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? 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.“

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.

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.

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

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.

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

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.

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!

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.

In seeking mandamus writ, what are the record companies afraid of?

As I discussed yesterday here, Judge Nancy Gertner of the District of Massachusetts agreed to allow web “narrowcasting” of an oral argument on the motions regarding the constitutionality of various provisions of the Copyright Act filed by a defendant (and his Harvard Law Professor attorney) in a file sharing copyright infringement case before her.  Her opinion (pdf) contained a well-reasoned decision to break with the federal court tradition of excluding cameras in the courtroom.

Now, as reported by the blogs from Wired, attorneys for the record companies have filed a motion (pdf) for a stay of the order pending their request for a writ of mandamus to the First Circuit.  In other words, the record companies are so scared of the oral argument they’re going to file an emergency motion with the First Circuit Court of Appeals (the court that reviews Judge Gertner’s decisions) asking for an order prohibiting her from allowing a third-party to use the camera and audio feeds already in the courtroom to narowcast the oral argument online.

All I can say is, What are they so scared of?  As Judge Gertner pointed out in her opinion, the RIAA and record companies for a long while now have claimed that they can’t use everyone who illegally file shares copyrighted music, but they can try to publicize their lawsuits to effect some “general deterrence”– persuade others not to share music illegally because of the threat of being sued. At the same time, many in the on-line world have an extremely negative view of the record companies and the RIAA.  You’d think that they would (reluctantly) welcome the idea that the cyber-community would be able to hear their side of the story, at least as it relates to the constitutionality of these statutes.  Certainly there aren’t issues of confidentiality here (meaning that the record companies will be discussing confidential trade secrets or other secret information as part of their oral argument); this is almost pure legal argument.  So now, they look like real weasels who are so afraid of any public exposure (except the limited press of “we won” after the conclusion of a case) that they will file emergency motions to avoid being heard and seen on real time.  Because it’s oral argument, there will be no testimony presented, and thus the ultimate decision and outcome should not be affected by the presence or absence of the narrowcast.  If the narrowcast won’t have any likely affect on the outcome, why would the record companies spend at least $30,000 on this writ of mandamus (maybe even $100,000)? What are they so scared of?

• Are they afraid that Judge Gertner, a left-leaning, pro-individual kind of jurist, will read them the riot act?  I find that hard to believe.  Even if she doesn’t like the record companies, any reasonable jurist (especially a district court) is extremely hesitant to declare federal law unconstitutional without strong appellate court support.  So far, the Copyright Act has withstood just about every constitutional challenge levied against it. She may ask tough questions, but on the law, the record companies have to know they have the upper hand.
• Are they afraid that there will be some sort of crowd reaction by the people in the gallery (most of whom, I would guess, would not be sympathetic to the record companies) and/or that the crowd may be more likely to make a scene on camera, which may be embarrassing?  Perhaps, but that also doesn’t give Judge Gertner the benefit of the doubt that she will control her own courtroom.  There aren’t too many federal judges I know that would stand by and allow a spectator to even bring a newspaper into the courtroom, much less applaud, protest, or say one single word, before the Courtroom Security Officers and the U.S. Marshals are sicked on them like hungry predators.
• Are they afraid that people will record the stream and then re-edit it to make misleading videos?  Once again, that would be a difficult thing, considering the low level streaming (anyone could easily spot edits).
• Or, are they just afraid that their lead attorney will say something he or she regrets at the hearing, and it will be blasted all over the country? I don’t think so, because if there’s one thing I know about trial attorneys, it’s that a firm ego is necessary for the job… if you go in doubting yourself, you’ll be a trainwreck.
• Are they afraid that it will further undermine their reputation in the U.S.?  Probably not.  If anything, as I mentioned before, it would give the record companies a chance to present their side–uncensored. And, if the Judge rules in the record company’s favor (particularly regarding the constitutional issues) it will give the skeptics in cyberspace an opportunity to understand the foundation of the ruling.

So, I’m completely befuddled.  Anyone else have any thoughts?  Leave a comment.

Real CourtTV– Judge Nancy Gerner allows live streaming of oral argument

As reported by ComputerWorld here, United States District Judge Nancy Gertner has agreed to allow a streaming webcast of an oral argument occurring on January 22 in Capitol Records v. Alaujan and Sony BMG Music Entertainment v. Tenenbaum.  The oral argument is on Mr. Tenenbaum’s Motions to Amend Counterclaims, opposition to the record companies’ Motion to Dismiss the Counterclaims, and a Motion for Joinder of the RIAA.  Mr. Tenenbaum, a Boston University Ph.D. candidate, has been accused of using peer-to-peer file sharing to download music.  He got an attorney– Charles Nesson, professor of law at Harvard and of the Berkman Center for Internet and Society.

Because the proceedings on January 22 are only oral argument, the Court reasoned, “narrowcasting” the proceedings will not influence the performance of any witnesses or testimony. And, because the record companies hope to discourage illegal file sharing through general deterrence built up from the publicity of lawsuits across the country, the Court was “curios” as to why the record companies objected to the motion.  Therefore, the Court reasoned:

The public benefit of offering a more complete view of these proceedings is plain, especially via a medium so carefully attuned to the Internet Generation captivated by these filesharing lawsuits.

The Courtroom View Network (CVN) will create the narrowcast using the cameras (likely to be fairly low-res security cameras and monitors) already installed in the courtroom, and the Berkman Center will rebroadcast on http://cyber.law.harvard.edu.  I’ll be tuning in to hear Professor Nesson’s arguments regarding the constitutionality of the fines potentially imposed by the Copyright Act, as well as the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999.

(A copy of the PDF decision of the Court is here.)

In addition, kudos to Judge Gertner for being brave and allowing this narrowcast. I’m generally not a huge fan of cameras in the courtroom, especially during trials, as I do believe that it intimidates jurors, affects witness testimony, and may cause grandstanding by judges and attorneys (especially those who see a trial as “free attorney advertising” or judges who are subject to reappointment through popular-vote elections).  But oral argument, particularly in circumstances like this, is a different kettle of fish.  I’m excited to see how the record company attorneys respond.

United States Ditrict Judge Nancy Gertner for Supreme Court?

I first heard of Judge Gertner during the early Blakely/Booker era in 2004 and 2005. She was a pioneer in reacting to the decisions, and has become a sentencing expert.  She’s also a blogger.  She’s a Yale grad, appointed to the bench by President Clinton, and has been very outspoken on a number of civil and criminal justice issues. I would think a jurist of her caliber would be a perfect Supreme Court nominee for President-elect Obama, especially if Justices Stevens, Souter, or Ginsburg were to retire soon.  She’s brilliant, thoughtful, progressive-leaning (in a literal, as well as political, sense–how many other judges have blogs and allow webcasting?), and, as a district judge, she brings insight to the court about the day-to-day practicalities of jurisprudence that no other sitting justice currently has. She may suffer, though, from “too much information-itis,” as with some other long-time Supreme Court hopefuls, just because she’s said too much about too many topics that may seriously frighten center-leaning Democrats and Republicans. But both her future–and this oral argument–will be something to watch.

Stephen Colbert to Larry Lessig –“I want a divorce!”

From Wired’s Blogs– this story about Stanford law professor Lawrence Lessig’s appearance on The Colbert Report.  Lessig is hocking his new book, Remix: Making Art and Commerce Thrive in the Hybrid Economy. Fun, surprising comments from the interview:

Professor Lessig on The Colbert Report

• Cobert: “You say that copyright laws are turning our kids into criminals, because they’re keeping kids from doing all the ‘remixing’ that they want of pre-existing copywritten material… Isn’t that like saying arson laws are turning our kids into pyromaniacs?”
• Lessig: “Totally failed war. Is that familiar to you…?” Colbert: “No. … You’re saying we need a surge in copyright protection?” Lessig: For 10 years we’ve been waging this war. Artists have gotten no more money, businesses have gotten more profit, and our kids have been turned into criminals.”
• Colbert: “Never, ever, ever, ever take anything of mine and remix it.  For instance, I would be very angry, and possibly litigious if anyone takes this interview right here, and remix[es] it, with some great dance beat, and then it starts showing up in clubs across America.”
• Lessig:  “We’re joint copyright owners; I’m OK with that. … Copyright is joint for us; we’re in this together Stephen.” Colbert: I want a divorce.”

And of course, the remixes abound. Like “Artistic Socialism” [YouTube] by EmJayEff, “Operation REMIX” [mp3] by DJ Cable and this one by Ludachrist:

I have to admit, Lessig’s got a point:  Congress has been ratcheting up copyright terms, penalties, and fines, allowing DRM and making it a crime to subvert it, and now increasing criminal actions against peer-to-peer copiers. Has this really prevented piracy? Not much. Has the record industry been saved? Not really.  iTunes is becoming totally DRM free.  The artists that are succeeding have figured out how to thrive in the peer-to-peer, Myspace, Twitter generation.

On the other hand, I’m afraid that some of Lessig’s comments paint with too broad a brush.  He claims that 70% of “our children” are “criminals” because they copy music on peer-to-peer systems. That’s probably true.  But the vast majority of infringers on peer-to-peer are not yearing to breathe free from copyright restrictions so that they can remix content to make something new.  Rather, the file sharers want something for nothing–they want music or movie content that cost hundreds of thousands of dollars, or millions of dollars, to make at no cost.  Could some of those uses be “fair” (like previewing an artist to see if you like their work before buying)? Certainly.  But are there millions of people out there, collecting digital media just because they can? You betcha.

I haven’t read Lessig’s book (although I think I’ll pick it up… legaly… and pay both the physical costs like the paper, printing, distribution and the intellectual royalty to Mr. Lesig) but my guess is that he imagines a sea change in the economic foundations of the media enterprises — make movies with an economic model like Twitter, where the content is free, but money is made through ad revenue, or as part of being in the distribution channel, or the like. Of course, that would be a revolution in intellectual property law that ultimately devalues the property itself in favor of the method of production or distribution. I’m not too sure that most authors would favor it. But I’m glad there are people like Prof. Lessig in the world to make us challenge our IP paradigms.