Appeals Court Reverses "Remote DVR" Decision:


The Second Circuit Court of Appeals today reversed a lower court decision that, as CDT and a number of others argued in a 2007 amicus brief, had the potential to chill innovation in products that use the Internet to provide storage and computing functions from remote locations. The lower court ruling had blocked Cablevision from rolling out a digital video recorder (DVR) system that stores recorded television programs on remote servers instead of in set top devices in the customers' homes. CDT applauds today's decision, which finds that providing such a remote DVR does not constitute direct copyright infringement. CDT also welcomes the court's finding that transitory data held in buffers for a mere 1.2 seconds do not constitute "copies" for purposes of the Copyright Act.

Posted by mikki at 11:28 PM | Permalink

Judge Orders Legal Fees in RIAA v Andersen | Threat Level from Wired.com:


A federal judge is awarding Tanya Andersen, who defeated the Recording Industry Association of America's file sharing lawsuit, $108,000 in legal fees to compensate for defending herself against the RIAA.
The award, made public Wedesday by U.S. District Judge James A. Redden of Oregon, marks the second time that a target of the RIAA who beat a lawsuit was awarded attorney's fees. In August, a federal judge ordered the RIAA to pay $68,685 in litigation costs to two Oklahoma women whose case was dismissed.
Whether RIAA defendants who successfully defend such suits are automatically entitled to legal fees is on appeal to the U.S. Supreme Court. The dispute is whether judges must award fees to a prevailing party under the Copyright Act.
Judge Redden ruled (.pdf) that RIAA's arguments against legal fees were "misplaced."
"An award of attorney's fees to the prevailing party are 'the rule rather than the exception' under the Copyright Act, and 'should be awarded routinely,'" Redden wrote.
The RIAA dropped the case against Andersen last year after concluding her hard drive didn't contain purloined music tracks. The RIAA initially claimed a Kazaa shared directory that linked to her internet-protocol address was unlawfully distributing thousands of songs.
In response to the lawsuit against her, Andersen has countersued the RIAA in a case seeking class-action status to represent what her attorneys say is thousands of persons wrongly sued by the RIAA. That case has been dismissed three times, and its fourth try is pending.
Andersen attorney Lory Lybeck requested $300,000 and the RIAA suggested $30,000 was more appropriate. The award is upwards of $190 a hour.
The RIAA has sued more than 20,000 people for copyright infringement

Posted by mikki at 10:17 AM | Permalink

Thanksgiving for New DMCA Exceptions:

Exciting and surprising good news from the world of copyright law: the Librarian of Congress has approved an exception to the anti-circumvention rules of the DMCA that prevented film and media studies professors from copying clips of DVDs for use in class. This legal obstacle to an educational use of digital content was one of the case studies at the center of our Digital Learning white paper released this summer by the Berkman Center. The final rule is here, and this page has links to more details.

The problem was a serious one for film professors. A provision of the Digital Millennium Copyright Law (or DMCA) prohibited the “circumvention” of “access controls” placed on digital media — including the CSS encryption used in just about all commercially distributed DVDs. A film professor who wanted to show three clips from three movies that exemplified, say, a particular cinematographic convention, had to break that encryption to make the “clip reel” (or else waste half the class period navigating scene selection menus to get to the relevant part). Until this ruling, breaking the encryption meant breaking the law — and while many (perhaps most) film professors did so anyway, they were taking a risk. Their dilemma illustrated the ridiculous over-inclusiveness of the DMCA, since the actual use of the film clips in class was unquestionably legal.

The new exception is one of six — count ‘em, six — granted in the three-year review undertaken as part of the DMCA by the Librarian of Congress (who oversees the Copyright Office). Others include:

• renewal of a provision meant to help blind readers (who often confront difficulty with DRM) circumvent access controls that prevent conversion of e-books to reading machines;


• a new provision allowing security research on CDs with DRM that would harm computers, such as the infamous Sony root kit; and


• a new provision allowing circumvention of access controls in cell phone handsets that can prevent use of the phone on other wireless carriers (including using your GSM phone in Europe — sort of defeats the purpose of GSM if you are “locked in” by your domestic carrier…).

I must say I am pleasantly surprised. The DMCA calls for such a rulemaking proceeding by the Librarian once every three years, but the two previous ones since the law passed have been disappointing. These rules are still quite narrow, but after all, the DMCA only authorizes exceptions that correct for situations where DRM prevents noninfringing uses of content. Advocates such as EFF, Peter Jaszi and the crew at the American University IP clinic, and Jennifer Granick and the Stanford Cyberlaw Clinic, among others, all deserve credit for commenting in a situation where they might have appeared to be tilting at windmills — their efforts have been rewarded.

Nice to enter the holiday giving thanks for, of all things, a DMCA rule!

Posted by mikki at 10:12 PM | Permalink

CopyCense: WIPO Separates Broadcast Right From Webcast Right:


"World Intellectual Property Organisation (WIPO) members have agreed to split off webcasting from their ongoing discussions on a potential new treaty intended to define the rights of broadcasters over their transmissions.

"The compromise was reached during the 1-5 May meeting of the 'Standing Committee of Copyright and Related Rights (SCCR),' the WIPO technical body that is considering the controversial draft proposal for a WIPO treaty on the protection of the rights of the broadcasting organizations (SCCR/14/2). Talks on the issue started in 1999; the first draft basic treaty proposal was tabled in 2004 (SCCR/11/3).

"The driving force behind the negotiations has been broadcasting organisations' desire to obtain a level of protection for their transmissions similar to the rights accorded by the 1961 Rome Convention to performers and the recording industry for their works -- albeit updated to account for decades' worth of technological advances, notably the switch to digital transmission. The draft treaty proposes to grant the organisations exclusive rights to authorize the distribution and re-transmission of their broadcasts.

Posted by mikki at 10:39 PM | Permalink

AP Wire | 04/03/2006 | Intuit sues H&R Block for alleged copyright infringement:


SAN JOSE, Calif. - Intuit Inc. on Monday sued H&R Block Inc. for alleged copyright infringement, escalating the recent acrimony between the leading makers of tax preparation software.

The San Jose federal court lawsuit alleges H&R Block has been airing television commercials that echo Intuit's promotions for its market-leading TurboTax software.

Mountain View, Calif.-based Intuit is seeking a court order to stop the H&R Block ads, which so far have aired in Oregon and Florida.

"When our competitors inappropriately copy our ads, violating our intellectual property, we will fight to protect it," said Brad Henske, an Intuit vice president in charge of the company's consumer tax group.

Kansas City, Mo.-based H&R Block, the maker of TaxCut software, said it wasn't surprised by the suit.

Posted by mikki at 07:47 PM | Permalink

CNN.com - 'Lion' daughters win landmark case - Mar 22, 2006:


JOHANNESBURG, South Africa (AP) -- Three impoverished South African women, whose father wrote "The Lion Sleeps Tonight," have won a six-year battle for royalties in a landmark case that could affect musicians worldwide.

No one is saying how many millions will go to the daughters of the late composer Solomon Linda, who died in poverty from a curable kidney disease in 1962 at age 53.

But the family's settlement with New York-based Abilene Music, which gives Linda's heirs 25 percent of past and future royalties, has broad implications.

Posted by mikki at 10:54 PM | Permalink

France OKs bill opening iTunes, iPod | MacMinute News:


French lawmakers approved an online copyright bill today that would require Apple to open the proprietary format behind its iTunes music store and iPod players, reports the Associated Press. "The draft law -- which also introduces new penalties for music pirates -- would force Apple Computer Inc., Sony Corp. and others to share proprietary copy-protection technologies so that rivals can offer compatible services and players," notes the story. French lawmakers approved the bill 296-193. The Senate must now debate and vote on the new legislation, which is expected to begin in May.

Posted by mikki at 01:40 PM | Permalink

Google wins a court battle | CNET News.com:


In a legal win for Google, a federal judge dismissed a lawsuit filed by a writer who claimed the search giant infringed on his copyright by archiving a Usenet posting of his and providing excerpts from his Web site in search results.

The lawsuit was filed by Gordon Roy Parker, also known as Ray Gordon, who publishes his writings under the business name of Snodgrass Publishing Group. Parker, of Philadelphia, also posted a chapter of one of his e-books on the Usenet bulletin board network, a collection of thousands of discussion forums called newsgroups.

In his 2004 lawsuit against Google, Parker alleged that the search giant violated copyright law by automatically archiving a copy of his posting on Usenet and by providing excerpts from his Web site in search results.

However, the U.S. District Court for the Eastern District of Pennsylvania ruled on Friday that under case law, Google's activities, akin to those of an Internet Service Provider, do not constitute infringement (click for PDF of court documents).

Posted by mikki at 06:30 PM | Permalink

This Blog Covered By A Creative Commons License Enforceable In The Netherlands:

This blog is published under a Creative Commons license that allows for non-commercial use. Adam Curry recently sued to enforce his CC license in Amsterdam and prevailed. This appears to be the first time a CC license has been evaluated in a court (if you're aware of others, please advise).

No comment from Prof. Lessig (discoverer of the CC license) yet.

Commentary from Prof. Patry with many links here.

Posted by mikki at 11:10 AM | Permalink

Very good "fair use" opinion re Google's cache:

A district court in Nevada has rejected the claim that Google’s cache violates copyright law. The opinion is grounded both on “fair use” and implied license. The “fair use” part of the opinion is fantastic. But interestingly, the “implied license” part of the opinion weakens any such claim in the context of Google Book Search.

Posted by mikki at 10:47 PM | Permalink

Sony settles 'rootkit' class action lawsuit | CNET News.com:


Sony BMG has struck a deal with the plaintiffs in a class action lawsuit over copy-restriction software it used in music CDs, according to a settlement document filed at a New York court Wednesday.


The record label has agreed to compensate buyers of CDs that contained the XCP and MediaMax DRM programs and to provide software utilities to allow consumers to uninstall both types of software from their computer.

The furor over Sony's DRM software began at the end of October when a U.S. programmer discovered that XCP software on a Sony music CD had installed copy-restriction software on his computer that was hidden using a rootkit. Antivirus companies later discovered Trojan horses that exploited this software to avoid detection and found that another type of Sony DRM, MediaMax, also posed a security risk.

Posted by mikki at 08:11 PM | Permalink

Sanity breaking out all over:

First the French, now the Aussies: Reports are the Australians will legalize taping shows from television, and ripping CDs to MP3 players.

Posted by mikki at 12:51 PM | Permalink

Sony: Its Own Worst Enemy:


Doubtless everyone has heard by now the saga of Sony's rootkit DRM.
On some music CDs Sony has put some Digital Rights Management (DRM)
software that it said was intended to prevent copying of the music
on the CD.
Actually, that software also hides itself so it's hard to find or remove,
and opens several security holes, including reporting information about
the user back through the Internet.
Thus it resembles what is commonly called a rootkit,
which is software that is designed to get root (unlimited access)
and to hide the fact that it did so.
Everybody from music buyers to antivirus vendors to Microsoft to the
U.S. government complained to Sony, after which Sony put out an
uninstall kit.
But that kit turned out to open even more security holes.
EFF is suing Sony.

Apparently the software to call home
and get advertising related to each tune gets installed even if the
user says no to the End User License Agreement (EULA).

The news just keeps getting worse.
Now
the state of Texas is suing Sony under the new TX spyware laws.

I continue to wonder why Apple still seems to be the only
company that understood that online music "piracy" translates
as market demand; a demand that the iPod and iTunes satisfies.

The moral of this story could be that forcing your customers to
run software they didn't ask for, don't want, said they didn't want,
and may be illegal besides, just isn't good risk management.
Sony already had to recall the original CDs due to the furor
over the DRM, but their "fixes" still have the same kinds of problems,
so their PR problem just keeps getting bigger, and continues
expanding into a bigger legal problem.

Wouldn't it be easier just to sell music the customers want?
Or to come up with a way to leverage music copying as advertising
without putting illegal spyware on music lover's computers?

-jsq

Posted by mikki at 12:48 PM | Permalink

RIAA Files File-Sharing Lawsuits Against 751 People...:


RIAA Files File-Sharing Lawsuits Against 751 People

Posted by mikki at 04:42 PM | Permalink

Fall of the House of Cards? (Alan Wexelblat):

A reader pointed me to a Businessweek Online piece on Sony's spyware fiasco. This brief piece contains one new tidbit, but it's crucial. According to Lorraine Woellert's story the artists themselves are finally starting to get up in arms. About bleeping time.

In my more fanboy moments, I hang out with writers (books) and artists (sculptors, photographers, musicians). For the most part they've bought into the Cartel's propaganda. They're worried about "piracy" and someone "stealing" their work. I don't have many big-name creative friends, so most of the folk I talk to are sensitive to even a small loss of income when they make very little to start with. They tend to believe that DRM is a good thing and that it'll somehow help them get paid more or better.

What we now see is that the exact opposite is true. Musicians and their managers, according to Wollert, are starting to realize that DRM is preventing sales. Bad publicity is the kiss of death and it's really unclear whether any Sony artists are going to escape at least some level of contamination. That translates to lost sales, often dramatically lost (50% drop in one week - ugh).

If the creative corp finally get it through their heads that the Cartel's DRM strategies are only there to fatten executive wallets then we might actually see a kind of revolution from within. As Wendy noted a couple weeks back, the frog may well jump out of the pot

I also have to hope that The Association of American Publishers will catch on to this. Although the current fiasco is over music disks, there's a very direct and very short line between the meme "don't use DRM to screw up fans' experience of artists' music" and the meme "don't use mistaken interpretations of copyright law to stifle readers' desire to find books."

Posted by mikki at 01:58 PM | Permalink

EFF Files Class Action Lawsuit Against Sony BMG:

Company Should Repair Damage to Customers Caused by CD Software

The Electronic Frontier Foundation (EFF), along with two leading national class action law firms, today filed a lawsuit against Sony BMG, demanding that the company repair the damage done by the First4Internet XCP and SunnComm MediaMax software it included on over 24 million music CDs.

EFF is pleased that Sony BMG has taken steps in acknowledging the security risks caused by the XCP CDs, including a recall of the infected discs. However, these measures still fall short of what the company needs to do to fix the problems caused to customers by XCP, and Sony BMG has failed entirely to respond to concerns about MediaMax, which affects over 20 million CDs -- ten times the number of CDs as the XCP software.

"Sony BMG is to be commended for its acknowledgment of the serious security problems caused by its XCP software, but it needs to go further to regain the public's trust," said Corynne McSherry, EFF Staff Attorney. "It is unconscionable for Sony BMG to refuse to respond to the privacy and other problems created by the over 20 million CDs containing the SunnComm software."

The suit, to be filed in Los Angeles County Superior court, alleges that the XCP and SunnComm technologies have been installed on the computers of millions of unsuspecting music customers when they used their CDs on machines running the Windows operating system. Researchers have shown that the XCP technology was designed to have many of the qualities of a "rootkit." It was written with the intent of concealing its presence and operation from the owner of the computer, and once installed, it degrades the performance of the machine, opens new security vulnerabilities, and installs updates through an Internet connection to Sony BMG's servers. The nature of a rootkit makes it extremely difficult to remove, often leaving reformatting the computer's hard drive as the only solution. When Sony BMG offered a program to uninstall the dangerous XCP software, researchers found that the installer itself opened even more security vulnerabilities in users' machines. Sony BMG has still refused to use its marketing prowess to widely publicize its recall program to reach the over 2 million XCP-infected customers, has failed to compensate users whose computers were affected and has not eliminated the outrageous terms found in its End User Licensing Agreement (EULA).

The MediaMax software installed on over 20 million CDs has different, but similarly troubling problems. It installs files on the users' computers even if they click "no" on the EULA, and it does not include a way to fully uninstall the program. The software transmits data about users to SunnComm through an Internet connection whenever purchasers listen to CDs, allowing the company to track listening habits -- even though the EULA states that the software will not be used to collect personal information and SunnComm's website says "no information is ever collected about you or your computer." If users repeatedly requested an uninstaller for the MediaMax software, they were eventually provided one, but they first had to provide more personally identifying information. Worse, security researchers recently determined that SunnComm's uninstaller creates significant security risks for users, as the XCP uninstaller did.

"Music fans shouldn't have to install potentially dangerous, privacy intrusive software on their computers just to listen to the music they've legitimately purchased," said EFF Legal Director Cindy Cohn. "Regular CDs have a proven track record -- no one has been exposed to viruses or spyware by playing a regular audio CD on a computer. Why should legitimate customers be guinea pigs for Sony BMG's experiments?"

"Consumers have a right to listen to the music they have purchased in private, without record companies spying on their listening habits with surreptitiously-installed programs," added EFF Staff Attorney Kurt Opsahl, "Between the privacy invasions and computer security issues inherent in these technologies, companies should consider whether the damage done to consumer trust and their own public image is worth its scant protection."

Both the XCP and MediaMax CDs include outrageous, anti-consumer terms in their "clickwrap" EULAs. For example, if purchasers declare personal bankruptcy, the EULA requires them to delete any digital copies on their computers or portable music players. The same is true if a customer's house gets burglarized and his CDs stolen, since the EULA allows purchasers to keep copies only so long as they retain physical possession of the original CD. EFF is demanding that Sony BMG remove these unconscionable terms from its EULAs.

The law firms of Green Welling, LLP, and Lerach, Coughlin, Stoia, Geller, Rudman and Robbins, LLP, joined EFF in the case. Sony BMG is also facing at least six other class action lawsuits nationwide and an action by the Texas Attorney General. EFF looks forward to representing the voice of digital music fans in the resolution of these disputes between Sony BMG and consumers.

For more on the Sony BMG litigation, see:
http://www.eff.org/IP/DRM/Sony-BMG/

EFF's open letter to Sony:
http://www.eff.org/IP/DRM/Sony-BMG/?f=open-letter-2005-11-14.html

Posted by mikki at 10:39 PM | Permalink

Texas AG vs Sony Spyware (Alan Wexelblat):


Texas' Attorney General has filed suit against Sony for violations of that state's anti-spyware laws, as well as consumer protection charges. The suit is civil in nature, rather than criminal, asking for up to USD 100,000 per violation.

Posted by mikki at 10:38 PM | Permalink

Sony Folds Tent, Recalls CDs:


Pummeled into submission by angry consumers and the media, Sony BMG agrees to pull all CDs containing copy-protected software and provide fixes for computers affected by the technology -- and hopes the whole mess just goes away.

Posted by mikki at 11:02 AM | Permalink

Wired News: Net Chat Anoints Public Figure:


Can mention on the net turn an ordinary citizen into a public figure with severely limited abilities to fight libel and defamation lawsuits? According to a Florida judge's ruling -- perhaps the first of its kind in the United States -- the answer is yes.

In an Oct. 21 ruling, Florida circuit court Judge Karen Cole threw out a defamation case against two TV stations because she deemed the plaintiff -- a Jacksonville woman -- to be a public figure who had been subject to "substantial" internet debate.

In the eyes of the law, public figures are usually politicians or celebrities, who have limited rights to claim that they've been libeled or defamed, thanks to a 1964 ruling by the U.S. Supreme Court.

Among other things, Cole said plaintiff Eliza Thomas had become a public figure because there had been "substantial public debate" regarding her and her husband on the internet.

Thomas claimed First Coast News, a joint operation of two TV stations, defamed her while reporting her efforts to remove the feeding tube from her brain-damaged husband, who is on life support.

In the wake of the Terri Schiavo debate, which also took place in Florida, Thomas' case is controversial enough.

But there's a twist: The state attorney general's office is investigating whether Thomas had something to do with her husband's injuries, raising the prospect of criminal charges. Thomas claims her husband was injured when he tripped over a dog in the kitchen.

The ruling could set an informal precedent and influence other courts, said Jacksonville media attorney George Gabel.

Gabel, who represented the TV stations against Thomas, successfully fought off the defamation suit by, in part, pointing to web coverage of the plaintiff's legal battle over her brain-damaged husband.

Posted by mikki at 09:34 AM | Permalink

Top News Article | Reuters.com:


LOS ANGELES (Billboard) - Complaints continue to mount regarding a controversial CD copy-protection initiative by Sony BMG Music Entertainment.

Artists and consumers' initial concern was that the digital rights management technology does not work with iPods. Now a growing number of music fans charge that the security software behaves like spyware and may create security vulnerabilities in users' computers.

The matter drew increased attention in technology circles October 31, when software developer/computer security expert Mark Russinovich began blogging the details of problems he experienced after using his computer to play the copy-protected CD of "Get Right With the Man" by Van Zant, a Southern rock act signed to Columbia Records.

Russinovich posted that Sony BMG's DRM drained resources from his computer processor, even when the CD was not being played, and was extraordinarily difficult to locate and uninstall. When he finally deleted the software, his computer's CD player stopped working. "This is a clear case of Sony taking DRM too far," he wrote.

Within 24 hours, online tech-news sites including SlashDot and CNet had posted news about Russinovich's account. And by November 2, Sony BMG had posted instructions on its own site (cp.sonybmg/xcp) for removing the DRM.

Posted by mikki at 06:37 PM | Permalink

Google book scanning still on hold | CNET News.com:


Google plans to resume its library book scanning "soon," a Google spokesman said Thursday.

The company had halted the scanning in August to allow copyright holders time to contact Google and opt out. At the time, the search giant said it would resume scanning on Nov. 1, but three days into the month it still had not, said spokesman Nate Tyler.

"We're getting to it. It's an operational thing," he said.

Tyler declined to be more specific about the timing, but did say that scanners will start with older parts of the participating library collections, which tend to include more public domain and out-of-print books than books still under copyright, he added.

The company is embroiled in lawsuits over its plans to scan, digitize and make searchable public domain and copyright-protected books from the university collections of Oxford, Harvard, Stanford and Michigan, and from the New York Public Library.

Posted by mikki at 08:58 AM | Permalink

BBC NEWS | Technology | Microsoft scans British Library:


About 100,000 books in the British Library are going to be scanned and put online by software giant Microsoft.
The books, which are out of copyright, will be digitised from 2006 and put online as part of Microsoft's book search service next year.

Microsoft is already working with the Open Content Alliance (OCA), set up by the Internet Archive, to put an initial 150,000 works online.

A separate global digital library plan by Google is also under way.

The search giant is spending $200m (£110m) to create a digital archive of millions of books from four top US libraries. It is also digitising out-of-copyright books from the UK's Oxford University.

Posted by mikki at 08:24 AM | Permalink

Speaking Volumes, Part II (Donna Wentworth):

Tim O' Reilly has excellent one-stop shopping for this weekend's debate about Google Print library on Dave Farber's IP list. Here, a snippet that's helpful for explaining what the Authors Guild and publishers are asking for in the name of copyright (hyperlink, mine):

Google is making it possible for us to find books we want to buy (or borrow from the library, which isn't a crime just yet). Google is not letting us read books for free. Not even close. Does anyone really think that someone who wanted to read Angle of Repose would instead use Google Print and decide that the snippet of Stegner was sufficient?

So what are the Authors Guild and the publishers complaining about? They're complaining that Google hasn't offered to share the profits that might accrue thanks to ads Google may someday display, or that are attributable to the marginal increase in general Google traffic. But on what basis do they claim entitlement to that brand new revenue stream? The money is not based on the public copying the book -- which is what copyright protects against -- it's based on the public FINDING the book in the first instance.

Now I suppose that the Authors Guild folks want to claim that they should get a share of any way of making money related to locating their works. That's an interesting argument, but it's not a copyright claim. If copyright owners approached libraries and demanded a share of library funds because of the existence of the card catalog it would be difficult to stifle the giggles. Yet isn't the same thing going on here? Stealing an analogy from law Prof Tim Wu, we have never given real property owners the right to "opt out" of any mechanism that helps people find their property -- maps. That's just not in the bundle of rights you get when you buy a home and preventing location tools is also not in the bundle of rights that come with copyright.

Posted by mikki at 10:50 PM | Permalink

Google announces ambitious plan to digitize pending litigation: "

Google's claim that its Google Print Library Project, an effort to create a searchable library of all the world's books, is covered by the 'fair use' provision of the copyright law isn't going over well with the publishing industry. In September, the Author's Guild filed a class-action copyright infringement lawsuit over the service (see 'Google Print soon to be world's largest searchable archive of copyright suits'). Now, the Association of American Publishers has sued as well, angered that the company dismissed its proposal that it use the ISBN book numbering system to identify works under copyright and secure proper permission. ‘The publishing industry is united behind this lawsuit against Google and united in the fight to defend their rights,’ AAP President Patricia Schroeder said in a statement. ‘While authors and publishers know how useful Google's search engine can be and think the Print Library could be an excellent resource, the bottom line is that under its current plan Google is seeking to make millions of dollars by freeloading on the talent and property of authors and publishers. If Google can scan every book in the English language, surely they can utilize ISBNs. By rejecting the reasonable ISBN solution, Google left our members no choice but to file this suit.'

(Via Good Morning Silicon Valley.)

Posted by mikki at 07:04 PM | Permalink

Association of American Publishers sues Google for copyright infringement: "Just weeks after a leading authors' organization sued Google for copyright infringement, the Association of American Publishers has also filed suit against the search engine giant's plans to scan and index books for the Internet. Under the Google Print Library Project, millions of copyrighted books from three major university libraries - Harvard, Stanford and Michigan - will be indexed on the Internet unless the copyright holder notifies the company by Nov. 1 about which volumes should be excluded"

(Via Pravda.RU: World.)

Posted by mikki at 06:22 PM | Permalink

Third Circuit Articulates Nominative Fair Use Test: "

'In this Circuit, we have today adopted a test for nominative fair use in which a court will pose three questions: (1) Is the use of the plaintiff's mark necessary to describe both plaintiff's product or service and defendaant's product or service? (2) Is only so much of the plaintiff's mark used as is necessary to describe plaintiff's products or services? (3) Does the defendant's conduct or language reflect the true and accurate relationship between plaitniff's and defendant's products or services? If each of these questions can be answered in the affirmative, the use will be considered a fair one, regardless of whether likelihood of confusion exists.'

From Century 21 Real Estate v. Lendingtee, Inc., No. 03-4700 (3d Circuit Oct. 11, 2005).

(Via The Trademark Blog.)

Posted by mikki at 06:05 PM | Permalink

Music Piracy Defendants Fight Back: "In the last year -- particularly in the last six months -- a growing number of defendants have refused to settle music industry suits, challenging what they allege are groundless lawsuits filed by the Recording Industry Association of America. Defense attorneys allege that the RIAA is using 'scare tactics' to force settlements, intimidating defendants into paying up before they can seek legal help, or dispute the charges. RIAA officials deny using any strong-arm tactics."

(Via Law.com.)

Posted by mikki at 12:02 PM | Permalink

Hacking Is Not Fair Use (Donna Wentworth): "

Earlier this week I wrote about how, despite claims to the contrary, DRM Is Not a Contract in which you 'agree' to give up all of your fair use rights for the dubious privilege of becoming a hapless pawn in the digital media wars. Now Derek Slater has a thoughtful follow-up explaining that Hacking Is Not Fair Use -- or, to be more precise, that if you oppose reforming the DMCA to allow people to circumvent DRM to make lawful uses of digital media, you can't pretend you're doing anything but opposing lawful uses.

Writes Derek:

[Patrick Ross's article] reveals why many DMCA supporters truly laud the law - not because it prevents widespread infringing file-sharing (it doesn't), but rather because it drastically shrinks fair use. ...Here's the key passage from Patrick's article:

'But if HR-1201 becomes law, every consumer could legally hack any TPM by claiming fair use, and as fair use isn't codified, there would be as many definitions of it as there are consumers. Consumers would be legally sanctioned to break their contracts with the content provider.' (emphasis added)

Of course, fair use is codified. It's just not a set of bright line rules, and that's probably for the best. That's how we get innovation like time-shifting or Google Print - who could have predicted such uses ahead of time, distinguished them from related but unlawful uses, and clearly protected them in the statute?

Regardless, just because fair use is unclear doesn't mean that it permits everything. HR1201 only permits circumvention for lawful uses; if a claim of fair use were unfounded, consumers would still be liable.

Derek has more, including a link to previous post that subtly encourages DMCA supporters to come clean. Rational people can agree that the DMCA is a failure [PDF] at preventing mass copyright infringement on the Internet -- its ostensible purpose. So what is it 'good' for? And is it possible to have an honest discussion about that?

(Via Copyfight.)

Posted by mikki at 05:01 PM | Permalink

Adult Website Lawsuit Threatens Google Image Search: "

Injunction Could Shut Down Popular Service

Los Angeles - The Electronic Frontier Foundation (EFF) filed a brief Wednesday in support of Google Image Search, arguing that a federal district court should reject a request for a preliminary injunction that could shut the service down.

In its lawsuit, adult entertainment website Perfect 10 claims that Google violates its copyrights by making and delivering thumbnail images of its photos as Internet search results. In its friend-of-the-court brief, EFF shows that these copies are a well-established fair use of digital images and they help people find and use the works for informational and educational endeavors.

'Google Image Search helps millions of people locate and learn about information on the web every day,' said Jason Schultz, EFF staff attorney. 'We're concerned that the public will lose out if Perfect 10 succeeds in shutting it down.'

Perfect 10 argues that a preliminary injunction is justified because Google is violating its right to reproduce, distribute, and display its copyrighted work. But there is a long tradition in fair use that certain kinds of copies are socially useful, even without permission of the author. Courts have held that copies are a legal intermediate step to making non-infringing uses of the copyrighted work—for example in teaching, education, and news reporting.

Thumbnails created by Google Image Search allow users to identify information they are looking for online and then access that information—much like an electronic card catalog. As certain information about images can only be conveyed visually, there is no other feasible way to provide image search on the Internet than capturing images, transforming them into thumbnails, and then displaying them on a search results page for users.

While the images provided by Perfect 10 may have limited academic application, the ramifications of its lawsuit could have a huge impact on educational research.

'Without the right to make legal copies, Google Image Search wouldn't be able to help you find a picture of Martin Luther King, Jr. at the Lincoln Memorial, for example,' said Schultz.

A hearing in this case is set for November 7, 2005.

For the full text of the brief, see:
http://www.eff.org/legal/cases/Perfect10_v_Google/EFF_amicus_brief.pdf

Contact:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

(Via EFF: Press.)

Posted by mikki at 12:54 PM | Permalink

Copyright law was carved out of our fundamental rights system in order to provide artists, writers, and others with a mechanism by which they would be rewarded for their creations by preventing others from copying them for a period of time. This "copyright" has always been coupled with the consumer/user's right of "fair use" which, among other things, provides for users to make copies of the work for non commercial archival purposes, and recently, for the right to make a copy of works in order to "timeshift," or enjoy the works at times more convenient than the original performance.

Various distributors of copyrighted materials, notably the software, music and entertainment industries, have added mechanisms by which the user can no longer exercise their fair use rights by making archival copies or timeshifting performances. The Copyright office is now requesting comments regarding whether or not giving the user the right to circumvent these mechanisms is appropriate.

There is substantial evidence produced by software creators, music producers and the rest of the entertainment industry that copying and re-distributing copyrighted works causes harm to those industries in lost sales opportunities. However, that is not necessarily the real issue. The Copyright Office is attempting to determine whether or not as a user who has provided the producer with fees or other consideration, has the right to then make use of the product in accordance with current copyright laws.

An example that is close to my heart is timeshifting and archiving of high definition television signals. I pay DirecTV a substantial amount each month in order to watch high definition signals. DirecTV allows me to download these signals to timeshift via their digital video recorder device. However, the device will not allow me to archive the signals in the same format which they were saved. In order to archive the programming, it must be downgraded unless I circumvent the technology barriers to enjoy my fair use right.

A similar issue occurs when purchasing a DVD. The user pays a fee to view the content of the disc, but is prevented from viewing that content if they leave the country and use a DVD player that is native to their new country. They are also prevented from making an archival copy of the DVD that they have already paid for. The user would have to use circumvention technology in that case to even view the DVD that they have already paid for.

These industries have essentially "taken the law into their own hands" by denying the consumer the right to use fully paid up products as the law allows. While there is no doubt that circumvention technology COULD be used to make and distribute illegal copies of copyrighted materials, that is not the issue that is being addressed by this request for comments. Laws against illegal copying and distribution are already on the books, and are being enforced by harsh civil and criminal sanctions. Yet the consumer's use to unimpeded fair use of products they have paid for is ignored.

Once a consumer has complied with the fees required by the distributor, the consumer should then have all rights to use the product, including fair use rights. While the distributor should be allowed reasonable means to protect their investment from illegal copying, the consumer should be guaranteed their fair use rights that emanate from the very same Copyright Act that provides protection for the distributor. If circumvention technology is necessary to exercise those fair use rights, the consumer should have the right to use it, but only to the extent that s/he needs to archive, timeshift, or even (in the case of regional prohibitions with DVDs) use the product.

Posted by mikki at 10:58 AM | Permalink

Yahoo-Backed Alliance Opens Copyright-Sensitive Internet Library: "Another attempt (besides Google's) to put masses of written material on the Web."

(Via Technology Review: Government, Law & Policy.)

Posted by mikki at 09:49 AM | Permalink

Copyright Office Publishes Final Regulations on Section 111 Royalty Rate Adjustment: "The Copyright Office announces final regulations governing the adjustment of the royalty rates for the cable statutory license. The new cable rates and the gross receipts limitations are applicable to the second accounting period of 2005 and thereafter."

(Via U.S. Copyright Office: NewsNet.)

Posted by mikki at 09:46 AM | Permalink

Copyright Office Requests Comments on Possible Adverse Effects on Users from Prohibition on Circumvention: "The Copyright Office is preparing to conduct proceedings to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition of circumvention."

(Via U.S. Copyright Office: NewsNet.)

Posted by mikki at 09:46 AM | Permalink

eco Search to Replace LOCIS about November 1, 2005: "eCO Search, an improved copyright searching system to be available on the Copyright Office website, will replace the LOCIS and the Web-based search systems about November 1, 2005."

(Via U.S. Copyright Office: NewsNet.)

Posted by mikki at 09:45 AM | Permalink

Ambitious Google Project: A Digital Age Test of Copyright Law: "For publishers, the search engine's desire to scan nearly everything in print is a complex issue, pitting vast exposure against potential profits."

(Via Technology Review: Government, Law & Policy.)

Posted by mikki at 12:53 PM | Permalink