Congratulations, you've inherited the US Intellectual Property mess. That'll be 5 rupees please...
According to a Merc News item a small San Carlos software company has sued Mumbai police for refusing to investigate the alleged theft of proprietary source code by an employee at its Indian subsidiary.
Basically, the company (Jolly Technologies; no I'm not making that up) outsourced a bunch of R&D to a new facility in Mumbai. An employee there was caught uploading source codes and design documents to a Yahoo mail account. She was confronted and vanished. The cops shrugged, refusing to even register the complaint. Jolly Technologies sued after it couldn't get any satisfaction locally or at the national level.
Indian law lacks some of the statutes that US companies rely on to deter and punish thefts, such as criminal laws prohibiting trade theft. Solidworks, an MA-based software company, is currently working through a civil case in India because they can't get a criminal case together.
If you think this is bad, wait until outsourcing gets really big in China. India at least has a colonial legacy of Western-style jurisprudence and strong bilateral IP treaties with the US and Western Europe. China has... Chinese style. I don't know how well the two will mesh, but I suspect some nontrivial upheavals are in the offing.
Posted by dr. wex on August 27, 2004 12:23 PMAs colleges and universities gear up for the imminent return of students after Labor Day, we're starting to see a raft of stories on various measures taken in response to the flood of music downloading.
In some cases, the flood is literal, with estimates of up to 90% of university network traffic being consumed by P2P applications. In other cases, it's a social flood, with file sharing having become "ingrained" into the culture. And over all hangs the omnipresent Cartel jihad that has, so far, sued 158 individuals at 35 colleges. The schools want to avoid legal liability, control excessive bandwidth usage, but not engender revolts.
As a results we're seeing a variety of experiments going on. Some schools have signed agreements with services like the reborn Napster 2.0 to allow legal downloading. Students may pay a la carte, by monthly subscription, or by annual/semester fees, depending their school's particular deal. Some colleges have developed or deployed bandwidth-throttling software, some of which target specific ports or sites used by popular P2P programs such as Kazaa.
Of course, the big question is whether any of this will have an effect on the file-trading culture itself. It's clear that the talking head "just say no" approach has failed miserably. Some pundits are asserting that the current crop of trials will not have any effect (e.g. Eric Garland, CEO of BigChampagne) but I'm less sure.
College remains a time of experimentation and learning for students and many cultural patterns are learned, shaped, and changed. To the extent that colleges offer clear alternatives behaviors that fit well with students' lifestyles and desires behaviors can change and do change. It's entirely possible that, four years from now, we'll have tens of thousands of new graduates who think it's perfectly reasonable to pay a few dollars a month to subscribe to music services just the way they subscribe to cable TV or cell phone services now.
Sources:
Washington Times article
Reuters article
Houston Chronicle article
To most of us, we knew the first time that we viewed Jib Jab's animated short that it is an effective parody protected by the fair use doctrine. Even after more thoughtfully examining the issue in the context of copyright law jurisprudence, we saw that Ludlow's position was extremely tenuous. Ludlow Music, however, just now came around, accepting the same conclusion and settling its dispute with Jib Jab.
Although the specifics remain undisclosed, Ludlow is backing off on claims of infringement. In exchange, Jib Jab dismissed its suit seeking a declaratory judgment that it does not engage in copyright infringement and that Ludlow misuses its copyright. Jib Jab's complaint also alleged that the original Guthrie work was in the public domain. In the words of senior EFF attorney Fred von Lohmann, "We believe that Guthrie's classic tune, 'This Land Is Your Land,' belongs to all of us now, just like Amazing Grace and Beethoven's symphonies."
Obviously, Jib Jab, the attorneys at EFF, and the public at large have much to celebrate. This copyfight is over.
EFF press release:
http://www.eff.org/news/archives/2004_08.php#001838
July 29, Jib Jab answered Ludlow Music's threats of suit based on copyright infringement of the original Guthrie song, This Land Is Your Land. In the Northern District of California, Jib Jab asked the federal court for a judgment finding: (1) that its enormously successful animated short, This Land, is protected by the First Amendment and copyright's fair use doctrine; and (2) that Ludlow Music misuses its copyright.
Regarding non-infringement, Jib Jab makes two points. Unsurprisingly, Jib Jab argues that its work constitutes a parodic fair use because it is transformative of the original Guthrie song. More interestingly, however, the parodist jibes that "the copyright on the Guthrie Composition has expired or is invalid." Jib Jab supports its claim with the oft-cited fact that the Guthrie song derives from the Carter Family song, When the World's On Fire. The prayer for relief then asks the court to find that the Guthrie work is not protected by copyright law and/or that it is now in the public domain.
Regarding copyright misuse, Jib Jab contends that Ludlow Music's motivation in seeking the removal of This Land from the Internet, is "to stifle free speech and artistic commentary on the Guthrie Composition." Jib Jab wants the court to find that Ludlow knew or should have known that This Land is a parody protected as a fair use, and not a copyright infringement.
Monetarily, Jib Jab asks the court for damages, attorney fees, and costs; but the real cost of losing could be much greater for Ludlow. If Jib Jab is correct, Ludlow Music will undoubtedly regret ever initiating this copyfight; we will all be able to make parodic and any other use of the Guthrie original.
Posted by jason allen cody on August 20, 2004 11:47 AMFollowing an unexpected reversal in April of last year of their worldwide legal sweep, the Cartel has just received a major setback from the 9th Circuit.
This story is ALL over the press and the blogs and more learned commentators will surely weigh in, but I couldn't let the opportunity pass.
A three-judge panel delivered a stinging rebuke to the Cartel's interpretation of the law and its larger agenda. I think it's interesting to compare vocabulary here:
First we have the justices cautioning against an "[exponential expansion] in the reach of the doctrines of contributory and vicarious copyright infringement."
The majority opinion (written by Judge Sidney Thomas) also goes to some pains to remind the Cartel that Betamax is still the decided law of the land. The phrase "...conflict with binding precedent..." is used, which I would read as Thomas saying that copyright is a Constitutional matter and since SCOTUS has spoken the Cartel can't just ask Congress to flip the laws around and have it wished away. Any attempt by the Cartel's Congressional sock puppets to redefine copyright would have to stand up to Constitutional scrutiny and, insofar as we have a precedent, a good prima facie argument could be made that such a law would be unconstitutional.
As many of the analysts have pointed out, the Thomas decision focuses on the factual basis. Here's how I read it:
It's also worthy of note that the Thomas opinion eschews the use of the word "piracy" that has been so much in vogue lately. The word simply doesn't appear in the decision text at all, so far as I can see.
Put THAT in your pipe and smoke it.
The Cartel, on the other hand, still seem to be smoking the same crack pipe it has been hitting off of all along. Here we have Mitch Bainwol (the new RIAA CEO) blustering "This decision does nothing to absolve these businesses from their responsibility as corporate citizens to address the rampant illegal use of their networks." Actually, Mitch, that's pretty much PRECISELY what the decision does. In the same way that Xerox isn't responsible if you photocopy a book, and HP isn't responsible if you print out and sell bound copies of an e-book, Kazaa and Grokster really don't need to lose sleep about what their customers do with their tools.
Finally, a point of wishful thinking to Fred von Lohmann, attorney for the EFF, who asserts that this decision clears the way for other technologies such as ReplayTV that the Cartel have tried to smash. Wouldn't that be nice? Yes, and no it won't happen that way. The Cartel pay lots of good lawyers lots of good money to argue that existing precedent is irrelevant - see how they ignored Betamax in the first place. This decision is only binding in the 9th Circuit. Other jurisdictions might respect it. Or they might not. Certainly the Cartel has found no end of compliant trial judges up to now.
Which leads to the "what happens next" question. The Cartel haven't yet said whether they'll appeal. I believe the next step would be to request an en banc hearing from all of the 9th, which they might get, or move directly for cert from SCOTUS, which I believe would be denied. As I've said before, this Supreme Court does a very good job of dodging intellectual property cases and I don't see any compelling grounds to take this one over any others (but read below).
The Cartel also has to reason that the higher up they go the more binding the precedent would become. It's possible SCOTUS would decide to overturn Betamax and hand the Cartel the whole shooting match in one go. Or they might not. If they held that the Betamax doctrine was properly applied in this case that would be a truly major defeat and the Cartel has a history of backing away from situations where they think they'll lose.
Tim Wu, blogging in Lessig's blog, lists seven reasons why he thinks SCOTUS would grant cert. I think he's mostly full of it. His reasons 1 & 2 state that there's a conflict between the 9th and 7th Circuits. That's the one good reason I can see that they might. The rest of his reasons are just silly and ignore the fact that this court isn't prior courts and that two justices can't compel cert by themselves.
Wu's comments on the MGM v. Grokster decision are a bit more cogent. He highlights a potential weakness in the decision, where Thomas differs from
Posner's findings in the Aimster case. The issue, called "willful blindness," has to do with whether a company knowingly turns a blind eye to what's going on. In essence, if the Court finds that a company used technological choice (like system architecture) solely to execute an end run around the law, then the company can still be found guilty despite passing the "betamax test." Wu believes that this will be the linchpin of arguments before SCOTUS. Eh, mebbe. I'd bet a good dinner it won't.
Like many of the other commentators, I expect the Cartel will not appeal, and instead will shift gears for a while, trying to get new legislation through in the fall session of Congress. The Thomas opinion is a win, no doubt, but the Copyright Wars are far from over.
Trial case coverage:
Wired News article
c|net article
Current coverage:
Wired News article
c|net article
NY Times article
LA Times article
Decision:
FindLaw
The Blogsphere
http://www.corante.com/copyfight/archives/005752.html (et seq)
http://www.freedom-to-tinker.com/archives/000665.html
http://www.lessig.org/blog/archives/002103.shtml
http://www.lessig.org/blog/archives/002102.shtml
http://www.corante.com/importance/archives/005751.php (mostly links to other postings. Like I said, everyone and his brother weighing in)
Posted by dr. wex on August 20, 2004 09:26 AMIn MGM Studios v. Grokster, the Ninth Circuit has ruled that P2P networks, such as Grokster and KaZaa, are not liable for contributory and vicarious copyright infringement by users.
I leave the discussion of the ruling's ramifications to others, but would like to congratulate the many defendants and their attorneys on a major victory.
Background Materials:
"How the Motion Picture and Recording Industries are Losing the Copyright War by Fighting Misdirected Battles," By Peter Yu
RIAA Lawyers
MPAA Lawyers
EFF Defense Lawyers
The one-liner says that the FCC approved certain TiVo features that permit TiVo subscribers to send copies of recorded shows over the Internet. The very idea has the Cartel (and major-league sports; more on that below) in a tizzy.
However, the deeper notion is more interesting. The FCC ruled that TiVo's proposed "Digital Output Protection Technology" was sufficiently well-designed to prevent the content from being generally propagated.
The DOPT appears to be somewhat similar to Apple's iTunes scheme, in that users are restricted to sending content among (up to 10) TiVo units sharing an account. It's not immediately clear to me why one account would have more than one TiVo registered (perhaps a dormitory or a family with kids at college?) nor how much hassle it is to move content around.
Still, this is the first time the FCC has approved a copy technology that doesn't include the broadcast flag, and the decision suggests that the FCC might be open to more such schemes. This is a significant departure from previous situations.
One of the tipping issues in this case is apparently that TiVo's system doesn't include so-called "proximity" restrictions. The registered devices don't have to be anywhere near each other in meatspace. This is mostly what has the sports leagues wringing their hands because they're afraid of people sharing sports games with areas that are "blacked out" - typically a home city for games that don't sell out. Hey guys, how about you do less suing and more working with the stadiums and teams to make the live experience more attractive, eh? Attendance at live sporting events is generally plummeting around the country and a few dozen TiVo viewers isn't going to make a whit of difference.
http://news.com.com/...
http://www.washingtonpost.com/...
Attorneys general of 45 states have signed on to a letter urging P2P software companies such as Kazaa not to implement encryption or other identity-disguising features. The letter warns of legal consequences if the companies don't adequately warn consumers of the legal and security dangers of file sharing.
Company lawyers and the EFF have shot back that it's really not the states' business to tell software companies what features to implement and that states have no jurisdiction over copyright disputes that come after 1972.
This is true, but I think it misses two important points. One is that the Cartel is showing its strength. Some of these AGs sued the Cartel not too long ago for CD price fixing. Now they're best buddies?
Two, this is probably not an idle threat. This is probably the first move in a Cartel effort to open a new front in the Copyright wars. When (and I say when, not if) a state-level case is filed it won't be over Copyright - it'll be over consumer fraud or a similar state-level statute. State AGs sue big companies all the time - some make quite a name for themselves doing so.
The Federal court push against P2P has largely ground to a halt. The Cartel are losing hundreds of thousands, if not millions, of dollars per year on that fight. They need someone else to carry the legal ball for them, someone with a big budget and little consequence if they lose. State AGs fit this bill nicely.
Meanwhile the P2P companies will continue to bleed cash as they are forced to defend themselves in several states at once.
The Cartel are venal, but not stupid.
http://www.siliconvalley.com/mld/siliconvalley/9329960.htm
Edit: A reader pointed me to two other more knowledgeable bloggers' comments, which I should reference here. First up, Ed Felten points to some technical howlers in the AGs letter.
Over on Corante, Ernest Miller has a copy of the letter and he really rips it point by point.
Miller has some good points, but he veers into pointless political polemic (and I should know). I do respect a man who can use "full of bullshit" and "cheap sensationalism" as part of his rant.
I stand by my main point, though. The content of the letter is mostly irrelevant. What matters is that it was sent and what we make of that signal. I still predict nothing good can come of it.
Posted by dr. wex on August 6, 2004 01:15 PMAshlee Vance notes for The Reg that the US and Australia have moved >< this close to signing another in the ongoing series of bilateral trade deals that the US is using to push its DMCA regime on the rest of the world. Sticking points are less the heinous nature of the intellectual property laws than imperialism by US drug-makers (and patent holders) as well as cultural imperialism
The carrot, as always, is lower trade tariffs. The stick is that open source may get the shaft again, as noted by the Linux Australia Position Paper on this trade agreement.
The paper argues that Aussie coders would be prevented by the proposed language of the agreement from participating in open source projects and that trade will in the end be hurt by the exclusion of basically everyone except the software giants (all of them US-based) from competing for software business.
Posted by dr. wex on August 5, 2004 10:16 AMHenry Jenkins blogs in on MIT Tech Review's blog with a concise and cogent commentary on the mini-flap over This Land, a decent parody of the current political sniping. Seems that some imbecile at Ludlow Music is trying to claim ownership of the words and music to "This Land is Your Land".
Woodie's either spinning in his grave or laughing mightily. Can't quite figure out which. Corante has a partial transcript of an interview with Arlo in which the latter says that his dad would have "loved the humor in it." So there you go.
The EFF has pointed out that Guthrie lifted the tune for "This Land" from an older Carter Family song. They have a short MP3 clip on their site to prove their point. EFF is now filing suit on behalf of JibJab asking for a preemptive declaration.
http://www.eff.org/deeplinks/archives/001779.php
http://www.eff.org/deeplinks/archives/001782.php