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June 25, 2014

Supreme Court Rules Against Aereo [11:02 am]

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.

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February 18, 2014

The Title Says It All [4:28 pm]

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.

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December 16, 2013

Here We Go [6:50 pm]

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….

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November 14, 2013

An Unexpected Decision [6:36 pm]

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.”

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September 30, 2013

Performance Royalties for Performers on the Radio [8:56 pm]

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.

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September 23, 2013

Funny [3:49 pm]

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.”

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September 5, 2013

Well, Of Course [6:25 pm]

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.

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August 27, 2013

Larry’s Picked An Interesting Fight [8:59 pm]

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]

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August 4, 2013

I Enjoyed This Immensely [9:13 pm]

From David Carr, calling a spade a spade: Self-Serving War of Words by 2 Giants in Television [pdf]:

We know that you are fighting over lucre, not our inalienable rights as cable consumers. Pretending that you are fighting on our behalf rather than in the interests of your shareholders and executives is infantilizing and unbecoming. CBS is coming off another record year, Time Warner Cable’s stock is storming along, and the fight over retransmission fees is about how the pie is sliced, nothing more.

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June 13, 2013

BRCA1 and BRCA2 Cannot Be Owned [11:06 am]

Even if they have value: Association for Molecular Patholody v. Myriad Genetics, inc.

Respondent Myriad Genetics, Inc. (Myriad), discovered the precise location and sequence of two human genes, mutations of which can substantially increase the risks of breast and ovarian cancer. Myriad obtained a number of patents based upon its discovery. This case involves claims from three of them and requires us to resolve whether a naturally occurring segment of deoxyribonucleic acid (DNA) is patent eligible under 35 U. S. C. §101 by virtue of its isolation from the rest of the human genome. We also address the patent eligibility of synthetically created DNA known as complementary DNA (cDNA), which contains the same protein-coding information found in a segment of natural DNA but omits portions within the DNA segment that do not code for proteins. For the reasons that follow, we hold that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but that cDNA is patent eligible because it is not naturally occurring. We, therefore, affirm in part and reverse in part the decision of the United States Court of Appeals for the Federal Circuit.

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March 27, 2013

A Nice Bit on the Impact of “First Sale” [1:36 pm]

In a Copyright Ruling, the Legacy of the Betamax [pdf] (See Justices Permit Resale of Copyrighted Imports [pdf])

Before Napster and LimeWire, before Megauploads and the Pirate Bay, media companies’ epic struggle against copying, piracy and generally losing control over their creations can be traced to a legal fight more than 30 years ago over a device that has long since passed on to the great trash heap in the sky: the Sony Betamax.

[...] Last week, the Supreme Court made another call that could have equally far-reaching implications. The ruling referred only to printed books, another technology that predates the Internet. Yet it, too, is likely to reshape the information economy in unexpected ways.

In a 6-to-3 decision, the court took sides with Supap Kirtsaeng, a Thai math student at Cornell who generated roughly $900,000 in revenue reselling in the United States cheap textbooks that his friends and relatives sent from Thailand.

[...] The decision picks at the scab of an argument that has raged since the first copyright law was enacted in 18th-century Britain: how to balance the interest of copyright holders to profit from their creations — giving them an incentive to create more — against the social goal of promoting access to the movies, books and software programs they create.

Like the Betamax decision in 1984, the Supreme Court’s ruling last week underscores the challenges placed by globalization and information technology on the very idea of protecting intellectual property. It adds to a maze of laws, legal decisions and technological barriers governing what companies and people can do with their stuff in the new economy. And it will probably change the way companies deliver media.

Kirtsaeng v. John Wiley & Sons, Inc. [local copy]; see also Imagining a Swap Meet for E-Books and Music [pdf]

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March 15, 2013

Nothing New Here, But Nice To See It’s Getting Attention Again [5:14 pm]

From “The Copyright Rule We Need to Repeal If We Want to Preserve Our Cultural Heritage” [pdf] — critiques familiar to those who complained about the DMCA when it was first proposed.

Opponents of the DMCA anti-circumvention provision claim that the law threatens consumer control over the electronic devices we buy, and they’re right. But the stakes are much higher than that. Our cultural history is in jeopardy. If the DMCA remains unaltered, cultural scholarship will soon be conducted only at the behest of corporations, and public libraries may disappear entirely.

That’s because the DMCA attacks one of the of the fundamental pillars of human civilization: the sharing of knowledge and culture between generations. Under the DMCA, manmade mechanisms that prevent the sharing of information are backed with the force of law. And sharing is vital for the survival of information. Take that away, and you have a recipe for disaster.

[...] The anti-circumvention provision of the DMCA was created primarily to protect DVDs; it did not anticipate our rapid shift to media-independent digital cultural works, so it is absurdly myopic when it comes to digital preservation.

To properly preserve digital works, libraries must be able to copy and media-shift them with impunity. It may sound strange, but making a DRM-free copy of a digital work is the 21st century equivalent of simply buying a copy of a paper book and putting it on a shelf. A publisher can’t come along and take back that paper book, change its contents at any time, or go out of business and leave it unscrambled and unreadable. But publishers can (and have done) all three with DRM-protected works.

So why don’t librarians just defeat DRM, as it is often possible to do, and jailbreak Kindles and iPads to collect these materials? Because it’s illegal, of course. And if these chronically under-funded institutions want to keep their funding, they need to stay above the board.

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February 26, 2013

Surveillance Forever! [5:11 pm]

Clapper v. Amnesty International — apparently, “chilling effects” are not sufficient to give standing when seeking an injunction against sweeping surveillance.

[...] Respondents — attorneys and human rights, labor, legal, and media organizations — are United States persons who claim that they engage in sensitive international communications with individuals who they believe are likely targets of §1881a surveillance. On the day that the FISA Amendments Act was enacted, they filed suit, seeking a declaration that §1881a is facially unconstitutional and a permanent injunction against §1881a-authorized surveillance. The District Court found that respondents lacked standing, but the Second Circuit reversed, holding that respondents showed (1) an “objectively reasonable likelihood” that their communications will be intercepted at some time in the future, and (2) that they are suffering present injuries resulting from costly and burdensome measures they take to protect the confidentiality of their international communications from possible §1881a surveillance.

Held: Respondents do not have Article III standing. [...]

[...] ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

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February 11, 2013

Upcoming Event: Feb 19 at Harvard Law School [10:17 pm]

the next words: A Lecture on Aaron’s Law: from Lawrence Lessig, the Roy L. Furman Professor of Law and Leadership at Harvard Law School.

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Something For Fans of Ken Oye’s “Uncle Fred” Story [7:30 pm]

Tests in Mice Misled Researchers on 3 Diseases, Study Says [pdf]

The paper, published Monday in the Proceedings of the National Academy of Sciences, helps explain why every one of nearly 150 drugs tested at huge expense in patients with sepsis has failed. The drug tests all were based on studies in mice. And mice, it turns out, have a disease that looks like sepsis in humans, but is very different from the human disease.

[...] The researchers found some interesting patterns and accumulated a large, rigorously collected data set that should help move the field forward, said Ronald W. Davis, a genomics expert at Stanford University and a lead author of the new paper. Some patterns seemed to predict who would survive and who would end up in intensive care, clinging to life and, often, dying.

The group had tried to publish its findings in several papers. One objection, Dr. Davis said, was that the researchers had not shown the same gene response had happened in mice.

[...] The study’s investigators tried for over a year to publish their paper showing that there was no relationship between the genetic responses of mice and those of humans. They submitted it to the publications Science and Nature, hoping to reach a wide audience. It was rejected from both.

Science and Nature said it was their policy not to comment on the fate of a rejected paper, or whether it had even been submitted to them. But, Ginger Pinholster of Science said, the journal accepts only about 7 percent of the nearly 13,000 papers submitted each year, so it is not uncommon for a paper to make the rounds.

Still, Dr. Davis said, reviewers did not point out scientific errors. Instead, he said, “the most common response was, ‘It has to be wrong. I don’t know why it is wrong, but it has to be wrong.’ ”

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July 29, 2012

“Kopism” [2:52 pm]

In Sweden, Taking File Sharing to Heart. And to Church. [pdf]

People almost everywhere are file sharing these days, using computers to download music, films, books or other materials, often ignoring copyrights. In Sweden, however, it is a religion. Really.

Even as this Scandinavian country, like other nations across Europe, bows to pressure from big media concerns to stop file sharing, a Swedish government agency this year registered as a bona fide religion a church whose central dogma is that file sharing is sacred.

“For me it is a kind of believing in deeper values than worldly values,” said Isak Gerson, a philosophy student at Uppsala University who helped found the church in 2010 and bears the title chief missionary. “You have it in your backbone.”

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July 16, 2012

A Search Service Runs Awry of © [9:25 pm]

A test of contributory infringement and search? U.S. Pursuing a Middleman in Web Piracy [pdf]

Richard O’Dwyer, an enterprising 24-year-old college student from northern England, has found himself in the middle of a fierce battle between two of America’s great exports: Hollywood and the Internet.

At issue is a Web site he started that helped visitors find American movies and television shows online. Although the site did not serve up pirated content, American authorities say it provided links to sites that did. The Obama administration is seeking to extradite Mr. O’Dwyer from Britain on criminal charges of copyright infringement. The possible punishment: 10 years in a United States prison.

The case is the government’s most far-reaching effort so far to crack down on foreigners suspected of breaking American laws. It is unusual because it goes after a middleman, who the authorities say made a fair amount of money by pointing people to pirated content. Mr. O’Dwyer’s backers say the prosecution goes too far, squelching his free-speech right to publish links to other Web sites.

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July 2, 2012

ReDigi Causing Unrest [8:27 am]

The used record store goes digital Music resale brings a digital showdown [pdf]

When Pete Brown got tired of his Don Henley album, he did what music fans have done for decades. He sold it.

But Brown’s version of the rock classic was digital. The 31-year-old liquor distributor from Indianapolis downloaded it from Apple’s iTunes music store and resold it on ReDigi.com, the Web’s first consignment shop for digital music, which a Cambridge start-up launched in October.

He earned a few bucks but may have broken the law in the process, though iTunes’s terms and conditions do not explicitly prohibit users from reselling their purchases. Capitol Records is suing ReDigi for allegedly violating copyright law and running a business “built on widespread, unauthorized copying of sound recordings.”

The case is making its way through federal court and is expected to determine the legitimacy of a secondary marketplace for these downloads. But it could also bring a landmark decision on how copyright law applies to digital albums, electronic books, and feature films that are downloaded on the Web, according to legal scholars.

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June 11, 2012

A Few Updates [1:43 pm]

  • Radio Royalty Deal Offers Hope for Industrywide Pact [pdf]

    So why did Clear Channel change its position, breaking ranks with its powerful lobbying group, the National Association of Broadcasters?

    The answer apparently has nothing to do with politics; with Republicans expected to retain control of the House in this year’s elections, few in the industry predict a new Washington battle is likely. Rather, it has to do with digital music, and Clear Channel’s desire to reshape its business in anticipation of rapid changes in the marketplace.

    When the first webcasting laws were passed in the 1990s, labels and artists gained the right to performance royalties for online streams. But webcasters have long complained about the size and structure of these royalties, which are set by federal statute. The more people listen, the more the companies have to pay — unlike on radio, where stations pay a set percentage of revenue to music publishers. Pandora Media pays more than half its revenue in music royalties.

    For Clear Channel, digital royalties are a looming problem. Today, 98 percent of listening to its stations is through its 850 terrestrial radio stations, and 2 percent is online, the company said. But that is expected to change, which would leave Clear Channel and other broadcasters exposed to expanding royalty payments. To limit those expenses, Clear Channel struck its deal with Big Machine, bypassing the federal “penny rate” for a share of advertising revenue, both online and over the air.

  • Disruptions: For HBO, Still Beholden to a Cable Company [pdf]

    Yet Eric Kessler, co-president of HBO, must have a different calculator in his office. “At this time, the economics simply don’t support a standalone HBO Go,” he said. “We make our programming, including ‘Game of Thrones,’ available on numerous platforms for our subscribers and then on DVD and electronic sell-through for those choosing not to subscribe to a TV provider.”

    HBO told me that “Thrones” would be out on DVD in eight months, so I experimented with the piracy option, too. It took me all of 22 seconds to begin watching the latest episode through the illicit route of an online storage service and an illegal BitTorrent site. I get it. HBO has a great business model, and it will try to hang onto that model for as long as possible.

    But technology doesn’t wait. People keep finding new ways to get what they want.

    “It’s hard to stop piracy by creating laws, it’s better to ask why are people downloading these shows — that’s much more productive,” Mr. Van Der Sar said. “Downloading is already illegal. More laws are not going to help.”

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April 29, 2012

A Nice Starting List [5:01 pm]

But I think there are lots of fine details missing: Unexceptionalism: A Primer by E. L. Doctorow [pdf]

TO achieve unexceptionalism, the political ideal that would render the United States indistinguishable from the impoverished, traditionally undemocratic, brutal or catatonic countries of the world, do the following:

PHASE ONE

If you’re a justice of the Supreme Court, ignore the first sacrament of a democracy and suspend the counting of ballots in a presidential election. Appoint the candidate of your choice as president.

If you’re the newly anointed president, react to a terrorist attack by invading a nonterrorist country. Despite the loss or disablement of untold numbers of lives, manage your war so that its results will be indeterminate.

Using the state of war as justification, order secret surveillance of American citizens, data mine their phone calls and e-mail, make business, medical and public library records available to government agencies, perform illegal warrantless searches of homes and offices. [...]

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