17">Hilty</span>, who is the Director of the Max Planck Institute for Intellectual Property, Competition and Tax Law, Munich, and a Professor at the Universities of Zurich and Munich, Germany; Christophe Geiger, a Researcher, at Max Planck Institute and Associate Professor and Director, Centre for International Industrial Property Studies (<span class="blsp-spelling-error" id="SPELLING_ERROR_18">CEIPI</span>), University of Strasbourg, France; and Jonathan Griffiths, Senior Lecturer, School of Law, Queen Mary, University of London.<br /><br />The declaration is available <a href="http://www.ip.mpg.de/ww/en/pub/news/declaration_on_the_three_step_.cfm">here,</a> at the Max Planck website, and is entitled “A Balanced Interpretation of the ‘Three-Step Test’ in Copyright Law. The word balanced is accurate for all but the most partisan of combatants in the Copyright Wars. The declaration states, for example: “Copyright law aims to benefit the public interest. It produces important incentives for the creation and dissemination of new works of authorship to the general public. These works serve to satisfy common needs; either in their own right or as a basis for the creation of further works.” The declaration also does not interpret the three-step test as a free for all, noting: “The Three-Step Test has already established an effective means of preventing the excessive application of limitations and exceptions.” No bomb throwers in this group. The declaration adds, though: “The public interest is not well served if copyright law neglects the more general interests of individuals and groups in society when establishing incentives for <span class="blsp-spelling-error" id="SPELLING_ERROR_19">rightholders</span>.”<br /><br />This balanced view is continued in how to interpret the three-step test. The dominant way of interpreting it – advanced by copyright owners and natural rights copyright lawyers – is as an obstacle course: national governments interested in amendments to serve the public interest have to surmount all three steps, and the burden is really heavy at each step. In place of this absurd approach, the declaration states in reaction to a finding that “in applying the Three-Step Test, national courts and legislatures have been wrongly influenced by restrictive interpretations of that Test”:<br /><br />1. The Three-Step test constitutes an indivisible entirety. The three steps are to be considered together and as a whole in a comprehensive overall assessment.<br />2. The Three-Step Test does not require limitations and exceptions to be interpreted narrowly. They are to be interpreted according to their objectives and purposes.<br />3. The Three-Step Test’s restrictions of limitations and exceptions to exclusive rights to certain special cases does not prevent legislatures from introducing open ended limitations and exceptions, so long as the scope of such limitations and exceptions is reasonably foreseeable …<br /><br />The last statement refers of course to fair use and should be a helpful rebuke to the whispering campaign being conducted in certain national capitals against the adoption of more liberal fair dealing laws. I regard the declaration as a watershed event: a statement by the <span class="blsp-spelling-error" id="SPELLING_ERROR_20">crème</span> <span class="blsp-spelling-error" id="SPELLING_ERROR_21">de</span> la <span class="blsp-spelling-error" id="SPELLING_ERROR_22">crème</span> of European scholarship that the counter-reformation is exactly that.William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com3tag:blogger.com,1999:blog-12505562.post-90673182528912040632008-07-22T08:33:00.006-04:002008-08-08T15:47:06.863-04:00The EU Railroads Term ExtensionI have avoided commenting on the EU's proposed 45 year extension for sound recordings because the effort is so clearly wrong, so clearly another example of politicians ignoring the public interest in favor of hobnobbing with (in this case aged) stars that there is nothing constructive to say. Term extension will benefit a very few a great deal, and most not at all. The public will suffer as it always has done, but because the suffering is suffered in small amounts and diffusely, politicians are spared confronting directly the ugly consequences of their failure to act in the public interest. But yesterday, a succinct letter on the topic was published in the (UK) Times online by a number of European scholars that I thought all worth reprinting. For those in the U.S., it should be noted that in Europe academics play a significant role in governmental policy and are not as politically polarized as in the States. Here it is:<br /><br /><br /><br /><span style="font-style: italic;"> From The Times</span><br /><span style="font-style: italic;"> July 21, 2008</span><br /><br /><span style="font-style: italic;"> Copyright extension is the enemy of innovation</span><br /><span style="font-style: italic;"> The proposed Term Extension Directive will alienate a younger generation that fails to see a principled basis</span><br /><br /><span style="font-style: italic;"> Sir, Europe’s recorded music was about to experience a wave of innovation. For the first time, a major set of culturally important artefacts was to enter the public domain: the sound recordings of the 1950s and 1960s. Apparently not so. If the European Commission has its way, re-releases and reworkings of recorded sounds will remain at the mercy of right owners for another 45 years (report, July 17). Why?</span><br /><br /><span style="font-style: italic;"> The record industry succeeded to supply the Commission with evidence that was not opened to public scrutiny: evidence that claims that consumer prices will not rise, that performing artists will earn more, and that the record industry will invest in discovering new talents, as if exclusive rights for 50 years had not provided an opportunity to earn returns.</span><br /><br /><span style="font-style: italic;"> The Commission’s explanatory memorandum states: “There was no need for external expertise.” Yet, independent external expertise exists. Unanimously, the European centres for intellectual property research have opposed the proposal. The empirical evidence has been summarised succinctly in at least three studies: the Cambridge Study for the UK Gowers Review of 2006; a study conducted by the Amsterdam Institute for Information Law for the Commission itself (2006); and the Bournemouth University statement signed by 50 leading academics in June 2008.</span><br /><br /><span style="font-style: italic;"> The simple truth is that copyright extension benefits most those who already hold rights. It benefits incumbent holders of major back-catalogues, be they record companies, ageing rock stars or, increasingly, artists’ estates. It does nothing for innovation and creativity. The proposed Term Extension Directive undermines the credibility of the copyright system. It will further alienate a younger generation that, justifiably, fails to see a principled basis.</span><br /><br /><span style="font-style: italic;"> Many of us sympathise with the financial difficulties that aspiring performers face. However, measures to benefit performers would look rather different. They would target unreasonably exploitative contracts during the existing term, and evaluate remuneration during the performer’s lifetime, not 95 years.</span><br /><div style="font-style: italic;" class="Ih2E3d"><br />We call on politicians of all parties to examine the case presented to them by right holders in the light of independent evidence.<br /><br />Professor Lionel Bently, Director, Centre for Intellectual Property and Information Law, University of Cambridge<br /><br />Professor Pierre-Jean Benghozi, Chair in Innovation and Regulation in Digital Services; Director, Research in Economics and Management, Ecole polytechnique, CNRS 1, Paris<br /><br />Professor Michael Blakeney, Co-Director, Queen Mary Intellectual Property Research Institute, University of London<br /><br />Professor Nicholas Cook, Director, AHRC Research Centre for the History and Analysis of Recorded Music, Royal Holloway, University of London<br /><br /></div><span style="font-style: italic;">Professor Dr. Thomas Dreier, Director, Centre for Information Law, Universität Karlsruhe, Karlsruhe Institute of Technology</span><br /><br /><span style="font-style: italic;"> Professor Dr Josef Drexl, Director, Max-Planck-Institute for Intellectual Property, Munich</span><br /><div style="font-style: italic;" class="Ih2E3d"><br />Dr Christophe Geiger, Associate Professor and Director elect, Centre for International Industrial Property Studies (CEIPI), University of Strasbourg<br /><br />Professor Johanna Gibson, Co-Director, Queen Mary Intellectual Property Research Centre, University of London<br /><br /></div><span style="font-style: italic;">Professor Dr Reto Hilty, Director, Max-Planck-Institute for Intellectual Property, Munich</span><br /><br /><span style="font-style: italic;"> Professor Dr Thomas Hoeren, Director, Institute for Information, Telecommunications- and Media Law, Münster University</span><br /><div style="font-style: italic;" class="Ih2E3d"><br />Professor Bernt Hugenholtz, Director, Institute for Information Law, University of Amsterdam<br /><br />Professor John Kay, Chair, British Academy Copyright Review<br /><br />Professor Martin Kretschmer, Director, Centre for Intellectual Property Policy & Management, Bournemouth University<br /><br /></div><span style="font-style: italic;">Professor Dr Annette Kur, Max-Planck-Institute for Intellectual Property, Munich</span><br /><div style="font-style: italic;"><div><span id="q_11b4a2d8e237ccd2_9" class="WQ9l9c">- Show quoted text -</span></div><div class="Wj3C7c"><br />Professor Hector MacQueen, Co-Director, SCRIPT/AHRC Centre Intellectual Property & Technology Law, University of Edinburgh<br /><br />Professor Ruth Towse, Professor of the Economics of Creative Industries, Erasmus University Rotterdam and Bournemouth University<br /><br />Professor Charlotte Waelde, Co-Director, SCRIPT/AHRC Centre Intellectual Property & Technology Law, University of Edinburgh<br /><br /></div></div>William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com8tag:blogger.com,1999:blog-12505562.post-68489260065557052802008-07-21T09:12:00.003-04:002008-08-08T15:47:34.231-04:00The Facebook SuitThe lawsuit filed by <span class="blsp-spelling-error" id="SPELLING_ERROR_0">Facebook</span> in California against the German site <span class="blsp-spelling-error" id="SPELLING_ERROR_1">StudiVZ</span> (and <span class="blsp-spelling-error" id="SPELLING_ERROR_2">StudiVZ</span>’s declaratory judgment action against <span class="blsp-spelling-error" id="SPELLING_ERROR_3">Facebook</span> in a German court) has been all over the newspapers and <span class="blsp-spelling-error" id="SPELLING_ERROR_4">blogosphere</span>. <span class="blsp-spelling-error" id="SPELLING_ERROR_5">StudiVZ</span> s an abbreviation of <span class="blsp-spelling-error" id="SPELLING_ERROR_6">Studentenverzeichnis</span> or <span class="blsp-spelling-error" id="SPELLING_ERROR_7">Studienverzeichnis</span>, which means students' directory. <span class="blsp-spelling-error" id="SPELLING_ERROR_42">Studivz</span> claims the suit is motivated by what I calls the failure of <span class="blsp-spelling-error" id="SPELLING_ERROR_43">Facebook</span>’s German language version: "Their strategy appears to be: 'If you can't beat them, sue them,'" said Marcus <span class="blsp-spelling-error" id="SPELLING_ERROR_44">Riecke</span>, chief executive of <span class="blsp-spelling-error" id="SPELLING_ERROR_45">Studivz</span>, which is owned by <span class="blsp-spelling-error" id="SPELLING_ERROR_46">Verlagsgruppe</span> Georg <span class="blsp-spelling-error" id="SPELLING_ERROR_47">von</span> <span class="blsp-spelling-error" id="SPELLING_ERROR_48">Holtzbrinck</span>, a German publishing company. The site has about 10 million members, mostly in Germany, Switzerland and Austria, although my German <span class="blsp-spelling-error" id="SPELLING_ERROR_8">au</span> pair uses it here in Connecticut. (I do wonder about the jurisdictional issue). A side by side of the two is available, <a href="http://mashable.com/2008/07/19/fed-up-with-german-copycat-facebook-unleashes-the-lawyers/">here</a>.<br /><br />I haven’t seen <span class="blsp-spelling-error" id="SPELLING_ERROR_9">Facebook</span>’s complaint and so don’t know if it is a copyright infringement suit (as is usually claimed), a trademark suit, or both. Some of the language in press releases sounds like trademark, e.g., “As with any counterfeit product, <span class="blsp-spelling-error" id="SPELLING_ERROR_10">StudiVZ</span>’s uncontrolled quality standards for service, features and privacy negatively impact the genuine article,” <span class="blsp-spelling-error" id="SPELLING_ERROR_11">Facebook</span> is said to have stated in the complaint. <span class="blsp-spelling-error" id="SPELLING_ERROR_12">Facebook</span> is also said to have sued over the “copying the look, feel, features and services of <span class="blsp-spelling-error" id="SPELLING_ERROR_13">Facebook</span>.” Look and feel may state a copyright claim, but services don't. Even before the suit, blogs have been very loose about what they consider to be a “clone.” On July 11<span class="blsp-spelling-error" id="SPELLING_ERROR_14">th</span>, <span class="blsp-spelling-error" id="SPELLING_ERROR_15">Mashable</span> ran a post called “<a href="http://mashable.com/2007/07/11/10-facebook-clones/">Copycats: Top 10 International <span class="blsp-spelling-error" id="SPELLING_ERROR_16">Facebook</span> Clones." </a>There are services that market themselves as offering clone templates and functionalities for popular sites, but as the software industry discovered decades ago, "look and feel" charges are more easily made than won.William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com1tag:blogger.com,1999:blog-12505562.post-68381181460088094382008-07-18T09:50:00.003-04:002008-08-08T15:48:02.587-04:00Preemption and Mutant CopyrightIn <span style="font-style: italic;"><span class="blsp-spelling-error" id="SPELLING_ERROR_0">Dastar</span> Corp. v. Twentieth Century Fox Film Corp.</span>, 539 U.S. 23, 31 (2003), Justice <span class="blsp-spelling-error" id="SPELLING_ERROR_1">Scalia</span> phrased the question to be decided this way:<br /><br /><span style="font-style: italic;">[A]s it comes to us, the gravamen of respondents' claim is that, in marketing and selling [defendant’s TV series] as its own product without acknowledging its nearly wholesale reliance on the [<span class="blsp-spelling-error" id="SPELLING_ERROR_2">plantiff</span>’s] television series, <span class="blsp-spelling-error" id="SPELLING_ERROR_3">Dastar</span> has made a “false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which ... is likely to cause confusion ... as to the origin ... of his or her goods.” § 43(a). See, e.g., Brief for Respondents 8, 11. That claim would undoubtedly be sustained if <span class="blsp-spelling-error" id="SPELLING_ERROR_4">Dastar</span> had bought some of New Line's Crusade videotapes and merely repackaged them as its own. <span class="blsp-spelling-error" id="SPELLING_ERROR_5">Dastar's</span> alleged wrongdoing, however, is vastly different: It took a creative work in the public domain-the Crusade television series-copied it, made modifications (arguably minor), and produced its very own series of videotapes. If “origin” refers only to the manufacturer or producer of the physical “goods” that are made available to the public (in this case the videotapes), <span class="blsp-spelling-error" id="SPELLING_ERROR_6">Dastar</span> was the origin. If, however, “origin” includes the creator of the underlying work that <span class="blsp-spelling-error" id="SPELLING_ERROR_7">Dastar</span> copied, then someone else (perhaps Fox) was the origin of <span class="blsp-spelling-error" id="SPELLING_ERROR_8">Dastar's</span> product. At bottom, we must decide what § 43(a)(1)(A) of the <span class="blsp-spelling-error" id="SPELLING_ERROR_9">Lanham</span> Act means by the “origin” of “goods.”</span><br /><br />He then answered the question as follows:<br /><br /><span style="font-style: italic;">Assuming for the sake of argument that <span class="blsp-spelling-error" id="SPELLING_ERROR_10">Dastar's</span> representation of itself as the “Producer” of its videos amounted to a representation that it originated the creative work conveyed by the videos, allowing a cause of action under § 43(a) for that representation would create a species of mutant copyright law that limits the <span class="blsp-spelling-error" id="SPELLING_ERROR_11">public's</span> “federal right to ‘copy and to use’ ” expired copyrights, Bonito Boats, supra, at 165, 109 S.Ct. 971.</span><span style="font-style: italic;"> When Congress has wished to create such an addition to the law of copyright, it has done so with much more specificity than the <span class="blsp-spelling-error" id="SPELLING_ERROR_12">Lanham</span> Act's ambiguous use of “origin.”</span><br /><br />Subsequent courts have not limited <span class="blsp-spelling-error" id="SPELLING_ERROR_13">Dastar</span> to works that are in the public domain, which is why it is a surprise to read the recent opinion in <span style="font-style: italic;"><span class="blsp-spelling-error" id="SPELLING_ERROR_14">LBB</span> Corp. v. Lucas Distribution, Inc.</span>, 2008 <span class="blsp-spelling-error" id="SPELLING_ERROR_15">WL</span> 2743751 (S.D.N.Y July 14, 2008) No. 08 <span class="blsp-spelling-error" id="SPELLING_ERROR_16">Civ</span>. 4320(<span class="blsp-spelling-error" id="SPELLING_ERROR_17">SAS</span>). The facts are a bit spare, perhaps because of the court’s sensitivity to the pornographic of the films. As related by the court:<br /><br /><span style="font-style: italic;">Plaintiff <span class="blsp-spelling-error" id="SPELLING_ERROR_18">LBB</span> Corporation is a California corporation that produces and distributes pornographic films that are marketed toward niche audiences. Pursuant to a contract dated November 6, 2007, <span class="blsp-spelling-error" id="SPELLING_ERROR_19">LBB</span> purchased all rights to a film entitled Nasty Piss Boys (the “Work”), a film produced in the Czech Republic by <span class="blsp-spelling-error" id="SPELLING_ERROR_20">Galaxia</span> Studio. Defendants are marketing a film entitled Raw Twinks in Czech, an identical or substantially similar film that features the same performers in the same sequence.<span class="blsp-spelling-error" id="SPELLING_ERROR_21">FN</span>3</span><br /><br /><span style="font-style: italic;"><span class="blsp-spelling-error" id="SPELLING_ERROR_22">FN</span>3. See <span class="blsp-spelling-error" id="SPELLING_ERROR_23">Compl</span>. ¶¶ 23, 36. A cursory examination of the DVD cases indicates that at least one of the photographs on defendants' case is identical to a photograph on the case of the Work.</span><br /><br />Claims were brought under the Copyright Act and a New York State consumer protection law. Section 349 of the General Business Law. The opinion only concerns the state law claim. Defendant moved to dismiss the claim under <span class="blsp-spelling-error" id="SPELLING_ERROR_24">FRCP</span> 12(b)(6) for failure to state a claim, arguing inadequacy under state law. The court granted the motion on that ground, but rejected defendant’s preemption argument. That seems error to me. In finding that the requirement of intentional deception saved the claim from preemption, the court merely cited to a <span class="blsp-spelling-error" id="SPELLING_ERROR_25">pre</span>-<span class="blsp-spelling-error" id="SPELLING_ERROR_26">Dastar</span> opinion in the Second Circuit, and then added: “The only harm alleged in the Complaint is actual confusion amongst consumers whereby the public is deceived and confused into believing that the Defendants' film is produced, provided, endorsed or authorized by Plaintiff.”<br /><br />But the actual claim seems to be based on what <span class="blsp-spelling-error" id="SPELLING_ERROR_27">Dastar</span> rejected, a claim based on the content of the film, not confusion as to its origin.William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com2tag:blogger.com,1999:blog-12505562.post-34453424720708767762008-07-16T14:10:00.003-04:002008-08-08T15:48:26.798-04:00EU Press Release on Term Extension<a href="http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1156&format=HTML&aged=0&language=EN&guiLanguage=en">Here</a> is a link to the <span class="blsp-spelling-error" id="SPELLING_ERROR_0">EU's</span> Press Release today proposing the extension of term for sound recordings from 50 to 95 years. As the Press Release notes, there is an additional proposal to deal with the problem of term for co-authorship for musical compositions. The proposal is the same as that found in U.S. law:<br /><br /><span style="font-style: italic;">In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author's death.<br /><br /></span>Here's a teaser though: what is the term for a co-written work where one author is an individual and the other author has created the work as a work for hire?<br /><span style="font-style: italic;"><span style="font-style: italic;"><span style="font-style: italic;"><br /></span></span></span>William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com11tag:blogger.com,1999:blog-12505562.post-5203719676219377692008-07-15T08:48:00.006-04:002008-08-08T15:49:06.347-04:00The Strange Copyright World of WarcraftThe trial court has handed down its summary judgment opinion in <span class="blsp-spelling-error" id="SPELLING_ERROR_0">MDY</span> Industries, <span class="blsp-spelling-error" id="SPELLING_ERROR_1">LLC</span> v. Blizzard Entertainment, Inc., involving the <span class="blsp-spelling-error" id="SPELLING_ERROR_2">multiplayer</span> online role-playing game "<a href="http://www.worldofwarcraft.com/index.xml">World of <span class="blsp-spelling-error" id="SPELLING_ERROR_3">Warcraft</span></a>" and a bot program known as <span class="blsp-spelling-error" id="SPELLING_ERROR_4">WowGlider</span>, created by declaratory judgment plaintiff. <span class="blsp-spelling-error" id="SPELLING_ERROR_5">WowGlider</span> plays <span class="blsp-spelling-error" id="SPELLING_ERROR_6">WoW</span> while the player is away from his or her computer, thereby permitting the player to advance more quickly than he or she otherwise could. <span class="blsp-spelling-error" id="SPELLING_ERROR_7">WoW's</span> owners didn't like this, claiming it violated terms of use and the end user license. Blizzard found out about the activity through its "Warden" <span class="blsp-spelling-error" id="SPELLING_ERROR_8">spyware</span> program, discussed <a href="http://en.wikipedia.org/wiki/Warden_%28software%29">here</a> in <span class="blsp-spelling-error" id="SPELLING_ERROR_9">Wikipedia</span>, <span class="blsp-spelling-error" id="SPELLING_ERROR_10">and in</span> the opinion at pages 17-20. Blizzard took a page out of the Godfather by sending representatives to <span class="blsp-spelling-error" id="SPELLING_ERROR_11">MDY</span> owner Michael <span class="blsp-spelling-error" id="SPELLING_ERROR_12">Donnnelly's</span> home and telling h<span class="blsp-spelling-error" id="SPELLING_ERROR_13">im</span> they would file suit the next day against <span class="blsp-spelling-error" id="SPELLING_ERROR_14">MDY</span> and <span class="blsp-spelling-error" id="SPELLING_ERROR_15">Donnelly</span> unless he agreed to stop selling the program. About 100,000 copies of the program have been sold, as compared to the 10 million active players of <span class="blsp-spelling-error" id="SPELLING_ERROR_16">WoW</span>. Not intimidated, <span class="blsp-spelling-error" id="SPELLING_ERROR_17">Donnelly</span> filed a declaratory judgment action later that day. Blizzard filed a counterclaim, charging contributory infringement and vicarious liability.<br /><br />The court held for Blizzard on the copyright claims (No. CV-06-2555-PHX-DGC (David Campbell, Judge, July 14, 2008)), available <a href="http://docs.justia.com/cases/federal/district-courts/arizona/azdce/2:2006cv02555/322017/82/">here</a>. On the <span class="blsp-spelling-error" id="SPELLING_ERROR_18">DMCA</span> claims, the court granted <span class="blsp-spelling-error" id="SPELLING_ERROR_19">MDY's</span> motion that the Warden <span class="blsp-spelling-error" id="SPELLING_ERROR_20">spyware</span> did not qualify as controlling access within the meaning of 17 <span class="blsp-spelling-error" id="SPELLING_ERROR_21">USC</span> 1201(a)(2), but denied summary judgment on Blizzard's 1201(b)(1) claim that the <span class="blsp-spelling-error" id="SPELLING_ERROR_22">spyware</span> was a technological protection measure: <span class="blsp-spelling-error" id="SPELLING_ERROR_23">MDY</span> argued that the code from the game client software was not written to RAM after the user makes it through the <span class="blsp-spelling-error" id="SPELLING_ERROR_24">spyware</span> scan; the court found there was a factual dispute "with respect to the extent to which Blizzard's protective software protects the copying of software code to RAM ... ."<br /><br />The court's holding on the copyright claims compares very unfavorably to its handling of the <span class="blsp-spelling-error" id="SPELLING_ERROR_25">DMCA</span> claims, permitting a chilling extension of control by copyright owners of software over copies of programs they have sold. The critical point is that <span class="blsp-spelling-error" id="SPELLING_ERROR_26">WoWGilder</span> did not <span class="blsp-spelling-error" id="SPELLING_ERROR_27">contributorily</span> or vicariously lead to violating any rights granted under the Copyright Act. Unlike speed-up kits, there was no creation of an unauthorized derivative work, nor was a copy made even under the Ninth Circuit's misinterpretation of RAM copying in the MAI v. Peak case. How one might ask can there be a violation of the Copyright Act if no rights granted under the Act have been violated? Good question.<br /><br />To get to its result, the court had to first find that <span class="blsp-spelling-error" id="SPELLING_ERROR_28">WoW</span>, even though sold over the counter, was licensed not sold. In so finding, the court declined to follow the recent Vernor opinion in the Western District of Washington, believing it had to follow other Ninth Circuit precedent. I agree with the Vernor court that the other precedent (MAI, Triad, Wall Data) do not hold that over the counter software is licensed, not sold. (<span class="blsp-spelling-error" id="SPELLING_ERROR_30">WoW</span> may be purchased online too, but I don't think this changes the analysis.). Having found there was license not a sale, there still had to be a breach of the license in order to permit an infringement action to lie, and recall here that the claim is not one for direct infringement, but rather secondary liability; there was no <span class="blsp-spelling-error" id="SPELLING_ERROR_31">privity</span> between the parties. There was in fact no provision in the license that barred use of <span class="blsp-spelling-error" id="SPELLING_ERROR_32">WoWGlider</span>. The court took the extraordinary step of stitching together two unrelated provisions to create one. You have to read it to believe it, but it took the court 8 pages to go through this hard work, and why? Was the court offended by what it regarded to be cheating? If so, God help us if law is being reduced to such subjective, non-statutory grounds.William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com27tag:blogger.com,1999:blog-12505562.post-7711844490048707992008-07-14T08:12:00.004-04:002008-08-08T15:50:16.187-04:00Lassie Rescued AgainThe Ninth Circuit has saved the copyright in Lassie for its authors' heirs, rejecting a patently frivolous claim by Classic Media, Inc. that a woefully inadequate transfer defeated the heirs' termination rights. The opinion in Classic Media, Inc. v. Winifred <span class="blsp-spelling-error" id="SPELLING_ERROR_0">Mewborn</span>, available <a href="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/D72C56F37658D7ED882574830056E0B7/$file/0655385.pdf?openelement">here.</a><br /><br />The case is pretty straightforward and involves transfers made by the wife (later deceased) and daughters of Eric Knight, who wrote the 1938 novel "Lassie Come Home." Mr. Knight had made an original transfer, and then died in 1943 before the renewal term, bequeathing his rights to his family. Under the Fred Fisher and Rear Window cases, his heirs obtained all rights free and clear of the transfer of renewal rights when they register the renewal claims. Plaintiff's predecessor in interest had an agreement with Mrs. Knight to use the novel in the later television series, but did not have an agreement with the three daughters. In 1976, before the 1976 Act became effective on January 1, 1978, the daughters made transfers for pitiful sums. Termination rights were thus governed by Section 304(c), not Section 203.<br /><br />A critical difference between the section 203 and section 304(c) termination rights is the limitation of the section 203 termination right to transfers made by the author(s), 203(a)(1), a limitation not found in Section 304(c). See Section 304(c)(1): “(1) In the case of a grant executed by a person or persons other than the author … .” The reason for limiting the section 203 termination right to the author was explained as follows in the Register of Copyrights' 1965 report:<br /><br /><span style="font-style: italic;">[A]s a direct result of the present renewal provisions, a large number of binding transfers and licenses covering renewal rights have been executed by the author's widow, children, and other statutory beneficiaries, as well as the author himself. We believe that, for example, where the author's widow was the proper renewal claimant but had previously executed a transfer of her renewal rights, she should be able to gain the extended term after the present 28-year renewal period is over.</span><br />Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill 96 (Comm. Print 1965).<br /><br />Section 304(c)(1) was thus intended for exactly the situation that arose with Lassie. Both Sections bar any effort to contractually give up termination rights. The relevant language in Section 304(c)(5) states that termination "may be effected notwithstanding any agreement to the contrary," so it mattered not at all what the language of the 1976 transfers was. They were <span class="blsp-spelling-error" id="SPELLING_ERROR_1">pre</span>-1978 transfers, and thus were terminable at will if done in a timely fashion, as they were.<br /><br />The district court got matters completely fouled up, but the Ninth Circuit straightened them out, also delivering repeated criticisms of <span class="blsp-spelling-error" id="SPELLING_ERROR_2">Classic's</span> lawyer for what it seems to have perceived as an effort to intimidate an elderly woman. See. e.g., page 8533 where counsel accused Mr. Knight's daughter of extortion, and threatened to hold her and her counsel personally responsible for "enormous and irreparable damages." I don't know the precise procedural posture of the case at this point because of the reversal (there was a <span class="blsp-spelling-error" id="SPELLING_ERROR_3">Lanham</span> Act claim too), but I hope that Mr. Knights' daughter is able to receive her full attorney's fees and costs for a case that should never have been brought (and it was brought by Classic as a declaratory relief action).William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com2tag:blogger.com,1999:blog-12505562.post-89520032221609566352008-07-11T09:13:00.010-04:002008-08-08T15:50:44.508-04:00Eleventh Circuit: Fair Use, Laches, and Kitchen SinkThe Eleventh Circuit has been on a copyright tear in the last two weeks. In addition to the en <span class="blsp-spelling-error" id="SPELLING_ERROR_0">banc</span> opinion in the <span class="blsp-spelling-error" id="SPELLING_ERROR_1">Greenberg</span> - National Geographic Society case, there was a <a href="http://www.ca11.uscourts.gov/opinions/ops/200710020.pdf">highly technical opinion </a>on the Satellite Home Viewer Act and the Section 119 compulsory license, as well as today's opinion: <a href="http://www.ca11.uscourts.gov/opinions/ops/200515129.pdf">Peter <span class="blsp-spelling-error" id="SPELLING_ERROR_2">Letterese</span> & Associates, Inc. v. World Institute of Scientology Enterprises</a>, a 69 page opinion by Judge <span class="blsp-spelling-error" id="SPELLING_ERROR_3">Tjoflat</span>. The opinion is so vast that he has a introductory section explaining its organization.<br /><br />So what, you might ask, caused so many trees to be felled and ink to be spilled? There are almost 10 pages of facts, for one thing. I will boil the facts down to this: there was a guy (Leslie Achilles "Les" Dane) who developed a sales book on closing techniques. L. Ron Hubbard liked it, bought some copies, and began teaching its techniques. For many years, Dane and the <span class="blsp-spelling-error" id="SPELLING_ERROR_4">Scientologists</span> had a good working relationship; Dane went to many Scientology offices and gave seminars. Dane died and a different company, run by a booted-out <span class="blsp-spelling-error" id="SPELLING_ERROR_5">Scientologist</span> (Peter <span class="blsp-spelling-error" id="SPELLING_ERROR_6">Letterese</span>), bought Dane's copyrights and sued the <span class="blsp-spelling-error" id="SPELLING_ERROR_7">Scientologists</span>.<br /><br />The first issue to be discussed was whether a derivative work was created. Here the facts are unclear to me, but in one part of the opinion it is stated that the <span class="blsp-spelling-error" id="SPELLING_ERROR_8">Scientologists</span> "did not make copies of the book itself; students would either borrow or purchase the book for their study." The <span class="blsp-spelling-error" id="SPELLING_ERROR_9">Scientologists</span> did, though, produce their own course book, and may have appended some of Dane's material to it without copying that material. This seems to be what led the Eleventh Circuit to trash-talk the Ninth Circuit's Mirage Editions v. Albuquerque A.R.T. Co., 856 F.3d 1341 (9<span class="blsp-spelling-error" id="SPELLING_ERROR_10">th</span> Cir. 1988) opinion, which held that remounting an original copy was an infringing work. No way according to the Eleventh, siding with Judge <span class="blsp-spelling-error" id="SPELLING_ERROR_11">Easterbrook's</span> opinion in Lee v. A.R.T. Co., 125 F.3d 582 (77<span class="blsp-spelling-error" id="SPELLING_ERROR_12">th</span> Cir. 1997).<br /><br />There are then 15 pages on whether the two course books were substantially similar. I can sum that up in one word, "no." Next up was fair use, 28 pages. There are a few interesting passages in that discussion. The first is the court of appeals' rejection of the district court's "fifth factor," which it called "the copyright owner's actual consent to the use of the copyrighted material." This factor was held by the court of appeals to be "incorrect, both in terms of logic and precedent." If someone has consented, then one need not rely on fair use, which is a privileged, <span class="blsp-spelling-error" id="SPELLING_ERROR_13">unconsented</span> to use. The rest of the fair use opinion is straightforward enough, but there is a discussion of out of print books worthy of reading. The court held that the fact that a book is out of print will tend to favor fair use (p. 46-47). But in this case, the plaintiff withheld the book in order to make a decision about when and how to re-release it; hence the book was not out-of-print in the usual sense, i.e., no immediate plans to republish it.<br /><br />The final part of the opinion deals with whether <span class="blsp-spelling-error" id="SPELLING_ERROR_14">laches</span> is available for causes of action brought within the statute of limitations period. I have blogged about this before, and my view, siding with the Fourth Circuit's Lyons opinion, is no, it is not. The Eleventh Circuit couldn't bring itself to say "no, never," but did say a: "presumptive 'no;' there is a strong presumption that a plaintiff's suit is timely if it is filed before the statute of limitations has run. Only in the most extraordinary circumstances will <span class="blsp-spelling-error" id="SPELLING_ERROR_15">laches</span> recognize a defense." The court added,: "Even where such extraordinary circumstances exist, however, <span class="blsp-spelling-error" id="SPELLING_ERROR_16">laches</span> serves as a bar only to the recovery of retrospective damages, not to prospective relief."William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com6tag:blogger.com,1999:blog-12505562.post-75355792024360357042008-07-10T09:49:00.004-04:002008-08-08T15:51:10.821-04:00Judge Posner on Attorney's Fees to DefendantsYesterday, Judge <span class="blsp-spelling-error" id="SPELLING_ERROR_0">Posner</span> handed down an opinion in <a href="http://www.ca7.uscourts.gov/tmp/EW0IS5AG.pdf">Eagle Services Corp. v. H20 Industrial Services</a> that is sure to cited by many future defendants who prevail and seek their attorney's fees. In a jury case, after Plaintiff rested, the district court granted defendant's motion for judgment as a matter of law, but denied a subsequent motion for attorney's fees. The district court found the suit not frivolous. The court of appeals found the suit to be frivolous. Plaintiff conceded it had suffered no actual damages and was not entitled to statutory damages. Instead, it sought defendant's indirect profits.<br /><br />The suit involved an alleged claim of copyright infringement in a compilation of OSHA regulations. Employees of plaintiff left to start a new, competing firm. Plaintiff believing that defendants had taken its manual with them, and sent two people to defendant under the guise of being prospective customers. When they asked to see defendant's safety manual, they were shown plaintiff's. But defendants never sold copies of plaintiff's manual, and later developed their own manual that was, apparently, not infringing. In the litigation, plaintiff acted very <span class="blsp-spelling-corrected" id="SPELLING_ERROR_1">aggressively</span>, deposing all of H20's existing customers and a number of prospective ones as well. Judge <span class="blsp-spelling-error" id="SPELLING_ERROR_2">Posner</span> wrote, "the defendants <span class="blsp-spelling-corrected" id="SPELLING_ERROR_3">claim</span> without contradiction that as a result H20 lost many customers."<br /><br />Plaintiff argued for a bizarre form of damages: "all the profits that H20 made in its business before it created is own manual." There was no ground for thinking there were any profits attributable to the infringement. Because the court of appeals found the suit to be frivolous and against a newer, smaller, and weaker competitor, as a matter of general law, the court of appeals thought that an award to defendant was required. If that is all the opinion said, I wouldn't be writing this blog. The court of appeals went on, saying that the case for fees to defendant is "even stronger in a copyright case." The backdrop to this is the continued refusal of some courts to adopt the even handed approach to awarding fees mandated by the Supreme Court's opinion in <span class="blsp-spelling-error" id="SPELLING_ERROR_4">Fogerty</span> v. Fantasy, Inc., 510 U.S. 517 (1994). Before <span class="blsp-spelling-error" id="SPELLING_ERROR_5">Fogerty</span> many courts had a double standard in which prevailing plaintiffs got attorney's fees as a matter of course, but prevailing defendants had to prove plaintiff was something like a ax murderer.<br /><br />Judge <span class="blsp-spelling-error" id="SPELLING_ERROR_6">Posner</span> set out to rectify the continued refusal of some court to comply with <span class="blsp-spelling-error" id="SPELLING_ERROR_7">Fogerty</span>:<br /><br /><span style="font-style: italic;">If it is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and this gives it an incentive to spend heavily in litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on the defense is reduced and he may be forced into an unfavorable settlement.</span><br />...<br /><br /><span style="font-style: italic;">In the typical copyright case a victory for the defendant enlarges the public domain by denying the plaintiff's right to prevent the defendant -- or anyone else -- from using the intellectual property alleged to infringe the plaintiff's copyright.</span><br /><br />There is also this passage in the opinion:<br /><br /><span style="font-style: italic;">When a plaintiff is suing just for money and he has no ground at all for obtaining a money judgment, the fact that his rights may have been violated does not save his suit from being adjudged frivolous</span>. (page 5)<br /><br />While this is dictum since Plaintiff's rights had not been found to be violated, it should be an important warning signs for copyright owners who have not suffered any financial harm, and are bringing suits, like Eagle did, for non-competitive reasons.<br /><br />H.T. to C.E. Petit who I believe will disagree with this post.William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com6tag:blogger.com,1999:blog-12505562.post-21802105535084618362008-07-09T11:25:00.003-04:002008-08-08T15:51:42.140-04:00A 1909 Act work for hire puzzleOlen York sent me this question awhile back. I would be interested in what people think. It involves the interplay between the 1909 Act and Section 303 of the 1976 Act. Here it is, slightly revised:<br /><br /><br /><span style="font-style: italic;"> A mural is created in 1940 under a work for hire, but the work is not published. The author of the mural dies in 1950. What is the term of protection?</span><br /><br />The term can't be life of the author plus 70 years since it is work for hire.William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.com18