May 16, 2007

Perfect 10 Injunction Overturned Vacated [5:57 pm]

Perfect 10, Inc. v. Amazon [local copy]

In this appeal, we consider a copyright owner’s efforts to stop an Internet search engine from facilitating access to infringing images. Perfect 10, Inc. sued Google Inc., for infringing Perfect 10’s copyrighted photographs of nude models, among other claims. Perfect 10 brought a similar action against Amazon.com and its subsidiary A9.com (collectively, “Amazon.com”). The district court preliminarily enjoined Google from creating and publicly displaying thumbnail versions of Perfect 10’s images, Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828 (C.D. Cal. 2006), but did not enjoin Google from linking to third-party websites that display infringing full-size versions of Perfect 10’s images. Nor did the district court preliminarily enjoin Amazon.com from giving users access to information provided by Google. Perfect 10 and Google both appeal the district court’s order. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).

The district court handled this complex case in a particularly thoughtful and skillful manner. Nonetheless, the district court erred on certain issues, as we will further explain below. We affirm in part, reverse in part, and remand.

Later: WaPo’s Google Wins Appeal on Copyright of Nude Images (pdf)

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A Real Question [4:22 pm]

How much *should* we save? Saving Our Digital Heritagepdf

The importance of developing sensible plans to preserve our digital heritage cannot be minimized. We can’t save it all, nor do we want to. It’s also critical that we agree on how to save this data. In the next 100 years, we will go through dozens of generations of computers and storage media, and our digital data will need to be transferred from one generation to the next, and by someone we trust to do it.

The National Digital Information Infrastructure and Preservation Program provides a good start, and Congress has an opportunity to restore $21.5 million requested by the Library of Congress to continue the program and sustain the partnerships needed to fulfill the critical task of preserving our nation’s important born-digital information.

It would be a national and a global shame if our most valuable born-digital knowledge, like the ancient holdings at Alexandria, were lost forever.

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Illegal Speech — Who’s Responsible? [2:45 pm]

Web Site Is Held Liable for Some User Postings

A Web site that matches roommates may be liable for what its users say about their preferences, a fractured three-judge panel of the federal appeals court in San Francisco ruled yesterday.

The suit was brought by two California fair housing groups that objected to postings on the matching service, Roommate.com. The groups said the site violated the Fair Housing Act by allowing and encouraging its users to post notices expressing preferences for roommates based on sex, race, religion and sexual orientation.

The ruling knocked down the main defense of the site. In 1996, Congress granted immunity to Internet service providers for transmitting unlawful materials supplied by others. Most courts have interpreted the scope of that immunity broadly.

Fair Housing Council v. Roomates.Com, LLC [local copy]

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The More We Know, The Better We Can … Sell? [2:38 pm]

CRM+DBM+WWW=Online Brand Marketing — What *else* might this data be used for? Your Ad Goes Here

Indeed, many in the industry regard display advertising that can reach specific audiences as the next big online opportunity — the postsearch wave, the Internet ad market 2.0.

[...] The process of delivering relevant search-based ads is comparatively easy — a typed search term sets off related text ads, which appear next to the results, exposing consumers to sundry, generally relevant, advertisers.

Brand advertising, however, starts higher up on the marketing food chain; it is meant to foster brand and product awareness as well as purchases. The goal is to deliver select audiences — of thousands, even millions — to mass marketers.

The new science of online display advertising involves a potent mix of behavioral targeting, social networking algorithms, predictive economics, pricing optimization and other mathematical strategies.

These geeky tools are used to address the marketer’s quandary, well articulated by John Wanamaker, the 19th-century Philadelphia merchant who said that half the money he spent on advertising was wasted, but he didn’t know which half.

[...] The most common technique for identifying an audience is called behavioral targeting, which tracks, analyzes and predicts online behavior based on where you (actually your browser software) have gone before on the Internet. The ad targeters cull vast quantities of Web-viewing behavior and other data, like the speed of your Internet connection, the time of day you visited a site, whether it was done from work or home and even associated ZIP codes.

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Evolving Music Business Models [1:37 pm]

A Band Struts Again, Under an M.B.A. Batonpdf

Although he had warned Mr. Benson that the studio was a losing proposition, Mr. Lickona said, “In retrospect, it was a pretty smart business decision.”

[...] Owning a studio has cut production costs and allowed the Wheel to create specialty projects, Mr. Benson said. The goal was to beat the classic record industry system, in which the label pays for a band’s recording, promotion and distribution, then deducts the expenses from the band’s royalties until it is repaid, which in Mr. Benson’s case was almost never. Worse, the record company owned all rights to the music.

With his own studio, the goal was to create CDs that the band would own and that could turn a profit with far fewer sales.

“There are 100,000 to 150,000 people who are passionate fans that spend $20 to $100 a year on the Wheel,” Mr. Schwarz said. “The Internet allows us to capture that.”

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EMI Is Agnostic [1:35 pm]

And an immediate competitor to iTunes’ DRM-free product is born: Amazon to Sell Music Without Copy Protection

Amazon, the Internet’s most successful seller of physical CDs, today announced plans to introduce a music download store later this year, selling songs and albums in the MP3 format without the anti-copying protection used by most online music retailers.

Selling songs as MP3 files means that customers can transfer their music without limits to any computer, cellphone or music playing device, including Apple’s iPod and Microsoft’s Zune.

The music will be from a major label, EMI, and 12,000 independent music companies that have chosen not to use the copy-restricting software known as digital rights management, or D.R.M.“We are offering a great selection of music that our customers love in a way they clearly desire, which is D.R.M.-free, so they can play it on any device they own today or in the future,” said Bill Carr, Amazon’s vice president for digital media.

Later, other coverage: LATimes’ Amazon to sell unrestricted songs (pdf); NYTimes’ Amazon to Sell Music Without Copy Protection

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If At First You Don’t Succeed… [1:32 pm]

You work even harder to make an insane investment payoff: Rhett, Scarlett and Friends Prepare for Yet Another Encore

Less a conventional sequel than a retelling from Rhett Butler’s point of view, the new book, to be published by St. Martin’s Press in November, is written by Donald McCaig, a former advertising copywriter turned Virginia sheep farmer who has written well-reviewed novels about the Civil War.

[...] With the publication of “Rhett Butler’s People,” St. Martin’s will at last have the chance to begin recouping the $4.5 million advance it agreed to pay the Mitchell estate for the right to publish a second sequel. The publisher has high hopes for the book’s commercial prospects, with an anticipated first print run of more than a million copies.

But the new book is also, in some senses, a bid for redemption by the estate of Margaret Mitchell, who died in 1949 and steadfastly refused to write a sequel to “Gone With the Wind” herself. When Alexandra Ripley’s “Scarlett,” the first sequel, was published in 1991, it was a blockbuster best seller — it has sold more than six million copies to date worldwide — but suffered a critical drubbing. (Five years ago Ms. Mitchell’s estate unsuccessfully tried to block publication of “The Wind Done Gone,” Alice Randall’s unauthorized parody told from the perspective of a slave whose mother, Mammy, was Scarlett’s nanny.)

This time around, the lawyers who manage the business affairs of the Mitchell estate aimed higher. “What we were most interested in was a product of high literary quality,” said Paul Anderson Jr., one of three lawyers who advises the estate, held in trust for the benefit of Ms. Mitchell’s two nephews. “We were looking for something not to make a quick buck, but something that would be lasting.”

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Ohio U Declares P2P Lockdown Victory [9:12 am]

Unauthorized P2P file sharing suppressed

Since April 27, the information technology team has shut off 240 network users for unauthorized file sharing. That includes a file-sharing setup operating within the university network.

“After just two weeks, Recording Industry Association of America notices of illegal file sharing detection have dropped to nearly zero as compared with 10 to 50 per day before,” Bible said. RIAA recently mounted a prelitigation campaign to eliminate illegal file sharing on campuses, including Ohio University.

“I am pleased that we had such good results in a short time,” Bible said. “And we did it without having to restrict legal uses of P2P technology.”

For background, see Ohio U. Restricts File Sharing on Ohio University announces changes in file-sharing policies

From the Ohio U FAQ:

How do I tell if the software I’m running is going to get me blocked?

Here’s a partial list of some of the more common P2P programs that have the potential to trigger our block:

  • Ares
  • Azureus
  • BitComet
  • BitLord
  • BitTornado
  • BitTorrent
  • FlashGet
  • Gnutella
  • KaZaA
  • LimeWire
  • Morpheus
  • Shareaza
  • uTorrent

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