The Mac Observer reports Apple Subpoenas Mac Rumor Sites Over Audio Product. In order to obtain the identity of a leaker who “misappropriated Apple’s trade secrets regarding future product information,” after those trade secrets appeared on three websites.

Law students: Don’t leave your 48-hour takehome exam until the last weekend of final exams. You’re just going to want to sleep instead.
Law profs: Don’t give 48-hour takehome exams. I think the best exam format that I have had is the floating 8-hour takehome exam. 8 hours is long enough to put together a reasonably well thought out piece of writing and proofread, but still a relatively short period of time. The take-home makes it possible to find a comfortable place to sit, work with some music and a snack.
One more piece of advice for law students: avoid 2-credit classes as much as possible. They involve just as much work as 3 or 4 credit classes…

The big trend in gadgets today is embedding headphones in headwear. Giro makes ski helmets with integrated headphones. Burton sells a snowboard helmet with headphones and a Headphone Beanie.
Where’s the helmet with the built-in bluetooth mobile phone headset? That’s technology I could use. While skiing, I wear a helmet. Sometime last year, I was sitting on a chairlift and heard my mobile phone ring in my jacket pocket. After fishing the phone out of my pocket, I pressed the answer button and held the phone up to my head only to have it smack against the side of the helmet. I quickly remembered that I was wearing a helmet and that having the ski helmet between my ear and the phone makes it impractical, if not impossible to actually answer the phone.
Why not have a bluetooth headset built into the ski helmet? That would not only make it possible to answer the phone, but eliminate the need to fish in one’s pocket for the phone. For the one time a year it would come in handy, such a helmet would not justify the extra expense. Plus, wouldn’t it be annoying to have to change the battery in a helmet?

Duke Law Center for the Study of the Public Domain: Arts Project Moving Image Contest: “The contest asked entrants to create short films demonstrating some of the tensions between art and intellectual property law, and the intellectual property issues artists face, focusing on either music or documentary film.”

The NY Times reports: Lawsuit Accuses Fox of Copying Wife-Swap Show

The British production company that created the reality series “Wife Swap” and sold it to ABC filed suit against Fox yesterday, charging that its reality series “Trading Spouses” was a “blatant and wholesale copycat” of the British show.

Via The Trademark Blog, see “Reality Check: When Will 2 TV Shows in the Same Genre Be Considered Substantially Similar Under Copyright Law?” from 21 Entertainment and Sports Lawyer 2 (Summer 2003).

Wired News: P2P Battle Reaches FTC

The Federal Trade Commission officially entered the brawl over peer-to-peer software Wednesday as it hosted the first day of a two-day P2P workshop in which both sides accused each other of trying to deceive government regulators.
Representatives of P2P software companies charged that content interests have tried to demonize P2P in an attempt to effectively kill it. Content providers, meanwhile, argued that they merely want to make P2P networks more responsible to consumers and more respectful of copyright holders.

Reuters: Lawsuit filed to prohibit copyright protection of software

Computer software should not be protected by copyright laws designed for music, literature and other creative works, according to a lawsuit filed in a U.S. court in San Francisco.
Intellectual-property consultant Greg Aharonian hopes to convince the court that software makers can protect their products adequately through patents, which provide more comprehensive protection, but are difficult to obtain and expire in a shorter period of time

The complaint, via Joe Gratz, who notes: “Unsurprisingly for a pro se constitutional litigant, his complaint is long on argument and short on factual allegations. And his theory – that software copyright is void for vagueness – is simply not going anywhere.”
Kaiser Wahab: Attorney to Ashcroft: Should Software be Copyrighted at All? No.: “Expressly barring copyright registration for software code would have tremendous ramifications for the raging software piracy war.”
Chris Cohen: Lawsuit filed to force protection of sotware with patent instead of copyright: “I don’t know if this is a really interesting idea or if it’s just nutty. One thing is for sure, regular copyright terms for software is ridiculous – like most copyrighted material it is utterly worthless after 100 years or more.”

The New York Times reports: Google Is Adding Major Libraries to Its Database: “Google, the operator of the world’s most popular Internet search service, plans to announce an agreement today with some of the nation’s leading research libraries and Oxford University to begin converting their holdings into digital files that would be freely searchable over the Web.”
LawMeme: Google to Help Libraries Put Collections Online “I look forward tremendously to having all that public domain material online: watch out publishers, because you’re about to have to start competing with free in a whole new way.”
John Battelle’s Searchblog discusses the new development and their implicataions:
Google Library: Talk About a Long Tail…, Google To Launch Major Pilot Program with Harvard, Stanford, U Mich, Others, Print Implications: Google As Builder
Michael Madison: Google Print and P2P: “Is Google Print an information conduit? A massive, rogue P2P technology? Is it a contributory infringer? A publisher? From whom, if anyone, does it need licenses, and who, if anyone, should regulate it, and how, if at all?”
Scott Rosenberg: Google’s commitment to the public: Google and the public good: “Google’s leaders are demonstrating that their corporate mission statement — ‘to organize the world’s information and make it universally accessible and useful’ — is not just empty words. If you’re serious about organizing the world’s information, you’d better have a plan for dealing with the legacy matter of the human species’ nearly three millennia of written material. So, simply, bravo for the ambition and know-how of a company that’s willing to say, ‘Sure, we can do it.'”
Lauren Weinstein: The Dark Side of Google: “Google has created a growing information repository of a sort that CIA and NSA (and the old KGB) would probably envy and covet in no uncertain terms — and Google’s data is virtually without outside oversight or regulation.”
If Google is digitizing this vast collection of public domain works, what obligations, if any, does it have to the public?

Michael Madison analyzes a trademark suit by the American Chemical Society against Google concerning the mark “scholar”: ACS Sues Over Google Scholar

The American Chemical Society announced last Friday that it is suing Google over the Google Scholar service. ACS runs SciFinder Scholar, a service for accessing scientific literature published by CAS (the Chemical Abstracts Service), and ACS argues that it owns trademark rights to the word “Scholar,” at least in the context of information retrieval.
At any intuitive level, this is wacky stuff.

AP reports: Google Wins Trademark Ad Lawsuit

U.S. District Judge Leonie Brinkema rejected a claim by auto insurance giant Geico Corp., which argued that Google should not be allowed to sell ads to rival insurance companies that appear whenever Geico’s name is typed into the Google search box…. But Brinkema said the case would continue to move forward on one remaining issue, whether ads that pop up and actually use Geico in their text violate trademark law.

Wired News reports: Hollywood Wants BitTorrent Dead: “In the United States and the United Kingdom, the Motion Picture Association of America, the main lobbying arm of U.S. film studios, filed civil lawsuits against more than 100 operators of BitTorrent “tracker” servers that point to locations where digital files of movies, music and other content can be found.”
Update:
Findlaw provides the complaints.

Edward Felten wrote a P2P app in 15 lines of code: TinyP2P. What does this mean for attempts to regulate P2P?

Both people who purchased tracks from the Real download store to play on their iPod may have a problem. News.com reports:
Apple fights RealNetworks’ ‘hacker tactics’: “Apple Computer has quietly updated its iPod software so that songs purchased from RealNetworks’ online music store will no longer play on some of the Mac maker’s popular MP3 players.”
Previously: Real DRM, Hey! You! Get off of my Pod, Real Useless.

Reuters reports: FCC Chief Urges Denying ‘Private Ryan’ Complaints

FCC Chairman Michael Powell has concluded the agency should not take action against the other 159 stations that aired [“Saving Private Ryan”] because the language was part of accurately portraying the story about the Allied invasion of Normandy during World War II, the FCC official said.

David Pogue wonders why television programs are scarce after initial broadcast: A Lesson for Broadcasters: “A network spends thousands of dollars promoting and advertising their shows, BEGGING people to watch them-but then once they’ve aired, they don’t want anyone to see them?”
Previously: Market failure on the long tail

Analee Newitz on DRM and technological lock-in/lock-outs: Techsploitation

Our toys are broken because entertainment companies have gigantic sticks jammed into their asses about something called “intellectual property,” which they guard with everything from lawyers to cops. In their zeal to stop people from using their legitimately purchased content, these companies have gummed up their media with so much copy-prevention garbage that it’s practically impossible to watch or listen to anything at your leisure. You might as well wrap your digital media presents in chains.

Salon.com: When dot-com patents go bad

When faced with two choices — selling a company’s patents as part of its overall assets or selling the patents alone — the court (and the market) chose the latter. This means that in the eyes of the legal system and the marketplace, the Commerce One patents were more valuable to independent licensing firms as legal threats than they were to an actual company that makes a Web services product.

I am curious about who is reading this site. Seriously, who are you and why are here? If you are a regular reader of this little blog, please fill out this little survey. I would very much appreciate it. (It may not work too well within RSS readers.)
[form deleted because it was picked up by comment spam bots]

Michael Madison examines the connection between the two internet law cases which were granted cert. by the Supreme Court, MGM v. Grokster and Brand X Internet Service v. FCC: On Grokster and Brand X: “Both cases have to do with how the law deals with communications networks, and specifically with who gets to build them, and who gets to set the rules for how they’re built.”

The Washington Post goes behind the scenes with the Parents Television Council: Fighting Indecency, One Bleep at a Time
The Washington Post reports that the FCC is investigating indecency complaints about the Opening Ceremonies of the 2004 Olympics: FCC Wary of Greeks Baring Gifts at Games
The NY Times’ Frank Rich discusses The Plot Against Sex in America
Finally, Wal-Mart Sued Over Evanescence Lyrics

Wal-Mart Stores Inc., which promotes itself as a seller of clean music, deceived customers by stocking compact discs by the rock group Evanescence that contain the f-word, a lawsuit claims…
“I don’t want any other families to get this, expecting it to be clean. It needs to be removed from the shelves to prevent other children from hearing it,” said plaintiff Trevin Skeens of Brownsville.

From the Berkman Center for Internet and Society at Harvard Law School, Has the Web Changed Politics and The Internet’s Effect on Politics: A Working Hypothesis, v2.0

Remember that little U2 show last month? Apparently, there were a couple of television cameras around to film. The result was on MTV on Friday. Yes, actual music programming on MTV. Well, nearly 22 minutes worth of music programming. That translates into only four songs (not surprisingly, the same four songs from the Live From the Under Brooklyn Bridge iTunes release): Vertigo, All Because of You, Sometimes You Can’t Make it on Your Own and I Will Follow.
I think I got vertigo from watching MTV’s take on the concert. The editing and camera work put TAR’s drunken! careening! cameramen! to shame in both the amount and intensity of drunken careening. In about 3 minutes and 10 seconds of Vertigo, I counted 82 cuts.¹ That means that each shot lasted for an average of 2.3 seconds. Most of those shots were pans or zooms. Is this supposed to be edgy? Sweeping cinematography would have captured the views across the East River to the Brooklyn Bridge and lower Manhattan and fit better with the music.
¹Note that MTV used the audio from the band’s second performance of Vertigo (released on iTunes), but the video from the first performance (it was still light out.)

Phew. MPRE results arrived today and I scored high enough to pass in NY (and NJ, too, but they have lower standards over on that side of the Hudson.) I guess that means I am ethical enough to be a lawyer…

In the insecure, disclosed location of exam prep, I am outlining for Tax. During class, I took notes on paper some days while on other days, I took notes on computer. Yet for one class, I have identical notes in both paper and electronic form. What was I thinking?

News.com reports: FTC spotlights proposals on P2P risks: “The head of the Federal Trade Commission sent a letter to Congress on Tuesday highlighting efforts that file-swapping companies are making to disclose potential online risks.”
The FTC will host a workshop about P2P Filesharing on Dec. 15 and 16.
Available on the FTC site are the public comments about the consumer protection and competition issues in P2P file sharing technology.

LA Times reports: U.S. Supreme Court to Hear File-Sharing Case
AP: Supreme Court to hear file-sharing dispute
Law.com: High-Stakes File-Sharing Case Seeks Supreme Court’s Ears: “Young Supreme Court law clerks, who help their justices screen cases and draft opinions, may be assigned a new task this week: explaining Grokster and Morpheus to their bosses, average age 70.7.”
Courtesy of SCOTUSblog, cert. petition and briefs filed in Grokster

A party raising the statutory affirmative defense of fair use to a claim of trademark infringement does not have a burden to negate the likelihood of confusion. In fact, some level of confusion may be acceptable as part of fair use. KP Permanent Make-Up v. Lasting Impression

Wired News: Spyware on My Machine? So What?: “Not all web surfers think spyware is a problem. Some say the snoopy software is a fair trade-off for free applications, even with the intrusion into their computers and lives.”

Law.com: et tu, Marvel?

For kids reared on comic books, what could be more natural than tumbling into the backyard with their friends to make up new adventures for their favorite superheroes? How many comic book fans adorned their grade-school notebooks with hand-drawn images of the X-Men, the Incredible Hulk, and Captain America?
Apparently Marvel Enterprises Inc., which owns the copyright and trademark rights in these classic superhero characters, thinks that these generations of American children were all infringers, little better than the downloaders targeted by the music and movie industries.

The Trademark Blog has a nicely illustrated post: Marvel v. City of Heroes : “Marvel Comics says that City of Heroes infringes Marvel’s trademarks and copyrights, and has filed this complaint. Marvel says that, for example, Statesman, is just like Captain America, except that COH put the helmet of Magneto (a Marvel villain) on him.”
Marvel Enterprises v. NCSoft

Apparently, there may be reasons to blog other than procrastination. “Blog” is the number 1 word of the year (but only in noun, not verb, form).
Sandhill Trek gets feedback from a wide variety of bloggers about Why Do We Blog?. After writing Join the Blawg Bandwagon, ambivalent immbroglio asks his readers Why do you blog?
I use blogs in order to keep track of links, note obvious trends and write about music and reality tv. Occasionally, I’ll attempt to string some ideas together into a semi-coherent form. It may be possible to synthesize some of those posts into a coherent form and call that a seminar paper. For a better writer than me, it may be possible to take some blog posts and turn it into a paying gig.
BusinessWeek thinks that there are things happening in The Business Of Blogging: “Clearly, the business of blogs is in its infancy, with lots to be worked out. But that’s not stopping marketers, entrepreneurs, and writers alike from diving into this newest form of New Media.”
Of course, with the intrusion of commercialization into RSS feeds, a space generally unsullied by advertising, readers are preparing to block RSS advertising.
For some people, blogging may generate money, while it may threaten the livelihood of other bloggers. Wired News reports: Blogs May Be a Wealth Hazard.
Finally, blogs may be a way to hook up. Perhaps I may need to explore that angle… (In the words of Strong Bad, “Ladies, form a line to my left...”)

The Induce blog has added patent attorneys J. Matthew Buchanan and Steven M. Nipper as contributors, expanded focus to include all pending IP-related legislation and is included as a source in Google News. Of course, if you’re reading this, you’re probably reading that already, anyway…

Mediaweek finds that the FCC Activists Dominate Content Complaints

Through early October, 99.9 percent of indecency complaints—aside from those concerning the Janet Jackson “wardrobe malfunction” during the Super Bowl halftime show broadcast on CBS— were brought by the PTC, according to the FCC analysis dated Oct. 1. (The agency last week estimated it had received 1,068,767 complaints about broadcast indecency so far this year; the Super Bowl broadcast accounted for over 540,000, according to commissioners’ statements.)

Jeff Jarvis: FCC — and media — duped by Brent Bozell’s complaint factory: “Wake up, reporters. Do the real story. A tiny fringe group and the FCC are trying to censor our media and cripple the First Amendment and lazy reporters are swallowing their garbage as they draw grand conclusions about the state of debate in America.”
Jack Balkin: The FCC’s authority to regulate indecency: “The FCC’s authority to regulate indecency consistent with the First Amendment comes from the claim that children are always present (or potentially present) in the audience and that television is a “pervasive” medium. ”

After finding out that credit card companies are not responsible for misappropriations of its photographs, Perfect 10 is now suing image search provider Google for directing web searchers to “stolen content websites.” Perfect 10 v. Google.
John Palfrey: Pornographer sues Google on 12 grounds: “On a quick read, I’m not sure how the plaintiffs will distinguish their complaint regarding direct infringements with respect to the thumbnails of Perfect 10’s copyrighted images rendered by Google from the way that the Kelly v. Arriba Soft court handled it.”
Wendy Seltzer: Perfect 10 Takes Aim At Google: “Perfect 10’s complaint doesn’t look so strong, but its basic arguments are recurring ones in the online debates: that IP owners should be able to deputize intermediaries as their copyright, TM, etc. cops. (It’s no coincidence that Perfect 10’s lawyers include Russ Frackman, counsel to the record labels in MGM v. Grokster.) Sure, holding everyone in the chain liable might help stop infringements, but it would also kill search engines, whose value comes from helping users to find whatever they’re looking for, if it exists on the Web.”
The Trademark Blog: Google Image Search Returns Trademark and Copyright Suit
Previously: Not quite perfect

In Corante’s The Future of Digital Media, Ernest Miller interviews U.Va. lawprof Tim Wu
On Copyright: “Today’s copyright law problem is structural. The law does too much to serve the interests of disseminators—the film industry, recording industry, and publishers—often at the expense of both authorship and consumer welfare. In historical terms, we’ve gone backward: I think we’re closer to where Copyright law was in 1700, when copyrights were all vested in book publishers, than it was in 1900, when authors still sometimes won fights with their publishers.”
Telecom: “The FCC has become like that guy at the office who spends all his time surfing the web instead of doing what he promised to do.”

Rossi v. MPAA, (9th Cir. 2004): “the “good faith belief” requirement in [DMCA] § 512(c)(3)(A)(v) encompasses a subjective, rather than objective, standard of conduct.”
Joe Gratz finds time to read the opinion and discuss: 9th Cir.: Subjective Belief of Infringement Is Enough for Takedown Notice
(via Tech Law Advisor)

Displacement of Concepts: Why everyone needs to worry about English defamation law.

If you say anything about anyone who has a reputation in England, and you could have foreseen that that statement would go up on the web, you’re likely to be sued for libel in England. It doesn’t matter that everyone concerned was in the US, it doesn’t matter that you were talking to a US newspaper with no print circulation or target audience in England, it doesn’t matter that what you said was permitted comment in US law and dealt with mainly US issues. You could still be dragged through expensive and lengthy proceedings in the English courts.

Remember, unlike in the US, English defamation law has no public figure doctrine.

Ben Edelman takes a look at the latest version of Claria’s end-user license agreement and finds that the latest changes are, not surprisingly, hostile to consumers: Gator’s EULA Gone Bad: “In 5,900+ words of text, there’s no shortage of space for Gator to describe itself in terms that ordinary users can understand. But a search of the license shows Gator has failed even to mention the words and phrases most users associate with Gator’s products.”
LawMeme’s Jaes Grimmelman writes: Ben Edelman Gives Gator’s EULA the Once-Over

This agreement, whether characterized as a “license” to use Gator’s copyrighted software or a “contract” between you and Gator, is still a manipulative, low-down, dirty, no-good document…. The reasonable trade at the core of many of these agreements–you can use the software, but don’t repackage it and sell it as your own–is going to survive, but under the right circumstances, almost any other term could easily be struck down

The washington Post reports that Fox is appealing the FCC ruling that found “Married by America” to violate indecency rules: Fox Calls For Court Review of Standards

“First and foremost, the commission’s indecency regulations no longer can withstand constitutional scrutiny,” Fox’s filing to the FCC reads. “Given the tremendous technological changes that have transformed the modern media environment, the commission simply cannot justify an intrusive, content-specific regulation of broadcasters.”

Via Jeff Jarvis, who also takes on Parents TV Council’s Brent Bozell.
Previously: FCC’s Tyrrany of the Minority?

Throughout this year, über-blogger Jason Kottke posted links commentary, rumors, speculation and audio about Ken Jennings’ unprecedented domination of Jeopardy. Kottke quickly became the internet’s leading source for information about the wild and crazy saga of KenJen.
In the week prior to Jennings’ final appearance, Kottke received an audio clip of Jennings’ final Final Jeopardy and posted it to his site along with a transcript. The Washington Post picked up the story (This Game Show Contestant Is In ‘Jeopardy!’) and then Sony contacted Kottke and asked him to remove the audio and then the “spoiler” text.
Kottke complied, noting the chilling effect of Sony’s request (Sony, Ken Jennings and Me):

As an individual weblogger with relatively limited financial and legal resources, I worry about whether I can continue to post things (legal or not) that may upset large companies and result in lawsuits that they can afford and I cannot. The NY Times can risk upsetting large companies in the course of their journalistic duties because they are a large company themselves, they know their rights, and they have a dedicated legal team to deal with stuff like this.

Red Herring reports: And the question is, ‘Who is a big bully?’

“I think it’s possible that Sony thinks individual bloggers are more easily intimidated,” said Wendy Seltzer, an Electronic Frontier Foundation staff attorney who specializes in intellectual property law. “I don’t think they had a reasonable request. A short audio clip – not a full show – could be a fair use in the context of news reporting. Jason Kottke was reporting an event that had, in fact, happened. And just because television producers wanted to treat it as suspense media, doesn’t mean that it’s not also news.”

Scott Andrew: Harrassing fans for being fans: “What it basically boils down to is entertainment companies harrassing fans for being fans. And that is no way to win fans.”
Jeff Jarvis thinks the time has come for a Bloggers’ Legal Defense Society:

I suggest that what we need now is a means of organizing them so a blogger who’s getting harassed by big corporate or government attorneys can call for help. In some cases, the lawyers may say that the blogger did something wrong. But in most cases, the lawyer can breath fire back at the corporate dragons and skip the harassment stage and get right to the civilized discussion and agreement stage.

Denise Howell follows up (Legal Representation Is A Conversation) noting that Chilling Effects Clearinghouse, a joint project of the EFF and law school clinics at Harvard, Berkeley, Stanford, University of San Francisco, and University of Maine, already provides this exact service to small, independent online publishers.
While Howell thinks that these sort of cases are not the type of cases that lawyers in private practice typically take on as pro bono work, Evan Schaeffer thinks that the idea could work. (Thoughts About a “Bloggers’ Legal Defense Society”)

In the right set of circumstances–for example, matching contributions by AmLaw 250 defense firms, as well as offers of pro bono assistance from large firms when an in-the-right blogger really can’t afford help–we would be willing to invest time and money into starting an organization that would serve as a clearinghouse to get threats into the hands of lawyers who would be prepared to deal with them.”> In the right set of circumstances–for example, matching contributions by AmLaw 250 defense firms, as well as offers of pro bono assistance from large firms when an in-the-right blogger really can’t afford help–we would be willing to invest time and money into starting an organization that would serve as a clearinghouse to get threats into the hands of lawyers who would be prepared to deal with them.

This is but one example of the broader question of how should the law deal with personal publishers. Doesn’t the First Amendment require the same level of protection for the personal press as the establishment press?
In a NY Times op-ed piece, Eugene Volokh suggests that citizen journalists deserve the same level of protection as journalists working in traditional media. You Can Blog, but You Can’t Hide: “The First Amendment can’t give special rights to the established news media and not to upstart outlets like ours. Freedom of the press should apply to people equally, regardless of who they are, why they write or how popular they are.”
Bloggers may have legal problems that extend beyond the traditional boundaries of media law. One area which bloggers have to worry about that journalists employed by mainstream press do not have to is employment law. Former blogger Paul Gutman published a note in the Columbia Journal of Law and the Arts about this issue: “Note. Say what?: Blogging and employment law in conflict”. 27 Colum. JL & Arts 145 (2003). (Not available on the web, but it is on Lexis, Westlaw and Hein for those of you with access.)
Last year, I started to plan a panel discussion on “Bloggers and the law: perils and pitfalls of personal publishing.” We ended up not going forward with it, because it didn’t really work for our audience, but perhaps it may be time to actually run this as a session for bloggers.
Kevin Heller has one solution, the blogosphere needs to form themeslves into a not-for-profit corporation and hire Kevin as General Counsel.
Six Apart (Typepad), Google (Blogger), Tucows (Blogware), LiveJournal and other hosted blog service providers might get some customers by being the first to include access to a lawyer to answer questions about C&D letters concerning material posted on the blogs. But, would that create some level of liability for the service providers that makes such a plan infeasible? Would such a plan be ethical? Would that be a worthwhile use of resources by these companies? (Probably not.)

New York City is home to $23 billion counterfeiting trade

New York City Comptroller William C. Thompson, Jr. today released a report estimating that New York City is home to a $23 billion annual illegal counterfeiting industry, causing the City to lose more than $1 billion in tax revenues each year.
Thompson issued the report, “Bootleg Billions: The Impact of the Counterfeit Goods Trade on New York City,” at a news conference attended by industry and anti-counterfeiting experts. Overall, the Comptroller noted that New York State and New York City lost a combined total of about $2.6 billion in tax revenue in 2003 as a result of the sale of counterfeit goods.

Full Report: Bootleg Billions: The Impact of the Counterfeit Goods Trade on New York City

Despite a poor showing for the two teams from NYC, The Amazing Race continues to roll with another entertaining episode. This week’s Detour tested real world important skills (assembling Ikea furniture.) However, I did think that a roll in the hay with Lena and Kristy would have been much more fun than it was at this Roadblock…
Besides the structural reasons for the race being consistently entertaining, the sharp editing helps. For example:

Hayden: “Did you hear Jonathan screaming at Victoria?”
Cut to taxi cab
Jonathan (screaming): “Will you shut up and let me talk?!”

The editors have to go through a lot of footage to put together 44 minutes of TV and not miss gems like Bolo counting: “66, 68, 80.”
By staying in Iceland and Scandinavia for the first three legs, the race has spent less time testing the racers’ airport skills than TAR5, but been no less bunched. In this leg, the teams were all bunched together at two points– due to the operating hours of the train station in Voss and the Ikea in Stockholm. Although it seems to penalize teams that race well, bunching is a vital element of keeping the race interesting. If teams were truly able to capitalize and accumulate leads on a cumulative basis as the race went on, the race would lose much of its excitement and after some point in the race, there would be little to no drama about which team would win the leg and which team would be eliminated. The bunching keeps all the teams competitive.
The bunching also requires teams to run the best race at all times– no team can sit on a pre-existing lead. Instead, teams have to run each leg (or at least from bunching point to pitstop) well in order to advance.
Elsewhere:
ALoTT5MA: Now You Understand that “Needle in a Haystack” Expression
Previous TAR-related posts:
On Like Donkey Kong, My Ox is Broken!.

In the latest installment of Five by Five at the [non]billable hour, five law students (well, four students and one recent graduate) discuss What five things would you change about legal education?
Like Jeremy, Anthony and Wings&Vodka, I would change are the OCI recruiting processes.
Many law students obtain their post-graduate jobs during the On-Campus Interview (OCI) programs during the fall of their second year, when large firms and government agencies hire for the following summer. The vast majority of summer associates in Biglaw get offers for post-graduate employment, potentially freeing the law student from job searching for the entire second half of their legal education. Because of this, many critics of legal education suggest cutting back the program to two years from three.
Because the OCI recruiting process is so heavily grade-driven (especially at a “second-tier” school like Brooklyn), students are recruited based entirely on their first-year grades.
During the first semester of school, students fly nearly completely blind and get little, if any, feedback about performance, yet the first semester grades are disproportionately important in developing the professional career. On the other hand, perhaps the first semester grades should be the most important, because they indicate how adept students are at quick learning.
First, grade the first semester traditionally to the students, but officially report the grades on a pass-fail basis. This allows students the opportunity to get feedback and learn from their mistakes, but to the detriment of students who master the art of Getting to Maybe quickly. Alternatively, require professors to give midterms during the first semester in order to have some kind of feedback mechanism.
Second, prohibit employers from recruiting first and second year students for no more than one semester in advance or until the calendar year in which they will be employed. This moves OCI from the fall of second year to the 2L spring, requires employers to base decisions on 3, rather than 2, semesters of grades, and gives all students the opportunity to delve into specialized areas of practice (through clinics or classes) and develop a better writing sample than those from first year legal writing classes. It also moves the hiring timeline for Biglaw more in line with small firms, public interest and government hiring.
To be effective, either of these proposals would have to be mandated by the ABA, otherwise there is a collective action problem (employers would tend to favor schools who let them recruit early in order to pick the best candidates and prefer those schools who provide complete grade information).

Some obscure band from Ireland played a little free show in Empire State Park at the foot of the Brooklyn Bridge this afternoon. Apparently they have some new album out, which a couple of people have heard about.
I posted some blurry photos from my phone while waiting on line and at the show: Line, U2 TV, Still in line, Anticipation, Vertigo, Sometimes.
There is no doubt that U2 owns the title of “biggest rock band in the world.” Despite a long queue, tall people blocking the view and mediocre sound, this ~45 minute set was great and the location is spectacular.
Setlist:
Vertigo
All Because of You
Miracle Drug
Sometimes You Can’t Make it on Your Own
City of Blinding Lights
Original of the Species
She’s a Mystery to Me
Beautiful Day
I Will Follow
–
Out of Control
Vertigo
(Yes, Vertigo twice.)
The new songs from How to Dismantle an Atomic Bomb bring less rock than lead single “Vertigo,” but “City of Blinding Lights” and “Sometimes You Can’t Make it on Your Own” are the two new songs that stood out.
This will be on MTV at some point and also probably used as footage for the “All Because of You.” There will also be many photos from the thousands of cameras and cameraphones wielded by manic U2 fans.
Links:

• U2logU2 playing NYC from the back of a truck, So Beautiful Tonight – Brooklyn’s First-Ever U2 Show
• Gothamist: U2’s Free Concert in Brooklyn Today, U2 Runs Through Manhattan, New York Will Follow U2, U2 in BKLYN
• Brooklyn Vegan: U2 Under the Brooklyn Bridge (great photos)
• NY Times: Word of a Free Concert, Next to an Oft-Sold Bridge, Spreads Quickly
• BBC: U2 play surprise New York concert
• Steven Tom: U2 in Tribeca
• Amy Langfield: U2 Live at Brooklyn Bridge
• rickey.org: U2@UWS
• One Lounder: Following a day long makeshift parade…
• view from baxter: empire state park

On Saturday, U2 played Saturday Night Live with at least 50% more rock than usual and continued to play after the broadcast ended (U2log: One More?). Look for that on your friendly local p2p network soon…

It may be hard to make out in this cameraphone picture, but the line extended all the way down 53rd St and doubled back on itself multiple times. New Yorkers really like their modern art, when it is in Manhattan and free.

Who owns copyrights in approximately 1500 animated films created by a state-owned Soviet film studio between 1946 and 1991 and who can enter into a valid exclusive licensing agreement to distribute those films outside the Former Soviet Union?
Films by Jove v. Berov, 98-CV-7674 (EDNY, Nov. 5, 2004) looks again at this case, ruling on a Rule 60(b) motion to review the decision taking into account a Russian Federation Directive enacted after the earlier rulings in the EDNY, Films by Jove v. Berov, 154 F. Supp. 2d 432 (E.D.N.Y. 2001) (“Films by Jove I”) and Films by Jove v. Berov, 250 F. Supp. 2d 156 (E.D.N.Y. 2003) (“Films by Jove II”).
AWN: New York Court Favors Films by Jove Over Russian Film Dupes
Law.com (subscription required): Judge Rules for U.S. Company, Against Russian Agency

Legal Intelligencer: Gallup Mistake Invalidates Copyright

After four years of litigation, a federal judge has dismissed a copyright infringement suit brought by Gallup Inc. — the consulting firm best known for the Gallup Poll — after finding that it never properly registered a copyright for its “employee satisfaction survey.”

Gallup v. Kenexa Corp., No. 00-5523 (E.D.Pa. Nov. 8, 2004).

A group of websites publish material that may infringe Perfect 10’s copyrights and trademarks. Perfect 10 sues credit card processors Visa and Mastercard for contributory and vicarious copyright and trademark infringement in addition to various other claims (state trademark, right of publicity, unfair competition, false advertising and libel.) US District Court grants summary judgment to the defendants on all grounds: Perfect 10 v. Visa International (N.D.Ca., 04-0371).
Contributory copyright infringement requires a material contribution to the infringement– more than a mere contribution to the general business of the infringer. In order to find contributory copyright infringement, the contribution must bear some logical relationship to the actual instances of infringement. Providers of content neutral services (like credit card verification or P2P servers with no central index server) are concerned solely with financial aspects of the websites, not their content and should not be held responsible for contributory copyright infringement.
Judge Ware distinguishes the finding of vicariously liability in Napster. In Napster, the party found vicariously liable “actually supplied the product that was being used to enable the infringing distribution of copyrighted works” and could control the distribution of the infringing works. Rescinding credit card processing does not directly affect the illicit distribution of copyrighted pornography.
Law.com: Federal Judge Tosses Porn Purveyor’s Copyright Suit Against Credit Card Companies

A Magistrate judge rules that copies of vintage web pages archived by a reputable third-party are not be hearsay and may be admissible as evidence: Telewizja Polska USA, Inc. v. Echostar Satellite Corp., 2004 WL 2367740 (N.D.Ill. Oct. 15, 2004).
Stanford’s Packets reports: Internet Archive’s Web Page Snapshots Held Admissible as Evidence

Wired News: FCC Crackdown Could Spread

With support from both Republicans and Democrats, the Federal Communications Commission is poised to get even more aggressive about enforcing moral values throughout broadcasting, even putting cable television in its cross hairs and taking aim at Howard Stern’s right to talk dirty on satellite radio.
It looks like only the courts will stand in the way of the FCC now. But a funny thing could happen on the way to washing Eric Cartman’s mouth out with soap: Conservative judges might just say no. After all, not too long ago the Supreme Court rejected efforts to censor the internet.

Movie studios join the record industry and sue file sharers.
Findlaw Special Coverage hosts the complaints:

• Complaint for Copyright Infringement (Universal City Studios v. Does) Nov. 16, 2004, Southern Dist. of New York   

• Complaint for Copyright Infringement (New Line Cinemas v. Does) Nov. 16, 2004, Eastern Dist. of Missouri   

• Complaint for Copyright Infringement (Twentieth Century Fox v. Does) Nov. 16, 2004, Northern Dist. of California

Wired News: Movie Studios Sue File Traders

One of the bills that may pass during the lame-duck session of the 180th Congress is HR2391, the Intellectual Property Protection Act. This is an omnibus bill containing some of everyone’s favorite IP-related bills, including Create, PDEA, Pirate and the Family Movie Act. Each of these bills deserves to be debated on its own individual merits, but Congress may pass the omnibus act for the sake of “doing something” in this field.
The Induce Blog is the place to turn for links and analysis about this bill, such as: The Intellectual Property Protection Act.
Public Knowledge: The Intellectual Property Protection Act
Wired News: Wired News: Senate May Ram Copyright Bill

On Monday, I caught The Telephones play at Arlene’s Grocery and came away very impressed. They have a relatively distinct sound, mainly because of the singer’s voice and their songs are compelling and catchy, if relatively down. Highly recommended. The Telephones will be in residency at Arlene’s for Mondays in November– which means they’ll be back there next week and the following week, at 9 pm, no cover.
Last night, I saw the Head Set at Pianos. They were pretty good, with an angular sound, somewhat evocative of the Strokes, but less laid-back. Unfortunately, all of their songs started to run together and sound alike after 30 minutes or so. The Head Set is in residency at Pianos on Wednesdays in November, so they will be back there again next week.
Saturday, The Bosch are back at Trash, playing some new songs, once again with Walk Humongous. We’re on at 10:30. As always at Trash, admission includes an open bar.

Ben Edelman: Grokster and Claria Take Licenses to New Lows, and Congress Lets Them Do It

Grokster installs lots of junk if a user presses Accept. However, Grokster also installs software even if the user presses Cancel! That’s right: If a user has second thoughts after seeing the long license agreements, and if the user decides to press Cancel, Grokster’s installer nonetheless installs SearchLocate/SideBar and with TVMedia.

More later…

The Economist: Monopolies of the mind

Patents, said Thomas Jefferson, should draw “a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not.” As the value that society places on intellectual property has increased, that line has become murkier—and the cause of some embarrassment, too. Around the world, patent offices are being inundated with applications. In many cases, this represents the extraordinary inventiveness that is occurring in new fields such as the internet, genomics and nanotechnology. But another, less-acceptable reason for the flood is that patent offices have been too lax in granting patents, encouraging many firms to rush to patent as many, often dubious, ideas as possible in an effort to erect legal obstacles to competitors. The result has been a series of messy and expensive court battles, and growing doubts about the effectiveness of patent systems as a spur to innovation, just as their importance should be getting bigger

Courtesy of SCOTUSblog, cert. petition and various briefs for MGM v. Grokster.

Rafael Rob and Joel Waldfogel, Piracy on the High C’s: Music Downloading, Sales Displacement, and Social Welfare in a Sample of College Students

In the New Yorker, Malcolm Gladwell discusses plagarism, copyright and the ethics of creativity: Something Borrowed

Under copyright law, what matters is not that you copied someone else’s work. What matters is what you copied, and how much you copied. Intellectual-property doctrine isn’t a straightforward application of the ethical principle “Thou shalt not steal.” At its core is the notion that there are certain situations where you can steal. The protections of copyright, for instance, are time-limited; once something passes into the public domain, anyone can copy it without restriction.

Brooklyn Entertainment Law Society: Conflicts of Technology and the Law: The Relationship between Peer-to-Peer Software and the Music Industry
Wednesday, November 17, 2004 6:00 – 8:00p.m.
Subotnick Center at Brooklyn Law School
250 Joralemon Street
Brooklyn, New York 11201
Panelists:

• Whitney Broussard
  Partner at Selverne, Mandelbaum & Mintz, LLP
• Mark Piibe
  V.P. Legal & Busniess Affairs and Head of Contect for MusicGremlin, Inc.
• Ken Parks
  Director of New Media at EMI
• Andrew McCormick
  Associate at Masur & Associates, LLC

Program the DVR or VCR or plan to be in front of the television at 9 pm. The Amazing Race is on with a double-length (two hour episode.)
Previously: My Ox is Broken!
Update (11/18):
The two hour premier repeats on Saturday, Nov. 20 at 8pm.
Links
NY Times: An Audience Finally Catches Up to ‘The Amazing Race’
Out of Focus: The Race is on explains the appeal of TAR.
ALoTT5MA: Dude, You Look Like a Smurf
Television Without Pity recaplet and forum: The Game’s Afoot
TARflies Times: Analysis
Iceland Air wants to help tourists visit Iceland and recreate Leg 1 of Race 6: Trace the Race
My thoughts follow in the extended entry…

• Jews from Brooklyn, you let the rest of us down! The lesson: detour tasks which require searching for something are a Bad Idea.
  • Gus, it’s the amazing race, not the amazing stroll.
  • Jonathan (The loud smurf) may be the most annoying person ever on television.
  • No Roadblock?
  • Two hours of the first episode gave us a chance to figure out who the teams are. The only two teams who made absolutely no impression are Freddy/Kendra (“engaged models”) and Kris/Jon (“dating long distance”)

Jeff Jarvis filed a Freedom of Information Act request to see the 159 complaints filed with the FCC concerning Fox’s broadcast of Married by America which led the Commission to levy a $1.2 million fine against Fox for violating indecency standards. Jarvis received a reply from the Commission:

I just received the FCC’s reply with a copy of all the complaints — and a letter explaining that, well, there weren’t 159 after all. William H. Davenport, chief of the FCC’s Investigations and Hearings Divison, admits in his letter that because the complaints were sent to multiple individuals at the FCC, it turns out there actually were only 90 complaints. It gets better: The FCC confesses that they come from only 23 individuals.

These 23 complaints were not all original. In fact, only 3 different forms of letters were sent to the FCC.
Groups like the Parents Television Council make it incredibly easy to file complaints with the FCC about indecent language by using web forms where concerned moralists can complain to the Commission without needing to actually watch the offending broadcast. For example:

• Parents Television Council: FILE YOUR FORMAL INDECENCY COMPLAINT AGAINST THE OCTOBER 7 AND OCTOBER 14, 2004 EPISODES OF ABC-TV’s “Life as we know it” WITH THE FEDERAL COMMUNICATIONS COMMISSION (FCC) NOW!
• American Family Association: File an indecency complaint against ABC for ‘f’ word and ‘s’ word

These forms make it especially easy to file complaints with the information necessary for the Commission to investigate a complaint. The complaint procedure is described in a 2001 Policy Statement: In the Matter of Industry Guidance On the
Commission’s Case Law Interpreting 18 U.S.C.§ 1464 and Enforcement Policies Regarding Broadcast Indecency (File No. EB-00-IH-0089, Apr. 6, 2001).

The Commission does not independently monitor broadcasts for indecent material. Its enforcement actions are based on documented complaints of indecent broadcasting received from the public. Given the sensitive nature of these cases and the critical role of context in an indecency determination, it is important that the Commission be afforded as full a record as possible to evaluate allegations of indecent programming. In order for a complaint to be considered, our practice is that it must generally include: (1) a full or partial tape or transcript or significant excerpts of the program;20 (2) the date and time of the broadcast; and (3) the call sign of the station involved. Any tapes or other documentation of the programming supplied by the complainant, of necessity, become part of the Commission’s records and cannot be returned. Documented complaints should be directed to the FCC, Investigations and Hearings Division, Enforcement Bureau, 445 Twelfth Street, S.W., Washington, D.C. 20554.
If a complaint does not contain the supporting material described above, or if it indicates that a broadcast occurred during “safe harbor” hours or the material cited does not fall within the subject matter scope of our indecency definition, it is usually dismissed by a letter to the complainant advising of the deficiency. In many of these cases, the station may not be aware that a complaint has been filed.

If the complaint is valid, the Commission will then evaluate the content of the broadcast, make a decision about whether the content is indecent and levy a fine, if appropriate.
In its crackdown on indecency, the FCC complaint system rewards a small minority of vocal complainers and fails to take into account the opinions of those who approve of and enjoy television programming. The complaint procedure was intended to listen to those individuals who happened to be offended by some indecent programming actually experienced on broadcast. This complaint procedure did not contemplate activist morality patrols hiring staff members to watch potentially offensive programming and draft complaints.
Can the FCC create a better complaint procedure or decency standard? Should the Commission subject sensitive viewers to a tyranny of the majority? Even if broadcast programming is popular, should it still be required to meet some decency standard beyond mere market popularity? Are there any workable alternatives?
One alternative may be to simply create a stricter standard for indecency which broadcasters are less likely to run afoul of and will reduce the chill on speech. No matter what the standard is, some viewers will complain about content that borders on indecency and ask the Commission to act.
Another alternative is to create a threshold requirement where the Commission can only act when the number of complaints reaches a certain percentage of the viewing or listening audience of the program– Howard Stern would have to disgust many more people than a less popular shock jock. The obvious drawback to this approach is that it can create a tyranny of the majority where a minority of viewers who are sensitive of broadcast standards will have no recourse with the FCC for content they find offensive.

ACS Blog editor Sean Kellogg discusses the DMCA and Lexmark v. Static Control: DMCA Gets Only a Wrist Slap

A recent Sixth Circuit ruling stirred a great deal of excitement among copyleft supporters last month when it struck down a district court injunction, but celebration may not yet be in order. The controversy arose between Lexmark, a major producer of printers and highly profitable printer cartridges, and Static Control Components (SCC), makers of embedded computer components.

Wired News: Music Is Not a Loaf of Bread: “Giving away an album online isn’t the way most artists end up with gold records. But it worked out that way for Wilco.”

The Register reports: France rules Apple’s DRM denial not anti-competition

The French government’s competition watchdog this week dismissed a complaint brought by VirginMega, which alleged Apple’s refusal to license FairPlay ran contrary to French anti-trust law.

The Ninth Circuit Court of Appeals denied to rehear en banc Newton v. Diamond, a case involving sampling. The Beastie Boys sampled a three-note clip with permission from the copyright holder in the phonorecord, but without permission from the composer. The court ruled that the recorded performance of the three-note segment was distinctive enough that the sampling required a license, while that the amount of the underlying composition used was de minimis and the Beastie Boys did not require a license for that use of the composition.
Newton v. Diamond, Nov. 9, 2004.
Compare the Sixth Circuit ruling in Bridgeport Music v. Dimension Films, Sept. 7, 2004, holding that any recognizable sample of recorded music requires a license, but does not address possible infringement of the underlying composition.
Are the circuits split or are the decisions reconcilable? Are other alternatives available?
Previously: Sampling without infringing
Reuters: U.S. Court Upholds Beastie Boys’ Musical Sampling

AP: Ex-Yale student sues designer of Freedom Tower, alleges copyright infringement

A former Yale University architectural student sued the designers of the World Trade Center site’s planned Freedom Tower on Monday, saying the designs for the skyscraper violate copyrights of those he created at school.

Last week, the FCC exempted Vonage and other VoIP services from state regulation, even though the states have a role in regulating traditional telephone service (POTS), because VoIP is not tied to any particular state or any physical infrastructure.
Memorandum Opinion and Order
Press Relase: FCC Finds that Vonage not subject to patchwork of state regulations governing telephone companies
Statements from Commissioners Powell, Abernathy, and Copps and Adelstein

IP Funny: Intellectual Property Humor

Government Computer News: FTC: Technology, not legislation, needed to fight spyware

l Trade Commission commissioner Orson Swindle said that pending anti-spyware legislation is an election-year effort by Congress to appear to be taking meaningful action against a high-profile problem.
Swindle and Jim Harper, director of information policy studies at the Cato Institute, warned during a Capitol Hill briefing today that premature laws could do more harm than good.

In November, darkness falls surprisingly early in the evening and the temperature drops below freezing. This means that ski season approaches.
Some of the most convenient ski areas close to NYC are in the Catskills: Hunter, Windham, Belleayre and Plattekill. Thanks to snowmaking, Hunter, Windham and Belleayre opened this weekend:

(Photo of Hunter Mountain snowmaking via Hunter Mountain)

In my Telecom law seminar last week, the class had a short discussion/informal poll about media consumption habits, with a particular focus on news. Not surprisingly, the most popular source among the class is mainstream news media on the web, followed closely by cable news. Blogs play a small role, but are generally either below the radar.
Personally, I rarely watch television news, either broadcast or cable. Compared with internet, print and public radio sources, television news is both slow and superficial.
My media habits are probably pretty far out of the mainstream and a result I am inundated with fewer ads than on average. I don’t listen to commercial radio, although I do start the day listening to WNYC. I avoid pop-ups on the web by using Safari and NetNewsWire. I see very few commercials on television thanks to ReplayTV.
The Pew Internet and American Life Project finds that the internet is contributing to a wider awareness of political views: The internet and democratic debate.
What’s your media diet?

The [non]billable hour Five by Five: What five things would you change about IP law and/or practice?

The Free Expression Policy Project at the Brennan Center for Justice at NYU offers A Preliminary Report on the Chilling Effects of “Cease and Desist” Letters:

When does copyright control end and “fair use” begin?
Fair use allows students, artists, journalists, and others to borrow and quote from copyrighted material without permission if they are doing it for purposes like commentary, parody, or news reporting. But the contours of this fair use defense to copyright infringement are vague, and in the real world, most disagreements don’t get decided in court. Instead, copyright owners – especially corporate ones – send threatening “cease and desist” letters to those they think are violating their copyrights or trademarks. Needless to say, these letters do not advise the recipients that their borrowing might be fair use.

The first reports of irregularities caused by voting machines in Tuesday’s elections are trickling in:
In Franklin County, Ohio, voting machines counted an extra 3,893 votes for Bush. The Columbus Dispatch reports: In one precinct, Bush’s tally was supersized by a computer glitch

A computer error involving one voting-machine cartridge gave President Bush 3,893 extra votes in a Gahanna precinct.
Franklin County’s unofficial results gave Bush 4,258 votes to Democratic challenger John Kerry’s 260 votes in Precinct 1B, which votes at New Life Church on Stygler Road. Records show only 638 voters cast ballots in that precinct.

The AP reports that an e-voting machine in North Carolina lost more than 4,500 votes: Computer Loses 4,500 Votes

More than 4,500 votes have been lost in one North Carolina county because officials believed a computer that stored ballots electronically could hold more data than it did. Scattered other problems may change results in races around the state.

These appear to be only the tip of the iceberg. According to the AP, Reports of electronic voting trouble top 1,000

there were also several dozen voters in six states — particularly Democrats in Florida — who said the wrong candidates appeared on their touch-screen machine’s checkout screen, the coalition said

Expect more irregularities and inconsistencies to surface after BlackBoxVoting.org receives the results of its FOIA request: Voting without auditing. (Are we insane?)

Such a request filed in King County, Washington on Sept. 15, following the primary election six weeks ago, uncovered an internal audit log containing a three-hour deletion on election night; “trouble slips” revealing suspicious modem activity; and profound problems with security, including accidental disclosure of critically sensitive remote access information to poll workers, office personnel, and even, in a shocking blunder, to Black Box Voting activists.

(On an unrelated programming note, the election day hiatus will combine with pre-MPRE preparation and posting here will remain lighter than normal until after the MPRE next week.)

On Tuesday morning, I enthusiastically went to my polling place and waiting in line for over an hour in order to cast my vote. Using New York’s antiquated mechanical lever voting machines, I found it especially satisfying to cast my vote with a solid “thunk.” That felt good.
Unfortunately, the day went downhill from there. When did being a liberal become as frustrating as being a Mets fan?
For more than twenty million Bush voters, the most important issue facing the US is not the economy, not security, but “values.” According to CNN’s exit poll, 22% of voters cited “values” as the most important issue in this election. 80% of the of those voters voted for Bush. In particular, the main “value” issue at stake in this election was gay marriage. While the Presidential election itself may not have been a referendum on that issue, voters in 11 states overwhelmingly approved state constitutional amendments to ban gay marriage.
These voters are more concerned with denying others of rights than with their own self-interest. In fact, many of these voters are hurt by Bush economic policy and would have been significantly better off with Kerry policy. These voters care more about the personal conduct of other citizens than issues that affect their own economic self-interest or personal security.
Nearly 20 million Americans are more concerned with preventing the state from recognizing monogamous relationships between same-sex couples than burdening their children with a broken economy and debt crisis. Nearly 20 million Americans are more concerned with preventing the state from recognizing monogamous relationships between same-sex couples than ensuring everyone has access to affordable health care and insurance. Nearly 20 million Americans are more concerned with preventing the state from recognizing monogamous relationships between same-sex couples than educating their children. Do these voters fear that recognizing same-sex unions will force them to have a homosexual relationship?
So we clearly lost this election. The obvious question is: what next? Should Democrats reach out to the social reactionaries by embracing their “traditional values”? No. John Kerry wisely avoided compromising on principles by pandering on those issues. We are better on the issues than BushCo. Where we lose is in framing the issues.
Over the last 30+ years, conservatives have created and institutionalized a movement, with groups like the Federalist Society, Heritage Foundation, the Washington Times and Fox News Channel providing talking heads to spin political discussion. Most importantly, they have effectively controlled the language of political discussion. We need to frame the issues using our language and not merely try to respond using the same language. We need to clearly frame our core principles and values. The problem is not our position on the issues, but merely how we discuss those issues.
It is vitally important that we continue to develop progressive institutions to counteract the reactionary institutions which have enabled conservatives to effectively control political discourse and created the environment which helped to elect Bush. MoveOn.org, the Center for American Progress, the American Constitution Society, Media Matters, Democracy for America, Americans Coming Together, Air America and the progressive blog community are a start. We need to get our vision out in the public discourse using our rhetoric.
Here in New York City, it seems like the Bush voter is a mythical creature who doesn’t exist. This is not merely perception. Here in Brooklyn, Kerry earned 74.14% of votes and Bush 24.79%. In Manhattan, 81.66% of voters chose Kerry and 16.61% picked Bush. In the Bronx, 82.35% of voters supported Kerry.
Perhaps it is time to get out into Red America and find out who these people are. Or, maybe we should simply secede, and join Canada.

America, I have one question for you: whaaa?

After tomorrow, the campaign to win the election will be over and the campaign to win the post-election fiasco will be in full swing.
Via The Trademark Blog, here is a useful list of voting-related items:
Voting Information
To find out where to vote, check MyPollingPlace.com.
Learn about e-voting (which we are far too low-tech to use here in Brooklyn) from some leading experts at evoting-experts and read their practical tips on how to cast a vote using a direct recording electronic voting system.
Learn about the various legal challenges to various voting procedures from Prof. Rick Hasen at the Election Law blog
Party or drink away your sorrows with Votergasm, The Election Party, or at another event, such as those in Citysearch’s list of election night events
And, to bring back some links from the last couple of weeks:
The New Yorker’s endorsement of John Kerry for President: The Choice

The Bush Administration has had success in carrying out its policies and implementing its intentions, aided by majorities—political and, apparently, ideological—in both Houses of Congress. Substantively, however, its record has been one of failure, arrogance, and—strikingly for a team that prided itself on crisp professionalism—incompetence.

Ron Suskind, in the NY Times Magazine: Without a Doubt

The [senior White House] aide said that guys like me were ”in what we call the reality-based community,” which he defined as people who ”believe that solutions emerge from your judicious study of discernible reality.” I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ”That’s not the way the world really works anymore,” he continued.

Lawrence Lessig: enblogment: For Kerry

The Price of Loyalty tells a story about a terrifying White House. The terror is the role of politics in this White House. No doubt, every White House has a political director. But at its core, policy should be the driver. Politics might wrap the policy; politics might guide its execution. But if a Presidency is to be more than a machine to assure reelection, then commitment must be to something more than the machine to assure reelection.

Period signs and ads from subway cars at the Transit Museum:




Previously: Subway Centennial

The Engadget Interview with Wendy Seltzer of the Electronic Frontier Foundation discusses the INDUCE Act and other issues related to gadgets and the law.

In Law.com, the EFF’s Fred Von Lohmann discusses fair use and copyright misuse: Fair Use Goes on the Offensive

Thanks to the recent federal district court ruling in Online Policy Group v. Diebold, 2004 WL 2203382, 72 U.S.P.Q.2d 1200 (N.D. Cal. Sept. 30, 2004), however, the times they may be a-changin’. Fair users on the Internet can now go on the offensive to vindicate their free speech interests against overzealous copyright owners.

Previously: A Look at OPG v. Diebold

The BBC reports that UK newspapers may be locked out of Premier League football matches if the league and publishers can not reach a deal on when the newspapers will post photos on the web. Lockout fear over football rights

The newspapers have been renegotiating a deal with the FA Premier League and Football League over access to matches.
The Newspaper Publishers’ Association claims DataCo, for the leagues, wants a delay before photos go out on digital outlets, like newspaper websites.
Without a deal, papers fear they may be barred from all 92 grounds by Monday.

One hundred years ago, New Yorkers started riding in a hole in the ground. Today, we still are.

Newsweek: Take the A Train (or the F, the Q, the 1, the 7 … ): “If anything truly revolutionized the way New Yorkers live, work and play, it’s the subway. On any given weekday, 4.5 million people travel on the 6,400 cars that run along 722 miles of track beneath the city’s five teeming boroughs. For all their complaints about it—the dirt! the crowding! the noise!—the subway remains nothing short of the miracle it was when the subway opened in 1904.”
Development of the subway essentially halted while Robert Moses diverted transportation funding away from the subway to indulge his automobile fetish. Instead of building the long-planned Second Avenue subway and expanding the system in Brooklyn, Queens and the Bronx, a funding shortfall forced the transit authority to defer maintenance. As a result, became decrepit and dangerous.
New cars and station upgrades are bringing the New York subway into the modern era, slowly. While the subway is the best rapid transit system in the US, it still lacks features common to other leading subway systems, such as a modern signal system which lets commuters know when trains are expected to arrive (as in London or DC). Slowly, the MTA is rehabilitating the system, while trains continue to run 24/7 (more or less.)
Now, the MTA is contemplating another fare hike. As debt service payments from the MTA’s last capital program are now becoming due, while the state and city governments have cut their funding of the subway to unprecedented minimum levels.

The NY Times reports that the MTA is in trouble In Transit Crisis, a Cash Bind Many Foresaw.
The Straphangers Campaign finds that the MTA has real financial problems:

Why all the borrowing? Because the State under Governor Pataki’s leadership has forced the MTA to rely more and more heavily on operating budget-backed bonding to meet its essential rebuilding needs. At the same time, Mayor Bloomberg has cut $90 million in city aid to the current MTA five-year rebuilding plan. The city is now making the smallest contribution to fixing the subways in at least 25 years. The Mayor also wants the MTA to hand over the valuable land the MTA owns on Manhattan’s West Side at a bargain basement price, money that could fund capital repairs.

Last night, I caught Chris Potter playing at 55 Bar, with Craig Taborn, Craig Taborn, Wayne Krantz and Nate Smith. Except for getting home after 2 AM on a Monday night, it was excellent.
Potter is one of the leading sax players on the NY scene and perhaps my favorite to listen to. He plays with a distinctive tone– warm and rich with a bit of edge. What sets Chris apart is not his technical playing (which is excellent), but how artfully he shapes his solos to build gradually in intensity and avoids unnecessary repetition.
Lift: Live at the Village Vanguard is Potter’s latest album (with a different band) and excellent.
Randomly, I ran into a high school classmate at the show, after I walked in and we ended up sitting across the table from each other.
Previously, I caught Chris lead a different band at 55 Bar last year and play as a sideman with David Binney last month.

The Globe and Mail looks at some trademark problems faced by bands: Would you consider Saskatchewan?

At Lessig blog, William Fisher discusses five criticisms of Alternative Compensation Systems

NY Times: Record Labels Said to Be Next on Spitzer List for Scrutiny

According to several people involved, investigators in Mr. Spitzer’s office have served subpoenas on the four major record corporations – the Universal Music Group, Sony BMG Music Entertainment, the EMI Group and the Warner Music Group – seeking copies of contracts, billing records and other information detailing their ties to independent middlemen who pitch new songs to radio programmers in New York State.

CompTIA: Bush and Kerry on Technology
If this will make you reconsider you vote, perhaps you should consider the vast differences in style and substance between the two candidates and the type of administration that each would lead.

The Federal Trade Commission will host a public workshop about P2P,

In Legal Week, Nicholas Valner discusses the jurisdiction and choice of law issues involved in the Apple-Apple settlement and whether a contract may be made in two places at once: Upsetting the apple cart

In April 2003, Apple Computer launched a new web-site called iTunes. Apple Corps, The Beatles’ company, claimed this was in breach of an agreement made in 1991, and duly started an action in the High Court in England in August 2003. Apple Computer responded by challenging the jurisdiction of the English Court and in October 2003 launching its own case in California for a negative declaration that it was not in breach.

Previously: Apple to settle with Apple? and Apple takes Apple to court. Also, iTunes Takes Europe

In the Social Affairs Unit Weblog, economist Tyler Cower examines Why the music industry is suing you, your neighbour, or your child

Why has the music industry throughout Europe decided to sue hundreds of those sharing music files on the Internet? Tyler Cowen – Professor of Economics at George Mason University and author of Creative Destruction: How Globalization Is Changing the World’s Cultures, What Price Fame?, and In Praise of Commercial Culture – argues here that it is not an attempt to scare off the downloaders, similar suits in the US have not stopped illegal file-sharing. Rather, Prof. Cowen argues, it is ‘about spreading the idea that downloading is wrong and illegal… think of the lawsuits as one way to buy space in the newspaper, but without paying advertising rates.’

Is P2P dying or just hiding?, authored by Thomas Karagiannis, Andre Broido, Nevil Brownlee, kc claffy and Michalis Faloutsos:

Recent reports in the popular media suggest a significant decrease in peer-to-peer (P2P) file-sharing traffic, attributed to the public’s response to legal threats. Have we reached the end of the P2P revolution? In pursuit of legitimate data to verify this hypothesis, we embark on a more accurate measurement effort of P2P traffic at the link level. In contrast to previous efforts we introduce two novel elements in our methodology. First, we measure traffic of all known popular P2P protocols. Second, we go beyond the “known port” limitation by reverse engineering the protocols and identifying characteristic strings in the payload. We find that, if measured accurately, P2P traffic has never declined; indeed we have never seen the proportion of p2p traffic decrease over time (any change is an increase) in any of our data sources.

In Popular Science, Sorry, Your Vote Has Been: Lost, Hacked, Miscast, Recorded Twice

Ironically, it was the ambiguity of the old-fashioned paper trail that forced officials to put their trust in electronic machines. After the 2000 election hung literally by a chad, Congress passed the 2002 Help America Vote Act (HAVA). It included a $3.9-billion payout to improve the country’s voting infrastructure, with most of that aimed directly at converting those pesky punch-card devices into shiny new e-voting machines. The catch: States that wanted a piece of the pie would have to upgrade before 2006. Historically accustomed to a chronic lack of funding, state elections officials were eager to bring the voting process into the 21st century. “There was a mad rush to go to [e-voting machines] in the wake of HAVA,” says computer scientist Michael Shamos of Carnegie Mellon University. “But people didn’t know the machines. They didn’t have a clue.”

Ed Felten on Bad Protocol, Another Broken Diebold Protocol and Preemptive Blame-Shifting by the E-Voting Industry: “The November 2nd election hasn’t even happened yet, and already the e-voting industry is making excuses for the election-day failures of their technology. That’s right — they’re rebutting future reports of future failures.”

In Belarus, an employee of the Soros Foundation Open Society Institute was detained for causing damage to the country’s telecommunications providers and for “working as an entrepreneur without registration or permission. Interfax reports: U.S. citizen suspected of causing $100,000 damage in Belarus

U.S. citizen Ilya Mafter, who was detained in Belarus, is believed to have caused about $100,000 in damage to the country’s communications providers, sources in the State Security Committee’s information center told Interfax on Tuesday.

The damage to the communications providers? Possibly routing around them by using VoIP. Ethan Zuckerman: Arrest over VOIP in Belarus

I find myself wondering whether his alleged fraud of VELCOM (the national cellphone company) was his use of Skype to make phonecalls home, or to his office. Ilya is a Skype fan, and I can imagine how the twisted logic of the Belarusian KGB could turn demonstrating Skype to a Belarusian NGO into “damaging” the national infrastructure, by showing people how to avoid absurd call charges.

NY Times: New Jersey Lawsuit Challenges Electronic Voting

At its heart, the complaint… will ask the State Superior Court in Trenton to block the use of nearly 8,000 electronic voting machines, because they “cannot be relied upon to protect the fundamental right to vote.”

LawMeme: Ninth Circuit Upholds Injunction Barring Access to a Website

Creative Computing, Inc. v. Getloaded.com pits two trucker-oriented websites against each other. Creative Computing’s Truckstop.com is an online marketplace that helps truckers and shippers link up with each other. It was the first such and quickly became wildly popular. Getloaded.com, is, if Judge Kleinfeld’s opinion is to be believed, a low-down rip-off, built on a systematic policy of fraud and dirty tricks. Getloaded hired away employees from Creative and had them bring source code and customer lists with them; it also hacked into Creative’s servers (Creative was using an unpatched Microsoft system, tsk tsk) and also stole the password of a Creative customer in order to get a closer look at the site’s functionality.

Creative Computing, Inc. v. Getloaded.com (9th Cir., Oct. 15, 2004.)

Robert J. Ambrogi: Selected IP blogs, which includes this little site here, well as the Induce Act Blog, and many other better-written blogs by more knowledgeable people.
(via Nipper by way of Heller)

Prof. Michael Madison on Too Little Copyright (Grosso v. Miramax), Too Much Copyright (Arkansas Democrat-Gazette v. Brantley), and a court getting it Just Right (Compaq Computer Corp. v. Ergonome Inc.).

AP: Music Publishers Sign $1.7 Bln Deal on Web Radio

Music publishers and U.S. commercial radio station owners said on Monday they had agreed to a new $1.7 billion deal to cover licensing rights for music played over radio airwaves or via radio station Web sites.

Courtesy of Tech Law Advisor, Senator McCain on the Intellectual Property Protection Act:

From the text of the bills that have been available to date for Senators to review, I believe that one part of this broad legislation, the Family Movie Act, may actually harm consumers while appearing to help them.

I tried to make good use of the free CMJ Music Marathon badge, and now I am quite tired.
Wednesday
Team America: World Police: Funny, if you accept that it is a movie about Hollywood. Great songs, like “Montage” and “America, Fuck Yeah!”
Hidden Cameras: Ridiculous and fun. Lots of people on stage, lots of energy.
French Kicks: 45 minutes in search of a hook.
The Decemberists: Much more fun than might be expected from the lineup.
Bowery Ballroom: Best venue in NYC with the best sound. The volume and the mix are just right.
Thursday:
Zzzz: The sound at Northsix was awful for these guys. I have no idea what they actually sound like.
Volcano, I’m Still Excited!!: Some good songwriting, but gimmicky.
Saturday Looks Good to Me: A bit of a motown vibe. Fun.
The Bosch: Playing downstairs at Northsix may not have been ideal. In terms of atmosphere and sound system, it was like playing a frat party. The Wetlands used to have a similar setup with a small stage downstairs, but one that was much better than at Northsix. Unlike at Northsix, people there to see a band in the main room had a reason to go downstairs (that’s where the bathrooms were) and did not have to pay a separate cover charge to go downstairs. The set was fun and ridiculous, with guest appearances from members of the opening band, Logjam.
Friday:
Cracker and Camper Van Beethoven: Solid show. The material from CVB’s new album doesn’t suck.
Saturday:
The Bamboo Kids: Perhaps the band with lowest buzz:quality ratio in NYC. A very short set, but very good. It was a record release party for their new album and the start of a big tour. They’ll be back in NYC on Nov. 9.
Links
NY Times: Feeling Hyper, Indie Rock Casts Off Its Slacker Image
Stereogum: CMJ 2004 Wrap-Up
More to follow, including links…

On Crossfire, Jon Stewart confronts hosts Paul Begala and Tucker Carlson over their refusal to practice journalism instead of merely repeating partisan hackery. Watch the video or read the transcript.
Some choice quotes:

STEWART: I didn’t realize that — and maybe this explains quite a bit … is that the news organizations look to Comedy Central for their cues on integrity.

…
CARLSON: We’re here to love you, not confront you.
(CROSSTALK)
CARLSON: We’re here to be nice.
STEWART: No, no, no, but what I’m saying is this. I’m not. I’m here to confront you, because we need help from the media and they’re hurting us.

…
STEWART: You’re on CNN. The show that leads into me is puppets making crank phone calls.

…
STEWART: You know, the interesting thing I have is, you have a responsibility to the public discourse, and you fail miserably.
CARLSON: You need to get a job at a journalism school, I think.
STEWART: You need to go to one.

…
CARLSON: I do think you’re more fun on your show. Just my opinion.
…
STEWART: You know what’s interesting, though? You’re as big a dick on your show as you are on any show.

What does it say about our media environment if The Daily Show, a comedy show, offers some of the most rigorous political journalism on television?
Salon.com: Jon Stewart: Crossfire “hurting America”: “I’ve heard people talk about “The Daily Show” as an oasis of sanity, a public service. I couldn’t agree more. Stewart’s appearance on “Crossfire” was another public service. ”
Previously:
Is The Daily Show the best political reporting on television?
Fake journalist, real questions
Fake News Beats Real News

ACSBlog: The Gradual Digitalization of Our Courtrooms

Over the past couple of decades, computer technology has progressed from being the playthings of geeks to the necessities of neophytes. Despite this rapid-fire growth, our judiciary system has remained somewhat sheltered from the effects of the digital age. Courts around the country — and indeed, around the world — are slowly incorporating the technology into courtroom proceedings.

A SiliconValley.com roundtable discusses E-voting: Can we count on it?

The Supreme Court denied cert for the RIAA’s appeal in RIAA v. Verizon.
EFF: “No “Fishing License” for the RIAA

This is very good news for a number of reasons. First, it affirms that using a peer-to-peer file-sharing program does not automatically strip you of your right to privacy or anonymity on the Internet. Second, it’s an important check on the DMCA, which allows anyone simply claiming copyright infringement the ability to get your name, address, phone number, etc. Critical constitutional and privacy safeguards should not be removed wholesale on the mere assertion of wrongdoing.

CBS Marketwatch: Supreme Court refuses to hear Internet privacy case

This decision means copyright holders and their representatives — or identity thieves and stalkers posing as copyright holders – will not be allowed to obtain personal information about Internet users by simply filing a one-page form with a court clerk,” said Sarah Deutsch, Verizon’s associate general counsel, in a statement.

Washington Post: Supreme Court Internet Privacy Decision: Chat with Verizon attorney Sarah Deutsch.

The New Yorker discusses the giveaway of spectrum to television broadcasters for the transition to DTV: Free Air

In the late nineties, Washington policymaker took up a noble cause. There was a ne technology, digital television, that almos everyone agreed would eventuall revolutionize TV, but quelle horreur—almost no one was adopting it. Among other things, local TV stations couldn’t transmit digital signals on their existing analog channels. They needed digital spectrum. (If you think of the electromagnetic spectrum as a highway, digital and analog signals travel in different lanes.) So Congress decided to give the stations a leg up—or, rather, a handout. Instead of auctioning off the digital spectrum (which might have brought in new competitors, not to mention money), or simply asking broadcasters to pay for it (it was worth, conservatively, tens of billions of dollars), Congress offered it to them free. It was, as Reed Hundt, who was the F.C.C. chairman, said at the time, “the largest single grant of public property to . . . the private sector in this century.” Senator John McCain was a little more blunt. He called it “one of the great rip-offs in American history.”

The Feature: How The Plan To Reclaim Spectrum Got Waylaid

In an effort to push US broadcasters to move to digital television broadcasts rather than current analog broadcasts, the US government gave broadcasters a huge swath of spectrum to use for that purpose. This followed a well fought battle over whether or not the broadcasters should be given spectrum for free — when it could clearly have been auctioned off. The “compromise” agreement was that the spectrum was actually being “loaned” to broadcasters to help make their transition to digital TV easier. After that was done, they would return their unused spectrum. The plan was for all of this to happen by the end of 2006. However, the broadcasters received an important loophole: the handover would only occur if 85% of the viewers in their area had equipment to view digital TV.

Previously: I Want My DTV

The FTC filed a suit against spyware distributors Seismic Entertainment Productions, SmartBot.net and Sanford Wallace.
The Complaint requests injunctive and equitable relief. The unfair practices include “Unfairly Changing Consumers’ Web Browsers,” “Unfairly Installing Advertising and Other Software Programs,” and “Unfairly Compelling Purchase of “Anti-Spyware” Software”
Memorandum in Support of Plaintiff’s Motion for a Temporary Restraining Order with Expedited Discovery, Preservation of Documents and Order to Show Cause Why a Preliminary Injunction Should Not Issue Against Defendants.
FTC Cracks down On Spyware Operation

The Federal Trade Commission has asked a U.S. District Court to shut down a spyware operation that hijacks computers, secretly changes their settings, barrages them with pop-up ads, and installs adware and other software programs that spy on consumers’ Web surfing. The spyware may cause computers to malfunction, slow down, or even crash. The FTC alleges the spyware operation violates federal law and will ask the court to bar the practices permanently and order the defendants to give up their ill-gotten gains.

NY Times reports: F.T.C. Files First Lawsuit Against Spyware Concerns

Attorney General John Ashcroft Announces Recommendations of the Justice Department’s Intellectual Property Task Force

Intellectual property theft is a clear danger to our economy and the health, safety, and security of the American people,” said Attorney General Ashcroft. “The enforcement of our intellectual property laws is among the highest priorities of the Justice Department, and I created the Intellectual Property Task Force to explore ways for us to strengthen our protection of the nation’s valuable intellectual resources. With the recommendations put forward by the Task Force, the Department is prepared to build the strongest, most aggressive legal assault against intellectual property crime in our nation’s history.”

Justice Department: Report of the Intellectual Property Task Force
News.com: Justice Dept. wants new antipiracy powers

Phil Corwin, a lobbyist for Sharman Networks, distributor of the popular Kazaa file-sharing software, said the Justice Department seems “to be endorsing a war on copyright infringement modeled in large part on the war on drugs. That should invite very close scrutiny of the recommendations.”

I happened to look at the traffic stats for this site and was surprised to see that traffic on Friday was about seven times greater than normal:
Apparently, a LOT of people were searching for JibJab, who released a new animated short last week. (For what it’s worth, the short is cute, but it’s no Fafblog.)
JibJab’s previous animation led to a copyright lawsuit and much discussion about parody and satire in copyright law. See:

• This Use is Fair Use
• Link roundup
• Post-hoc Parody
• JibJab Goes to Court
• Jibjab Settles

MGM and its co-plaintiffs seek to overturn the Ninth Circuit’s ruling in Grokster and filed a petition for a writ of certiorari with the Supreme Court.

Question Presented:
Whether the Ninth Circuit erred in concluding, contrary to long-established principles of secondary liability in copyright law (and in acknowledged conflict with the Seventh Circuit), that the Internet-based “file sharing” services Grokster and StreamCast should be immunized from copyright liability for the millions of daily acts of copyright infringement that occur on their services and that constitute at least 90% of the total use of the services.

Public Knowledge: Statement on MPAA Petition to Supreme Court: ““There is no reason the Supreme Court should review the Grokster decision. That case was based on the principles established in the 1984 Betamax case, which has lead to the largest and most profitable period of technological innovation in this country’s history. Consumers, industry and our country have all benefited as a result.”
EFF attorney Fred von Lohmann: Big Media Attacks Betamax in Court: “First, the entertainment industry is plainly mounting a frontal attack on the Betamax doctrine, seeking a radical rewrite of secondary liability principles…. Second, the entertainment industry appears to think that it can treat the Supreme Court and Congress interchangeably in pushing for its preferred re-write of copyright law.”
Previously: Ninth Circuit Affirms Grokster Ruling

Jazz at the Time-Warner Lincoln Center has an impressive new space featuring three snazzy performance venues, a recording studio and educational facilities. It was open to the public as part of Open House NY:






The amount of care and attention to detail spent in designing the performance halls is impressive. The Rose Theater is physically isolated from the rest of the Time Warner Center and acoustically designed to accommodate acoustic or amplified music. In the Allen Room, a wall of windows behind the stage looks out on Columbus Circle and Central Park. Newsweek: Wynton Marsalis and the Temple of Jazz
The biggest question about Jazz at Lincoln Center is not whether New Yorkers will go to a concert hall in a mall. Rather, will Jazz at Lincoln Center continue to put forth a narrow, reactionary vision of jazz or will it use its new space to embrace innovative music?
There is no shortage of criticism of Wynton’s neo-trad programming. Pianist D.D. Jackson notes that jazz may not fit comfortably into an institutional performing arts model: Musings on Wynton after the Jazz at Lincoln Center press conference: “Jazz, in fact, has always been as much – if not more – about the future than the past.” Saxophonist Dave Liebman, contrasts the neo-trad vision of jazz, with the reality in his Reaction to Ken Burns “Jazz”: “Jazz is a living, breathing music and in every major city there are serious, hardworking musicians trying to move this music forward.”

The IFPI and BPI join the RIAA and sue indivdual file sharers: Record industry steps up action against illegal music file-sharing and urges people to buy legally online

The music industry today announced a major escalation of its campaign against illegal file-sharing, unveiling 459 legal actions against music “uploaders” and for the first time targeting Europe’s two largest music markets, the UK and France.
Announcing the actions on behalf of the recording industry worldwide, IFPI warned that the rolling campaign will be further stepped up and extended into new countries in the coming months. It called on music fans to buy their music online legitimately, rather than risk the legal consequences of illegal file-sharing. There are now over 100 legal online music sites in Europe offering a total of over one million music tracks.

This weekend, Open House New York opened up to the public many interesting buildings that are otherwise inaccessible, such as the Grand Lodge of the Masons:



Note that if you ever wait on line for an open house event at a secret society with a Simpsons geek (like, well, me), you will be subjected to incessant quoting of lines from Homer the Great (the Stonecutters episode.)
More photos are in the extended entry….

See also:
OHNY: Your Name Here
OHNY: Other Snazzy Photos

Next week, NYC hosts the CMJ Music Marathon, with hundreds of artists playing in various clubs around the city as well as a variety of panels, including some interesting ones.
The Bosch is playing a CMJ showcase on Thursday, Oct. 14, at Northsix Downstairs at 11 PM.
Since I will have a badge, which other bands should I be going to see?
See also:
Gothamist: CMJ Preview

Friday, October 8:
Intellectual Property Online: The Challenge of Multi-Territorial Disputes:
A Symposium co-sponsored by the Center of the Study of International Business Law and the Brooklyn Journal of International Law at Brooklyn Law School.
Thursday, October 28:
Recalibrating the Scales: When Does Intellectual Property Regulation Cease to Advance Creativity and Begin to Suppress Innovation?
Presented by the Fordham Intellectual Property, Media and Entertainment Law Journal at (unsuprisingly) Fordham.
Thursday-Friday, October 14-15:
CMJ Music Marathon
Panels of interest include:
Al Franken keynote address, Thu. 10:00 am
The Ever-Evolving Record Contract, Thu. 2:00 pm
Washington Wrap-Up: What the New Policy Initiatives Mean For You, Thu. 3:30 pm
Copyright V. Copyleft: The War Continues, Fri. 11:00 am
Bumps On the Road to Satellite Radio’s Takeover, Fri. 2:00 pm
So, You Want to Be a Music Lawyer? Fri. 2:00 pm

In this month’s Wired Magazine, editor in chief Chris Anderson suggests that digital distribution makes this kind of market failure, the out-of-print album obsolete: The Long Tail. Anderson the creative products which are not popular enough to have shelf space but still are in demand:

What’s really amazing about the Long Tail is the sheer size of it. Combine enough nonhits on the Long Tail and you’ve got a market bigger than the hits. Take books: The average Barnes & Noble carries 130,000 titles. Yet more than half of Amazon’s book sales come from outside its top 130,000 titles. Consider the implication: If the Amazon statistics are any guide, the market for books that are not even sold in the average bookstore is larger than the market for those that are (see “Anatomy of the Long Tail”). In other words, the potential book market may be twice as big as it appears to be, if only we can get over the economics of scarcity.

The “economics of scarcity” are not over yet.
Previously on AndrewRaff.com, I discussed the brilliance of The Amazing Race (My Ox is Broken) and lamented the fact that prior installments are unavailable anywhere. CBS broadcast the episodes (as long as three years ago) and since then, those episodes have sat on a shelf in a vault somewhere, while I (and presumably any other latecomers to the show) would be willing to buy or rent copies of the show on DVD.
Although it makes for a catchy title, this is not actually a case of market failure. The cost to produce the DVDs, package and market the discs is something greater than zero. The producers perceive insufficient demand to recoup the cost of producing and promoting such a set, since the price for a DVD release is generally inelastic.
The best DVD releases add special features, like the full-length commentaries on The Simpsons and Futurama discs. Anderson suggests that long tail movie releases should be “huge chunks of the archive onto bare-bones DVDs, without any extras or marketing.” Although basic releases may not sell nearly as well as a DVD which adds more value, a basic release will sell better than no release. The Internet Archive’s Brewster Kahle said in a speech at Web 2.0, “Universal access to all knowledge is possible, and it’s not a non-profit goal.”
In order to release these works which are trapped in archives, Anderson calls this “one of those rare moments where the world needs more lawyers, not fewer.”
Currently, enough demand for TAR episodes, without extra content, exists to create a black market. A quick Google search for “‘Amazing Race’ Torrent” was all it took for me to find BitTorrent downloads of the episodes. I have all of TAR 1 and 2 as well as part of TAR 4 sitting on my hard drive at this point. The season 1 episodes are of a uniform high quality at 512×384 resolution. Although the other episodes are lower resolution, they still play well enough on my television.
These files are all encoded with the DivX and Xvid codecs. In order to play Xvid and DivX files on Mac OS X (or any other platform), VLC is probably the best bet. Another option is the combination of DivX, Xvid Delegate and Quicktime Pro.

LawMeme reports that Kazakhstan held a successful e-vote.
In its parliamentary elections, Kazakhstan adopted e-voting in 10% of its polling stations. International observers from the OSCE noted some drawbacks to the e-voting system: Statement of Preliminary Findings and Conclusions

The State Commission responsible by law for making the decision to establish e-voting was not formed until five days before election day. As a result, the scope of e-voting was not decided until 17 September, and some PECs appeared poorly prepared. According to the CEC decision, electronic voting was to be used in 961 of 9,480 polling stations.
…
The e-voting system was not openly and independently certified, which would have promoted confidence in the system by domestic stakeholders. A review was carried out by a group composed of experts invited by CEC and experts nominated by some political parties, but the IEOM expert was not allowed to observe on grounds of confidentiality. The group concluded that “hacking into the system and falsifying the election results were ruled out,” although one political party representative declined to sign the report. This group of experts did not publish detailed technical arguments for these conclusions.
The system does not include a manual audit capacity, and therefore there is no possibility for a recount. The system does generate, if requested by the voter directly after voting, a private PIN code not linked to the voter which could be used to check the final control protocols, thus providing the voter with the possibility to confirm that his or her vote was recorded correctly. However, that same PIN code, if provided by the voter to a party, candidate, or employer, would demonstrate how he or she voted. This opens the potential for violation of the secrecy of the vote as well as intimidation.
Protection against manipulation from outside or incidental technical malfunction appeared sufficient. The system generated redundant, periodic local backups, and all data transmission sent through communication lines was encrypted. However, the system uses normal telephone connections between polling stations and Regional Election Commissions, and these are potentially vulnerable to unauthorized monitoring or to distortion of transmitted information.

See also: In my country, there is treaty.

Om Malik on Broadband: The Voice over IP Insurrection

The VoIP insurrection over the last decade marks a milestone in communication history no less dramatic than the arrival of the telephone in 1876. We know data networks and packetized voice will displace the long standing pre-1995 world rooted in Alexander Graham Bell’s invention. It remains uncertain whether telecom’s incumbent carriers and equipment makers will continue to dominate or even survive as the information technology industry absorbs voice as a simple application of the Internet.

First Circuit grants rehearing en banc in United States v. Councilman.
CDT, EFF, EPIC and ALA submitted an amicus brief authored by Orin Kerr and Peter Swire.
(via How Appealing)

In First Monday, Laura J. Murray discusses whether Canada will serve its own interests by ratifying the WIPO World Copyright Treaty and the World Performances and Phonograms Treaty: Protecting ourselves to death

Canada is at a critical stage in the development of its copyright law: it has not yet ratified the 1996 World Intellectual Property Organization “Internet Treaties,” but it is poised to do so. This article analyses the rhetoric of “protection” ubiquitous in Canadian discussions of copyright policy, and identifies among the various uses of the term both a problematic assumption that protection is or should be the primary function of copyright, and overblown claims about copyright’s power to protect Canadian culture and creators. These “common sense” ideas, fostered by rights–holder lobbies, emerge out of a peculiar Canadian history of cultural nationalism(s), but they may not promote the interests of Canadians. Ironically, while professing fear for their cultural sovereignty, and following the paths of their own internal political, bureaucratic, and rhetorical culture, Canadians appear to be constructing a copyright policy in complete harmony with the needs of American and international capital.

LawMeme: A Case to Watch: KP Permanent Make-Up, Inc. v. Lasting Impression, Inc.

The Supreme Court will hear oral arguments on Tuesday in KP Permanent Make-Up, Inc. v. Lasting Impression, Inc., et al. a case that could significantly affect the scope of fair use defenses in trademark infringement lawsuits.

Oyez: KP Permanent Make-Up, Inc. v. Lasting Impression, Inc.
KP Permanent Make-Up, Inc. v. Lasting Impression, Inc. (9th Cir., Apr. 30, 2003)

Reuters: U.S. to crackdown on intellectual piracy

The new initiative will be called Strategy Targeting Organized Piracy, or Stop, for short. It will be comprised of a number of legal and administrative changes to be made in coming months.

In Davidson & Assoc. v. Internet Gateway, a court rules that reverse engineering software to host multiplayer online games violates the DMCA and contractual prohibitions in an end-user license agreement (EULA.)
Ernest Miller calls this decision “clear evidence of a judge who doesn’t get it” and explains in further detail: Major DMCA/EULA Loss – District Court Clueless in BNETD Case

The basic facts are that a group of open source developers reverse engineered Blizzard’s “battle.net” so that people could run their own servers to host multiplayer versions of Blizzard games, such as Diablo and Starcraft. The reason was that Blizzard’s servers had many problems and didn’t allow people to organize games the way they desired. Of course, such a project threatened the executives at Blizzard and so they sued with many different copyright, trademark, contract and DMCA claims. After many procedural issues, the EULA and DMCA claims were all that was left.
This case follows the reasoning of Bowers v. Baystate Technology, which upheld a clickwrap contract prohibiting reverse engineering. Bowers is one of the most reviled recent opinions in software law, and that is saying something. Basically, this decision, like Bowers, holds that clickwrap contracts against reverse engineering are binding. It is hard to believe that this bit of ridiculousness continues to be upheld by judges.

Update:
Seth Finkelstein: Blizzard v. BNETD (Davidson v. Internet Gateway) Fair Use/DMCA horrors: “In sum, it’s a horror on every item, and rules solidly against programmer’s interests.”
Discussion at Freedom to Tinker: DMCA Ruling in BNETD Case

Diebold, the controversial developer of direct-recording electronic voting systems, sent takedown notices to ISPs who hosted copies of a series of leaked internal memos documenting various flaws in the company’s e-voting systems. Non-profit ISP Online Policy Group (OPG) and two Swarthmore students sued Diebold. A Federal District Court judge ruled in favor of the ISP and students while granting summary judgment on the claim that Diebold violated 512(f) of the Digital Millennium Copyright Act (DMCA) by sending takedown notices while knowing that infringement has not actually occured. Online Policy Group v. Diebold, Inc..

Plaintiffs Smith, Pavlosky, and OPG … seek injunctive, declaratory, and monetary relief from this Court, alleging that Diebold’s claim of copyright infringement was based on knowing material misrepresentation and that Diebold interfered with Plaintiffs’ contractual relations with their respective ISPs. Plaintiffs seek a judicial declaration that publication of the email archive, hosting or providing colocation services to websites that link to allegedly infringing material, and providing internet services to others who host websites that link to allegedly infringing material are lawful activities. They request an injunction to prevent Defendants from threatening or bringing any lawsuit for copyright infringement with respect to the email archive arising from the publication, linking, or hosting services described in the complaint and a judgment barring Defendants from enforcing any copyright in the email archive unless and until Defendants’ alleged copyright misuse has ceased.

Because Diebold has “withdrawn and in the future will not send a cease and desist letter pursuant to the DMCA to any ISP concerning the email archive,” the plaintiffs’ claims for an injunction and declaratory relief are moot.
However, the court finds that Diebold misrepresented its claims of copyright infringement when sending the §512(f) notices to ISPs.

Publication is Fair Use

The court finds the publication of some of the contents in the email archive is lawful as fair use:

The email archive was posted or hyperlinked to for the purpose of informing the public about the problems associated with Diebold’s electronic voting machines. It is hard to imagine a subject the discussion of which could be more in the public interest. If Diebold’s machines in fact do tabulate voters’ preferences incorrectly, the very legitimacy of elections would be suspect. Moreover, Diebold has identified no specific commercial purpose or interest affected by publication of the email archive, and there is no evidence that such publication actually had or may have any affect on the putative market value, if any, of Diebold’s allegedly copyrighted material.
…
Plaintiffs’ and IndyMedia’s use was transformative: they used the email archive to support criticism that is in the public interest, not to develop electronic voting technology. Accordingly, there is no genuine issue of material fact that Diebold, through its use of the DMCA, sought to and did in fact suppress publication of content that is not subject to copyright protection.

§512(f) Standard

Plaintiffs suggest that a 512(f) action should require a “likelihood of success” standard of proof similar to the summary judgment standard while defendants sought a standard similar to Rule 11’s “frivolous.” The court rejects both of these approaches:

A requirement that a party have an objectively measured “likelihood of success on the merits” in order to assert claims of copyright infringement would impermissibly chill the rights of copyright owners. At the same time, in requiring a showing of “knowing material misrepresentation,” Congress explicitly adopted a standard different from that embodied in Rule 11, which contains a variety of other requirements that are not necessarily coextensive with those set forth in section 12(f). The Court concludes that the statutory language is sufficiently clear on its face and does not require importation of standards from other legal contexts. A party is liable if it “knowingly” and “materially” misrepresents that copyright infringement has occurred. “Knowingly” means that a party actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations.

Tortious Interference with Contractual Relations

The court agrees with Diebold that the DMCA, as federal law, preempts the state law claim of tortious inteference with contractual relations.

Even if a copyright holder does not intend to cause anything other than the removal of allegedly infringing material, compliance with the DMCA’s procedures nonetheless may result in disruption of a contractual relationship: by sending a letter, the copyright holder can effectuate the disruption of ISP service to clients. If adherence to the DMCA’s provisions simultaneously subjects the copyright holder to state tort law liability, there is an irreconcilable conflict between state and federal law.

Links

EFF: EFF Wins in Diebold Copyright Abuse Case: “In a landmark case, a California district court has determined that Diebold, Inc., a manufacturer of electronic voting machines, knowingly misrepresented that online commentators, including IndyMedia and two Swarthmore college students, had infringed the company’s copyrights. This makes the company the first to be held liable for violating section 512(f) of the Digital Millennium Copyright Act (DMCA), which makes it unlawful to use DMCA takedown threats when the copyright holder knows that infringement has not actually occured.”
Wendy Seltzer (EFF): Free Speech Vindicated in OPG v. Diebold: “Along with opening up the e-voting archives, I hope this decision will give new strength and new weapons to other online speakers and ISPs against the chill of aggressive, improper copyright claims.”
Jason Schultz (EFF): EFF wins Diebold DMCA case: “Bottom line: If you misuse DMCA take down notices, you can be liable for damages under section 512(f). How liable? That’s up next when we file our supplemental briefs. Copyright abusers beware!”
Joe Gratz: Victory in Diebold: “This is the first opinion I can think of that has found that a copyright holder “knowingly materially misrepresented” that a copyright was infringed when there was, in fact, copying of a copyrighted work, but the copying was obviously fair use. This requires copyright holders, for the first time, to go through some kind of low-level rational fair use analysis before sending a DMCA takedown notification.”
Free Culture: We won the Diebold case! “I definitely picked the wrong time to take a nap today.”
Wired News: Diebold Loses Key Copyright Case: “Students who sued Diebold Election Systems won their case against the voting machine maker on Thursday after a judge ruled that the company had misused the Digital Millennium Copyright Act and ordered the company to pay damages and fees. Lawyers for the students call the move a victory for free speech.” 
John Palfrey: Electronic voting and copyright?: “Most everyone who lived through the presidential election of 2000 would agree that it’s important to have public discussion about the integrity of voting systems in America. Most everyone, except Diebold. And Diebold sold electronic voting machines to at least 37 U.S. states in the last four years.”

The Open Net Initiative: A Starting Point: Legal Implications of Internet Filtering

Different governments offer a range of justifications for Internet filtering, including national security and the protection of community standards. While filtering regimes have a tremendous effect on issues such as civil liberties, international jurisdictional matters, and Internet governance, there are few established mechanisms for review and reform of Internet censorship. The paper highlights the importance of transparency, accountability, and inclusiveness in order to maintain a reliable, efficient, and global medium for communication.

Here in the US, News.com reports: Computer scientists slam e-voting machines: “the Association for Computing Machinery said that ‘voting systems should enable each voter to inspect a physical record to verify that his or her vote has been accurately cast and to serve as an independent check on the result produced and stored by the system.'”
In India, electronic voting may be both cheaper and more secure. Slate: The Bombay Ballot:

It’s not much of a computer at all, more like a souped-up adding machine. A column of buttons runs down one side. Next to each button is the name and symbol of a candidate or party. These are written on slips of paper that can be rearranged. That means unscrupulous politicians couldn’t rig the machines at the factory, since they wouldn’t know which button would be assigned to which candidate. Also, the software is embedded—or hard-wired—onto a microprocessor that cannot be reprogrammed. If someone tries to pry open the machine, it automatically shuts down. After much testing, India adopted the machines for nationwide use this year.

In Wired Magazine, Mark D. Rasch thinks that You Need a Robolawyer:

Unfortunately, the law assumes we all do – and that by clicking, we are “agreeing” to the unread privacy policy, to spyware being installed on our systems, or to pornographic pop-up ads. Almost every site has terms and conditions; as a result, regular Internet users are faced with dozens of such agreements a week. Some come in the form of the ubiquitous “I Agree” button, others in the form of prose hidden at the bottom of the homepage under the moniker “Legal.”
…
What is needed – desperately – is a law robot. A browser-based automaton that could be adjusted to match your tolerance for legal mumbo jumbo.

Perhaps software developers should be required to include clear and concise disclosure about whether their software will pop-up ads, or collect and transmit personal or clickstream data across the internet.

In Law.com, Fred von Lohmann asks: Is Suing Your Customers a Good Idea?

As a matter of win-loss percentages, the lawsuit campaign has been wildly successful. Record industry lawyers have found that the defendants tend not to defend the suits at all, opting instead to settle for amounts ranging between $3,000 and $11,000. Many other defendants default. After all, hiring counsel to defend costs more than settling, even setting aside the hassles of litigation and chances of losing. Reliable sources tell me that the recording industry is breaking even on the litigation costs, as well, with settlements from each round of suits paying the costs of the next.

David Weinberger blogged the Bellhead-Nethead Conference at Cardozo earlier this week:

• Bob Pepper, Chief of Poilicy Development at the FCC
• Bruce Mehlman, Internet Innovation Alliance
• Justification for Regulation, with Rebecca Arbogast, LeggMason; Daniel Benoliel, UC Berkeley, Law; Harold Feld, Media Access Project; James Gattuso, Heritage Foundation; Russell Hanser, FCC (speaking for himself and off the record [Blog off]); David Isenberg, isen.com; Eli Noam, Columbia U. economics; Christopher Savage, Cole, Raywid & Braverman
• Ancillary Jurisdiction with Robert Blau, BellSouth; Jeffrey Carlisle, chief of Wireline Competition Bureau of FCC; Bill Hunt, Level 3; James Lewis, MCI; Randolph May, Progress & Freedom Foundation; Gigi Sohn, Public Knowledge; James Speta, Northwestern U., Law
• Journalist Dan Gillmor
• Universal service with Robert Frieden, Penn State, College of Communications; Jonathan Askin, Pulver.com; Jonathan Weinberg, Wayne State, Law; Kevin Werbach, Wharton School; Brad Ramsay, Nat’l Assoc. of Regulatory Utilities Comissioners; Matthew Brill, FCC
• John Rogovin, FCC, discusses CALEA
• Stewart Baker on CALEA
  • CALEA Panel with John Morris, Center for Democacy and Technology; Mike Godwin, Public Knowledge; Geraldine Matise, FCC; Christopher Murray, Vonage; John Morris; Douglas McCollum, Fiducianet; Timothy Wu, Columbia Law School; David Young, Verizon;
  Conference reflections from organizer Susan Crawford, Assistant Professor of Law at Cardozo: “The big picture is the real news right now.  Big government wants to be in charge of the internet, and we have the opportunity to resist on a national level.”
  Related: News.com interview with FCC Policy Development Chief Robert Pepper: The technologist who has Michael Powell’s ear

Daniel Solove: Reconstructing Electronic Surveillance Law, George Washington Law Review, Vol. 72, 2004.

The USA-Patriot Act made a number of changes in electronic surveillance law, but the most fundamental problems with the law did not begin with the USA-Patriot Act. In this article, Professor Solove argues that electronic surveillance law suffers from significant problems that predate the USA-Patriot Act. The USA-Patriot Act indeed worsened some of these problems, but surveillance law had lost its way long before. Surveillance law is thus in need of a radical reconstruction.

Last week, Ranchero Software released a public beta of the new version of my favorite computer program, NetNewsWire (NNW). NNW is a news aggregator. In other words, it collects information from websites, like this one, which publish RSS/Atom feeds containing headlines, posts or articles.
In addition to feeling snappier, the new version of NNW includes a number of new features which make the program even more powerful and easy to use. Perhaps the most interesting is the fact that NNW now includes web browsing capability within the program itself. Instead of opening scores of tabs in Safari, one can open scores of tabs in NetNewswire. Unlike Safari, NNW remembers the state you leave it in. This makes it easier to work with a set of open pages without worrying about a crash.
Not only is this feature immediately useful, but suggests that soon the web browser and the news aggregator may simply merge into a single application. While NetNewsWire adds simple browsing, the next version of Safari will add simple news aggregating.
NetNewsWire will soon be able to sync with Bloglines (the kickass web-based news aggregator), making it possible to conveniently read the same news on multiple computers and across different platforms. Bloglines will also sync with FeedDemon and BlogBot, two aggregators for Windows.
While the aggregator and browser may be merging, the blog editor may be divorcing the aggregator. Earlier versions of NNW Pro included a weblog editor. That weblog editor has left the familiar home of NNW to become its own application, MarsEdit. I am typing this entry in MarsEdit, which is generally an improvement over the NNW weblog editor. All in all, the only feature I find lacking in MarsEdit is the image uploading– it is no easier to use than the image upload feature in the Movable Type web interface. Hopefully an upcoming version MarsEdit will allow one to drag and drop images into the entry edit screen and have the program upload and create thumbnails for multiple photos at once.
Best of all, the new NNW and MarsEdit are free for prior purchasers of NetNewsWire Pro. Yes, free.

In addition to trying to addict students by giving away unlimited access, the legal research duopoly (Lexis and West) attempts to win the battle for the legal research clicks of students by giving away free stuff, like this Westlaw-branded Nalgene bottle:

Playing into the idea that lawyers have time for frivolities like hobbies, the bottle came with a carabiner branded with the Westlaw URL, because you never know when and where you might have internet access and need to do some research:

Westlaw: your trusted source for legal research and mountaineering supplies. Well, perhaps a trusted source for legal research. Perhaps the promotional item is not quite sturdy enough to hold more than a water bottle:

(It is somewhat blurry in the photos, but the back of the clip reads “Not for hiking.”)

Lately, the Brian Lehrer Show on WNYC has explored some interesting topics, including Media Ownership [Real Audio stream] and FCC regulations. The show’s blog hosts additional comments: Media Ownership and What the FCC.
The Media Ownership discussion is part of 30 issues in 30 days— a series of discussions about actual issues in the campaign.
Today, Lehrer discussed sampling and copyright with Robert Greenwald (creator of “Outfoxed,” which I happened to watch last night) and Mike Bell-Smith (creator of Downhill Battle’s Three Notes and Running): Video Sampling.

iPac is a new political action committee which seeks to “preserve individual freedom through balanced intellectual property policy.”

1. Creators of ideas and inventions have the right to be compensated for their work, but not to limit political expression, veto technological innovation, or restrict education and scientific research.
2. Intellectual property laws should be judged by their potential to foster new creativity, as required by the U.S. Constitution.
3. Intellectual property laws should be clear and explicit, so anybody can create without fear of lawsuits.

So far, this group has endorsed six candidates– three Democrats and three Republicans.

Although he never learned how to drive, Robert Moses championed designing cities to accommodate automobiles. Using state and federal funds as well as public authority revenues from the public authorities, he cut wide highways through the five boroughs and across Long Island while preventing federal funding or Triborough revenues from subsidizing public transportation. Whether this was because of Moses’s personal contempt for the poor or for policy reasons, the result was roads clogged with traffic and no reasonable alternative for travel outside of the city aside from the automobile.
While the Moses philosophy of transportation planning may have waned slightly in the past 25 years, the car-centric philosophy has never disappeared. In the New York Times Magazine, John Tierney writes about advocates of the automobile who argue that public transportation is a crazy socialist idea and that America’s traffic problems will disappear if we get poor people off the road by charging variable access fees for roads: The Autonomist Manifesto (Or, How I Learned to Stop Worrying and Love the Road).

These thinkers acknowledge the social and environmental problems caused by the car but argue that these would not be solved — in fact, would be mostly made worse — by the proposals coming from the car’s critics. They call smart growth a dumb idea, the result not of rational planning but of class snobbery and intellectual arrogance. They prefer to promote smart driving, which means more tolls, more roads and, yes, more cars.

The RAND Institute finds that Suburban sprawl is linked to the incidence of many chronic health ailments. RAND researcher Deborah Cohen thinks one way to improve health is to “build cities where people feel comfortable walking and are not so dependent on cars.”
Cities should not have to choose between highways or mass transit. Sensible urban planning requires a balance between mass transit and autonomous transport.

News.com: Amazon, Microsoft team for spam suits

IT industry leaders Amazon.com and Microsoft said Tuesday that they have joined forces to file several lawsuits targeting individuals accused of carrying out Internet crimes such as spamming, phishing and e-mail address spoofing.

EFF’s Fred Von Lohmann: What Peer-to-Peer Developers Need to Know about Copyright Law

NYY Times: Does the Patent System Need an Overhaul?

Two professors conclude in a new book that a couple of unrelated and seemingly innocuous administrative reforms of the patent system have caused a shift away from encouraging innovation in favor of exploiting patents largely for lawsuits.
Josh Lerner and Adam B. Jaffe have written a book with a title: “Innovation and Its Discontents: How Our Broken Patent System is Endangering Innovation and Progress, and What To Do About It,” to be published in November by Princeton University Press.

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The Annenberg Public Policy Center finds that viewers of The Daily Show are knowledgeable about current political issues.:

Daily Show viewers have higher campaign knowledge than national news viewers and newspaper readers – even when education, party identification, following politics, watching cable news, receiving campaign information online, age, and gender are taken into consideration.

This study does not show that viewers are informed because they watch The Daily Show, but merely that TDS attracts viewers who are more informed than average. The study goes on to praise The Daily Show for using “irony to explore policy issues, news events, and even the media’s coverage of the campaign,” rather than going for quick jokes.
Comedy Central refutes O’Reilly’s claim and finds that “viewers of Jon Stewart’s show are more likely to have completed four years of college than people who watch ‘The O’Reilly Factor,’ according to Nielsen Media Research.”
Informed viewers are watching The Daily Show not only because it is funny, but offers some of the best political reporting on television. Columbia Journalism Review’s Campaign Desk looked at this year’s political reporting to date and assembled a “Hall of Not Half Bad and Sometimes Actually Pretty Good.” The Daily Show’s Jon Stewart was the only television journalist among the top 10. It says something about the state of television news when the medium’s top political reporter works for a fake news show.
The Washington Post hosted a chat with TDS Executive Producer Ben Karlin: “Many people in this country have strong bullshit detectors. For some reason, most major media outlets have turned theirs off out of fear of being labeled partisan.”
Previously: Fake Journalists, Real Questions.

Survivor (television show and cross-marketed CD) does not infringe “Survivor” mark registered by Survivor (the band): Frank Sullivan v. CBS, No. 02-2058 (7th Circuit, Sep. 24, 2004).

EFF: Your Vote Is Safe – We’ve Got Paperclips

Approximately five minutes into the audience participation portion of the Election Systems & Software (ES&S) demonstration, the iVotronic machine inexplicably froze; no amount of touch-screen prodding could elicit a response. Not a problem, the ES&S presenter assured bemused observers. All that was required was a system reboot, a bit of technical wizardry that was accomplished with the assistance of a straightened paperclip.

Daring Fireball: For Whatever Reasons

New Windows updates, new anti-virus software, new ad-blocking software — regular people are starting to realize that the cycle never ends, that they are never going to successfully secure Windows, and that the easiest and best solution to the Windows security problem is not to use Windows at all.

This conversation appears not at all uncommon. I was on the subway last week and overheard a conversation about problems with home computers. Fed up with pop-ups, viruses and adware, two people were discussing various fixes, such as running Ad-Aware and Spybot:Search and Destroy, before considering the virtues of Apple computers and Mac OS X.
This is undoubtedly one reason why I see many more Apple computers around the law school than last year.
If, for whatever reason, you are stuck with Windows, one way to improve your web browsing experience and avoid most adware and spyware is to switch from Internet Explorer to Mozilla Firefox. Firefox is not only more secure than Internet Explorer, but it feels faster, too.

With Tuesday’s season finale and race to the finish line, The Amazing Race demonstrated why it is the best reality show currently on television and clearly deserved to win its Emmy award for “Best reality program.”
While Donald Trump may feel that his higher rated program deserves the Emmy Award, TAR is simply a better program than The Apprentice. Two components of the Race’s structure make it much more engaging and compelling compelling television than its lesser competitors (e.g. The Apprentice and Survivor): the race itself and the group dynamics.
The Race has a short learning curve. Because it is a race, rather than some arbitrary competition decided by the whim of a billionaire or the votes of other players, the race simply makes sense. The first team to beat the others to the destination wins the race. Host Phil Keoghan succinctly explains the unique elements of the rules (Roadblocks, Detours, Fast Forwards, Yields and Philimination) each time those elements appear.
The producers send the teams to spectacular locations all around the world, and the visuals are stunning. If TAR was filmed in HDTV, it would be even more impressive (for both people who have HDTV sets.) Speaking of technical details, the camera and sound people do an amazing job at following the teams around, sleeping at odd times. I’d love to know more about logistics of the race.
The competitors have to interact with real people from all different cultures, many of whom don’t speak English and often the difference between winning and losing is based not just on who performs the stunts, but who has better navigation skills, who books the best flights, or who ends up in a local jail.
TAR is a competition of teams while the two Burnett shows are competitions of individuals. The teams have a pre-existing relationship and will have to spend time with each other after the race ends. Not only can tension and conflict (which create drama) occur between the teams, but within the teams.
Not only does the structure of teams help the race as television, but the dyad dynamic helps provide exposition. Because the teams need to discuss their strategies with each other, that strategizing is captured on tape for the benefit of viewers.
Let’s hope that TAR 6, which will debut sometime during the fall on CBS, is as interesting.
This 5th installment of TAR was the first that I watched, and I would like to see the earlier editions on DVD. Unfortunately, there are no such discs for sale.
Get more TAR blogging at A List of Things Thrown Five Minutes Ago, from Prof. Yin, and message board madness at Television Without Pity.

In the San Jose Mercury News, Columnist Dan Gillmor recommends a veto of a pending spyware bill in California: Anti-spyware bill lacks teeth; Schwarzenegger should veto it

SB 1436 started out as an anti-spyware bill with teeth, but has unfortunately degenerated into something the governor should veto…. But as several organizations including the Privacy Rights Clearinghouse and American Civil Liberties Union have pointed out in their calls for a veto, the legislation has effectively been turned into a giant loophole.

More later…

Sen. John McCain (R-AZ) introduced S.2820, “A bill to ensure the availability of certain spectrum for public safety entities by amending the Communications Act of 1934 to establish January 1, 2009, as the date by which the transition to digital television shall be completed, and for other puropses.”
Wired News: Uncle Sam Wants Your Airwaves 

The bill highlights a congressional conundrum. On one hand, lawmakers are loath to turn off analog signals all at once, which would render an estimated 45 million analog TV sets — those not hooked up to a cable or satellite service or to a digital-to-analog converter box — utterly useless. And they are reluctant to spend money on any program that smacks of corporate favoritism.

Instead of waiting for the marketplace to set the pace of transition to digital television, the legislation would spend $1 billion to compensate Americans who rely on over-the-air broadcast television for analog sets and lack cable, satellite or digital TV tuners.
In order to ease the transition to DTV, the FCC granted television broadcast licensees additional spectrum, at no cost, in order to enable a transition period where both analog and digital signals are broadcast, with the intention that the licensees would return the extra spectrum at the end of a brief transition period.
The transition period to DTV is occurring much more slowly than initial forecasts. Under the current law, broadcasters can keep the analog spectrum until 2007 or until after at least 85 percent of households can receive broadcast DTV signals, whichever comes last. That transition will not occur by 2007 at current rates. eMarketer predicts that only 60.4% of households will have the capability to receive DTV by 2007.
The extra spectrum that is used by broadcasters during the transition period would provide substantially more benefits the public if it is auctioned off to the highest bidder or used for public services. The auctions would likely generate significantly more revenue than the $1 billion needed to compensate analog television owners.
For discussion: would a sudden transition to digital broadcast violate the Takings Clause if analog television owners are not compensated?
Before the text of the bill has even been posted to Thomas, Wired News reports: Broadcasters Gut Digital TV Bill

n a markup of the bill in the Senate Commerce Committee on Wednesday, Sen. Conrad Burns (R-Montana), along with Sen. Ernest “Fritz” Hollings (D-South Carolina), successfully put forth an amendment erasing the 2009 deadline favored by McCain. It also would require the broadcasters to give up just four 6-MHz channel slots in the UHF band (TV channels 63, 64, 68 and 69).
Under the amendment, which the committee passed in a 13-9 vote, the broadcasters wouldn’t have to give anything back at all in a particular market if the Federal Communications Commission concluded that such a move would create a “consumer disruption” — the two key words. Critics fear broadcasters could get that ruling in many markets.

Wired News: Activists Find More E-Vote Flaws

Voting activist Bev Harris and a computer scientist say they found more vulnerabilities in an electronic voting system made by Diebold Election Systems, weaknesses that could allow someone to alter votes in the election this November.
Diebold said Harris’ claims are without merit and that if anyone did manage to change votes, a series of checks and balances that election officials perform at the end of an election would detect the changes.

Wired News: E-Vote Fears Soar in Swing States

just as the Kerry and Bush campaigns are spending most of their efforts in those states where neither holds a heavy margin in the polls, voting advocacy groups concerned with the integrity of voting technology are devoting their resources toward the states which matter most.

NY Times letters to the editor discuss The Real Problem With Electronic Voting: “It’s our election! We should own the software. Paper ballots are a low-tech, fairly easy fix for this election, even now. We need them.”

After receiving more than 542,000 complaints, the FCC assessed a $550,000 fine, the statutory maximum, against CBS for broadcasting the Super Bowl halftime show’s “wardrobe malfunction.” The fine was assessed on 20 CBS-owned local stations and not the other 200 independently-owned affiliates that broadcast the halftime show.
Notice of Apparent Liability for Forfeiture

At the outset, review of the Broadcast Videotape leaves no doubt that the Jackson/Timberlake segment is both explicit and graphic. The joint performance by Ms. Jackson and Mr. Timberlake culminated in Mr. Timberlake pulling off part of Ms. Jackson’s bustier and exposing her bare breast. CBS admits that the CBS Network Stations broadcast this material, including the image of Ms. Jackson’s bared breast, but argues that the exposure of her breast was unexpected and the duration of the exposure was for only 19/32 of a second. Although the exposure was brief, it was clearly graphic.

Powell: “As countless families gathered around the television to watch one of our Nation’s most celebrated events, they were rudely greeted with a halftime show stunt more fitting of a burlesque show.”
Copps: “I am concerned by the precedent we establish in failing to assess a penalty against non-Viacom-owned affiliates that aired the Super Bowl.”
Adelstein: “I find today’s remedy totally inadequate. After all the bold talk, it’s a slap on the wrist that can be paid with just 71⁄2 seconds of Super Bowl ad time. The $550,000 fine measures up to only about a dollar per complaint for the more than 542,000 complaints that flooded into the FCC after the broadcast. … I fear that today we’re responding to a “wardrobe malfunction” with a regulatory malfunction.”

The San Fransisco Chronicle reports: Governor signs Internet piracy bill / E-mail address required to share movies, music online

Aiding the industry that helped him gain worldwide fame, Gov. Arnold Schwarzenegger signed legislation Tuesday aimed at discouraging online piracy by requiring anyone disseminating movies or music on the Internet to disclose their e-mail address.
California file sharers who trade songs or films without providing an e- mail address will be guilty of a misdemeanor, under the first-in-the-nation measure that could make it easier for law enforcement to track down people who illegally download copyrighted material.

The bill is SB1506.
Previously: California to force file sharers to wear name tags.

David Weinberger reports on a speech by Douglas Holtz-Eaken, Director of the Congressional Budget Office at a World Economic Forum meeting discussing copyright regulation: The CBO Challenge

Move slowly. “A great deal of caution should be taken about changes in copyright law.” Why? Because the laws of unintended consequences are particularly applicable. He said he urges Congress to ensure sufficient property rights only to provide incentives for creativity, and allowing the greatest possible use of creative works….
There’s no reason to craft copyright laws to protect the status quo. Instead we should focus on copyright as a means of allocating creative works.” He ended by saying: “One of the most interesting things is the ability of DRM to enact a vast array of different contractual arrangements between producers and consumers. Congress should forebear to legislate which type of DRM. And we’re aware of the law of unintended consequences.

NY Lawyer: DC Comics’ ‘Kryptonite’ Trademark Survives Court Challenge by Maker of Bicycle Locks

A federal judge has ruled that the owner of the Superman franchise, DC Comics, owns a valid trademark in “kryptonite” that can be protected from dilution and infringement by a bicycle lock company that adopted the name.
Southern District Judge Richard Owen issued several summary judgment rulings favorable to DC Comics in DC Comics v. Kryptonite Corp., 00 CV. 5562, including a finding that kryptonite, “Superman’s one fatal flaw,” is a protectable symbol under the Lanham Act.

The court did not dismiss a breach of contract claim about limited trademark use.
Related miscellany:
Kryptonite bicycle locks are vulnerable to ball-point pens.
Apple Corps. and Apple Computer are involved in litigation over a contract regulating limited trademark use.

Election Law @ Moritz: Electronic Voting: The 2004 Election and Beyond. Thu, Sept. 23, 2004. This will be webcast.
Cardozo and Yale: Bellhead/Nethead: The FCC Takes On The Internet. Tue, Sept. 28, 2004 at Cardozo School of Law.
New York Law School and Yale Law School present State of Play II: Reloaded, about the interaction of law, video and virtual worlds. Oct 28-30, 2004 at NY Law School.

National Law Journal: Trolling for Copyrights

Under the URAA, foreign works that had been allowed into the public domain in the U.S. as a result of failure to follow U.S. copyright formalities are now eligible for automatic copyright restoration. Works that were once a free-for-all for artists and entertainers in the U.S. are now off-limits.

In the Toronto Star, Michael Geist contemplates the potential of VoIP regulation in Canada: No need for Dickensian approach to voice-via-Web

While most industry observers seem convinced that VoIP is the wave of the future, the regulatory framework surrounding the emerging technology remains uncertain. This week the Canadian Radio-television and Telecommunications Commission (CRTC) will hold three days of hearings on VoIP regulation

In the inaugural volume of The Economists’ Voice, Judge Richard Posner writes about Eldred and Fair Use

Larry Lessig flagellates himself about losing the Eldred case, which upheld the legality of copyright extensions. He shouldn’t: Eldred was unwinnable. (The Court’s 7-2 vote is one clue). Besides, the worst of the Sonny Bono Copyright Term Extension Act’s effects can still be made to disappear, if courts deem it “fair use” to copy an old work whose copyright owner hasn’t taken reasonable steps to provide notice of his rights.

Judge Posner based this piece on work for a forthcoming article in the California Law Review (with Bill Patry) and guest-blogging at Lessig Blog.

I finally finished reading The Power Broker (TPB), Robert Caro’s excellent (and long) biography of Robert Moses. Two and a half months ago, when I contemplated again starting to read this book, Hani suggested allotting four months. For those of us not chauffeured around in limousines, one impediment to reading this book is the reticence to carry a 1300-page volume for casual reading on the subway. TPB is a heftier tome than my casebook for Tax.
Not only is TPB a biography about the life of Robert Moses, but it is a biography of a city and documents the rise of urban decay in New York. Finally, TPB also offers prescriptive lessons about the separation of powers among different levels and branches of government and the importance of effective legislative oversight.
In following posts, I will look at these two other themes: how New York City has dealt with the problems of Moses’s approach towards urban development and how the Bush Adminstration has effectively adopted many of Moses’s strategies for creating and exploiting political power.
Today will feature some photographs I shot on Sunday of some of the things Moses “got done”:

“Robert Moses, Master Builder” at Fordham’s Lincoln Center campus.

The Brooklyn-Queens Expressway (with Verrazano-Narrows Bridge in the background)

Damsrosch Park and Lincoln Center

Elevated section of the West Side Highway

Riverside Park. Those are the Parks Department and state flags below the US flag.

West Side Highway and Riverside Park
To be a comprehensive look at Moses’s projects wihin the city, a photo shoot would also have to include the Triborough, Bronx-Whitestone, Henry Hudson, Throgs Neck and Marine Parkway bridges, the Belt Parkway, Gowanus Expressway, Cross Bronx, Van Wyck, Grand Central, hundreds of parks and playgrounds, massive housing projects, and Shea Stadium. A photographer would have to travel to Long Island to visit its parks, which include Jones Beach and Bethpage, as well as the Long Island Expressway and Northern and Southern State Parkways. Upstate, Moses developed even more parks, parkways and hydroelectric power dams.
Discounting the ultimate effectiveness of these public works (which I will explore tomorrow), it certainly is an impressive resume.

Wired News previews Kahle v. Ashcroft, which contests the copyrighted status of so-called “orphaned works”: Saving the Artistic Orphans 

Valuable resources are being lost to students, researchers and historians because of sweeping changes in copyright law, according to digital archivists who are suing the government.
These resources — older books, films and music — are often out of print and considered no longer commercially viable, but are still locked up under copyright. Locating copyright owners is a formidable challenge because Congress no longer requires that owners register or renew their copyrights with the U.S. Copyright Office.

Previously: A New Constitutional Copyright Challenge

It certainly felt appropriate to see the film Garden State in the garden state itself and follow it up with a trip to a diner.
All in all, it is a very good film and an impressive debut for writer/director/actor Zach Braff.
Not only was the movie shot in New Jersey, but one scene was filmed in Tenafly… (extra credit for naming that scene in comments.)
Braff is also a blogger. Represent.

NY Times: Barbarians at the Digital Gate

The rapid proliferation of [spyware and adware] has brought Internet use to a stark crossroads, as many consumers now see the Web as a battlefield strewn with land mines.
At the same time, major advertisers and big Internet sites are increasingly tempted by adware’s singular ability to display pop-up ads exactly when a user has shown interest in a particular service or product.

Also: Adware archive

NY State Bar Association: Law Student Intellectual Property Award Writing Contest for 2004.
The submission deadline is Nov. 4, 2004. Not that I want to encourage other entries…

Eighth Circuit rules that black-and-white cow spots are not functional, but can be protected as trade dress. Gateway, Inc. v. Companion Products, Inc.:

Black-and-white cow spots are an arbitrary embellishment that serve only to distinguish Gateway computers from computers produced by other manufacturers. The purely decorative nature of the design plays no part whatsoever in the performance of Gateway’s computers. Surely, no consumer believes that the presence of this design affects the operation of electronic components and peripherals associated with Gateway. Gateway’s competitors in the field of computers and their peripherals are not hindered in the least from producing comparable or superior products dressed in some other manner than black-and-white cow spots.

(via How Appealing)

Wired News: U.S. Exports DMCA Down Under

Australia appears ready to adopt U.S-style copyright laws, courtesy of a Free Trade Agreement deal negotiated between the two countries
But the agreement has some Australian civil liberties advocates and lawyers crying foul. They say it’s nothing more than a money-grab by the powerful U.S. copyright owners lobby, and claim the Australian government has sold consumers’ rights to media conglomerates in the United States for dubious trade concessions in other industries.

The Beatles’ Apple Corps. sued Apple Computer to protect its trademark rights, claiming that the Apple iTunes Music Store (and AppleMusic.com) infringe Apple’s trademark and violates an earlier settlement between the companies: Apple takes Apple to court
Variety reports that a settlement may be imminent: Inside Move: Beatles’ suit could upset the Apple cart

Word among the legal community is that an out of court settlement could be imminent and that it will massively dwarf the $26.5 million paid to the Fab Four’s company in 1991 in a row over trademark use.
One lawyer told Daily Variety, “People are expecting this to be the biggest settlement anywhere in legal history, outside of a class action suit. The numbers could be mind boggling.”

It will be very interesting to see what form this settlement takes…

<a href=“http://www.andrewraff.com/weblog/photos/0903/P1010021-thumb.jpg"

Stanford’s Mark Lemley writes: Property, Intellectual Property, and Free Riding

Courts and scholars have increasingly assumed that intellectual property is a form of property, and have applied the economic insights of Harold Demsetz and other property theorists to condemn the use of intellectual property by others as free riding. In this article, I argue that this represents a fundamental misapplication of the economic theory of property. The economics of property is concerned with internalizing negative externalities – harms that one person’s use of land does to another’s interest to it, as in the familiar tragedy of the commons. But the externalities in intellectual property are positive, not negative, and property theory offers little or no justification for internalizing positive externalities. Indeed, doing so is at odds with the logic and functioning of the market.

A federal district judge struck down a Pennsylvania state statute, the Internet Child Pornography Act, 18 Pa Cons. Stat. §§7621-7630, which would impose criminal liability on an ISP which “merely provides access to child pornography through its network and has no direct relationship with the source of the content.” Center for Democracy and Tech. v. Pappert. The court finds the Pennsylvania statute unconstitutional under both the First Amendment and the Dormant Commerce Clause:

Based on the evidence presented by the parties at trial, the Court concludes that, with the current state of technology, the Act cannot be implemented without excessive blocking of innocent speech in violation of the First Amendment. In addition, the procedures provided by the Act are insufficient to justify the prior restraint of material protected by the First Amendment and, given the current design of the Internet, the Act is unconstitutional under the dormant Commerce Clause because of its affect on interstate commerce.
The elimination of child pornography is an important goal and those responsible for the creation or distribution of child pornography should be prosecuted to the full extent of the law. To that end, all of the ISPs involved in the case have given defendant their complete cooperation. Notwithstanding this effort, there is little evidence that the Act has reduced the production of child pornography or the child sexual abuse associated with its creation. On the other hand, there is an abundance of evidence that implementation of the Act has resulted in massive suppression of speech protected by the First Amendment. For these reasons, and the other reasons set forth in the Memorandum, the Court is ineluctably led to conclude the Act is unconstitutional.

News.com: Court strikes down Pennsylvania porn law
AP: Judge Dumps Child Porn Law 
In June, the Supreme Court found the federal Child Online Protection Act (COPA) unconstitutional: Ashcroft v. ACLU. (see also Ashcroft v. ACLU link roundup)

News.com: Oracle wins antitrust case

U.S. District Court Judge Vaughn Walker sided with Oracle against the Department of Justice, which opposes the proposed merger. The agency took Oracle to court in June, charging that a PeopleSoft buyout would empower Oracle to illegally raise prices and would impair innovation in the industry. Oracle argued that it couldn’t raise prices with Germany’s SAP and a raft of other rivals competing against it.
In his 164-page ruling, Walker sided with Oracle on most counts: “Plaintiffs have not proved that a post-merger Oracle would have sufficient market share in the product and geographic markets” to be anticompetitive.

U.S. v. Oracle Corp. (N.D.Cal Sept. 2004).

Kevin posted the Copyright Office’s Recommended Statutory Language and Explanatory Memo for the Inducing Infringements of Copyright Act. Visit the IICA blawg and The Importance Of… for the full scoop on IICA-related developments.

In addition to The Bosch at Luna Lounge on Saturday night, there is at least one other show that I will definitely be checking out this weekend: Dave Binney and Friends at 55 Bar.
Two years ago, I saw this same group, which features Brian Blade, Chris Potter, Adam Rogers, Scott Colley and Craig Taborn, play at 55 Bar and the show kicked all kinds of ass. This year, pianists Jacob Sacks, Jason Moran and Taborn are each playing with the group for one night.
While I probably won’t go to two sets in one night this year, I will undoubtedly go to at least one set during the weekend.
Binney has a new website and a relatively new album: Welcome to Life.

My computer is, once again, back from repair. Reinstalling applications and restoring backup files is surprisingly time-consuming. Actually, just finding the correct discs among the managed chaos of my desk is rather time-consuming. It is also frustrating to realize what I failed to backup. In particular I don’t think I have a copy of the shell scripts which run my convoluted, automated backup setup (using

MT-Blacklist does an excellent job of preventing comment spam here. However, one spammer’s posts were getting through: the one common factor is an email address: bob@y####o.com. The problem with blocking these is that the #### is a different 2-4 digit string each time.
This kind of problem shows why regular expressions can be added as blacklist entries. I finally got fed up enough to look up how to write a regular expression to block these comment spams:

bob@y[0-9]*o.com

Goodbye, Bob.

Michael Froomkin: Moveoneforamerica.org — Trademark Infringers

There are important and substantial First Amendment protections for political speech that trump the trademark statute. These include a right to parody, and a right to refer to an organization you are criticizing by its own name (“nominative fair use”). But none apply to attempts to create a confusingly similar name for yourself in the hope of confusing the public.

Polar Bear Productions, Inc. v. Timex Corp. (9th Cir. Sept. 3, 2004).

This intellectual property case pits the sport of extreme kayaking against the iconic American timepiece, Timex. In an effort to update its image, Timex Corporation (“Timex”) arranged with Polar Bear Productions (“Polar Bear”) to produce film footage featuring some of the stars of whitewater kayaking, paddling through exotic locales in North and South America and using equipment bearing the Timex logo. The promotion was so popular with Timex that it just kept on ticking and continued using the footage well beyond any permission to do so. The result is a lawsuit that has taken on a life far beyond a simple copyright and trademark case. Now, after two trials, two jury verdicts awarding in excess of $2 million to Polar Bear, and a long history between the parties, the case presents us with several novel issues of copyright law. The consequence of this appeal is a series of rulings resulting in yet another round in the trial court.

Via How Appealing. More later…

In the Boston Globe, Harvard Law professor John Palfrey writes an op-ed about The digital copyright crisis

Given that so many people break the law every day using these networks by copying music files, how can this possibly be a good decision? Indeed, in the short term, the decision appears to be bad for many people who own copyrights — the record companies, some of the artists who write and sing the songs, and the movie studios. The solution to the problem, though, is not to ban a new technology because it can be used to make illegal copies. Such logic would have left us in a world without VCRs, tape recorders, or photocopy machines. Such logic might even extend to computers themselves. After all, in a digital age, every time we surf the Internet, save a file to our hard drives, or share files on a network, we make copies. Copyright law is out of date.

News.com: Geico gets green light to sue Google, Overture

The unpublicized Aug. 25 decision by Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia delivered a blow to the two Internet search giants in their efforts to defend ad sales of trademarks as fair use. It could also ultimately threaten their livelihood: Google and Overture make money by selling ads linked to keyword-triggered search results, and many commercially driven searches are tied to trademarked brands such as Geico or Nike.

Previously: Keying Trademark

Washington Post: FCC Plans Record Fine For CBS

The $550,000 indecency fine would be the largest levied against a television broadcaster. The decision could be released as early as next week but may come the week after, said the sources, who would not speak for attribution because the vote has not been made public. The amount represents a $27,500 fine directed at each of the 20 television stations owned by CBS, which in turn is owned by Viacom Inc.

Expect light blogging this week as I am still discombobulated without my Mac (although I have gotten the Dell set up to my liking, it is still older and slower.)
On the other hand, this may be a bit of a blessing in disguise. In law school classes, the laptop reigns supreme as note-taking device of the masses. However, the lack of a light laptop has forced me to take notes in class using the ever-reliable pen and paper. (Yes, I could drag the Dell around, but it is a heavy computer and I am a lazy, lazy man.) However, I tend to take better class notes using a pen and paper. Perhaps this is due to the fact that I can not write nearly as fast or as legibly as I type. The value of these notes may be questionable because I may not be able to read them.
The other advantage of going back to the traditional pen and paper is having 5 fewer pounds of electronics to schlep around.
Jeremy Blachman is giving up using the laptop in-class in order to avoid the distractions of font colors and wireless internet, “that demon creature created by the devil of anti-productivity.”
Of course, for WiFi to work as a force of anti-productivity, it needs to work. In our classrooms, the odds of it working are less than perfect. The lack of high-tech distractions doesn’t prevent the odd daydream, idle thought or one’s neighbor’s freecell game from disrupting one’s concentration.

Lydia Pallas Loren: Slaying the Leather-Winged Demons in the Night: Reforming Copyright Owner Contracting with Clickwrap Misuse

Microsoft opens MSN Music.

News.com: [Time Warner broadband suit advances][1]

A federal appeals court has breathed life back into Time Warner’s challenge of an Ohio city law requiring new homes and offices to connect to a municipally owned Net infrastructure.
The 12th U.S. Circuit Court of Appeals’ decision on Monday reinstated a lawsuit brought by Time Warner, which was seeking the law’s dismissal. The decision was the latest twist in a battle that could ultimately affect the increasing number of cities that own and manage their own broadband networks.

[1]: news.com.com/Time Warner broadband suit advances/2100-1034_3-5341661.html?part=rss&tag=5341661&subj=news.1034.20 “Time Warner broadband suit advances | CNET News.com”

MediaPost: Jupiter Asks eMarketer To Cease And Desist, Suit May Define ‘Fair Use’ On The Internet

Jupitermedia Tuesday said it sent cease and desist letters to online news and data aggregator eMarketer, ordering the company to discontinue using research from Jupitermedia in eMarketer reports sold in France and the UK. The two companies are already embroiled in a similar lawsuit in the United States and some observers believe the outcome could help determine what constitutes “fair use” of data that is publicly available on the Internet.
Jupitermedia filed legal action against eMarketer in the U.S. District Court for the Southern District of New York on May 13, alleging copyright and trademark infringement. Jupitermeda requests that eMarketer cease its acts and pay any monetary damages, which will be determined at the end of the trial.

News.com reports that Claria has settled the pending consolidated litigation: [Pop-up purveyor Claria settles suits][1]

Claria, formerly known as Gator, ended a multidistrict litigation case, or combined lawsuit, with Wells Fargo and Quicken Loans on Aug. 7, according to the plaintiffs’ attorney. In recent months, it also has quietly settled with UPS, Hertz, L.L. Bean, Tiger Direct and Six Continents, a Claria representative confirmed.
Terms of the settlements were not disclosed.

[1]: news.com.com/Pop-up purveyor Claria settles suits/2100-1024_3-5333003.html?part=rss&tag=5333003&subj=news.1024.20 “Pop-up purveyor Claria settles suits | CNET News.com”

Black Box Voting: Look at this — the Diebold GEMS central tabulator contains a stunning security hole

By entering a 2-digit code in a hidden location, a second set of votes is created. This set of votes can be changed, so that it no longer matches the correct votes. The voting system will then read the totals from the bogus vote set. It takes only seconds to change the votes, and to date not a single location in the U.S. has implemented security measures to fully mitigate the risks.
This program is not “stupidity” or sloppiness. It was designed and tested over a series of a dozen version adjustments.

This is something that officials might want to fix before the general election…

The Federal Circuit Court of Appeals tests the DMCA in Chamberlain Group, Inc. v. Skylink Technologies, Inc..
Analysis:
Ernest Miller: Landmark Federal Circuit Decision in Skylink Case Creates DMCA Balancing Test
Patently Obvious: Federal Circuit: DMCA does not create a new property right for copyright owners

Wired News: : E-Vote Recount Rule in Dispute

Florida officials will not require any recounts of votes cast on touch-screen voting machines during Tuesday’s state primary, despite a ruling by an administrative judge that counties using electronic voting are not exempt from laws requiring the re-tabulation of votes in close elections.

Election Overseers Want Big Win

State and county election officials from around the country are praying that this year’s presidential race ends with a wider margin of victory than it did four years ago when George W. Bush beat Al Gore in Florida by only 547 votes. A close victory this year would likely result in more charges of voter fraud and calls for recounts, two things that election officials don’t relish.

Washington Post: High Court Petitioned on Cable Net Access Rule

In the past year, the U.S. Court of Appeals for the 9th Circuit in San Francisco has ruled twice that the Federal Communications Commission erred when it allowed cable companies to bar rivals from their networks. However, those decisions have been put on hold while the Bush administration considered its options. If the Supreme Court rejects the Justice Department’s appeal, cable companies would be required to share their lines with rivals, potentially creating more choice for consumers and a vast new market for independent Internet service providers.

Need distraction from the Republicans? Going through Olympic withdrawal and miss watching water polo at 3:30 AM? Fortunately, this is a great time for sport. For those who have a need to break out the nationalistic cheers, the World Cup of Hockey is underway now and the Ryder Cup starts in two weeks. Even though it has been overshadowed by the RNC, the US Open started yesterday at the National Tennis Center out in Flushing Meadows. Finally, NFL football kicks off next week.

First hand perspectives from inside the Garden: Satan’s Laundromat, Aaron Bailey, Slower.net and Nathan Newman
(via Gothamist)

INDICARE: Knock out by copyright expiration: The JibJab Media Inc. v Ludlow Music Inc. copyright affair watched from a distance.

In Louis Vuitton Malletier v. Dooney & Bourke, Inc. (S.D.N.Y., Aug. 27, 2004), Louis Vuitton, which produces expensive handbags with a distinctive LV logo, brought a suit against Dooney & Bourke which produces expensive handbags with a DB logo under the Lanham Act (for trademark infringement and dilution) as well as NY state trademark infringement and unfair compeition law.
The court denied Louis Vuitton’s requeset for a preliminary injunction, finding that federal and NY state trademark law offer no protection for the style of a bag:

Distilling the voluminous submissions to their essence, it is quite clear that Louis Vuitton cannot prevail on its plea for injunctive relief. To hold otherwise would not only contravene settled law, it would grant Louis Vuitton monopoly rights over a

In an interview with Engadget’s JD Lasica, Jack Valenti offers up the following proposition: “fair use is not in the law.”
So, what is 17 U.S.C.

NY Times: <a title=“The New York Times > Opinion > EDITORIAL: Grokster and the Information Exchange” href=”http://www.nytimes.com/2004/08/30/opinion/30mon3.html?th”> EDITORIAL: Grokster and the Information Exchange

But the broader issue is the distribution of information. Software like Grokster creates a network of independent Internet users who can access one another’s computer files without going through a central server. (Napster maintained a central server, which made it legally liable in very different ways.) Grokster can certainly be used to swap music illegally. But it can also be used to exchange electronic copies of books already in the public domain, transcripts of Congressional hearings or any number of other legitimate types of information. Much like a VCR that does not distinguish between a pirated tape and one legally acquired, the technology does not care what is shared. It is impossible to strike down software like Grokster for its use in illegal file-sharing without also destroying its capacity for legal and socially beneficial activities.

On Saturday, my iBook returned home after its little trip to the Apple service center.

The good news

Apple performed the service for free, even though this computer is out of warranty. Along with the logic board repair, they upgraded the DVD/CDRW combo drive to a faster version and cleaned the screen (it had been very dusty.)

The bad news

For some reason the hard drive was replaced and none of my data came back with the computer. I was specifically warned about this, so I was not surprised or disappointed, but merely annoyed. The OS was downgraded to 10.2, which required me to reinstall 10.3 and its various updates before reinstalling applications and restoring my data.
The logic board repair did nothing: the display scrambled again within the first couple hours of use. The replaced hard drive clicked loudly from the outset until it died, less than 24 hours after I received the computer. So not only did my computer come back not fixed, but in worse condition than before.
So, back to service goes my iBook and I remain stuck for another week or so using the large and slow Windows laptop or the even larger and slower Mac desktop. So blogging will likely remain light in the absence of my typical OS X setup.¹
At least I am in good company in the missing Mac department. Declan McCullagh has been without his Powerbook for 3 weeks, but obtained a replacement PowerBook from Apple today.

And the ugly

The new combo drive door doesn’t match the vintage style on the casing.
___
¹Actually, the frequency of posts may not decrease at all, but the incidence of spelling misstakes will certainly increase.

Cyclists ride, get arrested

Mike, of Satan’s Laundromat fame, went indirectly to jail

After taking some pictures of Critical Mass riders getting arrested, I turned to walk away and suddenly was in cuffs, one of the 264 cyclists and random passers-by arrested Friday night. Rather than writing us summonses for the offenses we were charged with, which were violations (on par with a traffic ticket or an open container), not even misdemeanors, the cops decided to teach us a lesson by hauling us over to a bus depot-turned-holding cell where we got to sleep in cages on diesel-sludge-covered concrete.

NY Times reports: 100 Cyclists Are Arrested as Thousands Ride in Protest
Felix Salmon rode in Critical Mass, but stayed out of jail: Scenes from the protests
Callalillie has photos from Critical Mass: A27 Critical Mass and A27 Critical Mass Part II

Protests, Media and More

Gothamist rounds up the photoblog posts from the big protest. See e.g. Citying and Callalillie.
WNYC: convention central
Blogger Vidiot is blogging and photo-blogging from within the media madness.
New York magazine is blogging at The Convention Kicker.

You mean there are issues, too?

Legal Fiction looks at one of the policy failures of the Bush administration with The Case Against Bush Part I: The War on Terror

Unfortunately, I soon realized that Bush was not assessing new circumstances and adapting to them. Rather, he got cosmically lucky. His gross simplifications and black-and-white thinking were not calculated responses that were manifestations of growth

One way to increase the accuracy and transparency of direct recording electronic voting machines may be to require a voter verifiable paper trail.
Wired News reports on a new survey which finds that voters want their electronic voting machines to serve paper trails, while earlier surveys found that most voters were unconcerned about the reliability of e-voting: Poll: Voters Want Paper Trail
Perhaps voters have become more informed about the risks of direct ecording e-voting machines. Perhaps this merely reflects the fact that this latest survey was commissioned by Accupoll, a company that sells electronic voting machines which happen to produce a paper trail. It seems like most voters may remain unconcerned about the accuracy or security and reliability, but all things equal, would prefer machines which produce a paper trail.
Voting rights activists are less sanguine about the accuracy and reliability of “black box” e-voting machines which lack paper trail or any kind of external audit mechanism. In Maryland, the Campaign for Verifiable Voting is seeking a court order which will require the state’s e-voting machines, of Diebold manufacture, to print a paper audit trail. The Washington Post reports: Md. Machines Seek Vote of Confidence:

Plaintiffs, led by Linda Schade, a Takoma Park activist who helped found a group called TrueVoteMD.org, promise to produce testimony from computer experts and election officials about security vulnerabilities and other shortcomings in machines the state has paid more than $55 million to purchase.

The Maryland lawsuit seeks “to insure the integrity of the November 2004 elections.” The Campaign for Verifiable Voting has the complaint and other filings available on its web site.

A federal district judge dismissed the anti-trust portion of Verisign’s complaint against ICANN: Verisign v. ICANN.
For background, let me refer you to this article by Jonathan Weinberg in the University of Ottawa Journal of Law and Tech: Site Finder and Internet Governance

On September 15, 2003, VeriSign, Inc., the company that operates the databases that allow Internet users to reach any Internet resource ending in .com or .net, introduced a new service it called Site Finder. Less than three weeks later, after widespread protest from the technical community, at least three lawsuits, and a stern demand from ICANN (the Internet Corporation of Assigned Names and Numbers, which has undertaken responsibility for managing the Internet domain name space), VeriSign agreed to shut Site Finder down.

Verisign then sued ICANN for violating federal anti-trust law and for breach of contract.
Steven Forrest has covered the ruling well: Core Issue Remains As VeriSign vs. ICANN Moves to State Court, Lawsuit Coverage, and ICANN Spin
CircleID: VeriSign’s Anti-Trust Claim Against ICANN Dismissed
News.com: VeriSign’s antitrust suit against ICANN dismissed

Internet domain name registry VeriSign just can’t seem to convince anyone that redirecting misspelled Web addresses to its own site is a good thing.
A federal district court judge on Thursday threw out VeriSign’s legal arguments that ICANN’s ban on this tactic amounted to a violation of U.S. antitrust law.

ICANN’s 85 page report on Sitefinder: Redirection in the Com and Net Domains
In 95 pages, Verisign responds. See also some excerpts and analysis from Steven Forrest: VeriSign Responds to SSAC on SiteFinder Report.

Will the city reap any economic benefits from having the convention? Can the gains offset the cost of additional security measures and the impact of so many New Yorkers leaving town?
Sirotablog: GOP to NY: Drop Dead: ” House Speaker Dennis Hastert’s recent attack on New York City highlights a pattern of Republicans slamming the Big Apple.”
NY1: Rooftop, Window Banners (Un)Welcome Republicans

Some residents are placing giant anti-George Bush and pro-John Kerry banners on top of rooftops near the city

When I signed up for classes, I picked out some classes, but didn’t give that much thought to the selection. After a week of classes, I decided that it is a perfectly reasonable schedule. Ah, the power of inertia.
For my penultimate semester, I am taking:

• Federal Income Tax
• International Law
• Law of Democracy
• Telecom Seminar
• IP Transactions

News.com: Justice Dept. takes P2P with ‘grain of salt’

Hewitt Pate, assistant attorney general for antitrust, expressed skepticism toward a bill called the Pirate Act that the Senate overwhelmingly approved in June. It’s designed to curb peer-to-peer piracy by threatening individual infringers with civil lawsuits brought by the government.

Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc. (2d Cir., Aug. 18, 2004).
Dances choreographed by Martha Graham after she founded the Martha Graham School and Martha Graham Center are considered works-for-hire and owned by the School and Center. When Graham was employed by the Center to be its artistic director and to create new dances, those works are considered works-for-hire.
The decision includes a handy chart at the end which clarifies the ownership and copyright status of each of the 70 disputed dances.
NY Law Journal: Dances by Graham Held ‘Work for Hire’ in Ownership Case

EFF: Music Publisher Settles Copyright Skirmish Over Guthrie Classic

Music publisher Ludlow Music, Inc., has officially backed down on its threats against web animation studio JibJab Media Inc. over the widely circulated “This Land” animated parody lampooning President Bush and Senator Kerry. JibJab had responded to Ludlow’s threats by engaging the Electronic Frontier Foundation (EFF) to file suit on its behalf in San Francisco on July 29, 2004, seeking judicial confirmation that JibJab’s work was a protected “fair use” and did not infringe Ludlow’s copyrights.

(via The Importance Of)

Ted Turner: My Beef With Big Media

If nothing else, the 1990s dot-com boom showed that the spirit of entrepreneurship is alive and well in America, with plenty of investors willing to put real money into new media ventures. The difference is that Washington has changed the rules of the game. When I was getting into the television business, lawmakers and the Federal Communications Commission (FCC) took seriously the commission’s mandate to promote diversity, localism, and competition in the media marketplace. They wanted to make sure that the big, established networks–CBS, ABC, NBC–wouldn’t forever dominate what the American public could watch on TV. They wanted independent producers to thrive. They wanted more people to be able to own TV stations. They believed in the value of competition.

Judge Richard Posner blogs, sitting in at Lawrence Lessig’s.
While he can’t talk about pending cases, Judge Posner can revisit Eldred address intelligence reorganization and discuss fair use:
Licensing and Fair Use

the problem for people like Eldred who want to publish old works (works that would have entered the public domain by now were it not for the Act) is transaction costs, not license fees: the costs of locating and negotiating with the current copyright owner. Those costs may well exceed the modest commercial returns from publishing a public domain work (which anyone can copy). The beauty of the old (pre-1976) copyright system, with its requirement of renewal beyond a shortish initial term (like 28 years), was that most copyrights, lacking commercial value by the end of their initial term, were not renewed, and so fell into the public domain, and so licensing costs fell to zero.

Fair Use and Licensing

if someone copies my copyrighted book, that doesn

The DRM Blog. Should be self-explanatory.

I miss my Mac. You see, it got sick and was feeling very gray. Fortunately, even though the computer is out of warranty, enough other people have had this same problem that Apple is fixing the defect for free.
In the meantime, there are many other computers available here at AndewRaff.com World HQ, assuming that many equals two. Unfortunately, these other options are older and slower. Most importantly, neither of them run OS X, so using either one is a compromise. The classic Mac desktop is a bit older and somewhat slower. The Windows laptop features a barely connected ‘R’ key and takes forever to boot up. At least the Win2K system can run Firefox, which is preferable to Internet Explorer on OS 8.6. Neither offers inline spellcheck for web forms (which at least provides a convenient excuse for spelling errors…)
I have been using Bloglines for a news aggregator and it is very impressive. While I still prefer a local, native application to a web application, Bloglines is relatively speedy, accessible from any computer, and easily imported my subscription list. Now if there was only a way to synchronize a list of read articles with Net NewsWire…

In Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, the Ninth Circuit held that US courts have no personal jurisdiction over two French groups which obtained a judgment in France prohibiting Yahoo from holding auctions of Nazi memorabilia under French law.
Law.com: On Appeal, Anti-Nazi Groups Topple Yahoo
Susan Crawford: Ninth Circuit Gets It Wrong in Yahoo!

Although the Grokster opinion was clearly right, yesterday’s Yahoo! decision [pdf] is weak as a matter of both law and policy.
We have declaratory judgment proceedings to avoid the situation where someone who is acting like they want to enforce their rights can constrain the activities of someone else.The court can issue a declaration saying “yes, these rights should be enforced,” or “no, these rights shouldn’t be enforced,” without waiting for the threatening actor to actually ask for their rights to be enforced.

BBC News: US tops league of e-mail spammers

Almost 43% of all unwanted e-mails originated from the US in the last month, said anti-virus firm Sophos.
The report suggests that anti-spam laws passed in the US nine months ago have had little impact.

Law.com: Tiffany and eBay Clash Over Sales of Fake Goods

Tiffany and Co. is complaining, but not to the FTC. The luxury goods manufacturer has sued eBay in the Southern District of New York in Tiffany (NJ) Inc. v. eBay Inc., accusing it of trademark infringement by facilitating and promoting the sale of tens of thousands of pieces of counterfeit Tiffany jewelry. The fakery has eroded the reputation of the 150-year-old Tiffany brand, the company says.

IPKat reports that Kazakhstan has ratified the WIPO Copyight Treaty and the WIPO Performances and Phonograms Treaty. Both teaties come into foce on November 12, 2004. Kazakhstan Comes in out of the Cold
In addition to the home of Borat, Kazakhstan is a modern country with thousands of years of history and a rich and diverse culture.

NY Times: Lawsuit Claims Free Speech for Online Casino Ads

The lawsuit, filed on Aug. 9 by Casino City Inc., which operates CasinoCity.com, an online casino directory, charges that the Justice Department violated the Constitution by threatening American publishers with criminal penalties if they broadcast, print or display advertisements for gambling Web sites. The company is asking the court to issue a declaratory judgment that advertisements for online casinos are constitutionally protected speech.

NY Times: The Call Is Cheap. The Wiretap Is Extra.

At first glance, it might seem like the simple extension of a standard tool in the fight against the bad guys.
But in fact, wiretapping Internet phones to monitor criminals and terrorists is costly and complex, and potentially a big burden on new businesses trying to sell the phone service.

AP: E-Vote Machines: Secret Testing

The three companies that certify the nation’s voting technologies operate in secrecy and refuse to discuss flaws in the ATM-like machines to be used by nearly one in three voters in November.

E-Commerce News: Domain Name Geography: Mexico Loses Fight over Mexico.com

In a recent decision, a World Intellectual Property Organization (WIPO domain name arbitration panel dismissed a complaint filed by the Mexican Tourist Board (MTB) against Latin America Telecom (LAT) concerning the domain name “mexico.com.” The panel went so far as to find that the complaint was brought in “bad faith” and made a finding of attempted “Reverse Domain Name Hijacking” against the MTB.

(via The Trademark Blog)

Erik J. Heels has some interesting News and Commentary about Law, Technology, and their Intersection which ties together a number of the threads in current law and technology issues. An interesting read.

The Ninth Circuit Court of Appeals affirmed that P2P has substantial noninfringing uses and that Grokster and Morpheus are not contributorily or vicariously liable for copyright violations ocurring by users of their software. Metro-Goldwyn-Mayer v. Grokster (Aug. 19, 2004).
P2P is capable of non-infringing use:

One striking example provided by the Software Distributors is the popular band Wilco, whose record company had declined to release one of its albums on the basis that it had no commercial potential. Wilco repurchased the work from the record company and made the album available for free downloading, both from its own website and through the software user networks. The result sparked widespread interest and, as a result, Wilco received another recording contract. Other recording artists have debuted their works through the user networks. Indeed, the record indicates that thousands of other musical groups have authorized free distribution of their music through the internet. In addition to music, the software has been used to share thousands of public domain literary works made available through Project Gutenberg as well as historic public domain films released by the Prelinger Archive. In short, from the evidence presented, the district court quite correctly concluded that the software was capable of substantial noninfringing uses and, therefore, that the Sony-Betamax doctrine applied.
the Copyright Owners argue that the evidence establishes that the vast majority of the software use is for copyright infringement. This argument misapprehends the Sony standard as construed in Napster I, which emphasized that in order for limitations imposed by Sony to apply, a product need only be capable of substantial noninfringing uses…In this case, the Software Distributors have not only shown that their products are capable of substantial noninfringing uses, 10 but that the uses have commercial viability. Thus, applying Napster I, Napster II, and Sony-Betamax to the record, the district court correctly concluded that the Software Distributors had established that their products were capable of substantial or commercially significant noninfringing uses. Therefore, the district correctly reasoned, the Software Distributors could not be held liable for constructive knowledge of infringement, and the Copyright Owners were required to show that the Software Distributors had reasonable knowledge of specific infringement to satisfy the threshold knowledge requirement.

The court relies on the difference in software design to contrast Grokster and Streamcast with Napster. P2P applications may use one of three possible approaches for indexing files: a centralized index server; a completely decentralized system, where each node provides an index of its own files; and finally a supernode system, which uses certain nodes in the network to create an index of the files served by computers in a part of the network. Napster maintained a centralized indexing server of files available on the network and required a username and password to log onto that central server. Grokster (which uses the FastTrack network) uses a supernode system. Streamcast (based on the Gnutella network) uses a completely decentralized system. Neither Streamcast nor Grokster maintain control over the indexing files.

In the context of this case, the software design is of great import. As we have discussed, the software at issue in Napster I and Napster II employed a centralized set of servers that maintained an index of available files. In contrast, under both StreamCast’s decentralized, Gnutella-type network and Grokster’s quasi-decentralized, supernode, KaZaa-type network, no central index is maintained. Indeed, at present, neither StreamCast nor Grokster maintains control over index files. As the district court observed, even if the Software Distributors “closed their doors and deactivated all computers within their control, users of their products could continue sharing files with little or no interruption.” Grokster I, 259 F. Supp. 2d at 1041. 7 Therefore, we agree with the district court that the Software Distributors were entitled to partial summary judgment on the element of knowledge.
As indicated by the record, the Software Distributors do not provide the “site and facilities” for infringement, and do not otherwise materially contribute to direct infringement. Infringing messages or file indices do not reside on defendants’ computers, nor do defendants have the ability to suspend user accounts.

Finally, the court notes that the institutional competence to regulate new technologies which impact the copyright regime falls in Congress, not in the courts:

Further, as we have observed, we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation. AT&T Corp. v. City of Portland, 216 F.3d 871, 876 (9th Cir. 1999). The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through wellestablished distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player. Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude.
Indeed, the Supreme Court has admonished us to leave such matters to Congress. In Sony-Betamax, the Court spoke quite clearly about the role of Congress in applying copyright law to new technologies. As the Supreme Court stated in that case, “The direction of Art. I is that Congress shall have the power to promote the progress of science and the useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress.” 464 U.S. at 456 (quoting Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 530 (1972)).

Proponents of the IICA may see this as a call to action for why new legislation is necessary as soon as possible. Opponents of the IICA may see a reason for a slow and deliberate process to determine whether new legislation is necessary and what form of that legislation will provide the most equitable balancing of interests between copyright owners and technological innovators.
Update (Aug. 20):
Links, we’ve got links:
Ernest Miller has the definitive comprehensive roundup as well as some typically sharp analysis: Grokster Wins Big in 9th Circuit
Fred von Lohmann (who argued the case before the Ninth Circuit) has More on MGM v. Grokster Ruling
Howard Bashman links to the press coverage: “File-Sharing Sites Found Not Liable for Infringement”
Scrivener’s Error: [Expletive Deleted] Headline Writers!: “where does this leave us? It does not, contrary to headlines that I have already seen, mean that “file-sharing software is legal.” It means that the plaintiff record companies didn’t (not necessarily couldn’t—just didn’t) establish intent in the same way as was done in Napster.”
Tim Wu: Grokster Wins and Cert?
Derek Slater: Grokster Leftovers
IP News Blog: The EFF wins Grokster; A good day with possible consequences?: “In the grand scheme of things, doesn’t this just promote further efforts by Orrin Hatch and others to ban P2P through federal legislation?”
I posted a very similar entry at the Induce Act blog which goes on to discuss some potential effects on the IICA legislation.
News.com: Judges rule file-sharing software legal
Law.com: In Victory for Grokster, Peer-to-Peer Wins at 9th Circuit
NY Times: File-Sharing Sites Found Not Liable for Infringement
Update (8/22): Kevin Heller posted the MGM v. Grokster opinion as hypertext
Jim Griffin: Why Big Media Should Raise a Toast to the Grokster Decision

As previously reported by Slice, Brooklyn Heights pizza purveyor Fascati’s is on vacation for August:


In a country of workaholics, few businesses can afford to go on vacation for a month.
For some of us, summer is over now, since our classes start tomorrow.

Clay Shirky: The Possibility of Spectrum As A Public Good

This matters, a lot, because with the spread of unlicensed wireless, the FCC could live up to its mandate of managing spectrum on behalf of the public, by allowing for and even encouraging engineering practices that treat spectrum itself as a public good. A public good, in economic terms, is something that is best provisioned for everyone (an economic characteristic called non-excludability) and which anyone can use without depleting the resource (a characteristic called non-rival use — individual users aren’t rivals for the resource.)

InternetNews.com: Microsoft Faces Patent Lawsuit Over Caller ID for E-Mail

F. Scott Deaver, owner of Failsafe Designs, says Microsoft is guilty of the “outright theft” of his product name and intellectual property (IP), and will seek legal and financial redress from the Redmond, Wash., software giant and anyone else that uses his technology that verifies e-mail is coming from the domain it claims.

Newsweek looks at possible effects of the Councilman decision and the FCC ruling that VoIP services must comply with CALEA: Wiretapping the Web

As if hacking worries weren’t enough, two recent legal developments have raised further fears among Web privacy advocates in the United States. In one case, the Federal Communications Commission voted 5-0 last week to prohibit businesses from offering broadband or Internet phone service unless they provide Uncle Sam with backdoors for wiretapping access. And in a separate decision last month, a federal appeals court decided that e-mail and other electronic communications are not protected under a strict reading of wiretap laws. Taken together, these decisions may make it both legally and technologically easier to wiretap Internet communications, some legal experts told NEWSWEEK. “All the trends are toward easier to tap,” says Kevin Bankston, an attorney at the nonprofit Electronic Frontier Foundation.

NY Times: <a title=“The New York Times > New York Region > The City > Chicken Little” href=”http://www.nytimes.com/2004/08/15/nyregion/thecity/15chic.html”>Chicken Little

Kennedy Fried Chicken is a New York-born outfit that is owned and operated largely by Afghan immigrants, and its shops are typically found far from the well-traveled canyons of Manhattan – on Webster Avenue in the Bronx; in Flatbush; near the Queens Plaza subway station. Devotees say Kennedy serves a good bird, not too oily, not too dry. But its true notoriety comes from being a kind of second-rate imitation of the popular Kentucky Fried Chicken chain, right down to the same red and white colors and those familiar initials.
Such similarities could naturally lead Kennedy Fried Chicken to be confused with the other KFC. But not if the original KFC can help it; that company filed a lawsuit in New York federal court in 1990 for trademark infringement, and continues to pursue legal action today. Responding to a recent query, Kentucky Fried Chicken said in a statement that it was “aggressively pursuing the cessation of all confusingly similar use of the famous KFC trademarks and trade dress by Kennedy Fried Chicken.”

Index on Censorship: Isn’t 50 years of copyright enough?

Twenty-seven years after his death, Elvis Presley is still climbing the charts. The track that is credited with giving birth to rock and roll, That’s All Right, reached number three last month, fifty years after it was first recorded in Memphis ‘ Sun Studios.
For most record buyers the track was just a nostalgic trip. But to record industry officials it is a “call to arms”?. For on 1 January 2005, this seminal recording will drop out of copyright and into the public domain.

Wired News: Copyright Crusaders Hit Schools

For the third year in a row, software companies are supplying schools with materials that promote their antipiracy position on copyright law. But for the first time this year, the library association is presenting its own material, hoping to give kids a more balanced view of copyright law.

Olympian struggle

Strict regulations published by Athens 2004 last week dictate that spectators may be refused admission to events if they are carrying food or drinks made by companies that did not see fit to sponsor the games. …
An official familiar with the restrictions said: “We have to protect official sponsors who have paid millions to make the Olympics happen. There will be cases of individual spectators being allowed in wearing a T-shirt bearing the logo of a rival sports brand but anyone who tries to practise ambush marketing will be removed.”

Congressional Budget Office: Copyright Issues in Digital Media

Rapid technological progress in information technologies poses new issues for copyright law. Today, a digital file can be copied and instantaneously distributed worldwide through the Internet, thus potentially depriving the copyright holder of revenue from licensed sales. As a result, holders of copyright on creative works in digital format are contesting the right of consumers to make personal copies of copyrighted materials. At the same time, consumers are beginning to chafe at copyright owners’ use of digital technologies to prevent or deter copying and other unauthorized uses of copyrighted works.

(via Dan Fingerman)

Apple: iTunes Music Store Catalog Tops One Million Songs

The iTunes Music Store now has over one million songs available for download in the US, becoming the first and only online digital music service to offer consumers a million song catalog. The iTunes Music Store features music from all five major record labels and over 600 leading independent labels from around the world. With more than 100 million songs downloaded and more than 70 percent market share of legal downloads for singles and albums, the iTunes Music Store is the world’s number one online music service.

Michael Geist discusses the potential implications of a notice and takedown regime in Canadian copyright law: A blueprint for better copyright law

While the U.S. [notice and takedown] system is bad, CRIA has recommended that Canada adopt a framework that is even worse. Richard Pfohl, CRIA’s general counsel, recently lauded the U.S. system but urged Canada to go further by recommending the adoption of what is best described as a “notice and termination” approach. According to Pfohl, if an ISP permits a subscriber to use a peer-to-peer service and they receive a notification that the subscriber is offering copyrighted works for download, then “the ISP ought to kick that subscriber off the system.”

Reuters: Record Industry Faces Duel Over New ‘DualDiscs’

Plans to sell new hybrid CD/DVDs have hit legal and licensing snags that threaten to scuttle a mass rollout that the hard-hit music industry had been counting on to aid its recovery, people familiar with the matter said this week.

NYT: Lawyers Unearth Early Patents

The Patent and Trademark Office has issued nearly seven million patents; the first 10,000 are known as the X-patents. They were issued from July 1790, when the United States patent system was created under an order signed by George Washington, to July 1836, when every one of them burned in a fire. Virtually every patent is available to the public on paper, microfiche, CD-ROM and the Internet – except the X-patents.

Perhaps the most insightful program on television today (aside from The Daily Show) is Da Ali G Show (on HBO).
Da Ali G Show is the brainchild of comedian Sacha Baron Cohen. Especially when in character as Borat, Kazakhstan’s leading journalist, Cohen evokes Peter Sellers in his use of physical comedy as part of his complete and total commitment to the character.
Cohen uses the naivete of his characters to bring out the best or worst in his interview subjects. For example, in response to a question by Ali G, Pat Buchanan talks about “BLTs” as a justification for going to war in Iraq.
Salon.com’s Heather Havrilesky explains: G Spot

Cohen… inhabits such strangely naive characters, who seem genuinely receptive to the opinions of their subjects, that he manages to cajole the most strident views out of them. The mix of cultural rubbernecking and pure silliness that results is both entertaining and eye-opening.

In an interview with James Broadwater, Cohen (as Borat) got the Republican Congressional candidate to voice some unpleasant truths. Broadwater was not pleased to see the result: My Unexpected “Appearance” on HBO. The Hill reports: GOP candidate: Ali G misled me. “Broadwater said he has filed a complaint with the Federal Communications Commission (FCC).” Um, the FCC doesn’t regulate HBO, because it does not have the authority to regulate cable networks.
Kazakhstan’s embassy is less than thrilled with Borat: Offending Kazakhstan

Particularly disgusting is Mr. Cohen’s portraying of Kazakhstan as a land of Stone Age people who mistreat women and hate Jews. For the record, Kazakh-stan is a modern country with thousands of years of history and a rich and diverse culture.
Our people are highly educated and generally well-mannered. Women enjoy equal rights with men in Kazakhstan, and there are women ministers, members of Parliament, judges, journalists and businesspeople.

(via The Unofficial Borat Homepage)
Ali G was invited to give a commencement speech at Harvard: Ali G Goes Ivy League

Booyakasha – Professor G indahouse aiii. Big shout out de Harvard massiv [THROW UP ‘H’] I iz done a capital ‘H’, coz Harvard iz a place innit – u see I ain’t no ignoranus. Things like ‘apple’ and ‘orange’ do not start with a capital letter, unless dey iz at de start of a sentence – but some of you brainboxes probably know dat already innit. Me name be Ali G and me represent de UK [DO SIGNS]. For those of u who didn’t study geography de UK is a place over a 100 MILES away from here, de capital of it is? Anyone? Not u geography square! ….yes, it is Liverpool. U iz clever and quite fly if u don’t mind me sayin. First of all, I iz got to say I iz a bit nervous speakin to so many of you – at least me would be if I weren’t totally mashed. Normally de only public-speaking I does is to 12 people – and it’s well easy all me has to say iz me name and de words ‘not guilty’.

The Republicans are coming! The Republicans are coming!
NYC is trying to figure out how to deal with the influx of Republicans, increased security and disrupted traffic and transit. Three main strategies seem to emerge:

1. Get out of town
2. Protest
3. Simply avoid midtown

After considering volunteering for the convention (and trying to understand the mind of the hardcore Republicans), getting involved in the protests, or taking a vacation somewhere else, I realized that the most efficient option is to stick around the cityand go to classes. Of course, during that week, like many, I will be avoiding midtown, if not Manhattan entirely.
Suprisingly, I was not invited to blog this convention.
John Perry Barlow suggests Dancing in the Streets

I want to organize a cadre of 20 to 50 of us. I want to dress us in suits and other plain pedestrian attire and salt us among the sidewalk multitudes in Republican-rich zones. At a predetermined moment, one of us will produce a boom-box and crank it up with something danceable. Suddenly, about a third of the people on the sidewalk, miscellaneously distributed in the general throng, will start dancing like crazy and continue to do so for for about a minute. Then we will stop, melt back into the pedestrian flow, and go to another location to erupt there.

The NY Times reports on plans to flee: As Convention Week Nears, Many Plot Escapes

It is too early to tell, of course, how many New Yorkers will actually flee. A Quinnipiac University poll released on July 20 gave one indication, finding that 12 percent of New York City registered voters who were questioned said they would be leaving town because of the convention.

Newsday has complete convention coverage

In Pivot Point Int’l, Inc. v. Charlene Products, Inc., the Seventh Circuit examines the merger doctrine and conceptual separability as manifested in mannequins:

Conceptual separability exists, therefore, when the artistic aspects of an article can be “conceptualized as existing independently of their utilitarian function.” Carol Barnhart, 773 F.2d at 418. This independence is necessarily informed by “whether the design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences.” Brandir, 834 F.3d at 1145. If the elements do reflect the independent, artistic judgment of the designer, conceptual separability exists. Conversely, when the design of a useful article is “as much the result of utilitarian pressures as aesthetic choices,” id. at 1147, the useful and aesthetic elements are not conceptually separable.

The court ultimately holds that the mannequins are sufficiently creative and divorced from mere functionality to deserve copyright protection.
Does the conceptual separability doctrine conflict with innovative design? Doesn’t the copyright lawyer’s requirement for conceptual separability inhibit the designer’s work to achieve the simple elegance of form following function?
(via Guiding Rights)

Retuers: Calif. Lawyer Sues Yahoo Over Message-Board Posts

A California lawyer who has waged an ongoing battle with Yahoo Inc. over personal attacks made against him on Yahoo message boards has filed a proposed class-action lawsuit against the company.
The suit, filed in Los Angeles Superior Court on Wednesday by associates of corporate attorney Stephen Galton, claims Yahoo has unfairly protected people who post negative messages on its bulletin boards and falsely advertised that it prevents such abusive messages.

A class action suit?
While this action is governed by California law, note that under Federal law, the ISP safe harbor in 47 U.S.C. §230 would probably protect Yahoo! from liability for defamation. The safe harbor provision essentially exempts internet service providers from liability for content posted by third parties, even if the ISP acts with some level of control. See Zeran v. America Online and Blumenthal v. Drudge.

The Commission allows TiVo to deploy the TiVo to Go service, which was found to comply with the broadcast flag provisions, along with 12 other technologies: FCC Approves Digital Output Protection Technologies and Recording Method Certifications. Ernest Miller is less than thrilled: FCC Bestows Its Blessing on Technological Innovation.
The FCC announced a do-not-spam registry for mobile phone e-mail domains:FCC Takes Action to Protect Wireless Subscribers From Spam. This may protect mobile phone subscribers from receiving spam emails to their mobile phones, but will not prevent SMS spam.
Finally, the FCC initiated a set of rule-making procedures to require broadband and VoIP telephony to comply with CALEA: FCC Adopts Notice of Proposed Rulemaking and Declaratory Ruling Regarding Communications Assistance for Law Enforcement Act.

Do any AndrewRaff.com readers use Rhapsody, MusicMatch or Napster? If so, can you drop me an e-mail or IM? Thanks!

Trek out to Williamsburg tonight (via the dreaded L train) to Trash and see The Bosch. We play sometime after 10, Be sure to show up at 9 PM to catch The Walk-Ons and take full advantage of the open bar, which lasts until 10.

In Findlaw’s Modern Practice, Jason Allen Cody discusses Pop-Up Ad Litigation Strategy: Forums, Claims and Defenses

Summary of Pop-Up Advertising Cases

<td>
  7/02
</td>

<td>
  9/03
</td>

<td>
  11/03
</td>

<td>
  12/03
</td>

<td>
  E.D. Va.
</td>

<td>
  E.D. Va.
</td>

<td>
  E.D. Mich.
</td>

<td>
  S.D.N.Y.
</td>

<td>
  granted &#960;&#8217;s motion for a preliminary injunction
</td>

<td>
  granted &#916;&#8217;s motion for summary judgment
</td>

<td>
  denied &#960;&#8217;s motion for a preliminary injunction
</td>

<td>
  granted &#960;&#8217;s motion for a preliminary injunction
</td>

<td>
  yes
</td>

<td>
  no
</td>

<td>
  no
</td>

<td>
  no
</td>

<td>
  yes
</td>

<td>
  no
</td>

<td>
  no
</td>

<td>
  yes
</td>

<td>
  yes
</td>

<td>
  no
</td>

<td>
  no
</td>

<td>
  n/a
</td>

<td>
  no
</td>

<td>
  no
</td>

<td>
  no. refused to apply
</td>

<td>
  yes. pop ups diverted & distracted website consumers
</td>

<td>
  yes (implied)
</td>

<td>
  no
</td>

<td>
  no
</td>

<td>
  yes
</td>

<td>
  no
</td>

<td>
  n/a
</td>

<td>
  yes. comparative advertising
</td>

<td>
  no
</td>

  <td>
    yes. indicated 66% consumer confusion, but no analysis as to weight given
  </td>
  
  <td>
    n/a
  </td>
  
  <td>
    yes, but unreliable
  </td>
  
  <td>
    yes. suggested initial interest confusion, but ultimately unreliable
  </td></tr> </table> </blockquote> 
  
  <p>
    The key difference between the 2003 case where the website owner obtained a preliminary injunction (1-800 Contacts) and the other 2003 cases may not be the result of the choice of forum as the legal theories relied upon and the facts presented to the court in each case.<br /> Note that Wells Fargo relied on the survey evidence prepared for 1-800 Contacts. Even though that survey evidence was not reliable, at least it was prepared for the 1-800 Contacts litigation.<br /> Additionally, 1-800 Contacts sued not only WhenU, but also VisionDirect, who advertised on WhenU. VisionDirect&#8217;s cybersquatting on the www1800contacts.com domain name provided an indication that VisionDirect hoped to profit off of consumer confusion with 1-800 Contacts and likely purchased advertising on WhenU in order to place ads over the 1-800 Contacts web site.<br /> Website owners who seek to stop pop-ups should look for examples of behavior by advertisers seeking to profit off of the website and trademark owner&#8217;s goodwill.<br /> (via <a href="http://trademark.blog.us/blog/2004/08/03.html#a1323">The Trademark Blog</a>)
  </p>

Copyright at the online grocery story

---

The Second Circuit discusses whether online grocery store listings are copyrightable in MyWebGrocer v. Hometown Info.

Keying Trademark

---

PublicCitizen.org filed an amicus brief supporting the principle that keyword advertising does not infringe on trademark rights.
News.com reported on the lawsuit back in May: Geico sues Google, Overture over trademarks

Flying the Broadcast Flag

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Washington Post: TiVo vs. the Broadcast Flag Wavers

TiVo, the company that makes the digital-video-recorder boxes that inspire such strange idolatry among their users, is in a weird spot. It’s asking the Federal Communications Commission for permission to add a new feature — the option for a TiVo user to send recorded digital TV programs via the Internet to nine other people.

Previously: MPAA, NFL flag TiVo (with links to FCC filings)

Spam Conference

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LawMeme’s Rebecca Bolin visited the Institute for Spam and Internet Public Policy (ISIPP) conference on spam: International Spam Law and Policies: The Global Case

Don’t call us ‘adware’

---

News.com reports: Symantec sued for labeling product ‘adware’: “A small San Diego software company is suing Symantec, claiming that the computer security giant is driving away business by unfairly lumping it in with spyware distributors.”

Fake journalist, real questions

---

According to Slate.com’s Dana Stevens, Ted Koppel is concerned that “A lot of television viewers—more, quite frankly, than I am comfortable with—get their news from […] The Daily Show.” Battle of the Network Anchors
While the Daily Show does not serve the same role as hard news reporting, it is very difficult to find hard news on television. “Stewart, on the other hand, finds it ‘dispiriting’ that broadcast news has become complicit with the prespun narratives coming from both left and right: ‘It’s Coke and Pepsi talking about beverage truth.'”
Tonight on the Daily Show, Jon Stewart once again demonstrated why he deserves actual journalism awards with his interview of Rep. Henry Bonilla (R-TX).
Bonilla discussed his work as part of the Republican rapid response team spinning the media at the Democratic convention last week. Stewart asked Bonilla about the source of “Kerry and Edwards are the first and fourth most liberal Senators” talking point:

Stewart: how do they figure that?
Bonilla: They, they have, we have votes and, uh, bills that we sponsor…
JS: I’m not retarded, I mean, how do they compile…?
HB: They list them
JS: Who’s ‘they’?
HB: These groups that I told you about.
JS: But which one is the one that said that they were the first and the fourth?
HB: Well, well, you take the trial lawyers, or the people that follow the union votes, and the people who follow the small business votes, or the corporate votes, and they all go: you’re either with us one hundred percent of the time or none, zero percent of the time and they kind of average them all together
JS: Who?
HB: These groups do!
JS: But which one? how– when you say first most liberal and fourth most liberal– what is the group and how is it–
HB: No, I hope I’m explaining this okay…
JS: I don’t think so. I just want to know what is the group?
HB: These groups have lists of votes..
JS: But which group says they’re the most liberal? Whi– You know, because that is a point that you guys make
HB: The liberal groups do and the conservative groups do. Both of them do.
JS: No no no, I know that. You know how like when you guys go on the show and say that he’s the first most and the fourth most, which group is that? the one you guys are quoting?
HB: It’s a group that does that, it’s a group on each side. It’s not one individual– um, it’s not just the trial lawyers, it’s not just the small business group, it’s not just the corporate people.
JS: You’re making this up.
HB: No, I’m not! I’m not, and they take these…
JS: I’ll tell you who it is. It’s actually called the National Journal, and what they do is…
HB: But that’s a magazine!
JS: But they’re the ones that put it together
HB: They actually compile a list.
JS: But, is that over their career, or just…?
HB: Over their career
JS: But see, no
HB: But they’ll do it every year
JS: The first and fourth… You know that Edwards over his career is more to the right than the median Democrat and actually Kerry is more to the right of Kennedy. You just want people to have an honest discussion, and that’s all I want. I’m not Democrat or Republican, but my head, with the spinning and the responses and the things… I’m a sad little man….

Both The Daily Howler and Spinsanity explain the actual data in greater detail.

Dentists Drilled for Royalties

---

In Canada, music played throughout a dentist’s office may be considered a public performance for royalty collection purposes. Wired News reports: Canada Music Biz Bites Dentists

But dentists like Dean — who play their iPods, CDs or the radio and broadcast it through the office for patient enjoyment — are now required to pay licensing fees on the copyright music they play. The Society of Composers, Authors and Music Publishers of Canada, or SOCAN, recently started enforcing the rule. Dean, who is also president of the Canadian Dental Association, first heard about the fee in September, as members of the professional group were notified by SOCAN.

Real Useless

---

Besides the potential legal threat from Apple, Real may have a bigger problem with Harmony, its DRM transcoding software: the software may not work as advertised. Julio Ojeda-Zapata unsucessfully attempted to use Harmony

It detected both of my loaner iPods (a mini and the just-released full-size model with a mini-like scroll wheel) just fine, but a song purchased on the RealPlayer Music Store wouldn’t sync over to either player. I kept getting a “(clip) not supported by device” error message.

(via Engadget)
Previously: Hey! You! Get off of my Pod!

JibJab Goes to Court

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EFF (who represents JibJab) reveals: JibJab Files Suit in order to obtain a ruling that its “This Land is Your Land” animation is parody (and a fair use) rather than copyright infringement.
Wired News: JibJab Asks for Court’s Help

n the complaint filed Thursday, JibJab asked a district judge to issue a judgment to clarify the copyright issues between JibJab and Ludlow Music — essentially asking the judge to tell Ludlow to leave JibJab alone.

Ernest Miller: JibJab Files Lawsuit for Right to Distribute Parody?
Previously: This Use is Fair Use, Link Roundup, and Post Hoc Parody

Spyware Blog

---

Spyware Warrior discusses spyware-related news and tips on how to deal with spyware.

Another Fare Hike?

---

With little more than a year past since the MTA raised fares, the MTA is once again planning to make the commute more expensive. The MTA released its 2005 preliminary budget which predicts that, without a fare increase, the MTA operating deficits will increase drastically. The NY Times reports: Proposal Would Raise Fares and Tolls in New York. The fare hike and/or service cuts “are needed to close an anticipated $436 million deficit in 2005.” The Daily News reports: Fare hikes loom.

Remember the story of the boy who cried wolf? Last year, during the run-up to the previous fare hike, state comptroller Alan Hevesi discovered that the MTA kept two sets of books– one accurate, the other which massaged the number to create a more dire financial outlook for the MTA. Instead of deficits, forecasts projected surpluses using the accurate accounting. However, the Appellate Division found that the projection was sufficiently accurate to satisfy the MTA’s duty to the public, even though it took into account the increased debt service payments due starting in 2004:

the MTA records were not “fictional.” Even though the MTA’s request for a fare increase was based on combined 2003 & 2004 financial projections, such notice was neither “fictional” nor otherwise “false and misleading.” Even in the Hevesi report, the MTA faced a projected deficit of over $2 billion for 2003 and 2004 combined. The MTA is not required to base its finances on a single-year basis

These new deficits are due to debt service payments coming due. While previously, the state had contributed to the capital campaign, in order to fund the the last capital program, the MTA needed to borrowing more money.
Additionally, MTA revenues since the fare hike have fallen short of expectations. Apparently, subway riders are using the system more and getting more value for their $70. With Metrocard discount, the average cost of a subway ride is $1.26. Increasing the cost of the monthly Metrocard to $76 and the weekly to $24 would cost riders and average of $1.33 per ride.
The MTA new $27.8 billion capital program will keep the system in an adequate state of repair, upgrade security in the system and embark on the largest expansion of the system in decades with the Second Avenue Subway and the 7 line westward extension.
Gothamist: MTA Admits to New Fare Hikes

File Sharing, Piracy and DRM

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Jeevan Jaising: Piracy on file sharing networks: Strategies for recording companies

We find that total music sales and profit of firm is higher, and total piracy (demand on file sharing network) is lower, when the firm sells a downloadable version. We look at the firm’s optimal choice of Digital Rights Management (DRM) protection, and find that revenue decreases with increased protection, and so it is optimal for the firm not to employ any DRM, in the absence of network effects. Listening to music or watching video protected by DRM is cumbersome to users. They have to download license files, there are restrictions on the number of times the file can be copied, and restrictions on the type of devices that can play the file. As a result there is a disutility to the legal consumer, because of which the firm charges lower prices. Loss in revenue due to decreased prices cannot be compensated by the increase in demand, and hence revenue decreases with higher protection. When network effects (NE) is high, and a nominal search cost is above a certain threshold, then non-zero protection becomes optimal. This result is exactly the opposite of what was found in previous research (Conner and Rumelt 1991), where protection was found to be optimal in the absence of NE, and zero protection was optimal if NE is high enough.

DRM subtracts value and is less desirable for the consumer.

In the Trash

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Last night, I caught The Bamboo Kids at Trash and they played a good, raucous, fun set. What I saw of openers The Blackouts was solid, but not that memorable.
I was there with Krikor and Phil and we will all be back there next Wednesday, Aug. 4, when The Bosch play Trash, along with The Walk-Ons.
The show starts at 9 PM and readers of this blog will be able to take advantage of an open bar between 9 and 10. Free drinks and live music form a potent combination well worth trekking out to the wilds of Williamsburg.

Post-hoc Parody

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In re-evaluating whether the Jib Jab “This Land” animation is parody or satire, Chris Cohen wonders whether a post-hoc evaluation of a work’s parodic content is justifiable: Am I to be labeled a flip-flopper?

The four factor parody inquiry is essentially an objective one because it utilizes this post hoc reasoning – the best stuff your attorney can come up with after the fact. But actually this appears to be an attempt to get at a very subjective question: just what was the author thinking when doing the work, even if the thoughts were in the background or subconscious. In the end what the author was thinking really can be irrelevant to the the legal finding.

The threshold question in evaluating a work’s status as a fair-use parody is “whether a parody may reasonably be perceived.” Campbell v. Acuff-Rose Music. The parody need not even be in good taste. Whether a work is parody must be considered by using an objective, post-hoc evaluation rather than an evaluation of intent. Judging parodic content based on an author’s original intent creates an evidentiary problem, if it doesn’t make a finding of parody nearly impossible to establish. Allowing a post-hoc justification of parodic content serves society by encouraging, rather than chilling, speech and creativity.
It is unfeasible, if not impossible to accurately document the creator’s intent regarding parody. Even for works created with the explicit goal of parodying another work, a creator may not have any evidence to prove that was her intent. Rather (especially in the age of the blog) the creator may have merely written and published a first draft, without notes, without discussion, but with explicit parodic intent. By using an objective standard, courts avoid ruling on insufficient evidence.
Even if it is possible to document the creator’s parodic intent (or lack thereof) beforehand, if a work is unintentionally parodic, it has inherent social value and that expression should be protected by the First Amendment, rather than prohibited by copyright. A work created with satire, comedy, or mere vanity as the creative impetus may yet provide biting insight into the original work and be a most effective parody. With the objective standard, the public is not deprived of such works and any chilling of speech is reduced to a minimum.
In order to support a finding of parody, the work need not have been created with explicit parodic intent, but still must have more than a bare minimum of parodic content. In granting summary judgment and finding fair use parody in Mastercard v. Nader, the court noted that the parodic “message need not be popular nor agreed with. It may be subtle rather than obvious. It need only be reasonably perceived.”
The post-hoc, “lawyer’s best argument” evaluation of parody is used not only because of the evidentiary necessity, but because it encourages, rather than chills speech.

JibJab link roundup

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Previously: This Use is Fair Use
Wired News: Sue You: This Song Is Our Song

As far as money is concerned, JibJab hasn’t made much from the popularity of This Land. Spiridellis said the company made about $1,000 from donations in the past week — an option that’s come and gone from the site before. Pitted against an estimated $20,000 in recent Web-hosting costs, it would appear This Land has cost JibJab about $19,000.

Reason: Jabbing JibJab

Nothing says more about the awful state of copyright law today than the fact that this threat actually carries some legal weight. In the 1997 case Dr. Seuss Enterprises v. Penguin Books, the Ninth Circuit of the U.S. Court of Appeals ruled that The Cat NOT in the Hat!, a book by “Dr. Juice” that recounted the O.J. Simpson trial in the style of The Cat in the Hat, violated the Seuss estate’s copyright. Ordinarily the fair use doctrine permits parody, but in this case the court was unmoved: This was a satire, it ruled, not a parody. A parody would be a commentary on the Seuss book, it explained, whereas this borrowed Seuss’s creation to mock something completely different. The obvious retort—that it was a parody of both—didn’t carry any water.

Eugene Volokh: JibJab SoSue

The copyright owners have a pretty good case. If JibJab were making fun of the song, then the cartoon would likely be a fair use. But JibJab seems to be just using the song to make fun of Bush and Kerry, rather than making much of a comment about the song itself — that makes the fair use defense much weaker.

EFF has taken JibJab on as a client

Rather than addressing JibJab’s free speech and fair use rights, Ludlow’s lawyers have now sent threat letters to JibJab’s hosting provider, AtomFilms, as well as to AtomFilm’s upstream provider — evidently in an effort to get “This Land” censored right off the Internet.

Ludlow Music’s demand letter to Jibjab: Re: JibJab Media Unauthorized Use of ‘This Land is Your Land’

Mr. Guthrie’s musical composition is an iconic portrait of the beauty of the American landscape and the disenfranchisement of the underclass. As both a populist anthem and an ironic metaphor, ‘This Land Belongs to You and Me’ contrasts a view of the ‘sparkling sands of her diamond deserts’ and the sun shining on ‘wheat fields waving’ with the city’s working class in the ‘shadow of the steeple near the relief office’ who grumble and wonder if such natural treasures embody their own experience with this country. The Unauthorized Movie does not comment on those themes.

Jibjab (EFF) reply to Ludlow: Re: Jib Jab Media, Inc. and Ludlow Music, Inc.

Jib Jab’s parody addresses, among other things, the lack of national unity that characterizes our current political climate (ending with te optimistic hope that unity might be rediscovered). In short, ‘This Land’ explores exactly the same themes as the Guthrie original, using the parodic device of contrast and juxtaposition to comment on the original.

The Importance Of: EFF Defends JibJab Animation as Parody
Fred von Lohmann learns that Ludlow may not have a defensible copyright on the music: Props to The Carter Family

Turns out Woody Guthrie lifted the melody of “This Land is Your Land” essentially note-for-note from “When the World’s on Fire,” a song recorded by country/bluegrass legends, The Carter Family, ten years before Guthrie wrote his classic song.

See also Salon.com: Class politics, JibJab-style

Hey! You! Get off of my Pod

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Today, Apple released a statement responding to Real’s announcement of Harmony:

We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod(R), and we are investigating the implications of their actions under the DMCA and other laws. We strongly caution Real and their customers that when we update our iPod software from time to time it is highly likely that Real’s Harmony technology will cease to work with current and future iPods.

Translated: “The next software update to the iPod will prevent Harmony-DRM’ed files from playing on the iPod.”
Derek Slater: Apple Threatens Real

Along with piracy rhetoric, we now get evil hacker rhetoric. Since when is reverse engineering unethical? Oh right – since the DMCA, which Apple is predictably waving around. Let me remind you that Real was one of the first companies to sue the creator of an interoperating product under the DMCA, so it’s not as if they’re the innocent defenders of innovation here. This could make for a fine DMCA battle royale, with copyright holders caught in between. Or it could fade away – we’ll see.

Ernest Miller: Apple Gets Real Serious About Harmony

As if being a hacker is a bad thing. What do you call those two guys who built a computer in their garage and started a little computer company named after a fruit?

BusinessWeek: For Apple, Harmony Is Off-Key

Apple CEO Steven P. Jobs should clearly and firmly squelch Real’s attempt to infiltrate Apple’s music empire. GartnerG2 analyst Mike McGuire sums it up: “At some point, Apple may decide to license [its iPod technology] to others. But they should do it for good business reasons, not because a rival issues a press release or some beta software.”

Doe, ID, and P2P*

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Judge Denny Chin ruled that the First Amendment does not protect the anonymity of uploaders of copyrighted files on a p2p system Sony Music Entertainment Inc v. Does 1-40, 04 Civ. 473 (pdf). Sony will be able to obtain from Cablevision the identities of 40 users of the FastTrack p2p network who shared files using their cable modems. The First Amendment does not protect anonymity in this case:

Anonymus speech, like speech from identifiable sources, does not have absolute protection. The First Amendment, for example, does not protect copyright infringement, and the Supreme Court, accordingly, has rejected First Amendment challenges to copyright infringement actions.

While the use of P2P to download, distribute, or make available for distribution copyrighted sound recordings, without permission, is an exercise of speech, that speech is not uniquely expressive enough to deserve the protection of anonymity and thwart the interests of copyright owners.
The discovery request was allowed because: this is a prima facie claim of copyright infringement; the discovery request is sufficiently specific to obtain the desired information (defendant’s identities); no alternative means exist to obtain subpoenaed information; central need for subpoenaed information in order to the case to proceed; defendants have minimal expectation of privacy.
Tech Law Advisor: Up/Downloaders Identities Not Protected by First Amendment

The court in finding against the Doe defendants found that although the First Amendment’s protection extends to the internet, it does not protect copyright infringement. See e.g. Harper & Row and Universal v. Reimerdes. Nor does anonymous speech enjoy absolute protection.

News.com: Judge: RIAA can unmask file swappers

This ruling is the latest decision to clarify what legal methods copyright holders may use when hunting down people who are trading files on peer-to-peer networks. Courts have spent the last few years grappling with how to reconcile Americans’ right to be anonymous with the entertainment industry’s own right to sue people who violate copyright law.

Ernest Miller: RIAA Subpoenas for John Does Valid

Although this is a decision by a single district court, it is likely to be persuasive in other courts though it isn’t binding…. The most important argument involved the First Amendment right to anonymity of the file sharers. While the judge recognized the First Amendment interest, he concluded that it was not sufficient to protect anonymity for filesharing of copyrighted files without any additional speech. This was the right decision.

*read to the tune of “doe, a deer, a female deer”

Fun with insomnia

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If I am going to be up at weird hours during the early morning, due to not being able to sleep, I suppose I should do something more useful than surf the web and watch tv…

Tapping E-Mail

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In response to the Councilman case, Rep. Jay Inslee (D-WA) is introduced the E-Mail Privacy Act of 2004. This bill would regulate the interception of e-mail like real-time interception of telephone conversations and require law enforcement to obtain a court order to intercept e-mail. (via beSpacific.)

GAO on E-Voting

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GAO: Electronic Voting Offers Opportunities and Presents Challenges (pdf):

Looking toward to the upcoming 2004 national election and beyond, the challenges confronting local jurisdictions in using electronic voting systems are not unlike those facing any technology user. These challenges include (1) performing those security, testing, and maintenance activities needed to minimize risk and adequately ensure that the system operates as intended; (2) managing the system, the people who interact with the system, and the processes that govern this interaction as interrelated and interdependent parts; (3) having reliable measures and objective data to know whether the system is meeting the needs of the jurisdiction’s user community (both the voters and the persons who administer the elections); and (4) making choices about future system changes in light of whether a given system will provide benefits over its useful life commensurate with life-cycle costs, and ensuring that these costs are affordable.

Automatic Weapon IP Piracy?

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The NY Times reports that the US has been purchasing unlicensed knock-off Kalashnikov AK-47 rifles: Who’s a Pirate? Russia Points Back at the U.S.

Washington contends Russian intellectual-property pirates cost the United States more than $1 billion a year.
Now Russia is striking back. A Russian industry and product designer are asserting that the United States has been abetting intellectual-property pirates to suit its own needs, by directing copies of Russian merchandise around the world.
The complaint is not about software or music. It makes no mention of movies or video games. It is about the Kalashnikov assault rifle, the most prolific firearm ever made.

Adware Patent

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Jupiter analyst Gary Price wonders if NetZero has really been granted a patent for adware: NetZero patents…AdWare?
NetZero filed for the patent in April 2000 and, last month, was granted a patent for High volume targeting of advertisements to user of online service

Disclosed is an ad server and local device that interface for selecting advertisements to be viewed by users of an online service based upon user activity. The local device preferably stores a targeted activity list of activity identifiers and associated advertisements in memory, preferably in cache memory. The local device monitors the activity on the local device and compares the activity to the identifiers in the targeted activity list. If the activity matches one of the identifiers, the local device causes one or more advertisements to be played.

Will this lead to patent infringement litigation against Claria and WhenU in addition to copyright and trademark (the IP trifecta)?

Raising the Bar

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Good luck to those who are sitting for the Bar today (and tomorrow)! Expect to see many of the exam-takers at a different sort of bar tomorrow…
For a taste of some of the fun of taking the bar without all of the studying and worrying, read Barman.

Russian Ringtone Rights

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Pravda reports: Russian musician protects his intellectual property rights

The leader of the popular Russian rock group “Leningrad”, Sergei Shnurov, has won the case of intellectual property rights violation. The court has ruled that S.B.A. Music Publishing, a subsidiary of the Gala Records company, pay 100,000 rubles to Sergei Shnurov for violating his intellectual property rights by issuing a permission for mobile phone companies to use Shnurov’s music for mobile phones and karaoke, Gazeta reports.

(via IPKat)

This Use is Fair Use

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CNN reports that Woody Guthrie’s publisher is unhappy with the JibJab’s animated take on “This Land is Your Land”: Publisher peeved at political parody:

TRO believes that the Jibjab creation threatens to corrupt Guthrie’s classic — an icon of Americana — by tying it to a political joke; upon hearing the music people would think about the yucks, not Guthrie’s unifying message. The publisher wants Jibjab to stop distribution of the flash movie.

JibJab asserts that its use is a fair use.
Generally, a parody (a work which comments on the original) is considered fair use, while a satire (which comments on broad social trends, but not on the original work) is not a fair use. See e.g. Campbell v. Rose-Acuff and Suntrust v. Houghton Mifflin
Chris Cohen thinks that the video is satire, not parody:

The JibJab video would likely be considered satire, because the video does not directly target the original song. The clear target here is Bush and Kerry or politics/society in general. Also, if the video is a commercial use of the song, that will hurt JibJab’s case.

Lawrence Lessig agrees with Cohen: on the meaning of “parody”:

As any copyright lawyer recognizes, it is not a “parody” in the sense that “fair use” ordinarily recognizes it. A “fair use” “parody” is a work that uses a work to make fun of the author. JibJab is using Guthrie’s work not to make fun of Guthrie, but of the candidates.

Not only does this animation comment on the public perceptions of the two candidates, but it shows how naive and marginalized Guthrie’s vision of a united country is compared with modern political discourse. The animation parodies the original song by demonstrating what would result if the songwriter replaced Guthrie’s idealism and hope with post-modern cynicism and rabid partisanship. The listener will think about Guthrie’s unifying message and wonder if there is any place for such hope in politics today.
Ernest Miller also thinks that the JibJab use is a paradigmatic case of parody:

JibJab’s wonderful parody undermines virtually every element of the original meaning of Guthrie’s song. Where Guthrie’s song is provocative understatement, JibJab’s is merely provocative. Where Guthrie’s song is one of unity, JibJab’s version both mocks and ultimately supports that ideal. In a year in which the red/blue divide is frequently debated, Guthrie’s call for unity would seem to be ripe for this sort of parody. Guthrie was a supporter of communism, but his America has become consumerist (which JibJab notes perfectly). Guthrie sang songs to raise political consciousness, JibJab mocks political consciousness.

The Blawg Channel’s Marty Schwimmer would also find this to be fair use: My Two Cents on Jib Jab

The message of the original work is one of unity – the point of the parody in part is to illustrate the absence of unity at this time. As indicated in the ‘Priceless’ MasterCard case (where Nader not only commented on the two party system but on the values commercialized by MasterCard), commentary on the original work does not need to be at the primary reading of the parody. It can be so subtle as to be missed (by the plaintiff).

TechDirt notes that Guthrie took an expansive view of copyright: JibJab Threatened Over Use Of Woody Guthrie Song

Guthrie, after all, is the same singer who once put the following copyright notice on his work: “This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.”

Of course, Guthrie doesn’t say “change it to create parody,” but this is the type of parody which should be protected by Fair Use.
Joe Gratz thinks that “there might be more (or, depending on your perspective, less) to this case than the parody issue”

Real DRM

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The NY Times reports that RealNetworks Plans to Sell Songs to Be Played on iPods

Tomorrow, without Apple’s authorization, RealNetworks will start to give away software that will allow people to buy and download songs from its online music store and then play them on Apple’s popular iPod portable devices in addition to those that use the Windows Media Player format and RealNetwork’s Helix format.

I suspect that what the Real software does is merely strips the downloaded file of its proprietary DRM and loads it onto the music player as an unprotected MP3 or AAC file. The music player will be able to read it normally.
The Times article claims, “This will be the first time any company other than Apple has sold songs for the iPod.” In fact, eMusic has been selling legitimate downloads of songs which can play on the iPod for longer than Apple.
Why would an iPod user who is locked in to using iTunes to sync her collection to the iPod even bother with Real?
UPDATE: News.com has more details: Real Networks breaks Apple’s hold on iPod

Harmony also will automatically change songs into an iPod-compatible format. But because Apple has not licensed its FairPlay copy-protection software to anyone, RealNetworks executives said its engineers had to re-create their own version in their labs in order to make the device play them back.
Although the company said this action wasn’t technically “reverse engineering,” the software could trigger intense legal scrutiny.

So Real has created a clone of FairPlay by a process like reverse-engineering, in order to allow its DRM’ed songs to play on the iPod.
Does this constitute anti-circumvention under the DMCA? As Ernest Miller discusses in What Real’s Hacking of FairPlay Doesn’t Do, the Real software does not affect any songs already in the FairPlay DRM format. In fact, it only converts from one use-restrictive format into another.

Fulton Landing Bluegrass

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This would have been a nice afternoon to have a real camera with me. Instead, here are some low resolution photos sent from the phone.

Regulating VOIP

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Yesterday, the Senate Commerce, Science, and Transportation Committee passed a Voice Over Internet Protocol Bill.
VOIP Regulatory Freedom Act of 2004 (S. 2281) regulates VOIP at the federal level and preempts state law with three major exceptions. States may still enforce laws and regulations of general applicability, including consumer protection laws and prohibitions against fraud and unfair trade practices. States and local governments may still require 911 and E911 services. States may still regulate transmission facilities and require VOIP providers to pay compensation to incumbent carriers for the use of facilities and contribute to the universal service fees. The bill does not affect VOIP telephony providers obligations under CALEA.
The bill requests a report from the GAO in order to assess:

• technical capability of law enforcement to intercept and analyze IP transmissions
• problems encountered by law enformcement when intercepting communications over the Internet or using IP
• assessment of options for law enforcement agencies to acquire the skills and equipment necessary to analyze Internet communications
• assessment of the first 10 years of CALEA implementation, compliance along with a cost-benefit analysis.

From the FCC, the bill requires a study assessing the first 10 years of CALEA.
Thomas: Bill Summary and Status
News.com: Senate panel embraces state VoIP taxes

ut in an unexpected twist, Sen. Byron Dorgan, D-N.D., persuaded the committee to adopt an amendment that permitted states to regulate VoIP services in two ways: levying taxes to pay for universal service and for compensating traditional telephone companies for the use of their phone lines through so-called access charges.

Law Practice Today: Everything You Need to Know about VoIP

Apple’s Next Product

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This week, Apple started shipping Airport Express, a compact WiFi base station which enables iTunes to wirelessly stream music to a stereo.
The NY Times’ David Pogue lauds the Airport Express, Apple’s Pocket-Size Base Station. Ars Technica comprehensively reviews the Airport Express and concludes that “the Express is more than just the sum of its parts.” WSJ Personal Technology columnist Walt Mossberg considers the lack of a remote control to be “just unacceptable in a device of this kind,” AirPort Express Does What Apple Claims, But It Still Falls Short.
Ernie offers two solutions: ‘Dude, get a laptop with built-in Wi-Fi,’ or use Sailing Clicker with your Bluetooth-enabled cell phone.
Sailing Clicker is a tremendously cool application (“this is so cool!“), but extremely limited by the fact that it relies on Bluetooth. Bluetooth does not have even enough range to reach across the small space of AndrewRaff.com World HQ and will not be useful for someone whose computer is in a different room from the Airport Express and stereo.
Apple’s next wireless product should be a WiFi remote control. Think an iPod/mini, but with WiFi instead of a hard drive: it can be used to control iTunes from anywhere on the network. Using the familiar iPod interface, the display would be able to show song info, browse the iTunes library, create playlists, and address all of the shortcomings of the Airport Express as a music player. Unlike a bluetooth or infrared remote, a WiFi remote control would not only have a much greater range, but could work with the existing Airport hardware and not require an additional receiver.

CD Piracy

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The IFPI finds that traditional music piracy (involving actual CDs) is at the highest level ever, although the rate of growth in pirated discs is slowing: Music pirate sales hit record 1.1 billion discs but spread of fake CD trade slows

Global sales of pirate music have hit another record at 1.1 billion discs annually, but thanks to stepped up enforcement efforts the fake CD trade is spreading more slowly than in recent years. Music piracy remains a huge US$4.5 billion illegal business driven by organised crime, government apathy and corruption.

In the full report, the IFPI notes a correlation between P2P and pirated discs in Taiwan. As P2P usage has increased, the amount of pirated discs sold decreased.

In Europe

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IPKat reports on the latest European Commission attempts to harmonize copyright law as well as the latest European copyright cases.

Cell phone spam

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PC-Radio.com reports on the First Lawsuit Over Cell Phone Spam

Lawyers for Verizon Wireless claim the defendants’ messages violate the Telephone Consumer Protection Act (TCPA), as well as the Computer Fraud and Abuse Act, and New Jersey’s computer fraud statute. Under the TCPA, victims are entitled to a minimum of $500 per violation as a remedy.

Complaint

Acxiom hackers indicted

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Directing marketing giant Acxiom had its database hacked, leading to an indictment in US District Court.

MPAA, NFL flag TiVo

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In February, TiVo filed with the FCC for broadcast flag certification under the Digital Broadcast Content Protection Rule: Broadcast Flag Certification of TiVo
The MPAA and NFL filed oppositions to TiVo’s certification, arguing that new TiVo features which allow TiVo subscribers to make recorded programs more portable should be subject to more stringent regulation. The Washington Post reports: TiVo’s plans lead to copyright fight
In a white paper, the MPAA argues that TiVoGuard does not prevent widespread indiscriminate redistribution of broadcast content and permits copyright infringing conduct. Additionally, remote access technologies such as TiVoGuard threaten the viability of the Local Broadcasting System. MPAA filing: Legal and Policy Issues Raised by TiVoGuard
The NFL filed a comment opposing the certification of TiVo. The NFL wants to continue to limit the markets to which NFL games may be broadcast and be able to sell the NFL Sunday Ticket at an absurd premium to DirecTV subscribers, but fears that a TiVo video sharing service will harm the market.
Access all the filed comments by search in the FCC Electronic Comment Filing System for Proceeding “04-63”
TiVo’s less commercially successful competitor ReplayTV offered an internet video sharing feature, which was the controversial subject of litigation. However, DNNA, the new owners of ReplayTV, dropped the Internet Video Sharing feature from the latest version of the ReplayTV.
PVRBlog: TiVo: you can only innovate if the NFL and MPAA say so

What is most shocking about the objections is that TiVo ToGo is an already crippled version of something TiVo hackers and users of software PVRs like Windows Media Center and Snapstream have been doing for years now.

Induce hearings

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The Senate Committee on the Judiciary held hearings today about the INDUCE Act: “An Examination of S. 2560, The Inducing Infringement of Copyrights Act of 2004 ”
For background and more links, see The Importance of Induce Act coverage and the Tech Law Advisor Induce Act blog (where I will be posting along with Kevin Heller and Chris Rush Cohen.
Rough notes from the webcast follow the jump.

Sen. Hatch:
-Copyright is under assault from large scale, pernicious piracy rings
-Aim is to stop the for-profit piracy rings, not to subject tech companies to unnecessary regulation
-intended to be tech-neutral — not intended to target p2p solely
-extend liability to inducing actors, should be a small number of bad actors.
Sen. Leahy
-committed to reaching consensus
-One problem consistently appears: “c holders often fear new technologies. we have a lot of people who are in the creative community and their reticence is not without merit. c industries lose billions of dollars per year in c piracy.”
-P2P tech has run roughshod over these rights.
-By the way, I’m going back to Vermont.
(Do commercial pirates, like the guys selling pirated DVD’s in Union Sq. subway platform) even use public P2P? Can’t they use darknets and closed FTP? How does Induce actually target large-sclae commercial piracy?)
Marybeth Peters (Register of Copyright)
-Betamax– no secondary liability b/c of substantial non-infringing uses
-Grokster is wrong as a matter of copyright law
-Secondary liability is broader– as a matter of policy, the Grokster decision is flawed– it’s more efficient to sue p2p networks
-bill requires specific intent
-current p2p services make it inevitable that users become infringers by turning on the software
-not overturn Sony– by focusing on inducement, this bill addresses factual circumstances beyond the scope of Sony
-p2p would be like the VCR if the VCR was designed so that all programs recorded would be available to all other VCRs in the world
-c protection need not be kerely symbolic in face of new tech
-today, most everything can have some kind of substantial non-infringing use, so perhaps the standard needs to be higher.
Shapiro (CEA)
-can not find one leading tech co. supporting this bill
entering a growth age in tech.– consumers have the freedom to CREATE leading to a renaissance of creativity by individuals.
-biggest threat to innovation in 20 years
-litigation over every new tech that allows content shifting of some sort
-Sony set forth a clear, bright-line standard
-Betamax case is our magna carta
-80 members when Betamax, over 1700 tech companies today are members.
-replaces objective test with a subjective test
-not only to innovators, but to venture capitalists and journalists
-subjective standard invites litigation– no summary judgment. Expect lots of frivolous lawsuits.
-will chill innovation
-already challenged rio, replaytv, clearplay– every new gadget will lead to a lawsuit
Hatch: We haven’t had much help from the industry people
Holleyman (BSA)
-Piracy is a matter of great concern to BSA-member companies;
-Doesn’t require new laws
-Won’t encumber the development and distribution of innovative new technologies.
-Deter bad actors without stifling tech. advancement.
-vitally important to educate ‘net users
-distinguish bad actors who design software for purpose of piracy from those who produce general-use software:

1. tech products used for significant non-infringing uses are not subject to liability
2. to meet intent standard: conscious, recurring and persistent acts designed to induce another to infringement
3. mere knowledge of infringing acts of another person does not consistute inducement
4. no liability based on advertising or providing support to users
5. mechanism needs to be included to deter weak, harrasing or frivolous lawsuits.
   Greenberg (IEEE)
   -I’m not just a lawyer, but also a client, er, engineer.
   -stand for proposition that IP must be about balancing of interests: neither the status quo nor 2560 adequately balance those interests
   -creates a practical uncertainty over scope and application that may chill innovation
   -uncertainty is the quivalent of a law barring innovation
   -inducement applies to all tech, not just file sharing
   -need a more balanced framework
   -measure twice, cut once
   Hatch: “this is a very interesting hearing”
   Kevin McGuiness (Net Coalition)
   -Under current law, next Bill Gates will be able to take a product to market,
   -legislation puts entertainment industry in a very envious situation: targets can include credit cards, editorial reviews, VC
   -entertainment industry leverage over new technolgy will send innovation overseas
   -following principles over whether new principles oare needed:
6. must codify betamax
7. target unlawful behavior, not platforms or techs
8. must provide a bright line between lawful and unlawful
9. should ensure that entities who provide product reviews or demonstrate how a product can be used is not subject to liability
   Mitch Bainwol (RIAA)
   -uniform view of music industry
   -we are united b/c music industry has been decimated by piracy
   -fewer jobs, fewer capital financing artists
   -scope of p2p problem is mind boggling: 1 billion downloads per month
   -97% of transfers on p2p are illegal
   -make money by selling advertising and using music as lure to draw eyeballs to advertising.
   -mechanism for high-tech theft
   -mockery of property rights, laughing all the way to the bank.
   -business model predicated on taking of property.
   -in addition to inducing kids to pirate, also sends porn into America’s houses. (But, the porn is pirated, too!)
   -villians are the profiteers
   -spotlight needs to be focused on bad actors who hijack a neutral technology.
   -chasm separating values of kaaza and apple
   -take away infringement and the business model of kaaza collapses
   -give our community the chance to profit
   Hatch: Hey Shapiro, haven’t you always vigorously opposed legislation that would curb infringement? What have you done to help us to address this problem?
   Shapiro:
   -We filed a brief in Grokster– and it induced this legislation. Let’s see what happens in the 9th Circuit?
   -we worked on the AHRA
   -prefer to have no litigation, but it must be narrow, clear and compelling.
   -Here is a fundamental attack on the technology community.
   -Puts money at risk. Uncertainty of an induce standard of intent is so chilling that the tech industry will suffer. This legislation is very wrong.
   -Music industry sales may benefit from P2P.
   -What about artists who want music on p2p? This is the horse and buggy stopping the car.
   -every new tech has been opposed by the content community, without major harm.
   -lost harm: not every download is a lost sale
   -penalty for stealing a CD is nothing compared with the penalty for downloading that same CD.
   -Oppose commercial piracy
   Hatch:
   -I don’t really want to blow up computers!
   -Shaman says: “Kaaza has option to filter bogus, misnamed or incomplete files uploaded by record labels.” Does this go with Sony?
   Shapiro: It’s possible that Kaaza may be found illegal by the 9th Circuit, like Napster or Aimster.
   Hatch: Bainwold: will this let you sue mp3 players, cd recorders, or PVRs simply because those devices used to infringe.
   Bainwol:
   -No. Bill seems very highly targetted.
   -97% of p2p transactions are illegal.
   -p2p decreased the number of top 10 sales and destroying the investment capital of the industry.
   -“Harvard study gives harvard an awfully bad name.”
   McGuiness: disturbing to watch legislation go by based on the presumption based on the good intentions of lawyers in the entertainment community.
   -If RIAA won all its cases, would that be sufficient? Will this law stop illegal file sharing and downloading?
   -Reality that there is a new medium used to share and obtain music. It may be time to embrace it.
   -When the VCR arrived, Hollywood focused exclusively on the record button. It moved on to focus on the play button and now sells lots of DVDs.
   -Content community needs to move on.
   Bainwol:
   -Only way that the legal system can succeed is by fighting the illegal systems.
   (What about the bottled water analogy? Bottled water competes with free and does very well. iTunes is so much easier and more convenient than P2P. Can’t it win by being more convenient?)
   -Why, b/c we are in the technological space, do we abandon the notions of property?
   Leahy: We’ve all felt the love here this afternoon. (Hatch and I may be heading to VT, or better yet, MA!)
   -c office supports 2560 as does RIAA. Critics support the idea.
   -only IEEE has proposed legislative language to assuage their concerns. What about the rest of you?
   Shapiro: There have been some good suggestions among the panel. Support a codification of the Betamax principles.
   Holleyman: We’ve laid out the 5 principles
   McGinnis: we would have liked to be consulted at the beginning.
   Bainwold: if there’s another way to go after bad actors, we’re willing to find it.
   McGuiness: Legislation before us today won’t achieve the goals. Here, burning the carpet to kill the spider. Concept of Induce does not fit in with copyright law.
   Leahy: I’m just a small-town lawyer. Do we or don’t we need legislation?
   McGuiness: there may be a need for legislation to codify the broad reading of Betamax. no need for further new legislation, because the harm will far outstrip the benefeits
   Holleyman:
   -Problem of piracy is significant
   -Valuable part of the intent was to address bad actors.
   Greenberg:
   Opportunity to make clear how secondary liability is to be balanced against the interests of the various consituents.
   Leahy:
   What are all consequences? How far down the road should we be legislating for?
   Hatch:
   Compare with spyware laws. Threats to privacy and internet commerce are real. P2P drives not only piracy, but spyware. Bad actors are driving the debate.
   Hatch: Hope to resolve this over the month of August. Let’s work together.
   [tech industry panelist]: Kaaza screwed up my computer, I want to get back at them!
   Hatch: We never entirely get this right. Please help us get as close as possible.
   Greenberg: Balance of competing interests that may not be completely reconcilable. Secondary liabliity, by its definition, is asserting IP rights against someone who has not infringed those rights. Copyright law must not be as strong as patent.
   Bainwol: Piracy is hurting the livelihoods of performers and composers.
   Hatch: There are some of us writing songs who aren’t getting a cut. In the end, I’m just going to do what Marybeth Peters tells us to do.
   Hatch: we want to solve this for the music industry, and the movie industry, and the book industry. (What about the software industry. The BSA, whose entire industry is based on profiting off of copyrights opposes the bill?)

Fake News Beats Real News

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What does it say about the mainstream news media if The Daily Show, a fake news show on Comedy Central provides more insight into current events than most “legitimate” news programs? The Television Critics Association awarded its prize for outstanding news and information programming to The Daily Show, shunning real news shows Frontline and Nightline.
MeFites wonder if Jon Stewart is a real newscaster. In Sunday’s New York Times, Frank Rich notes that The Daily Show is filling a vacuum left by the real news: Happy Talk News Covers a War

Such is the vacuum now often left by the real news that Mr. Stewart’s fake anchor is increasingly drafted to do the job of a real one. One recent instance occurred after Dick Cheney appeared on CNBC on June 17. The CNBC interviewer, Gloria Borger, asked the vice president about his public assertion that a connection between the 9/11 hijacker Mohamed Atta and Saddam Hussein’s government was “pretty well confirmed.” Not once but three times Mr. Cheney said that he “absolutely” had “never said” any such thing. But Ms. Borger had been right. And it was left to Mr. Stewart, not her actual TV news colleagues, to come to her defense by displaying the incontrovertible proof on “The Daily Show”: a clip from “Meet the Press” in December 2001, in which the vice president flatly told Tim Russert “it’s been pretty well confirmed” that Atta met with “a senior official of the Iraqi intelligence service.”

Aaron Swartz asks: Why are all the other mainstream news source so unspeakably bad?

The Daily Show is routinely the most on-top-of-things source for news, while also being extremely entertaining. The show is far more fair and accurate than most major media and they do in-depth political analysis of the Bush administration that New York Times readers can only dream of.
The show is good, to be sure, but perhaps the more interesting question is: Why are all the other mainstream news source so unspeakably bad?

While alone, The Daily Show may not offer the complete news coverage available from other sources, the analysis and commentary on the news is incisive and useful. For example, watch Jon Stewart explain talking points.

Where’d You Get That Virus?

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I was surprised to receive a virus-laden e-mail sent to a mailing list I administer which purported to come from myself. Now, my computer may have 99 problems, but a virus is not one. I double-checked the headers on that message to ensure that it did not originate from my computer (it did not).
Now, most worms and viruses which propagate via e-mail send themselves to addresses found in the infected computer’s address book and cache files. The virus e-mails claim to come from other addresses in the infected computer’s address book. See also: Anchordesk: Why I’m not sending you viruses.
When a mailing list only accepts mail from subscribers, the chances of a virus or worm actually getting through to the list is relatively low. (The more mathematically inclined could figure out the probability.) The chances are even lower when the list administrator has actually taken the necessary steps to filter out suspect attachments before such attachments are sent to the list.
When someone’s infected computer sends out a virus or worm to a mailing list while spoofing the e-mail address of the list administrator, that list administrator will receive a number of e-mails wondering “I just got this e-mail from you and it looks like it could be some type of virus or worm. Did you really mean to send it to me?” “Are you sending a virus?” or “what the hell is that?” The less polite may chide the administrator to “stop downloading virus infected porn and sending it to people.”
The moral of the day is: virus or worm infected e-mail messages nearly always come from spoofed addresses, so it’s not my fault. Make sure your Windows PC is clean with up-to-date anti-virus software or just get a Mac and not have to deal with viruses, worms or spyware.
While virus writers may yet target Macs, OS X is, under its default settings, more secure than Windows. Additionally, <a href=“http://daringfireball.net/2004/06/broken_windows"">John Gruber notes: “The security disparity between the Mac and Windows isn’t so much about technical possibilities as it is about what people will tolerate. And Mac users don’t tolerate shit.”
One proposal to authenticate identity in e-mail comes from Yahoo! and is called DomainKeys. DomainKeys will require individual users to be authenticated with their e-mail server. Another proposal, from Microsoft, is called Sender ID and will require authenticated email servers and domains. These two approaches complement each other and may both serve to mitigate the problem of forged email identity.

Spam Miscellany

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LawMeme’s Rebecca Bolin looks at the state of state anti-spam laws: Fun With Preemption: State Law After CAN-SPAM

The state laws which were preempted–labeling, opt-outs, harvesting–were much less used, if at all. Many state spam laws, including the recently upheld Washington state fraud laws, are still valid. Virginia is still pursuing spammers vigorously using its falsification of headers and routing prohibitions. Washington keeps its individual cause of action even though CAN-SPAM doesn’t make one, and Virginia outpaces the FTC in criminal charges, with a head start, of course

NY Attorney General Elliot Spitzer announced a settlement with e-mail marketer Scott Richter and his company, OptInRealBig.com, LLC.. In addition to a $50,000 settlement, the spammers are permanently enjoined from sending commercial email with false or misleading headers, sending messages with the intent to deceive, registering domain names with false information.

This settlement holds Richter and his company to a new standard of accountability in their delivery of emails,” said Spitzer. “If he does not fulfill these standards, he will find himself back in court, facing greater penalties.”

Additionally, Richter and OptInRealBig must retain and provide to the Attorney General detailed customer information and purchase records and a list of all complaints received.

Thanks for the feedback

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Thanks to the handful of readers who e-mailed, commented and called in response to my query last week.
My reason for asking is simple curiosity, which was at least somewhat satisfied…
At Bloglines, 7 people who are not me are subscribed to AndrewRaff.com and 10 are subscribed to the Linky Links. In comparison, over 300 Bloglines users are subscribed to Gothamist, more than 800 are subscribed to Anil’s Daily Links and more than 2,000 users are subscribed to Kottke.org.

Siren fest

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Brief overview: I got to Coney Island in time to see Mission of Burma, who were solid. We missed Death Cab for Cutie. And You Will Know Us by the Trail of Dead were entertaining, but not all that impressive musically. All in all, the highlight of the trip was riding [the Cyclone][1]. Village Voice: [The Sound of Sirens][2], [For Your Amusement][3] NY Times: [Old-Fashioned Rock ‘n’ Roller Coaster for Indie Fans][4] Gothamist Arts: [Gothamist Survives the Sirens][5] Capn Design: [Siren Fest Wasn’t Fun][6]

Get your Induce on

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Lawmeme: The LawMeme Reader’s Guide to Ernie Miller’s Guide to the INDUCE Act

Next up: Trademark

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Utah-based ClearPlay developed software designed to skip over objectionable content on DVD’s. In 2002, the Director’s Guild of America, joined by eight studios, sued ClearPlay, alleging that the software infringes on copyright by creating unauthorized derivative works. For some analysis, see James Ball: Who Controls the Right to Create “Clean” Versions of Films?
Earlier this year, RCA started selling a standalone DVD player with ClearPlay software built-in. Now, Twice reports that a patent dispute is causing RCA to Stop Selling ClearPlay:

A Boca Raton, Fla.-based rival known as Nissim Corp. filed a patent infringement claim against ClearPlay on May 13. Nissim has developed a system called CustomPlay MediaCenter with parental control features.

Americans Complain

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Americans complain to the FCC more than ever. Denise Howell reports on a <a href=““http://bgbg.blogspot.com/2004/07/chat-with-michael-powell.html>chat with Michael Powell, who notes that “In the year 2000 there were 111 public complaints about television. In the first three months of this year, there were 545,000.”

Urban Legend Helps Counterfeit Fighters

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The Trademark Blog’s Martin Schwimmer offers a helpful tip for finding counterfeit goods for sale online: You Can Still Dial 431.322.12 For Fake

Somehow the urban myth circulated that there is a Code 431.322.12 of the Internet Privacy Act (which doesn’t exist).  Website operators got it into their heads that if they cited Code 431.322.12, they could bar from their sites whomever they wanted, such as law enforcement officers or trademark attorneys.

Now, adding 431.322.12 as a search keyword provides a simple way to find sites which are most likely selling counterfeit goods.

Copyright Term Cheatsheet

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The Copyright Information Center at Cornell has a handy guide to Copyright Term and the Public Domain in the United States.

Political Economy of IP

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Landes and Posner, The Political Economy of Intellectual Property Law

This monograph seeks to explain the expansion of intellectual property law over the last half century, focusing in particular on the rapid growth that began with the 1976 Copyright Act. In so doing, it explores a fundamental, unresolved issue in the theory of regulation: why some kinds of regulation have increased dramatically over this period while others have virtually disappeared.

Published by the AEI-Brookings Joint Center for Regulatory Studies, June 2004.

18 hot IP issues

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18 hot IP issues (mostly patent, some trademark and other internet-related.)

Why are you reading this?

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Ending his guest-blogging stint at L³, Milbarge riffs about the point of blogging (“blog groupies”).
Now, I am wondering: who is reading this? Why?
If I don’t know you, how did you find the site? If I do know you, are you reading through a news aggregator or by visiting the site on occasion. If you’ve told me previously, “No, I don’t read your web site. I have better things to do,” and yet, are reading this, let me know so that I can laugh at you.
I am curious, so please, either drop me an email, post a comment, or let me know by IM/phone/smoke signals/in person.

I don’t know how to translate the web site statistics into a relatively accurate number of readers, but I do know that it’s many less than at Gawker & Co.…

Elmo

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Posted from a cameraphone, using Flickr

This is pretty neat and somewhat useless, but I can now post blurry, low resolution photos directly from my phone.

Useless

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Frank Field wonders: is anybody else sick of the new NYTimes RSS feeds? (first noted here on Jun. 28):

I do know that these new feeds are far less useful to me, and have gotten me started on looking for new strategies, new aggregators and new tools for collecting, sorting and archiving feeds.

These new feeds are less than useless. While the limited article selection and the removal of the Dining In/Dining Out feed are annoying, the new feeds have one major flaw: NetNewsWire does not even recognize the URLs in the feeds, so it is impossible to click through from the feed to the article on the NYT site.

Pierless

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Manhattan- Hudson River shore at Riverside Park South
See also:
Photos at lightningfield.com
NY Times: Pierwise, One Person’s Wreck Is Another’s Art

Oops

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Ministry of Mobile Affairs (MoMA) is forced to change the name of its new gaming system because it neglected to run a trademark search before choosing a name: MoMA’s Trademark Flaw is Irresistable, No More Eve

If you are looking for a page that belongs to the Ministry of Mobile Affairs Inc, please note that due to a trademark issue this website has been temporarily suspended. The Ministry of Mobile Affairs’ mobile gaming product, formerly codenamed “Eve”, shall be renamed and this website relaunched. “Eve” is in fact a registered trademark of CCP Ltd., an Icelandic company. We appreciate their graciousness in notifying us of the issue in a cordial manner.

By the way, The Museum of Modern Art (MoMA) might want its acronym back…

With Pictures

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Edward Samuels: The Illustrated Story of Copyright

Appetite for Litigation

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The AP reports: Judge Reject’s Axl’s Case to Stop Album

A federal judge has rejected a request by singer Axl Rose to stop an independent record label from releasing an album called “Hollywood Rose: The Roots of Guns N’ Roses.”… U.S. District Court Judge Gary Allen Feess denied the request for an injunction by citing the “nominative fair use” doctrine.

The nominative fair use doctrine is a creation of the Ninth Circuit, first introduced by Judge Kozinski in New Kids on the Block v. News America Publishing. Nominative fair use allows a person to use another’s trademark for commercial purposes if the mark is used to describe the mark owner’s goods or services and the use meets the following three criteria:

1. the product or service in question must be one not readily identifiable without use of the trademark;
2. only so much of the mark or marks may be used as is reasonably necessary to identify the product or service;
3. the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

For more about nominative fair use, check out the books at your local library, or see the following links:
Brother Records, Inc. v. Jardine, 318 F.3d 900 (9th Cir. 2003)
PACCAR Inc. v. TeleScan Technologies LLC, 319 F.3d 243 (6^th Cir. 2003) (6th Circuit declines to recognize nominative fair use doctrine.)
Chad Dollinger, Nominative Fair Use: Jardine and the Demise of a Doctrine 1 Nw. J. of Tech. & Intell. Prop. 5 (Spring 2003).
Michael J. Smith, A Beach Boy, A Playmate And Five Guys From Boston Walk Into A Courtroom…

House Hearings

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Gov. Computer News reports on e-voting hearings before the House Administration Committee: Lots of questions, few clear answers on e-voting

Computer security experts and election officials debating the merits of paperless voting before a House committee today presented widely differing opinions about the security of electronic voting.
One area of agreement among witnesses before the Committee on House Administration was that absolute security is impossible and the standard that direct-recording electronic voting machines must meet is “secure enough.”

(via beSpacific)

iTunes Takes Europe

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Harvard Berkman Center Digital Media Project: iTunes Europe: A Preliminary Analysis

[This] report considers the legal foundation of iTunes Europe and the interplay of the service with European law.  The report examines the implications of the expansion of iTunes on the future of digital media, technology, business strategies, and international law.

DRM basics and beyond

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John T. Mitchell introduces the law and policy of DRM in DRM: The Good, the Bad, and the Ugly

This paper suggests that good DRM should be encouraged and refined, bad DRM should be examined using traditional antitrust principles under a “rule of reason” analysis to determine whether harms are outweighed by the benefits, and all ugly DRM should be condemned and prosecuted as vigorously as is copyright infringement. There is excellent legal precedent for this approach. One of the most amazing features of the digital revolution is that prosecutors and regulatory agencies have failed to see how easily the legal principles developed in the analog world can be made to apply in the digital age.

RFID and Privacy

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Two quick links for your perusal and enjoyment:
Wired Magazine on the promise and perils of RFID: Attention, Shoppers: You Can Now Speed Straight Through Checkout Lines
A blog covering privacy law and data protection: PrivacySpot.com

State FOI Laws

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State Freedom of Information Laws

Reading List

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Lately, I have had the chance to read for personal enjoyment, rather than just for school. Here are some of the books which I have read, re-read or am (once again) planning to read:
Positively Fifth Street
James McManus went to Las Vegas to cover the 2000 World Series of Poker and the concurrent trial of the murderers of World Series host Ted Binion. McManus ended up using his advance to enter the World Series. The book winds back and forth between McManus playing poker, history of the event and the trial, in the spirit of Hunter S. Thompson.
Player Piano
I decided to reread Kurt Vonnegut’s first novel, about a dystopian society where most humans are rendered obsolete and unemployed by the advent of automation. Replace automation with cheap, outsourced labor and the book remains especially relevant. I also re-read some short stories in Welcome to the Monkey House.
Counting Sheep
I have not been sleeping well lately. While this book is not helping me to sleep better, it is interesting to learn about the biology of sleep and dreams.
Inner Game of Golf
My outer game of golf isn’t that great, but improving my inner game can’t hurt.
The Power Broker: Robert Moses and the Fall of New York
Perhaps I will actually start reading this biography after it’s been sitting on my shelf for at least one year.

Download this

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Via Kevin, this NYT article reveals the shocking truth that downloads from iTunes are lossy compressed audio, just like most downloads from legit sources or illicit P2P: From a High-Tech System, Low-Fi Music

Love the iPod, but don’t jump too hastily to fill it with thousands of dollars of iTunes. The tracks are not carbon copies of the CD originals, but compressed versions. The smaller files are handy for speedy downloads, space-saving for storage and perfectly serviceable for listening through ear buds when riding on the subway. Not what you will want, however, when your desktop computer becomes the home jukebox and wirelessly sends these simulacra to the entertainment center in the living room.

Audio fidelity is not the only compromise exchanged for the ease and convenience of downloading: files with DRM are more limited than those without.
While Stross does compare the bit rate of the various services, he neglects to compare the compression technology. Without knowing what codec is used, bit rate alone does not provide a useful guide to comparing the sound of compressed files.
At 128kbps, AAC sounds significantly better than 128 kbps MP3. Likewise, the WMA codecs used by Napster, MusicMatch and other Windows download services sounds better at 128kbps than MP3 at the same bit rate. The Slashdot discussion scrapes the surface of codec geekery: Are iTMS’s 128kbps Songs Worth Collecting?
For the audio purists, some niche download sites offer music in lossless format. Live Phish offers just that, in the lossless FLAC format, for Phish fans willing to commit the extra disc space and pay $12.95 per recorded show, rather than the $9.95 for MP3’s. More than 14,000 concert recordings are available for free download in lossless SHN and FLAC formats from the Internet Archive Live Music Archive.
In October, I compiled a comparison of many various legit download services, which is now out-dated. Since then, all the services have added to their catalog– Apple now offers more than 700,000 tracks and has served nearly 100 million downloads. Wal-Mart, Sony and others have launched their own download services. For a more current list of many of the legit sites, CD Baby lists the many download sites with which it has partnered for its digital distribution program.
Thanks to CD Baby, it is easy for nearly any recording artist to sell tracks through a legit download service. For example, Havin’ Fun, Soundin’ Good is now available on iTunes. Nifty.
Update (July 8): Two more responses:
Scott Rosenberg: Stop, hey, what’s that sound?: ” The record labels are selling lossy versions of songs online because they still distrust the new medium, even when it is being used legally and when people are paying for their product. They’re more interested in propping up their sagging CD business than in quickly exploiting a new marketplace”
Steven Berlin Johnson: Does The iPod Play Eight-Track Tapes? “There is, as far as I know, pretty much universal consensus that AAC files sound better at lower bit rates than MP3s. I’ve done a number of side-by-side comparisons, and to my ears, a 128-bit AAC sounds as good as a 192-bit MP3.”

Filter this

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NY Times: Internet Filters Are: [Good] [Bad] [Both]

In a case decided by the Supreme Court last week, the American Civil Liberties Union had argued that Internet filters are a great way to protect children from pornographic material online. But in a case decided by the Supreme Court last year, the A.C.L.U. argued against a law requiring filters in schools and libraries, and the organization attacked filters in a 1997 paper that said “rating and blocking proposals may torch free speech on the Internet.”

Requiring filters dissuades free speech, but the availability of filtering software promotes free speech more than censorship.

CAN-SPAM in effect

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Massachusetts Attorney General Tom Reilly filed the first state enforcement action against a spammer under the CAN-SPAM Act.

VoIP is not a telephone

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A federal magistrate rules that the NY Public Service Commission may not regulate VoIP . InternetNews.com reports: Vonage Records Regulatory Victory

A federal magistrate is poised to issue a preliminary injunction blocking New York officials from regulating broadband telephony upstart Vonage.
Magistrate Judge Douglas F. Eaton of the U.S. District Court announced late Wednesday his intent to rule against the New York Public Service Commission (PSC), and he is expected to release a written order shortly. He may also consider making the injunction permanent. A hearing to consider that move would likely come in January, Vonage said.

Adware Advertisers

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Ben Edelman examines which Advertisers are placing ads on WhenU.
News.com reports: Adware’s going mainstream

Not Legal

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CNet’s Eliot Van Buskirk looks at some “legal MP3” sites which are no more legal than free P2P software: “100% Legal MP3s,” my foot!

What these sites sell is something you can get for free from any number of Web sites: client software for accessing P2P networks such as Kazaa, WinMX, and Gnutella, along with some simple instructions on how to use them. As for the $25 charge to your credit card? None of that goes to the record labels, as some users might assume. That money generally goes to Internet entrepreneurs (actually, they’re closer to parasites) who developed none of the software or the networks their so-called products use. As for you? The fact that you paid $25 to some guy in Romania changes nothing except your bank account balance. Your potential legal risk of being sued by the RIAA for making music available for sharing is unchanged.

Declare

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AndrewRaff.com turned 4 years old in June!
In what’s become a yearly tradition:

In Congress, July 4, 1776. The unanimous declaration of the thirteen United States of America.
And then I go away for the weekend…

RIAA Lawsuits Unpopular

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Here’s a real surprise: RIAA Lawsuits Unpopular with Americans

According to the FindLaw survey, 56 percent of American adults oppose the lawsuits. Thirty-seven percent support the industry’s legal actions. Seven percent of those surveyed had no opinion. One thousands adults were surveyed, with results accurate plus or minus three percent.

No Trademark for Patents.com

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“.com” is a top-level domain indicator without any source-identifying significance, so patents.com is merely descriptive for patent registration software and not registrable as a trademark. In Re: Oppendahl & Larson LLP (Fed. Cir. Jun. 25, 2004)

Exterminate Licensing

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A copyright licensing dispute prevents “TV’s most evil villains,” the Daleks, from appearing in the BBC’s latest Dr. Who series. BBC News: No Daleks in Doctor Who’s return.

Fans had hoped to see the Daleks’ return in the series, scheduled for release on BBC One in early 2005, but feared copyright issues might stand in the way.
The BBC spokeswoman said: “The BBC offered the very best deal possible but ultimately we were not able to give the level of editorial influence that the Terry Nation estate wished to have.”
But an agent for the Nation estate accused the BBC of ignoring copyright laws and said the corporation was trying to “ruin the brand of the Daleks”.

Real estate photos not really infringing

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In CoStar Group, Inc. v. LoopNet, Inc., the Fourth Circuit holds that an ISP or web site publisher is not liable for direct infringement of copyright by providing a service where users could possible infringe upon copyrights.
LoopNet is a provider of commercial real estate information. Sellers of real estate may upload information about a property to LoopNet’s database. Users may upload photographs of the property. Some users uploaded CoStar’s copyrighted photographs to LoopNet’s database.
In order to “establish direct liability under §§501 and 106 of the [Copyright] Act, something more musts be shown than mere ownership of a machine used by others to make illegal copies. there must be actual infringing conduct with a nexus sufficiently close and casual to the illegal copying that one could conclude that the machine owner himself trespassed on the exclusive domain of the copyright owner.”
CoStar argues that because LoopNet’s conduct does not fall within the DMCA safe harbor provision, LoopNet should have no immunity. The court rejects this argument, finding that the DMCA does not overrule Religious Technology Center v. Netcom On-Line Communications Services and common law interpretations of §§501 and 106. “It is clear that Congress intended the DMCA’s safe harbor for ISPs to be a floor, not a ceiling of protection.”
“ISPs when passively storing material at the direction of users in order to make that material available to other users upon their request, do not “copy” the material in direct violation of §106 of the Copyright Act.” An ISP can become indirectly liable upon a showing of additional involvement sufficient to establish a contributory or vicarious violation of the act. Where a LoopNet employee’s review of uploaded photographs is so cursory as to be insignificant, that should not be considered volitional conduct and therefore, LoopNet is not liable for direct copyright infringement.
CoStar Group, Inc. v. Loopnet, Inc., 03-1991 (4th Cir.,  Jun. 21, 2004). (via The Trademark Blog

Canada: ISPs are like common carriers

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In Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers, 2004 SCC 45 (Jun. 30, 2004), the Supreme Court of Canada examines whether ISPs are liable for copyright royalties.
First, the court examines when the Copyright Act should apply to international internet transmissions. A “real and substantial connection to Canada” is sufficient to apply the Copyright Act to international Internet transmissions. Such a connection may be found by evaluating the locations of the content provider, the host server, the intermediaries and the end user.
An ISP which acts as a common carrier should not be liable for infringement in the transmissions of copyrighted works over its network:

A content provider is not immune from copyright liability by virtue only of the fact that it employs a host server outside the country. Conversely, a host server does not attract liability just because it is located in Canada. The liability of a host server should be determined by whether or not the host server limits itself to “a conduit” (or content-neutral) function.

An ISP may create a cache copy, because as a serendipitous consequence of improvements in Internet technology, it is content neutral, and “ought not to have any legal bearing on the communication between the content provider and the end user.”
Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers, 2004 SCC 45 (Jun. 30, 2004)

Improving the reliability of E-Voting

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The Brennan Center for Justice and the Leadership Conference on Civil Rights released a set of common-sense Recommendations for Improving Reliability of Direct Recording Electronic Voting Sysytems

Kickball

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Kickball is ON today. At Hecksher Field in Central Park. It’s in Central Park, just west of the baseball fields in the SW corner, NW of the playground, rough equivalent of 63rd St and 7th Ave.

Ashcroft v. ACLU link roundup

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Justice Dept. Dir. of Public Affairs: Regarding the Supreme Court’s Decision on the Child Online Protection Act:

Our society has reached a broad consensus that child obscenity is harmful to our youngest generation and must be stopped. Congress has repeatedly attempted to address this serious need and the Court yet again opposed these common-sense measures to protect America’s children. The Department will continue to work to defend children from the dangerous predators who lurk in the dark shadows of the World Wide Web.

Ernest Miller: First Thoughts on Ashcroft v. ACLU: “The least restrictive means in this case are filters. Yea filters! Go filters! The opinion reads like a censorware author’s dream marketing campaign.”
Lawrence Solum: Ashcroft v. ACLU
Lyle Denniston: Sex, the Internet and congressional frustration

The Supreme Court, telling Congress for the third time that it has only limited power to try to censor sexually explicit material on the Internet, dropped a broad hint today that the lawmakers may be doomed to frustration if they try again. Because technology is advancing so rapidly, the Court said in blocking enforcement of the Child Online Protection Act, Congress may find that it has laid down rules based on a current state of technology only to see the rules become outdated through years of court review.

Eugene Volokh looks at the case and asks: “what does “prurient” mean here?”
Lawmeme: Ashcroft v. ACLU: Evaluation

Justice Breyer makes a very good point in dissent: The majority here that wholeheartedly endorses the effectiveness of filtering software is mostly the same as the dissenters who unhappily listed the faults of filtering software in the American Library Association case. Indeed, Justice Breyer seems to make a special effort to list the exact text of the dissenting opinion’s criticisms in ALA.

NY Times: Justices Uphold Block of Web Porn Law but Send Case Back

The majority explicitly stopped short of deciding whether the law is constitutional. That is a question that can only be answered after a trial, the majority said, even as it acknowledged that the rapid advances in Internet and computer technology make it difficult to foresee what all the issues at a trial will be.

Washington Post: Justices Leave Online Porn Case Unresolved

One COPA supporter said that the court is exceeding its powers. “This is akin to judicial tyranny,” said Patrick Trueman, senior legal adviser at the Family Research Council and former chief of the child exploitation unit at the Justice Department’s Criminal Division. “The court is dismissing acts of Congress which reflect the will of the people… This decision says to pornographers that you have a green light to distribute material to children.”

Ashcroft v. ACLU

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The Supreme Court released its decision in Ashcroft v. ACLU, upholding the injunction on the Child Online Protection Act (COPA), because the statute likely violates the First Amendment.
The decision is 5-4. Justice Kennedy delivered the opinion, joined by Stevens, Souter, Thomas and Ginsburg. Stevens filed a concurring opinion, joined by Ginsburg.
Scalia dissented.
Breyer dissented, joined by Rehnquist and O’Connor.
Now, off to read the decision.

Taxi Confidential

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Taking a taxi for the first time since the fare hike last month, I was shocked at the cost. Both rides I took this weekend– one between Brooklyn and Manhattan and the other between Williamsburg and Brooklyn Heights– cost nearly 50% more than prior to the fare increase.

Gothamist covered the fare hike when it happened: Taxi Fares Go Up Today and The Taxi Fare Increase After 10 Days. Gotham Gazette analyzed the Taxi Fare Hike. New Yorkish looks into the future, all the way to: New York in 20 years
Taxi Blog gives a driver’s perspective on the new fares: “Overall, drivers will end up consistently making more. By October. I fully expect this summer to be a disaster, business-wise.”
If taxi rides weren’t a luxury before, they certainly are now and make the $70 Metrocard seem like a great deal.
Of course, the subway is becoming more interesting every day (if interesting means dangerous.)

Investigating E-Vote Officials

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Wired News: Digging for E-Voting Skulduggery: “The woman who launched the controversy over electronic voting machines has formed a nonprofit consumer group that plans to investigate election officials who may have conflicts of interest with voting companies.”
BlackBoxVoting.org

Every Gator has its day in court

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The 9th Circuit held oral arguments en banc on Wednesday in Gator.com v. L.L. Bean, 02-15035. The 9th Circuit panel decisions is Gator.com v. L.L. Bean, 341 F.3d 1072 (2003).
Here is a background at FindLaw: The Ninth Circuit to Look at Internet Jurisdiction: Does Business Conducted in Cyberspace Satisfy the Requirements of Continuous and Systematic Contact?
Law.com: 9th Circuit Snaps at Gator’s Argument

The en banc arguments were lively, with nine of the 11 judges questioning lawyers about the benefits — and dangers — of allowing Gator.com to sue L.L. Bean Inc. over pop-up advertising that the latter says infringed on its intellectual property.

Joe Gratz: Gator.com v. L.L. Bean

The en banc panel focused more than I expected on the jurisdictional effect of the cease-and-desist letter. On one hand, L.L. Bean lobbed this potentially damaging document into California, and causing damage within the jurisdiction makes jurisdiction proper. On the other hand, all L.L. Bean was doing was enforcing their trademark rights, which they had a legal duty to do; the C&D wasn’t intended to cause any damage, only to ask Gator to stop infringing. Toward the end of the oral argument, L.L. Bean’s attorney (who was doing a great job with a hard case) made the point that they had no other way to tell Gator to stop, so if the court held that sending C&Ds caused personal jurisdiction to attach, every IP owner would be instantly amenable to suit anywhere someone infringed their IP rights, if they told the infringer to stop.

Future of P2P in the Senate

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Earlier this week, the Senate Committee on Commerce, Science & Transportation held hearings on The Future of Peer-to-Peer (P2P) Technology

The Act formerly known as Induce

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Ernest Miller: The Obsessively Annotated Introduction to the INDUCE Act
News roundup at FurdLog: IICA (née INDUCE) Act Coverage
Chirs Rush Cohen: INDUCE Act inducing me to do lots of research
EFF lawyers drafted a fake complaint which could be filed if the Induce Act passes: Prelude to a Fake Complaint

When the lawyers at EFF first sat down and asked “Whom could we sue under the Induce Act if we were an abusive copyright holder?” the answer was clear: pretty much everybody. Playing the devil’s advocates, we knew we could draft a legal complaint against any number of the major computer or electronics manufacturers for selling everyday devices we all know and love—CD burners, MP3 players, cell phones—and that with that complaint, we could file a lawsuit that would survive any attempt to dismiss it before trial, costing the targeted company up to $1,000,000 per month in legal fees alone. The Induce Act is a nasty, brutish stick in the hands of the wrong plaintiff.

Gee, mail

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I have a few GMail invites available for whomever wants one.

Not just the subway

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Apparently, Time Warner does not want photographers to take pictures of the Time Warner Center:

“You’re not allowed to photograph the structure of the building,” Ms. Siesel quoted the first guard as telling her. She showed them her press identification card, issued by the Police Department, and insisted that she was within her rights to photograph a building from the public way on assignment. But she said the second guard told her, “If you persist, I’m going to call the police.” Pressed, he backed down from this threat.
Though unfamiliar with the particulars of the encounter, Mr. Himmel said, “If someone on our security force stopped a photographer from a newspaper from photographing the building, they probably overstepped.”
“There should be no restrictions in terms of the public’s ability to photograph the building from the outside,” he said, “because it’s a public space.”

New York Times: Amid All the Signs, Confusing a Circle for the Square (via Curbed.)

Utah Anti-Spyware Law Enjoined

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News.com: Utah judge freezes anti-spyware law

A Utah judge has granted an injunction to adware maker WhenU.com to temporarily halt the state’s new anti-spyware law from going into effect.

Boucher on tech legislation

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News.com’s Declan McCullagh interviews Rep. Rick Boucher (D-Va) about copy protection, the DMCA and Digital Media Consumers’ Rights Act and regulating VOIP: The Hill’s property rights showdown:

Our intellectual-property laws have always been intentionally porous, and the porous nature of those laws, accommodating, for example, the Fair Use Doctrine, has enabled the society to have a right to use intellectual property in certain circumstances without having to obtain the permission in advance of the owner of the copyright.

BusinessWeek intro to adware

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BusinessWeek is running a feature about adware in its June 28 issue: Guess What — You Asked For Those Pop-Up Ads

Once adware recipients find out what’s going on, many want out. Half of all people that receive Claria’s adware product, for example, uninstall the software within the first month, the company says. This continual attrition forces adware companies to step up the battle for footholds in more computers. Robert Kadar, a former executive director of sales at WhenU, still defends adware as an effective marketing tool, but notes that the adware companies “have internal tension between wanting to be a good corporate citizen and battling high customer turnover.” The latter, he says, “always wins out.” As it now stands, Claria’s Gator program is on 43 million machines, WhenU is on 25 million PCs, and 180solutions reaches 30 million, according to the companies.

Graphics: Adware: Who’s Who and Avoiding Adware
Interviews: Avi Nadler (WhenU CEO) and Ben Edelman (anti-spyware activist)

It slices, it dices

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A recent study finds that camera phones produce images better than disposable film cameras: Camera phone images print better than single-use cameras. While the new camera phones evaluated in the report may be higher quality, the camera in my phone will not be replacing my vintage 1999, 1.3 megapixel digital camera any time soon. The quality of the camera phone images is not even good enough for posting to the blog:

To Space and Back

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Today, the first civilian astronaut, Mike Melvill, reached the same milestone that Alan Shepard did <a href=“http://en.wikipedia.org/wiki/Freedom_7>43 years ago. Space.com: First Civilian Astronaut Pilots SpaceShipOne into Suborbit and Complete SpaceShipOne coverage.

Wired News: Space Shot on a Shoestring 

[Paul] Allen said. “I hope this is the inspiration for a new generation.”
But for Rutan, Monday’s launch is partly about a once-in-a-lifetime R&D project and partly about a crusade to break down the barriers he says are keeping everyday citizens out of space.
“Obviously there is an enormous pent-up hunger to fly in space and not just dream about it,” he said. “The new private space entrepreneurs have a vision — I’m one of them. We do want our children to go to the planets. We are willing to seek breakthroughs by taking risks.”

A year ago, Wired Magazine featured Scaled Composites White Knight on its cover in an article about the Allen/Rutan partnership and private spaceflight: The Right Stuff
Perhaps this will be the start of a new space race, with private companies competing to explore outer space.
Over in the public adventures in space exploration, a panel of experts believes the Bush administration plan to go to the Moon and Mars on the cheap is theoretically feasible. However, the NY Times looks at the report and finds: “The 60-page document amounts to a pep talk that is too skimpy to be persuasive.”

Spruce

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If I ever started a Bruce Springsteen cover band, I’d have to call it Spruce Bruce:

Draft Bruce to play a benefit across the Hudson at Giants Stadium on September 1, while the Republicans nominate their presidential candidate. Sheila Lennon interviews Draft Bruce’s Andrew Rasiej.

Easy as 1-2-3

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ESPN/ABC Sports broadcast this year’s NHL Stanley Cup Finals as well as the NBA finals. Hockey coverage on the Disney-owned networks has always been haphazard and mediocre at best. Apparently, their basketball broadcasts suck, too. Outside of football (which it does well), can ESPN actually televise sports properly, or is it just best at highlights?
In other hockey off-season news, The Hockey Rodent finds that neither players nor owners supports the interests of fans: And They Know Who They Are

Induce Act Roundup

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Fred von Lohmann broke the news that song writing Senator Orrin Hatch plans to introduce the awkwardly-named INDUCE Act (“Inducement Devolves into Unlawful Child Exploitation Act of 2004”), which amend §501 of the Copyright Act to add inducement to copyright infringement as another ground for copyright infringement. von Lohmann:

Even a moment’s reflection should make the danger to innovators clear — you now have to worry not just about contributory and vicarious liability, but an entirely new form of liability for building tools that might be misused. It will be interesting to see whether the bill expressly precludes any Betamax-type defense

Susan Crawford: Here’s something to worry about:

‘Induce’ means intentionally aids, abets, counsels, or procures.  So you can’t even hire a lawyer if you’re doing something risky.
This is amazing.  Now we’re waaaaaay beyond contributory and vicarious theories of liability, which are court-created and pretty darn broad on their own.  See Napster 9th Circuit, Aimster 7th Circuit.  It’s not even clear what the limit to this is — “aids” could mean that even something that would have been fair use under the Sony Betamax decision is now an illegal inducement. 

Under current copyright law, decentralized P2P networks like Gnutella or Kaaza, which have significant, non-infringing uses, do not themselves infringe upon copyrights. However, they might be considered to induce uploaders to infringe copyrights by making it so easy to copy files.
In News.com, Declan McCullagh writes: Antipiracy bill targets technology

forthcoming bill in the U.S. Senate would, if passed, dramatically reshape copyright law by prohibiting file-trading networks and some consumer electronics devices on the grounds that they could be used for unlawful purposes.

Inducement already exists in patent law. See 35 U.S.C. 271(b): “whoever actively induces infringement of a patent shall be liable as an infringer.” Of course, patent law provides for much stricter protection against infringement for a shorter time period than copyright law. Copyright law offers longer protection, but with limitations such as fair use. Copyright law may also have more significant First Amendment implications.
Ernest Miller: INDUCE Act is Free Speech Killer

It also seems to me that this statute as applied to speech is a content-based restriction, which means that it is subject to what is known as “strict scrutiny.” In order to pass the strict scrutiny standard, the law must be “narrowly tailored” to meet a “compelling government interest.” I’ll grant that preventing copyright infringement is a “compelling government interest” but I’ll be damned if the law is narrowly tailored to achieve it for a number of reasons. For example, much speech that induces infringement also induces fair use. You can’t really stop one without stopping the other.

Blogging the Oracle Anti-Trust Trial

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In June 2003, Oracle made an unsolicited tender offer to buy PeopleSoft, a competitor in the enterprise software market. If the hostile takeover was successful, a combined Oracle-PeopleSoft would dominate certain markets. The US Department of Justice filed a civil anti-trust suit to prevent that acquisition from proceeding.
PeopleSoft is not a party in the lawsuit, but one of PeopleSoft’s lawyers, Gary Reback, is sitting in on the trial and blogging daily notes
(via Ernie the Attorney)

Those wacky libertarians

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Yesterday, the Cato Institute held a conference on Law and Economics of File Sharing & P2P Networks. According to Digital Music News, this was “one of the best [conferences] in digital music this year,” so it might be worthwhile checking out the webcast.
Cato’s Adam Thierer suggests forgoing copyright legislation for judicial resolution of copyright claims:On Drawing Lines in Copyright Law

But how we call in the cops and who the IP cops are makes a big difference. In particular, we shouldn’t expect Congress or regulatory agencies to legislate on every problem that creeps up or ban or mandate specific technological solutions in an attempt to solve IP debates. But when certain parties are egregiously violating the rights of copyright holders, they are certainly justified in seeking redress in the courts. Common law resolution to copyright disputes has the advantage of avoiding a hasty, ham-handed legislative quick fix. As has been the case throughout most of copyright’s history, courts can sort through rival claims to determine where the creators’ concerns have merit and where the rights of consumers should instead carry the day

(via Joe Gratz)

Inspiration or Infringement?

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Last year, the son of photographer Guy Bourdain sued Madonna claiming that the video for the song “Hollywood” infringed on Bourdain’s copyrighted photography, because the video adopted a similar style to Bourdain’s noir photos. They settled earlier this month.
Now, lets look at some robots. Low Culture suggests, Twentieth Century Fox, meet award-winning director Chris Cunningham and notes that the visual style of the upcoming film I, Robot (based on the Isaac Asimov book) is visually similar to the video for Bjork’s song All is Full of Love.

Should this kind of visual homage be considered a type of copyright infringement? If so, how much style comprises an expression, rather than an idea?
(via Gothamist)

Music industry donates only top-shelf albums

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As part of the music industry price-fixing class action settlement, the music industry agreed to donate CDs to schools and libraries, at an estimated cost of $76 million. What are some of the CDs that the libraries are receiving?
One 10-library system received 1325 CDs. 482 of those CDs are:

57 copies “three mo’ tenors” (2001)
48 copies Mark Willis “loving every minute” 2001 (country)
47 copies “corridos de primera plana” by “Los Tucanes di Tijuana” (2000)
39 copies of “Christmas with Yolanda Adams”
37 copies of Michael Crawford’s “A Christmas Album” (Phantom of the Opera Broadway guy)
34 copies of the Bee Gees’  “This Is Where I Came In ” (2001)
34 copies “The Collector’s Series, Vol. 1” by Celine Dion
27 copies of a recording of Puccini’s Madam Butterfly
24 George Winston’s December (1982) (solo piano, jazz or new age)
23 copies of Aerosmith’s “Just Push play” (2001)
23 copies “A smooth Jazz Christmas” by Dave Koz and friends
21 copies of Son by four’s “Purest of Pain” (Latino pop band)
20 copies “symbols of Light” by Greg Osby (jazz)
20 copies “My kind of Christmas” by christina Aguilera
18 copies of Thalia’s “grandes exitos” (Latina artist, means “greatest hits”)
10 copies “A New day has Come” by Celine Dion

Nothing but the best.
MSNBC: Librarians: Free CDs too much of a good thing

Is DRM bad business?

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Cory Doctorow tells Microsoft why DRM is bad business:

Here’s what I’m here to convince you of:

1. That DRM systems don’t work
2. That DRM systems are bad for society
3. That DRM systems are bad for business
4. That DRM systems are bad for artists
5. That DRM is a bad business-move for MSFT

DRM frustrates the average consumer while failing to prevent outright piracy. DRM precludes innovative uses of technology. Anti-circumvention laws are anticompetitive.

Patent Rules

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beSpacific has links to the Latest Revisions to Patent Laws Available Online

FTC: Do-Not-Spam Registry is No-Go

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FTC: New System to Verify Origins of E-Mail Must Emerge Before “Do Not Spam” List Can Be Implemented, FTC Tells Congress

The Federal Trade Commission today told Congress that, at the present time, a National Do Not Email Registry would fail to reduce the amount of spam consumers receive, might increase it, and could not be enforced effectively. In a report filed in response to a statutory mandate, the FTC also said that anti-spam efforts should focus on creating a robust e-mail authentication system that would prevent spammers from hiding their tracks and thereby evading Internet service providers’ anti-spam filters and law enforcement.

Full Report: The CAN-SPAM Act of 2003: National Do Not Email Registy: A Federal Trade Commission Report to Congress (June 2004)
MSNBC: Do Not Spam list won’t work, FTC says
With a recent uptick in the volume of spam, technical means will be needed to control the deluge, because normative and legal means alone are currently insufficient. If spammers can not be convinced to play by the rules, then the physics of the ecosystem need to be changed.
Both Microsoft and Yahoo are developing technical measures to stem the tide of spam. Wired News: Net Rivals Embrace to Fight Spam. Microsoft’s approach, known as Sender ID, would “require organizations to set up e-mail servers so that they automatically verify the domain from which e-mails were sent.” Yahoo’s DomainKeys system will verify that the “from” address in an e-mail is not faked by using cryptography.
Yahoo: DomainKeys: Proving and Protecting Email Sender Identity

DomainKeys is a technology proposal that can bring black and white back to this decision process by giving email providers a mechanism for verifying both the domain of each email sender and the integrity of the messages sent (i.e,. that they were not altered during transit). And, once the domain can be verified, it can be compared to the domain used by the sender in the From: field of the message to detect forgeries. If it’s a forgery, then it’s spam or fraud, and it can be dropped without impact to the user.

Yahoo hopes that the concept will become an Internet standard.
From Microsoft, Microsoft Is Committed to Help End the Spam Epidemic and a Q&A: Microsoft’s Anti-Spam Technology Roadmap.

Soft Patents

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In a Federal Reserve Bank of Philadelphia working paper, James Bessen (Research on Innovation and Boston University) and Robert M. Hunt (Federal Reserve Bank of Philadelphia) find that software patents do not lead to an increase in software inventions: An Empirical Look at Software Patents

The authors found that during the 1990s, all else equal, firms who increased their focus on software patents tended to reduce their R&D intensity relative to their peers. This suggests that in the 1990s, software patents substituted for R&D. This negative relationship was found only in certain industries, specifically those industries noted strategic patenting.

Full Text (pdf): An Empirical Look at Software Patents (Mar. 2004). See also the less technical The Software Patent Experiment from the same authors.

Hanging chads are starting to look good

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AP: New ‘Hiccup’ for Florida Voters

The [voting[ machines, made by Election Systems & Software of Omaha, fail to provide a consistent electronic “event log” of voting activity when asked to reproduce what happened during the election, state officials said.

It’s a good thing that elections in Florida are uncontroversial and never close…

Prosecution Prompts Porn Purveyors’ Panic

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Wired News: Legal Threats Stalk Adult Sites

The landmark federal prosecution of an infamous porn producer is putting the fear of John Ashcroft into the owners of countless adult websites, even those whose content is far milder than the material under attack.
Experts told an audience of porn webmasters last weekend that they indeed have reason to worry. A variety of X-rated photos and videos could become illegal nationwide if the Bush administration scores an important victory in its war on obscenity. But the online adult industry is divided over exactly what to do about the threat from Attorney General Ashcroft and his crew.

Going International

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American Society of International Law: Guide to Electronic Resources for International
Intellectual Property Law.
(via beSpacific)

A quick one

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SCO, The Beatles, NeimanCarcass and more in Denise Howell’s latest contribution to IP Memes: Not SCO Fast — And More. Subscribe <a href=http://www.technolawyer.com/member/newsletters.htm#5"">at Technolawyer.

Fun with licensing

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Permissions on Digital Media Drive Scholars to Lawbooks

Many scholars, librarians and legal experts see rich promise for the use of multimedia materials in research and education. But the possibility of litigation over file-sharing and confusion over digital copyright protections have scholars feeling threatened about venturing beyond the more familiar world of printed texts.

Photographers and N.F.L. Collide Over Licensing Plan for Archives

On one side is the National Football League, which wants to send its archive of approximately three million images of players and games to a third-party photo agency to license; Getty Images and WireImage are the two most likely partners. The archive includes images ranging from iconic N.F.L. players to Super Bowl highlights.
Opposing the move are 75 of the several hundred photographers who created much of the archive in the last 40 years and still hold the copyrights to the images. Without their permission, the photographers say, the N.F.L. has no right to license the archive to anyone.

See New York Times Co., Inc. v. Tasini (Articles written by freelancers could not be included in a computerized database without permission.)

Broadcast This

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In the Observer (UK), John Naughton criticizes the WIPO broadcast treaty proposals: A law unto themselves

The [WIPO] meeting was assembled to discuss a draft treaty to ‘protect’ broadcasters and broadcasting signals.
For ‘protect’ read ‘unprecedented, restrictive and anti-social powers’. If enacted, this treaty would require countries to change their laws to grant broadcasters astonishing freedoms. These include: ‘the exclusive right to authorise or prohibit the fixation [copying/recording] of their broadcasts’; ‘the exclusive right to authorise or prohibit the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts’; ‘the exclusive right to authorise or prohibit the retransmission, by wire or wireless means, whether simultaneous or based on fixations, of their broadcasts’; and other rights, including control of exhibition and distribution of recordings of broadcasts.

Previously: WIPO considers broadcast flag

iTunes Takes Europe

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iTunes is available in the UK, France and Germany. Prices are £0.79/£7.99 in the UK ($1.44/$14.61) and €0.99/€9.99 ($1.20/$12.14) in France and Germany. iTunes now has 700,000 tracks.
BBC News: Europe launch for Apple’s iTunes: “ITunes will be in direct competition with Napster in the UK and OD2’s European services. ITunes music store for other European countries will launch October.”

Carnivores in Gramercy

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Yesterday, it seemed as if half of NYC was in line at the Big Apple Barbeque festival. Nevertheless, after a bit of waiting, mass quantities were consumed.
Coverage at eGullet:  ”Live” from the Big Apple Barbecue Block Party ’04
While browsing through the eGullet thread, I was rather surprised to see myself in one photo, intently watching brisket slicing at the KC Baron booth:
.
Post caption suggestions in the comments…
Other photos and reviews:
rion: big apple barbeque
Tien Mao: Big Apple Barbecue Block Party
NYC Eats: Big Apple Barbecue Block Party
The Food Section: Big Apple Barbe-queue
Jason Kottke: 2nd Annual Big Apple Barbecue Block Party
Gothamist: Gothamist Eats At The Second Annual Big Apple Barbecue Block Party

Calculating statutory damanges

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In Venegas Hernandez v. Sonolux Records, the First Circuit examined the calculation of statutory damages in the Copyright Act and decides how to calculate the number of infringements for purposes of assessing statutory damages available in §504(c):

Under § 504(c) the total number of “awards” of statutory damages that a plaintiff may recover in any given action against a single defendant depends on the number of works that are infringed and the number of individually liable infringers and is unaffected by the number of infringements of those works.

The Disctrict Court has discretion in setting the amount of statutory damages assessed per work and can take into account the number of infringements of each work when calculating the value of damages per work.
(via Copyfight)

Filesharing lawsuits popular in Europe

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The IFPI is bringing litigation against its consumers as a business strategy to Europe. Already, the IFPI has brought a number of cases across the continent. In Denmark, 17 individuals agreeing to pay compensation averaging “several thousand euros.” In Germany, one file-sharer will pay 8,000 euros. Thirty Italian individuals have been charged with criminal copyright infringement.
IFPI is extending the litigation to other countries in Europe, starting with 24 more lawsuits in Denmark. France, Sweden and the UK have “launched high-profile warning campaigns” and “will prosecute file sharers if necessary.”
Recording industry shows first results of international campaign against illegal file-sharing

IFPI Chairman and CEO Jay Berman said: “Today’s results show that litigation, combined with the rollout of new legal online music services, is having a real impact on people’s attitudes to illegal file-sharing, and this in turn is affecting levels of file-sharing activity. We are not claiming victory yet, but we are encouraged by the way the market is developing, and by the shift we see in public opinion.

Reuters reports: Music Industry Preps More Lawsuits
Mi2N: IFPI Playing [dangerously] With P2P Figures…

The beginning of this week curiously matches IFPI’s new leitmotiv “music piracy files falls 27%”. Probably the analyst who invented such statistics did not realize the amount of computing power and bandwidth it would take to verify such a statement in such a short timeframe…

WhenUtah

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A Utah Court heard oral arguments this week in WhenU’s challenge to Utah’s Anti-Spyware Act. AP: New York Company Challenges Utah’s Spyware Law

WhenU.com Inc. claims the law, which took effect last month, is “arbitrary and Draconian” and violates its free-speech rights.
WhenU lawyers told 3rd District Judge Joseph Fratto Jr. on Thursday that regulation of advertising on the Internet is a matter of interstate commerce subject to federal, not state, jurisdiction.

Courtesy of Ben Edelman, more documents in the WhenU v. Utah lawsuit.
Previously: WhenU Challenges Utah Anti-WhenU Law and complete adware coverage.

Claria countersues LL Bean

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ClickZ: Claria Fires Back at L.L. Bean Suits Against Advertisers

Claria’s lawsuit, filed in the Eastern District of Texas, claims that L.L. Bean intentionally interfered with existing and potential contractual relationships by suing Claria advertisers. It also accuses the retailer of disparaging its business and conspiring to intimidate Claria’s customers and potential customers.

Previously: Pop-Ups Trigger More Lawsuits and All about adware
(via The Trademark Blog)

Set the phones free

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The Foundation for Taxpayer and Consumer Rights filed a lawsuit against AT&T Wireless, T-Mobile USA and Cingular Wireless claiming that selling cell phones unnecessarily “locked” to a particular service violates California’s unfair competition laws, (Bus. & Prof. Code §§17200 et seq. and §§17500 et. seq.).
GSM phones use SIM cards to store the phone’s identity– its phone number, association with a cell network, and contacts. The SIM card may be swapped out, so that a mobile phone owner can swap back and forth between different devices and still receive calls at the same number and use the same service. One can also swap a different SIM card into one’s phone when traveling to a different country and using a different network or when switching carriers.
GSM carriers in the US all sell subsidized phones “locked” to that particular service– so that subscribers can not use their phones on different services. Verizon and Sprint use CDMA technology, which does not offer the same kind of flexibility as the GSM standard– CDMA phones do not use SIM chips.
In Europe, the EC ruled that handset locking would be hamrful to competition and warned manufacturers and network operators not to produce and/or sell locked phones in the EU.
The California law prohibits the use of lawful, unfair or fraudulent business acts or practices and unfair, deceptive, untrue or misleading advertising.
The complaint alleges that this is an unfair and anticompetitive way to tie consumers to a particular service in addition to multi-year contracts. Carriers argue that this is necessary in order to recover the subsidy of the phone. Locked phones encourage wasteful practices by not allowing consumers to continue using perfectly good phones on other services.
A blanket refusal to unlock phones is anti-competitive and, since the advent of number portability, merely another way to create friction to prevent customers from switching to other services. I have a cell phone locked to Cingular. When I called up Cingular customer service to cancel my service, after porting my number to another carrier, I asked to have my phone unlocked, and the representative said that she could not, because it was against the company’s policy to do so.
(via Mobile Tracker)

Takedown and dirty

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Do ISPs have the potential to step into the role of Internet censor or copyright police?
Christian Ahlert: How Liberty was lost on the internet

As part of a recent research project, I posted a section of Mill’s On Liberty on the internet (which is clearly in the public domain), then issued unfounded copyright complaints against it (1). One internet service provider (ISP) removed the chapter almost immediately. This illustrates the problem with self-censorship procedures, which rely on hidden judgements being made by unaccountable bodies.

The authors found that the UK ISP shut down the site almost immediately after receiving the complaint, made on behalf of the chairman of the non-existent John Stuart Mill Heritage Foundation. In contrast, the US ISP follow up requesting answers to detailed questions in compliance with the DMCA notice and takedown provision.
Perhaps the DMCA does serve free speech interests. What role should ISPs play in controlling the distribution of copyrighted material? Do the DMCA notice and takedown provisions (17 U.S.C. §512) give too much power to copyright holders, ISPs, or copyright infringers?
The full study is supposedly available here (currently, the “file [is] not found” on the server.)
(via Joe Gratz)

Anti-Spam in the EU

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BBC News: United front against spam urged

[EC’s Information Society directorate Philippe] Gerard said that this directive had now been transposed into national laws in many member nations, but that by itself, it was not going to stop spam.
“Legislation is just part of the answer,” he said.
The threat of legal action might deter some spammers from getting started and would help punish those that break the law, said the EU official, but there was much more that industry had to do to make its anti-spam work really effective.

Summertime Mirage

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With the temperature passing 90

WIPO considers broadcast flag

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Cory Doctorow, Wendy Seltzer and David Tannenbaum took notes from the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights (SCCR 11) meeting to consider a treaty to protect broadcasters’ rights.

Get your kickball on

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Kickball season is underway! Thursday, from 6 PM on at Hecksher Field in the southwest corner of Central Park. There’s no fancy website like Brooklyn kickball, but it’s a fun game nonetheless.
Make that NEXT Thursday, June 17. Tonight is called off on account of rain…

iTunes goes mobile

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BBC News: Apple iTunes ‘set for UK launch’: “ITunes is due to be unveiled in London on 15 June, according to sources. Apple’s rival Napster launched a legal download service in the UK on 20 May.”
Today, Apple released AirPort Express and AirTunes. The $129 device enables the wireless streaming of music from a computer to a stereo.

Patently portable

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Sony settles patent suit with inventor of the “Sterobelt,” a portable music player which preceded the Walkman. The inventor now plans to go after Apple. News.com: Sony pays millions to inventor in Walkman dispute

America’s Favorite Pasta?

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In American Italian Pasta Co. v. New World Pasta Co., the Eight Circuit held that the use of the phrase “America’s Favorite Pasta” does not constitute false or miselading advertising under

Win one…

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Nearly ten years ago, Ronald Reagan announced that he had been diagnosed with Alzheimer’s Disease. Alzheimer’s is a neurodegenerative disease that causes the gradual loss of brain cells and results in memory loss and dementia.
Those who believe they follow in the legacy of Reagan are the same ones who would condemn others to the same tragic fate.
Stem cell research appears likely to lead to a cure for Alzheimer’s as well as for diseases like Parkinson’s and ALS. Yet, the Bush Administration is doing as much as possible to hinder stem cell research in the US.
Earlier this year, Nancy Reagan passionately advocated ending political opposition to stem cell research, because of the potential benefits for medicine. Opposition to stem cell research may prevent the discovery of a treatment for Alzheimer’s.
Watching a loved one slip into the clutches of the disease is a miserable experience. Gradual loss of lucidity eventually becomes a realization that the person is no longer with you, while the body remains as a mere shell.
Support research into Alzheimer’s disease. End the federal prohibition on funding for stem cell research with new cell lines. Let’s prevent suicide by pseudoscience, keep American science from succumbing to Lysenkoism, and support efforts to find a cure for Alzheimer’s, ALS and other neurodegenerative diseases.

What is a Billiken?

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Judge Evans’ opinion in Crue v. Aiken features an interesting analysis of college nicknames and mascots:

In the Seventh Circuit, some large schools—Wisconsin (Badgers), Purdue (Boilermakers), Indiana (Hoosiers), Notre Dame (The Fighting Irish), DePaul (the Blue Demons), the University of Evansville (Purple Aces), and Southern Illinois (Salukis)—have nicknames that would make any list of ones that are pretty cool. And small schools in this circuit are no slouches in the cool nickname department. One would have a hard time beating the Hustlin’ Quakers of Earlham College (Richmond, Indiana), the Little Giants of Wabash College (Crawfordsville, Indiana), the Mastodons of Indiana University-Purdue University-Fort Wayne (Fort Wayne, Indiana), and the Scarlet Hawks of the Illinois Institute of Technology….
For major universities, one would be hard pressed to beat gems like The Crimson Tide (Alabama), Razorbacks (Arkansas), Billikens² (St. Louis), Horned Frogs (TCU), and Tarheels (North Carolina). But as we see it, some small schools take the cake when it comes to nickname ingenuity. Can anyone top the Anteaters of the University of California-Irvine; the Hardrockers of the South Dakota School of Mines and Technology in Rapid City; the Humpback Whales of the University of AlaskaSoutheast; the Judges (we are particularly partial to this one) of Brandeis University; the Poets of Whittier College; the Stormy Petrels of Oglethorpe University in Atlanta; the Zips of the University of Akron; or the Vixens (will this nickname be changed if the school goes coed?) of Sweet Briar College in Virginia? As wonderful as all these are, however, we give the best college nickname nod to the University of California-Santa Cruz. Imagine the fear in the hearts of opponents who travel there to face the imaginatively named “Banana Slugs”?

Footnote 2: “What in the world is a ‘Billiken’?”
St. Louis University attempts to clarifiy: What is a Billiken: “Everyone agrees that the Billiken is a good-luck figure who represents ‘things as they ought to be.'”
Random Mentality actually examines the substance of the ruling: Weird Things You Learn in the Law
Though not the most ingenious nicknames, as a conference, NESCAC probably has the highest percentage of odd team names with the Jumbos, Polar Bears, White Mules, Bantams, Ephs and Lord Jeffs.
Here is a comprehensive list of college team nicknames. Gregg Easterbrook highlights obscure team names as a running feature in his Tuesday Morning Quarterback column, such as in this column from Jan. 2001.
(via How Appealing, of course.)

News Search and Defamation

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Findlaw’s Julie Hilden: Why You Can’t Sue Google: The Reason Defamation Law Applies to News Sites, But Not News Search Sites, And What This May Mean For the Future

Subway Photography Ban

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Last month, the MTA proposed rules which would prohibit photography in the subway without a permit.
The proposal would amend §1050.9(c) of the MTA Rules of Conduct, which currently reads:

Photography, filming or video recording in any facility or conveyance is permitted except that ancillary equipment such as lights, reflectors or tripods may not be used. Members of the press holding valid identification issued by the New York City Police Department are hereby authorized to use necessary ancillary equipment.

The proposed rule:

No photograph, film or video recording shall be made or taken on or in any conveyance or facility by any person, except members of the press holding valid press identification cards issued by the New York City Police Department or by others duly authorized in writing to engage in such activity by the authority. 

The New York Times reports: Subway Officials Seek Ban on Picture-Taking

The proposed ban on photography, filming and videotaping drew immediate objections from the New York Public Interest Research Group Straphangers Campaign. “We think it’s a mistake to turn the subways into a scary underground where you can’t take pictures,” said Gene Russianoff, a staff lawyer. “We respect the need for security in the transit system but believe that there are important values in having photographers document life and conditions on the subways and buses.”

Mayor Bloomberg fears that a ban would be too restrictive: Bloomberg Blasts Subway Photo Ban: “Transit officials’ proposed ban on cameras in subways to prevent terrorism was overzealous and would affect mostly tourists, Mayor Michael Bloomberg said.”
NYCSubway.org, not suprisingly, opposes the ban and takes a quick ride on the slippery slope:

An interesting unanswered question is: “Why prevent only NEW photography?” Is this a prelude to even more bans, this time on web sites? nycsubway.org includes over 11,000 photos of the subway lines, past and present, and over 17,000 more of transit systems worldwide. Should these be considered historical documents or a source of information to terrorists? Webmasters and contributors could even be labeled terrorist facilitators. Even the Library of Congress has close up, detailed photos of key structures and bridges, “soft targets”. Will there be attempts to censor the Library of Congress? Permitting a ban on NEW photography is another step toward removal of ALL of these websites, in the name of “security”.

Even though the regulations have yet to be approved, some police officers are already acting to enforce such a ban: Police Waste No Time in Disallowing Subway Photos. NYCSubway.org: Threatened by Undercover NYPD at Stillwell Ave.
I had wanted to write up a nice, concise First Amendment analysis, but since I haven’t even gotten as far as taking Chemerinsky off of my coffee table, that’s not happening anytime soon. So, I will just say that such a ban is a bad idea and not the least speech-restrictive means for increasing the level of security on the subway.
On Saturday, June 6, at 1 PM, photographers will protest the ban. Meet up at the info booth on the main floor of Grand Central.
In the Village Voice, Matt Haber discusses the potential impact of the photography ban with photobloggers: Forbidden Photos, Anyone?

Adware: Clickwrap Licenses and Informed Consent

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Part of an ongoing series. Previously: Part 1: Defining Adware
Quality of Consent to Adware Installation
Both Claria and WhenU are emphatic that they are installed with the consent of their users. WhenU tells its users:

SaveNow was installed on your computer as a module that comes with free software that you downloaded from the Internet. At that time, you accepted a license agreement as part of the download process. It is our strict policy to distribute SaveNow only to users who have accepted the license agreement.

In his discussions with the press, WhenU CEO Avi Nadler emphatically asserts that WhenU software executes on personal computers with the express consent of all of its users.
However, few GAIN or WhenU users are aware that they agreed to have GAIN software display ads on their computers. A survey conducted by PC Pitstop.com finds that only 24.9% of GAIN users and 13.3% of WhenU users are aware that the programs are installed on their systems. A survey of GAIN users, commissioned by the plaintiffs in the consolidated litigation against Claria, finds that only 13.2% of GAIN users believed that they consented to have GAIN show advertisements on their computers. A mere 4.1% of GAIN users believed that they consented to have Claria monitor their web surfing behavior. Only 10.5% of GAIN users and a mere 4% of WhenU users read the license agreement prior to installing the software. Only three percent of GAIN users and 1.6% of WhenU users read the license agreement for longer than five minutes prior to installing the software. WhenU notes that the PC Pitstop surveys are not scientific and should not be considered representative of all of its users. However, this data hardly supports the idea that GAIN or WhenU users have truly offered informed consent before installing the software. Furthermore, visitors to a website like PC Pitstop are likely to be interested in how their computers work and may be more savvy than computer users in general.
Both SaveNow and GAIN present the terms of license agreements and require affirmative assent before installation. SaveNow and GAIN users indicate their consent to install the software by accepting a “clickwrap” license. A clickwrap license appears on a computer screen and a user must accept the license terms before the software will install itself. However, as part of the installation process for both Claria and WhenU software, the clickwrap license appears only as one screen in a multiple-screen series of prompts to which a user must indicate assent. When installing SaveNow, 13 words of WhenU’s 1,224 word license agreement are presented in a small box that occupies less than one quarter of a window in the installer program, tucked away in the lower left-hand corner of that window.¹ An installer for GAIN displays only 73 words of Claria’s 6,464 word license agreement.
Read on

Clickwrap Licenses
Courts have generally found clickwrap licenses to be enforceable under contract law. In ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), a clickwrap license was found to be valid and enforceable so long as the license terms are presented on screen and must receive assent before installing the software. However, when software license terms are presented on a separate web page and the software will install without an affirmative manifestation of consent, that “browsewrap” license is not enforceable.² A court will find a clickwrap license enforceable so long as the terms are presented and the user manifests assent to those terms before installing the software. While there should be no question that these are valid clickwrap contracts, perhaps that alone should not be sufficient disclosure when software is potentially sending personal information across the Internet.³
Because users have a heightened interest in privacy in their sensitive personal information, they must have the opportunity to give informed consent in order to make informed decisions about privacy. Claria?s and WhenU?s current clickwrap license presentations fail to obtain a useful level of consent. Less than 5% of GAIN users are aware that the software transmits information about web browsing habits, users need better information about the privacy implications of installing adware.
Regulatory Goals
Software that gathers and transmits personal information or pops up contextual advertising must be required to clearly disclose these practices and acquire specific consent. Any legislation or regulations should require adequate notice and informed consent to adware practices rather than merely banning the software outright. Even in this ad-saturated media environment, some users will want to see contextual or comparative advertising. WhenU and Claria both provide some benefit by providing contextual information. Moreover, it would unnecessarily restrain competition to simply create a blanket prohibition on adware. The most efficient approach toward regulating adware and spyware will promote openness and transparency in order to avoid violating the Federal Trade Act?s prohibition against deceptive trade practices. This goal can requiring software to follow three key principles: disclosure, informed consent and straightforward uninstallability.
Adware developers should be required to disclose in clearly visible plain language (not hidden in a scroll box) and receive specific separate consent for each adware feature:

1. If personally-identifying information will be collected and transmitted by the software to the developer or a third party
2. If clickstream data will collected and transmitted
3. Whether an application will pop-up new windows and show advertising
4. Whether an application will make any changes to system settings (changing homepage, automatically loading itself.)
   Developers should not need to obtain specific consent to each type of ad to be displayed on users? desktops. Already, Claria provides a complete description of the types of ads delivered by GAIN on its web site. In order to balance the need for disclosure with the goal of making software simple to install, adware developers should not need to provide too many notices in the clickwrap license. Obtaining specific consent to receiving ads while providing a link to a catalog of the various ad delivery vehicles should sufficiently inform most users. The better informed consumers at installation, the less confused they will be when programs cause ads to appear on their computer desktops. Informed consent from users will also serve to minimize consumer confusion about the source of ads delivered by adware programs.
   One model to follow to improve the quality of informed consent may be the Pure Food and Drug Act of 1906. Simson Garfinkel proposes improving the quality of informed consent by using a labeling model inspired by the Roosevelt-era legislation that established the FDA. Software would be required to adhere to an operating system?s standard methods for installation and removal. Garfinkel goes on to propose a standard method and iconography for labeling the possible behaviors of adware.
   Google suggests a series of guidelines designed to help fight deceptive Internet software. The principles include: consensual installation, upfront disclosure of its significant functions, simple removal, and clear behavior. Google?s own software, the Google Toolbar, provides a good example of how to provide clear notice about software features at installation. When installing the Google Toolbar, users are presented with a choice between enabling advanced features and sending anonymous information to Google or disabling those advanced features and not sending information. This choice is presented in a single screen of the installer and is not hidden in a scrolling box, like the full license terms for SaveNow or GAIN. The Google Toolbar user must select to enable these advanced features and then continue with the installation.
   ¹Word count is based on the license included with SaveNow, downloaded with WeatherCast from http://www.whenu.com/products.html. The WhenU License Agreement and Privacy Policy is available at <www.whenu.com/license_p…> An example of the format in which the SaveNow license agreement is presented is available at WhenU Frequently Asked Questions
   ²Specht v. Netscape Communs. Corp., 306 F.3d 17 (2d Cir. 2002).
   ³See Ryan J. Casamiquela, ?Contractual Assent and Enforceability in Cyberspace,? 17 Berkeley Tech. L.J. 475 (2002). As for whether these terms should be enforceable, compare the reaction of a 10-year old considering a clickwrap license in Erik J. Heels, ?The ‘Duh’ of Shrinkwrap Licenses,? LawLawLaw, Apr. 3, 2004: ?DUH! It’s not like I have any CHOICE! They’ve already got my money! OK, I’m clicking ‘accept.'” www.lawlawlaw.com/no-choice…

At Yahoo, Adware ≠ Spyware

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Last week, Yahoo! released a toolbar (for Windows Internet Explorer) designed to detect existing installations and prevent future installations of spyware:

Anti-Spy offers consumers a way to identify potentially unwanted software like spyware, then lets consumers decide whether they want to disable/remove, ignore or keep the files that are found. If a user chooses to delete suspect software and later changes their mind, they can restore most such programs.

According to eWeek, Yahoo Plays Favorites with Some Adware

The beta version of the spyware-fighting toolbar add-on, which Yahoo released last week, doesn’t default to detect adware—a category of software in which Yahoo’s paid search division has a financial stake.

Yahoo does not consider WhenU or Claria adware to be spyware. Techdirt reports that “Yahoo’s spyware remover claims these programs are “adware” and will only remove them if you click and extra check box each time you run the program.”
Adware developers differentiate their products from “spyware” based on the fact that adware requires “consent” before installation. For more about the level of consent, see Adware: Clickwrap Licenses and Informed Consent.
Some websites may trigger Internet Explorer to download and install a program with inadequate notice to the computer user. Eric L. Howes describes the details in The Anatomy of a Drive-By Download.
For example, Martin Schwimmer is a knowledgeable and alert computer user, who carefully reads the notices on his computer screen. Yet, Schwimmer still found WhenU inadvertently installed on his system.
In the spectrum of spyware and adware, WhenU’s own software is relatively honest, albeit annoying to uninstall. WhenU also licenses its SaveNow software to other vendors, who are paid to distribute SaveNow (in order increase the number of viewers of its ads.) If WhenU licenses distribution of its software to providers who will bundle it with drive-by downloads, users may find WhenU installed on their computer without consent.
If WhenU fails to screen its bundling partners, and SaveNow can be installed without consent, perhaps anti-spyware tool vendors should consider WhenU to be spyware.
As an aside, after using Internet Explorer on Windows recently, I was struck by how different an experience is web browsing with Safari on a Mac or even Firefox on Windows. Even without adware installed, the IE user sees many more pop-up and pop-under ads. When using a computer infested with adware, ads are constantly popping up on screen, either from a web site or from adware.

Copyright Law Changes Rap

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Public Enemy’s Chuck D and Hank Shocklee discuss how copyright law affected the creative approach of rap: How Copyright Law Changed Hip Hop

Back in the day, things was different. The copyright laws didn’t really extend into sampling until the hip-hop artists started getting sued. As a matter of fact, copyright didn’t start catching up with us until Fear of a Black Planet. That’s when the copyrights and everything started becoming stricter because you had a lot of groups doing it and people were taking whole songs. It got so widespread that the record companies started policing the releases before they got out.

E-Voting Roundup

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NY Times: Who Tests Voting Machines?

Whenever questions are raised about the reliability of electronic voting machines, election officials have a ready response: independent testing. There is nothing to worry about, they insist, because the software has been painstakingly reviewed by independent testing authorities to make sure it is accurate and honest, and then certified by state election officials. But this process is riddled with problems, including conflicts of interest and a disturbing lack of transparency. Voters should demand reform, and they should also keep demanding, as a growing number of Americans are, a voter-verified paper record of their vote.

In the NY Times Magazine, Clive Thompson advocates an open-source e-voting solution: A Really Open Election

First off, the government should ditch the private-sector software makers. Then it should hire a crack team of programmers to write new code. Then — and this is the crucial part — it should put the source code online publicly, where anyone can critique or debug it. This honors the genius of the open-source movement. If you show something to a large enough group of critics, they’ll notice (and find a way to remove) almost any possible flaw.

Chicago Tribune: Not all voting for new technology

Armed with reports from computer scientists and news accounts of problems involving touch-screen voting, nearly two dozen area residents turned out to lobby against the new technology. The [Portage County (Ohio) Board of Elections] voted 4-0 to put off the purchase.

Miami Herald: Secretary of state tries to calm voters

Amid controversy over touch-screen voting machines and a purge of felons from the voting rolls, Secretary of State Glenda Hood sought on Thursday to reassure anxious voters that 2004 won’t be a rehash of the 2000 presidential debacle.

Howard Dean starts his syndicated column discussing e-voting: Electronic Voting – Not Ready For Prime Time

Without any accountability or transparency, even if these machines work, we cannot check whether they are in fact working reliably. The American public should not tolerate the use of paperless e-voting machines until at least the 2006 election, allowing time to prevent ongoing errors and failures with the technology. One way or another, every voter should be able to check that an accurate paper record has been made of their vote before it is recorded.

The Onion: Infograph: Electronic Voting Machines: “What are some of the machines’s potential problems?”

Madonna settles photography copyright suit

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Madonna reached an out of court settlement with Samuel Bourdin, the son of photographer Guy Bourdin, for a copyright infringement suit, which claimed that the Madonna “used the heart and soul of the artist’s work and never credited him as the inspiration for the video.” The Daily Telegraph: Madonna copied erotic ideas.
Previously: Madonna video infringes photographer’s copyright?

Amending the Federal Trademark Dilution Act

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An April 22, 2004. Oversight Hearing Before the Subcommittee on Courts, the Internet, and Intellectual Property, of the Committee on the Judiciary discussed the Federal Trademark Dilution Act, 15 U.S.C. §1125(c): Committee Print to Amend the Federal Trademark Dilution Act
(via beSpacific)

Lots of legit download sites

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BBC News: Legal music sites break 100 mark: “In May 2003, there were 20 legal online music sites which offered an average of 200,000 songs. The average site now offers in excess of 500,000 tracks to music fans.”

California Senate passes anti-Gmail bill

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Reuters: Tightening the Reins on Gmail: “California’s state Senate approved the first-of-its-kind bill by a vote of 24-8 to restrict how Mountain View, California-based Google’s upcoming free “Gmail” service could work once it is available in wide distribution.”
SB 1822 (amended):

This bill would allow a provider of
e-mail or instant messaging services to review, examine, or evaluate
the content of a customer’s e-mail or instant messages only if the
review is for the automated and contemporaneous display of an
advertisement to the user and other specified conditions are
satisfied. The bill would provide that its provisions do not prevent
a provider of e-mail or instant messaging services from evaluating
the contents of e-mail or instant messages for specified purposes,
including the removal of malicious programs. The bill would specify
that its provisions do not imply consent to the examination of e-mail
or instant messages if consent is otherwise required

Previously: Gmail privacy kerfuffle

Ante Up

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Mark A. Lemley: Ex Ante Versus Ex Post Justifications for Intellectual Property

In this paper, I explore the sub rosa development of this ex post theory of IP. I argue that the basis for continued control is the assumption that the value of IP rights will be dissipated if they are used too much. This argument is fundamentally at odds with the public goods nature of information. It stems from a particular sort of myopia about private ordering, in which actions by individual private firms are presumed to be ideal and the traditional role of the market in disciplining errant firms is ignored

Lose Yourself

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AP: Eminem suit against Apple, MTV to proceed

On Monday, U.S. District Judge Anna Diggs Taylor ruled that the suit brought by Eminem’s publishing company can proceed against several companies, including MTV parent company Viacom and advertising agency TBWA/Chiat/Day.
Taylor threw out two state law-based claims of unfair competition and unjust enrichment.

Previously: Eminem Sues Apple

Counterfeit Clubs

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PGA.com: Raids in Shanghai shopping area turn up millions in counterfeit clubs

Chinese anti-counterfeiting enforcement authorities on May 21 conducted a series of simultaneous raids of retail shops and distributors of counterfeit golf clubs and equipment in Shanghai….
The government raids took place after six American golf equipment manufacturers filed complaints with Chinese anti-counterfeiting enforcement authorities.

(via The Trademark Blog)

Coffee Table Still Life

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Adware special report

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Over the next week, in place of regular blogging, while my brain eases out of vacation mode back into info-aggregating mode, I will be posting a series of posts about adware, focusing on legislation and litigation, abridged and adapted from a seminar paper.
Prelude: Pop-ups trigger more lawsuits (5/19)
Part 1: Defining Adware (5/20)
Part 2: Litigation summary
Part 3: Regulatory goals
Part 4: Legislation

Defining adware

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Adware is software, installed with some minimal level of user consent, which monitors Internet usage in order to display ads from third parties. These may be distinguished from more malicious programs, “spyware,” which are installed exclusively without user consent, either by drive-by downloads or browser hijacking. However, some third-party developers and distributors may bundle adware in drive-by download packages.
This series will focus on the two companies which are the most prominent in developing adware: Claria Corp. (“Claria”) and WhenU.com (“WhenU”). Claria, formerly known as The Gator Corp., distributes an adware program called GAIN and sells advertising on the GAIN Network. WhenU’s adware program is SaveNow. WhenU and Claria have been the most successful at attracting litigation from web site publishers and trademark owners.¹
Claria and WhenU distribute adware by offering Internet users a quid pro quo. In exchange for occasionally viewing pop-up ads, consumers get free software that would otherwise cost about $30. Claria offers utilities which allow users to securely store passwords, search the web from a desktop toolbar, receive weather forecasts, manage a calendar and sync a personal computer clock with an atomic clock. WhenU offers a similar array of utilities. In addition, Claria and WhenU will pay third-party software companies for distributing GAIN or SaveNow bundled with other free software. Many internet users find adware installed on their systems as a result of installing peer-to-peer programs. Claria relies heavily on its bundling agreement with Shaman Networks’ KaZaA Media Desktop in order to attract new users.
Users can install GAIN and SaveNow much more easily than they can remove these programs. When installed as a component as other programs, neither GAIN nor SaveNow appear in the Windows “Add/Remove Program” feature. Instead, the ad server is installed as a component of its host application. In order to be able to remove these programs users must be aware of which application is sponsored by the adware. The adware programs are intentionally difficult to uninstall. In order to fully remove its software from a computer, Claria requires affirmative consent, so as to protect users from “unintentional, unauthorized or automated uninstallation of your GAIN Publishing software.”

The installed base
In April 2004, 453.9 million people have access to the Internet worldwide. In the US, nearly 75% of the population has access to the Internet and almost 175 million Americans are active internet users. More than 90% of these internet users access the internet using a Microsoft Windows operating system and so are able to use the Claria and WhenU software.
WhenU estimates that 30 milllion users have WhenU?s SaveNow installed . SaveNow has been downloaded about 100 million times. Of those 100 million downloads, 75 million copies were uninstalled from the host computer. PC Pitstop estimates that 1.3% of Internet users run SaveNow. More than 400 advertisers place ads on WhenU.
Claria claims more than 40 million users and 900 advertisers on GAIN. During March 2004, 29.6 million people saw advertising through the GAIN application. Users spend an average of 1 minute and 16 seconds on Claria web properties per visit. In a survey of visitors to its web site, PC Pitstop estimates that between 4% and 5% of Internet users have GAIN installed on their systems. In comparison, the most popular television programs in the US draw audiences of nearly 23 million viewers.
Adware Annoys Users and Publishers
Adware is not only an annoyance, but it is an increasingly widespread one. One study found an average of 5 adware programs installed per surveyed computer. For a workshop on spyware and adware, the FTC received more than 200 comments from industry associations, companies, IT professionals and individual Internet users. The vast majority of comments reflect the desire of Internet users to be free from unwanted pop-up advertisements.
Two kinds of parties find themselves affected by adware: website publishers and end users. End users feel like they are losing control over their computers. While browsing the web, unwanted windows containing advertisements, often for pornography, will pop up over and under their web browser windows. Less sophisticated users wonder why browsing the Internet became so distracting. Tech support has to spend time dealing with cleaning computers from spyware. Computer manufacturer Dell reports that adware is the ?No. 1 reason? why consumers call Dell for technical support.
Website publishers worry that ads will drive away business to competitors? sites and divert business away.
Publishers worry that pop-up ads over their sites will confuse consumers about the source of the ads and create a worse impression of their websites. Publishers fear that third party pop-up ads are defacing their websites. Consumers have negative impressions of websites that display advertising in pop-up and pop-under windows. 78% of Internet users find pop-up ads ?very annoying? and 75% find pop-under ads ?very annoying.? One media analyst expects consumers to regard pop-up ads with particular disdain: ?going forth, [pop-ups] will be increasingly associated with lower-end sites and grittier e-commerce functions. Imagine the pop-up ad becoming the carnival barker of the Internet, full of sales bluster and false promises of what lurks behind the tent door that respectable people would rather not enter.?
Many adware users believe that the owners of the websites over which the ads appear place the pop-up ads displayed by the adware software. In a survey of GAIN users, more than 40% believe that GAIN pop-up ads were placed or approved by the website over which those ads appeared. 29.8% of the respondents thought the website on which the pop-up ad appeared was responsible for causing the ad to appear. Another 10.6% of respondents thought the website received money or otherwise gave permission for the GAIN ad to appear. An equal number of users believe that GAIN is responsible for the ads appearing on their screen as users who believe that the triggering website is responsible for the ad. Although most consumers feel that the appearance of GAIN pop-up ads will not affect the opinion of the triggering website, 33.2% of consumers would have a less favorable opinion of that company. Users ?expect the web site to control that problem.?
¹ See WashingtonPost.Newsweek Interactive Co. v. Gator Corp., 2002 U.S. Dist. LEXIS 20879 (E.D.Va., 2002); In re: Gator Corp. Software Trademark & Copyright Litigation, 259 F.Supp.2d 1378 (J.P.M.L., Apr. 22, 2003); U-Haul Int?l, Inc. v. WhenU.com, Inc., 279 F.Supp.2d 723; Wells Fargo & Co., et al. v. WhenU.com, 293 F.Supp.2d 734 (E.D.Mich, 2003); 1-800 Contacts, Inc. v. WhenU.com, 69 U.S.P.Q.2d 1337 (S.D.N.Y. 2003).

Not to gloat, but…

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In early April, I predicted that NBC might pick up the NHL broadcast deal on the cheap.
In the NY Times, Richard Sandomir reports: N.H.L. Games Go to NBC Next Season

NBC will carry a regionalized package of regular-season games on six or seven Saturday afternoons, followed by playoff games every Saturday until the Stanley Cup finals, when the network will pick up coverage with Game 3 and continue through Game 7, if necessary.
The league will not receive the kind of upfront fees that are common in most network television contracts….In this deal, which is structured like the one NBC has with the Arena Football League, the network and the N.H.L. will share revenue. NBC will take the first chunk to cover its production and distribution costs, and the cost of pre-empting other programming during the Stanley Cup finals. The league will then get the major part of the next set of revenue, and then an even split of what remains.

More insecure e-voting

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Law.com: Count Crisis?

A scathing internal review of the iVotronic touch-screen voting machines used in Miami-Dade and Broward, Fla., counties, written by a Miami-Dade County elections official, has raised fresh doubts about how accurately the electronic machines count the vote.

The New Surveillance

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Snoia Katyal (Fordham Law School): The New Surveillance

A few years ago, it was fanciful to imagine a world where intellectual property owners – such as record companies, software owners, and publishers – were capable of invading the most sacred areas of the home in order to track, deter, and control uses of their products. Yet, today, strategies of copyright enforcement have rapidly multiplied, each strategy more invasive than the last. This new surveillance exposes the paradoxical nature of the Internet: It offers both the consumer and creator a seemingly endless capacity for human expression – a virtual marketplace of ideas – alongside an insurmountable array of capacities for panoptic surveillance. As a result, the Internet both enables and silences speech, often simultaneously.

Privacy theories

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In the Yale Law Journal, James Q. Whitman contemplates the two dominant Western theories for privacy: dignity and liberty

Pop-ups trigger more lawsuits

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L.L. Bean filed suits against companies who advertise on Claria, including Nordstrom, JC Penney, Atkins Nutritionals and Gevalia Kaffee, a division of Kraft Foods. ClickZ: L.L. Bean Sues Other Marketers for Claria Pop-Ups

In the complaints, L.L. Bean accuses the defendants of infringing on its trademark by confusing consumers, engaging in unfair competition, using false advertising, diluting its trademark, and enriching themselves unjustly. The company also claims its Web site was trespassed upon and effectively altered, because of the pop-up ads. L.L. Bean cites federal, state and common law.

L.L. Bean is also a party to a pending consolidated suit against Claria.
Like Claria, WhenU, another adware vendor, has been targeted in lawsuits by website publishers. Last year, three courts decided cases against WhenU. Two decided in favor of WhenU (U-Haul v. WhenU and Wells Fargo v. WhenU). One granted a preliminary injunction against WhenU and advertiser VisionDirect on trademark grounds.
The two rulings which favored WhenU were suits only against WhenU. Neither court found that the WhenU software did not constitute a use in commerce of trademarks, so WhenU could not be infringing. Unlike search engine keywords, WhenU does not sell ads individual websites or search terms. Instead, advertisers can only buy placement over a wide range of websites and search keywords within a particular category, with no guarantee that ads will pop-up on any particular website. The U-Haul court focuses on the fact that WhenU does not sell placement on particular URLs. Rather than selling placement or keying ads to particular URLs, WhenU includes a URL in its directory for a “pure machine-linking function.”
1-800 Contacts sued both WhenU and advertiser VisionDirect. 1-800 Contacts succeeded because the actions of VisionDirect (buying advertising on WhenU and registering the domain name www1800contacts.com) show that the company intended to Although WhenU’s SaveNow program is neither engineered nor intended to be used as a way to sell ads keyed to a particular trademark, VisionDirect nonetheless bought ads from WhenU with at least the hope that it might be able to use such ads to capitalize on the 1-800 Contacts reputation. Beyond just buying ads on WhenU, VisionDirect, demonstrated clear bad faith intent to use the 1-800 Contracts mark to divert business to its own website by registering the domain name www1800contacts.com.
Will advertisers be subject to lawsuits merely for purchasing contextual advertising on services like Claria’s GAIN or WhenU’s SaveNow? Absent an obvious showing of bad faith, is contextual advertising an actual cause of consumer confusion, or merely consumer-serving comparative advertising? Should web site publishers use litigation to prevent competitors from advertising “over” their sites to adware users?
This week is adware week here at IPTAblog, where we’ll be looking at the adware problem. In other words, I’ll be repurposing parts of a paper for the blog.

Smith-9th St.

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Bluejake: Smith and 9th Street and Smith and 9th Street 2
NYCSubway.org: IND Crosstown: Smith-9th Streets

In Williamsburg

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See also effinchamp: Billyburg Twilight

Perceptions and Expectations

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So, SixApart finally introduced the long-awaited version 3.0 of Movable Type with a new “we’re a real company and need revenue” pricing scheme, and the users are unhappy.
Jason Kottke could have taken these thoughts from my brain, but he elucidated them eloquently: The End of Free

In exchange for lowering the price on the [high-end personal uses], you get community goodwill and, more importantly, you get people using your software in a freewheeling way. When people, particular the power users that will be attracted to MT, have the freedom to use your software however they wish (and not having to choose, for instance, between paying $50-$90 extra and not having guest authors on their site or not starting that extra weblog to keep track of the books they’ve been reading), you get a picture of what your software is really for. And since MT is ultimately the backend for TypePad (a for-pay service), that knowledge is valuable. My feeling is that susidizing freewheeling personal use of MT is an investment that will pay off handsomely in the future.

The problem with the pricing scheme is not that it is more expensive, but that it offers much less perceived value.

Sunset over Jersey

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Victory is mine!

---

Well, maybe complete and utter defeat is mine. But, I am done with exams.
I am not a fan of the 24 hour take-home exam.
I am less a fan of taking two 24 hour take-home exams within a 79 hour period.
As advice to any other students: I highly recommend outlining before starting the 24 hour take-home exam.
I also heartily recommend choosing a schedule that does not have four exams within a 6 day period that begins only four days after handing in a not inconsequential seminar paper.
And because I have been up since 5 this morning, having eating nothing more than an apple, a granola bar and an entire box of donut holes, I’m out.

Nap time

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I am barely two hours into a 24-hour take-home exam (don’t you wish that your Saturday night was this exciting?) and already posting to the blog and ready for a nap. This is going to go well…
Ahhh, sleep. That’s where I’m a viking.

Really Radical

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Fortunately, the letter R rarely appears in words, right?
In the midst of furiously typing away during today’s information privacy law exam, I noticed that the ‘R’ key was loose on my Examsoft behemoth’s keyboard. I tried to reseat the key in its place and fiddled around with the key for a while until the key was no longer attached to the keyboard.

Fortunately, the actuator that actually tells the computer to type ‘R’ still worked, but it dropped the speed of typing considerable. So, there I was, trying to furiously work through the exam under severe time pressure, while attempting to formulate a vocabulary bereft of the letter ‘R.’ At that specific goal, I failed miserably. Hopefully, my performance at eloquently discussing nuances of law and policy was… less bad.
After finishing up the second exam in two days and then taking a few minutes to sit and enjoy this nice weather, I debated between taking a quick skate or going up to Crif Dog. The lazy option (with avocado) won.
I think my arteries are planning to file a class action suit against me.
Up next: two 24 hour take-home exams. The fun never ends!

Is someone trying to tell me something?

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Here at AndrewRaff.com World HQ, we’ve received thousands of spams in the last couple of days suggesting that um, we are less than adequate with regards to, er, a certain anatomical feature.
I fear that we are rapidly approaching the end of the current internet e-mail system, as spammers are attempt to make up for their small, well, you know, in noise. After all, if you have a friendly SMTP server, the marginal cost of sending additional e-mail is miniscule. Filters and defenses are good, but they make e-mail inherently unreliable.
If people are filtering their e-mail and summarily deleting whatever filters mark as spam, can anyone rely on e-mail to reach its destination? If people are not filtering, but relying on their judgment to find needles in the haystack of messages, can senders rely on e-mail getting noticed in the noise?

Future of Music

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Derek Sivers blogged the Future of Music Sumimt.

Allez Exam!

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Say goodbye to blue books (well, except for this Bluebook), break out the examsoft, bang a gong, we are on:

Scherezade: Happy Exam Time!: “Matching wits with something hard, for a specific and limited duration, and being completely finished with it once you handed it in, that’s a rare kind of fun.”
I agree, but only to the extent that one is fully prepared for the exam..

It’s getting cold in here

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While studying freezeouts (for those of you keeping track, a type of corporate transaction intended to involuntarily eliminate the equity interest of minority shareholders), I suppose I should be listening to 10th Avenue Freeze Out.
Related: Sugar, Mr. Poon corporations haiku:

Corporations: Not
too hard, but learning it from
scratch is annoying.

Also related (well, not so related to freezeout transactions as with LBOs, but still a good read): Barbarians at the Gate. Or, there’s a movie: Barbarians at the Gate.

Get Your CAN-SPAM On

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GigaLaw: CAN-SPAM Library. Legislative history, litigation, FTC action, research studies and analytical papers all about everyone’s favorite Federal anti-spam law.

Sit Down, Stand Up

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I try to spend as little time as possible around the law school during finals time. Not only is it much more comfortable to sit in my comfy desk chair and listen to music over speakers than to sit in a wooden library chair¹ and wear headphones, but I need to avoid the self-perpetuating torrent of stress that results from a critical mass of law students concentrated into one area. One major drawback is the utter lack of human contact and commiseration.
Is it good that I am essentially a hermit these days?
¹Here’s one area where Fordham is far superior to Brooklyn: some of the study areas in the library include Aeron chairs, instead of only uncomfortable 1890-style wooden chairs. Of course you still have to deal with your colleagues’ stress levels, but without the added fun of your ass going numb. I don’t know how the other area schools stack up in terms of seating comfort, but I certainly miss my Aeron chair from work…

Surf the web, tax-free

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AP: Senate Keeps Web Access Tax-Free 

The Senate voted overwhelmingly to restore a ban on taxing Internet connections for four years, stopping short of the permanent ban approved by the House.
The two chambers will try to work out their differences over an issue that pits a U.S. telecommunications industry trying to expand a range of services against state and local governments worried they could lose billions of dollars in tax revenue.

Trademark fair use hypo time

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I have to learn a whole lot of corporations law before I get around to studying for my trademark exam, but here are two fact patterns that raise issues of trademark fair use:

1. Anti-advertising activists release a sneaker called the “blackSpot”
   in order to raise awareness of Nike’s use of sweatshop labor and offer an alternative made by fairly-paid, unionized workers.
   They plan to use this “subvertising campaign” to promote the sneakers:

phil knight had a dream. he’d sell shows. he’d sell dreams he’d get rich. he’d use sweatshops if he had to.
then along came a new shoe. plan. simple. cheap. fair. designed for only thing:
kicking phil’s ass.
the unswoosher.

To what extent can Nike use trademark law to prevent this “un-marketing” campaign? What defenses can Adbusters offer?
(via BoingBoing.)
2. Martin Schwimmer offers another hypo for discussion at the Trademark Blog: George W. Bush on The Apprentice:

View this political video parodying The Apprentice, then read this decision in the Mastercard v. Nader2000 case.
Discuss NBC’s and Trump’s rights against TrueMajority (source of the video).

Comments are open.

Mac troubleshooting help

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Recently, I have become reacquainted with my old friend Pine. Who needs fancy graphics or colors for e-mail?
I should point out that this is not a result of my choice, but rather the result of some kind of protest by my computer to running mail.app. Fortunately, I can still work in Word, OmniOutliner and Safari. But why did my computer decide that right now, on the cusp of finals season, is the best time to go crazy? No tv and no beer? The little dude didn’t enjoy the last time it went drinking…
Here’s what’s happening:
Mail.app, iChat and iCal refuse to launch. They will bounce in the dock for a long time. Activity Monitor shows that they are running, but they do not show up in the command-option-esc force quit menu.
I have run fsck, repaired permissions, run DiskWarrior and cleared system caches. None of these have fixed the problem.
What’s going on here?

A New Pentagon Papers Case

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Ernest Miller: A New Pentagon Papers Case – Newspapers, Blogs and the Diebold/Jones Day Memos

On April 20th, the Oakland Tribune published a story regarding Diebold’s alleged use of uncertified voting software in violation of California state law (Diebold knew of legal risks). The article cited and focused on internal legal memos from the Jones Day law firm showing that Diebold’s own lawyers had warned of some of the possible illegalities. Online, the Oakland Tribune posted the documents in addition to the article. That afternoon, the Trib’s parent company and the reporter were sued by Jones Day to have the documents returned. The judge ordered the documents returned, except for those already published on the internet

It is worthwhile to pay attention to the importance of these documents.

Congress Watch

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Washington Post: A Development of High Interest for All College Students

Rep. John Boehner (R-Ohio), chairman of the Committee on Education and the Workforce, recently sent a letter to all House members in support of changing the interest rate charged to borrowers on consolidated student loans from a fixed rate to a variable rate

For those of us with student loans (and still accumulating debt), consolidating loans under the current law would lock us into the current, low, interest rate. Allowing the rate to float on consolidated loans will cost us significantly more in interest payments as rates rise.
Life, Law Libido: Life, Law: Surprise! Congress is Trying to Screw You!: “Pay attention to this ongoing debate, kids. It could have a huge impact on your future.”
Contact The Committee on Education and the Workforce and urge them to reject this reckless proposal. Local members include Brooklyn’s own Major Owens, Donald M. Payne (Hudson, Union Essex Counties in NJ) Carolyn McCarthy (Long Island), Rush Holt (Princeton, NJ) and Tim Bishop (Long Island).
More about the impact of variable rates, at BRR: A Bad Idea From Greenspan

Who doesn’t like freedom?

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The Computers, Freedom and Privacy conference is running through today over on the left coast. Read about the panels via the CFP blogs
The Copyfight crew has some coverage: CFP, Take 2

P2P at the Crossroads Conference Reports

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LawMeme’s James Grimmelman braved a visit to Newark and went to the P2P symposium at Seton Hall. He posted detailed notes: Conference Report: Peer-to-Peer at the Crossroads
David Opderbeck: Seton Hall P2P Symposium

California election panel desires to dump Diebold

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AP: Panel: Don’t use Diebold touch-screen voting machines

California should ban the use of 15,000 touch-screen voting machines made by Diebold Election Systems from the Nov. 2 general election, an advisory panel to Secretary of State Kevin Shelley recommended Thursday.
By an 8-0 vote, the state’s Voting Systems and Procedures Panel recommended that Shelley cease the use of the machines, saying that Texas-based Diebold has performed poorly in California and its machines malfunctioned in the state’s March 2 primary election, turning away many voters in San Diego County.

The GMail Saga

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Brad Templeton discusses Google’s GMail, expectations of privacy and ECPA: The GMail Saga

I am the

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I am far too happy with my new mobile phone. This is not because I now can actually use the phone everywhere in my apartment rather than standing right up at the window. It is not because I was able to transfer my address book and calendar quickly and easily thanks to Bluetooth and iSync. It is not because I can use it to post snazzy photos like this one:

Rather, what has me most excited is the fact that it can use standard MIDI files as ringtones. Why is that so exciting? Thanks to this site my phone rings “Walk- Don’t Run,” by The Ventures. Yes, I am fully aware that this is the last qualification I need to become some kind of

Springtime in Brooklyn

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Ah, spring. The sun is shining, trees are blooming and there’s no place I’d rather be than sitting inside working on my seminar paper. Well, there are many places I would rather be, but this is where I am.
See also Bluejake: Brooklyn Heights and Promenade

Live at Baker’s

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It may be only half the album it was supposed to be, but James Carter’s latest release, the long-delayed Live at Baker’s Keyboard Lounge is out and it is a powerful recording. Carter teamed up with some of Detroit’s best jazz musicians, including in his hometown’s oldest jazz club for a three night stand in June 2001. Unlike his last few releases, this is not a concept or theme album. This is simply Carter doing what he does best: kicking ass by playing saxophone and improvising.
Originally, this was to be a two disc album and feature some tracks recorded with Aretha Franklin. But, when he recorded this material, Carter was signed to Atlantic Records. Before this album was released, Atlantic closed up its jazz division and Carter jumped to Columbia. This album got stuck in record label limbo until Warner Bros. (as Atlantic’s successor) released a single disc version. Hopefully the rest of the recordings from this stand at Baker’s will surface soon.
Detroit Free Press: Live from Detroit: Long-awaited recording from sax man James Carter is solid but not all it could have been
The Guardian: James Carter, Live at Baker’s Keyboard Lounge
Jazz Review: James Carter & Sweet Home Detroit
Nashville City Paper: Spin Factor: “This is a rambunctious, experimental album seldom released these days by major labels.”

PCs infested with spyware

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In a “spyware audit” of more than 1 million computers, Earthlink found more than 29.5 million examples of spyware installed– an average of nearly 30 spyware programs installed per computer. BBC News reports: PCs ‘infested’ with spy programs

These are parasite programs sometimes come attached to software downloaded from the web.
The details are often included in the license agreement small print that most users click through without reading.
But sometimes they do not even need your permission to download, but just bury themselves on a hard drive as you browse the net.
With the exception of pop-up ads or a slower computer, people may not notice anything different when spyware programs are present, say experts.

Push to wiretap

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News.com: Pushing to wiretap ‘push to talk’

U.S. cell phone service providers are willing to wiretap “push to talk” phone calls, but only one has the technological capability to do so, according to sources familiar with the situation.
“The current technology to tap these calls doesn’t exist,” said a representative of Verizon Wireless, which this week told the Federal Communications Commission that it believes wiretapping laws apply to push-to-talk, a service that lets cell phone customers talk with the push of a button, like a walkie-talkie. “But being able to (wiretap push-to-talk calls) is different from believing we shouldn’t be bound by law to do it.”

Online Chat with Lessig

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WashingtonPost.com will host an online chat with Lawrence Lessig today on Copyright in the digital Age. Today at 1 PM.

Label Your Porn Spam

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The FTC announced new rules which require pornographic spam to be labeled “SEXUALLY-EXPLICIT:” in the e-mail subject header. The regulation is codified in 16 CFR Part 316. The rule goes into effect on May 19.

WhenU Challenges Utah Anti-WhenU Law

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This year, the Utah state legislature passed Spyware Control Act (H.B. 323). This law is intended to give website holders a recourse against adware providers such as Claria and WhenU.
The bill would:

• prohibit using a federally registered trademark to trigger an ad by someone other than the trademark owner.
• require user consent to a license agreement which includes a notice of:
  • the collection of each specific type of information to be transmitted as a result of the software installation;
  • a clear and representative full-size example of each type of advertisement that may be delivered;
  • a truthful statement of the frequency with which each type of advertisement may be delivered;
  • a clear description of a method by which a user may distinguish the advertisement by its appearance from an advertisement generated by other software services
• Allow the following types of persons to bring an action:
  • a website owner
  • a trademark or copyright owner
  • an authorized advertiser on an Internet website.

A number of web publishers who are not Claria or WhenU fear that this law is too broad: Leading Internet Providers Oppose Passage of Spyware Control Act

Web publishers and businesses including American Online, Amazon.com, Cnet, eBay, Google, Microsoft Corp., and Yahoo! signed a letter on March 1 to Utah Senate Majority Leader John Valentine and Representative Steven Urquhart, who sponsored the bill, warning that the bill–if signed into law–could create serious repercussions for the entire online community. According to reasons cited in the letter, the Spyware Control Act is structurally flawed because its definition of spyware is too broad. It states that several types of important and beneficial Internet communications software, and even routine network communications, fall under the bill’s definition of spyware.

On Monday, WhenU filed a lawsuit alleging that the law ” violates its constitutionally protected right to advertise, while doing little to protect computer users’ privacy.”
The Complaint (courtesy of Ben Edelman, via Trademark Blog)

GMail Privacy Kerfuffle

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On April 1, Google announced Gmail, its new free webmail service, which features an unprecedented 1GB of storage. Google plans to generate revenue from this service by placing advertising in the service. The major free webmail providers, including Yahoo! and Hotmail, sell advertising banners in their services. Google will provide context-related text advertising in GMail. Google already provides contextual advertising for searches and to third-party websites who use the AdSense service.
Some privacy advocates are concerned that Google will be scanning the content of its users’ emails. A letter from 28 privacy and civil liberties organizations to Google CEO Sergei Brin:

Google’s proposed Gmail service and the practices and policies of its business units raise significant and troubling questions.
First, Google has proposed scanning the text of all incoming emails for ad placement. The scanning of confidential email violates the implicit trust of an email service provider. Further, the unlimited period for data retention poses unnecessary risks of misuse.
Second, Google’s overall data retention and correlation policies are problematic in their lack of clarity and broad scope. Google has not set specific, finite limits on how long it will retain user account, email, and transactional data. And Google has not set clear written policies about its data sharing between business units.
Third, the Gmail system sets potentially dangerous precedents and establishes reduced expectations of privacy in email communications. These precedents may be adopted by other companies and governments and may persist long after Google is gone.

The privacy policy for Gmail is still a work in progress. The most troubling aspect of the privacy policy
Internet e-mail is an insecure means of communications and users should avoid sending confidential information unencrypted across the internet because the messages may be intercepted and read while in transit. So long as Google does not log data about the keywords extracted from e-mail, this is the least objectionable privacy concern about the Gmail service. Already, many e-mail providers scan e-mail messages for spam or virus contents. Email users are free to choose other webmail services if they are uncomfortable with Google inserting contextual ads next to their inboxes.
Other concerns include identifiability and record retention. EFF Deep Links reports that Your Gmail Email Address Can Be Linked to Your Search History. This changes Google’s search data from being at least somewhat anonymous to becoming linked to an identity. EFF recommends that Gmail users frequently delete their Google cookie. Google could de-link search records from e-mail identity by using separate cookies and user id’s for search and Gmail.
Google’s fuzzy data retention policies are troubling. When a Gmail user deletes a message from her Gmail account, that message may not be immediately deleted from the system, but instead live on in a limbo where a deleted message may be recoverable long after a user thinks that message has vanished.
Going to extremes, California State Senator Liz Figuero plans to introduce legislation to prohibit scanning personal e-mail for advertising purposes. BBC News: Google’s Gmail Could Be Blocked. ClickZ: Lawmaker Voices Google Privacy Concerns

Figueroa called the tradeoff of contextual ads for greater storage and other enhancements a Faustian bargain.
“They will be scanning your private e-mail,” Figueroa [said]. “You may say that’s fine and dandy, but I may not like it. To what extent are we giving up privacy?”

Eugene Volokh responds, Please Save Us From Ourselves, Ms. Legislator:

 I realize that there are sometimes plausible arguments for saving people from their own folly; I don’t always agree with them, but I respect them — for instance, if their folly seems likely to get them killed (consider bans on dueling, seat belt laws, and the like), or likely to get them addicted and thus drastically diminish their ability to undo their error (that’s a common justification for bans on certain drugs), or likely to seriously harm others as well as themselves.
What’s striking about this proposal is how utterly inapplicable those arguments are here. The Nanny State (or, at this point, one of its directors) is trying to save us from the irreversible, appalling horror of getting custom-tailored advertising based on the context of our e-mail. We’re in trouble indeed.

Screech loses his website

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In a UDRP arbitration hearing, actor Dustian Diamond could not recover DustinDiamond.com from its owner, because the site is a non-commercial parody.
(via TechLaw Advisor)

Freebie

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The Fourth Circuit released a decision finding that “freebie” is a generic term: Retail Services, Inc. v. Freebies Publishing.
(via How Appealing.)

Digital Cops Roundup

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Lawmeme’s James Grimmelmann posted some notes about the ‘Digital Cops in a Virtual Environment’ conference
Previously, Susan Crawford’s real-time notes

Uploading, Downloading and Freeloading

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Ed Felten proposes a grand unified theory of file sharing

The Grand Unified Theory explains the study results by breaking down the users of filesharing into two subpopulations, which I will call Free-riders and Samplers.
Free-riders are generally young. They have few if any moral qualms about filesharing, and they tend to assume that others feel the same way. They use filesharing to accumulate libraries of music, as an alternative to buying CDs.
Samplers are generally older and more risk-averse. They are highly engaged with cultural products of all sorts. They are morally conflicted about filesharing, and use it mostly to download songs that either aren’t for sale, or that they don’t value enough to pay for. They buy music that they really like, and filesharing causes them to find more music they like, so it tends to increase their CD purchases.

Samplers only use the P2P file sharing networks for sampling, because they do not have the time to spend searching determinedly for what they want. Because they have sufficient money to buy the albums they want, the samplers use the most time-efficient method of acquiring music.
Free-riders use the file sharing as a substitute for purchasing albums because they have more time than money. While they can not afford to purchase vast libraries of albums, they do have the time and persistence to find what they want by file sharing.
What happens when the file sharing networks get significantly quicker and easier to use? As the time investment required to use P2P goes down, a number of samplers will become free riders. The less the time investment and the greater selection that is available on P2P, won’t more samplers become free riders?
When the number of free riders becomes larger than the number of samplers, then the music industry will feel negative effects. To stop this, the major labels need to both offer a nearly frictionless alternative to p2p. Except for the limited catalog and DRM restrictions, iTunes is close. Through lawsuits, the RIAA is trying to create more transaction friction in P2P. By making file sharing more difficult, whether eliminating centralized systems like Napster or making file sharers face the threat of lawsuit, the major labels are attempting to maintain the status quo by cutting down the number of freeloaders.
Ernest Miller: Felten, Boorstin and Filesharing

while Felten’s generational distinction is an important one, I’m not sure his theory fully explains what is going on. The main problem I see is that Eric Boorstin’s thesis (Music Sales in the Age of File Sharing), which found that internet access correlates with increased music purchases for older people but decreased music purchases by younger people, isn’t really about file sharing per se. The disconnect here is that there is no data for the correlation between filesharing and internet access.

AP: RIAA Singing the Same Old Song 

Overall U.S. music sales — CDs, legal downloads, DVDs, etc. — rose 9.1 percent in the first three months of the year over the same period in 2003, according to Nielsen SoundScan.

If you believe that…

---

…I’ve got a bridge to sell you. Or three:

Spyware and Adware Roundup

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News.com The spyware that loved me

I had an idea something was amiss when ordinary Web browsing got weird. I don’t typically use Internet Explorer, so pop-up windows aren’t a problem. Suddenly they became a fact of life. Immediately after installing the software in question, I began seeing new windows for a site offering to give me new “Smiley” icons for Yahoo Messenger. Whenever I used Google, a site called Zesty Find oh-so-helpfully popped up in front of whatever I was really trying to find.

News.com: Gator mutation Claria files for IPO

Claria, whose advertising platform (or adware) has come under legal fire from multiple Web site operators, filed an S-1 document with the SEC, seeking to raise an unspecified sum through an initial public offering. According to its filing, the company said it had a net income of about $35 million on revenue of $90 million in 2003.

Tonight We’re Going to Rock You Tonight

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Get your Passover on with a little rock, roll and surf music tonight. I will be playing with Hieronymus Bosch tonight at Luna Lounge (171 Ludlow St.) at 8:30 PM. It’s FREE! That’s right, free!
Once again:
Hieronymus Bosch
Friday, April 9
Luna Lounge (171 Ludlow St.)
8:30 PM
FREE!
Hear “Tonight We’re Going to Rock You Tonight” in This is Spinal Tap

Drive for Life

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Just before teeing off at The Masters, Tom Watson learned that Bruce Edwards, his longtime caddy, passed away after a 15 month struggle with ALS.

“Damn this disease!” Watson cried. “Damn it!” He paused and collected himself. “They are going to find a cure. We don’t have one right now.”

From the NIH, Amyotrophic Lateral Sclerosis Information

Amyotrophic lateral sclerosis (ALS), also called Lou Gehrig’s disease, is a progressive, fatal neurological disease affecting as many as 20,000 Americans with 5,000 new cases occurring in the United States each year. The disorder belongs to a class of disorders known as motor neuron diseases. ALS occurs when specific nerve cells in the brain and spinal cord that control voluntary movement gradually degenerate. The loss of these motor neurons causes the muscles under their control to weaken and waste away, leading to paralysis. ALS manifests itself in different ways, depending on which muscles weaken first. Symptoms may include tripping and falling, loss of motor control in hands and arms, difficulty speaking, swallowing and/or breathing, persistent fatigue, and twitching and cramping, sometimes quite severely. ALS strikes in mid-life.

To support research into ALS, donate to Driving 4 Life or the ALS Association.
(via Sugar, Mr. Poon?)

Playoff Picks

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Here we are: time to sit down with a box of matzah to watch Stanley Cup playoff games. These first-round series are difficult to pick, especially in the East, but that’s not going to stop me. After all, I won our fantasy league playoffs.
East
Tampa Bay Lightning – New York Islanders
Even though the Islanders did well in the regular season series, the LIghting are too strong of a team. Tampa Bay in 5.
Boston Bruins – Montreal Canadiens
A team won’t go deep into the playoffs without strong goaltending. Montreal will get a good performance from Theodore. For Boston Raycroft should be good enough so that the better team (Boston) wins. Boston in 7.
Philadelphia Flyers – New Jersey Devils
The Flyers owned the Devils at the end of the regular season but have not played well since. Brodeur will steal at least one game for the Devils and their experience counts. Devils in a nasty 7.
Toronto Maple Leafs – Ottawa Senators
7 games. Overtime. Everyone’s a winner. Except for the team who loses game 7.
West
Detroit Red Wings – Nashville Predators
Remember Jiggy and the Ducks sweeping the Wings in the first round last year? So do all of the Wings. While Nashville has played Detroit well all year and Vokoun is playing well in goal for the Predators, Detroit is too good to lose this matchup. Detroit in 5. Maybe 6.
San Jose Sharks – St. Louis Blues
The Sharks are the second seed? Who even plays for the Sharks this year? Nabokov and San Jose over the Blues in 6.
Vancouver Canucks – Calgary Flames
Earlier in the season, I’d have gone with Vancouver hands down. Now, were I a compulsive better, I’d put my money on Kiprisoff over Cloutier, for one round. Calgary in 7.
Colorado Avalanche – Dallas Stars
The Avs should be playing much better, but they’re still playing well enough to win at least one round. Unfortunately, they need to beat Marty Turco and Dallas. Colorado in 7.
Now, tell me why I’m wrong.

Happy Passover

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Remember: it’s good for the environment to [recycle][1].

Wonderfalls on its face

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I had planned to write a post extolling the virtues of the clever and critically acclaimed television show, Wonderfalls. But then Fox cancelled the show after 4 episodes, so I am a week too late. Wonderfalls is a clever, entertaining, somewhat odd, program about being overeducated and underemployed– being no more than “four words and a digit” in a bio blurb.
Executive Producer Tim Minear on the cancellation:

At some point in the process, I could sense an erosion in enthusiasm. Even as we were finding our footing and delivering to them [Fox] some really exceptional episodes (ones you never got to see!), things got chilly. Then they couldn’t seem to find any place on the schedule for us. Then they did… and it was Friday night. I tell you now, the moment that was announced, I knew it was over. They were dumping us into Friday nights and that was that. When the smashing reviews started coming in… and coming and coming and coming… I think they didn’t know what to think or do. You have but one chance to make a good first impression. But they’d given up on the show before it ever aired, and even when the lion’s share of critics were hailing the show, it was too late for them to backtrack and launch the series with any kind of conviction. My “Firefly” experience was repeating itself.

Fox has put some of the most clever shows on television, yet cancelled them to make room for more low-brow reality shows, such as The Littlest Groom, My Big Fat Obnoxious Fiancée, The Swan, Paradise Hotel, Joe Millionaire, and more. Besides Wonderfalls, Firefly, Andy Richter Controls the Universe, Futurama, Family Guy all met premature demises. Arrested Development is not likely to return next year. Why is Fox initially willing to run creative programs, but reluctant to support or air them?
San Fransisco Chronicle TV critic Tim Goodman kvetches: Angry gods of Nielsen badger Fox

Honestly, Fox has reached a point (well, technically, it reached this point about three seasons ago, but just go with me here), where it no longer gets brownie points for putting on Really Great Shows. It makes critics happy… but no greater good is achieved when said Really Great Shows get canceled.

Wonderfalls may yet get picked up by another network or get released on DVD. The theme song, by Andy Partrige of XTC is available on iTunes

Free Culture Flame War

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In Forbes, Stephen Manes writes Let’s Have Less Of Lessig
Lessig replies: “It’s Simple” says the MANes
The NY Times reviews Free Culture: ‘Free Culture’: The Intellectual Imperialists

File Sharing Heresy

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NY Times: A Heretical View of File Sharing

The music industry says it repeatedly, with passion and conviction: downloading hurts sales.
That statement is at the heart of the war on file sharing, both of music and movies, and underpins lawsuits against thousands of music fans, as well as legislation approved last week by a House Judiciary subcommittee that would create federal penalties for using what is known as peer-to-peer technology to download copyrighted works. It is also part of the reason that the Justice Department introduced an intellectual-property task force last week that plans to step up criminal prosecutions of copyright infringers.
But what if the industry is wrong, and file sharing is not hurting record sales?

Insane in the rank game

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Last week, US News and World Report released the latest installment of its law school rankings. Prospective students will change their plans. Current students will take a few seconds to gloat about an increased ranking or kvetch about a drop in rankings. 99% of the rest of the world will fail to give half a sh!t.
Brian Leiter discusses this year’s rankings and concludes that “the system deserves to be gamed, since it is intellectually bankrupt.” Leiter offers his alternative rankings of faculty quality, based on detailed surveys completed by 150 leading legal academics.
One problem with the rankings is that they try too hard. Is there really that much of a difference in quality between #1 Yale, #2 Harvard and #3 Stanford that they aren’t essentially fungible in terms of overall quality? The difference between #1 Yale and #29 Boston College, however, is significant enough to use to evaluate schools. A less contentious, and arguable more useful ranking system would be to rank schools into tiers, but much more narrowly-defined tiers than US News uses. This would be more useful to prospective students who should evaluate schools on the unique characteristics of each institution rather than on a slavish readings of the rankings.
Via Kevin Heller we learn that the NYC-area schools are generally more selective than their rankings would indicate, based on the US News data. In Prof. Leiter’s ratings of faculty quality, Brooklyn, Cardozo and Rutgers are among those schools with “much stronger faculties than their US News rank might suggest.”
I’ll admit that I’m very interested to see why Brooklyn dropped 12 places in the rankings this year while Cardozo remained in the same position. Note to the world: please stop giving me trivial reasons to consistently second-guess my particular decision to go to law school.
Not surprisingly, the rankings give students something to blog about. Here are some of the better posts:
Students:
Carey Cuprisin: Rankings Insanity: “The real insanity is what the furor over school rankings reveals about the priorities of law students.”
Sua Sponte: the rankings kerfluffle: “The real issue is that, thanks to a silly system of categorizing disparate experiences, talented people will reap less than what should — and elsewhere would — be the full fruits of their labor. And it bothers me, even with all the hemming and hawing about how rankings are crap (which they are), that people still construe them at a macro level as a proxy for merit.”
Jeremy Blachman: “Sometimes having more opportunities isn’t really that great because there are also more costs and more pressures to take certain jobs, and also how the rankings can distort stuff because what’s really the difference between #15 and #18 yet sometimes people make decisions based on that, and how it’s bad to go to law school not knowing what you want to do and get sucked into doing what everyone else is doing, but it’s not that bad to go do what everyone else is doing if that’s what you really want to do.”
Craig at cka3n: Nearly obligatory US News thoughts ”There are three complaints about the US News rankings that repeatedly surface. I think that each is largely a myth – at least to the extent that they render the US News rankings more noxious than any other rankings.”
Heidi Bond: Rank Rankings: “If you cannot make your own rankings of law schools, based on what you want to get out of law school, you should seriously consider not attending. If you say to yourself “Gee, Chicago lost a point in raw score in the US News survey this year,” and you think that Chicago is therefore a less worthy school, you should seriously consider not attending law school.”
Professors:
Tung Yin: U.S. News rankings: “My personal view is that the rankings tell us something, but obsessive attention to the precise rankings is not particularly useful. Is Boalt really exactly #13, behind Cornell but ahead of Georgetown? Or is it more useful to think of Boalt as a damn fine school, behind the Yale/Stanford/Harvard/Columbia cluster?”
Ann Althouse: US News and law school admissions: “A school that goes all out for the complicated factors and downgrades the importance of the LSAT and the GPA has to know that it will sink in the rankings and that in the coming year, the people it would like to select using those complicated factors will not be applying or, if they apply, when the see the new rankings in the spring, will not accept.”
The Volokh Conspiracy’s David Bernstein: “The real problem is not rankings, but that U.S. News has had a virtual monopoly on the rankings, though Leiter has provided more useful (at least for those concerned with the academic quality of the faculty and students at various schools), though less used guidance for students for several years now. One hears of such things happening, but it’s absurd, for example, when a student turns Chicago for NYU because the former is ‘ranked’ sixth and the latter fifth.”

Crawford Copyright Office Talk at Cardozo

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Prof. Susan Crawford addressed the Copyright Office earlier this week.

But I’m here to tell you during this peaceful lunchtime in this lovely setting, right here at the intersection of 12th and 5th, that copyright policy is being taken away from you and you may never get it back; and if you’re told that you’re in charge of it, as you assist with international negotiations, you’re not being told the truth.

Take me out to the ball game (and golf course)

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With PacBell Park offering free WiFi at Giants games this season, a BoingBoing reader wonders “If I take my Powerbook to the ballpark and plug in my iSight Camera with it pointed towards the game, then isn’t that an illegal broadcast of Major League Baseball?”
An appellate court ruled on a In a decision issued this week, Morris Comm. Corp. v. PGA Tour Inc., the 11th Circuit ruled that the PGA tour can prevent web sites from publishing compiled real-tme golf scores without violating the Sherman Anti-Trust Act (15 U.S.C. §2).
The Morris decision is not applicable to the situation in Pac Bell Park. The PGA does not allow the use of cell phones or handheld devices on the course during play. The only way to collect complete scoring information during a PGA tournament is to use the tour’s electronic scoring system, available at the event media center. The PGA restricts access to the media center to organizations credentialed by the PGA.
The 11th Circuit affirmed the District Court’s decision, finding that the PGA’s actions do not exclude competitors from the market.Eeven if the PGA possessed monopoly power in the relevant market, the PGA has a valid business justifications for its actions, and so those actions are not prohibited by the Sherman Act. Here, the valid business justification was to “prevent free-riding” on the real-time scoring system which the PGA spent considerable money to develop. While “sweat of the brow” is not a valid argument for granting copyright protection, preventing free-riding is a valid business justification for excluding competitors under antitrust law.
Under this reasoning, the Giants could have a valid business justification for enacting contract terms to prevent a fan from sitting in the stands and webcasting the game. Major League Baseball has invested money to employ the umpires and the Giants have invested money to pay their players and stadium staff. Furthermore, MLB invested money in installing equipment and negotiating an exclusive deal with Real.com to webcast baseball games. Unlike golf, Major League Baseball has no similar, legitimate reason for preventing the use of phones or handheld devices within the stadium In fact, the Giants seem to be encouraging the use of handheld devices or portable computers from within the stadium and might not add a contract clause to prevent webcasting. Whether such a contract would be enforceable will depend on its specific terms.
Currently, theGiants’ Pac Bell Park guide states: “Cameras and video equipment are allowed in SBC Park. However, the equipment may not obstruct the view or path of travel of others. Fans are not allowed to reproduce or re-broadcast any film or videotape of Giants games for commercial purposes without the written permission of the San Francisco Giants and Major League Baseball.”
At Lawgorithm, Dan thinks these terms should be sufficient to stop an independent webcaster on unfair competition grounds:

It is well-established that the teams have the right to sell exclusive licenses to broadcast their games. See Pittsburgh Athletic Co. v. KQV Broadcasting Co., 24 F. Supp. 490 (W.D. Pa. 1938). Pittsburgh Atletic (the Pirates) had sold the exclusive rights to broadcast their games to General Mills, which then contracted with NBC to broadcast the games on radio stations KDKA and WWSW. Defendant KQV had observers standing outside the stadium (not under the standard ticketholder contract), watching the game and broadcasting live play-by-play. The Pirates sued to enjoin KQV from broadcasting. KQV said the Pirates had no rights in the facts of the game and that it intended to continue. The court found for the Pirates on unfair competition grounds, following INS v AP, 248 U.S. 15 (1918).

The Giants’ home opener is on April 12, against the Milwaukee Brewers.
Law.com reports on the PGA decision: PGA Wins Round Over Real-Time Scores

Two new blogs from EFF

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Deep Links and Mini Links (no relation to Linky Links).

Cup Runneth Over

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Although overshadowed by the NCAA basketball tournament (yawn) and baseball opening day (the last time the Mets may be in contention this year), this year’s installment of the most exciting annual tournament in sports, hockey’s Stanley Cup playoffs looks to be especially exciting.
Whatever the reason, this year’s tournament should be especially competitive. In the East, as of today, only four points separate the #2 seed (Boston) from the #6 seed (NJ). Aside from the Islanders (who need to fend off a late challenge from Buffalo to even make the playoffs), any of the other seven Eastern teams has a legitimate shot of winning the Conference.
Even more intriguing are the first-round matchups that would result from the current standings:
Tampa Bay – Islanders
Boston – Montreal
Philadelphia – New Jersey
Ottawa – Toronto
Aside from Tampa and Long Island, these are all long-standing rivalries and should be outstanding series. (Of course, with the standings so volatile, the matchups could change daily between now and the end of the regular season on sunday.)
Out West, Edmonton, St. Louis and Nashville are in a tight race for the final two playoff seats. Edmonton will need some help to get in. Based on the standings as of today, the Western matchups would be:
Detroit – Nashville
San Jose – St. Louis
Vancouver – Calgary
Colorado – Dallas
Not are there not as many natural rivalries in the opening round as in the East, but this may be the first year in a while where the East may be the stronger conference than the West.
The state of the game is in much better state than the shape of the league. The NHL’s current collective bargaining agreement (CBA) is set to expire before next season. Owners are threatening to lock-out players unless the players’ association (NHLPA) agrees to a salary cap. next season, a greater sense of urgency surrounds these playoffs. After the Stanley Cup finals conclude, there could be no more NHL hockey played in 2004.
After this season, the league’s television contract with ABC Sports/ESPN will expire. Hockey on television draws a substantially lower audience than the NFL, NBA or MLB. As a result, the NHL may not be able to count on any network paying a premium to broadcast hockey. In fact, the NHL may not be able to count on any network wanting to broadcast hockey. However, If ABC/ESPN fails to renew it’s contract with the NHL, I wouldn’t be surprised if NBC ends up picking up the rights at a bargain price. After losing NFL football to CBS, Major League baseball to Fox, NBA basketball to ABC and Nascar to Fox, the once vibrant NBC Sports shows little more than some golf tournaments and Arena football.
And in Fantasy hockey news, despite a lackadaisical regular, the official AndrewRaff.com team is competing in the finals of the league playoff. Apparently, my strategy of completely ignoring my team for three months during the regular season is a winning strategy.
I may need another DVR just to record hockey playoff games…

Popping Fresh

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IPKat reports on a German decision granting a preliminary injunction in Hertz’s suit against pop-up advertiser Claria (the company formerly known as Gator Corp.): Squeeze the Former Gator til it Really Hertz

a court in Cologne, Germany, granted Hertz Germany an injunction against Claria (formerly known as Gator), ordering that company to stop feeding its pop-up ads for Hertz’s competitors on to Hertz’s website. The court found that this infuriating practice breached provisions of the German Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb, or UWG)

A rough translation of the German statute into English is available through Google translate as Law against the mean competition.
In the US, cases against Claria are pending, after they were consolidated by the Judicial Panel on Multidistrict Litigation.
In cases against pop-up advertiser WhenU, courts have reached divergent results. In the Southern District of NY, 1-800 Contacts obtained a preliminary injunction against WhenU and VisionDirect on trademark grounds. In the Eastern District of Michigan, U-Haul was denied a preliminary injunction against WhenU.
(via The Trademark Blog)

File Sharing, Eh

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Some reactions on and commentaries about the Canadian decision finding that placing files in a shared folder is not copyright infringement in BMG v. Doe:
LA Times: File Sharing Ruled Legal in Canada

Judge Konrad von Finckenstein’s legal blessing was an unexpected setback to the music industry’s expanding international effort to stop free and unauthorized downloads. But experts said the judge’s ruling hinged on elements of Canadian law not found in many other countries, including the United States.

Vancouver Sun: Sharing music over Internet not illegal, Federal Court rules
Matthew Skala: BMG v. Doe: File sharing legal??

The media reports are saying that file sharing is now 100% A-okay in Canada; the decision is much less broad than that. The case at this point is only about revealing identities of ISP subscribers, not really the larger question of file sharing; a lot of the basis for the decision against BMG et al. came from procedural issues rather than the file sharing question that interests everybody; and it’s subject to appeal and I fear will not stand anyway. Don’t rejoice too much yet!

Wendy Seltzer: Time to Move to Canada
Ernest Miller: An Unenthusiastic Response to the Canadian Filesharing Decision

The second point [Placing personal copies into a shared directory is not “distributing” or “authorizing the reproduction” of sound recordings] is actually rather dangerous if interpreted broadly, that is, if you believe in the continued value of copyright law on the internet.

Fools in the Rain

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Rejected AndrewRaff.com April Fools ideas:

• Heartfelt notice about ending this blog. [It’s been done]
• Quitting law school to campaign for John Kerry [too close to reality to be funny]
• Supporting Bush/Cheney 2004 [too disturbing to be funny]
• Quitting law school to go on tour in the William Hung backing band [not funny].
• Quitting law school, moving to Australia to become a cattle judge [might be too confusing with that other Andrew Raff]
• Free 1GB email for all!

April Fools elsewhere on the web:

• Homestar Runner loses its domain.
• EFF merges with the DOJ
• De Novo: Today in Legal History: “Soviet Union annexes United States as newest republic in communist empire (1988)”
• Hockey Rodent becomes Hockey Robot. Go Leafs Go.
• Poon quits
• MetafilterWiki
• The IRS starts WYSKster, a social networking site at WhoYouShouldKnow.gov.
• Ernest Miller: Wal-Mart to Purchase Universal Music Group
• Lawmeme: RIAA Sues Google
• Duke University Purchases Public Domain
• Work for Google, on the Moon

Stand By Your Words

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Via Kevin, we learn what happens when a fictional, but entirely plausible, hiring partner hears the word ‘weblog’ for the first time:

Uh oh. One of the recruiting coordinators knocked on my door this morning. Apparently she had lunch over the weekend with one of her colleagues, and heard a story about an associate at another firm who had “some sort of online journal — something apparently called a weblog,” and was writing stuff about the firm, and her colleagues, and when they discovered this it became a big deal, because of what was up there, and they ended up reprimanding the associate and having her make the blog vanish immediately.

At Copyfight, Elizabeth Rader responds: Your Permanent Record:

My first reaction is one I have over and over in Internet law… firms–did you really think your employees never talk about the firm and its goings-on? Did you really think your candidates had no opinions other than those they glibly recited in their interviews and fancy lunches? Lawyers–did you really think the firm would never check your background? Did you really think the firm wouldn’t notice if you’re writing about it? My second reaction is also typical: Firm–get a thicker skin. Lawyers—own up to your past and, today, if you’re ashamed for someone to read what you’re saying, why are you saying it in the first place?

Even though it may seem ephemeral, what one posts publicly on the internet is searchable and increasingly permanent, thanks to tools like The Internet Archive and Google Groups.
Hence, I try to be responsible about what I post here and prefer to err on the side of discretion and silence.
Nick Morgan has adopted a similar approach towards responsible blawging: “writing in my own name forces me to take due responsibility for my public remarks. Plus, in the unlikely event that I some day produce a truly original thought, credit would be nice”
Incidentally, I Googled myself for the first time in a while and learned that my doppelganger in Australia is a cattle judge. Perhaps that bodes well for my chances of getting appointed to the bench someday?

My Next Phone?

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Engadget reports on the arrival of the Motorola V600, a quad-band GSM mobile phone with bluetooth and camera. Mobile Burn digs the V600. This looks like a snazzy phone. If it were $299 cheaper, I’d be there.
On the other hand, the Sony Ericsson T610 also has Bluetooth and a camera, is much less expensive and is not a flip phone. However, I get lousy reception at my place with its predecessor (T68i) on the same network. With an actual antenna, the V600 should have better reception.
Not that I am in any rush to get a new phone, but I would like to be able to use my cell phone in my apartment without leaning up against the window.

Uploading Is Not Infringement

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In Canada, a court ruled that making files available on a file sharing network is not proof of copyright infringement. The Toronto Globe and Mail reports: Court quashes music industry bid for IDs

Justice Konrad von Finckenstein ruled Wednesday that the Canadian Recording Industry Association did not prove there was copyright infringement by 29 so-called music uploaders.
He said that downloading a song or making files available in shared directories, like those on Kazaa, does not constitute copyright infringement under the current Canadian law.

It will be interesting to see if this ruling has any effect on pending cases here in the US.
Update (3:52pm): Via FurdLog, the opinion: BMG Canada Inc. v. Doe, 2004 FC 288.
The court finds that the plaintiffs (Canada record labels) failed to establish a prima facie case of copyright infringement for three reasons:

1. The affadavits from MediaSentry (a p2p tracking firm employed by the plaintiffs) are hearsay and fail to meet the best evidence rule. The proffered evidence fails to establish that the files being offered are actually infringing files of the plaintiffs.
2. The plaintiffs failed to provide clear and comprehensive evidence of how the usernames of the Kazaa or iMesh users are connected with the IP addresses identified by MediaSentry.
3. Finally, “no evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings. They merely placed personal copies into their shared directories which were accessible to other computer users via a P2P service.” Downloading songs for personal use is not infringement.

The court goes on to evaluate the practical and privacy concerns in revealing the identity the user of a dynamically-assigned IP address.

Uploading Is Not Infringement

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In Canada, a court ruled that making files available on a file sharing network is not proof of copyright infringement. The Toronto Globe and Mail reports: Court quashes music industry bid for IDs

Justice Konrad von Finckenstein ruled Wednesday that the Canadian Recording Industry Association did not prove there was copyright infringement by 29 so-called music uploaders.
He said that downloading a song or making files available in shared directories, like those on Kazaa, does not constitute copyright infringement under the current Canadian law.

It will be interesting to see if this ruling has any effect on pending cases here in the US.

Penguins Everywhere

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SF Chronicle: Lawsuits change approach to Linux: Companies more cautious about use of open source

Companies large and small are still deploying new open-source projects just as rapidly as ever, say Cohen and other Linux watchers. Linux and other free programs have just become too big a part of business to abandon, with big hardware vendors selling servers preloaded with Linux and companies like Oracle Corp. pushing Linux as the best foundation on which to run its database software.
They’re just doing it more quietly and more cautiously. They’re also using more lawyers.

You’re Fired

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At Findlaw, Irwin R. Kramer evaluates The Donald’s likelihood of success in obtaining trademark registration for the phrase “you’re fired”: The Donald’s New Game of Trademark Monopoly

To get his trademark, The Donald must establish that the slogan carries a “secondary meaning” which identifies America’s most flamboyant entrepreneur. Put another way, Trump must show that Americans link this phrase directly to him – so closely that this connection has actually become part of its meaning.

It’s what’s for dinner

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Via Howard, we learn that the 9th Circuit is set to hear oral arguments in an appeal of some Montana ranchers’ challenge to the national beef checkoff program. Under this program, ranchers pay $1 per head of cattle to fund initiatives promoting beef. The program raises about $80 million each year.
A checkoff program funded those “Beef, it’s what’s for dinner” ads, which associated “Hoedown” (fromAaron Copland’s ballet “Rodeo“) with that phrase in the minds of millions of impressionable television viewers.
In order to free my readers’ minds from that association (or to further reinforce it), enjoy an MP3 of Béla Fleck and the Flecktones playing Hoedown, from the Beacon Theater on November 24, 2000, with special guests Paul Hanson, John Clark, Andy Narell and Sandip Burman: Hoedown (MP3). Download the complete show from archive.org.

E-Voting Threatens Democracy, Film at 11

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Wired: How E-Voting Threatens Democracy

Over the past year, doubts about the accuracy and integrity of e-voting equipment have been growing, thanks to Harris’ discovery. Some election officials have called Harris, a 53-year-old mother of five and a self-employed publicist, a wacko, a conspiracy nut and even a threat to democracy for her role in raising the controversy. But day by day, other election officials, secretaries of state, legislators and voters have come to agree with her that something is seriously wrong with electronic voting systems and the companies that make them

E-Voting Threatens Democracy, Film at 11

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Wired: How E-Voting Threatens Democracy

Over the past year, doubts about the accuracy and integrity of e-voting equipment have been growing, thanks to Harris’ discovery. Some election officials have called Harris, a 53-year-old mother of five and a self-employed publicist, a wacko, a conspiracy nut and even a threat to democracy for her role in raising the controversy. But day by day, other election officials, secretaries of state, legislators and voters have come to agree with her that something is seriously wrong with electronic voting systems and the companies that make them

First Skate

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This afternoon, I broke out the skates for the first time this year. (In contrast, last year’s first skate happened during a warm spell in February.)
Last night, in conversation, I mentioned how little I know of the geography of Brooklyn north of the Manhattan Bridge. Perhaps because of inspiration from photos taken on the Satan’s Laundromat walking tour of Vinegar Hill, I decided to skate along the Brooklyn Navy Yard up towards the Williamsburg Bridge, then over the Williamsburg Bridge, and back to Brooklyn over the Mahnattan Bridge. The route is similar to Jake’s Around the Navy Yard. This was a nice easy warm-up for an early spring day, albeit over streets that have not fully recovered from winter’s potholes.
Skating this route provided me with a nice reminder of the diversity among the population of Brooklyn.

Yale Cybercrime Conference

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Susan Crawford blogged the Yale Information Society Project conference on cybercrime, Digital Cops in a Virtual Environment.
Jack Balkin: “what are the different forms of cyberprotest, and how do they relate to the freedom of speech?”
Jonathan Zittrain talks “about filtering in China and circumvention of such filtering. And hacktivism.”
Lee Tien: “How does a user know when a device has been redesigned to limit what the user can do?”
Paul Ohm: “Technology in the courtroom:  Too much of it, and not enough of it.”
Nicolai Seitz on “the problems of transborder enforcement of requests for information.”
Marc Rotenberg: “to the extent actors seek to comply with legal obligations and claim that they are “privacy enhancing,” then it technologies must incorporate auditing, transparency, all other requirements, because of the enormous risk of government misuse.”
Sonia Katyal: “it’s important to think about the relationships among public/private law enforcement and surveillance.  Cyberspace allows us to contemplate the limits and possibilities of architecture and law.”
Orin Kerr: “computer-related crimes will end up with a different set of procedural rules – “network” criminal procedures.  Even if crimes remain the same, they’re committed in different ways.  New facts will trigger needs for new laws.”
Beryl Howell and Alan Davidson: “specific laws directed to specific problems are very important.  So we need to keep updating these laws to fix mistakes and keep up with changes in technology.”

Won’t Somebody Think of the Children?

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Senators Hatch (R-UT) and Leahy (D-VT) introduced the Protecting Intellectual Rights Against Theft and Expropriation Act of 2004 (S.2237) which would add §506a to the Copyright Act (17 USC) to allow the Justice Department to file civil copyright infringement complaints. These civil copyright cases would only require a preponderance of the evidence to prove infringement (rather than the stricter beyond a reasonable doubt standard for a criminal copyright infringement case.)
Wired News: Congress Moves to Criminalize P2P 
Joe Gratz: RIAA’s Next Step: A $2 Million Gift From Taxpayers: “[This aproach] shifts the costs of civil copyright enforcement from copyright holders to taxpayers. The direct cost is $2 million dollars – a quick, easy $2 million wealth transfer to rent-seekers from society at large. Perhaps the larger cost is the further erosion of the public’s belief in the separation between government and big business.
Copyfight’s Donna Wentworth: Funding the War on Filesharing
Ernest Miller: PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry

Perhaps Hatch doesn’t realize this, but most pornography is copyrighted and, as Hatch notes, is frequently distributed via filesharing networks. Since Hatch wants to stop copyright infringement and also discourage the redistribution of pornography, there is only one logical conclusion. This new law is meant to encourage the DOJ to go after those infringing pornography copyrights through P2P filesharing. By suing those engaged in pornography piracy, the DOJ could accomplish two of Hatch’s goals at once: reducing infringement and pornography redistribution

Achievements

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L-Cubed wonders What Had You Accomplished By Age 27? Unless next year is much more exciting than last year, I may not want to answer that question. At 26, I can’t really point to anything of any substance that I’ve accomplished or contributed to society. Note to self: make a contribution to society this year.
This is as good a time as any to revisit a link I first posted a year ago: Things Other People Accomplished When They Were Your Age. Some of the notable accomplishments people made at age 26 include:

• Albert Einstein published five major research papers in a German physics jornal, fundamentally changing man’s view of the universe and leading to such inventions as television and the atomic bomb. [Einstein was also born on March 14]
• Benjamin Franklin published the first edition of Poor Richard’s Almanac, which was to play a large role in molding the diverse American character. [I’ve always wanted to play a large role in molding the diverse American character]
• Eli Whitney invented the cotton gin, revolutionizing the economies of the United States and Britain. [My lifelong dream has been to revolutionize an economy]
• College dropout Steve Wozniak co-founded Apple Computer. [I am using an Apple computer now]
• Antoine Joseph Sax invented the brass saxophone. [I play saxophones often]
• Napoleon Bonaparte conquered Italy. [I’ve been to Italy. Perhaps this year I will conquer it…]

Free ‘Free Culture’

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Lawrence Lessig released his latest book, Free Culture, this week. Lessig has also posted an electronic version, freely available to download, under a Creative Commons license.

WTO Bets on Online Gambling

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NY Times: U.S. Online Gambling Policy Violates Law, W.T.O. Rules

The World Trade Organization, in its first decision on an Internet-related dispute, has ignited a political, cultural and legal tinderbox by ruling that the United States policy prohibiting online gambling violates international trade law.
The ruling, issued by a W.T.O. panel on Wednesday, is being hailed by operators of online casinos based overseas as a major victory that could force America to liberalize laws outlawing their business.

Fourth Circuit Invalidates Internet Speech Regulation

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Yesterday, in PSINet, Inc. v. U.S. Internet Service Provider Assoc., the Fourth Circuit struck down a Virginia state law which criminalizes the dissemination of material harmful to minors over the Internet. The court relied on both First Amendment and Commerce Clause grounds to affirm the District Court’s summary judgment ruling.
Ernest Miller looks at the decision, Divided 4th Circuit Invalidates Virginia’s Internet Speech Regulation Statute and notes that “two district judges were sitting by designation and upheld the lower court decision. Appellate Judge Paul Niemeyer dissented. Unfortunately, this increases the possibility of en banc review in what many consider the most conservative Federal Circuit.”

I need to take better notes

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The full extent of the notes I took about Kahn v. Tremont Corp. read:

Kahhhnnn!!!! &lt/Shatner&gt

Spring time and the skiing is easy

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In today’s Times, Bill Pennington ponders why, for most people, ski season ends too early: Time to Stash the Skis? Not So Fast

We will go out in the cold and in the wind. We will brave crowds and long lift lines. We will endure icy trails and jarring, hard-packed snow underfoot. We will pay handsomely to do it.
But we will not, or at least most of us will not, ski once it is spring.
This decision makes no sense. Because the elementary facts about spring skiing and riding are that it is warmer, the slopes are far less congested, the snow is softer and more forgiving, and the lift ticket prices are usually slashed.

In early season, many skiers are excited to get on the snow as soon as possible and are more forgiving of thin cover, minimal terrain open and early sunset. In April, though, when days are longer and brighter, the temperature is warmer and the snow cover is better, skiers prematurely abandon the slopes. Ski resorts close in the spring not because they have run out of snow, but because they have run out of skiers.
In the East, Killington generally remains open the longest, typically through Memorial Day. Beyond that, one can always hike Tuckerman’s Ravine on Mt. Washington. Out West, with higher elevations, there’s even more spring skiing. Mammoth and Squaw Valley have had skiing on July 4th.

A new Constitutional Copyright Challenge

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In another interesting project from the Cyberlaw clinic at Stanford, the Brewster Kahle, the president of the Internet Archive and Richard Prelinger, who are challenging the constitutionality of the Berne Convention Implementation Act. The suit seeks declaratory judgment:

(1) that the Berne Convention Implementation Act (BCIA) is unconstitutional under the Free Speech Clause of the First Amendment, and
(2) that the BCIA and Copyright Term Extension Act (CTEA) together create an “effectively perpetual” term with respect to works first published after January 1, 1964 and before January 1, 1978, in violation of the Constitution’s Progress Clause.

Kahle v. Ashcroft FAQ
Prof. Lessig: Save the Orphans

Pundit watch: you’ll be able to identify a pundit who has not read either Eldred or the complaint when they suggest the case is the same as Eldred was. It is not. Indeed, the claims are fundamentally different. The only relation between the two is that Kahle/Prelinger v. Ashcroft follows the rules suggested in Eldred for challenging Congress’s transformation of the traditional contours of copyright law. Eldred said: tradition matters. This case says: the tradition was radically changed.

Copyfight: Eldred III
Joe Gratz: New Constitutional Challenge to Copyright Law Revisions

The real villain here is the elimination of formalities (registration, deposit, renewal, and notice) in the 1976 Copyright Act and the subsequent elimination of the requirement of renewal wrought by the BCIA. Formalities are efficient. Only the copyright holder knows how much the copyright is worth to him; it would be costly for anyone else to find out, but he already knows. He’s the least cost information provider

More on this point later…

Net democracy

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GrepLaw interviews Joel Reidenberg: Joel Reidenberg on Hack Toolz, Lex Informatica, and Affirming Non-US Democratic Values

Joel Reidenberg, professor at Fordham University School of Law, talks with GrepLaw about how “hack tools” (such as packet interceptors, viral e-mails, filters, and DoS attacks) give democratic states the ability to enforce their freely chosen public policies within their territories. Mr. Reidenberg challenges the conventional wisdom that said either the person or the person’s assets needed to be within the state’s physical territory to enforce the state’s law.

More file sharing suits

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Reuters: RIAA sues 532 more file-sharers

Like 1,063 similar suits filed since January, the Recording Industry Association of America employed the “John Doe” litigation method because the names of the infringers accused of illegally distributing copyrighted sound recordings on peer-to-peer services were not yet known.

Sex and the Cell Phone

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Here are two news articles about attempts to use the mobile phone for more technologically advanced dating-related purposes than keeping the rejection line number handy. Can you guess which one is trying to be a mobile match.com and which is trying to be a mobile casual encounters?
CNN: Cell phones link lonely hearts

Would-be daters looking for a “significant other” may soon be able to subscribe to a service which stores in their phones a personal profile and information on what they want most from a partner.

Wired: Brits Going at It Tooth and Nail

And now comes “toothing,” where strangers on trains and buses and at bars and concerts hook up for clandestine sex by text messaging each other with their Bluetooth-enabled cell phones or PDAs.

This will probably never catch on in NY, but for now, I’m keeping my phone’s Bluetooth turned on, bluesnarfing be damned…

Wal-Mart Launches Legit Downloads

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Reuters: Singing at Wal-Mart

Wal-Mart Stores Inc., the world’s largest retailer, said Tuesday it officially launched its online music store, which it began testing in December.
The store, which allows customers to download a song from the Internet for 88 cents, has added new artists and been expanded by 50 percent, the Bentonville, Ark.-based retailer said.

Copyright in Canada, Again

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Michael Geist has another article about the Canadian Supreme Court’s decision in The Law Society of Upper Canada v. CCH Canadian, this time in the Toronto Star: Low-tech case has high-tech impact

The Law Society of Upper Canada v. CCH Canadian, a Supreme Court of Canada decision released by a unanimous court several weeks ago, instantly ranks as one of the strongest pro-user rights decisions from any high court in the world, showing what it means to do more than pay mere lip service to balance in copyright

Previously: Canada Copyright and Copyright Balancing in Canada.

What Every Citizen Should Know About DRM

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What Every Citizen Should Know About DRM is a primer on digital rights management (DRM) technologies and their relationship with copyright law. This report was written by Mike Godwin, Senior Technology Counsel at Public Knowledge
(via the New & Improved Copyfight)

10 Years of Spam

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Spam’s Tenth Birthday

Ten years ago today, spam as we know it was born. On 5 March 1994, a message was posted to some Usenet newsgroups by a law firm called Canter and Siegel, advertising their services for the U.S. Green Card lottery. It sounds mild enough today, but at the time that move and its follow-ups provoked increasing outrage across the Net. Many were appalled that “netiquette” – the unspoken rules that hitherto had maintained order in cyberspace – had been breached, sensing perhaps that things would never be the same again.

And look what it’s grown up into: a societal problem that has effectively killed Usenet as a useful resource and is on its way towards knocking off e-mail. We’re so proud.

Popping Fresh

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GigaLaw: Roundtable Discussion: Pop-Up Ads and the Law

Pop-ups and banner ads are the bane of many Internet users and the boon of companies trying to pitch goods and services. They’re also the topic of a number of suits in courts around the country, because when such ads use a search for one company’s trademarked term to point potential customers toward a rival, it’s potentially trademark infringement.
But what separates mere nuisance from something that’s legally actionable? Does timing — whether a competitor’s pitch pops up before or after a consumer makes an online purchase — matter? What if the pop-up or banner ad clearly identifies the company it serves? How does the consumer’s likelihood of confusion come into play? And what First Amendment issues could be triggered if courts choose to squash pop-ups?

I’ll have a more substantial post on this issue once I get the seminar paper I am writing about it squared away…

FCC Revisits Profanity

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Ernest Miller: FCC Revives Notion of the Profane

In a decision released yesterday, the FCC announced a new doctrine of fining “profane” broadcasts. Although 18 USC 1464 has always given the FCC jurisdiction over “obscene, indecent or profane language,” the FCC has never based any fine on “profane” language, preferring to rely on indecency rulings. Given the newness of this interpretation of the law and the vagaries of the definition of “profane,” this might be the most far reaching of the FCC’s recent assaults on freedom of expression. Could the FCC be getting into the business of regulating hate speech?

Accountant Sues Google

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AP: Man ‘Googles’ Himself, Sues for Libel

Mark Maughan is a certified public accountant with the Brown & Maughan firm. He claims that on March 25, 2003 he was told by friends and family that typing “Mark Maughan” into a Google search engine delivered “alarming, false, misleading and injurious results” about him and the business….
[Maughan’s Attorney John] Girardi said the problem lies with Google’s patented PageRank algorithm search system. According to the suit, PageRank, created by Google founders Larry Page and Sergey Brin, “reformats information obtained from accurate sources, resulting in changing of the context in which information is presented.”

Namespaces

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In this week’s New York Times Magazine, James Gleick writes about about names, namespaces, trademark and domain names: Get Out of My Namespace

Notorious forms of litigation flow from the overprotection of names. Every small-business owner is burdened by frivolous cease-and-desist letters; sending these is a cottage industry. The Fox News Network was laughed out of court trying to control the use of the words ”fair and balanced”; yet for now, at least, Fox still does own trademark rights in those words, in two categories: television news programs and neckties. The organization that maintains the Dewey Decimal Classification system sued a library-themed hotel for using its numbers — Room 700.003, for example, dedicated to the performing arts. (The case has been settled.) Pet Friendly of Alabama, maker of rope chew toys, is threatening Pet Friendly Rentals of California. Santa Claus has been trademarked in several hundred ways. None of this serves the public interest. It’s wasteful overhead, it’s expensive and it’s noxious.

CAN-SPAM Can’t Do

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Pew internet & American Life Project: The CAN-SPAM Act has not helped most email users so far

The impact of the CAN-SPAM legislation is mixed, but not very encouraging so far. The vast majority of email users report no change in the volume of spam arriving in the in-boxes of either their personal or work-related accounts. A slightly larger percentage of email users report their volume of incoming spam has actually increased rather than decreased since January 1. At the same time, some email users say they are getting less spam both in their personal email accounts and in their work accounts.

Previously: CAN-SPAM Can’t Stop Spam

Cybercrime Convention Commences

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With the approval of a fifth country, Lithuania, the Council of Europe Convention on Cybercrime now goes into effect.
Press Release: Entry into force of the Council of Europe Convention on Cybercrime

The convention, which is the first international treaty on crimes committed via the internet and other computer networks, is the result of four years’ work by experts from the 45-member Council of Europe and from non-member countries including the USA, Canada and Japan.

Michael Froomkin: Cybercrime Treaty Goes Live “It’s widely believed that the US wrote this and pushed it through the Council, both to get access to foreign communications and especially to impress on Congress that Carnivore in the US should be seen as business as usual, and something demanded by our allies.”

Constitutional Challenge Concerning Copyright Convention Continues

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The Cyberlaw Clinic at Stanford’s Center for the Internet and Society represents the plaintiffs in Golan v. Ashcroft: “CIS filed this suit on behalf of a University of Denver, Colorado conductor and others, seeking to have the CTEA and the Uruguay Round Agreements Act declared unconstitutional. The suit challenges Congress’s ability to reclassify works that have already passed into the public domain as copyrighted, thereby giving ownership back to private entities.”
The suit survived its first challenge when the District Court rejected the Attorney General’s motion to dismiss. While dismissing the Eldred-related claim, the court found enough merit in the other three Constitutional claims: IP clause (Art. I §6), Free Speech (First Amendment) and substantive due process (Fifth Amendment.)

50 million iTunes

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Apple announced that it has sold more than 50 million iTunes downloads: “iTunes users are now downloading 2.5 million songs per week, which is an annual run rate of 130 million songs per year.”

P2P and Secondary Liability

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The Progress & Freedom Foundation, a conservative think-tank based in DC, recently released a new report concerning P2P and copyright: Liability of P2P File-Sharing Systems For Copyright Infringement By Their Users.

Based on the current uses of P2P file-sharing systems, the policy arguments for holding them secondarily liable for the infringements of their users are very strong. These systems are used for legitimate purposes, like distributing public domain works. And they do offer certain advantages in fulfilling such functions. But there are generally alternative means of distributing such works online. And at present, those noninfringing uses are quite small relative to the use of these systems for widespread Internet piracy. This piracy threatens great harm by undermining markets in digital content.

Personality rights around the world

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Script-ed, a new publication from the AHRB Research Centre for Studies in Intellectual Property and Technology Law  based in the School of Law at the University of Edinburgh, features this article: Comparative Aspects of Personality Rights: Research Project and Case Studies

This is a comparative analysis of the measures instituted in a variety of jurisdictions to protect different aspects of the human personality, such as image, identity, personal privacy, dignity and related economic interests. As part of this project, co-directors have devised a series of case studies, the purpose being to discover not only if there is a commonality in the ethic underlying the protection of personality, but also to ascertain at what level the public interest might operate to restrict or define the scope of the rights

(via beSpacific)

California to force file sharers to wear name tags

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A bill (<a href=““http://www.leginfo.ca.gov/pub/bill/asm/ab_2701-2750/ab_2735_bill_20040220_introduced.html”>AB 2735) introduced into the California state legislator would make unauthorized file sharing a crime, “punishable by a fine
not exceeding $2,500, imprisonment in a county jail for a period not
exceeding one year, or by both that fine and imprisonment for a
person who is not the copyright owner to knowingly electronically
disseminate a commercial recording or audiovisual work without
disclosing his or her true name and address, and the title of the
recording or audiovisual work.”
LA Times: Setting a Trap for Net Pirates

The Culver City Democrat is pushing a bill that would require California file sharers to attach their real names and addresses to the copyrighted goodies they let others download over networks like Kazaa and Morpheus.

Critics of the bill note that because the bill requires all file sharers to use their real name and address, regardless of the content of the files they share, it is probably an unconstitutional restriction on the First Amendment protections for anonymous speech.
EFF: California Bill Backed by Hollywood Attacks Internet Privacy

“These California anti-anonymity bills would force everyone – including children – to put their real names and addresses on all the files they trade, regardless of whether the files actually infringe copyrights,” said EFF Legal Director Cindy Cohn. “Because the bills require Internet users to post personally identifying information, they fly directly in the face of policy goals and laws that prevent identity theft and spam and protect children and domestic violence victims.”

Ernest Miller: “True Name and Address” Bill for All Filesharers Introduced in Calif

Even worse, there is no exception for permission of the copyright holder. So, if I record a song and post it under a Creative Commons license that permits redistribution but reserves commercial use rights, you can go to jail for redistributing it. I mean, really, what more can be said about such an overbroad bill?

Critical Information studies

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Siva Vaidhyanathan attempts to define the field his scholarly work fits in and dubs it Critical information studies

Economists, sociologists, linguists, anthropologists, ethnomusicologists, communication scholars, lawyers, computer scientists, philosophers, and librarians have all contributed to this emerging field. Critical Information Studies interrogates the structures, functions, habits, norms, and practices that guide global flows of information and cultural elements. Instead of being concerned merely with one’s right to speak (or sing or publish), Critical Information Studies asks questions about access, costs, and chilling effects on, within, and among audiences, citizens, emerging cultural creators, indigenous cultural groups, teachers, and students. Central to these issues is the idea of “semiotic democracy,” the ability of citizens to employ the signs and symbols ubiquitous in their environments in manners that they determine.

(via Copyfight)

You’re Fired

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Trump applies for trademark on phrase “You’re Fired.”

Glass

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Walk On, Walk Off

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The Walk-Ons at Acme Underground:

Privacy Policies

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New Study Reveals Corporate Privacy Spending Patterns

The study, commissioned by IBM, surveyed 44 U.S.-based multinational organizations and revealed that while privacy protection is growing in importance for businesses, investments in privacy initiatives are significantly lower when compared to other corporate compliance initiatives, such as environmental or ethics programs. For example, when compared to spending on environmental programs, the study shows that 95 percent of respondents feel that their organizations spend less on privacy than on environmental initiatives.

(via beSpacific)
eMarketer: Effects of Poor Privacy Policies

Will IP Survive?

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In the Financial Times, Ricgard Epstein asks Can IP survive its critics?

Intellectual property is in an age of paradox.

US v. Online Gambling

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NYT: U.S. Threatens Action Against Online Gambling

Federal prosecutors have begun a wide-ranging effort to curb the growing popularity of online gambling in the United States by quietly threatening legal action against American companies that do business with Internet casinos and sports betting operations based outside the country, lawyers and industry executives say.

A Fact

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The central library of the Brooklyn Public Library (at Grand Army Plaza) is closed on Mondays. Perhaps I should have checked the web page before I went over there.

Raising the bar

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De Novo is a new blog that reunites most of the group from En Banc. De Novo stands out from the rest of the crowd by starting a series of symposia. The first symposium, on “Thinking Like a Lawyer” features contributions from Howard Bashman, Prof. Douglas Berman, Prof. Lawrence Solum and Prof. Eugene Volokh. Good stuff.
Also launching today is The Gadflyer, a new progressive Internet magazine. :The Gadflyer will be unabashedly progressive, but not doctrinaire; pugnacious, but not shrill; lively and entertaining, but substantive.”
I’m in the process of revising the blogroll here, but migrating the list from a list to a set of entries in Movable Type is going slowly.

Shelved

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Yesterday, Russian voters went to the polls and decisively reelected President Vladimir Putin.
BBC News: Russia’s Putin sweeps to victory, Putin’s ‘power dilemma’, Observers condemn Russia election, Russian media goes through the motions.
The Moscow Times: Early Returns Give Putin 70 Percent, Officials Turn Vote Into One Big Party
The entire AndrewRaff.com team strives to bring you the best in international political analysis. In that spirit, let us look back at Soviet and Russian leaders of the 20th Century, in matroishka form:

Stanford Privacy Symposium

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This weekend, the Stanford Law, Science and Technology Program held a symposium on Securing Privacy in the Internet Age which sounds like it was very interesting.
Here are some posts covering the event from Stanford’s Center for Internet & Society weblog: Live from CIS Privacy Symposium, Approaches to Reform, From Contractual Freedom to Strict Liability, Challenges for the Chief Privacy Officer
From bIPlog: Privacy on Several Fronts
Michael Froomkin (who spoke about National ID Cards) posted some Notes From the Stanford Privacy Conference

Compulsory Hearing

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Last week, the House Judiciary Committee held a hearing concerning Section 115 of the Copyright Act: In Need of Update?. §115 is the compulsory license provision.
Testifying at the hearing were Marybeth Peters (Register of Copyrights), Jonathan Potter (Executive Director, Digital Media Association ), Carey Ramos (on behalf of the National Music Publishers Association
) and Cary Sherman (Recording Industry Association of America).
View a webcast of the hearing.
Derek Slater summarizes: Hearing on Section 115

Wiretap dancing

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The Justice Department, DEA and FBI filed a petition with the FCC for an expedited rulemaking process to grant law enforcement expanded authority to wiretap packet-based communications– particularly those that go over the internet.
LawMeme provides a concise analysis: FBI seek to expand the system-formerly-known-as-Carnivore

Under the FBI’s proposal, all broadband Internet providers, including cable modem and DSL companies, would be required to rewire their networks to facilitate police wiretapping. Companies would bear “sole financial responsibility for development and implementation of CALEA solutions” but would be authorized to raise prices to cover their costs.

Washington Post: Easier Internet Wiretaps Sought

Justice Department lawyers argue in a 75-page FCC petition that Internet broadband and online telephone providers should be treated the same as traditional telephone companies, which are required by law to provide access for wiretaps and other monitoring of voice communications. The law enforcement agencies complain that many providers do not comply with existing wiretap rules and that rapidly changing technology is limiting the government’s ability to track terrorists and other threats.

News.com: FBI adds to wiretap wish list

Legal experts said the 85-page filing includes language that could be interpreted as forcing companies to build back doors into everything from instant messaging and voice over Internet Protocol (VoIP) programs to Microsoft’s Xbox Live game service. The introduction of new services that did not support a back door for police would be outlawed, and companies would be given 15 months to make sure that existing services comply.

Ernest Miller: A Race the FBI Can’t Win: The Increasingly Asymmetric Costs of Wiretap Surveillance vs. Wiretap Avoidance

If I were the FBI, I wouldn’t waste my time on a battle I ultimately couldn’t win and instead would concentrate my efforts on the place where I could still achieve my goals – the ends. You want to know what someone is up to online? I would recommend, for example, key loggers, “real” spyware, and social engineering. It ain’t gonna be easy, but you have a chance of winning in the long term. The sooner you quit a race you can’t win, the faster you can enter a race where you have a chance.

AGs to target P2P?

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Wired News: Who’s Teaming Up Against P2P? 

A draft letter purportedly circulated by [California Attorney general] Bill Lockyer to fellow state attorneys general characterizes P2P software as a “dangerous product” and describes the failure of technology makers to warn consumers of those dangers as a deceptive trade practice.

Starbucks to sell digital music

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BusinessWeek: Starbucks Tunes In to Digital Music

The company thinks the service will significantly add to its $4.1 billion in annual revenue while enhancing its brand. As for the music industry, still reeling from digital piracy and sharply declining sales of CDs at brick-and-mortar record stores, Starbucks could make shopping for music both legit and fun again. “There is no question in our minds that this is the future of music distribution,” says Hal Gaba, who co-owns Concord Records with producer Norman Lear. “It’s a significant enhancement of the iTunes experience.”

Burned CD’s? How 1999.

Reflection time

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One’s birthday is a good time to evaluate where one is in life. Lately, I’ve been wondering whether going to law school was a good decision.
I enjoy law school itself a lot. The work fits in well with my strengths. However, in contrast to my initial thoughts, law school is not 3 years away from the lousy job market. Instead, law school 3 years wading through the job market. Between summers, a permanent job and a clerkship, that’s a lot of resumes floating around in e-mail and envelopes.
The easiest way to find employment is through on-campus interviewing (OCI). Unfortunately, this is one of the big problems with going to a “second-tier” school like Brooklyn. The OCI program is minimally useful for those of us not on Law Review. Law is a highly prestige-oriented profession, and the fall recruiting programs are the best example of this principle in action. The better ranked the school, the deeper employers will go into the class rankings to choose people to interview.
This is not to say that it’s impossible to get an excellent job from my position. It just requires some persistence, networking and some shameless self-promotion. Self-promoting and networking are not my personal strengths. As someone who is shy and reserved, my natural instincts don’t lean towards schmoozing. I doubt anyone enjoys looking for jobs, and I am no exception. I would rather be learning and creating than trying to convince someone to employ me.
So, I am wonder if going to law school was a mistake. Am I really better off in terms of where I am in my career than if I did not choose to go back to school?
I’ve also been wondering if I wouldn’t mind moving out of the Greatest City in the World to some less-urban setting, closer to skiing. But that’s a topic for another post…

Upcoming events

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Mar. 15 (next Monday), I’m sitting in with Hieronymus Bosch on saxophone and keys. Come by and enjoy some rock and mixed with a little bit of roll. 9:45 pm at Continental (25 3rd Ave.). There may be no such thing as a free lunch, but this is a free show– there is NO cover charge.
Other upcoming gigs I will be playing with them are Saturday Apr. 3 at Galapagos (7pm) and Friday Apr. 9 at Luna Lounge (9:30 pm). The Luna Lounge show is also free.
Mar. 16 (Tuesday), The Walk-Ons are playing at Acme Underground (7 pm).
Mar. 23 (Tuesday), Lawrence Lessig on Free Culture: Creativity and Its Enemies at the 92nd St. Y (8:15 pm).
Apr. 12 (Monday), The Mets home opener at Shea. This may be the last time the Mets are in contention.

Broadcast Flag Lawsuit Filed Against FCC

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EFF: FCC Faces Suit on Regulation of Digital Broadcast Television: “The Electronic Frontier Foundation (EFF) joined five library associations, Public Knowledge, the Consumer Federation of America, and the Consumers Union in suing the Federal Communications Commission (FCC) last week to block overbroad regulation of next-generation televisions and related devices.”
Statement of Issues to be Raised
Ernest Miller: FCC Sued Over Broadcast Flag – Yay!
Previously:
FCC Adopts Broadcast Flag, Flagged, Waving the Broadcast Flag
TechTV: Understanding the Broadcast Flag

Fair Use? Priceless

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Jason Schultz: Nader Wins Priceless Fair Use Victory v. MasterCard

Today, after four years of discovery battles and summary judgment briefing, the trial court ruled that Nader’s use was, in fact, fair. A strong victory against overzealous copyright and trademark ownership and for non-commercial political speech.

SDNY: Mastercard Int’l Inc. v. Nader 2000
Houston Chronicle: Nader cleared in parody ad flap

An Apple a Day

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Today brings news about a copyright suit in France against Apple Computer and a trademark suit by Apple in China:
AP: Apple faces claim for unpaid royalties levy on iPod

The Society of Music Creators, Composers and Publishers, or Sacem, accuses Apple of consistently refusing to pay the [blank media royalty] levy on sales of the iPod, which contains a hard disk drive.

Like France, Canada also employs a levy on recorded media. See e.g. Canadian copyright levy on blank audio recording media
China Daily: Trademark at core of Apple case

US-based Apple Computer Inc has brought an action against the trademark appraisal committee under China’s State Administration for Industry and Commerce, after its request for trademark logo of Apple in the range of clothing had been rejected by the committee.

Lessig in NYC

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Larry Lessig will speak at the 92nd St. Y about Free Culture: Creativity and Its Enemies on Tue, Mar 23, 2004, 8:15pm.

CAN-SPAM hits the big time

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Last week brought us the first lawsuit filed under CAN-SPAM and this week brings us suits filed by Microsoft, AOL, Earhtlink and Yahoo!. The complaints are available from FindLaw.
NY Times: Internet Providers Sue Hundreds Over Unsolicited E-Mail

Digital Camera Patents

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NY Times: Kodak Accuses Sony of Patent Violations on Digital Imaging

In a suit filed Monday in Federal District Court in Rochester, Kodak, which is struggling to make its brand name synonymous with digital photography, just as it once was with film, charged Sony with infringing on 10 patents that were issued to Kodak from 1987 to 2003. The patents covered various aspects of capturing, storing and displaying both still and moving digital images.

Does an enterprising reader want to spend a few minutes digging through the USPTO site to find out what these patents are for extra credit? I’m mildly curious, but otherwise occupied with some initial interest confusion issues…

FTC Spyware Workshop

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The FTC will be hosting a workshop on spyware on April 19.

EU passes Anti-Piracy Directive

---

The European Parliament passed the Intellectual Property Rights Enforcement Directive by a vote of 330-151. The legislation provides for broad protections of a variety of intellectual property rights in order to prevent piracy and “misleading or parasitic copying.” The final version of the bill does not include criminal penalties for infringers, but provides for civil and administrative sanctions. Any penalty must be “effective, proportionate and deterrent, and take account of the intentional or unintentional character of the infringement.”
BBC News: EU backs tighter rules on piracy: “Before the vote, critics said the law was flawed as it applied the same penalties to both professional counterfeiters and consumers. But a late amendment limited them to organised counterfeiters and not people downloading music at home.”
Internaional Herald Tribune: EU backs deal on copyright piracy: “After a year of intense lobbying, both critics and supporters of the anticounterfeiting measures were disappointed by the compromise approved by the European Parliament.”

Canada Copyright

---

The Toronto Globe and Mail gets some more reactions to the Canadian Supreme Court decision in CCH Canadian Ltd. v. Law Society of Upper Canada: Court’s copyright ruling in spotlight: “It’s the most important copyright law we have had in Canada in years,” Michael Geist, a law professor at the University of Ottawa, said in an interview.”
Previously: Copyright Balancing in Canada

How do you say ‘copyright infringement’ in Klingon?

---

Ernest Miller: Klingon is Copyrighted

Can you really copyright a language? You can copyright a dictionary, certainly, but can you copyright grammar? I’m not sure you can copyright grammar at all, since it is a set of rules regarding word usage. Grammar is an idea, that can probably only be expressed in a fairly limited number of ways, even if fanciful.

Inmate seeks to Copyright Name

---

NY Newsday: Inmate seeks to copyright name

A Rikers Island inmate wants the Queens judge and prosecutor handling his drug case to pay him $500,000 any time either one uses his name without permission.
James Walker is one of many state and federal inmates nationwide who are copyrighting their names and filing substantial liens against the judges and lawyers involved in their cases.

One lawsuit per uploader

---

Wired News: One File Swapper, One Lawsuit 

A federal judge ruled on Friday that the music industry cannot sue over 200 alleged file sharers in one swoop and that the companies must sue each defendant individually.
The Recording Industry Association of America grouped 203 so-called “John Doe” defendants — “John Doe” because their identities are not yet known — into one lawsuit when it sued them in federal court in Philadelphia last month. All of those sued use Comcast as their Internet service provider.

Mar. 9: Ernest Miller wonders if this Victory for EFF Creates Problems for EFF’s Filesharing Solution

Pornographers Lead the Way

---

USA Today reports that the online porn industry is moving to adopt new technologies, like DRM, faster than mainstream entertainment and media companies: Online porn often leads high-tech way

Porn’s recent tech tinkering could have sweeping implications for the music and movie industries, which are trying to protect digital content from being stolen and traded. Each day, millions of video clips and photos are filched from for-pay porn sites and traded, forcing the red-light districts of cyberspace to find novel ways to protect digital content.

Patent Office Rejects Browser Plug-in Patent

---

Reuters: Feds reject Eolas browser patent

The U.S. Patent and Trademark Office has invalidated a claim to Web browser technology central to a case against Microsoft, a move that could spare the software giant from paying more than half a billion dollars in damages, according to documents obtained on Friday.

Archives

---

Over at the ACS weblog, Tuffer has a spectacular post about his visit to the Blackmun archives at the Library of Congress: Justice Blackmun Papers: The law school years, with a look at Blackmun’s notes and diaries from law school.
In contrast to Justice Blackmun’s notes and diaries, my contemporaries and I largely use computers for taking notes. In my classes, the number of students taking notes on laptops exceeds the number of students using trusty old pen and paper. I wonder if future scholars will have an easier or more difficult time going through our digital archives. Notes taken in handwriting are substantially more personal and distinctive than typed notes. Computer files are often treated as epehemeral and often we make insufficient efforts to properly archive computer files.

Limited Medical Privacy

---

NY Times: Bush Administration Sets Forth a Limited View on Privacy

In a sharp departure from its past insistence on the sanctity of medical records, the Bush administration has set forth a new, more limited view of privacy rights as it tries to force hospitals and clinics to turn over records of hundreds and perhaps thousands of abortions.
Federal law “does not recognize a physician-patient privilege,” the Justice Department said last month in court papers that sought abortion records from Planned Parenthood clinics in California, Kansas, Missouri, Pennsylvania, New York City and Washington. Moreover, the department said in another abortion case, patients “no longer possess a reasonable expectation that their histories will remain completely confidential.”

I’ve got a team

---

Thanks to the Windows e-mail virus du jour, I’ve learned that I have an Andrewraff.com team:

From: staff(at)andrewraff.com
Subject: Notify about using the e-mail account.
Date: March 2, 2004 10:02:36 PM EST
To: Andrew Raff
Dear user of “Andrewraff.com” mailing system,
Your e-mail account has been temporary disabled because of unauthorized access.
For details see the attached [.pif] file.
Kind regards,
The Andrewraff.com team

I hope this doesn’t mean that I have to start paying better wages or providing benefits, since I can’t afford to pay more than the $0/hr rate that my team currently earns. On the other hand, maybe this means I’ll have a better showing in the inter-blog softball league this year. It’s been hard to field a competitive team without any other team members.
By the end of this year, I will not be surprised if internet e-mail suffers a major meltdown, or if a new set of protocols finally emerges to require some sort of authentication of identity in e-mail.

First suit under CAN-SPAM

---

Wired News: ISP Files First Can-Spam Lawsuit 

Hypertouch, based in Foster City, California, filed the suit on Thursday claiming the owner of BobVila.com and its marketing affiliate BlueStream Media violated provisions of the Can-Spam Act by sending out e-mail advertisements containing missing contact information. The suit claims that BlueStream Media forged the header information that can help e-mail recipients identify where a message originated

Hypertouch has the complaint

DVD Code Injunction Overturned

---

In DVD Copy Control Assoc., Inc. v. Bunner, a California Appeals Court overturned a grant of a preliminary injunction against Andrew Bunner, who posted the DeCSS code to a web site. DeCSS is used to encrypt DVD content.
Jason Schultz: EFF wins DVD-CCA v. Bunner Appeal
EFF: Court Overturns Ban on Posting DVD Descrambling Code, Finding a Free-Speech Violation
Ernest Miller: DeCSS Injunction Lifted in Trade Secrets Case: “This is a solid, black letter law decision.”
Doug Simpson: What DVD CCA v. Bunner is NOT

It does not protect one who is the first to crack a secret and then misappropriate or share it. It does not protect those who share misappropriated secrets in a closed community. It does not protect one from potential liability under laws other than the Uniform Trade Secret Act (UTSA). Those might include federal laws such as the Digital Millenium Copyright Act (DMCA) or state laws such as California Penal Code Sections 499c or 1203.33 or proposed federal or state laws protecting databases.

Copyright Reform Act Passes House

---

The House of Representatives passed The Copyright Royalty and Distribution Reform Act of 2004 (H.R.1417).
If this bill passes the Senate and is signed into law, it will amend Chapter 8 of the Copyright Act (Title 17 of the US Code) to replace copyright arbitration panels with 3 full-time Copyright Royalty Judges, appointed by the Library of Congress.
BizReport.com: House Passes Bill to Help ‘Webcasters’
Mi2N: Whip Hoyer Lauds Passage Of Copyright Reform Act
P2Pnet: HR 1417 will help webcasters

Database Protection

---

Here are two analyses of the problems and shortcomings of The Database and Collections of Information Misappropriation Act (HR 3261):
At FindLaw, Brandi Karl: The Database Protection Bill: How the Current Congressional Database Protection Bill Would Go Beyond
At LawTechGuru, Jeff Beard: But Can I Buy a Vowel
Previously: The Anti-Feist

Copyright Balancing in Canada

---

The Supreme Court of Canada recently decided a copyright case in which it discusses the balancing of users’ rights against those of copyright holders: CCH Canadian Ltd. v. Law Society of Upper Canada
University of Ottawa law professor Michael Geist notes a recent Canadian Supreme Court decision where: Canadian Sup. Court favors users over stronger copyright rules

Earlier today the Canadian Supreme Court issues a copyright decision that may rank as one of the strongest pro-user rights decisions from a high court in recent memory. In the unanimous decision, written by the Chief Justice, the court now appears to be considering all copyright law interpretation through the lens of balancing user rights with creators rights. The decision shows what it means to do more than pay lip service to balance in copyright — trying to balance the interests of both users and creators means considering the impact in all aspects of copyright law and seeking to establish tests that respect the interests of both perspectives.

More analysis from Matthew Skala
Globe and Mail: Supreme Court rules against publishers’ copyright group
LexisNexis InfoPro: Copyright law safe in library, court says

Make Your Own Jay-Z Remix

---

Fans of the Grey Album can make their own remixes using the Jay-Z Construction Set

DMCA Database Decision Dissected

---

Security Focus takes a look at Inquiry Management Systems v. Berkshire Information Systems and wonders Is password-lending a cybercrime?

The fallacy of this decision becomes clear if you consider that the customer himself could have logged in with his or her password, obtained the documents and records, and given them to Berkshire — and this would have been a simple breach of contract, not a crime.
Under this decision, anytime you share your userid and password you’re potentially committing or facilitating a felony. If you subscribe to, for example, the New York Times website (a free login) and let someone else log in with your userid, you might end up in the slammer — at least if you appear before Judge Buchwald.

Previously: DMCA Doesn’t Protect Databases

Digital Music Forum Report

---

Derek Slater: Digital Music Forum: What the Industry Players Do and Don’t Get

The Digital Music Forum featured many people who “get it.” It also featured many who clearly do not… There were online music vendors who understand that they must meet many different consumer types and provide a variety of options. While the vendors debated the merits of a la carte v. download subscription services, they made the more general point that they should not try to squeeze people into narrow options.

Segue

---

A useful segue, courtesy of one Comparative Constitutional Law professor: “Let’s indulge now in pornography.”
Speaking of pornography and Constitutional Law, listen to Justice Blackmun describe pornographic film viewings at the Supreme Court

Blackmun: I remember one time Justice Harlan was there, sitting with his law clerk up font. Of course, his eyesight was almost totally gone, and it was hard for him to see. I sat right behind him, and as the film moved on–and they were all alike // he’d lean over and say to his law clerk, “and what are they doing now?” and the law clerk would describe it and justice Harlan would say, “You don’t say, you don’t say.”

Goldstein Howe hosts the Blackmun Totenberg interview transcripts (via Jeremy.)
NPR: Justice Harry Blackmun’s Papers
Goldstein Howe’s SCOTUSblog is the best source of info on the Blackmun papers, including this account of the first day of the Blackmun Papers’ availability at the Library of Congress and Nina Totenberg’s report of inner workings of the court.

One year of Linky Links

---

I started posting separate linky links one year ago. In that one year, I’ve posted 1689 links. That’s an average of 4.6/day. Wow. I need to get out more.

Faith-based FCC Fines

---

Sen. Zell Miller Introduced a Bill to Crack Down on Indecent Broadcasts (S. 2147):

Under Miller’s bill, the Broadcast Decency Responsibility and Enforcement Act of 2004, violators would be fined 25 cents times the number of individuals who viewed or listened to the broadcast. For instance, according to ratings by Nielsen Media Research, an estimated 140 million viewers watched last month’s Super Bowl. Under Miller’s bill, if the Federal Communications Commission (FCC) were to find the events of the halftime show indecent, Viacom, CBS and the offending artists would all be subjected to a $35 million fine (140 million viewers X 25 cents).

I’ll just let Lawmeme’s James Grimmelman describe the most odious portion of the bill:

But then the act takes a striking turn: after paying for administrative costs, all such fines would be redirected to faith-based programs. This is the part that makes my skin crawl; the BRDEA feels like compelled religious speech, which has to be some kind of First Amendment combo special.
The FCC would also be directed to appoint a Council of Decency: a nine-member board to advice it on “standards of decency as applied to broadcasts over which the Commission has jurisdiction.” Three of these new Decency Nazgul would be ministers.

(via The Importance Of)

Won’t somebody think of the children?

---

Today, the Supreme Court heard oral arguments in Ashcroft v. ACLU, the second challenge to the Child Online Protection Act (COPA) on First Amendment grounds.
The ACLU has a comprehensive list of resources: Ashcroft v. ACLU II.

The first time the case was on appeal in 2000, the Court kept the ban in place but sent the case back for further evaluation. In March 2003, the Third Circuit Court of Appeals again ruled that the statute was unconstitutional because the statute deprives adults of protected speech on the Internet. Therefore, the statute suffers from the same constitutional flaws that had led the Supreme Court in 1997 to strike down a predecessor law in Reno v. ACLU.

Oyez: Ashcroft v. American Civil Liberties Union
Washington Post: Supreme Court Revisits Online Pornography Issue

The Bush administration’s top Supreme Court lawyer says he typed the words “free porn” into an Internet search engine on his home computer and got a list of more than 6 million Web sites. That’s proof, Solicitor General Theodore Olson told the Supreme Court on Tuesday, of the need for a law protecting children from a tide of online smut.

NY Times: Justices Hear Arguments on Internet Pornography Law

Neither side got a free ride from the justices in the discussion of the Child Online Protection Act, a 1998 law that makes it illegal for commercial Web sites to make available to children 16 and under material that is not necessarily obscene but could be considered “harmful to minors” under a complex, three-part formula in the law.

Salon.com: Don’t worry, be sexy

Super Tuesday e-voting tech problems

---

AP: Technical Problems Reported in E-Voting

Scattered technical problems were reported in the early hours as voters in 10 states, including California, New York and Ohio, went to the Super Tuesday polls to choose a Democratic presidential nominee and decide primary contests for congressional and state races.

Piracy Around the World

---

The International Intellectual Property Alliance recently released its 2004 report on global piracy.

Vote

---

It’s primary day here in NY (as well as Connecticut, California, Georgia, Maryland, Massachusetts, Minnesota, Ohio, Rhode Island and Vermont.) If you are not one of the crazy voters registered as an independent, go and vote today. The City Board of Elections can tell you where to vote

Lessig on Eldred

---

In Legal Affairs, Larry Lessig: How I Lost the Big One

I took the phone off the hook, posted an announcement of the ruling on our blog, and sat down to see where I had been wrong in my reasoning. My reasoning. Here was a case that pitted all the money in the world against reasoning. And here was the last naïve law professor, scouring the pages, looking for reasoning.

(via How Appealing)

The Special Problem of Digital IP

---

The Digital Connections Council of the Committee for Economic Development report Promoting Innovation and Economic Growth: The Special Problem of Digital Intellectual Property provides policy recommendations for dealing with issues in digital intellectual property:

1. Because quick legislative or regulatory solutions for the problem of digital copyright protection pose risks to innovation and economic growth and are likely to have unintended consequences in a period of rapid technological change, we should move slowly. Our first concern should be to “do no harm.”
2. The development and testing of new business models for the distribution of creative content should be given the highest priority by the content industries. We should not turn to law or regulation to protect any particular business model.
3. Existing solutions to the issue of unauthorized uses, such as enforcement and education should continue to be explored.
4. We recognize the need for for digital rights management (DRM) systems that will allow creators to be rewarded for their efforts. We are skeptical about government-mandated DRM, and we recommend that manufacturers not be required to build in mandated copy protection technologies.
5. Market-based economic tools that provide incentives for copyright-holders to facilitate follow-on innovation should be considered– including measures to provide earlier dedication of copyrighted materials to the public domain.

NY Times: Report Raises Questions About Fighting Online Piracy

Greenspan on IP

---

Federal Reserve Chairman Alan Greenspan discussed Intellectual property rights at the Stanford Institute for Economic Policy Research Economic Summit, Stanford, California on February 27:

Only in recent decades, as the economic product of the United States has become so predominantly conceptual, have issues related to the protection of intellectual property rights come to be seen as significant sources of legal and business uncertainty. In part, this uncertainty derives from the fact that intellectual property is importantly different from physical property. Because they have a material existence, physical assets are more capable of being defended by police, the militia, or private mercenaries. By contrast, intellectual property can be stolen by an act as simple as broadcasting an idea without the permission of the originator. Moreover, one individual’s use of an idea does not make that idea unavailable to others for their own simultaneous use. Even more importantly, new ideas–the building blocks of intellectual property–almost invariably build on old ideas in ways that are difficult or impossible to trace. From an economic perspective, this provides a rationale for making calculus, developed initially by Leibnitz and Newton, freely available, despite the fact that those insights have immeasurably increased wealth over the generations. Should we have protected their claim in the same way that we do for owners of land? Or should the law make their insights more freely available to those who would build on them, with the aim of maximizing the wealth of the society as a whole? Are all property rights inalienable, or must they conform to a reality that conditions them?

E-Voting in the US and India

---

At tomorrow’s “Super Tuesday” presidential primaries, voters in California, Maryland and georgia will be voting using the oft-maligned Diebold e-voting machines.“Electronic Vote Faces Big Test of Its Security

“People complain about hanging chads,” said Aviel D. Rubin, technical director of the Information Security Institute at Johns Hopkins University in Baltimore and a co-author of the first study that found security flaws in the Diebold machines. “But if an electronic machine has malicious code in it, it’s possible that all of the chads are hanging — and then you have to question every vote.”

NY Times:Graphic: Counties Using Electronic Voting Systems
While the US hesistates to fully adopt electronic voting, India plans to have its first fully-electronic general election vote. BBC News: Gearing up for India’s electronic election. India’s 668 million registered voters will use more than 500,000 electronic voting machines from two suppliers: Bangalore-based Bharat Electronics Limited (BEL) and Electronics Corporation of India, based in Hyderabad.

Big money in domain names

---

NY Times: Domain Names Are Big Again

Dot-com domain names are fetching respectable prices again, after more than three years of attracting scant interest. Names like Truck.com, Beef.com and others have recently sold for more than $100,000, according to Domain Name Journal, a trade publication, while Web sites like Men.com, which offers a dating service, and sites selling pornography like Whitehouse.com are crossing the million-dollar threshold.

Useless question of the day

---

In elementary school, why did we start the day by reciting the Pledge of Allegiance and singing the British national anthem (with different words)?

Verisign Sues ICANN

---

ICANNWatch: VeriSign Sues ICANN

The lawsuit reportedly attacks ICANN for purporting to have the contractual power to determine whether VeriSing can introduce the Waiting List Service (WLS), Site Finder and also the internationalized domain name system (wasn’t that really an IETF decision?).

DMCA doesn’t protect databases

---

Even after the DMCA, copyright does not protect databases. News.com: Court doesn’t extend database protection

U.S. District Judge Naomi Buchwald said in an opinion released this week that Berkshire Information Systems did not run afoul of the controversial 1998 copyright law by allegedly downloading up to 85 percent of a proprietary advertising-tracking database from the Web site of competitor Inquiry Management Systems (IMS).

Update (3/1/04): Ernest Miller has read through the decision (Inquiry Management Systems v. Berkshire Information Systems) and finds: Confusing DMCA “Database” Decision Not About Databases

Apple takes Apple to court

---

Reuters: Apple War Pits Beatles Label Against Computer Maker

Apple Computer and the Beatles’ record company Apple Corps went to court in Britain on Wednesday over who gets to use the fruity name now that the computer company has entered the music business on the Internet. The two companies reached a deal in 1991 after a fight over the trademark, signing an agreement that set out who could use the name and logo, and when.

The Register: ‘I’m an iPod user’ admits Apple vs Apple judge
BBC News: Rocking the bench: “The idea of a be-wigged member of Her Majesty’s judiciary downloading banging tunes off the internet is somewhat at odds with the traditional image of the profession.”

Jessica Litman on Redesign of Copyright

---

GrepLaw interviews Jessica Litman:

The most important and in my view scariest trend is simply a case of skewed priorities. In order to ensure that copyright owners can exercise plenary control over consumers’ uses of their works, we’ve already been willing to sacrifice important chunks of our freedom and our privacy.

Copyright in Comics Characters

---

Here’s another Seventh Circuit copyright decision from Judge Posner: Gaiman v. McFarlane. At issue is the ownership of copyrights in comic book characters, particularly Count Nicholas Cagliostro, Medieval Spawn and Angela introduced in a Spawn comic book written by Gaiman and illustrated by series creator McFarlane. This is a very concise and well-written ruling, so I recommend reading the entire decision yourself (and this is why I’m not summarizing it. Really.)
Joe Gratz: Gaiman Wins

Even if the contribution is not itself copyrightable, the contributor is a co-author if the joint work would lose its copyrightability absent the contribution in question. This makes the present case come out the right way (Count Cogliostro ends up being jointly owned by Gaiman and McFarlaine), and makes the important co-authorship precedents come out the right way too.

Neil Gaiman: Last Legal Post for a long time

My own hopes for all this are that we’ve helped clarify copyright law in favour of creators… and helped to protect authors and artists and creators from unscrupulous publishers up the line.

Scrivener’s Error: Character Defects: “On the whole, this is a victory for authors’ rights, even if it does contain a small potential landmine.”
(via How Appealing, of course)

EFF’s File-Sharing Future

---

EFF: A Better Way Forward: Voluntary Collective Licensing of Music File Sharing

The concept is simple: the music industry forms a collecting society, which then offers file-sharing music fans the opportunity to “get legit” in exchange for a reasonable regular payment, say $5 per month. So long as they pay, the fans are free to keep doing what they are going to do anyway — share the music they love using whatever software they like on whatever computer platform they prefer — without fear of lawsuits. The money collected gets divided among rights-holders based on the popularity of their music.

Grey Tuesday

---

Downhill Battle declares that today is Grey Tuesday, “a day of coordinated civil disobedience: websites will post Danger Mouse’s Grey Album on their site for 24 hours in protest of EMI’s attempts to censor this work. ”
Last week, I wrote I remain unconvinced that sampling culture requires a radical reinvention of copyright. In fact, I’m not sure that something like The Grey Album, which borrows so heavily from the White Album should not require obtaining a license from the copyright owner.
However, some reform will have positive effects. If preemptive licensing is not widely adopted, then a compulsory license may offer the best compromise between the artistic interests of samplers and original artists. A compulsory sampling license could allow artists to use short to moderate-length samples without using more than some percentage of an individual source work.
Larry Lessig notes the problems for a preemptive licensing regime: The Black and White about Grey Tuesday:

Under American law, you don’t need permission to make a cover album. That freedom has been assured since 1909 when Congress granted creators a compulsory right to remake music, so long as a small fee was paid. The record companies have fought hard to defend that compulsory right.

Andrew Sinclair: Grey Tuesday Thoughts:

In my opinion, we do need legal tools that allow works to be used as building blocks for future works. On the other hand, creative works need to be protected to some degree to provide incentives to the creators. I think the law is too rigid in the sense that it protects works for such a long time period (the social costs of which outweigh the incentives to create). I don’t, however, think that people should be able to take large portions of another’s work when that person clearly intends to enforce their rights in, for example, a famous album that is less than 40 years old.

Kevin Heller (Tech Law Advisor): Today is Grey Tuesday:

This will be an interesting one for the courts if the case precedes in state court on common law copyright infringement grounds (since The White Album is a pre-1972 work).

Joe Gratz: Grey Tuesday Sites C&D’d:

The C&D’s do two things, one appropriate, one inappropriate. First, they put the webmaster on notice that the Grey Album contains copyrighted material, so if they go on and post it, the infringement will be willful and the penalties will be greater. (Edit: That assumes that willfulness increases penalties under whatever state copyright law will be used. I don’t know anything about state copyright law, and neither, by and large, does anybody else, so it’s hard to say for sure.) Second, they scare the bejeezus out of the recipient by making demands for which there is no legal basis.

Michael Carroll: Whose Music is it Anyway? How we Came to View Musical Expression as a Form of Property

Prompted by the dispute over unauthorized music distribution, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view.

Wired News: Grey Album Fans Protest Clampdown
NY Times: Defiant Downloads Rise From Underground

To create a collection like “The Grey Album” legally, an artist would first have to get permission to use copyrighted material. Then he would have to negotiate compensation with the copyright holder. Many artists, however, like the Beatles, will not allow their music to be sampled. But even if permission is granted, it is common for a copyright holder to request more than 50 percent of publishing rights for a new song created from the copyrighted work.

Eminem sues Apple

---

AP: Eminem’s Publisher Sues Apple Over Song

At issue is an ad for Apple’s iTunes pay-per-download music software, in which a 10-year-old sings Eminem’s “Lose Yourself.” The suit claims the commercial aired on MTV beginning in July 2003 and ran numerous times for at least three months. It also appeared on Apple’s Web site.

Findlaw has the complaint

Suing Diebold

---

E-Voting activists file law suit against Diebold

Bev Harris on behalf of the California members of BlackBoxVoting.org, and Jim March, Joseph Holder, Jim Hamilton, Douglas McDonald, and the Community Labor Alliance have filed this lawsuit, which seeks an order requiring the DIEBOLD defendants to disgorge and make restitution of any money or property acquired by means of their unlawful, unfair and fraudulent acts and practices.

Source Documents
More coverage is at BlackBoxVoting.org
Note: In a different suit, Nonprofit ISP Online Policy Group (OPG) and two Swarthmore college students are seeking compensation from Diebold for misuse of copyright law.

Napster results

---

News.com: Napster reaches 5m downloads
In contrast, Apple has sold 25 million tracks on iTunes as of December 2003. 12 million of those tracks were sold between October and December.
The Register: Napster song sales hit 5m: “[Apple iTunes] yields a (rough) average monthly download rate of 2.78m songs – Napster’s rate works out at 1.25m songs a month, so it has some way to go to catch up.”
However, Napster is not just an online music store, it’s also a subscription service. While it ranks 2nd among download services, Napster falls in to 4th place among streaming subscription services behind RealNetworks’ Rhapsody service, America Online’s MusicNet and MusicMatch. According to the San Jose Mercury News (Smiles fade at Napster), Napster has attracted about 90,000 subscribers in its first two months.

FBI “drowning” in wiretap data

---

CQ: FBI ‘Drowning’ in Information Harvested by Bugs and Wiretaps

Thanks to the bundle of anti-terrorism measures known as the USA Patriot Act, the FBI is conducting a “record amount” of electronic surveillance, including the use of wiretaps and bugs, according to an FBI spokesman and a Justice Department budget document.
Yet the bounty perpetuates an old problem: The bureau can’t keep up with all the information pouring in from those and other sources. As a result, the document claims, critical counterterror information isn’t getting translated in a timely fashion.

Although the number of federal court-approved wiretaps decreased from 1,491 in 2001 to 1,358 in 2002, the aggregate number of court-approved and FISA wiretaps grew from 2,292 in 2001 to 2,586 in 2002.

</td> <td> <b> Washington Post v. Gator </b> </td> <td> <b> U-Haul v. WhenU.com </b> </td> <td> <b> Wells Fargo v. WhenU.com </b> </td> <td> <b> 1-800 Contacts v. WhenU.com </b> </td>

Date

Court

Disposition

Copyright Infringement

Trademark Infringement

Trademark Dilution

Initial Interest Confusion Doctrine

Use in Commerce

Fair Use

Survey Used

<td>
  Court-approved
</td>

<td>
  FISA
</td>

<td>
  Total
</td>

<td>
  1,349
</td>

<td>
  880
</td>

<td>
  2,229
</td>

<td>
  1,190
</td>

<td>
  1,012
</td>

<td>
  2,202
</td>

<td>
  1,491
</td>

<td>
  934
</td>

<td>
  2,292
</td>

<td>
  1,358
</td>

<td>
  1,228
</td>

<td>
  2,586
</td>

Year

1999

2000

2001

2002