Another Blow from the DC Circuit

In DC Circuit Rejects Challenge to Congress Removing Works from the Public Domain, Ernest Miller points to Luck’s Music Library v. Gonzalez

WILLIAMS, Senior Circuit Judge: Plaintiffs challenge the constitutionality of § 514 of the Uruguay Round Agreements Act (“URAA”), Pub. L. No. 103-465, 108 Stat. 4809, 4976 (1994), codified at 17 U.S.C. §§ 104A, 109, which implements Article 18 of the Berne Convention for the Protection of Literary and Artistic Works. The section establishes copyright in various kinds of works that had previously entered the public domain, and plaintiffs argue that any such provision violates the Copyright and Patent Clause of the U.S. Constitution. U.S. Const. art. I, § 8, cl. 8. Finding no such bar in the Constitution, the district court dismissed plaintiffs’ claims. (A district court in Colorado has recently agreed. Golan v. Gonzales, No. 01-B-1854, 2005 WL 914754 (D. Colo. Apr. 20, 2005).) We review the district court’s order de novo, Barr v. Clinton, 370 F.3d 1196, 1201 (D.C. Cir. 2004), and affirm.

Later: Scrivener’s Error comments

Incentives and Behavioral Change

Scotland Adds iPods to Menu

Whatever romantic notions we American descendants of the clans imagine, our lions of the north lately are more often thought of as connoisseurs of the deep-fried Mars bar (and deep-fried haggis, pizza and Scotch eggs). The region’s own outgoing chief medical officer said that it could take an entire generation to dispel Scotland’s reputation of being a land of binge drinkers, heavy smokers and heart-disease sufferers.

Enter Apple.

The Scotsman newspaper last week reported that Glasgow’s school system is offering rewards — the iPod chief among them — to bribe their secondary school students into eating healthier foods […]

What’s The Difference Between A Utility and a Virus?

Microsoft wants Congress to set the definition — the “benefits” of pursuing legislative responses to a problem: Microsoft seeks protection from spyware firms

Microsoft wants the Senate to rewrite anti-spyware legislation in order to protect companies that provide spyware removal utilities.

The software maker warned Tuesday that two bills approved by the House of Representatives this week fail to prevent “frivolous lawsuits” filed by adware and spyware companies that are upset when their code is removed.

H.R.29 and H.R.744

Techdirt: Microsoft Wants Spyware Laws To Say Spyware Name Is In The Eye Of The User

DRM In Practice: A Look at Office 12

While HIPAA, etc. are cited as the reason that Office 12 will come with DRM tools, there’s also the question of who might elect NOT to employ software that can “bottle up” one’s work: Facing ‘new world of work,’ Microsoft locks up Office | CNET

“We know that we’ve got an opportunity to provide IT the types of controls that they need for this concept that we call the ‘million dollar document,’ which is one of those documents or spreadsheets that (contain) a million dollars or more worth of IP (intellectual property),” Chris Capossela, a corporate vice president in Microsoft’s Information Worker unit, said during a meeting at a recent company-sponsored CEO summit here. “Those have got be something that IT could control. But we still want people using Excel to be able to build them.”

With the next version of Office, Microsoft plans to let businesses set rules, enforced by server-based software, to determine how those documents are handled. The shift is just one of several trends the software giant is labeling part of a “new world of work” that its next generation Office software will address. But at the same time that Microsoft is saying it understands the shifting tides, it’s trying to make sure it doesn’t miss any undercurrents.

[…] Gartner’s Austin tried to make the case that, despite the recent shift to increased regulation, the ultimate trend in technology will be toward the democratization of information with less central control. However, that idea was shot down by both Greifeld and Ozzie.

Ozzie said that if a technology is to be successful, it needs to meet both the needs of the individuals using the product as well as the company’s overall goals. Many a company, he said, has deployed a sales force automation tool that it thought would have great benefits, only to find that no one used it because it was too difficult.

Ernest’s take – MS to Lock Up Office Documents, Lock In Customers (Ernest Miller)

An Industry In Transition

Album delays hit profits at EMI

The world’s third largest music firm, EMI, has suffered a 13% fall in profits after delays to two key albums from revenue-drivers Coldplay and Gorillaz.

[…] [D]igital sales rocketed to £49.7m from £15.1m a year earlier.

Downloaded digital sales now account for 2.5% of group revenues, helping EMI recover from years of online piracy.

The music industry is counting on digital music sales downloaded from websites such as iTunes and Napster to drive profits growth, and is clamping down on illicit file-sharers by taking them to court.

Effective Use of Our Tax Dollars

Never too young for a copyright lesson

Think schools are just scaring kids about drugs, sex and poor study habits these days? Now you can put illegal file trading on the list.

Sixth-graders in American Fork, Utah, will start their journey to middle school on Tuesday with a warning from the director of the U.S. Patent and Trademark Office about the ills of illegally downloading music, movies and games from the Web.

Director Jon Dudas is scheduled to deliver this year’s commencement speech at Legacy Elementary School, situated in the suburbs south of Salt Lake City.

Missed This: HR.2408

Zoe Lofgren strikes:: HR.2408Bill Summary & Status


Title: To amend title 17, United States Code, to allow abandoned copyrighted works to enter the public domain after 50 years.

Sec. 1

[…] (4) Current law continues to grant copyright protection to works published as early as 1923. See 17 U.S.C. 304. Yet the vast majority of older works are no longer commercially available. One study indicates that only 2 percent of works between 55 and 75 years old continue to retain commercial value. Eldred v. Ashcroft, 123 S. Ct. 769, 804 (2003) (Breyer, J., dissenting). Nevertheless, under current law, these abandoned works will not enter the public domain for many years. This prevents commercial and noncommercial entities from building upon, cultivating, and preserving abandoned works. Indeed, while older works are less likely to retain commercial value, they are more likely to `prove useful to the historian, artist, or teacher.’ Eldred v. Ashcroft, 123 S. Ct. 769, 805 (2003) (Breyer, J., dissenting).

(5) Thus, the existing copyright system functions contrary to the intent of the Framers of the Constitution in adopting the copyright clause and the intent of Congress in enacting the Copyright Act. Neither is intended to deprive the public of works when there is no commercial or copyright purpose behind their continued protection. It is, therefore, necessary to establish a mechanism by which abandoned American copyrights can enter the public domain.

A Look At The Competing Music eTailing Options

Music Subscription Services Reach for an Edge

Napster Inc. should dump its “Do the Math” ad campaign before it gets embarrassing. By any calculation, its all-you-can-download Napster To Go service can’t compete with the subscription plans just launched by RealNetworks Inc. and Yahoo Inc.

These new offerings remedy the glaring flaw of Napster To Go — the way it seems to serve the record labels’ interests a little too well. Napster To Go’s $14.95 monthly fee permits subscribers to collect all the music they want and listen to it on some Windows Media-compatible digital music players. But if they stop paying, the music stops playing — and getting a permanent copy that can be burned to CD requires purchasing it anew at the full list price of 99 cents.

Exposure, Any Way They Can

Back to patronage music? Recall, after all, that court composers were brought in to enhance the “brand” of the patron. Musicians Market Brands to Sell Their Latest Music

Well-known bands and singers, along with their labels, are teaming with major advertisers and agencies for promotions that seek to sell brand-name products as well as CD’s or downloads. The marketers benefit from the star power of artists ranging from the pop singer Gwen Stefani to the hip-hop group Black Eyed Peas to the crooner Michael Bublé.

In turn, the record labels, with dwindling budgets to promote individual releases in an increasingly crowded market, benefit from the multimillion-dollar budgets the advertisers typically put behind the campaigns.

[…] The deals represent more sophisticated versions of traditional tactics that have brought together music acts and marketers for decades. For instance, in the 1960’s Coca-Cola had radio commercials using artists like Ray Charles, Marvin Gaye and Tammi Terrell, Aretha Franklin and the Supremes.

The major difference between now and then is timing. Previously, the artists may or may not have released new singles or albums when they made commercials. Today, the campaigns are timed to coincide with the musicians’ latest releases to try to capitalize on their time in the limelight peddling their tunes.

Will The Weblog Set China “Free”?

Nicholas Kristof seems to think so: Death by a Thousand Blogs

The collision between the Internet and Chinese authorities is one of the grand wrestling matches of history, visible in part at

That’s the Web site of a self-appointed journalist named Li Xinde. He made a modest fortune selling Chinese medicine around the country, and now he’s started the Chinese Public Opinion Surveillance Net – one of four million blogs in China.

Mr. Li travels around China with an I.B.M. laptop and a digital camera, investigating cases of official wrongdoing. Then he writes about them on his Web site and skips town before the local authorities can arrest him.

[…] All this underscores how the Internet is beginning to play the watchdog role in China that the press plays in the West. The Internet is also eroding the leadership’s monopoly on information and is complicating the traditional policy of “nei jin wai song” – cracking down at home while pretending to foreigners to be wide open.

[…] So where is China going? I think the Internet is hastening China along the same path that South Korea, Chile and especially Taiwan pioneered. In each place, a booming economy nurtured a middle class, rising education, increased international contact and a growing squeamishness about torturing dissidents.

President Hu has fulminated in private speeches that foreign “hostile forces” are trying to change China. Yup, count me in – anybody who loves China as I do would be hostile to an empty Mao suit like Mr. Hu. But it’s the Chinese leadership itself that is digging the Communist Party’s grave, by giving the Chinese people broadband.