eardrumbuzz: IP

Thu, 31 Mar 2005 03:33:35 GMT

Supreme Court Justices Grill Both Sides at Copyright Hearing.

MGM v. Grokster Raises Questions About Innovation and Litigation

Washington, DC - The Electronic Frontier Foundation (EFF) was heartened to hear the Justices of the United States Supreme Court engage in a lively debate Tuesday about whether technology manufacturers should be held liable for the infringing activities of consumers. At stake is nothing less than the future of innovation in the United States [^] if vendors are held responsible for what people do with their products, even tech giants like Intel say they'd have to fire engineers and hire lawyers.

MGM and nearly a dozen other entertainment companies argued that peer-to-peer software manufacturers Grokster and StreamCast had built their businesses by distributing "infringing machines." But counsel for the entertainment industry, Donald B. Verrilli Jr. of the law firm Jenner & Block, scarcely finished his opening statements before the Justices interrupted with pointed questions about how his arguments would impact technological innovation. Justice Antonin Scalia asked how the industry would protect nascent technologies from "out-of-the-box lawsuits," and Justice Stephen Breyer pushed him to explain why MGM's argument wouldn't also apply to the iPod, Xerox machines, and even Gutenberg's printing press.

Richard G. Taranto of the law firm Farr & Taranto, who represented respondents Grokster, Ltd., and StreamCast Networks, Inc., replied that it was crucial for the Court to reaffirm its 21-year-old Betamax ruling, which held that companies should not be barred from selling products that may be used for copyright infringement if there is a potential for significant legal uses. Taranto also pointed out some of the many noninfringing uses for peer-to-peer software, including genomics research, archiving works in the public domain, and distributing new media whose creators use open copyright or Creative Commons licenses.

"The Justices asked all the right questions," said EFF Senior Staff Attorney Fred von Lohmann, lead attorney for StreamCast. "They were clearly worried about how this ruling would affect the future of technological invention. As Justice David Souter said, we shouldn't hang a sword of Damocles over the heads of America's innovators."

The Court will likely issue a decision in late June or early July.

More about MGM v. Grokster.

[EFF: Breaking News]

Thu, 24 Mar 2005 17:21:53 GMT

EFF appeals ruling that Apple can subpoena fan sites.

Apple scored a big victory when a judge in California ruled that the company was allowed to subpoena online news sites in their quest to discover who at the company has been leaking confidential information about unreleased products, and as expected, the Electronic Frontier Foundation, which is representing the sites, filed an appeal today. Their argument? That not only does the judge’s ruling violates First Amendment protections for free speech, but that Apple should have been required to exhaust all other avenues to discover the source of the leaks, such as subpoenaing its own employees or using “sophisticated computer forensics”, before going after these sites. The first reason probably won’t fly (First Amendment doesn’t necessarily trump trade secret law), but it’s not crazy to suggest that Apple (or any company) has to meet a certain threshold (i.e. that they’ve done everything else possible, within reason, to ascertain the identity of the leaksters) before they can start demanding subpoenas for people who clearly haven’t signed any non-disclosure agreements with them. We’ll see how this one plays out.

[Engadget]

Wed, 02 Mar 2005 21:37:44 GMT

Media professors' SCOTUS brief on why P2P should be legal.
A group of 22 Media studies scholars from around the country signed on to this brief, which was filed with the U.S. Supreme Court yesterday:

Amici are deeply concerned that recent legal, commercial, and political turmoil surrounding the proliferation and use of "peer-to-peer" communicative technologies threaten to chill legitimate contributions to teaching and research in this nation's institutions of higher education. This Court and the United States Congress have clearly articulated the value of education and scholarship to the workings of the Republic. Further, both acknowledge that teaching and research often require the unauthorized copying, distribution, re-fashioning, and performance of copyrighted works without permission from the copyright holder, and thus have cleared a space within the strictures of copyright law to allow for such publicly beneficial uses. The foundation of that space is "fair use," which, though an affirmative defense to the accusation of infringement, has granted educators a certain measure of comfort that they would not be sued by copyright holders for infringement. However, the penumbra of perceived "users' rights" that emanate from Sec. 107 of the Copyright Act has proven inadequate to protect many important acts central to teaching and research. Within this context, the academic utility of searching, indexing, and sharing of copyrighted materials remains in doubt among educators and scholars. Doubt creates a chilling effect, stifling the most creative uses of digital technology in the classroom or in academic research. This chilling effect is the result of a fundamental misunderstanding of the nature of peer-to-peer systems. Peer-to-peer technology is not functionally distinct from other, more familiar, less demonized methods of resolving communicative processes such as sending e-mail, creating hyperlinks, and employing search engines such as Google.com. All of these functions potentially (and commonly) infringe the copyrights of others. With this in mind, we conclude that the standard set forth by the Seventh Circuit Court of Appeals in In Re Aimster is inadequate to protect the activities of educators and researchers. In fact, it is counterproductive. The problem with the standard that technologies that are capable of substantial non-infringing uses comes not from the question of capability, but from the fact that within the classroom "non-infringing" is so unclear. The Aimster standard would add another layer of complexity and doubt to the educational project. Therefore it would hinder "the progress of the sciences and useful arts." In contrast, the unambiguous declaration by the Ninth Circuit Court of Appeals in Grokster -- that the standards this Court set forth in Sony are alive and appropriate for this digital age -- does grant educators comfort and confidence. Nor do certain "compromise" positions outlined in briefs submitted in support of neither party in this case protect the interests of educators and researchers. Ultimately, we wish to encourage the Court to consider that Sony did more than legalize home taping and "time shifting." It democratized participation in the project of recording the collective memory of this dynamic nation. Sony went beyond the traditional parameters of fair use and showed the potential for an emerging set of clearly articulated "users' rights." Teachers, scholars, critics, journalists, fans, and hobbyists would all benefit greatly under a regime that offered them clarity and confidence about how they interact with works and the copyright system that governs them.

Link [Siva]

Wed, 02 Mar 2005 21:25:28 GMT

TiVo registers five new patents.

TiVo has been granted five new patents from the U.S. government, along with three from the Chinese and Japanese governments, bringing the company’s total patent portfolio to 70, with over 100 still pending with the U.S. Patent and Trademark Office. The patents are most valuable to TiVo in its ongoing lawsuit against Echostar for violating their patent for a “multimedia time warping system” (which hardly ever gets talked about), but otherwise it doesn’t sound like their patents have done much to stop their competitors from sneaking up on them in the DVR space.

[Engadget]

Fri, 19 Nov 2004 19:36:20 GMT

Why the Intellectual Property Protection Act is lame and what you can do about it.
Stop the Intellectual Property Protection Act (which would outlaw fast-forwarding through commercials on DVDs, for example) that is being railroaded through Congress. Wendy Seltzer of the Electronic Frontier Foundation provides some information about what you can do to help stop this bill from passing into law:

The first problem with the omnibus intellectual property bill barreling through Congress’ lame duck session this week is figuring out what’s in it. That’s because the bill is a ragtag collection of bills whose special interest backers couldn’t get them through during Congress’ ordinary session. So now, they’re trying again, hoping that their bills will face less public scrutiny in the rush to close the session.

But the bills — bad ideas the first time they were introduced — don’t taste any better together. Among the bills the package may include:

The Piracy Deterrence and Education creates a new crime of “offering for distribution,” with jail terms up to five years. Since the crime doesn’t require proof of willfulness, the standard for other copyright crime, people could be prosecuted merely for having 1000 songs in their “share” folders, without intending that they be redistributed.
The Family Movie Act exempts from copyright or trademark litigation the skipping of portions of movies — but leaves makers and users of commercial-skipping technology open to lawsuits like the one that bankrupted ReplayTV.
The Fraudulent Online Identity Sanctions Act presumes that anyone who has tried to protect his or her privacy by faking the WHOIS info in a domain name registration is willfully infringing copyright or trademark. (see letter from ACLU, ALA, CDT, EFF, and PK)
The PIRATE Act authorizes the Justice Department to step in for entertainment companies to prosecute civil copyright infringement cases.
An anti-counterfeiting provision would add new dangers to fair use of digital media (See Lessig blog)

Both the substance of these bills and the rushed way they’re being re-introduced now are dangerous to the public interest. Public Knowledge has an action alert set up where you can let your congressional representatives know your concerns.

[Engadget]

Thu, 18 Nov 2004 02:05:53 GMT

EFF Fights for a Better WIPO.

For years, progressive groups like the Consumer Project on Technology (CPTech) have struggled to convince the UN's World Intellectual Property Organization (WIPO) to rethink its "IP Uber Alles" philosophy -- that is, the pursuit of maximal intellectual property protection for its own sake, regardless of the human, cultural, or economic impact. The stakes are high. As James Boyle points in his Manifesto on WIPO and the Future of Intellectual Property, WIPO decisions affect everything from the availability and price of AIDS drugs, to the patterns of international development, to the communications architecture of the Internet.

The major breakthrough came just two months ago, when WIPO decided to adopt the Development Agenda proposed by a number of developing countries and non-government organizations (NGOs). This agenda makes explicit WIPO's responsibility for weighing the impact of its decisions and urges the organization to unlock its considerable potential to help humanity.

While this was an incredibly important, historic first step toward realigning WIPO's mission with the global public interest, the proof is in the pudding. This Wednesday- Friday (Nov. 17-19), EFF will attend the Twelfth Session of the Standing Committee on Copyright and Related Rights to urge WIPO to stick to its guns with regard to the principles the outlined in the Development Agenda.

Specifically, we will:

ask WIPO to apply public-interest considerations in revising the highly controversial Broadcasting Treaty [PDF], which proposes the creation of a new and unnecessary layer of pseudo-copyright protection for broadcasters (see our statement [PDF] for details);
join other NGOs to propose an alternative draft of the treaty -- one that targets the problem (signal theft) rather than adds new rights; and
potentially give a speech to advocate filling in the "negative space" at WIPO -- that is, using the organization to establish a miniumum global set of rights for the public as well as for copyright holders.

In addition to the above, a group of 20 technology companies will send a letter speaking out against the inclusion of "webcasters" in the Broadcasting Treaty, arguing among other things that a new pseudo-copyright will only slow down adoption and innovation in Internet markets by requiring all content-related businesses to negotiate yet another layer of license agreements before they can offer new products or services to the public.

Finally, EFF's own Cory Doctorow will again live-blog the meeting here at Deep Links, bringing what was once "insider-only" information before the public eye.

For background information on the current negotiations at WIPO, check out:

Complete running notes from the September WIPO meeting
EFF press release on the adoption ot the Development Agenda
EFF's previous statement [PDF] on the Broadcasting Treaty

[EFF: Deep Links]

Thu, 11 Nov 2004 19:22:57 GMT

Judge tells Virgin to leave Apple alone and come up with their own DRM.

So VirginMega just lost their suit in a French court to get the rights to use Apple’s FairPlay DRM technology. They claimed that given the iPod’s dominance of the digital audio market, Apple’s refusal to let other people sell DRM’d downloads for the iPod constituted an anti-trust violation (which straight up seemed really silly), and that they should have access to Apple’s FairPlay code.The judge didn’t buy the argument and told Virgin they’d have to figure out things on their own (sort of like how RealNetworks did).

[Engadget]

Fri, 05 Nov 2004 18:22:27 GMT

Movie Studios to Sue File Sharers.

Hollywood Joins Music Industry in Misguided Crusade

Today the Motion Picture Association of America (MPAA) announced that the major Hollywood motion picture studios would be filing hundreds of lawsuits against individuals using peer-to-peer (P2P) file-sharing software to access movies online. In so doing, Hollywood follows in the footsteps of the music industry, which has filed more than 6,000 lawsuits against file sharers since September 2003.

In connection with the music industry lawsuits, the Electronic Frontier Foundation (EFF) has intervened in court to defend the privacy and due process rights of the individuals being sued. It is not yet clear whether the MPAA lawsuits will make similar actions necessary.

The MPAA announcement comes on the heels of a recent study by the University of California, Riverside, and San Diego Supercomputer Center that shows that the music industry lawsuits have had no effect on the popularity of file sharing among US users, estimated at over 20 million.

Hollywood cannot credibly claim that file sharing is jeopardizing their profits. According to TIME Magazine's October 11, 2004, edition: "The studios can't exactly argue that file sharing is about to put them out of business. DVD sales, which grew 33 percent last year, and box-office receipts have never been stronger."

"These lawsuits are misguided," said EFF Staff Attorney Wendy Seltzer, who has been involved in the music industry suits. "The music industry experience shows that the lawsuits don't reduce the amount of file sharing. And it's certainly not good PR to sue movie fans for noncommercial sharing when the studios are rolling in record profits."

"In the end, what protects the studios from piracy is the what attracts people to buy or rent movies in the first place -- a good product at a good price point," said EFF Legal Director Cindy Cohn. "As long as you can rent a movie on DVD for $2, movie file sharing is not likely to take a major bite out of studio revenues."

[EFF: Breaking News]

Fri, 05 Nov 2004 18:20:32 GMT

Movie Industry Preparing Suits on File Sharing.
Hollywood's major movie studios said that they would begin filing lawsuits against people who make copyrighted films available for downloading over the Internet.
[NYT > Technology]

Sun, 31 Oct 2004 17:22:08 GMT

Let's Get Ready to Snitch On Our Neighbors!
The Let's Get Ready to Rumble guy is paying cash bounties to people who snitch on their neighbors' "infringing" use of phrases like "Let's Get Ready to Gamble" and "Are You Ready to Rumble?"

Buffer Enterprises, Inc. now offers a cash bonus to those who report a corroborated unauthorized use [resulting in an actual recovery] of the "Let's Get Ready to Rumble," "Get Ready To Rumble" or "Ready to Rumble" servicemarked phrases ,any paraphrasing of these marks (including "Get Ready To Crumble," "Are Your Ready To Rumble?" "Lets Get Ready To Gamble"), or use of Michael Buffers famous rendition of his copyrighted "Let's Get Ready To Rumble" recording. This bonus system applies to viable reports [resulting in an actual recovery] of unauthorized use of our servicemarks, copyrights or related rights in or upon TV, radio, the internet, print or in connection with unlicensed products or services such as T-shirts, toys, posters, or other merchandise.

[Boing Boing]

Thu, 28 Oct 2004 06:31:33 GMT

Court Orders New Protections for People Targeted by RIAA.

Public Interest Groups Help Protect Anonymity of Accused Infringers

Pennsylvania - A district court in eastern Pennsylvania has issued an order that will force the Recording Industry Association of America (RIAA) to better respect the privacy and due process rights of people it has accused of copyright infringement. After RIAA members asked the court to issue subpoenas to Internet Service Providers (ISPs) for the names and addresses of people they suspect of infringement, the court issued an order that the ISPs must first send their customers detailed notices about the subpoenas, including information about how the accused suspects can contest the subpoenas.

The controversy arose after the music industry filed a flood of lawsuits against anonymous individuals whom the industry claimed were sharing copyrighted music. Because the industry did not know the identities of the individuals, it served subpoenas to the individuals' ISPs seeking their names. The court held that before the ISPs turn over these names, they must send notices to the individuals advising them of their rights. This allows a targeted individual to make an intelligent decision about what steps to take before his or her identity is disclosed.

The Electronic Frontier Foundation (EFF), Public Citizen, the national American Civil Liberties Union (ACLU), and the ACLU's Pennsylvania affiliate participated in the case as friends of the court. The organizations have been heavily involved in protecting the right to anonymous speech and ensuring that people sued for copyright violations are made aware of their rights.

"The constitutional right of individuals to anonymous speech is just as important on the Internet as it was when the Federalist Papers were published," said Chris Hansen, an attorney for the ACLU. "The court has properly found that before someone's identity is disclosed, that person should at least have a right to be heard and to raise certain defenses."

"Judge Rufe has required the recording industry to meet the same standards of proof that are required when other plaintiffs seek to identify anonymous Internet users," said Public Citizen attorney Paul Levy. "We can only hope that judges throughout the country will follow this example."

EFF legal director Cindy Cohn added, "Receiving notice from your ISP that you are being sued by the record companies is a terrifying experience for the grandmas, students, and working mothers who have been caught up in the RIAA's lawsuit crusade. By requiring ISPs to include basic information such as the right to challenge lawsuits and where to go for help, the court took a big step toward helping people understand their options."

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Paul Alan Levy
Attorney
Public Citizen Litigation Group
plevy@citizen.org

Paul Silva
Media Relations Associate
American Civil Liberties Union
psilva@aclu.org

[EFF: Breaking News]

Fri, 27 Aug 2004 19:12:08 GMT

Grokster Wins in Appeals Court.

The 9th Circuit Court of Appeals ruled today that Grokster (along with other vendors of decentralized P2P systems) is not liable for the copyright infringement of its users. Today's decision upholds a lower court decision, which had been appealed by a group of music and movie companies.

The Court largely accepted Grokster's arguments, finding that although the vast majority of Grokster users are infringers, Grokster itself cannot be held liable for that infringement.

The Court found Grokster not liable for contributory infringement, because Grokster did not have the necessary knowledge of specific infringement. In light of the Supreme Court's 1984 Sony Betamax decision, as elaborated in this appeals court's Napster decision, the court first determined that Grokster's software has substantial commercially significant uses other than infringment. As a result, contributory infringement would have required that Grokster have knowledge of specific acts of infringement, at a time when Grokster could take action to stop those acts. But Grokster simply distributes its product to consumers, and has no knowledge of how any particular customer uses the product later. If copyright owners tell Grokster about an act of infringement, after that act has already happened, that is not actionable knowledge because it is too late to stop the infringment.

The court also held Grokster not liable for vicarious infringement, because Grokster does not have the right and ability to control its customers' infringing activity. Grokster has no practical way to kick users off the system or to police the system's use. The court also ruled that Grokster cannot be required to redesign its software and force its customers to update to the redesigned version.

The money quote comes near the end of the opinion:

As to the issue at hand, the district court's grant of partial summary judgment ... is clearly dictated by applicable precedent. The Copyright Owners urge a re-examination of the law in light of what they believe to be proper public policy, expanding exponentially the reach of the doctrines of contributory and vicarious copyright infringement. Not only would such a renovation conflict with binding precedent, it would be unwise. Doubtless, taking that step would satisfy the Copyright Owners' immediate economic aims. However, it would also alter general copyright law in profound ways with unknown ultimate consequences outside the present context.

Further, as we have observed, we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation. The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through well-established distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player. Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude.

[Freedom to Tinker]

Fri, 06 Aug 2004 18:50:39 GMT

Open Letter Against British Copyright Indoctrination in Schools.
The British Department for Education and Skills (DfES) recently launched a "Music Manifesto" campaign, with the ostensible intention of educating the next generation of British musicians. Unfortunately, they also teamed up with the music industry (EMI, and various artists) to make this popular. EMI has apparently negotiated their end well, so that children in our schools will now be indoctrinated about the illegality of downloading music.The ignorance and audacity of this got to me a little, so I wrote an open letter to the DfES about it. Unfortunately, it's pedantic, as I suppose you have to be when writing to goverment representatives. But I hope you find it useful, and perhaps feel inspired to do something similar, if or when the same thing has happened in your area.
[kuro5hin.org]

Thu, 05 Aug 2004 02:52:05 GMT

FCC Says TiVo Owners Can Share Shows.
Today (after alot of heat from MPAA and NFL for a proposal regarding sharing of recorded shows with users, see previous story), Tivo received approval for technology that would permit users to send copies of digital broadcast shows over the Internet to a few friends.
[Slashdot]

Mon, 02 Aug 2004 17:49:20 GMT

Irish RIAA wants more copyright for tax-free artists.
The Irish Recording Music Association, whose members pay no taxes on their earnings, is calling for a European copyright term extension to 70 years to create "a level playing field with the USA" (the US's 70 year term is the result of an effort to "create a level playing field with Europe" -- notice a trend here?). This despite the wealth of folk music that is embodied in Irish culture and performance, folk music that enrihces the public and artists without any copyright.
[Boing Boing]

Sun, 18 Jul 2004 21:42:48 GMT

FOX fights the control freaks.
Bravo to FOX for fighting the network control freaks. Competition over derivatives only makes the derivatives better.
[Lessig Blog]

Thu, 17 Jun 2004 04:05:27 GMT

INDUCE Act = Hollings II?.

Rumor has it that Sen. Orrin Hatch (R-UT) will be introducing a bill tomorrow that would add a new Section 501(g) to the Copyright Act granting copyright owners a cause of action against those who "induce" copyright infringement (cf. patent law). This bill, dubbed the INDUCE Act, would apparently also reach those who "counsel" infringers.

Even a moment's reflection should make the danger to innovators clear -- you now have to worry not just about contributory and vicarious liability, but an entirely new form of liability for building tools that might be misused. It will be interesting to see whether the bill expressly precludes any Betamax-type defense. This may also pose First Amendment problems, to the extent a journalist or website publisher might be liable for simply posting information about where infringement tools might be found or how to use them.

It's the Hollings Bill by other means -- an over-reaching new form of indirect liability that will force technology companies of all kinds to "ask permission" before innovating for fear of ruinous litigation if they don't.

And so another front in the copyright wars opens, with the aggressors waving the bloody flag of file sharing, but really aiming at a much bigger target. Stay tuned.

[EFF: Deep Links]

Mon, 03 May 2004 22:38:08 GMT

Free software project undaunted despite Apple threats.
The PlayFair free software project is likely to come online again soon, despite efforts by Apple Computer Inc. to close it down. Apple last month shut down the free software project, which lets tool users play music from the Apple iTunes Music Store on hardware not authorized by Apple, such as GNU/Linux PC, provided an authorized key is available.
[MacCentral]

Sat, 24 Apr 2004 02:10:26 GMT

FBI Raids School District Over Copyright. No word on what/who they're after, but the raid dovetails with the Bureau's announcement that it will make copyright infringement a higher priority.
[EFF Mini Links]

Thu, 04 Mar 2004 01:49:21 GMT

Gutenberg audiobooks.
Michael Ellerbeck has started a project to read all of the Gutenberg Project texts aloud and release them as audiobooks under the terms of a Creative Commons license.
[Boing Boing]

Tue, 02 Mar 2004 11:19:27 GMT

Report Raises Concerns About Fighting Online Piracy
The Committee for Economic Development, a Washington policy group, has released a new study that argues that the entertainment industry's pursuit of tough new laws to protect copyrighted materials from online piracy is bad for business and for the economy. The report is seen as significant since the organization has its roots in the business world.
Report Here
Coverage Here

Mon, 23 Feb 2004 23:47:19 GMT

Australia to Make Email Interception Easier
The Australian government has moved to give greater powers to spy agencies to intercept people's emails. The Telecommunications (Interception) Amendment Bill 2004 also allows broader warrants to be sought in connection with the investigation of a wider range of serious offences, including terrorism.
[Australian IT]

Mon, 23 Feb 2004 23:46:35 GMT

FBI Announces Anti-Piracy Seal
The FBI has announced a new anti-piracy warning label that will be used on digital music, movies and software. The new label will come in the form of a "seal" that will be affixed to physical products, or displayed as a digital file if downloaded online, cautioning that unauthorized copying can be subject to prosecution.
[News.com]
[Silicon Valley]

Mon, 23 Feb 2004 23:45:59 GMT

321 Studio learns Hollywood's Global Reach
321 Studios Inc. has accused the US movie industry of unfairly influencing copyright and privacy matters overseas, with Australian software distributors pulling copies of DVD X Copy from store shelves being the latest example. 321 executives are suggesting that it was threats of lawsuites that pressured Australian distributors to pull copies of DVD X Copy from store shelves.
[The Washington Post]

Mon, 23 Feb 2004 23:44:30 GMT

Australia Launches Net Traffic Investigation
The Australian federal Government is planning to investigate the international Internet interconnection market, with a particular eye on price distortion caused by "peering". Australian service providers have long been charged to exchange traffic with their US counterparts, who enjoy the relationship free of charge.
[Australian IT]