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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?

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.

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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

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.

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“Stripper Idol” Part Deux

Gene Quinn at IP Watchdog has written this post about the ongoing “Stripper Idol” lawsuit (blogged by yours truly here).  In the post, he argues that the commentators on Fox News covering the story argued on the Bill O’Reilly program that because no one would confuse a strip club with American Idol, there’d be no likelihood of confusion as to source of the services, and therefore the strip club wins.  Gene writes:

While I do enjoy O’Reilly, the fact of the matter is that his legal correspondents were dead wrong, as are most legal correspondents when the attempt to pontificate about matters relating to patents, trademarks or copyrights.

He then states that a trademark dilution theory is most likely to be successful, as “likelihood of confusion” need not be proven.  While I agree with him that the O’Reilly commentators were “dead wrong” in their assessment of the merits of the suit, I respectfully disagree that dilution is the best theory for FremantleMedia to pursue.

First, dilution is sticky because you have to prove that your mark is “famous.”  Under the Texas dilution statute, which may be more liberal than the Section 43(c) of  the Lanham Act, fame may be easier to prove.  But it’s still a significant threshold of proof that the plaintiffs must overcome.

Second, a number of recent federal decisions have noted that for a junior mark to dilute a senior mark, the junior mark must be nearly identical to the senior mark.  In other words, if we’re not going to look at consumer confusion, you have to prove a very close nexus between the allegedy famous mark and the allegedly diluted mark.  While STRIPPER IDOL and Design may be close the AMERICAN IDOL and Design design, it’s a hard burden to show that the more risque mark actually dilutes the distinctive quality of AMERICAN IDOL or tarnishes its image.

My continuing belief is that the best theory revolves around likelihood of confusion, not as to source of the goods, but as to sponsorship or affiliation. A typical survey question used to support Plaintiff’s case may ask something like “Do you believe this strip club had to get permission from anyone to use this logo? If so, who?”  I wouldn’t be surprised if a good percentage of people would respond “Yes; American Idol.”  That’s confusion as to sponsorship or affiliation.

Dilution is a good idea, too, particularly under Texas law (which may be more lenient than the federal standards), and I can’t wait to see how the case unfolds.

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Selling knock-off Rolexes is illegal? But everybody else is doing it!

This watch is for sale online.  A real Rolex or a $99 fake?

This watch is for sale online. A real Rolex or a $99 fake?

The Wisconsin State Journal brings us this story of Vincent Konicek, the owner and developer of toprolexreplica.com, who has surprisingly been sued for–can you believe it–selling knock-off Rolex watches over the Internet and cybersquatting.  His reply?  Essentially admit the conduct, assert the “everybody’s-doing-it” and “ignorance-of-the-law” excuses, and then admit that you need a lawyer:

Konicek said Wednesday that he started selling the fake Rolexes after a trip to China, where they were being sold on the street for $10. Konicek sells his own Chinese-made Rolexes for $99.

The lawsuit states that Rolex found out about the site in October and wrote to Konicek. He faxed back a letter five days later, saying that when they finish “suing all of the following merchants listed on Google search pages, call me and let me know you are going after me next.”

He attached two pages of a Google search that used the terms “Rolex replica.” Rolex concluded that Konicek is “fully aware” that what he is doing is illegal and willful, the lawsuit states.

But Konicek didn’t sound all that certain.

“I didn’t know I was going to run into copyright infringement,” he said. “I guess I’ll have to talk to an attorney and see what I can do.”

Here’s the Complaint (pdf). Among the surprising allegations:

  • Konicek registered the domain name in his own name, and left the whois record active. (Maybe he really didn’t know it was illegal?)
  • Rolex sent a cease and desist letter based only on the domain name before the site was active. (Isn’t this the time to at least consult a lawyer on the legalities of your enterprise?)
  • Konicek responded to the cease and desist with a Google printout of other replica sites and a message of ““[w]hen you finish suing all of the following merchants listed on Google search pages, call me and let me know you are going after me next” and went ahead with the site.

I’m slightly sympathetic to Vince.  It always amazes me that so many businesses can sell direct knock-offs of products and seemingly get away with it.  IP owners can register their marks with the Customs and Border Patrol to intercept shipments of counterfeit goods, but that only works when there’s actually an inspection.  There are also administrative procedures with the International Trade Commission to prevent import of products, but that doesn’t stop the piece-by-piece shipment of goods to the U.S. by mail from some foreign company selling on an anonymous website. And raiding mom-and-pop stores in Chinatown isn’t a way to build up goodwill.

I was fortunate enough to work for a company that marketed jewelry and watches in the United States that never sold fakes and was careful to ensure that its products were not likely to infringe any intellectual property rights of others.  And I would guess that the owners of that business would have shared Vince’s frustration that, just because he was an American who was trying to run a transparent business, he gets sued for hundreds of thousands of dollars and dozens of other websites just keep on counterfeiting.  Still, if all of your friends copy music on BitTorrent and get away with it, you can’t cry foul when the RIAA comes after you.  When you sell knock-offs, you can’t be surprised that the original IP owners will be upset.  But what really gets me is why Vince didn’t just go to a lawyer and figure out his options when he got the cease and desist letter. If he was lookin’ for a fight, he got one, and with all of his admissions, he’s in serious trouble.

But who knows–maybe he can become a successful merchant of Obama thongs. (Then again, that may get him into trouble, too.)

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If only Wagner played rhythm guitar?

Europeans are considering the extension of their copyright term for recordings, which is set at 50 years, with a consequence that the “session musicians,” those who merely perform on a recording virtually anonymously, get a bigger cut.

In this fantastic article from the British New Statesman, Tim Blanning looks at the debate from a historical perspective, noting that piracy and misappropriation was even more common in 17th and 18 Century Europe than it is today.  He also makes the argument that stricter copyright laws do not necessarily guarantee better music:

If modern copyright protection had been in place in Germany in the middle of the 19th century, Richard Wagner would have been a rich man. As his biographer Ernest Newman pointed out, it was the system that made him a beggar – and then condemned him for being a debtor.

One of the reasons why Wagner – and every other composer – was so keen to make a name in Paris was that legislation introduced during the French Revolution had given France the best intellectual property rights in Europe, and consequently the continent’s most vibrant musical culture. The result was that Auber, Meyerbeer and Halévy became very rich. That these three succeeded where Berlioz and Wagner failed ought to be sufficient warning that secure access to the market is not a guarantee of superior quality. When copyright protection came to Italy in the late 19th century, it marginalised the im presarios and prompted the now dominant music publishers to cosset their star composers. Whether the music produced under these new conditions by, say, Puccini is superior to that of Rossini, Bellini, Donizetti or the younger Verdi is a different matter.

Richard Wagner-- A guy who needed better lobbyists

Richard Wagner-- A guy who needed better lobbyists

I would disagree slightly that the purpose of copyright is to secure the best quality of expression possible.  Indeed, the purpose is to encourage creative folks to produce.  Musical ingenues would likely still follow their calling, even if they have to be insurance salesmen on the side. Copyright ensures quantity, people who might not want to produce but for the financial incentive  they could receive from royalties. Like the session musicians the EU seems to be so concerned about.

Blanning also examines the relationship between the composer and the public, noting that once the patronage system was abandoned for the “anonymous public” paying for performances, a tension was created:

The public knew what it liked – and that was easy listening in the shape of plenty of variety, good tunes, regular rhythms, and pieces that were not too long or difficult. Haydn’s symphonies fitted the bill, but Beethoven, especially in his later years, was altogether too demanding.

[..]

Composers have responded in all kinds of ways to the emergence of the philistine public as the major source of patronage, from “giving the punters what they want” to “doing my own thing regardless”.

Sounds pretty familiar, eh? And you thought that it was Clear Channel that brought about the “dumbing down” of music.

But it wasn’t until musicians could make money as performers that the music industry got going:

When the subsequent explosive growth of the public sphere across Europe created a new Eldorado, it was the composer-performers who did best, since it was they who could achieve a direct relationship with their audiences. Paganini and then Liszt dem onstrated just what riches and honours were now available to the charismatic musician. When Liszt left Berlin after a series of recitals in 1842, he did so in a carriage pulled by six white horses, accompanied by a procession of 30 other coaches and an honour-guard of students, as King Frederick William IV and his queen waved goodbye from the royal palace. As the music critic Ludwig Rellstab put it, he left “not like a king, but as a king”.

Recordings have greatly increased the wealth that can be produced by a performer, but, as Blanning noted “[e]ver since musicians emerged from the servile but cosy world of aristocratic patronage into the harsh daylight of the public sphere, the musical profession has been a pyramid with a broad base and a sharp top. The new opportunities brought by every major technological shift have also left many casualties among musicians unable or unwilling to adapt.”

This guy is worth 20 years

This guy is worth 20 years

Does this mean that Europeans should extend the copyright term? Or is 50 years’ worth of payments for an “anonymous” musician sufficient?  We in the United States have repeatedly answered this question with a strong “yes”– extending copyrights any time any work believed to be “valuable” nears its expiration term.  Sonny Bono’s singular enduring legacy as a U.S. Congressperson is the Sonny Bono Copyright Extension Act, a/k/a the Mickey Mouse Protection Act, signed into law in 1998, and extended the copyright term to life of the author plus 70 years, or 120 years after creation or 95 years after publication for works of corporate authorship.* It was lobbied for strongly by Disney, whose copyright in “Steamboat Willie” was then about to expire.**

Even assuming that the performance rights about to expire in Europe comprise some very “important” session work, perhaps governments have to realize that “important” may not mean “deserving of continued financial support”.  It’s unfortunate, however, that copyright extension seems to come ex post facto when “important” works are about to expire.  Because whether copyright exists to encourage “superior” work or exists just to encourage creative productivity, that incentive no longer exists after the work has been out and about in the world for 50 years.

But whether the US or the EU is beginning to structure its laws to encourage a future Wagner to be an anonymous rhythm guitar player instead of a composer, Blanning’s article is certainly worth a read.

Courtesy of techdirt.com.

* By the time the Act was passed in the US, the copyright term for authors in Europe was already life plus 70 years; performance rights last for fifty years, however.

** Recent evidence has suggested that, notwithstanding the Act, Steamboat Willie has faled into the public domain due to a failure of the authors to provide proper copyright notice

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