Category Archives: Copyrights

A bunch of “IP meanines” are appointed by Obama to the DOJ–what does it mean?

Copyright Avengers? Or just a bunch of guys in suits?

Copyright Avengers? Or just a bunch of guys in suits? Courtesy of Gismodo.

The blogosphere is all aflutter over the appointment of a number of attorneys by the Obama administration to upper-level DOJ positions, simply because a number of these attorneys represented the RIAA or MPAA in a number of copyright cases, or even was successful in redefining contributory copyright infringement in the Grokster case.

Ben at Copyrights & Campaigns tries to put some perspective on the appointments, complete with an “insider” source that notes that these guys are not going to have a lot of day-to-day involvement in copyright cases.

First, there is no indication whatsoever that Tom Perrelli, Don Verrilli, Neil MacBride or the others were selected because of their views or experience on copyright issues. […] They all have extensive experience in areas other than copyright, and those non-copyright experiences, I suspect, had a lot more to do with their appointments than their anti-piracy work.

Second, the Department of Justice has virtually nothing to do with civil copyright litigation, which is almost almost always fought between private parties, with the DOJ paying no attention at all. […]

It is true that DOJ prosecutes criminal copyright infringement cases. But ask yourself when the last truly controversial criminal infringement case occurred. The fact is, criminal copyright cases are virtually all about blatant cases of commercial infringement (e.g., a factory stamping out pirated DVDs and selling them), not about interesting and controversial issues involving secondary liability or fair use. […]

Don’t get me wrong; I’m thrilled to have first-rate copyright lawyers in the top ranks of Justice. But I am under no illusion that they will be spending much of their time on copyright issues, or that the Obama Admistration’s IP policies will differ from the Bush Administration’s IP policies in any major way. The fact is that administrations of both parties have been admirably supportive of copyright owners and their legitimate efforts to enforce their rights.

Ben’s commentary is so thoughtful (and well cited, and even includes an “inside source”!), I thought it worth repeating here.  I agree that the day-to-day operation of the DOJ vis-a-vis copyright and other types of IP enforcement will not be significantly different under an Obama administration, nor that it would be significantly different if the Copyright Avengers had not been appointed.  But the differences may arise if, for example, there is a significant constitutional challenge to a copyright statute (a la Tenenbaum) and a Court of Appeals or the Supreme Court asks for the DOJ’s input. And rather than a victory for the “copyright,” perhaps because Obama did not appoint any Lessig-type attorney to the DOJ, it’s just a small defeat for the “copyleft.


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Query: Status of “Three Strikes” laws or deals?

As pointed out in this article from the London Times, the four major US record companies have struck a deal with Ireland’s largest ISP, Eircom, to report to the record companies when the ISP catches users illegally sharing copyrighted music files, and to disable the users’ accounts after the 3rd warning.

Meanwhile, my inbox has been inundated with articles and blog posts about Section 92 of the Copyright Amendment Act in New Zealand, where a similar scheme has been created legislatively.

There have also been a number of  articles about talks among the record companies, Comcast and AT&T to implement a similar “tell on you and terminate your account” structure in the U.S.

Query to those in the blogosphere:  Has anyone done a comprehensive catalog of the implementation of this media owner / ISP cooperation scheme worldwide (i.e. countries where legislation has been proposed or adopted, countries where media owners have attempted to enter contractual agreements with ISPs, countries where agreements are actually in place)?

Query No. 2:  If the ISPs start filtering for copyrighted material, could they lose their “safe harbor” under the DMCA for other copyright material that they choose not to police?

Edit: Another (legitimate) rant here about Comcast policing for infringement, with the following insightful comment:

Given many carriers can’t even get bills and customer support right yet — there’s no reason to think this new system will be any different — particularly without any independent oversight or a publicly reviewable grievance process for false positives.

As someone who was  charged for cable service for over a year after I moved apartments (without the cable company noticing), I understand the blogger’s concern.  Internet acces is so crucial to American society that termination of access, a serious penalty (perhaps even more than a fine from a governmental agency), cannot be permitted  through arbitrary action.

Update No. 2:  Public Knowledge has a great summary of “Three Strikes” stories here.

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DRM commentary from across the pond

This article comes from the Guardian in the UK:

Digital rights management isn’t music to everyone’s ears | Media | The Observer.

It’s essentially a tirade against Digital Rights Management (DRM) from a British perspective, noting that the US’s DMCA has, through WIPO, “infected the legal system of every advanced industrialised country”.  He then lists the parade of horribles caused by DRM, including Kindle owers who can’t share a book with a friend (or transfer it to a newer Kindle) and school librarians who cannot see the blacklist of websites and keywords used by filtering software to block sites, since that’s incrypted and attempting to circumvent the incryption would be a “criminal offence under the DMCA and its foreign counterparts.”

He then concludes with a mini-rant on Apple:

The truth is that DRM was always going to be a dead end for two reasons: it can always be circumvented and it infuriates consumers. As usual, the first company to recognise this was Apple, hitherto a fierce implementer of DRM via its iTunes/iPod technology. Having extracted the maximum commercial advantage out of it, Apple announced on 6 January that it was abandoning DRM. About 80% of iTunes’ 10 million songs went DRM-free on that day, with the rest to follow by March.

This is good news for those starting out on record collecting. But what about the millions of iPod users who have purchased DRM-crippled tracks over the past few years? It turns out that they can “upgrade” (ie uncripple) each track for a fee of 20p. And if you think upgrading track by track is too fiddly, the iTunes store now has a “buy all” button in the upgrade section.

You can see where this is going. Long term, it might be simpler to have your salary paid directly to Apple and get an allowance – including iTunes vouchers and a free iPhone – from Mr Jobs.

This article is nothing new, but it demostrastes that citizens across the world are fed up with DRM.  It also demonstrates that DRM is dying, not because of legislation, or the work of “copyleftists” in courts challenging is efficacy, but because it’s so abhorrent to many consumers that the market is forcing is discontinuance. Good for the market, I suppose, and good for Apple, learning how it can suck out an extra couple of pennies from each user, yet again, that will add up to not an insubstantial amount of money.  (My “upgrade all” cost is over $100, for the few dozen albums I’ve purchased from iTunes.) Plus, I love being able to quote an article  with the words “recognise,” “industrialise,” and “offence.”

Brits are upset with the infection of US DRM law throughout the world; probably not too much of a demand to copy these ladies' music, though.

Brits are upset with the infection of US DRM law throughout the world; probably not too much of a demand to copy these ladies' music, though.

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Copyright/First Amendment Blog (from the Dark Side)?

Today, I stumbled across a (fairly) new First Amendment, copyright, and elections blog called Copyrights & Campaigns. Its author, Ben Sheffner, describes himself as “a copyright/First Amendment/media/entertainment attorney with a journalism background and a strong interest in politics” and the blog as providing “news and analysis of copyright, First Amendment, and related issues from a pro-copyright-owner perspective, with emphasis on the interaction of these issues with campaigns and the political process.”

It’s not too often that you see a blogger in the soft-IP, First Amendment platform specifically blogging from the “pro-copyright owner perspective,” and his prolific postings will certainly be interesting reads for me.  He has a number of recent postings of interest, such as:

  • An update on the Tenenbaum case, finding a request for amicus signatories from Tenenbaum as well as a discussion of amicus filings by the Courtroom View Network (the “network” that was originally charged with narrowcasting the oral argument), a group of news organizations, and the EFF’s amicus brief, which Scheffner himself has signed on;
  • A post comparing the Obama logo to the Pepsi Logo; and
  • A fisk refuting an article in the ABA Journal called “Copyright in the Age of YouTube.”

The blog is updated regularly, has insightful commentary you can’t find other places in the blogosphere, and is a just plain good read.  It’s on my blogroll, in my RSS aggregator, and I hope it finds its way to yours as well.  Even if Sheffner may be, at times, the copyright equivalent of Grand Moff Tarkin.

Nah... hes just a good copyright blogger.

Nah... he's just a good copyright blogger.

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Judge Gertner stays “narrowcast” hearing

In the Tenenbaum copyright infringement case, (blogged here, here, and here) Judge Gertner has stayed (pdf) the hearing on Tenenbaum’s motions (and the coordinated “narrowcast” of that oral argument) based upon the record companies’ requests for a writ of mandamus.

Because the decision to allow the “narrowcast” was highly publicized and likely to be perceived to be on the “cutting edge” of technology broadcasting of federal court proceedings, I can see how Judge Gertner would want the Court of Appeals to review this it. Plus, I have to go to a CLE tomorrow, so I’m glad that I won’t have to miss it.

Hat tip to  this post from from Wired.com, reporting the decision.

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The Tenenbaum Strikes Back (Or, at least, writes a press release)

In the ongoing saga of litigation between Joel Tenenbaum and the recording industry (blogged here), the record companies have filed an appeal (blogged here) of U.S. District Court Judge Nancy Gertner’s Order (pdf) allowing a narrowcast of the oral argument that is to take place on January 22, on Tenenbaum’s motions related to the constitutionality of a number of provisions of the Copyright Act.  Joel and his “legal team” from Harvard have struck back, well, sort of, with a press release reacting to the move (pdf.) Among their comments:

“If the RIAA’s position is to educate people about the business and legal climate of the music industry, it is unclear to us why they are appealing this decision. Further, we believe that the true public interest in this case is permitting civil involvement in courtroom proceedings. Our case is fundamentally about the ‘so-called Internet generation,’ and it is seemingly appropriate that such an opportunity be made available to these individuals.[…]”

The (Copyright) Rebels Strike Back

The (Copyright) Rebels Strike Back

Hmm, that sounds familiar.  It echoes what Judge Gerter said in her Order (and what I echoed in my blog posting.)

Tenenbaum’s team has a website, with copies of all the legal pleadings, for all to review. Stay tuned, true believers (to mix some sci-fi/fantasy metaphors).

Hat tip to Read Write Web, where I discovered the release.

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Pirates of the World – Copy & Unite!

From this article at TorrentFreak:

Ung Pirat,* or ‘Young Pirate’, is the youth organization associated with the Swedish pirate party. Yesterday it was a big day for the group, getting 1,325,744 Swedish Krona (Approx €121,900, or $161,700 US) from the national board for youth affairs. The amount is based on a membership count of around 1280 members, but with current membership of around 4,872, next years amount should be even greater.

The national board for youth affairs (Ungdomstyrelsen) awards money to organizations, in order to ensure that they have access in influence, to promote the next generation of politicians; indeed possibly the current generation. At least two of the board members of Ung Pirat are listed on the Pirate Party’s list of candidates for June’s EU elections.

[…]

UP, at just over two years old, has seen a fantastic growth rate. It is now the third biggest political youth organization in Sweden, behind those of the Moderate and Social Democrat parties, and ahead of the Christian Democrats – all parties with representatives in the Swedish Parliament.

Arrg Maitey! Vote fer me an download all the Flo-Rida ya can muster!

Arrg Maitey! Vote fer me an' download all the Flo-Rida ya can muster!

Per Nilsson recognized this as well, saying, “It is positive that the organization in a short time has managed to build a large nation-wide activities on issues involving many young people.” With this money and constantly growing support, it’s quite likely that come the next election, the Pirate Party will be voted into parliament.

“The growth of the Young Pirates in Sweden heralds the coming of a new dimension in European politics,” Ung Pirat’s Mattias Bjärnemalm told TorrentFreak, “The communication revolution has made the life of the younger generations into something altogether different from how their parents grew up, and now that cultural change will alter the very core today’s political landscape.”

What an interesting idea.  People who are upset with a country’s copyright rules actually organizing to take political action to change them.  Regardless of what you think about the RIAA’s enorcement efforts, whether copyright law (or the penalties for infringement) should be strengthened or relaxed, or whether you have “new media” ideas about how copyright should be modified for the “Mixing” generation, what’s actually fairly easy to see is that you can affect political change if you have the will.

Also an intersting idea: The government helps support minority political parties to grow if they show a serious and large enough base. I think both Democrats and Republicans would be quaking in fear of that prospect in the U.S.

* Too bad their website is only in Swedish.

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