Achte-Neunte v. Does Activity

BBC News – Court questions net pirate hunt

It wants the court to throw out thousands of lawsuits against alleged illegal file-sharers, brought by the US Copyright Group.

EFF argues the mass litigations deprive individuals of a fair trial.

The case has implications for other countries pursuing similar cases.

The US Copyright Group, a Washington-based law firm, has filed lawsuits on behalf of seven film-makers, accusing over 14,000 individuals of downloading films illegally, including Oscar-winning movie The Hurt Locker.

[…] EFF and other groups have been concerned about the tactics being employed by some law firms pursuing alleged file-sharers.

The methods used to track down infringers are not fool-proof because they identify the computer that downloaded the material rather than the actual individual.

The EFF’s Achte-Neunte v. Does webpage; their press release — EFF Argues Against Mass Copyright Infringement Lawsuits in Wednesday Hearing

Depressing, But Unsurprising

Glenn Greenwald points to a Kennedy School of Government student paper that confirms what anyone who regularly reads a newspaper has noticed over the past decade: Torture at Times: Waterboarding in the Media


The current debate over waterboarding has spawned hundreds of newspaper articles in the last two years alone. However, waterboarding has been the subject of press attention for over a century. Examining the four newspapers with the highest daily circulation in the country, we found a significant and sudden shift in how newspapers characterized waterboarding. From the early 1930s until the modern story broke in 2004, the newspapers that covered waterboarding almost uniformly called the practice torture or implied it was torture: The New York Times characterized it thus in 81.5% (44 of 54) of articles on the subject and The Los Angeles Times did so in 96.3% of articles (26 of 27). By contrast, from 2002?2008, the studied newspapers almost never referred to waterboarding as torture. The New York Times called waterboarding torture or implied it was torture in just 2 of 143 articles (1.4%). The Los Angeles Times did so in 4.8% of articles (3 of 63). The Wall Street Journal characterized the practice as torture in just 1 of 63 articles (1.6%). USA Today never called waterboarding torture or implied it was torture. In addition, the newspapers are much more likely to call waterboarding torture if a country other than the United States is the perpetrator. In The New York Times, 85.8% of articles (28 of 33) that dealt with a country other than the United States using waterboarding called it torture or implied it was torture while only 7.69% (16 of 208) did so when the United States was responsible. The Los Angeles Times characterized the practice as torture in 91.3% of articles (21 of 23) when another country was the violator, but in only 11.4% of articles (9 of 79) when the United States was the perpetrator.

As Greenwald notes, that’s why they’re called the “Establishment media.” Too bad that’s not what the phrase used to mean.

Rumblefish and (Amateur) Content Creation

Rumblefish to Offer Music for YouTube Users [pdf]

Publishing a video with copyrighted music requires a license for the song. And securing that can be a cumbersome task — track down the record label, make a deal — especially for amateurs just looking to post a video of the family vacation.

But on Tuesday, the music licensing company Rumblefish is introducing a service that allows users to buy a license to a copyrighted song for $1.99. For that price, the user gets the full version of the song and can edit it as well.

The new service, Friendly Music, can be used only for noncommercial purposes — like posting family or wedding videos online. Any commercial purpose, like including it in a video intended to sell a product, requires a different license.

Changes at Pirate Bay

BBC News – Pirate Bay founding group disbands

The Swedish anti-copyright group Piratbyran, which gave rise to the popular file-sharing website The Pirate Bay has disbanded.

Marcin de Kaminski, a founder of Piratbyran, which means “piracy bureau” in English, told BBC News “we don’t feel we are needed” any more.

But the group also decided to close following the death of a co-founder.


There’s at least the hope that the Court’s eventual definition of what constitutes a patentable business method will be hugely restrictive but, as the NYTimes article concludes, for the moment this decision can easily be construed as part of the Obama Economic Stimulus Package for patent attorneys: Justices Take Broad View of Business Method Patents [pdf]

The door to the patent office should remain open to those who create methods of doing business, the Supreme Court said in a long-awaited decision announced on Monday.

Many legal analysts had anticipated that the court would substantially narrow the rules regarding patents on business methods. The questions the justices raised during oral arguments in November made it clear that several were skeptical of the course of modern patent law.

[…] The decision, however, closed off no options to patent seekers, though the justices unanimously declared that the process at issue in the case could not be patented.

The decision, Bilski et al. v. Kappos, seems to have turned on the narrow refinement and then application of the “machine-or-transformation test”, but I’m not done reading.

First, we have the assertion that the machine or transformation test is only an instrument for investigating the “process”-status of a claim:

This Court’s precedents establish that the machine-or-transformation test is a useful and important clue, aninvestigative tool, for determining whether some claimed inventions are processes under §101. The machine-or-transformation test is not the sole test for decidingwhether an invention is a patent-eligible “process.”

Ok – fine and good. But, this subsequent assertion is fundamentally inconsistent:

[The Information] Age puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles. Nothing in this opinion should be read to take a position on where that balance ought to be struck.

This is different, to me. After all, I would argue that *all* patents, by definition, “[grant] monopolies over procedures that others would discover by independent, creative application of general principles.” That’s the whole point, I thought — that’s why you get a patent instead of relying upon trade secret law. So, this looks like the beginning of where the argument gets muddled.

And, as an engineer, I am sad that the Court elects to rely upon a dictionary for its definition of a “process” — and one from 1954 at that!

See, e.g., Webster’s New International Dictionary 1548 (2d ed. 1954) (defining “method” as “[a]n orderly procedure or process … regular way or manner of doing anything; hence, a set form of procedure adopted in investigation or instruction”).

Note that Justice Stevens’ concurring decision starts his challenge to the majority opinion’s choice not to simply reject business method patents altogether with the following:

Before explaining in more detail how I would decide this case, I will comment briefly on the Court’s opinion. The opinion is less than pellucid [Ed: nice!!] in more than one respect, and, if misunderstood, could result in confusion or upset settled areas of the law. Three preliminary observations may be clarifying.

First, the Court suggests that the terms in the Patent Act must be read as lay speakers use those terms, and not as they have traditionally been understood in the context of patent law. […] As I will explain at more length in Part III, infra, if this portion of the Court’s opinion were taken literally, the results would be absurd: Anything that constitutes a series of steps would be patentable so long as it is novel, nonobvious, and described with specificity. But the opinion cannot be taken literally on this point. […]

Second, in the process of addressing the sole issue presented to us, the opinion uses some language that seems inconsistent with our centuries-old reliance on the machine-or-transformation criteria as clues to patentability. Most notably, the opinion for a plurality suggests that these criteria may operate differently when addressing technologies of a recent vintage. […]

“Safe Harbor” and YouTube

Judge Sides With Google in Viacom Suit Over Videos [pdf]

In a major victory for Google in its battle with media companies, a federal judge in New York on Wednesday threw out Viacom’s $1 billion copyright infringement lawsuit against Google’s YouTube, the No. 1 Internet video-sharing site.

[…] The judge granted Google’s motion for summary judgment, saying the company was shielded from Viacom’s copyright claims by “safe harbor” provisions of the Digital Millennium Copyright Act.

Those provisions generally protect a Web site from liability for copyrighted material uploaded by its users as long as the operator of the site takes down the material when notified by its rightful owner that it was uploaded without permission.

The issue, of course, is what “safe harbor” means. From the decision:Viacom v. YouTube

[T]he critical question is whether the statutory phrases “actual knowledge that the material or an activity using the materials on the system or network is infringing,” and “facts or circumstances from which infringing activity is apparent” in § 512(c)(1)(A)(i) and (ii) mean a general awareness that there are infringements (here, claimed to be widespread and common), or rather mean actual and constructive knowledge of specific and identifiable infringements of individual items.

Upon consideration of the legislative history of the DMCA, the judge concludes:

The tenor of the foregoing prvisions is that the phrases “actual knowledge that the material or an activity” is infringing, and “facts or circumstances” indicating infringing activity, describe knowledge of specific and identifiable infringements of particular individual items. […]

The judge similarly shows that the case law does not support the more stringent requirement, ironically noting that Viacom’s citing of Grokster runs counter to an email from Viacom’s General Counsel sent in 2006 that favorably cites YouTube’s behavior in contrast with Grokster’s.

It’s the “Other points” section that merits more careful examination, I think. First, Viacom claimed that the multiplication of copies that takes place as a consequence of posting anything online is outside the safe harbor, which the judge declares “the provision of such services, access, and operation of facilities are within the safe harbor [….]”

Part (b), a throwaway, looks particularly notable, and I simply quote for your own assessment

The safe harbor requires that the service provider “not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity [….]” §512(c) (1) (B). The “right and ability to control” the activity requires knowledge of it, which must be item-specific. (See Parts 1 and 2 above.) There may be arguments whether revenues from advertising, applied equally to space regardless of whether its contents are or are not infringing, are “directly attributable to” infringements, but in any event the provider must know of the particular case before he can control it. As shown by the discussion in Parts 1 and 2 above, the provider need not monitor or seek out facts indicating such activity. If “red flags” identify infringing material with sufficient particularity, it must be taken down.

Later: Hometown papers’ editorials unpredictable, for once; discussing the following editorials — the LATimes’ Online piracy: As a mere host, YouTube is protected from liability [pdf]; the SF Chronicle’s On the YouTube vs. Viacom Case: Our antiquated copyright laws [pdf]


Biff! Pow! Comic artists clash over copyrights — [pdf]

Sci-fi writer Neil Gaiman and former Spider-Man artist Todd McFarlane’s attorneys have been sparring for years over Gaiman’s claims to a handful of characters created for McFarlane’s classic Spawn series, which features a murdered CIA agent who becomes a demon.

Now Gaiman insists McFarlane owes him for three more characters — a demon named Dark Ages Spawn and two avenging angels in thong bikinis. A federal judge in Madison has scheduled a Monday hearing to listen to both sides’ arguments.

The long-running case underscores the tension among comic artists as they vie for rights to even minor characters in an industry that has grown more lucrative over the past 20 years through movies, graphic novels and international distribution.

Local Lessons In “Theft”

Hey, if downloading is “theft,” what shall we call this? Pay to play [pdf]

Across New England, church coffeehouses, library cafes, and eateries that pass the hat to pay local musicians or open their doors to casual jam sessions are experiencing a crackdown by performance rights organizations, or PROs, which collect royalties for songwriters.

Copyright law requires that any venue where music is performed publicly, from cheerleading competitions and mortuaries to nightclubs and stadiums, have a performance license. Recorded music is subject to license fees as well. The three US-based PROs — ASCAP, BMI, and SESAC — collect the fees and distribute them to their members.

With the music industry in steep decline, PROs are ramping up their pursuit of the little guys, who acknowledge that songwriters are entitled to compensation but are angry and frustrated at what they see as unfair targeting of small businesses and nonprofits that make no money from the music they present.

[…] Most coffeehouses would be eligible for the minimum fee of $200 to $400. But even that is roughly a quarter of the profits one South Shore summer music series, at a rural education center, brings in during an entire season of concerts.

“I think the artists should be paid something for their work, but at the same time you shouldn’t be hitting these coffeehouses that are volunteer-driven and lucky to be breaking even,’’ said the center’s executive director, who has been presenting music for 15 years and began getting letters from ASCAP a year ago. “It really feels like extortion.’’


Later: See also Copyright: The Elephant in the Middle of the Glee Club from Balkinization. [also see New iPhone Apps Put You in the Mixpdf]

So what should you do in real life if you and your friends, inspired by Glee, want to make a mash-up, or a new music video for a popular song? Should you just leave this creativity to the professionals, or should you become dirty, rotten copyright violators?

Current law favors copyright holders. […]

Defenders of modern copyright law will argue Congress has struck “the right balance” between copyright holders’ interests and the public good. They’ll suggest the current law is an appropriate compromise among interest groups. But by claiming the law strikes “the right balance,” what they’re really saying is that the Glee kids deserve to be on the losing side of a lawsuit. Does that sound like the right balance to you?

The Trials of Sisyphus

A look at the absolute lack of progress in the thinking about this topic [especially the comments] — everybody wants, nobody thinks: “Hurt Lockers” illegal downloading wars [pdf]

On Monday, “Hurt Locker” producer Nicolas Chartier made good on his promise to file suit against Internet users who downloaded the movie via BitTorrent. The suit, filed in a D.C. federal court, targets 5,000 unnamed users via their IP addresses, which lawyers for Chartier’s Voltage Pictures will attempt to match up with flesh-and-blood individuals — and, of course, their bank accounts.

The practical merits of the lawsuit aside, Chartier’s actions, and particularly his angry rhetoric, have become a flashpoint for arguments over the legal and ethical implications of sharing content over the Internet. […]

From the EFF: EFF Asks Judges to Quash Subpoenas in Movie-Downloading Lawsuits; full set of materials at Achte-Neunte v. Does.

And, of course, we still have things like this happening, too — Rand Paul ordered to stop playing Rush — and what does it mean that the blog post embeds a YouTube video of the playing of the song in question?

A lot of wanting; not a lot of thinking.

Welcome To The Jungle

When Companies Respond to Online Criticism With Lawsuits [pdf]

Web sites like Facebook, Twitter and Yelp have given individuals a global platform on which to air their grievances with companies. But legal experts say the soaring popularity of such sites has also given rise to more cases like Mr. Kurtz’s, in which a business sues an individual for posting critical comments online.

The towing company’s lawyer said that it was justified in removing Mr. Kurtz’s car because the permit was not visible, and that the Facebook page was costing it business and had unfairly damaged its reputation.

Some First Amendment lawyers see the case differently. They consider the lawsuit an example of the latest incarnation of a decades-old legal maneuver known as a strategic lawsuit against public participation, or Slapp.

The label has traditionally referred to meritless defamation suits filed by businesses or government officials against citizens who speak out against them. The plaintiffs are not necessarily expecting to succeed — most do not — but rather to intimidate critics who are inclined to back down when faced with the prospect of a long, expensive court battle.