I've now become convinced that no one actually reads this blog, because not a single soul called me on my failure to predict what SCOTUS would do in MGM v. Grokster. A couple of weeks ago, they did indeed agree to grant cert and the case is scheduled for next spring with a decision expected by June.
So what else is there to say, except that I was wrong? Well, there's an interesting questions of whether the case will be mooted by the time it comes around, or whether a decision will matter in any event. WIRED's story asserts that file trading will continue - the question is whether it will be over industry-sponsored networks like Mashboxx or over whatever replaces Grokster.
Mashboxx is the first network announced with intention to run on top of Snocap, the latest brainstorm from Napster-founder-gone-Cartel, Shawn Fanning. Unlike store-oriented nets like iTunes, Mashboxx is a P2P trading network; however, it uses a central database of song fingerprints to assess fees and associate compensation with the trading activity. Interestingly, Mashboxx is founded by Wayne Rosso, whom you may remember as one of the founders of Grokster. So if it's the same people either way, does it matter?
It does, asserts an opinion piece by Lorraine Woellert in Business Week. Her piece doesn't contain any really deep reasoning - just a review of the assertion that Betamax doctrine is central to the understanding of this case and that SCOTUS may reshape that precedent, possibly to the detriment of a host of technology products such as iPods.
Interestingly, she notes that at the time of the Betamax trial, it was estimated that 10% or less of activity conducted by viewers with their VCRs was strictly legal. Even the Cartel is willing to admit that 10% of Grokster's activity is legit. No clue if that's going to matter here.
I'm personally unhappy that SCOTUS granted cert. and not just because I was wrong. I think the potential for damage is huge. I think the justices don't understand the technology well enough to rule on it. And I think things are just moving too quickly - a solution should be allowed to evolve rather than being forced from the bench. The likelihood that the result will be moot before its issued is prima facie evidence of this.
Posted by dr. wex on December 22, 2004 11:03 AMApple has filed suit against three specific developers (members of the ADC) for putting copies of its new OS, code-named 'Tiger', onto BitTorrent. The story isn't clear on how these three individuals were tracked down. One possibility is that since BitTorrent only hosts pointers to downloadable streams, these people had the actual streams. Another is that pre-release copies of Tiger had some kind of embedded watermark that identified who the original recipient of that copy was. This is an old trick that has been implemented with many technologies, from physical watermarks through digital steganography. In one famous case, the Thatcher government in the UK found out who had been leaking physical memos by causing different copies of memos to have different patterns of whitespace within block-justified paragraphs of text. When the memos were recovered (by subpoena from the BBC, as I recall) it was easy to determine whose copy of the memo had been leaked.
Posted by dr. wex on December 22, 2004 10:52 AMDownhill Battle is promising to send lumps of coal to the RIAA and MPAA. One lump per $100 donated to EFF, Public Knowledge, or IPac. An amusing incentive to charity I suppose, but I don't think it much helps to come across as Scrooge-like.
Posted by dr. wex on December 21, 2004 03:26 PMEver since he led the fight for the DMCA, Orin Hatch has been the Cartel's Number One sock puppet in Congress. He's pushed a variety of offensive and lopsided initiatives. Now Hatch is going to have to step down from the chairmanship of the Senate Judiciary Committee in favor of Arlen Specter.
Specter has gotten a lot of press lately because of his remarks on abortion and judgeship confirmations. But the Judiciary Committee is also a key player in shaping intellectual property law and it will be interesting to see over the next couple of terms how Spector's leadership differs from Hatch's. One bad scenario has Specter reconstituting an IP-focused subcommittee and giving the lead on that to Hatch.
Remarks about the Hatch(et) job continuing are hereby elided.
Posted by dr. wex on December 17, 2004 01:29 PMWell, the Geico v. Google trial is finally underway and mostly over in the Eastern District of Virginia—about a block from my office. For the past three days, Judge Brinkema has heard arguments about the legality of Google’s AdWare program which keyes competitors’ advertisements to GEICO’s trademarks. Basically, Geico doesn’t want competitors using its mark to advertise competing goods and services to Internet users. Google, however, feels that, as a publisher, it merely facilitates comparative advertising, which (offline) has long been recognized as legal; the fact that comparative advertising occurs on the Internet by new technological means shouldn’t matter.
Until today, it’s been an uphill struggle for Google in Virginia. Already, the court has denied Google’s motion to dismiss Lanham Act claims, as well as its motion for summary judgment. Google can’t really afford to lose this one because its trademark keying program is a cash cow. In addition, settlement was never much of an option since doing so would subject Google to suits by numerous other mark holders.
Today, however, Google hit paydirt. Judge Brinkema ruled that there was not enough evidence of a trademark violation to bar Google from displaying ads for competitive insurers when Internet users search using the term “GEICO.”
Obviously pleased with the decision, Google warned American Blind (assumed) that “this is a clear signal to other litigants that our keyword policy is lawful.” For over a year, Google has been embroiled in a legal dispute in the Northern District of California with American Blind. Google initiated a declaratory judgment action in response to threats that its trademark keying practices permitted competitors to “confuse customers and capitalize illegally on [American Blind’s] goodwill and reputation by purchasing substantially similar keywords.” On September 17, 2004, the court held a hearing on Google’s motion to dismiss, but it has not yet decided the motion. If the court waits a bit longer, it will have the Eastern District of Virginia’s decision to consider.
Back in Virginia, Judge Brinkema indicated that the case will proceed on the narrow issue of whether Google should be barred from displaying ads for other insurers that contain the term GEICO. But, Google claims to already have a policy in place that excludes such ads.
Additional sources:
Washingtonpost.com article regarding geico v. google trial, at http://www.washingtonpost.com/wp-dyn/articles/A62248-2004Dec13.html?sub=new
Reuters news article, at http://www.reuters.com/newsArticle.jhtml?type=internetNews&storyID=7103733
GEICO v. Google, Inc. (E.D. Va. May 5, 2004) (No. Civil 04-507)
Google, Inc. v. Am. Blind & Wallpaper Factory, Inc. (N.D. Cal. Nov. 26, 2003) (No. Civil 03-5340).
The Supreme Court issued a "near" unanimous decision (some of the justices dissented on a couple of footnotes) in a case questioning whether rival companies can use each others' trademarked terms.
The case is KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., et al and it came up from the Ninth Circuit. In the case, the justices held that a company wishing to employ a fair use defense does not have to show a lack of confusion. Tough to prove a negative in any event. What this case means is that consumer confusion can be shown in a counter to a fair use defense, but the burden is now on the complainant to show confusion, even if the term is protected by trademark or other special registration.
Posted by dr. wex on December 9, 2004 11:18 AMTony Mauro has an interesting opinion piece on law.com in which he notes that MGM v. Grokster is scheduled for this Friday's SCOTUS private conference, at which they may decide to grant or deny cert.
He notes that the elderly judges are going to be asked to parse through a technology that confuses even some among the technorati. No hints on which way he thinks the Supremes will go, though. I'm still betting on denial, particularly given how hot this issue is in Congress.
Posted by dr. wex on December 9, 2004 11:10 AMReaders of this blog are familiar with names like ClearPlay and their technique of rendering Hollywood films "family friendly." Never mind that the filmmakers aren't exactly thrilled with this post-release editing.
Now, in a note to Farber's Interesting People list, Lauren Weinstein points out a creepy feature of Google Groups. To wit: it hides all email addresses. Not just the addresses of current newsgroup posters who want to avoid getting spam... it hides ALL addresses, including historical postings Google took over, addresses placed inside message bodies, etc.
On the one hand, this is just as laudable a goal (preventing people from getting spammed) as creating family-friendly content. However, the fact is that Google doesn't own the copyright to those postings, nor does it have permission from tens of thousands of people to obscure their addresses or rewrite hundreds of thousands of news postings.
The whole thing would be a lot less shady if you could simply turn this feature off or on, as a reader. However, it appears to be part of a scheme to promote gmail, since the only way to respond to a newsgroup poster now is to create and login to a gmail
account, then send your message to the author through gmail.
What was that motto about doing no evil, again?
Posted by dr. wex on December 9, 2004 07:41 AMReaders of this blog are familiar with names like ClearPlay and their technique of rendering Hollywood films "family friendly." Never mind that the filmmakers aren't exactly thrilled with this post-release editing.
Now, in a note to Farber's Interesting People list, Lauren Weinstein points out a creepy feature of Google Groups. To wit: it hides all email addresses. Not just the addresses of current newsgroup posters who want to avoid getting spam... it hides ALL addresses, including historical postings Google took over, addresses placed inside message bodies, etc.
On the one hand, this is just as laudable a goal (preventing people from getting spammed) as creating family-friendly content. However, the fact is that Google doesn't own the copyright to those postings, nor does it have permission from tens of thousands of people to obscure their addresses or rewrite hundreds of thousands of news postings.
The whole thing would be a lot less shady if you could simply turn this feature off or on, as a reader. However, it appears to be part of a scheme to promote gmail, since the only way to respond to a newsgroup poster now is to create and login to a gmail account, then send your message to the author through gmail.
What was that motto about doing no evil, again?
Posted by dr. wex on December 9, 2004 07:41 AMIf the Aussies want to see how the Cartel treat their nominal allies they need look no further than the new lawsuit filed by the DVD Copy Control Association (DVD CCA) against Kaleidoscope.
Kaleidoscope makes some expensive home entertainment gear that uploads a bunch of DVD movies onto a central server, permitting the consumer to have a video jukebox without the hassle of swapping disks around. This, says the CCA, is verboten. Kaleidoscope claims to be surprised by the suit, considering it has been in licensing talks with the CCA for over a year and got a license to DeCSS the disks. However, it now appears that the Cartel doesn't like the way that the disks are being used.
Microsoft and a number of other companies are going to have to follow this suit very carefully, as the Kaleidoscope jukebox is pretty much exactly what they plan to do with new products like the Home Media Center PC. It's all about control and the Cartel's unwillingness to give up even one iota of it.
Posted by dr. wex on December 8, 2004 12:27 PMThe Cartel's dream has come true. Crusading NY Attorney General Elliot Spitzer has declared his candidacy for New York State Governor. As I mentioned a bit ago, this has got to be a Cartel wet dream. I expect to see them funding his campaign heavily, if only to get him the heck out of the AG spot where he's poised to do considerable damage.
If he wins this puts him in the governorship from 2006-2010 and would make him a leading contender for the Democratic ticket in 2012 or 2016. You heard it here first. This is Evil Politics, not Tech IP, so I probably won't blog it much. But this should make the upcoming political season more interesting.
Posted by dr. wex on December 8, 2004 12:18 PMThe Australians appear to be about to learn the hard way what US ISPs have also learned. Never buy a pig in a poke. Get it in writing. And similar sentiments.
Here's the deal: for a while now the US has been pressuring Australia to implement a DMCA regime. There's a lot to be said about the American campaign to export its national DRM scheme under the guise of bilateral trade agreements, but not here not now.
A key issue has been liability. As in the US, companies want to be shielded from liability. Specifically, if the law includes a DMCA-like "takedown" provision under which ISPs have to remove contentious content after getting a notice of potential violation they want to be shielded from liability for doing so. The current laws don't provide this shield and companies like Telstra have been lobbying against the law on this basis. Now the government has made promises and the ISPs seem to be withdrawing their objections to the law.
This is a stupid idea in a contest over a stupid law. US ISPs learned this past year that the Cartel has no loyalty to its agreements and it is happy to strip away immunity shields, to bury ISPs in a blizzard of robo-generated takedown notices, and generally to behave as a playground bully. Anyone who thinks it'll be different this time is not only naive but severely missing the point.
Paging Ms. Deutsch! Paging Ms. Deutsch!
Posted by dr. wex on December 8, 2004 12:00 PMProps to Neil Gaiman for blogging this bit from the Comic Book Legal Defense Fund (CBLDF):
CBLDF are reporting that US Customs has seized comics called Stripburger from Top Shelf Productions based on an assertion that they contain "clearly piratical copies" of registered and recorded copyrights.
The material in question involves a parody "Richie Bush," that satirizes President Bush as Richie Rich, and "Richie Bush," which contains visual homages to Peanuts comic characters Snoopy, Charlie Brown, and Woodstock.
CBLDF are arguing that the material is short segments protected under the copyright exceptions for parody and that seizure of the material without a court judgement is unlawful prior restraint. Customs has yet to respond.
Posted by dr. wex on December 7, 2004 09:34 AMPlaintiffs Brewster Kahle, founder of the Internet Archive, and Rick Prelinger, founder of the Prelinger Archives, have announced plans to appeal the peremptory dismissal of their complaint. Good on them.
The case challenges the principal change of copyright regime in the late 20th Century: from an opt-in to an opt-out regime. The four specific laws at issue are the Copyright Renewal Act of 1992, the Sony Bono Copyright Term Extension Act, the Copyright Act of 1976. and the Berne Convention Implementation Act.
The basic principle of Berne is that material is 'born copyrighted.' Unlike in the past when creators had to register and maintain a copyright, Berne says that stuff just is copyrighted, even if the creator doesn't wish it and does nothing to make it so. If you want your work to be available to others, you have to take an affirmative step to disclaim copyright and release the material. What Kahle & Prelinger want to argue is that this change presents an unreasonable burden on speech.
In effect, both men are trying to build libraries that, like the physical libraries of their youth, contain thousands of volumes unavailable elsewhere. However, in the digital world that's no longer possible. The trial judge, Maxine Chesney, dismissed the suit without a hearing on the issues. My guess is that the Ninth will send it back for an actual hearing, she'll rule the same way, and it'll end up back at the Ninth late next year on another appeal.
Prepare for more DMCA esoterica ahead.
In a previous entry I discussed the gaping holes in our understanding of the rules of evidence related to Web pages. Now the Ninth Circuit has rendered a decision on another important aspect of how the DMCA is to be used: what counts for takedown notice.
The case, Rossi v. MPAA, involved a person who maintained a site (internetmovies.com) offering "downloadable movies." The MPAA filed for a takedown and Rossi sued, claiming that the DMCA's takedown provision (formally known as Sec. 512(c)(3)(A)) required the complainant to engage in an investigation to determine if the subject material was indeed in violation of their copyrights. The MPAA argued that the law simply required a good faith belief.
In essence the question is whether there is an objective standard for violations or whether a subjective standard is good enough. What Judge Johnnie B. Rawlinson has said is that faith is sufficient under the law. The DMCA does include releif for people who have been the subject of improper infringement notices, but that releif requires showing that the complainant acted in bad faith, or knowingly misrepresented the situation.
That may be the way the law is written, but it imposes a difficult standard to meet and one that effectively gives free reign to the filing of complaints. We already have evidence for this, as I mentioned back in May, when I blogged a talk by Verizon general counsel Sarah Deutsch in which she complained of a "blizzard" of takedown notices (over 30,000 in one month) most of which are auto-generated and most of which are wrong. As Rossi's defense argued, the equivalent argument would be that a book should be taken off the shelves for plagiarism merely based on what is on the cover, without the need to find any actual plagiarism in the text.
I feel this is a bad section of the law and I hope that an en banc hearing will delve more deeply into the First Amendment issues raised by this kind of suppression. I continue to hold out little hope that the SCOTUS will take a case like this.
Posted by dr. wex on December 3, 2004 09:14 AMI am always amused by analyst studies. That's because, in a former existence, I worked with analysts. Most were escapees from Big Five consulting companies and others had worked for companies like Gartner and Jupiter that get paid stupendous sums of money to do "research" on various topics.
As one who has "research" published - of the peer-reviewed sort - I had certain expectations on what would be considered "research" in this field. Lord was I ever wrong. "Market research" is a bizarre chimera of surveying, plus semi-educated guesswork and heavy political influence.
So with salt shaker firmly in hand let us turn to the latest pronouncement from these Delphic oracles. Jupiter Research's latest study purports to tell us that subscription services will overtake singles-downloading. They come to this conclusion not based on any actual market research (which would tell them that iTunes has more customers than all subscription services combined) but based on surveys of a couple thousand people, which showed that older folk (over 18s) use subscription services more than teenagers (13-17).
Yes, folks, there you have it. Market research at its best.
The CNET story has a couple of really amusing howlers in it, of which my favorite is this:
Jupiter said the survey also showed that CDs won't be replaced by digital music in the next five years.
Five days to go and it's out of my price range:
A special (unauthorized) edition of the iPod: U2 vs Negativland edition.
Includes pre-loaded CD material, the book, and all the special features of the official U2 edition. Proceeds to benefit Downhill Battle in its fight for changing the music portion of the Cartel.