Category: Copyright

The Federal Circuit Court of Appeal F%$#s Up Again

In Oracle vs. Google, the Federal Circuit Court of Appeal, aka the “Patent Court”, has once again taken a delusionally extremist position on IP, and ruled that software APIs are subject to copyright. As Timothy B. Lee observes, “The court that created the patent troll mess is screwing up copyright too.”

A few years ago, the database company Oracle sued Google, arguing that Google’s Android operating system infringed the copyright of Oracle’s Java technology. On Friday, a federal appeals court sided with Oracle in the long-running dispute.


The decision seems to reflect a fundamental lack of understanding of how software works. And it could create serious headaches for companies that want to make their software compatible with that of competitors.

Why did Oracle sue Google?

The lawsuit focuses on technical decisions Google made when it created the Android operating system.

Google wanted people who wrote programs in the popular programming language Java to be able to re-use their code in Android apps. To do that, Google had to ensure that Java code written for other purposes ran exactly the same on Android. But negotiations with the company behind Java, Sun Microsystems (which was later acquired by Oracle), broke down, so Google decided to create its own version of Java from scratch.

………

The trial court judge, William Alsup, sided with Google. Copyright only protects the creative aspects of a work, not its functional characteristics. Judge Alsup ruled that because the names of Java functions was essential to achieving interoperability, they were a functional characteristic rather than a creative aspect of Java, and using them wasn’t copyright infringement.

But on Friday, the Federal Circuit Court of Appeals disagreed. The court was unimpressed with Google’s argument that function names were functional characteristics not protected by copyright. In the Federal Circuit’s view, the list of Java functions was just another kind of “code” that couldn’t be copied without its creator’s permission.

The court’s reasoning didn’t impress James Grimmelmann, a copyright scholar at the University of Maryland. “Not only do they not understand how computers work, they can’t even read,” he says.

………

The Federal Circuit is the court that hears appeals in all patent cases. Over the last three decades, it has shown a consistent bias in favor of patent holders, setting legal precedents that made the current patent troll problem possible.

Ordinarily, copyright cases in California would be heard by the US Court of Appeals for the Ninth Circuit. But because Oracle’s fight with Google also includes some patent issues, the Federal Circuit gets jurisdiction.

And evidently, the Federal Circuit has a bias toward copyright holders to go with its pro-patent bias.

Needless to say, the Federal Circuit Court of Appeals is completely insane, and should be abolished, and the judges on that court should be told to take up knitting.

No Virginia, Trade Deals Do Not Require Draconian IP Restrictions

Case in point, Canada and South Korea, who signed a free trade agreement without an all encompassing over-broad IP regime:

Canada and South Korea announced agreement on a comprehensive trade agreement earlier today. The focus is understandably on tariff issues, but the agreement also contains a full chapter on intellectual property (note that the governments have only released summaries of the agreement, not the full text, which is still being drafted). The IP chapter is significant for what it does not include. Unlike many other trade deals – particularly those involving the U.S., European Union, and Australia – the Canada-South Korea deal is content to leave domestic intellectual property rules largely untouched. The approach is to reaffirm the importance of intellectual property and ensure that both countries meet their international obligations, but not to use trade agreements as a backdoor mechanism to increase IP protections.
Yesterday I noted that Canada might be asked to increase the term of copyright protection given that South Korea had agreed to longer copyright terms in its recent agreements with the European Union, Australia, and the U.S. In fact, the U.S. agreement contains extensive additional side letters on Internet provider liability, enforcement, and online piracy.  The Canada – South Korea deal rejects that approach with copyright, trademark, patent, and enforcement rules that are all consistent with current Canadian law (plus the coming border measures provisions in Bill C-8). 

On copyright, the summary states the agreement:

  • reflects Canada’s regime as updated by the 2012 Copyright Modernization Act, which brought Canada into compliance with the World Intellectual Property Organization’s two Internet treaties;

  • reiterates existing aspects of Canada’s regime, including the protection of technological protection measures (technology designed to protect copyrighted material), protection of rights management information, and special measures against copyright infringers on the Internet (no change to Canada’s notice and notice regime, which defines the responsibility of Internet service providers in respect of copyrighted material on their networks).

The specific reference to notice-and-notice is important since it confirms no takedown requirements nor three-strikes rules. The specific measures against copyright infringers may be interpreted as Canada’s enabler provision that targets websites that facilitate infringement. Moreover, the references to reflecting Canada’s regime indicates that there is no copyright term extension or other substantive changes.

No copyright erxtensions.  No requirement that the other countries accept evergreening of drugs.

IP sanity.  What a concept.

H/t Slashdot.

Capitalism, Huh?



click a picture for a slide show

When Metallica discovered that their music was being used to torture inmates at Guantanamo, they send a cease and desist letter.

Canadian electro-industrial band Skinny Puppy went a different route, and have sent an invoice demanding payment:

By now we’re all familiar with the U.S. government’s practice of using heavy metal to torture detainees. We’ve all seen “Zero Dark Thirty” and “Homeland”—we get the drill. Usually metal music is used for its general unpleasantness. It’s impossible to sleep through and just all-around unnerving.

Except Canadian band Skinny Puppy had no idea their music was being used in the service of the U.S. military.

………

The Independent points out Friday that when Metallica learned their music was being used as a torture device at Guantanamo they sent the the government a cease and desist. Skinny Puppy, on the other hand, went the other way and just sent an invoice.

“We heard that our music was used on at least four occasions,” Evin Key said. “So we thought it would be a good idea to make an invoice to the U.S. government for musical services.”

Asked how he felt about his music being used to torture people, he said, “Not too good. We never supported those types of scenarios. Because we make unsettling music, we can see it being used in a weird way. But it doesn’t sit right with us.”

It doesn’t sit right with anyone who values the idea of rule of law and civil rights, Evin.

I would remind you thought that the statutory damages for such a use, it is clearly a public performance, are on the order of $150,000 per infraction.

It might be more worth your while to sue.

Thank You Harry Reid

The Majority Leader of the Senate has come out against fast track authority for trade deals:

President Barack Obama’s push for authority to fast-track trade deals has hit a big setback in the form of opposition from his top fellow Democrat in Congress, but it is far from dead.

Senate Majority Leader Harry Reid’s warning to policymakers on Wednesday “just to not push this right now” reflects concern about the domestic political agenda ahead of November’s congressional elections, when free trade could be a damaging issue for many Democrats.

The unusually blunt public opposition came less than 24 hours after Obama noted the need for fast-track power in his State of the Union address, albeit less forcefully than business lobbyists and pro-trade Republicans would have liked.

The White House called Reid’s office shortly after his comments to voice displeasure, a top Democratic party aide said.

“They were really upset,” the aide said. But the aide said the White House did not try to get Reid to shift his position.

These guys were really upset because they, like the staffers who negotiated NAFTA for Clinton and Bush I, made some serious bank as lobbyists and consultants.

I really hope that it’s not, as Yves Smith’s sources say,  “Another gambit is more likely: to make some cosmetic changes and try to get the bill passed during the lame duck session, on the assumption that some Democrats (particularly those who are leaving office) will use the cover and change positions.”

The TPP, and it’s European equivalent, the TTIP, are egregiously bad deals, not just for the United States, but for the whole world, because they are predicated on the idea that democracy and transparency must be almost completely eschewed in the interest of unregulated global investment flows and IP based looting through draconian copyright and patent provisions.

These are abysmally bad deals for everyone but banksters, big pharma, and the cocaine addicted brothers in law of senior studio and record label executives.

Wanker of the Day: Yale University

    
Before Plugin                                    After Plugin  

Yale has a course selection website, and a two students, Harry Yu and Peter Xu, came up with a personal website that aggregated the ratings so that students could look at ratings and workload when selecting a course.

Yale blocked the site, and threatened disciplinary action against them so another student, Sean Haufler,  wrote a Google Chrome shortcut that does this on the fly.

Basically, Yale does not want students to access this data in a coherent way, because, tenured professors who cannot or will not teach do not want students avoiding their courses:

In January 2012, two Yale students named Harry Yu and Peter Xu built a replacement to Yale’s official course selection website. They it called YBB+ (Yale Bluebook Plus), a “plus” version of the Yale-owned site, called Yale Bluebook. YBB+ offered different functionality from the official site, allowing students to sort courses by average rating and workload. The official Yale Bluebook, rather, showed a visual graph of the distribution of student ratings as well as a list of written student reviews. YBB+ offered a more lightweight user interface and facilitated easier comparison of course statistics. Students loved it. A significant portion of the student body started using it.

Fast-forward two years. Last Friday (1/10/14), Yale blocked YBB+’s IP address on the school network without warning. When contacted, Yale said that YBB+ infringed upon Yale’s trademark. Harry and Peter quickly removed the Yale name from the site, rebranded it as CourseTable and relaunched. Yale blocked the website again, declaring the website to be malicious activity.

Later that weekend, Yale’s administration told the student developers that the school didn’t approve of the use of its course evaluation data, saying that their website “let students see the averaged evaluations far too easily”. Harry and Peter were told to remove the feature from the CourseTable website or else they would be referred to the school’s punishment committee.

………

And then it hit the internet:

Finally, Mary Miller, the Dean of Yale College, wrote an open letter to Yale on Friday night. In this letter, she defended Yale’s decision to censor Harry and Peter’s website and course rating functionality, stating:

“[Yale’s course] evaluations… became available to students only in recent years and with the understanding that the information they made available to students would appear only as it currently appears on Yale’s sites — in its entirety.”


Worded less diplomatically, it appears the Dean of Yale College is expressing to students that, “You can use our course evaluation data, but only if you view the data as we tell you to view it”.

(emphasis original)

And there were the inevitable claims of copyright and trademark infringement, and Mr. Haufler came up with his solution:

The story does not end here, however, since there’s a way to distinguish the freedom of speech issue from the copyright claims. What if someone made a piece of software that displays Yale’s course evaluation data in a way that Yale disapproves of, while also (1) not infringing on Yale’s copyrights or trademarks, (2) not storing any sensitive data, (3) not scraping or collecting Yale’s data, and (4) not causing damages to Yale’s network or servers? If Yale censors this piece of software or punishes the software developer, it would clearly characterize Yale as an institution where having authority over students trumps freedom of speech.

Guess what? I made it last night.

I built a Chrome Extension called Banned Bluebook. It modifies the Chrome browser to add CourseTable’s functionality to Yale’s official course selection website, showing the course’s average rating and workload next to each search result. It also allows students to sort these courses by rating and workload. This is the original site, and this is the site with Banned Bluebook enabled (this demo uses randomly generated rating values).

Banned Bluebook never stores data on any servers. It never talks to any non-Yale servers. Moreover, since my software is smarter at caching data locally than the official Yale course website, I expect that students using this extension will consume less bandwidth over time than students without it. Don’t believe me? You can read the source code. No data ever leaves Yale’s control. Trademarks, copyright infringement, and data security are non-issues. It’s 100% kosher.

………

If Yale denies this right, I’ll see you at the punishment committee.

Here’s hoping that Yale backs down.  If not, I hope that you talk to the ACLU.

In my day, of course, we had to talk to each other, I recall a materials course, taught by a Professor Clapp, was called “Catching the Clapp,” but I only discovered that after I was half way through the class.

I appreciate the value of tenure, but this should not be a justification for erecting the, “The Great Firewall of Yale.”

It’s not like their jobs are at stake over this, just their egos.

Elementary, My Dear Copyright Troll

A hundred and twenty five years after their publication, a Federal Court judge has told the estate of Sir Arthur Conan Doyle to go Moriarty themselves, and declared that the Sherlock Holmes universe is unequivocally in the public domain:

In the more than 125 years since he first appeared, Sherlock Holmes has popped up everywhere from fan fiction set in outer space to screen adaptations like CBS’s “Elementary,” set in contemporary Manhattan. But now, following a legal ruling, the deerstalker-wearing detective is headed to another destination: the public domain.

A federal judge has issued a declarative judgment stating that Holmes, Watson, 221B Baker Street, the dastardly Professor Moriarty and other elements included in the 50 Holmes works that Arthur Conan Doyle published before Jan. 1, 1923, are no longer covered by United States copyright law, and can therefore be freely used by others without paying any licensing fee to the writer’s estate.

The ruling came in response to a civil complaint filed in February by Leslie S. Klinger, the editor of the three-volume, nearly 3,000-page “New Annotated Sherlock Holmes” and a number of other Holmes-related books. The complaint stemmed from “In the Company of Sherlock Holmes,” a collection of new Holmes stories written by different authors and edited by Mr. Klinger and Laurie R. King, herself the author of a mystery series featuring Mary Russell, Holmes’s wife.

Mr. Klinger and Ms. King had paid a $5,000 licensing fee for a previous Holmes-inspired collection. But in the complaint, Mr. Klinger said that the publisher of “In the Company of Sherlock Holmes,” Pegasus Books, had declined to go forward after receiving a letter from the Conan Doyle Estate Ltd., a business entity organized in Britain, suggesting that the estate would prevent the new book from being sold by Amazon, Barnes & Noble and “similar retailers” unless it received another fee.

………

But the judge rejected what he called the estate’s “novel legal argument” that the characters remain under copyright because, it claimed, they were not truly completed until Conan Doyle published his last Holmes story in 1927.

This is a good thing.

There needs to be limits to the rent seeking related to IP. 

Holmes is already in the public domain in its native Britain, and any further royalties extracted by the estate does nothing to encourage the, “Promote the Progress of Science and useful Arts,” which is the Constitutional justification for our IP regime.

How Iron Maiden Got it Right, and Metallica Got it Wrong

In the early days of P2P file sharing, it was Metallica to the first file sharing site, Napster, which was shutdown and eventually reemerged as a ……… (furiously Googling) ……… a link to Rhapsody.

Metallica earned a lot of enmity from its fans, and probably sold no more songs as a result.

Iron Maiden found a similar problem, they recently discovered a spike in file sharing in Latin America, and their response was to aggressively market there, and put on a concert tour:

Enter another U.K. company called Musicmetric, which specializes in analytics for the music industry by capturing everything from social media discussion to traffic on the BitTorrent network. It then offers this aggregated information to artists to decide how they want to react. Musicmetric noticed Iron Maiden’s placement and ran its own analytics for the band.

“Having an accurate real time snapshop of key data streams is all about helping inform people’s decision making. If you know what drives engagement you can maximize the value of your fan base. Artists could say ‘we’re getting pirated here, let’s do something about it’, or ‘we’re popular here, let’s play a show’,” said Gregory Mead, CEO and co-founder of the London-based firm.

In the case of Iron Maiden, still a top-drawing band in the U.S. and Europe after thirty years, it noted a surge in traffic in South America. Also, it saw that Brazil, Venezuela, Mexico, Colombia, and Chile were among the top 10 countries with the most Iron Maiden Twitter followers. There was also a huge amount of BitTorrent traffic in South America, particularly in Brazil.

Rather than send in the lawyers, Maiden sent itself in. The band has focused extensively on South American tours in recent years, one of which was filmed for the documentary “Flight 666.” After all, fans can’t download a concert or t-shirts. The result was massive sellouts. The São Paolo show alone grossed £1.58 million (US$2.58 million) alone.

New fans, new sales, a new market.

Interesting business plan, no?

The Juxtaposition of Jewish Ethics and IP

Copryight, patent, and Pirkei Avot? Really?

Yes, really.

Harold Feld, public interest telco lawyer, and apparently a decent Talmudic scholar writes a well documented explanation of why our current IP regime is actually immoral under Jewish norms.

A sample:

As I shall explain, many people think that the debate around intellectual property and public policy involves a conflict between the first type – hasheli sheli v’shelcha shelcha (what’s mine is mine, what’s yours is yours) – and the second type “sheli shelch v’shelcha sheli” (what’s mine is yours, what’s yours is mine). The media (which come down firmly on the side of their owners for expanding copyright) frame the debate as the well-meaning but foolish ‘Information wants to be free’ v. the more intuitively appealing respect for ‘intellectual property.’ Unworldly academics and idealistic young hackers, we are constantly told, simply don’t understand that without a way to control and make money from things like copyright, patent and trademark we would have no publishing industry, no movie industry, no medicines and technology and other inventions.

In reality, however, the modern debate over intellectual property policy in the last 30 years actually takes place solely in the context of the first sentence of the Mishna. The question is not whether we should have copyright or patent or trademark in an abstract sense. In light of our constant creation of new rights of enforcement and burdens placed on others for non-infringing uses, such as the Digital Millennium Copyright Act and its “anti-circumvention provision,” and our efforts to force these ever expanding policies on other countries through trade agreements negotiated in secret, such as the recently reported Trans Pacific Partnership Agreement (TPP), the question is whether we have departed from ethical laws and increasingly come to resemble the injustice and cruelty of Sodom.

As an FYI to the gentiles reading this, the idea that Sodom and Gomorrah were destroyed for sexual improprieties is not a part of normative Jewish theology.

Rather, it was destroyed because of the greed of the people and the way that they treated foreigners.

Read the whole thing.

To the Jews among my readers, this would be an excellent d’var for Vayera.

A Victory for Copyright Sanity

Google wins an federal court ruling for Google Books:

Google’s idea to scan millions of books and make them searchable online seemed audacious when it was announced in 2004. But fast-forward to today, when people expect to find almost anything they want online, and the plan seems like an unsurprising and unavoidable part of today’s Internet.

So when a judge on Thursday dismissed a lawsuit that authors had filed against Google after countless delays, it had the whiff of inevitability. Even the judge, Denny Chin of the United States Court of Appeals for the Second Circuit, said during a September hearing on the case that his law clerks used Google Books for research.

“It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders,” Judge Chin wrote in his ruling. “Indeed, all society benefits.” (Judge Chin handled the case in district court because he was a judge there when it began.)

The Authors Guild said it disagreed with the decision and planned to appeal. Google said it was “delighted” with the outcome.

I’m delighted too.

Generally the courts look at any technological advance as an excuse to expand IP holder privileges, and in this case, the judge actually looked at societal benefit, which is the purpose of our IP regime under the Constitution.

This is an astonishingly useful research tool, and copyright does not mean that the holder can extract every possible dollar for every use.

There is an increasing realization in society that expansive IP privilege is a hindrance to the well being of the society, when it should be an asset.

Thank You, Julian Assange

Wikileaks has released a draft of IP provisions of the super-secret draft of the Trans Pacific partnership, and rather unsurprisingly, it sucks wet farts from dead pigeons: (See also NC’s analysis here and here)

The more you know about the odious Trans-Pacific Partnership, the less you’ll like it. It’s made for corporate intellectual property and profits

Among the many betrayals of the Obama administration is its overall treatment of what many people refer to as “intellectual property” – the idea that ideas themselves and digital goods and services are exactly like physical property, and that therefore the law should treat them the same way. This corporatist stance defies both reality and the American Constitution, which expressly called for creators to have rights for limited periods, the goal of which was to promote inventive progress and the arts.

In the years 2007 and 2008, candidate Obama indicated that he’d take a more nuanced view than the absolutist one from Hollywood and other interests that work relentlessly for total control over this increasingly vital part of our economy and lives. But no clearer demonstration of the real White House view is offered than a just-leaked draft of an international treaty that would, as many had feared, create draconian new rights for corporate “owners” and mean vastly fewer rights for the rest of us.

I’m talking about the appalling Trans-Pacific Partnership agreement, a partial draft of which WikiLeaks has just released. This treaty has been negotiated in secret meetings dominated by governments and corporations. You and I have been systematically excluded, and once you learn what they’re doing, you can see why.
The outsiders who understand TPP best aren’t surprised. That is, the draft “confirms fears that the negotiating parties are prepared to expand the reach of intellectual property rights, and shrink consumer rights and safeguards,” writes James Love a longtime watcher of this process.

The Obama administration is rushing to reach a new deal intended to lower barriers to trade with a dozen Pacific Rim nations, including Japan and Canada, before the end of the year.

But the White House is now facing new hurdles closer to home, with nearly half of the members of the House signing letters or otherwise signaling their opposition to granting so-called fast-track authority that would make any agreement immune to a Senate filibuster and not subject to amendment. No major trade pact has been approved by Congress in recent decades without such authority.

Two new House letters with about 170 signatories in total — the latest and strongest iteration of long-simmering opposition to fast-track authority and to the trade deal more broadly — have been disclosed just a week before international negotiators are to meet in Salt Lake City for another round of talks.

“Some of us have opposed past trade deals and some have supported them, but when it comes to fast track, members of Congress from across the political spectrum are united,” said Representative Walter B. Jones Jr. of North Carolina, who circulated the Republican letter.

Without fast-track authority, however, the other countries in the negotiations might balk at American requests since they wouldn’t be sure the final deal would remain unchanged. And getting both houses of Congress to agree to the final deal might be close to impossible without the fast-track authority, which the Obama administration has requested and which is being pursued in the Senate by Max Baucus, Democrat of Montana and the chairman of the Senate Finance Committee, along with the top Republican on the committee, Orrin G. Hatch of Utah.

It’s not just liberal papers like the Guardian that are finding the draft extreme, so is The Washington Post, aka the former Kaplan Test Prep Company.

It should be noted that while the administration is sharing progress with a number of industries, they are treating sharing progress with the Congress like the NSA spying program, which has resulted in some pushback:

The Obama administration is rushing to reach a new deal intended to lower barriers to trade with a dozen Pacific Rim nations, including Japan and Canada, before the end of the year.

But the White House is now facing new hurdles closer to home, with nearly half of the members of the House signing letters or otherwise signaling their opposition to granting so-called fast-track authority that would make any agreement immune to a Senate filibuster and not subject to amendment. No major trade pact has been approved by Congress in recent decades without such authority.

Two new House letters with about 170 signatories in total — the latest and strongest iteration of long-simmering opposition to fast-track authority and to the trade deal more broadly — have been disclosed just a week before international negotiators are to meet in Salt Lake City for another round of talks.

“Some of us have opposed past trade deals and some have supported them, but when it comes to fast track, members of Congress from across the political spectrum are united,” said Representative Walter B. Jones Jr. of North Carolina, who circulated the Republican letter.

Without fast-track authority, however, the other countries in the negotiations might balk at American requests since they wouldn’t be sure the final deal would remain unchanged. And getting both houses of Congress to agree to the final deal might be close to impossible without the fast-track authority, which the Obama administration has requested and which is being pursued in the Senate by Max Baucus, Democrat of Montana and the chairman of the Senate Finance Committee, along with the top Republican on the committee, Orrin G. Hatch of Utah.

The TPP has been kept tightly secret because they know that the reality will create immediate and widespread opposition that will make the SOPA affair look like a tea party.

If it passes, it will be put over the top by Republican votes, which must boil the Tea Party’s ass.

An Important Lesson About How to Reduce Piracy

Interesting. It appears that the expansion of Netflix into Canada had reduced piracy by ½:

Netflix CEO Reed Hastings dropped a surprising statistic during an interview with Dutch website Tweakers last week, as he made the rounds promoting the launch of Netflix Netherlands.

When asked if Dutch viewers would switch from piracy to Netflix, Hastings said sure, some will switch, and that piracy helps “create the demand” for easier, legitimate ways to watch video through the Internet. Pressed for examples of markets where Netflix has actually brought about a decrease in piracy, Hastings pointed to Canada. Here, he claims, “Bittorrent traffic’s down by about 50 per cent since Netflix launched three years ago.”

There are some facts in the entire copyright debate, particularly as applies to entertainment:

  • It’s inconvenient for people to pirate things.
  • They are willing to pay when the institutions who control the content aren’t dicks who make “legal” use of the products even more inconvenient because they want to wring every possible penny from their users.

Of course, it’s rather unlikely that the the powers that be are going to stop acting like a dicks, seeing as how they have the political pull to turn what should be civil infractions into felonies though their pet congresscritters.

H/t PP at the Stellar Parthenon BBS.

Our IP Regulatory Regime Does Not Work

Case in point, Internet music streaming service Pandora has bought an FM radio station in South Dakota to reduce its royalty payments:

Pandora is angry about the royalties it’s paying to music publishers, so the company is making a bold move: It’s buying a terrestrial radio station in South Dakota mainly to score lower rates.

The radio station buy is the latest salvo in Pandora’s ongoing legal fight with the performance-rights group American Society of Composers, Authors and Publishers (ASCAP). Pandora says ASCAP discriminates against the company by charging it higher royalty rates, as well as letting publishers pull their song catalogs from Pandora while keeping them available for competitors.

“Certain powerful music incumbents see Internet radio as a threat to the status quo,” Christopher Harrison, Pandora’s assistant general counsel, wrote in a blog post published on The Hill.

To combat that alleged discrimination, Pandora bought the Rapid City, South Dakota, station KXMZ-FM for an undisclosed amount.

Terrestrial radio stations and the Internet properties that own them “were given preferential treatment” through an ASCAP agreement with the Radio Licensing Marketing Committee (RMLC) last year, according Harrison’s blog post.

Pandora says the KXMZ acquisition will let the company qualify for the lower-fee RMLC license. According to Pandora, ClearChannel-owned rival iHeartRadio has such a license because it also owns a terrestrial station.

I’m on Pandora’s side in all this.

Our current IP regime encourages this sort of regulatory arbitrage, and this does little to encourage the production or more music.

All it does is keep record company executives’ brothers-in-law in cocaine.

Scotus Gets One Very Right

They reaffirmed the right of first sale of a copyrighted work:

The Court at last seems to have reached a consensus on a seemingly intractable problem of copyright law: whether a U.S. copyright holder can prevent the importation of “gray-market” products manufactured for overseas markets.  When the Court tried to address this question two Terms ago – in Costco Wholesale Corp. v. Omega, S.A. – the Court was equally divided (with Justice Kagan recused).  However, in today’s opinion in Kirtsaeng v. John Wiley & Sons, Inc., Justice Breyer, writing for a strong majority of six, emphatically rejected the publisher’s control over the importation of such products.

The facts are almost too good to be true.  A Thai national (Kirtsaeng) came to this country to study at Cornell and U.S.C.  To subsidize his educational expenses, he resold textbooks purchased by his family at bookstores in Thailand.  All in all, he sold several hundred thousand dollars’ worth of textbooks imported in this way, reaping a net profit in the range of $100,000.  When his activities came to the attention of Wiley (a major American textbook publisher), a suit for copyright infringement predictably ensued.  The district court found for Wiley and imposed statutory damages of $600,000.   The Second Circuit affirmed.

The case turns on a provision of the Copyright Act that permits the owner of a copy that was “lawfully made under this title” to resell the work. The publisher argues that the Thai books, printed in Thailand, were not made “under this title,” and thus that Kirtsaeng cannot lawfully resell them. Kirtsaeng, on the other hands, argues that the books were “lawfully made,” because they were made under a license from Wiley.

………

The issue in Kirtsaeng was whether the first-sale doctrine applies to copyrighted works manufactured overseas. Kirtsaeng bought textbooks in Thailand, where they are cheap, brought them to the United States, and resold them at a large profit. The lower courts said he couldn’t do this, and ordered him to pay damages to the publisher (John Wiley). The Supreme Court disagreed. The Justices said that the first-sale doctrine applies to all books, wherever made. So even if you buy a book made in England, you can resell it without permission from the publisher.

Normally, this is a close thing, but this time it was 6-3, and the opinion was strident, describing the consequences of ruling for the publisher to be a, “parade of horribles”, where people owning foreign made cars, or tablets, or cell phones would need permission from the publisher in order to resell the products.

I also think that the court was aware that if they allowed the restriction on the right first sale, that the copyright holders would set up manufacturing offshore so as to extort additional revenue by prohibiting resales, or demanding blackmail money licensing fees.

Rather unsurprisingly, the dissent was written by Ruth Bader Ginsburg, who never saw a draconian power that she did not want to give IP holders.

As an aside, we are seeing a change in the public view of IP. 

The Supreme Court, with this decision, did not ask, “How can we stop piracy of protected works,” but instead asked, “What are the reasonable limits to the exclusive license we grant to IP holders.”

This is a rather significant change in the tenor of the discussion, and we not just seeing it at the Supreme Court, but among an increasing number of Congressmen.  (The White House is still firmly in the pocket of the the MPAA, the RIAA, and the rest of that hive of scum and villainy)

Stupidest Idea in Maryland

While Maryland is not generally considered a good government state, witness the regular indictments of Maryland politicos, but the Prince George’s County Board of Education takes the cake:

There are some absolutely ridiculous situations created by the fact that all creative works are automatically granted a copyright on being put into a fixed form. Mostly, we just ignore these situations, because the vast majority of them never matter. But, as copyright has become more and more ridiculous, some people are beginning to start to make use of the stupid fact that all kinds of things can be “owned” that probably shouldn’t be “ownable.” Take, for example, school work. If a student creates something, it is covered by copyright, though most people never really consider or care about that. However, the board of education for Prince George [sic] County in Maryland is apparently considering a new “copyright policy” in which all students and staff would have to assign all of those copyrights over to the school system itself.

(emphasis original)

I don’t see how they have a leg to stand on with the children, who are not employees, and so could not be seen as producing work for hire.

This is nucking futs.

Murder by Prosecutor

Aaron Swartz, age 26, suicide.

We cannot know all the reasons behind this, but his harassment by prosecutors was likely a contributing factor.

He was probably targeted because of his high profile opposition to SOPA (see vid). (To its shame, the New York Times does not mention this in the obit)

We have developed a regime where anyone can be harassed, and likely convicted, basically for being “troublesome.”

The term I used a while back, “Live in Obedient Fear, Citizen,” describes this phenomenon.

Well, That Didn’t Take Long………

2 weeks ago, a staffer at the Republican Study Committee published a study calling for common sense reductions in copyright regulation.

It was retracted in less than a day.

Now the author of this paper has been fired:

The Republican Study Committee, a [right wing even by the standards of Congressional Republicans(!)] caucus of Republicans in the House of Representatives, has told staffer Derek Khanna that he will be out of a job when Congress re-convenes in January. The incoming chairman of the RSC, Steve Scalise (R-LA) was approached by several Republican members of Congress who were upset about a memo Khanna wrote advocating reform of copyright law. They asked that Khanna not be retained, and Scalise agreed to their request.

The release and subsequent retraction of Khanna’s memo has made waves in tech policy circles. The document argues that the copyright regime has become too favorable to the interests of copyright holders and does not adequately serve the public interest. It advocates several key reforms, including reducing copyright terms and limiting the draconian “statutory damages” that can reach as high as $150,000 per infringing work.

The interesting thing is that it is likely that the real effect of the briefly released memo may be that it moved the Overton Window, because the proposals appear to have gone from unthinkable to merely radical, which is a very significant move.

Someone Here Should Be Going to Jail, and It Ain’t Kim Dotcom

It turns out that most of the evidence in the case against Kim Dotcom and Megaupload was kept on their servers at the request of the US government:

A fresh legal bid to throw out the case against Kim Dotcom in the United States is being made after claims of an FBI double-cross.

Evidence has emerged showing the Department of Homeland Security served a search warrant on Mr Dotcom’s file-sharing company Megaupload in 2010 which he claims forced it to preserve pirated movies found in an unrelated piracy investigation.

The 39 files were identified during an investigation into the NinjaVideo website, which had used Megaupload’s cloud storage to store pirated movies.

………

Mr Dotcom said Megaupload co-operated with the US Government investigation into copyright pirates NinjaVideo and was legally unable to delete the 39 movies identified in the search warrant.

Mr Dotcom said: “We were informed by (the US Government) we were not to interfere with the investigation. We completely co-operated.

………

The FBI application to seize the sites said the “Mega Conspiracy” members were told by “criminal search warrant” in June 2010 “that 39 infringing copies of copyrighted motion pictures were present on their leased servers”. The application was approved to allow the seizure of the domain names.

Someone was outright lying to judges in both the United States and New Zealand in order to do a favor for the pukes at the MPAA.

This is what happens when you make the conscious decision to use the powers of government as the enforcement arm of private interests.

It is inherently corrupt, and inherently corrupting.

(on edit)

If you want to make the argument that the MPAA is just being a zealous protector of its client studios, it’s not.  It’s about power.

If the movie studios were to look at the effect of low levels of file sharing, like that which was done by some Megaupload customers, they would know that shutting down the file storage site cost them money:

A new paper suggests that box office revenues were negatively impacted after the shutdown of Megaupload. The dip in revenues was most visible for average size and smaller films. According to the researchers this may have been caused by the loss of word-of-mouth promotion by people who used the popular file-hosting site to share movies. For blockbuster movies the Megaupload shutdown had the opposite effect.

In common with every file-sharing service, Megaupload was used by some of its members to host copyright-infringing movies.

For this reason the MPAA was one of the main facilitators of the Megaupload investigation, which ultimately led to the shutdown of the company in January.

The movie industry was quick to praise the government’s actions, but a new report suggests that Megaupload’s demise actually resulted in lower box office revenues.

Researchers from Munich School of Management and Copenhagen Business School published a short paper titled “Piracy and Movie Revenues: Evidence from Megaupload.” The study analyzes weekly data from 1344 movies in 49 countries over a five-year period, to asses the impact of the Megaupload shutdown on movie theater visits.

The researchers theorize that some films may actually benefit from piracy due to word of mouth promotion, and their findings partly support this idea.

So some level of file sharing can help, particularly with smaller films, like indie films.

There appears to be less/no benefit to larger films, probably because most of the studio blockbusters are crap, and so word of mouth is a bad thing.

This is not about protecting the artist. This is about protecting the do-nothing job of the studio chief’s brother in law.

Or, to be a little bit less flip, it’s about shutting down potential distribution and publicity channels that threaten the movie and record distributors’ ability act as an intermediary and charge a toll.

I’m Surprised that It Made It a Full Day

The far right wing caucus of the Republican Party (I know, it buggers the mind), released a paper saying that the current copyright regime destroys markets, and needs to be reformed:

Right after the Presidential election last week, Chris Sprigman and Kal Raustiala penned an opinion piece suggesting that one way the Republicans could “reset”, and actually attract the youth vote, would be to become the party of copyright reform. We had actually wondered if that was going to happen back during the SOPA fight, when it was the Republicans who bailed on the bill, while most of those who kept supporting it were Democrats. Since then, however, there hadn’t been much movement. Until now. Late on Friday, the Republican Study Committee, which is the caucus for the House Republicans, released an amazing document debunking various myths about copyright law and suggesting key reforms.

Among other things, it stated that the purpose of copyright is to benefit society, not to provide a revenue stream to content owners, and among other things, calls for an expansion of fair use.

Basically, they said all the things that I have been saying for years.

Have no fear though. Less than 24 hours later, the IP Mafia browbeat them into withdrawing the report.

Well, there’s another chance to pick up the youth vote that they just pissed away.

H/t Firedog Lake;

A copy of the Report from the Republican Study Committee after the break:

rsc_policy_brief_–_three_myths_about_copyright_law_and_where_to_start_to_fix_it_–_november_16_2012

Cloud Computing, RIP

The Department of Justice is now arguing that you have no property rights whatsoever to your data if you use cloud storage:

Yesterday, EFF, on behalf of its client Kyle Goodwin, filed a brief proposing a process for the Court in the Megaupload case to hold the government accountable for the actions it took (and failed to take) when it shut down Megaupload’s service and denied third parties like Mr. Goodwin access to their property. The government also filed a brief of its own, calling for a long, drawn-out process that would require third parties—often individuals or small companies—to travel to courts far away and engage in multiple hearings, just to get their own property back.

Even worse, the government admitted that it has accessed Mr. Goodwin’s Megaupload account and reviewed the content of his files. By doing so, the government has taken a significant and frightening step. It apparently searched through the data it seized for one purpose when its target was Megaupload in order to use it against Mr. Goodwin, someone who was hurt by its actions but who is plainly not the target of any criminal investigation, much less the one against Megaupload. This is, of course, a bald attempt to shift the focus to Mr. Goodwin, trying to distract both the press and the Court from the government’s failure to take any steps, much less the reasonable steps required by law, to protect the property rights of third parties either before a warrant was executed or afterward. And of course, if the government is so well positioned that it can search through Mr. Goodwin’s files and opine on their content—and it is not at all clear that this second search was authorized—presumably it can also find a way to return them. .

But in addition, the government’s approach should terrify any user of cloud computer servicesnot to mention the providers.  The government maintains that Mr. Goodwin lost his property rights in his data by storing it on a cloud computing service.  Specifically, the government argues that both the contract between Megaupload and Mr. Goodwin (a standard cloud computing contract) and the contract between Megaupload and the server host, Carpathia (also a standard agreement), “likely limit any property interest he may have” in his data.  (Page 4). If the government is right, no provider can both protect itself against sudden losses (like those due to a hurricane) and also promise its customers that their property rights will be maintained when they use the service. Nor can they promise that their property might not suddenly disappear, with no reasonable way to get it back if the government comes in with a warrant. Apparently your property rights “become severely limited” if you allow someone else to host your data under standard cloud computing arrangements. This argument isn’t limited in any way to Megaupload — it would apply if the third party host was Amazon’s S3 or Google Apps or or Apple iCloud.  

(emphasis original)

So basically, if a prosecutor decides to go after one person using a cloud service, then they could take down the entire service, and if you do not like it, tough, you have no property rights.

Having your property seized at the whim of a prosecutor is antithetical to the very idea of the rule of law.

Still bullish on cloud storage?

H/t Ecop at the Stellar Parthenon BBS.

Yeah, This is How “Balanced” Agreements With the RIAA and MPAA Work

The RIAA and the large ISPs have an agreement to implement a “six strikes” agreement in to limit “piracy”.

At the core of this agreement is an “independent and impartial” expert to evaluate evidence against people, but now it appears that this “expert” is an RIAA lobbyist:

A month before the controversial “six strikes” anti-piracy plan goes live in the U.S., the responsible Center of Copyright Information (CCI) is dealing with a small crisis. As it turns out the RIAA failed to mention to its partners that the “impartial and independent” technology expert they retained previously lobbied for the music industry group. In a response to the controversy, CCI is now considering whether it should hire another expert to evaluate the anti-piracy monitoring technology.

Starting next month the MPAA, RIAA and five major Internet providers in the United States will start punishing persistent BitTorrent pirates,

The scheme is being coordinated by the Center for Copyright Information (CCI) who agreed to hire an impartial and independent expert to review the evidence that will be used to accuse suspected subscribers.

However, earlier this week the news broke that the touted independent technology expert, Stroz Friedberg, is not so neutral. In fact, the company is a former RIAA lobbying firm.

The lobbying job earned the company more than half a million dollars ($637,000), which makes it hard to view the company as “independent and impartial” as the agreement between the copyright holders and ISPs requires.

This is why you don’t cut deals with the RIAA and the MPAA.

They are not, and have never been, good faith players in this debate.