Tag Archives: copyright

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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Up against bars, news stations, local merchants sure, but God? No.

There have been numerous posts around the blogosphere about the NFL’s annual witch hunt for IP infringers (LIKELIHOOD OF CONFUSION’s Ron Coleman has a particularly good ones) who either (a) use the words “Super Bowl” in connection with a good, service or promotion, or (b) attempt to display the Super Bowl game itself on a television larger than 55 inches, or charge for admission to a “Super Bowl” viewing.

The Big Game? (I swear I havent copied this logo, and I disclaim any perceived affiliation with the NFL!)

"The Big Game"? (I swear I haven't copied this logo, and I disclaim any perceived affiliation with the NFL!)

Well, the NFL may be able to sue bars for putting the game on too big of a screen, or threaten injunctions against retailers who want to say something like “your Super Bowl party snack headquarters”, but it gets stopped in its tracks when it goes after God.  From this report from OneNewsNow (a division of the “American Family News Network”):

Churches can show the Super Bowl on big-screen TVs without fear of violating copyright laws.

In 2007, many churches cancelled Super Bowl parties after the National Football League (NFL) warned an Indiana church that it would be illegal to show the game on anything larger than a 55-inch screen. But members of Congress threatened to change copyright laws, and the NFL dropped the restriction beginning with this year’s Super Bowl.

[…]

“These organizations may show the game on any monitor, and we only ask these organizations to not charge admission — the game’s on free TV — and to hold the party at a location they usually use for other large gatherings,” [an NFL spokesperson] explains. According to the guidelines agreed to, churches may take up a donation to defray the cost of the event, if they desire.

That’s right, at least according to this report, members of Congress threatened to change copyright law to allow churches to show the Super Bowl on big screen TVs.  Because nothing says America like football and God, together under one roof.

Now, I’m all for churches showing the Super Bowl.  In fact, I belonged to a church that had a “SOUPER Bowl” party (a soup and sandwich potluck before the game started), and even though the broadcasting of the game was not part of the itinerary, I’m sure some people stayed at the church, and maybe even brought out the projection TV to show the game on a wall in the fellowship hall.  But why can’t the Fraternal order of Eagles do it? If anyone says that our country is secular, just look at the decision the otherwise IP-stodgy NFL has made here.

Further, why can’t my wife’s evite for our party have the words “Super Bowl” on the graphic, or even the Super Bowl logo? It’s certainly a descriptive  fair use (most likely a “traditional” fair use, although the “nominative” fair use exceptions may also apply) to describe the purpose for our events.    Perhaps Ron Coleman put it best:

It’s the overselling that’s offensive, because of course the NFL has a trademark right to SUPER  BOWL.  But like all IP owners, the league has set up a campaign not only to protect its legitimate rights but a buffer of illegimate intimidation-based quasi-rights around the real thing.

This buffer zone not only establishes a zone of litigation-based (not legal-based, litigation-based) early warning triggers around the real rights, such that any would-be infringer on the trademark would have to traverse the hopelessly expensive no-man’s land of illegitimate litigation threats.  It also has an even more insidious effect of actually causing an expansion of the original right itself.  It does this by actually enhancing the perceived “untouchability” of the real trademark, i.e., its isolation in the market, cinching the future results of consumer surveys and other indices (including, of course, the claim that mark holder “vigorously enforces” its rights) that could be used in a future trademark infringement or dilution claim. This is a privilege Congress, but far more so the judiciary, the latter of which almost never enforces the extant, if weak, fee-shifting provisions of the Lanham Act, have reserved exclusively to wealthy trademark owners.

So when you go to watch The Big Game this Sunday, at your church, at your home or at a purveyor of libations, please, take a moment, and enjoy the spectacle of intellectual property rights that abound.

… Oh, and call it the Super Bowl, just once. But maybe think twice before watching it on Frank’s 2000-inch TV.

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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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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.

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