Something To Learn More About

The Fair Use Index:

This Fair Use Index is a project undertaken by the Office of the Register in support of the 2013 Joint Strategic Plan on Intellectual Property Enforcement of the Office of the Intellectual Property Enforcement Coordinator (IPEC). Fair use is a longstanding and vital aspect of American copyright law. The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, internet/digitization, parody).

The NYTimes Tries A Napster Wrapup

The video accompanying the NYTimes “Retro Report” on Napster,
Grappling with the ‘Culture of Free’ in Napster’s Aftermath [pdf] is pretty good, although the article text still hews to the “piracy” framing of the issue. Unfortunately, I have no idea how to embed the NYTimes video here, but it’s worth a viewing. A chance to go down memory lane…

The video, along with some interviews with artists, can also be viewed at the associated Making Music in the Digital Age webpage. Ingrid Michaelson, Amanda Palmer, David Lowery, and Tommy Emmanuel give their own takes, which can give you certain pause — particularly their own difficulties reconciling the economics of production with the production of their art. Amanda Palmer, in particular, asks a really good question, while Tommy Emmanuel and David Lowery offer opposing perspectives on the realities of the music business today. Ingrid Michaelson’s interview, more than any of the other three, illustrates the confusion that is the legacy of the peculiar dialectics of music production over the past century, and the way that the art, law, and technology have evolved to sustain the peculiar framings of “creativity.”

Supreme Court Rules Against Aereo

See American Broadcasting Cos. v. Aereo, Inc.. Another blow to the notion that legislated rights are strictly constructed. Scalia, in his dissent, says it best:

This case is the latest skirmish in the long-running copyright battle over the delivery of television programming. Petitioners, a collection of television networks and affiliates (Networks), broadcast copyrighted programs on the public airwaves for all to see. Aereo, respondent, operates an automated system that allows subscribers to receive, on Internet-connected devices, programs that they select, including the Networks’ copyrighted programs. The Networks sued Aereo for several forms of copyright infringement, but we are here concerned with a single claim: that Aereo violates the Networks’ “exclusive righ[t]” to “perform” their programs “publicly.” 17 U. S. C. §106(4). That claim fails at the very outset because Aereo does not “perform” at all. The Court manages to reach the opposite conclusion only by disregarding widely accepted rules for service-provider liability and adopting in their place an improvised standard (“looks-like-cable-TV”) that will sow confusion for years to come.

The Title Says It All

At Newark Airport, the Lights Are On, and They’re Watching You [pdf]

Visitors to Terminal B at Newark Liberty International Airport may notice the bright, clean lighting that now blankets the cavernous interior, courtesy of 171 recently installed LED fixtures. But they probably will not realize that the light fixtures are the backbone of a system that is watching them.

Using an array of sensors and eight video cameras around the terminal, the light fixtures are part of a new wireless network that collects and feeds data into software that can spot long lines, recognize license plates and even identify suspicious activity, sending alerts to the appropriate staff.

Here We Go

Federal Judge Rules Against N.S.A. Phone Data Program [pdf] [decision]

A Federal District Court judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, and he ordered the government to stop collecting data on two plaintiffs’ personal calls and destroy the records of their calling history.

From the Conclusion of the decision:

This case is yet the latest chapter in the Judiciary’s continuing challenge to balance the national security interests of the United States with the individual liberties of our citizens. The Government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance based in large part on a thirty-four year old Supreme Court precedent, the relevance of which has been eclipsed by technological advances and a cell phone-centric lifestyle heretofore inconceivable. In the months ahead, other Article III courts, no doubt, will wrestle to find the proper balance consistent with our constitutional system. But, in the meantime, for all the above reasons, I will grant [the] requests for an injunction and enter an order that (1) bars the Government from collecting, as part of the NSA’s Bulk Telephony Metadata Program, any telephone metadata associated with [plaintiffs’] personal Verizon accounts and (2) requires the Government to destroy any such metadata in its possession that was collected through the bulk collection program.

However, in light of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will stay my order pending appeal….

An Unexpected Decision

Bound to be appealed: Google Books Lawsuit Defeated: Book Scanning Deemed ‘Fair Use’ – see The Authors Guild , et al. v. Google (US District Court, Southern District of New York):

CHIN, Circuit Judge

Since 2004, when it announced agreements with several major research libraries to digitally copy books in their collections, defendant Google Inc. (“Google”) has scanned more than twenty million books. It has delivered digital copies to participating libraries, created an electronic database of books, and made text available for online searching through the use of “snippets.” Many of the books scanned by Google, however, were under copyright, and Google did not obtain permission from the copyright holders for these usages of their copyrighted works. As a consequence, in 2005, plaintiffs brought this class action charging Google with copyright infringement.

Before the Court are the parties’ cross-motions for summary judgment with respect to Google’s defense of fair use under § 107 of the Copyright Act, 17 U.S.C. § 107. For the reasons set forth below, Goggle’s motion for summary judgment is granted and plaintiffs’ motion for partial summary judgment is
denied. Accordingly, judgment will be entered in favor of Google dismissing the case.

See also Judge Sides With Google on Book Scanning Suit

James Grimmelmann, a professor of law at the University of Maryland who has followed the case closely, called the ruling “a win for Google and a big win for libraries and researchers.”

The judge “argues that authors didn’t lose much because it’s not like they were losing sales to Google Books,” Mr. Grimmelmann said. “The Authors Guild, on the other hand, loses a lot of face from this.”

[…] “By taking eight years from the lawsuit to resolve this, book scanning has gone from an exciting novelty to part of the background of the industry,” he said. “This has been going on for so long that it’s just part of the business now. And you’re seeing how many exciting new uses that can come out of it.”

Performance Royalties for Performers on the Radio

Congressman Proposes New Rules for Music Royalties [pdf]

On Monday, Representative Melvin L. Watt, a Democrat from North Carolina, introduced the Free Market Royalty Act, a bill that would let record companies and performing artists collect royalties when their songs are played on the radio. It would also change the licensing process for both broadcast radio and online services that approximate radio, like Pandora, establishing a market for these services to negotiate rates with the rights holders.

Broadcasters in the United States pay only songwriters and music publishers; for nearly a century, they have argued that the promotional value an artist receives from having a song played on the radio is remuneration enough. Repeated efforts by the music industry have failed to establish such a royalty on the radio, and while laws in the 1990s created it online, Web services complain that they have been burdened with a cost not shared by terrestrial radio.

Mr. Watt’s bill would establish a performance right for AM and FM radio. In an ambitious move, it would also eliminate the compulsory licensing process that lets services like Pandora and Sirius XM circumvent labels by paying a rate set by federal statute. Instead, under the system proposed by Mr. Watt’s bill, radio and online outlets alike would have to negotiate for rights through a market administered by SoundExchange, a nonprofit agency, giving labels and artists the right of refusal.

[…] The National Association of Broadcasters, the radio industry’s lobbying outlet, reiterated its longstanding opposition, calling the royalty a “performance tax” and saying that 183 members of Congress had supported its preferred bill, the Local Radio Freedom Act [H.CON.RES.16], a nonbinding resolution against “any new performance fee, tax, royalty or other charge” on radio stations.

Of course, this is more important than a continuing resolution, but it’s always interesting to see when these things turn up. I’d give the Thomas link to the text of the bill, but I doubt it’ll be posted before the government shuts down tonight at 12:01.

Funny

If it weren’t so sad: In Supreme Court Opinions, Web Links That Go Nowhere [pdf]

Supreme Court opinions have come down with a bad case of link rot. According to a new study, 49 percent of the hyperlinks in Supreme Court decisions no longer work.

[…]

Hyperlinks are a huge and welcome convenience, of course, said Jonathan Zittrain, who teaches law and computer science at Harvard and who prepared the study with Kendra Albert, a law student there. “Things are readily accessible,” he said, “until they aren’t.”

What is lost, Professor Zittrain said, can be crucial. “Often the footnotes and citations,” he said, “are where the action is.”

Well, Of Course

Are you really surprised? It is their mission, after all. N.S.A. Foils Much Internet Encryption [pdf]

The agency has circumvented or cracked much of the encryption, or digital scrambling, that guards global commerce and banking systems, protects sensitive data like trade secrets and medical records, and automatically secures the e-mails, Web searches, Internet chats and phone calls of Americans and others around the world, the documents show.

Many users assume — or have been assured by Internet companies — that their data is safe from prying eyes, including those of the government, and the N.S.A. wants to keep it that way. The agency treats its recent successes in deciphering protected information as among its most closely guarded secrets, restricted to those cleared for a highly classified program code-named Bullrun, according to the documents, provided by Edward J. Snowden, the former N.S.A. contractor.

Larry’s Picked An Interesting Fight

Online lecture prompts legal fight on copyright: Harvard’s Lessig, Australian record company battle over use of song [pdf]

But that is exactly what Australian record company Liberation Music did when it threatened to sue Lessig, a leading scholar of Internet law and an advocate for fewer copyright restrictions, for allegedly violating its rights by using music from the hit song “Lisztomania” by French pop band Phoenix during a lecture.

Liberation Music claimed to own the license for the 2009 song, which became so popular that fans, college students, and choruses from around the world made their own dance videos to the music and posted them on YouTube, creating something of a global Internet phenomenon.

Lessig used the phenomenon and excerpts from the dance videos in a 2010 lecture that he recorded and also posted to YouTube, prompting the legal warning from Liberation Music.

Now, Lessig is fighting back with his own legal action.

So, an interesting challenge, in that there is, first, the overall “fair use” doctrine — a nice idea, but one that means that a definitive finding of fair use, should there be a disagreement, requires an adjudicated review; second, there is legislation ensuring fair use in academic use, thus taking some of the transactional costs of adjudication off the table; and, third, there is an open question on what happens when one digitizes and distributes academic material containing copyrighted materials whose use in that context would ordinarily be considered to be covered under fair use.

It’s been a challenge for academic institutions moving instruction online, and should be a great fight, since Larry has been passionate about this.

Finally, it’s worth thinking about the distinctions between this approach to tackling copyright injustices and that of Aaron Swartz.

Later: When even John Sununu takes time out from using his guest Tea-Party-rousing-columnist role at the Boston Globe to agree with Larry, you know that Liberation Music has really stepped in it: Music dinosaurs pick a bad fight [pdf]