Tuesday, March 29, 2005

MGM v. Grokster Rundown

The Supremes heard oral arguments in the MGM v. Grokster case today. Copyfight, Slate, and NPR's Nina Totenberg all have recaps of the argument. None of them are willing to say who they think will prevail. But, I think it's safe to say that the Supremes will hold in favor of MGM for the reasons outlined below.

First, a little history lesson:

1. Sony Betamax
In 1984 the Supremes decided the famous Sony Betamax case (Justice Stevens writing the 5-4 opinion), in which it held that Sony was not contributorily or vicariously liable for the infringement of users of the Betamax.

In order to show contributory infringement, the plaintiff must show that 1) a 3rd party directly infringed its copyrights, 2) the defendant had actual or constructive knowledge of the infringement, and 3) the defendant materially participated in the infringement.

For vicarious liability the plaintiff must show 1) a 3rd party directly infringed its copyrights, 2) the defendant had the right and ability to control or supervise the infringing activity, and 3) the defendant had a direct financial benefit because of the infringement.

Sony won the case for two reasons (that are pertinent to the pending Grokster case): First, Sony had no continuing relationship with purchasers of VCRs, and therefore no control. This means there could be no vicarious infringement. Second, for contributory infringement the Court first looked to patent law to find an analogous contributory infringement test and then held that if the defendant does not have actual knowledge, but only has constructive knowledge, a defendant whose technology had substantial noninfringing uses would not be contributorily liable. Here Sony had only constructive knowledge of infringement since it did not have a continuing relationship with VCR purchasers. Sony also had two kinds of noninfringing uses on its side: 1) fair use recording for "time shifting" (later viewing) and 2) authorized use (bolstered by the testimony of Fred Rogers conveying his hopes that parents would tape his show so that their children could watch it when they got home from preschool).

2. Napster
Fast forward to 2001 when the 9th Circuit ruled on the A&M Records v. Napster case. Napster had tried to argue that its users were not direct infringers. That is, "space shifting" (accessing music they already owned on someone else's computer) was the same as time shifting, and free trial use prior to purchasing were both fair uses. Needless to say, the court rightly saw this as complete poppycock. Where Napster failed is in not presenting evidence of such fair use as sharing public domain works, or authorized sharing ala Mr. Rogers. (Just ask Crapartist or myself of our countless hours of entertainment trying to convince poor saps all over the world that "Char is very popular in America"). But, as it turns out, it didn't matter if Napster had substantial noninfringing uses or not.

The 9th Circuit surprised some because it did not apply the Sony Betamax case at all. The reason: Betamax only applies if there is no actual knowledge of infringement. Here, Napster had actual knowledge (because it kept lists of songs on its servers), so it didn't matter if there were substantial noninfringing uses. Napster was found to materially participate in infringement because it had the ability to remove infringing material from its servers, and yet never did.

Napster was also vicariously liable because it had both the requisite control (ability to remove the material) and would directly financially benefit from the infringement. This part always bothered me because up to this point, Napster was free. But, because it was in its business plan to eventually make money, that was good enough for the court.

3. Grokster
In 2004, the 9th Circuit got to revisit P2P file sharing with the MGM v. Grokster case. Grokster, and the other post-Napster P2P programs are different from Napster in an important technological and legal aspect: because there is no central index on Grokster's server, Grokster has no actual knowledge of infringement nor control over its users. Here's the rundown of the 9th Circuit's ruling:

1) Contributory infringement: the court tied knowledge to the timing of material contribution. Here knowledge became irrelevant because it did not occur at a time that Grokster could do anything about it.

Even if the court had decided there was constructive knowledge, Grokster had two advantages over Napster: First it presented evidence of substantial noninfringing uses (fair use and authorized use). Second, it had evidence that there were other benefits to reduced centralized control, and it didn't choose its architecture solely to get around the Napster decision. For example, if one part of the system shuts down, the rest still runs. Also, it's cheaper because Grokster doesn't require a huge server.

Grokster also did not materially contribute to the infringement inasmuch as it did not provide the site and server for its users. (The weakness in this reasoning is that nonetheless but for Grokster, there would be no infringement).

2) Vicarious infringement: there is no right and ability to supervise Grokster users making it distinguishable from Napster. The court found that Grokster did not have a continuing relationship with its users.

(The weakness in this argument being that Grokster does indeed have some relationship with users by way of being able to send them advertisements. This is how it makes money. Thus if the Supremes find that this constitutes a continuing relationship, the direct financial benefit prong will also be met.)

3) Redressability: courts generally do not like to decide cases if finding in favor of the plaintiff will not do any good. In the case of Grokster, finding them liable does not necessarily mean that current users will no longer be able to use the program.

The Supremes likely decision: MGM wins.

Why? For a number of reasons both legal and political.

1. The Supremes almost always reverse 9th Circuit opinions. This is especially true of 9th Circuit Intellectual Property opinions.

2. Betamax was a narrow 5-4 decision. It was almost certain to be 5-4 in the other direction, and then O'Connor changed her mind at the last minute.

But, Betamax was also in a completely different era: it was before the digital revolution. These days the content industry has everyone in a tizzy about digital piracy. Let's not forget the DMCA was passed even before Napster was around.

Let's also not forget who wrote the opinion for Eldred v. Ashcroft (that's the Sonny Bono Copyright Extension Act case): Justice Ginsburg. The content industry even has her in their grips. (This despite the fact that her daughter, Jane Ginsburg, is a prominent intellectual property attorney--and c0-authored my Trademark casebook with Copyfighter Jessica Litman).

3. Today, at oral argument, when Scalia was questioning the attorney for Grokster he outright stated that the decision would not be made on the basis of stare decisis. That is, he has no intention of following Betamax.

Where Scalia goes, Rehnquist and Thomas will follow. If they don't apply Betamax, then what becomes important is what kind of knowledge did Grokster have and when did they have it?

It's unlikely that the Supremes will tie knowledge to the time of direct infringement as did the 9th Circuit. Rather, they may focus on Grokster's knowledge that its program would be used primarily for infringement (and use its business plan as evidence of its intent). If so, it follows that the Court will find Grokster materially contributed to infringement using a but-for test.

True, Breyer seemed very concerned that inventions such as the photocopier, iPod, or printing press might fail under MGM's proposed test that requires a business to show it is substantially unrelated to copyright infringement. Stevens, as author of Betamax is likely to agree. However, the Court doesn't need to use MGM's proffered test when it can find contributory infringement merely by holding that Grokster had constructive knowledge. Let's face it: the photocopier, iPod, and printing press are not used primarily for infringement, nor would someone inventing them now have reason to believe they would be. Even if Grokster's knowledge was constructive, the Court can skirt around Betamax by holding that since 90% of its uses are infringing, the legitmate noninfringing uses are not substantial--or it can go Scalia's way, and not use Betamax at all.

4. The question remains, what will Ginsburg, Kennedy, and O'Connor do? Perhaps Ginsburg's daughter can talk some sense back into her. But, O'Connor was such a waffler on the Betamax case it wouldn't be surprising if she went the other way this time. I'm unsure about Mr. Kennedy. I guess we'll all find out soon enough.

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He is Risen!

My 10 year old niece sent me the above link. I love it.

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Monday, March 28, 2005

happy birthday, mystery man Posted by Hello

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before Posted by Hello

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after Posted by Hello

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Saturday, March 26, 2005

Happy Easter

Since it is Easter and I am Catholic, I thought I would post a well reasoned explanation of Catholic teaching on the Schiavo matter. The author is a Paulist Priest (and I attend a Paulist Church):

Terri Schaivo and Extraordinary means According to Catholic Teaching…

1. Since about the 1500s the ordinary/extraordinary means tradition has allowed patients (or, if incompetent, their delegates or next-of-kin) to weigh the benefits vs. the burdens of any given medical treatment in the context of their own personal life experiences, finances, pain tolerance, values, support network, etc. This was never an evaluation of means-alone, but means-in-context. On the whole, will I be more burdened or benefited by the treatment, given its side effects and my general condition or "totality"? So a surgery or piece of equipment or a medicine could not be declared "absolutely" or "categorically" ordinary (i.e. required).For example, a ventilator [which doesn't heal, but keeps one breathing artificially or assisted by machinery] may be "ordinary" in the case of a person with a lung infection who is on antibiotics and will soon regain his/her own breathing capacity. That same ventilator may be deemed "extraordinary" (i.e. optional) in the case of someone resuscitated after being dredged up from a frozen river. If his/her brain function was preserved because of hypothermia, we might leave them on the ventilator to see how much brain function will thaw and return. If, however, CAT scans, MRIs, etc. determine that only the brain stem is functioning, if that, then one can wean the person from the ventilator and if she/he doesn't breathe on their own, then they die -- and it is considered removal of "extraordinary," not "ordinary" means (i.e. Karen Ann Quinlan). So it is the SITUATION or CONTEXT, not the particular procedure alone. Also, we do not weigh a procedure vis-Ă -vis one body function, but in terms of whole bodily health or the patient's totality. e.g. dialysis, which may still work on one's kidneys, is no longer obligatory when someone has terminal cancer or after a massive, irreversible heart attack. We are the sum total of our health conditions, not isolated organ systems.

2. Now to Terri Schaivo in Fla. It has been the standard Catholic moral position across the 20th century, accepted tacitly by the Vatican and in some cases explicitly by Pius XII & a 1980s Decl. on Euthanasia, that when one is near death or terminally ill, one need not start (or continue) procedures that merely prolong dying. Hence, it is the accepted practice in all hospice programs that we do not hook terminally ill patients up to ventilators or artificially administered fluid and nutrition to prolong their dying. In ordinary/extraordinary language, the value of artificially moving their lungs or artificially bypassing their swallowing and digestive processes is not of enough benefit TO THE PATIENT, given their dying condition and, indeed, prolongation might prolong their suffering and the burden to others whom they love and would not want to burden unnecessarily.At the same time, in addition to clearly terminal conditions or imminently dying conditions (latter stage cancer, massive heart failure, etc.), the same moral consensus held about those in permanent comas. If one is so brain damaged that one will never wake up or be conscious again [to the best of our medical prognosis] then one can consider those treatments which merely prolong respiration or nutrition to be "extraordinary," not of enough benefit to this no-longer-conscious person, that they can be discontinued, allowing the person to finish their natural body shut-down or dying process. Just as we don't say that removal of a ventilator in such a case would be "suffocating" ot "smothering" them to death, we ought not indiscriminately label the cessation of artificial administration of fluids and nutrition with the harshly judgmental term "starvation."The case that is at hand, and on which one Vatican commission made a NEW statement a year or so ago, is that of patients in a PVS or Permanent Vegetative State. PVS -- if diagnosed accurately and allowed to go on long enough to determine no medical potential for reversal -- is EXACTLY like being comatose in terms of patient experience and consciousness. The difference is that in comatose or "unconscious" patients the patient's eyes remain closed -- no mid- or upper-brain activity is going on and their eyes never open. In PVS, the patient is similarly non-conscious, but sometimes his/her eyes are closed, sometimes open, giving the 'impression' of being "awake" vs. "asleep." Their autonomic nervous system may at times make their eyes flinch or their head turn with a jerk, but over time one can determine if this is a conscious response to stimuli (loud noises, a pointed finger, etc.) or merely a brain-stem based unconscious response (like knees responding to being tapped and eyes dilating when a light is shone into them).Part of the Schaivo controversy is that the parents disagree with the husband and all the major neurological data. They say she is NOT PVS and therefore is aware and responding, albeit at a very retarded level and that she can recover. All the reputable medical folks concur that she truly is PVS, not responding, and given the 14+ year time lapse, will not "awake" or regain "consciousness." Therefore, like the permanently unconscious patient, Catholic tradition (and Florida law and US law) allow one to consider the removal of artificially administered fluid and nutrition as "extraordinary" in this case, which means "optional" -- morally one could continue or not continue. In the state of Florida, as in most jurisdictions, if the patient's prior wishes are not clearly on record, then the state seeks either family consensus or, failing that, they prioritize who can speak for the patient. In almost all states, the wishes of one's spouse trumps that of parents or peer siblings in the case of adults. So, despite Gov. Bush's efforts to overturn Fla. law, which was declared unconstitutional, the state courts have rightly (in my judgment) said that the husband has the legal right to have the tube removed, based on the legal/moral interpretation I laid out above.The local bishop there, formerly Gen. Secr. of the USCCB, has been under tremendous pressure to neatly take a side. For the most part, while his rhetoric is strongly pro-life in terms of values, he has correctly echoed the complexity of the situation and noted that Catholics could weigh this individual case as "ordinary" or "extraordinary," and if the latter, could opt to forge ahead or stop the procedure.

3. A year or so ago a Vatican Commission on Bioethics (not a Congregation and not by a Papal decree) held a conference on the topic of fluid and nutrition, particularly vis-a-vis comatose and PVS patients. The bishop who heads that congregation and a small cadre of conservative Catholic ethicists championed that for PVS patients it is ALWAYS necessary to keep them hooked up, that artificially administered fluid and nutrition is ABSOLUTELY ordinary in all cases, definitively of sufficient benefit TO THE PATIENT to warrant its maintenance. When asked what constitutes "sufficient benefit to the patient" this school of thought suggests that maintaining biological life, even sans consciousness, is of sufficient benefit to the patient. Others, sympathetic to this position, will acknowledge that while it is of no real benefit to this particular patient, we ought to keep her/him alive to show our communal respect for life in general and in its weakest members. Critics suggest that this latter logic turns the patient into an object and does not base the decision on his/her best interest, but our societal self-image. Thus she/he is however unintentionally being "depersonalized" by the decision to keep them hooked up. At that same conference many (most?) theologians from around the world challenged these interpretations and the requirement to maintain artificially administered fluid and nutrition in PVS cases. One such paper was delivered by Ron Hamel of the Catholic Health Assoc. and John Collin Harvey, a venerable physician/ ethicist from Georgetown Medical Center. It was a lively conference with papers delivered on several sides and multiple facets of this complex issue. Near the end of the conference JP II appeared and attempted to read a short address to those assembled. But he was so ill/feeble as to be unable to finish his 2-3 page text. [It was then finished for him by the same bishop noted above.] Most believe that the same bp., chair of the Commission had crafted the pope's words -- since JP II is in such poor health and the language of the short address was almost verbatim that bishop's earlier address. Some said this afternoon papal elocution constituted a major papal decision and decree, a reversal of the long-standing mainstream Catholic moral position in behalf of "optionally" withholding such procedures from comatose and PVS patients -- being terminal patients, even if not imminently dying. Others -- most theologians present, around the world, and including me -- say that such a short afternoon address (not an encyclical, not officially promulgated) by an ailing pontiff is not tantamount to a FORMAL change in church teaching. Rather, it illustrates that JPII is "tilting toward" that group which wants to dissent from the tradition and make a change in the right-ward direction. He was weighing-in at an academic conference on a topic under new debate, but NOT closing off debate nor resolving the tension and disagreement at this point. In short, the matter is still under debate, but the official Vatican position is moving away from the tradition toward a new, more conservative conclusion. One difficulty, as I see it, is that the ordinary/extraordinary tradition has never declared any treatment in-itself to be ABSOLUTELY "ordinary." So to do so in this case is to put a big crack in the very logic of the ordinary/extraordinary tradition. It might also force us to reconsider ALL cases where fluid and nutrition are withheld or halted, since in 99% of those the procedure works on the "nutrition" problem, if divorced from the patient's totality or holistice best interest. Hospice practice might be drastically altered from accompanying folks through their natural dying, to long-term coma clinics and facilities. Tah Dah -- the Schaivo case becomes a test case. If the Vatican newspaper L'Osservatori Romano weighs in on it, as it just did, this still does not constitute a formal declaration by the Pope or official Vatican. I think the Church should be very wary of saying that all unconscious patients should be hooked up ad infinitum to artificially administered fluid and nutrition. If they do so, then it would be equally logical to say that ventilators can never be removed from such patients or that hospices must hook all terminal patients up to prolong their lives at whatever state of consciousness or personal benefit/burden. It seems to me that in a well-intentioned, but potentially misguided effort to buoy up our "defense of life" Catholic posture, we may be backing into to stepping into a VITALISTIC interpretation of the value of life (i.e. respiration and circulation sans consciousness) that has NEVER been our Catholic "pro-life" premise. 11th hour legal maneuvering and theological pronouncements related to such cases -- esp. when the language is loaded with terms like "killing," "starving," "murder," and "euthanasis" accusations -- makes for poor public policy, polarizing theology and philosophy, and lots of political posturing. Poor Terri Schaivo -- in her unconscious state she truly is in LIMBO. If she is allowed to finish dying, she will THEN be with the Lord. If she is maintained indefinitely, she will feel no pain, experience nothing here consciously, but will also -- in a soulful sense -- not be able to enter eternal life. She is neither dead nor fully, qualitatively participating in this life. I think the former, as-yet-still-intact Catholic tradition is wiser and more nuanced. I appreciate the renewed pro-life concern expressed by those conservatives wanting to change the Church's tradition, but I think PVS patients like Terri Schaivo may be the wrong place to start or to take this stand as if theirs is clearly or categorically a "pro life" conclusion. Akin to the Vatican's recent shift against capital punishment, the current Vatican "tilt" is a dissent from and change in church teaching, not an accurate representation of our past tradition. The Church can and does change its teaching. I'm just not sure in this end-of-life case those involved are carefuly weighing all that their ABSOLUTE mandate would imply or unleash. I hope this may be of some help to those of you pondering the present case. Be wary of "bandwagon" stances on either side, esp. from the Sunday pulpit. This is truly one of those "on the one hand" vs. "on the other hand" kind of cases.

Fr. Richard Sparks, CSP

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Terms of Service Part II


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Max Posted by Hello

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Tuesday, March 22, 2005

Bishop apologizes

Thanks to Jim and Susan for sending this link: Bishop apologizes for barring Catholic funeral of gay nightclub owner

Who knows, maybe he found out his nephew is a gay nightclub owner.

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Monday, March 21, 2005

Those crazy pranksters

Stay Free! has a post on the Yes Men and their Dow Chemical Bhopal Disaster prank. You may have heard of the Yes Men through their recent documentary chronicling their WTO Spokesmen impersonations. What some of you might not realize is that Yes Man Igor Vamos was one of the Reed College Students who vomited Red White and Blue during Dan Quayle's visit to Portland in 1990. It was one of the reasons I felt good about my decision to move here.

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Sunday, March 20, 2005

Ahh, Spring...

I am happy to report there is plenty of spinach and lettuce in Northern Virginia.

In much worse news, the Diocese of San Diego has refused a Catholic burial for the owner of a gay nightclub. You can write to the Diocese and tell them the Bishop's a dick in the ass for me.

Update: Apparently the above link is not working. Please try the follow email addresses: bcarr@diocese-sdiego.org, Conference@cacatholic.org and ckellett@diocese-sdiego.org. Thanks.

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Friday, March 18, 2005

Stop the Trademark Dilution Revision Act

Currently there is a house bill that would revise the Lanham Act's Trademark Dilution provisions. Historically, trademark infringement actions could only be brought when marks were confusingly similar to one another. In 1977 the federal trademark laws were amended to allow a cause of action for diluting a famous mark even when there was no likelihood of confusion. That means, if a mark is similar, even if the products are completely different, a junior mark that "whittles away" the distinctiveness of the senior mark is now infringing. This amendment was a huge expansion of trademark rights, and there was much concern of its chilling effects on free speech.

Well, now Congress is considering expanding the dilution statute even more. With its proposed revision, the senior mark holder doesn't even have to show damages in order to prove dilution. The proposed amendment is drafted in such a way that words, images, or even colors that look vaguely like a famous brand would be considered dilution. There is no doubt this chills free speech. As such the EFF is launching a campaign to prevent Congress from passing this bill. Just click on the above link, fill out your name and address, and they'll send an email to your Congressperson telling him or her that this proposed amendment is no good. Thanks.

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Thursday, March 17, 2005


Today the Oregonian reported a LETTUCE SHORTAGE. Geez, I wonder if they're hiring.

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Monday, March 14, 2005

Popeye and I

are sad. You can't get spinach (or lettuce) at New Seasons because of the California floods. Means I have to start digging my garden beds spring break.

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Terms of Use

Ever since I took Cyberlaw last semester, I've started reading the Terms of Use at the bottom of Web pages (I even drafted a few last summer). Many of them are downright scary when thought about in terms of the Computer Fraud and Abuse Act. While this law has many positive attributes (inasmuch as it makes hacking into others' computers illegal) one of its problems is that it defines actionable unauthorized use by the terms of use the Web site owner has put in teeny tiny writing at the bottom of the page (which no one reads).

That means, dear law students, if you download $1000 worth of cases from Westlaw for your employer using your student account (something that is pretty darn easy to do), you have committed a felony and are also subject to a civil suit for damages. Take a look at those pesky terms of use. Oh, by the way, they're not at the bottom of the page, rather you saw them when you first logged in with your student password three years ago.

In related news, today Copyfight has a post about AOL's latest terms of service under which AOL lays claim to all the intellectual property in its clients' posts. As bad as this is, it isn't particularly unusual. However, the language is so broad it seems to lay claim to all the IP you may have in your private IM communications as well. You better stop writing all those haikus to your lover lest they be published in The Best of AIM 2005. Yikes!

Oh, and there is an updated story in which AOL denies this was its intent. Yeah, right.

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Friday, March 11, 2005

Book Club Aarrrgh!

Last night was a swashbuckling edition of bookclub. Our book was Pirate, by Fabio. Our destination: The Pirate's Cove, of course.

My old friends will know that I've spent many hours drinking the brownest of the brown at the Pirate's Cove. Unfortunately, being a NoPo resident, I haven't been there in years. Also, the Pirate's Cove was acquired a couple of years ago by some young punks.

Gone are the daze of Yahtzee playing, vodka swilling seniors on Sunday afternoons, and the crotchety old bartender who would never come over to your table. Yes, my friends, just as Pirate is a cheap imitation of a novel, so is the Pirate's Cove now a cheap imitation of itself.

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News from the Oregonian

The Oregonian was chock full of news today:

First, I may not be able to find my car when I get back, because apparently the airport parking lot people have taken to changing the numbering on all the signs without notifying travelers. Unfortunately, I could only find parking under an old sign this morning. I wonder what number it will be when I return.

Second, and perhaps more important, the Oregonian reports that we might have a drought this summer. Surprise!

Third, I can't believe the PUC rejected Texas Pacific bid for PGE! But, as I predicted, electric rates are still expected to go up because of the drought.

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God bless PDX

I am currently connected to the airport's free wireless network. Gotta love it.

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Tuesday, March 08, 2005

Loyal Readers,

As some of you already know, my life has been in turmoil for the past few days due to my Grandmother's passing and my sister's unexpected hospitalization. (My sister is now fine). So, it may be a little while longer before I start posting again. Of course, I'll keep you posted.

Meanwhile, please entertain yourself at my friends' blogs: here, here, and here.

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Thursday, March 03, 2005

Broadcast Flag Redux

The SF Guardian has a lay person friendly article about the FCC's pending broadcast flag regulation I referred to earlier. In it it refers to the EFF sponsored "Build Ins" that are happening around the country. Basically we have until July 1 to legally build our own HDTV recorder without the broadcast flags. Hmmm. I wonder if I know anyone who has experience with Linux who might find this fun (whose initials are V.A.U.)?

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Wednesday, March 02, 2005

And I thought IP was a safe area of law

The gruesome news of the Federal Judge whose husband and mother were murdered is all the more tragic because it was most likely motivated by a trademark dispute. The white supremacist who is being sentenced for plotting to kill the judge was angry because she ruled he couldn't use the name "World Church of the Creator" because some Oregon whackos already have it registered. Now police think members of his group have murdered her family for revenge. Just goes to show, violent crazies will kill you for just about any reason.

Oh, and the AP story linked above erroneously calls it a copyright case. It's a trademark.

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Tuesday, March 01, 2005

My New new favorite thing

Drunks are always funny. Works better with a mouse than a Toshiba nubbin. Don't know about track pads, though.

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Lunch with the Hon. Alex Kozinski

9th Circuit Judge Alex Kozinski is the Lewis and Clark Distinguished IP Visitor this week. This has been exciting to me because although I disagree with his politics (he's a Reagan appointee) I think his IP opinions are usually right on. I first came across his writings long before I started law school in the form of his dissent from a refusal for an en banc hearing of White v. Samsung Electronics. That's the one where Vanna White successfully sued Samsung for violating her right of publicity for its commercial featuring a robot in a blond wig next to some letters. At the time I had no idea who he was (I read the opinion in the appendix to the Negativland book I mentioned in a previous post), but the fact that he saw some serious trouble ahead if the 9th Cir. let that holding stand made me like him.

Last night his topic was "What's So Fair About Fair Use." He suggests that the fair use doctrine as applied to derivative works (not pirating or copying) is unfair and should be abolished all together. This is quite a shocking notion, but his alternative makes some sense.

He argues that fair use is unfair for two reasons. First, because it is an affirmative defense that is determined by weighing 4 factors, any given 3 judge panel might come to very different conclusions about whether a use is fair. Second, because copyright speech is treated very differently from other speech in granting preliminary injunctions, allegedly infringing material is quite regularly removed from the market. With regular speech, courts are very reluctant to enjoin speakers before a trial on the merits. But, with copyright infringement claims, we enjoin defendants all the time with minimal showings of a likelihood of success on the merits.

Judge Kozinski proposes that we eliminate the granting of injunctions against derivative works altogether. In exchange, we eliminate fair use. Instead we allow the parties to either negotiate or seek damages for derivative works. With an unpopular work, there wouldn't be any damages because no one would really know about it, and the defendant wouldn't be making any money off of it. With a popular work, the damages would essentially be a cut of the profits.

This makes a lot of sense in a commercial setting. My problem with his idea is when we have a big bully like Disney/Mattel/Island Records against some small rabble rousers like, oh I don't know, Negativland. Kozinski would leave them high and dry just like the current law does.

Under both regimes, a big bully can threaten to sue. To the starving artist, the mere threat of a law suit, even if you have a fairly good chance of winning, is enough to send you running. Who can afford attorneys these days? Kozinski would say that if their works were popular they would have money, and if they weren't, why would the bully sue? Why, because he's a bully. The whole reason we have fair use is because there is a true market failure. That is, these parties can't negotiate a license because the copyright owner doesn't like them or their art. So, we let the fair user go ahead and do their thing. Problem is the cost of litigating this shit. And Kozinski's plan, while good for businesses (who can always afford to go bankrupt) doesn't make much sense for the independent artist. Then again, it isn't any worse for them than the way things are right now.

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I've got a new nephew!

Max Alexander, born Feb. 28 at 3:29 pm EST. 8lbs., 11 oz. and 21 inches long. He's a little chunk! The best news is that both he and my sister are healthy and happy.

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