A full
en-banc 11 judge panel was asked to reconsider their previous ill-advised opinion, and a majority managed to come to their senses by an 8 to 5 vote.
In reading the opinion, it is clear what a monstrosity the Copyright Act has become - not just substantively, but in form. What ought to be the simplest of all laws that governs the flow of speech and information for everyone has now reached a level of complexity akin to the tax code.
But if you are patient and are able to get through it, you will understand just how constipated the thinking is of the dissenting judges. (Be sure to read all of the footnotes as well. The majority opinion uses them to eviscerate the reasoning of minority.)
There are so many things wrong with so many issues discussed in the opinion that it is impossible to address in one sitting. I'll only touch upon a few here.
The truly bizarre opinion comes from Judge Birch's dissent, which begins on page 27 of the opinion. Is he really suggesting that if a magazine publisher digitally transfers its pages to a CD-ROM, no copyright violation takes place, but if you then add a search program to the CD-ROM's contents, the photographer who contributed to the magazine then has a valid claim for infringement?? Maybe I'm somehow misreading the opinion, but that is the conclusion I'm drawing from it.
Nope. I didn't misread the opinion. William Patry drew the same conclusion from Birch's original decision. Patry provides additional background on the case in his post. As Judge Burch notes in the 26th footnote to the opinion "Moreover, Professor Patry even refers to me as a 'Luddite' in his recent copyright treatise edition."
In my view, that is a rather charitable word to describe Judge Birch regarding his view of copyright law.
Also be sure to check out his views on pages 72-73 of the opinion that essentially states that it is actually OK for publishers to store historical archives, just as long as access to them is limited to small, elite group of "researchers and scholars" - not the general public.
Judge Anderson's dissent isn't quite as bizarre, but that's not saying all that much. It is still so obviously wrongheaded that it is painful to read. His reasoning can be summed up in the example he cites on page 77 of the opinion which I will paraphrase as such -
Photographer X contributed a photograph to National Geographic Magazine for its March 2000 issue on Africa. He retains copyright in the individual photograph, but National Geographic has the right to reproduce it as part of its 'collective work' - meaning its magazine issue.
Years later, National Geographic decides to publish an anthology of all its past issues that dealt only with the subject of Africa, omitting the issues on other subjects. As part of this anthology, the March 2000 issue was reproduced - bound in the volume along with all of the other issues pertaining to Africa.
Anderson claims that if National Geographic merely re-printed the March 2000 issue as a stand-alone copy, there would be no copyright problem. But by placing it in the context of a larger anthology of Africa, Photographer X now miraculously has a claim for copyright infringement - even though X's photograph is reproduced within the exact same context within the issue itself.
[The majority opinion points out in footnote 18 that Anderson's example should indeed be protected activity.)
What the hell is going on in that Circuit?? I realize that the majority thankfully won out in this case, but somebody still needs to switch out the Kool-Aide over there.
Variety
reports here on how copyrights have actually prevented the classic Fugitive television program from being re-distributed in its original form.
One of the reasons I tend to dismiss the notion of 'moral rights' for artists is because of how it is selectively enforced (in addition to the obvious dangers of creating a mutant form of 'super-copyright). The Fugitive is a clear example. If the concept applies to painted canvases, then why not television shows?
Of course this is not a new phenomenon. My own personal experience (and confession) with the problem can be found:
Here and here and here.
Wired
reports on this astonishing claim, and provides a copy of the MPAA's
legal brief to back it up.
In response to some of the
AP apologists, Jeff Jarvis at Buzz Machine
hammers the point home quite well:
What the AP and The New York Times' Hansell don't seem to realize is how hostile an act it is to send lawyer letters to individuals. They have armies of attorneys. We bloggers don't. The mere act of sending us a letter can cost us money out of our own pockets. Sending a lawyer letter is an assault.
Saul tweaks me about having a conversation first: "Mr. Jarvis, in particular, often talks about blogging as a conversation. It seems like the A.P. wants to talk, and many bloggers would prefer a temper tantrum to a discussion." Saul, I don't think you're cut out for a career as a playground monitor, for you don't have the most basic skill of the job: recognizing who started it. The AP sent its lawyer letters. It declared war.
And so, Saul, I'd say you should pose this to the AP: Why didn't it start a conversation an open conversation before starting war?
Patterico also defends the flanks.
The Times of Britain helps
explain why:
France to ban illegal downloaders from using the internet under three-strikes rule
Anyone who persists in illicit downloading of music or films will be barred from broadband access under a controversial new law that makes France a pioneer in combating internet piracy.
"There is no reason that the internet should be a lawless zone," President Sarkozy told his Cabinet yesterday as it endorsed the "three-strikes-and-you're-out" scheme that from next January will hit illegal downloaders where it hurts.
Under a cross-industry agreement, internet service providers (ISPs) must cut off access for up to a year for third-time offenders.
In a classical French approach the scheme will be enforced by a new £15 million a year state agency, to be called Hadopi (high authority for copyright protection and dissemination of works on the internet).
Read the whole thing here.
A notable (and legally correct) decision from the 10th Circuit Court of Appeals was just handed down that is well worth a read -
Meshworks Inc. v. Toyota [PDF file]
It essentially says if a digital artist independently creates a depiction of a copyrighted object that is too realistic looking, then his or her creation loses independent copyright protections since there is no 'originality' involved. This is so, even if it took hundreds of hours worth of labor to get the virtual object to look as realistic as possible.
This case is well written and serves as a great primer on the law of copyright in regards to the constitutional requirement of 'originality'. Anyone involved in the debate over IP should definitely check it out.
News coverage of the decision can be read [Posted at 06/18/2008 11:11 PM by Justin Levine on IP Law 
comments(0)]
Here is a quote from an
AP article suggesting that sites such as this one shouldn't be quoting from AP articles:
NEW YORK (AP) -- The Associated Press, following criticism from bloggers over an AP assertion of copyright, plans to meet this week with a bloggers' group to help form guidelines under which AP news stories could be quoted online.
Jim Kennedy, the AP's director of strategic planning, said Monday that he planned to meet Thursday with Robert Cox, president of the Media Bloggers Association, as part of an effort to create standards for online use of AP stories by bloggers that would protect AP content without discouraging bloggers from legitimately quoting from it.
People are right to be upset in this instance.
There are already 'guidelines' for quoting news stories online (and elsewhere) - the guidelines are called FAIR USE LAW (starting with section 107 of the Copyright Act). Many would justifiably argue that even the current fair use guidelines are too limiting with today's technology. But AP's efforts here are a clear attempt to roll back such rights and privileges even further - and should be forcefully rebuffed without compromise.
UPDATE: AP irony alert as the organization 'steals' content from a blog - using its content more extensively than many blogs use AP materials from single articles. Check out the details here.
[Posted at 06/17/2008 03:19 AM by Justin Levine on Fair Use comments(1)]
As a follow-up to my
previous post, an illuminating letter can be found
here.
The letter suggests that Kozinski and his staff were big NAPSTER fans.
I continue to maintain that trying to deflect this issue in the name of 'privacy' not only misses the mark, but is actually counterproductive for the ideas that this site stands for. Legal notions of 'privacy' can be twisted into another pernicious form of monopoly that is just as destructive as any overbearing IP law.
Assuming these allegations are true (and I hope that they are), it is far better to simply stand up and applaud a great judge for doing what we should all be encouraging: a re-shaping of fair use culture in the digital age.
Far from tarnishing his reputation, this should actually enhance Kozinski's reputation among defenders of informational freedom.
[Posted at 06/16/2008 01:30 PM by Justin Levine on Was Napster Right? comments(2)]
I think Alex Kozinski is one of the
best judges this nation has.
He is getting a lot of attention for storing humorous porn on his computer while presiding over an obscenity trial - but it turns out he may have had a nice stash of ripped MP3's on his site as well.
As the L.A. Times notes:
The judge emphasized that he never used appeals court computers to maintain his site.
The presence of copyrighted music files on Kozinski's site raises other issues.
More than a dozen MP3 tracks were listed, and they were neither excerpts nor used to illustrate legal opinions, which experts said might have qualified their copying as "fair use." The artists included Johnny Cash, Bob Dylan and Weird Al Yankovic.
Uploading such files could violate civil copyright laws if friends or members of the public visited the site and downloaded the songs, according to attorneys who have litigated file-sharing cases for both copyright holders and accused infringers.
Even if no one downloaded the songs, just making them available might run afoul of the law, said Corynne McSherry, staff attorney at the nonprofit Electronic Frontier Foundation, which often argues the other side of such issues.
Late last year, three of Kozinski's Circuit Court colleagues noted in a ruling that "the owner of a collection of works who makes them available to the public may be deemed to have distributed copies of the works," a violation of copyright law if done without permission.
"For him to actually be held liable would take some further investigation, but I think it's possible," McSherry said. "It's a strange story. It's surprising to me."
Kozinski was not asked in the Tuesday interview about the music files, and he could not be reached for comment Wednesday afternoon.
An attorney who has had a long running dispute with Kozinski maintains over at Patterico.com that Kozinski didn't just have MP3 files, but was actively sharing them through file sharing software. [Disclosure: I am also a guest blogger at Patterico.com]
Warning: The allegation of music file sharing at this post at Patterico.com also contains some adult humor related to the porn allegations.
I have mixed feelings on a number of levels:
1. If it turns out to be true that Kozinski knowingly shared music through peer-2-peer networks, that will make him even more endearing to me. More power to ya Judge!
2. As I have indicated before, Kozinski has always had a much more balanced view of intellectual property law compared to many others in legal circles. He has warned about how IP and 'publicity rights' can encroach on free speech when they are interpreted too broadly. He also has a healthy respect for fair use (unlike some of his contemporaries on the bench). Perhaps this episode will inspire him to start aggressively challenging conventional IP jurisprudence and enforcing fair use rights even more? [A long shot admittedly - but dare to dream....]
[Update: As Patterico notes here, Kozinski doesn't always come down on the side I would like him to as a matter of public policy. But I maintain that he is still better than most in this field.]
3. Despite my adoration here, part of me would like to see him aggressively prosecuted - and then have the Feds and the RIAA conduct a wide witch hunt against every judge and government official that might have 'unauthorized' MP3 files stored on their computer. Once the Washington establishment is finally confronted with their hypocrisy and are shown just how widespread this phenomenon is, it might force their hand to actually change the law in a positive direction. It has been said that if every Congressman were vigorously prosecuted for solicitation each time they engaged in it, prostitution would be legalized overnight. The same principle applies to file sharing.
Perhaps these last few speculations are just wistful daydreams on my part. I'd hate to see Kozinski be the one martyred for the cause in any event. But this whole episode still only gets me more upset with the copyright/RIAA status quo - not with America's greatest appellate judge.
[Posted at 06/12/2008 04:48 AM by Justin Levine on Was Napster Right? comments(5)]
The Supreme Court ruled unanimously that the patent exhaustion doctrine applies to so-called 'method patents'. Read the decision
here.
A company (LGE) bought up a bunch of patent portfolios (As is often the case, such companies contribute nothing to actual inventions - they merely buy up existing monopoly rights). The patents in question do not involve tangible inventions, but rather a 'process' relating to computer operations. These 'process' inventions are known as 'method patents'.(I have always felt that the entire concept of 'method patents' to be suspect, but that is a discussion for another post.)
LGE licensed its patents to Intel in order to allow Intel to make and sell microprocessors using the LGE method patents. A third party (Quanta), then purchased the microprocessors from Intel to manufacture their own computers using Intel chips. LGE then sued Quanta - arguing that they (Quanta) somehow violated LGE's patents. Got that?
Only one word to describe the claim: Surreal.
Fortunately, the Supreme Court saw through the nonsense and unanimously agreed that there was no patent infringement here.
Its a bit wonky, with lots of legalese, but the decision is worth reading for those who want to know the nitty-gritty insanity of our patent laws. LGE even had the cojones to argue that the patent exhaustion doctrine doesn't apply to method patents.
It is only being done in small increments, but the Supreme Court is slowly restoring some sanity back to attempts at patent law overreach.
More at Patently-O here.
More details on the case at the ScotusWiki here.
AP weighs in with case coverage here.
[Posted at 06/09/2008 02:10 PM by Justin Levine on IP Law comments(1)]
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