In The New York Times, Adam Raff (no relation that I’m aware of) wrote an Op-Ed arguing that the FCC should regulate “search engine neutrality,” Search, but You May Not Find

Today, search engines like Google, Yahoo and Microsoft’s new Bing have become the Internet’s gatekeepers, and the crucial role they play in directing users to Web sites means they are now as essential a component of its infrastructure as the physical network itself. The F.C.C. needs to look beyond network neutrality and include “search neutrality”: the principle that search engines should have no editorial policies other than that their results be comprehensive, impartial and based solely on relevance.

Raff’s argument is essentially that because search plays a dominant role in driving internet users to web sites and because Google is so dominant in search, it can use its market power to effectively drive smaller companies off of the Web.
Isn’t this really a question of anti-trust and/or competition rather than communication? If Google is using its market power against smaller competitors, that would be prohibited by existing Federal anti-trust law. The FTC already regulates anti-competitive business practices.
The market for internet access is fundamentally different from the market for web search. The cost of switching search providers is very close to zero. To change one’s preferred default search engine takes mere seconds. Even Google’s own web browser, Chrome, respects the computer user’s default search setting and will default to using Microsoft’s Bing as its search engine.
The cost of switching internet access providers may be more difficult because local cable franchise laws and/or physical distance from the telephone central office may prevent Americans from physically being able to switch from one broadband internet service provider to another. For users who have only one potential provider for broadband internet access, they may be denied access to entire services and content if, on a non-neutral internet, that service provider decides to deny access to certain services because the competitors to those services paid the provider for preferential service.
Is there any reason that search engines deserve special regulation as part of communications infrastructure rather than the same general antitrust and unfair competition laws and regulations that already prohibit using market power for nefarious anti-competitive goals?
At Madisonian.net, Greg Lastowka asks What is Search Neutrality? and Rob Heverly argues There is no “search engine neutrality”.
Here’s Foundem’s campaign for Search Neutrality.
Academic papers discussing search engines
Eric Goldman, Search Engine Bias and the Demise of Search Engine Utopianism, Yale Journal of Law & Technology, 2005-2006
James Taylor Lewis Grimmelmann, The Structure of Search Engine Law. Iowa Law Review, Vol. 93, No. 1, 2007
Urs Gasser, Regulating Search Engines: Taking Stock and Looking Ahead. Yale Journal of Law & Technology, Vol. 9, p. 124, 2006

or, My Name is My Name!
Blawg Review’s Editor asked me to host today’s Blawg Review because today, November 30, is St. Andrew’s Day.
And given the speed with which Blawg Review’s Editor forwarded along this list of other law bloggers named Andrew, I can only assume that at least a substantial fraction of them obviously have more sense than to agree to host Blawg Review after Thanksgiving weekend:
Andrew Flusche
Andrew Feldstein
Andrew Ewalt
Andrew Lavoott Bluestone (New York Attorney Malpractice Blog)
Andrew Barovick(New York Medical Malpractice Law Blog)
Andrew Hale & Associates (Wrongful Conviction Lawsuit Defense Blog)
Andrew S. Alitowski (Kentucky Personal Injury Lawyer Blog)
Andrew Morshirnia (Citizen Medial Law Project)
In Christianity, St. Andrew is the patron saint of Scotland, Ukraine, Romania, Greece and Russia. (If you are also unfamiliar with the concept of patron saints, Wikipedia tells me that a patron saint is “a saint who is regarded as the intercessor and advocate in heaven of a nation, place, craft, activity, class, or person.”) The Scots are most closely associated with St. Andrew as St. Andrew’s Day is Scotland’s national holiday. So, let’s stroll through some of the finest law blogs from Edinburgh and beyond:
Scottish Law Blog Links
Scotland is acquiring more self-governance. Devolution is a way of enabling Scotland (as well as Wales and Northern Ireland) to have forms of self-government within the United Kingdom. Alan Trench covers the latest news at his blog, Devolution Matters.
Did you happen to stumble onto a treasure trove under the links (or elsewhere in Scotland)? At Scots Law News, Hector MacQueen discusses the Scots law of treasure trove and how it differs from English law, There’s gold in them thar hills…
Scots Law blogger Jonathan Mitchell discusses the Rights to environmental information and explains some of the benefits to seeking information under the Scottish schemes rather than the UK schemes.
Andres Guadamuz, law lecturer at the University of Edinburgh may have my favorite blog name, TechnoLlama. This week, he takes a look at How to Use Non-Commercial Content Commercially.
The Scots Law Student (can there only be one?) takes a look at going paperless.
Future Scottish holidays could become even more entertaining. Former Scotland Solicitor General Lord McCluskey suggested the legalization of heroin and other controlled substances, on the basis that the drug problem is primarily a health, rather than criminal, problem.
Via Ann Bartow at Madisonian.net, we learn that a Scottish brewery, BrewDog of Fraserburgh, has launched Tactical Nuclear Penguin Beer, with a 32% alcohol content.
In Scotland, the Old Course at St. Andrews is one of the oldest golf courses in the world, with records of golf having been played there since 1574. In 2010, it will be the next host of The Open Championship (or better known here in the US as The British Open.) The last time St. Andrews hosted the Open Championship was in 2005 (which, incidentally, was also the last time that I hosted Blawg Review.) That year, Tiger Woods won the second of his 3 British Open Champsionships. (He won his first in 2000, also at St. Andrews.)
Speaking of Tiger, you may have heard that he was involved in some kind of automobile incident outside his house this weekend. Woods is famously protective of his privacy. At the Sports Law Blog, Rick Karcher discusses: Tiger Woods Brings to Light the Privacy Rights of Public Figures.
In 2003, the Sixth Circuit Court of Appeals found that neither trademark law nor the right of publicity impaired a painter’s the First Amendment rights to sell his own original paintings of Woods. ETW Corp. v. Jireh Pub. Inc.
Back in Blawg Review #206, J. Craig Williams celebrated Tartan Week with All Things Scottish. And remember the sage wisdom of Stuart Rankin, If it’s not Scottish, it’s crap!
And now, onto some more hyper, rather than golf, links:
Bob Loblaw & Law Blogging
Citizen Media Law Project Launches Legal Assistance Network for Online Journalists, “We are delighted to announce the public launch of the Berkman Center’s Online Media Legal Network (OMLN), a new pro bono (i.e., free!) initiative that connects lawyers and law school clinics from across the country with online journalists and digital media creators who need legal help. Lawyers participating in OMLN will provide qualifying online publishers with pro bono and reduced fee legal assistance on a broad range of legal issues, including business formation and governance, copyright licensing and fair use, employment and freelancer agreements, access to government information, pre-publication review of content, and representation in litigation.”
Kevin O’Keefe is (not surprisingly) optimistic about the potential for law blogs to broaden and deepen the reporting and coverage of law, Legal blogs take legal reporting to a new level.
Scott Greenfield reminds us that while every lawyer can blawg, not every lawyer should, Blogging Is Alive, And Aggravating, “Most new blogs are doomed to death from the outset, created for the wrong reason and certain to fail to achieve their creator’s purpose. Most offer neither insight nor viewpoint, as their creators are scared to death that taking a firm and clear position might offend a reader, a potential client. After all, the vast majority of blogs are born solely as a marketing vehicle, even if the creators follow the sound advice not to make them look too ‘markety.'” (This is one of those posts that’s hard to excerpt because it’s full of awesome.)
Practical Practice Tips
The Nutmeg Lawyer found a way to apply watching AMC’s excellent Mad Men to developing one’s law practice: Don Draper’s Guide to Being a Better Lawyer.
I’d like to see an equivalent for AMC’s other excellent show, Breaking Bad, with law lessons from Saul Goodman.
Above the Law finds a firm who might want to call Saul for better advice on how to market their practice: Adventures in Lawyer Advertising: Texas Firm’s Kiddie Porn Practice Group.
Del Quentin Wilber in the Washington Post reports: Blackwater lawyers reprimanded … for not double-spacing. Yes, it’s that Blackwater, now known as Xe.
Adams Drafting on “Shall Never”
Show up to court conferences: Simple Justice posts, Mortgage blowback.
It may be a bit lazy to link to a link roundup, but Infamy or Praise hits a number of good posts about the Florida Bar’s settlement with the Public Citizen group about bar scrutiny of sites like Avvo and LinkedIn that allow clients to comment on attorneys listed on those sites, A Round Tuit (10)
Copyright, Internet and Privacy Law
Discuss: Say Goodnight Keith Moon
Scrivener’s Error awards The 2009 Turkey Awards
Tamera H. Bennett asks, Will The Music Industry Develop A “Got Milk?” Campaign?. (I would suggest thats copyright law basics should be taught as part of a comprehensive information literacy program in elementary and high school.)
James Grimmelmann’s Laboratorium is the go-to source for news about the Google Books settlement between the Authors Guild and Google. See, e.g. The Game is Afoot. (Previously: Google Settles with Publishers.)
See more from The Author’s Guild, The New York Times, and Google.
Deven Desai weighs in on Google’s move towards making case law free and accessible, Google, The Good: Free Law!
In the Harvard JOLT Digest, Adrienne Baker discusses No Permission Needed to Copyright a Derivative Work. Exclusive Rights, 7th Circuit Opines on Originality Standard for Derivative Works. Both of these posts discuss the Seventh Circuit’s copyright ruling about derivative works in Schrock v. Learning Curve Int’l
Rebecca Tushnet, 43(b)log, on copyright and crossword puzzles: Slate on achieving substantial similarity without copying
After attempting to install filtering software, BitTorrent tracker Mininova is shutting down its public torrent tracker system in order to comply with the verdict against it in the Netherlands: Mininova limits its activities to Content Distribution service
At Eric Goldman’s Technology & Marketing Law Blog, Venkat Balasubramani takes a look at Twitter’s Updated Privacy Policy
Lowering the Bar, Facebook Pics Prove You Aren’t Disabled, Insurer Tells Depressed Woman, “A Canadian woman who has been on long-term leave from her job since being diagnosed with major depression had her benefits taken away after her insurer found pictures of her on Facebook having fun.”
Constitutional Law
Are Lawyers “Debt Relief Agencies”? On Tuesday, December 1, the Supreme Court of the US is set to examine whether lawyers are Lawyers “Debt Relief Agencies” as defined by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. At SCOTUSbog, Anna Christensen previews Milavetz, Gallop & Milavetz, P.A. v. United States and United States v. Milavetz, Gallop, & Milavetz, P.A.. The consolidated cases pose the questions of whether attorneys are “debt relief agencies” as defined by Act, and, if so, whether the challenged sections of the Act are unconstitutional.
Did Texas’s attempt to ban gay marriage actually ban all marriage? Lowering the Bar posts, Marriage Illegal in Texas, Says Candidate, “Barbara Ann Radnofsky, formerly a partner with Vinson & Elkins and now a Democratic candidate for Texas Attorney General, has pointed out the uncomfortable fact that a 2005 amendment to the state constitution, which was designed to ban gay marriage, may in fact ban ALL marriage.”
Building a mosque in Switzerland? Religion Clause reports, Swiss Voters Approve Ban On Minarets, “The final tally showed that 57.5% of the voters and a majority of the cantons backed the initiative. The government, and most political parties, churches and businesses had all opposed the ban.”
Tim Zick at PrawfsBlawg, Flipping the Bird, Pittsburgh officials have tentatively approved a $50,000 settlement in the case of a motorist who flipped off a police officer (apparently not knowing at the time the offending gesture was made that the person was an officer).”
Begging the Question notes that the KKK isn’t quite coming out in force as threatened, after The University of Mississippi sought to stop chants of “The South will rise again!” at football games, The robes probably smell like mothballs, too
Technology
Niki Black discusses cloud computing, law firms, and new ideas in technology: Change is Good
Brett Trout at BlawgIT, Luddite Patent Attorneys Are More Expensive Than You Think
Need a gift for your patent attorney? At Patent Baristas, Stephen Albainy-Jenei suggests some of the Best Gifts for Patent Attorneys 2009.
Other notable Andrews
NYAG Andrew Cuomo
Industrialist Andrew Carnegie
US President Andrew Jackson
Musician Andrew Bird
Musician Andrew W.K.
Mathematician Andrew Odlyzko
Economist Andrew Gelman
TV host Andrew Zimmern
Hurricane Andrew (1992)
The Saint Andrew’s Golf Club in Hastings-on-Hudson, NY is America’s oldest golf club.
Miscellany
Michael Atkins, Seattle Trademark Lawyer, WTO Riots Ten Years Later: The Tension Continues Between Trade and Rights: “The World Trade Organization came to Seattle ten years ago. Protests and riots ensued. Seattleites won’t soon forget the tear gas, smashed windows, police in riot gear, out-of-town ‘anarchists,’ giant ninja turtles, and chants of ‘The whole world is watching!’ Of course, the tension between international trade and human rights that existed then still exists today.”
Anne Reed will no longer be blogging about juries and jury trials. Find out why at her blog, Deliberations, An End and a Beginning. (Short summary: good news!)
Matthew Heller, On Point, Stunning Decision Finds Taser Risks Not “Knowable”: “Less than 18 months after a jury found Taser International liable for failing to warn that its stun guns could cause heart attacks, a California judge has completely disregarded that verdict in dismissing a very similar wrongful-death lawsuit.”
Scouting NY found the Fountain of the Planet of the Apes, in Queens: 45 Years Late to the Fair: “Queens once had an honest-to-God Parks Department-approved fountain named ‘Fountain of the Planet of the Apes.’ And if that’s not odd enough, an identical fountain on the opposite side of the Queens Zoo was named ‘Fountain of the Planet of the Grapes of Wrath.’ ”
It may not come from the legal blogosophere, but if you haven’t already seen the Muppets sing Queen’s “Bohemian Rhapsody,” start your week off with a smile:

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

If a tribute band uses choreography that’s so original that it can deserve copyright protection on its own, what does that say about how good the tribute band is as a tribute band? ACES – Four Tops & Motown Tribute Show (1991-2002)

“This routine seen here is currently being used without consent in The Magic of Motown show and How Sweet It Is. Freddie Lee Peterkin is taking legal action against these shows for infringement of copyright of his original dramatic works.”

And a gratuitous link to the video of Tenacious D’s masterpiece, Tribute

I missed the Future of Music Policy Summit this year, but Senator Al Franken gave a keynote address that summarizes concisely the key concerns about the need for net neutrality, framed in terms of a First Amendment free speech concern and secondly about creating entrepeneurial opportunities (rather than enabling and entrenching incumbents.) Al Franken Keynote Address to Future of Music Policy Summit 2009, “The stifling of openness on the Internet isn’t always about censorship. In the future, it could simply be a product of business at work – of ISPs turning a profit.”
C-SPAN, <a href-“http://www.c-span.org/Watch/Media/2009/10/05/HP/A/23996/The+Future+of+Music+Policy+Summit+2009.aspx">The Future of Music Policy Summit 2009 – Keynote by Sen. Al Franken (D-MN), REM Songwriter Mike Mills, and FCC Chair Julius Genachowski participate in the Future of Music Policy Summit 2009, which examines the direction of the digital music industry.

This story about the natural gas industry losing out to dirtier fossil fuels in the energy bill on NPR’s Morning Edition demonstrates the fundamental problem with Federal policymaking today, With Little Clout, Natural Gas Lobby Strikes Out: “[Former Senator Tim] Wirth told the industry leaders that on Waxman-Markey, they blew it. ‘Every industry was deeply engaged, except one: Yours,’ he said. ‘The natural gas industry, the industry with the most to gain and the most to offer, was not at the bargaining table.’ It’s an especially harsh verdict because the Waxman-Markey bill was drafted only after high-profile negotiations with proponents of coal, nuclear, oil, wind, solar and other energy sources.”
If natural gas is so important to national energy policy, why does the industry need to advocate for inclusion in that policy? If it’s so important, shouldn’t that be advocated by the Congressional staffs and civil service experts who are engaging in policy analysis to determine the best policy outcome for the public interest, rather than the policy outcomes best advocated by the various lobbies?

In a speech on Monday at the Brookings Institution, new FCC Chairman Julius Genachowski proposed that the FCC adopt a stronger position and be more actively involved in regulating an open Internet.

To date, the Federal Communications Commission has addressed these issues by announcing four Internet principles that guide our case-by-case enforcement of the communications laws. These principles can be summarized as: Network operators cannot prevent users from accessing the lawful Internet content, applications, and services of their choice, nor can they prohibit users from attaching non-harmful devices to the network.… Today, I propose that the FCC adopt the existing principles as Commission rules, along with two additional principles that reflect the evolution of the Internet and that are essential to ensuring its continued openness.…
The fifth principle is one of non-discrimination — stating that broadband providers cannot discriminate against particular Internet content or applications. This means they cannot block or degrade lawful traffic over their networks, or pick winners by favoring some content or applications over others in the connection to subscribers’ homes. Nor can they disfavor an Internet service just because it competes with a similar service offered by that broadband provider. The Internet must continue to allow users to decide what content and applications succeed.
The sixth principle is a transparency principle — stating that providers of broadband Internet access must be transparent about their network management practices.

The FCC launched OpenInternet.gov to share information.
Reactions and Reporting:
William McGeveran, Info/Law, FCC to Propose Net Neutrality Rules “This will be a major fight, probably the most significant battle we have seen within the federal government over the structure of the internet.”
Marguerite Reardon, CNet, Verizon, AT&T: Net neutrality not OK for wireless “Verizon and AT&T, which operate the nation’s largest and second-largest cell phone networks, respectively, say the rules should not apply to wireless Internet access.”
Comcast Executive Vice President David L. Cohen asks Does the Internet Need More Regulation? “The Internet in America has been a phenomenal success that has spawned technological and business innovation unmatched anywhere in the world. So it’s still fair to ask whether increased regulation of the Internet is a solution in search of a problem.”
Nate Anderson, Ars Technica, ISPs react, sort of support network neutrality—with caveats: “In one important sense, the ‘openness’ advocates have already won the first round of the debate: the way the issue is framed. As you can see from the statements below, no companies will come out against the idea of being ‘open,’ at least when it comes to wired networks.”
Ryan Singel, Wired, FCC Backs Net Neutrality — And Then Some: “FCC chairman Julius Genachowski delivered Monday on President Obama’s promise to back ‘net neutrality.’ But he went much further than merely seeking to expand rules that prohibit ISPs from filtering or blocking net traffic — he proposed that they cover all broadband connections, including data connections for smartphones.”
Saul Hansell, The New York Times, F.C.C. Chairman Seeks to Protect Free Flow of Internet Data: “Perhaps most significantly, Mr. Genachowski will propose that the net neutrality principles be formally adopted as commission rules, a lengthy procedure that involves several rounds of public comment. His predecessor, Kevin Martin, avoided making formal rules, arguing that the industry changes too quickly. He preferred to respond to complaints when they were filed.”
David Weinberger, NPR, Net Neutrality And Beyond: “But [regulation is] only necessary because the way we deliver Internet in this country waves at least three major Temptations to Discriminate in the faces of the access providers. 1. A provider may want to gain advantage over a competitor’s services — like Apple not allowing Google’s phone service on the iPhone. 2. It may honestly believe that its users want it to give the delivery of (for example) video priority over the delivery of e-mails or search results. 3. Or, it may view discrimination as triage necessary to handle high volumes of traffic.”
And finally, a new blog focusing on these rulemaking proceedings from law professors Jim Speta (Northwestern), Tim Wu (Columbia) Christopher Yoo (Penn) is at Net Neutrality Rules.

According to the program’s web site, Music Rules is “a free educational program designed to encourage respect for intellectual property and responsible use of the Internet among students in grades 3-8.”
At Ars Technica, Nate Anderson takes a look at the curriculum, which happens to be sponsored by the RIAA, Back to school with RIAA-funded copyright curriculum: “If this sounds more like ‘propaganda’ than ‘education,’ that’s probably because Big Content funds such educational initiatives to decrease what it variously refers to in these curricula as ‘songlifting,’ ‘bootlegging,’ and ‘piracy.”
I tend to think that copyright basics are part of the discussion about information literacy, plagarism and general internet skills that should be taught as part of teaching in the digital age, as copyright is not just recordings, but also text, images and movies.

As a 14 year old, Coleman Hickey made a stop-motion music video of Spinal Tap’s “Tonight I’m Going to Rock You, Tonight” using Legos.
The New York Times reports that Spinal Tap sought to include the video on a new concert DVD, but that Lego denied permission. Lego Rejects a Bit Part in a Spinal Tap DVD

“As final editing was being done on a concert DVD of the tour, which included footage from the video projected on stage, Lego declined to grant permission to use its figures, which are protected by copyright.
“‘We love that our fans are so passionate and so creative with our products,’ said Julie Stern, a spokeswoman for Lego Systems, the United States division of the Lego Group, a Danish company founded in the 1930s. ‘But it had some inappropriate language, and the tone wasn’t appropriate for our target audience of kids 6 to 12.'”

The Times quotes Tap’s attorney, Kia Kamran, saying that the band would have likely prevailed in a copyright infringement suit, because Hickey’s video “does not show the brand’s logo and is satirical,” but the band “did not deem the fight worth the expense.”
Spinal Tap, Lego and copyright infringement together in one story, what could be better?
Variety reports that Warner Brothers and Lego are in talks to move ahead with a Lego film, Warner builds pic with Lego, ”
WB is toying with plans to develop a movie around Lego and its popular building blocks. Scribes Dan and Kevin Hageman are penning the script for the family comedy that will mix live action and animation. Warners is keeping the plot tightly under wraps, but it’s described as an action adventure set in a Lego world.”

In the New York Times Magazine this past week, Peter Singer writes about health care rationing and determining the value of health care. Why We Must Ration Health Care. Towards the end, Singer writes,

“Will Americans allow their government, either directly or through an independent agency like NICE, to decide which treatments are sufficiently cost-effective to be provided at public expense and which are not? They might, under two conditions: first, that the option of private health insurance remains available, and second, that they are able to see, in their own pocket, the full cost of not rationing health care.”

Under a state-run single payer national health program, as in the UK and Canada, the state is tasked with making this cost-value calculation. A national health service may not pay for a procedure where the life value is thought to be less than its cost.
But in the American system of private health insurance, don’t insurers already place a value on life? And they are asking that question as “is this good for shareholders,” rather than “does the public interest in general welfare support the cost?” Aside from the small minority of Americans who can afford to pay for their health care at retail cost, most Americans rely on the judgment of their health insurance carrier to determine whether a procedure is cost-effective or not.
In theory, a free market allows customers to pick and choose between insurance plans and coverage. But in the absence of stricter regulation, the public is fairly limited in which plans they can choose. In addition, individuals typically rely on employer-provided health insurance, which makes switching carriers to a more responsive carrier or comprehensive plan difficult.
A state-run single payer plan is accountable to the people. While it might be a bureaucratic mess, how could dealing with that bureaucracy be any worse than dealing with a private sector health insurance company? With a public plan, these cost-benefit decisions are ultimately under the control of Congress, and each elected representative or Senator is accountable to his or her constituents.
Private health insurances companies are primarily held accountable by their shareholders, for whom the primary reason for owning stock is profit (especially for the large institutional investors who hold enough stock to have an impact on electing the board.) State regulators do not have the same direct chain of oversight that Congress would have over a national public health insurance plan. So wouldn’t a Federal health plan be more accountable to the people it covers than the private health insurance industry?
(In general, health insurance companies are serving their stockholders by insuring only the healthiest people to subsidize as little use of the health system as possible. Perhaps public health is a public good, and a goal of its own right that is never going to be an efficient market when incentivized by profit.

The NYT City Room blog reports that J.D. Salinger won a preliminary injunction in his lawsuit against the writer of , Judge Rules for Salinger in Copyright Suit: “In a 37-page ruling filed on Wednesday, Judge Batts issued a preliminary injunction — indefinitely barring the publication, advertising or distribution of the book in this country — after considering the merits of the case.”
Without reading 60 Years Later: Coming Through the Rye or the ruling, it’s difficult to see what features made the book an infringing derivative work rather than transformative fair use parody.
Here is the order granting the preliminary injunction, Salinger v. Colting (09-Civ-5095, July 1, 2009)

Via Top Gear’s blog, I found this link to a fan-made Top Gear style search for the beat driving road in California:

The Californians were disappointed that Top Gear dismissed the entirety of North America while searching for the best driving road in the world. So, they went to look for the best driving road in California and ended up creating an hour-long film chronicling their journey, in the style of Top Gear.
And they get the Top Gear style dead on.
Three white male presenters embark on a road trip in different cars, each of which represents a different interpretation of a common theme. In this fan film, the theme is sporty cars purchased for less than $5,000. A driver in a racing helmet sets lap times and a marker to race against (ala The Stig.) The three presenters compete in various challenges and comment on their respective cars and how a particular drive represents a broader theme about motoring, masculinity, nationality, or some metaphor for life. During the road trip, the three presenters are filmed from dashboard mounted cameras. Often, a presenter’s voiceover narration melds seamlessly into thoughts spoken while driving during the road trip. Scenes open with a camera zooming out from a car or panning across a landscape with the frames heavily vignetted vignetting. Liberal use of shots of the 3 presenters driving alongside on the highway and the way in which music is used in the soundtrack all follow the Top Gear style.
Does that make it a copyright infringement?
If enough of the elements that make up Top Gear are borrowed, is the style used in a manner consistent with fair use? This is a non-commercial, non-competitive work that responds to a particular segment filmed on Top Gear. The Search for the Greatest Driving Road in California adopts the style to respond to and parody Top Gear. The creators sought to call out Top Gear for their snub of California’s roads– in other words, to criticize Top Gear, by showing that Top Gear could have found a road in California worthy of comparison with those in the Alps.
Were this a pilot for a series commissioned by a network, would this be an infringing work? (A pilot for an American version of Top Gear, starring Adam Corolla, was made for and ultimately passed on by NBC last year.)

Dvice tests out the range of expression in the text-to-speech systems in the Kindle 2 and iPod Shuffle by having the two gadgets re-enact the most memorable scene from Star Trek II: The Wrath of Khan:

Good audiobook readings aren’t in any danger of being replaced by computers, yet.
Previously:
More Kindling (Mar. 9)
Fitter, Happier, More Productive (Feb. 27)
Take a look, it’s in a book (Feb. 11)

The Supreme Court released its ruling in FCC v. Fox Television Stations, et al. (07-582), in which a 5-4 majority found that the FCC acted on a rational basis in changing its policy on fleeting expletives. In an opinion penned by Justice Scalia, the Court declined to rule on the First Amendment question of whether indecency regulations are still constitutional. The majority decided the administrative law issue and sent the First Amendment issue back to the Second Circuit.
In his brief concurrence, Justice Thomas suggested that technology and today’s fractured media landscape may not bode well for indecency regulation in a future case testing the constitutionality of broadcast indecency regulation.
Lyle Denniston, Scotusblog, Court partly upholds “dirty words” ban, “The main opinion stressed that it was dealing only with the question of whether the flat ban was “arbitrary and capricious” as a matter of law. The Court said it did not violate that standard, but that is as far as the ruling went. The Second Circuit Court, when the case returns there, will have a chance to pass upon broadcasters’ constitutional challenges to the ban. The lower court did not do so on the first review, but strongly hinted then that the ban would not survive a direct First Amendment challenge.”
The Wall Street Journal, Court Upholds FCC ‘Fleeting Expletive’ Rule “The court reversed a lower court ruling that the Federal Communications Commission didn’t follow proper procedures in adopting its new rule. But the ruling, by Justice Antonin Scalia, didn’t address the underlying constitutional issue — whether the First Amendment permits the FCC to punish such speech.”
Los Angeles Times, Supreme Court upholds regulation of ‘indecent’ language on TV: “The Supreme Court said today that TV viewers should not be hit with the ‘F-word’ or the ‘S-word’ during prime-time broadcasts, upholding the government’s power to impose huge fines on broadcasters for airing a single expletive.”
Adam Bonin at Daily Kos, nicely summarizes the key points of the opinion and various dissenting and concurring opinions, SCOTUS Issues “F**king Brilliant” Decision
Previously:
FCC v. Fox Oral Arguments Today (11/08)
Court Grants Cert in FCC v. Fox (3/08)
Second Circuit strikes strict indecency regs (6/07)
Fox v. FCC Oral Arguments (12/06)

The New York Times reports, Lawyers Enter Twitter Tempest: “Mr. Rucinsky, a 30-year-old part-time art dealer who uses his middle name as his last name when he writes, sends silly blurbs on Twitter and writes inane blog postings that purport to reflect Ms. Freeman’s musings about New York City restaurants, like ‘Governor of Texas raving about Secession on TV all week. Must be great word of mouth for Bouley!’ His fake Restaurant Girl also ventures into more cosmic concerns: ‘Does anyone know what happens to all the chocolate bunnies no one bought for Easter? Are they put to sleep?'”
Freeman does have a trademark registration for RESTAURANT GIRL. Ruckinsky’s Twitter account at twitter.com/restaurantgirl claims to be “an unaffiliated parody of Danyelle Freeman, the real Restaurant Girl who can be found at restaurantgirl.com. She’s not this clever or ambitious.”
NY Magazine’s Grub Street blog reports, Hershey’s Tells Jacques Torres to ‘Kiss’ His Champagne Bon Bons Good-bye — Grub Street: New York Magazine’s Food and Restaurant Blog: “Jacques Torres tells us that he recently received a letter from a lawyer for Hershey’s Chocolate telling him that the ‘Champagne Kiss’ he’s been serving for two years (a $1.50 bon bon made with pink Champagne) is an infringement of the Hershey’s Kiss copyright (sic).” (That would be a trademark.)

HDnet’s Mark Cuban and Boxee’s Avner Ronen have had an interesting public dialog about the future of TV: a lively debate with mark cuban. Ronen posits that viewers will flock to internet video because of the breadth of content while Cuban suspects that traditional distribution will trump all because of quality.
I suspect that they’re both right.
Traditional broadcast/cable/satellite distribution is far better at broadcasting popular material to many people at once in high quality. Over-the-air HD broadcast far surpasses internet video in quality and scales easily.
With live events and the first airing of serial entertainment, the desire to watch live and then the correlated value in watching together for watercooler (or online watercooler) discussions keeps broadcasts relevant. If American Idol happened last night, you’re going to talk about it tonight. For audio/video quality and currency, broadcast wins.
The internet opens up a vast variety of material available. Between archived material from legacy copyright owners and new material produced for the internet by small independent producers (often at shockingly low costs), the internet has a wealth of content that can’t be matched by traditional broadcast or cablecast distribution.
On Tuesday, Boxee gathered 600 users, fans and partners at Webster Hall to learn about new features coming to the next version of the software as well as some of the internet-based content available through the platform. And to get free T-shirts. (Thanks, Boxee.)
Boxee is an internet video browser for a television. It makes it possible to sit on your couch and watch online video from a multitude of sources on your TV, instead of in front of your computer.
What’s interesting is that Boxee users seem prefer to access sources approved by copyright owners. More users want to access Hulu than to download video files via Bittorrent. They want the program creators to be able to earn money (and continue to film new programs.) Boxee the company wants to offer the best experience to its users (for free) while also helping to drive revenue to the content providers. And the internet video content providers want to get their material onto TV. (Well, except for the networks who have traditional distribution which may be cannibalized by internet distribution. Since ads sell for higher rates on the broadcast or cablecast than for the same content streamed over the internet, taking the internet version to TV may simple replace higher-value audience with lower-value audience.)
Boxee is going to remain a niche product for the immediate future. Not many people have computers hooked up to their TV to watch internet programming. I have Boxee installed on my Apple TV. Installing Boxee is not the easiest process, since it requires creating a USB “patchstick” which then installs the Boxee software on Apple TV. Boxee provides a useful supplement to Apple’s software, which works very well for downloaded and ripped content stored locally in iTunes, but is limited to streaming content only from YouTube, not from the rest of the internet. Boxee connects the TV to the rest of that streaming.
The alpha version can be confusing and frustrating to use, with the main menu hidden off to the side of the screen. Compared to the Apple TV’s native interface, Boxee’s can feel second-rate. In most contexts, Apple’s interface uses larger fonts and higher-contrast text that is easier to read from the couch. Boxee’s alpha software isn’t nearly as polished as AppleTV’s second-generation interface.
While I have an Apple TV and use Boxee to watch shows, I also still subscribe to cable television and will prefer to watch programs recorded on TiVo to programs streamed on Boxee. The picture and sound quality is far superior on cable TV. That isn’t to say that internet distribution won’t get better in the future.
How immediate is this future? Boxee is actively working to develop their software to make it easy to use. And the fact that it is slightly clunky now isn’t much of a detriment to the early adopters and nerds who are using this young software. The viewer who doesn’t have the patience to learn the software is certainly not going to take the time to patch an Apple TV or connect a computer up to their TV as a media player. This version of Boxee is a glimpse at the next generation of television, where Boxee is the default interface for a set-top box or a television itself. Ronen expects to see such boxes running Boxee available within the next year.
And that’s when the masses are going to be disappointed with their broadband connection and the quality internet video.
Netflix is finding that some users of its streaming service get less than ideal quality because of the variables involved in the networks between the user and Netflix. Many US “broadband” internet connections simply don’t have the bandwidth to stream HD video and so the quality falls back to something lower.
How good is good enough? MP3 suffices for most music listeners. But having recently upgraded to an HDTV, I can’t imagine going back to fuzzy low resolution video.
Until the broadband networks in America catch up to those in the countries that have higher-bandwidth networks, internet video is likely going to remain a secondary niche. Of the two programs I watched online this week, The Amazing Race’s stream had a few instances where motion became jerky and the audio and video fell out of sync. On Kings, the picture was noticeably blurrier than my HD recording of the pilot. Overall, these were pretty good viewing experiences, but still materially inferior to programs recorded from cable.
Cable companies have offered their own video-on-demand services since the advent of digital cable. Edge-caching content at a major ISP may be cheaper for streaming media than for the ISP to upgrade its service. In addition, bandwidth limits and caps drive video usage to legacy networks. Even with IP-delivered video, cable companies could favor in-house on-demand video over video sourced from the internet at large.
The internet is the future of video, with shows living there long after they’ve been broadcast. But that doesn’t mean that broadcast is imminently disappearing.
Previously: Preparing for the Post-TV World

Consumerist, Movies: Dumbed Down Subtitles Ruin US Release Of ‘Let The Right One In’: “What if you started to watch Let The Right One In, a highly acclaimed foreign film from last year, and you discovered the US release had been renamed Open Up!? That’s sort of the experience consumers are having when watching the new release of the movie on DVD and Blu-ray. At some point between the theatrical release and the DVD release, the distributor replaced the original, nuanced English subtitles with dumbed-down ones.”
What was the situation that led up to replacing the original subtitles with second-rate subtities? A licensing issue? Does the filmmaker have a claim against the distributor for mangling the original intent of the film with bad subtitles? Does the structure of film distribution contracts leave the filmmaker with any recourse? Is there a moral rights concern?

Even though Amazon agreed to allow authors and publishers the right to decide whether Kindle e-books can be read aloud, here are couple more (belated) links about Kindle 2 reading e-books via text-to-speech synthesizer.
LA Times, Amazon Kindle 2 makes authors’ e-Books more compelling, “Innovators such as Amazon are and should be free to create devices that help consumers exploit all of the rights they obtain when they purchase books and other copyrighted material. And by the way, Authors Guild: Amazon sells e-books. The Kindle makes those products more appealing to consumers, which makes them more valuable to authors and publishers. If authors hope to compete in the digital era, they need the e-book market to succeed. Stripping features from the Kindle 2 won’t help.”
Derek Bambauer, Info/Law, Kindle Owners of the World, Unite!: “Roy Blount Jr., writer and president of the Author’s Guild, has a jeremiad in the New York Times about Amazon’s Kindle, and its ability to read books aloud. Blount thinks that is a violation of authors’ rights. After giving some thought to his argument, I can only conclude that Blount should stick to sports, because he’s pretty confused about copyright.”
Ben Sheffner, Copyrights & Campaigns, Amazon compromises on Kindle 2’s ‘read-to-me’ feature; who can blame them?: “Remember: Amazon can only offer books via Kindle because it has contracts with authors and/or publishers that permit it to reproduce, display, and distribute their books in digital form. I haven’t seen such contracts, but I’m confident they contain myriad deal points: money, term of license, and exquisite detail about what Amazon is actually permitted to do with the digital copies.”
On Late Night with Jimmy Falllon, Kindle 2 reads the classics:

Which is a similar, but opposite joke, as Late Night with Conan O’Brien’s James Lipton reads the lyrics to Kevin Federline’s Popozao.

In the New York Times, Authors Guild president Roy Blount, Jr, makes the case against the Kindle’s text to speech synthesizer, The Kindle Swindle?: “True, you can already get software that will read aloud whatever is on your computer. But Kindle 2 is being sold specifically as a new, improved, multimedia version of books — every title is an e-book and an audio book rolled into one. And whereas e-books have yet to win mainstream enthusiasm, audio books are a billion-dollar market, and growing. Audio rights are not generally packaged with e-book rights. They are more valuable than e-book rights. Income from audio books helps not inconsiderably to keep authors, and publishers, afloat.”
Engadget’s Nikay Patel interviewed Paul Aiken, Executive Director of the Authors Guild, “Just because Amazon does something a bit clever with their ebook reader and adds technology which allows them to render text into speech doesn’t mean they get to exploit it for all it’s worth, without sharing with authors and publishers. In our view this is a legitimate market.”
In the last few years, lawyers have been digging into musty old file cabinets to review licenses for rights licensed for old films and television shows, in order to clear them to sell the works on DVD or make available on streaming services. These original licensing agreements never imagined home video or internet streaming uses and not granted rights to those then-uninvented possibilities. Did publishers merely fail to imagine the possibilities?
Is an audiobook recording a completely different product than an e-book run through a text-to-speech synthesizer? Does a book of sheet music compete in the same marketplace with a recording of that same piece of music? What about a MIDI file that allows a synthesizer to play back a piece of music? Does that compete with a recording? With the sheet music?
Update. Right after I posted this, Amazon announced that it would offer publishers the ability to block the Kindle from reading books to the Kindle owner. Brad Stone reported on the NYT Bits Blog, Amazon Backs off Text-to-Speech Feature in Kindle. Amazon’s states,

“Kindle 2’s experimental text-to-speech feature is legal: no copy is made, no derivative work is created, and no performance is being given. Furthermore, we ourselves are a major participant in the professionally narrated audiobooks business through our subsidiaries Audible and Brilliance. We believe text-to-speech will introduce new customers to the convenience of listening to books and thereby grow the professionally narrated audiobooks business.
Nevertheless, we strongly believe many rights-holders will be more comfortable with the text-to-speech feature if they are in the driver’s seat.”

Lessig comments, Caving into bullies (aka, here we go again): “We had this battle before. In 2001, Adobe released e-book technology that gave rights holders (including publishers of public domain books) the ability to control whether the Adobe e-book reader read the book aloud. The story got famous when it was shown that one of its public domain works — Alice’s Adventures in Wonderland — was marked to forbid the book to be read aloud.”
(Post title reference: Radiohead’s song Fitter Happier features Macintalk on lead vocals.)
Previously: Take a Look, It’s in a Book.

The NY Public Library event Remix: Making Art and Commerce Thrive in the Hybrid Economy with Lawrence Lessig, Shepard Fairey, Steven Johnson was well-attended and lively discussion, even if the panel was comprised entirely of copyright moderates with no mainstream maximalists or crazy abolitionists.
Here are some rough notes, transcribed and re-ordered from what I wrote down at the panel:
On the continuum of copyright use, the panel talked about a few different uses that can be classified in the following ways:
Incidental and de minimis use. This is where a copyrighted work may appear in another work, either as part of the background. Because of the pervasiveness of copyrighted works all around us, perhaps a more generous threshold than the 6th Circuit’s Bridgeport sampling standard (where any use is an infringing use, no matter how small) is the sensible standard.
Transformative use for commentary, criticism
Here is, obviously, the heart of the panel. If a work is transformative and used for non-commercial or substitutionary purposes, it should be classified– more often than not– as a fair use.
Is mashup creative? Does it shed a light on the works it builds from? Is the law able to judge the merit of the creativity? If a mashup derives its impact from borrowing the hook, core, or the entire narrative structure, shouldn’t there be some level of use that deserves compensation? Where do we draw the line?
But non-commercial transformative uses of copyrighted works online are often lumped in for enforcement purposes with infringing distributions or performances.
How often do we see iconic images in a public space that aren’t commercial images?
Commercial substitution.
Siknce Grokster, P2P usage is up substantially. And what percentage of those uses are simply straight-up infringing uses that substitute for purchases of copies? How much P2P usage is simply plain old piracy of current, popular, copyrighted works? That P2P usage is up since Grokster isn’t necessarily something to celebrate and RIAA lawsuits aren’t necessarily something to ridicule. Widescale piracy does need to be deterred. Whether these lawsuits are
Miscellany
At its best, grassroots activism is actually from the roots, not from above. And it’s going to be messy.
Institutions are made out of people. They’re PEOPLE! PEOPLE!
The NY Times’ Jennifer Schuessler attended and wrote up a succinct summary of the discussion, Steal This Blog Post! “The event felt a little like Burning Man for the so-called Copy Left, with body art to match. Shortly before the talking started, two big guys with big cameras ushered a woman with a cool shoulder tattoo of Fairey’s Obama poster out of her seat. Enforcers from the Associated Press, which claims Fairey violated its copyright, perhaps?”
Here’s the complaint in Fairey’s lawsuit against the AP seeking a declaratory judgment that “Hope” is not an infringing derivative work, Fairey v. AP
The New York Times, Artist Sues The A.P. Over Obama Image
Yesterday, Fresh Air broadcast an interview with Fairey, Shepard Fairey: Inspiration Or Infringement?, “He joins Fresh Air to talk about the image, the dispute, and why he thinks his poster qualifies as a protected work under Fair Use provisions.”
Fairey has inspired a whole genre of Hope-inspired images and parodies, such as a
Watchmen-inspired image<br/ >

Thanks to the signing of the DTV Delay Act, television broadcasters continue to send out their sweet, sweet analog signals a full week after the original cutoff date. And those broadcasters will continue to broadcast both analog and digital signals until June 12.
Note that 641 of the 1800 licensed television broadcast stations across the country have already switched off their analog broadcast facilities.
While many television viewers in the US subscribe to cable or satellite service, there is a significant public interest in ensuring that anyone who wishes to obtain broadcast television should be able to. After all, these are public airwaves, which the broadcasters are allowed to use by authority of Congress. Broadcast TV is not merely soap operas, infomercials and bad sitcoms. It is local news, major public events and news.
New York Times, Digital TV Beckons, but Many Miss the Call, “That so many viewers here and around the country risk losing something as basic as a free television signal is a function, at least in part, of the government’s failure to anticipate that those most affected would be among the nation’s most frail and vulnerable.”

Eliot Van Buskirk, Wired.com, How We Bungled the Digital Television Transition: “America’s transition to over-the-air digital television signals, which netted the government $19 billion in a wireless spectrum auction, was doomed from the start, thanks to a flawed voucher program and a time frame that left the country stranded between administrations.”
At the same time, studios and networks are connecting with audiences outside of broadcast, cable and satellite, thanks to the internet.
But don’t plan on using the internet to replace current TV service just yet.
Boxee makes a media center software application that runs on computers as well as the Apple TV media extender. Boxee’s best feature is that it connects TV style viewing with internet video streaming. This provided a way to watch programs from the deep library of the NBC and Fox joint venture, Hulu.
That was until Hulu’s “content partners” (the studios who own the copyrights on the various programs) discovered Boxee and realized that they hadn’t contemplated viewers watching Hulu on real televisions and asked Boxee to discontinue streaming Hulu programming. Interestingly, Hulu never had an agreement with Boxee.
Boxee, The Hulu Situation, “our goal has always been to drive users to legal sources of content that are publicly available on the Internet. we have many content partners who are generating revenue from boxee users and we will work with Hulu and their partners to resolve the situation as quickly as possible.”
Hulu, Doing Hard Things, ” While we never had a formal relationship with Boxee, we are under no illusions about the likely Boxee user response from this move. This has weighed heavily on the Hulu team, and we know it will weigh even more so on Boxee users.”
Does internet streaming generate revenues comparable to selling advertising on first-run broadcast, rights to second-run syndication and DVDs? (Obviously not). How can copyright owners contemplate future uses of licensed content when entering into licensing deals?
Marc Hedlund, Hulu’s Superbowl Ad and the Boxee Fight “To your TV is something completely different, and from the “content providers'” point of view, completely wrong. Aren’t Apple and Tivo and YouTube bad enough as it is?”
Dan Wallach, Freedom to Tinker, Hulu abandons Boxee—now what?: “Also interesting to note is the acknowledgment that there was no formal relationship between Hulu and Boxee. That’s the power of open standards. Hulu was publishing bits. Boxee was consuming those bits. The result? An integrated system, good enough to seriously consider dropping your cable TV subscription.”
Janko Roettgers, NewTeeVee, Is Hulu Driving People Back to Piracy? “Applications like the Torrent Episode Downloader (TED) make it easy to subscribe to whole seasons of your favorite TV show via BitTorrent, and established TV torrent sites like EZTV even offer P2P streaming for immediate access.”
Fred Wilson, A VC (and investor in Boxee), Why Hulu Should Embrace Boxee: “There’s a consistency to the comments and it is confusion first and foremost. Hulu users don’t understand the distinction between watching Hulu through Firefox or Safari and wathicng Hulu through Boxee. And many of them are coming back to watching TV because they can watch over the internet, when they want, and how they want. They feel liberated by Hulu and Boxee and see them as a match made in heaven. Which they are. And I sure hope that Hulu and its content partners come to that realization quickly.”
It is possible to use the internet to watch most television programming. And The Wall Street Journal, reports that cable operators are looking to secure internet rights to have a role as content aggregators in the post-TV internet video world Cable Firms Look to Offer TV Programs Online: “Top cable-television providers and TV networks are exploring a sweeping solution to the threat of online video: putting large numbers of cable shows online, but accessible only to cable subscribers.”
But we’re not in the post-TV world quite yet.
Streaming Hulu content through Boxee (at least on an Apple TV) is a second rate experience to watching the same programs on broadcast or cable. Shows look far better on the digital broadcast or cablecast than on internet streaming. (Even ABC’s very nice HD streams of Lost aren’t as smooth as their HD broadcast.)
But as music listeners have shown, there’s a threshold where portability and convenience outweighs quality. For most people MP3 quality is good enough for music. Higher fidelity digital standards (Super Audio CD, DVD-Audio) never managed to compete with the convenience of MP3. For video, online streaming is obviously coming close enough to that point where convenience trumps quality.

The Brooklyn Paper, Tapped out! Hook brewery is ordered to stop making ‘Obama’ ale: “Federal agents have ordered a Red Hook brewery to stop making its popular ‘Hop Obama’ ale — a beer that was first brewed during the presidential campaign as a way of supporting the then-underdog candidate. The cease-and-desist order was issued by the Tax and Trade Bureau of the federal Bureau of Alcohol, Tobacco and Firearms on the grounds that Sixpoint Craft Ales did not have permission from to use the president’s likeness on the tasty, hop-heavy brew.”

This week, Amazon announced the details of its second generation Kindle e-book reader. One of the new features is text-to-speech software that can read aloud the text of a document stored on the Kindle.
The Wall Street Journal reports that the Authors Guild is not happy with the feature, “They don’t have the right to read a book out loud,” said Paul Aiken, executive director of the Authors Guild. “That’s an audio right, which is derivative under copyright law.” New Kindle Audio Feature Causes a Stir
Typically, audio books are derivative works of the original work and are fixed in a recorded medium. The reader adds his or her own interpretation to the text. The work can stand alone as an artistic creation. (See e.g. the accolades that Jim Dale has received for his readings of the Harry Potter books). However, a Kindle 2 owner could foreseeably forego buying the more expensive audiobook to choose to read aloud the e-book.
But is the Kindle text-to-speech reading a derivative work? With the Kindle 2, the computer is generating a reading of the original work dynamically for the portion of that work the Kindle user chooses to have read aloud. Is it ever considered fixed in a tangible medium? If the text-to-speech reading isn’t fixed, then it can not be a derivative work, since a work must be fixed in a tangible medium in order to be copyrightable.
If publishers worry about text-to-speech affecting the market for audiobook rights, perhaps e-book rights (and thus e-books themselves) will become more expensive.
Engadget’s Nilay Patel analyzes, Know Your Rights: Does the Kindle 2’s text-to-speech infringe authors’ copyrights?: “This is actually pretty tough stuff — as far as edge cases go, this one pushes right up against the boundaries of the current law. On one hand, you definitely have the right to read books that you own out loud using whatever tools you want, and on the other, authors definitely have the right to prevent others from selling audio versions of their works. The Kindle’s text-to-speech feature blurs the lines between books and recordings, and that means those two rights are in conflict with each other.”
See also John Siracusa’s take on the past, present and future of the e-book market, The once and future e-book: on reading in the digital age – Ars Technica: “A veteran of a former turning of the e-book wheel looks at the past, present, and future of reading books on things that are not books.”
Tangentially related, Apple’s text-to-speech software, MacInTalk, has a major film credit in its resume. In Pixar’s Wall-E, MacInTalk voiced the character Otto.
Update (2/12). Neil Gaiman weighs in with a Quick argument summary, “When you buy a book, you’re also buying the right to read it aloud, have it read to you by anyone, read it to your children on long car trips, record yourself reading it and send that to your girlfriend etc. This is the same kind of thing, only without the ability to do the voices properly, and no-one’s going to confuse it with an audiobook. And that any authors’ societies or publishers who are thinking of spending money on fighting a fundamentally pointless legal case would be much better off taking that money and advertising and promoting what audio books are and what’s good about them with it.”
Evan Brown, Does the Kindle 2’s text-to-speech feature violate copyright law? “Does Aiken have a legitimate gripe? I say it depends on the technology. And the fact that there could be a difference based merely on a technological setup underscores how digital technology has sent some aspects of copyright fumbling towards absurdity.”

Critic and filmmaker Matt Zoller Seitz wirtes an essay about how YouTube and the DMCA Takedown procedure are harming online film criticism, The House Next Door: Copy Rites: YouTube vs. Kevin B. Lee: “When the history of intellectual property law is written, January 12, 2009 should be marked as a decisive moment. It was the day that my friend, fellow House Next Door contributor and sometime filmmaking partner Kevin B. Lee saw his entire archive of critical video essays deleted by YouTube on grounds that his work violated copyright.”
The web has the potential to make multi-media criticism accessible and easy to create. Criticism and comment on a work is a paradigmatic example of Section 107 fair use.
However, because video is complex and bandwidth intensive, video hosting sites like YouTube in particular have made it possible for the non-technical critic to embed videos into a web page. And these video hosts have little desire to defend their users’ alleged infringements as non-infringing fair uses. The DMCA §512(c) safe harbor creates an incentive for video hosting providers to respond promptly to notices of alleged copyright infringement and take down those allegedly infringing videos.
With the rise of audio and video fingerprinting technology, YouTube and other video hosting sites may be scanning user uploads for potential copyright infringements of works owned by their content partners. YouTube is offering its users the ability to replace copyrighted music in soundtracks with music licensed to YouTube’s music library.
The EFF’s Fred Von Lohmann calls the deployment of this audio fingerprinting technology, YouTube’s January Fair Use Massacre: “It’s clear from the Warner Music experience that YouTube’s Content ID tool fails to separate the infringements from the arguable fair uses. And while YouTube offers users the option to dispute a removal (if it’s an automated Content ID removal) or send a formal DMCA counter-notice (if it’s an official DMCA takedown), many YouTube users, lacking legal help, are afraid to wave a red flag in front of Warner Music’s lawyers. That’s a toxic combination for amateur video creators on YouTube.”
Does YouTube have a responsibility to promote fair use? Or is it actively helping its users by forcing them to avoid any uses that might possibly infringing?

Yochai Benchler compares the differing approaches towards creating economic opportunity through supporting broadband development in the economic stimulus bills introduced in the House and Senate, Broadband Stimulus: “Weaker or stronger, the fact that both the House and Senate bills clearly tie the funding to core goals intended to enhance distributed innovation and open participation, uncontrolled by the incumbents, and to begin to reintroduce the idea that competition from new entrants is important and requires some version of open access and interconnection regulation is a breath of fresh air.”
The New York Times, But experts warn that the rural broadband effort could just as easily become a $9 billion cyberbridge to nowhere, representing the worst kind of mistakes that lawmakers could make in rushing to approve one of the largest spending bills in history without considering unintended results.”

The New York Times reports, Justices Reject Pornography Law: “Without comment, the court handed down an order declining to take the case of Mukasey v. A.C.L.U., No. 08-565. The administration of former President George W. Bush, through Attorney General Michael Mukasey, had asked the justices to review the law. The American Civil Liberties Union has been a leading foe of the statute.”
In ACLU v. Mukasey (2008) the Third Circuit Court of Appeals affirmed the District Court opinion that the Child Online Protection Act (COPA) violates the First and Fifth Amendments because it is not narrowly tailored to advance the Government’s compelling interest in protecting children from harmful material on the internet, there are less restrictive and equally effective alternatives (filtering technology) and the statute is impermissibly overbroad and vague.
Previously: Won’t Somebody Please Think of the Children (June 2008)
Pennsylvania Porn Prohibition Pronounced Unconstituional (2004)
Ashcroft v. ACLU (2004)
Ashcroft v. ACLU link roundup (2004)

Is the Isle of Man, which eschews many of the taxes found in other European states, set to become a leader in levying a compulsory tax on internet use to compensate copyright holders for P2P file sharing?
The New York Times reports, Music Industry Imitates Digital Pirates to Turn a Profit, “The government of the Isle of Man announced plans for a system under which consumers with broadband subscriptions would be required to pay a nominal monthly license fee. They could then legally download music from any source, even peer-to-peer services that are outlawed currently.”
MusicAlly live blogged the session at MidemNet where Rob Berry, from the Isle of Man’s government, announced that the Isle of Man would be launching a porposal for a blanket fee for ISP-based music licensing. MidemNet 2009 Liveblog: Music and ISPs debate
Ars Technica’s Nate Anderson reports, Isle of Man gets unlimited music downloads with blanket fee“Few details are available beyond the news that a single blanket fee will cover unlimited download activity for all 80,000 or so Manx residents, with money to then be shared with the music industry. This raises all the obvious questions that compulsory licenses generate, including the fairness of forcing everyone to pay, whether they want to download files or not.”
Update, Jan. 20. Coolfer analyzes the BPI response, Isle of Man Proposes Blanket License for Unlimited Downloading. Not What Industry Wants: “What the BPI wants are label-sanctioned services to be bundled with ISP services and hardware. That means more control on the part of the major copyright owners. The Isle of Man’s proposal, I imagine, is too ‘wild west’ for much of the industry.”

WB and Fox Settle Watchmen Dispute. Variety reports, WB, Fox make deal for ‘Watchmen’: “Warner Bros. gets the right to open its superhero pic on March 6 as planned, and Fox’s logo will not be on the film, sources said. Fox, on the other hand, will emerge with an upfront cash payment that sources pegged between $5 million and $10 million, covering reimbursement of $1.4 million the studio invested in development fees, and also millions of dollars in legal fees incurred during the case. More importantly, Fox will get a gross participation in ‘Watchmen’ that scales between 5% and 8.5%, depending on the film’s worldwide revenues. Fox also participates as a gross player in any sequels and spinoffs, sources said.”
Can the music industry recover? Stephen Masur has some suggestions for the music industry on how to make money in today’s world. Good Music, Conveniently Delivered; The Value Prop Still Ain’t There: “Even for lawyers the deals are too complicated and full of cheap tricks. We might be stuck with that for the older artists, but let’s throw it all away for the kids. Ian MacKaye had it right 20 years ago. Pay the artist a straight percentage rate across everything. It’s easy to understand, easy to account, easy to collect. Stop hiding things from artists. Stop lying to your own team. Instead, become their trusted partners in business.”
Stadium Naming Trends
In The New York Times, William Rhoden notes that online educator The University of Phoenix– which bought the naming rights for the Arizona Cardinals’ new stadium for $154 million over 20 years– doesn’t have a sports program of its own, or a campus. Which could be confusing. Sports of The Times – No Football Team, but What a Stadium!: “Exactly where is the University of Phoenix? This is what puzzled me two and a half years ago when I stepped inside the fabulous University of Phoenix Stadium in Glendale, Ariz. Was the university a member of the National Collegiate Athletic Association or the National Association of Intercollegiate Athletics? Did it play in Division I, II or III?”
Los Angeles Times, Anaheim ends legal battle over renaming of Angels: “The city had sued after owner Arte Moreno changed that name to Los Angeles Angels of Anaheim but lost rounds in Superior Court and state appellate court. The fight cost the city $4 million.”

The Foreign Intelligence Surveillance Court of Appeals released a redacted version of its ruling from August 2008 upholding the constitutionality of a statute authorizing an intelligence program to wiretap international phone calls and intercept e-mail messages without a specific court order.
In re: Directives [redacted text]* Pursuant to Section 105B of the Foreign Intelligence Surveillance Act (No. 08-01)
The court holds that “a foreign intelligence exception to the Fourth Amendment’s warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States.”
The New York Times, Intelligence Court Rules Wiretapping Power Legal, “The decision marks the first time since the disclosure of the National Security Agency’s warrantless eavesdropping program three years ago that an appellate court has addressed the constitutionality of the federal government’s wiretapping powers. In validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has the power to act without specific court approval in ordering national security eavesdropping that may involve Americans.”
Lyle Denniston, SCOTUSblog, Intelligence wiretap power upheld: “In a case that potentially could go to the Supreme Court, a special federal appeals court that operates almost entirely in secret has ruled that Congress did not act unconstitutionally in giving the government power to order telecommunications companies to aid in warrant-less national security wiretapping — eavesdropping mainly aimed overseas, but possibly reaching inside the U.S. and American citizens.”
David G. Savage, Los Angeles Times, Court calls warrantless wiretapping legal: “The decision confirms what Bush administration officials and some legal experts have long argued. Although the Constitution protects the privacy rights of Americans against ‘unreasonable searches and seizures,’ this principle does not bar U.S. spy agencies from conducting surveillance aimed at foreign targets abroad.”
The Washington Post, Intelligence Court Releases Ruling in Favor of Warrantless Wiretapping: “The opinion, written by the court’s chief judge, Bruce M. Selya, was extraordinary in several respects: It was partly redacted, and it referred to court pleadings that remain sealed. The ruling also hinged partly on a detailed, secret account by the government to the court of its surveillance procedures in 2007.”

The Wall Street Journal reports that President-Elect Obama plans to nominate his technology adviser, Julius Genachowski, to chair the FCC. Genachowski Picked to Head FCC – WSJ.com: “During the campaign, Mr. Genachowski served as the top technology adviser to Mr. Obama, putting together a detailed technology and innovation plan that expressed support for open Internet or ‘net neutrality’ protections; media-ownership rules that encourage more diversity; and expansion of affordable broadband access across the country.”
Over in Congress, Rep. Rick Boucher (D-VA) will chair the U.S. House Energy and Commerce Committee’s Subcommittee on Communications, Technology and the Internet. In the 111th Congress, Rep. Boucher “will oversee the digital television transition and work toward reform of the federal universal service fund, promote broadband deployment and work to enable local governments to offer broadband in communities not fully served by commercial carriers.”