Hal Varian, the economist, has a nice editorial on orphan works.
After the silly editorial by Mark Helprin, who has obviously been confused by an absolutist romantic view of “property”, the NYT published 7 or 8 letters all in substantive disagreement. Now their theater section looks at another problem that copyright terms can cause: over-control of casting decisions by playwright’s heirs.
Since Bernard-Marie Koltès died in 1989 at 41, his reputation as a playwright has continued to grow. In February, for the first time, one of his plays, “Le Retour au Désert,” entered the repertory of the Comédie-Française, the historic Paris theater popularly known as the House of Molière.
Yet soon after Muriel Mayette’s production of the play opened there, Mr. Koltès’s brother, François, who owns the copyright to his works, ordered that it be taken off the stage on June 7 after just 30 performances. The reason? The Algerian character, Aziz, is not being played by an Algerian, as stipulated by the playwright.
So, I’ve been posting a lot because my computer (beloved SugarPunk) is freaking out on me, and while I’ve been waiting to take delivery of a new HD, and working through various problems cloning it, and trying to recover data … all that time I have not much access to my actual files. So naturally I have more time on the Internet and my online life, because my realtime life is impeded by my lack of computer. Am I worried that my realtime life is so … mediated … my a computer? Only when it breaks down.
It seems that every few years I’m doomed to have a data catastrophe. (A datastrophe?)
Most recently, I observed that my beloved SugarPunk (the very last generation of titanium powerbooks, running 10.4) was about to give up the ghost on her hard drive. Her 60G HD had been in use pretty much 18 hours/day for four years, so I bear no grudges, but when I saw the tell-tale signs I hastily did a data backup that was a month or so overdue.
Sure enough, the HD became audibly unhappy within another couple of days, and I ordered a 100G replacement. I couldn’t even get the original to boot up any more, so I swapped in the new one. Of course it had been a long time since I did a full backup, and it had gotten partially erased in the meantime, and my system disks for 10.4 are back in california, so, with one thing and another, I ended up cloning a 10.3 hard drive from my GF’s first-generation aluminum powerbook.
So I’ll live with this, for now. Outstanding issues to resolve:
- I’m missing some data files that I hope to still pull off sugarpunk’s original 60G HD as soon as I get the right enclosure kit (I had my hands on an IDE kit, but somehow bought the SATA. Why? Because my data management is CURSED this week. And because the shelves at MicroCenter were chaotic. It certainly wasn’t my fault.) Unfortunately the data files include a substantial portion of 2007 work. So I’m still a bit hampered and at sea.
- Data backups. I bought a new 500G HD + enclosure kit & am going to do the smart thing & do a real backup regime with a periodic HD image as well as systematic incremental backups. The problem that I always face, though, and haven’t figured out a way around yet, is that for personal backups, imaging just doesn’t cut it. Because if you move your stuff around a lot you will inevitably overwrite or delete something you didn’t want to. I am *obsessive* about backups and data retention and this still happens to me. So imaging-style backups always kill something. I just need to do date-stamped incrementals, that’s all. Sigh.
- Weirdly, when my machine boots up I get the missing system disk flashing folder icon for about two flashes, and then it finishes booting up like normal. I can’t figure this out. I wondered if maybe it was because I’ve cribbed an aluminum powerbook’s files to my tibook, but isn’t that flashing disk icon a firmware-related signal?
- And I wonder if the flashing system disk flash is related to another weird booting problem I’m having, which is that sugarpunk will not boot in target disk mode. As soon as I get the chime the HD just spins down again. This is the new HD, which disk utility says is just fine. ??? What gives ??? Firewire is alive and well, because I can hook up a firewire drive no problems. (In fact that’s how I cloned: I set up our aluminum powerbook (“Curmudgeon”) in target disk mode, and then booted sugarpunk off curmudgeon as an external drive. Sugarpunk running off curmudgeon’s OS saw sugarpunk’s new 100G HD no problem and I was able to format etc. Hmm.
I’ve written before about the ways in which criminalizing specific medical procedures — e.g., the “partial birth abortion act” — is a technological mandate. As a technological mandate, bans on specific abortion procedures are subject to all the same flaws, overreaches, underreaches, definitional problems, and obsolescence problems that mandates involving technological protection measures for copyrighted works are. As with people’s experiences with DRM, the best way to see the problems with these kinds of rules is to hear the stories of women who have had “partial birth abortions”. I encourage geek liberators to think about technological mandates more broadly.
James Comey’s testimony Tuesday before Congress was riveting.
The OECD is releasing a study confirming that entertainment & IP industries puff up their “lost to piracy” figures — by a lot. Actual losses are under $200 billion worldwide per year. The industry estimates at $600 to $1000 billion or more per year.
… And is there any evidence-based lawmaking afoot? No, there is not. Apparently the DOJ is even more of an evidence-free and knowledge-free zone than we knew. Gonzalez is pressing Congress to pass the “Intellectual Property Protection Act of 2007”. (Perhaps if he focused more on his pressing scandals and less on unnecessary bills he would “misspeak” less often.)
The IPPA recycles a lot of bad proposals from last year’s similar bill, which generally step up the pace of criminalizing copyright infringement, permit more wiretaps (don’t they have enough?), etc. There is a crime of life imprisonment for using pirated software if you recklessly cause or attempt to cause death. The DOJ gave an example of a hospital using pirated software instead of paying for it. … And this would lead to death, how? Never mind. Moving on … More wiretaps, more computer seizures, criminalize “attempts” to infringe, bigger penalties for circumventing TPMs, require Homeland Security to call the RIAA whenever Customs sees bootleg CDs. Bigger penalties of money and jailtime. The War on Drugs is leading by a nose, but the War on IP Piracy is gaining rapidly in the Race of Follies.
The bill was amusingly described by Declan McCullough as “the most dramatic rewrite of copyright law since a 2005 measure dealing with pre-release piracy”. I think that our diminished standards of drama and frequency suggest just how often we’re having to fend off ridiculous bills being pushed by the industry and/or some discredited government hack.
Last year’s version was so soundly decried that it didn’t go anywhere, and we can hope we’re as lucky this year.
No, I’m not kidding. Go read the article. 52 patents for tax strategies have been issued since the first was issued in 2003, and 84 more are pending.
If this annoys you and causes you to mutter grumpily about State Street Bank and the Federal Circuit*, put a smile on your face with an early May review of KSR v. Teleflex: Another in a long string of Supreme Court rebukes to the Fed. Circuit and its “a patent in every pot” philosophy. Yaay non-obviousness standard! **
* I was going to link to Wikipedia for a quick review of the Fed Circuit for folks, but the wikipedia entry sucks: It includes all the employment history of the Fed Circuit and none of the substantive discussion about the rationales for creating it, the criticisms (a lot) and praise (not as much), and attempts to tinker with its structure or copy it for other areas of law. The State Street Bank entry is also not great but it gives citation, link to file, and a basic overview, so it was Good Enough.
** It’s interesting how Kennedy rejected a “rigid approach” for interpreting non-obviousness, because it might not keep up with technology. I compare this decision somewhat bitterly with his opinion in Gonzalez v. Carhart, in which he has no problem applying a rigid standard based on a particular technology (a surgical approach). He premised the right to create a blanket legal rule banning a particular surgical procedure — effectively a technological mandate — on, what? His decision that there was insufficient medical evidence to justify permitting the procedure and that the patients needed the paternalistic supervision of the State lest they make a decision they would regret later on. (Needless to say there was considerably more evidence that the procedure is medically advised in some situations, than there was evidence of any need for state paternalism to protect the emotional welfare of citizens.) I guess rigidity is okay when the patriarchy is involved.
The Ninth Circuit has weighed in on Perfect 10 v. Google (captioned Perfect 10 v. Amazon.com on the 9th Circuit case download website). The opinion is by Ikuta, who (IMO) got it right on the Fair Housing Council decision yesterday. It’s a long opinion, and I’m still working through it. But here’s a summary of holdings from my first quick scan:
- Liability for thumbnails — P10 made out a prima facie case of direct liability for Google’s display of thumbnails (affirming lower court) (but see fair use below)
- No direct liability for display on linking to full-size images (affirming lower court): Specifically,
“While in-link linking and framing may cause some computer users to believe they are viewing a single Google webpage, the Copyright Act, unlike the Trademark Act, does not protect a copyright holder against acts that cause consumer confusion.” (at 5772, pdf p.19)
- No direct liability for display of cache (affirming lower court)
- No direct liability for distribution of full-size image (affirming lower court) (distinguishing Hotaling v. LDS (4th 1997) & Napster)
- Fair use for thumbnails & vacated preliminary injunction for Google’s thumbnails (reversing lower court)
- purpose & character of the use: Google’s use was so highly transformative (“significantly transformative nature of Google’s search engine, particularly in light of its public benefit” at 5782/PDF p.29) that it outweighs superseding & commercial uses; the superseding uses were trivial because no evidence that downloads for mobile phone use had taken place. District Court’s determination that use of thumbnails in AdSense partner direction was not significant. Instead of weighing “slightly” in favor of P10 as the District Court found, this favor weighs for Google. (reversing Dist Ct)
- nature of the copyrighted work: photos were creative but previously published; this factor weighs “only slightly” to P10 (affirming Dist Ct)
- amount & substantiality: did not weigh in favor of either party because reasonable in light of the purpose of a search engine (affirming Dist Ct)
- effect on the market: no effect of thumbnails for full-size images (affirming Dist Ct); effect of Google’s thumbnails for P10’s cell phone market “remains hypothetical”; so this factor favors neither party (reversing Dist Ct)
- Possibility of contributory infringement & enunciated a new test (reversing & remanding) Citing Grokster, Napster, and Netcom, the court found the Dist Ct had erred in assuming that Google did not materially contribute to infringing conduct.
“Applying our test, Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10’s copyrighted works, and failed to take such steps.” (at 5793 / PDF p.40)
Remanded for consideration of “whether Perfect 10 would likely succeed in establishing that Google was contributorily liable for in-line linking to full-size infringing images under the test enunciated today.”
- No vicarious liability (affirming District Court)
- Remand to do DMCA 512 analysis: The 9th said because there is now a possibility of contributory infringement, the District Court now has to do the DMCA 512(d) analysis to see whether Google met the qualifications for takedowns. The issues are whether, as P10 alleges, Google was not expeditious in takedown; and whether, as Google alleges, P10’s notice was not sufficient and did not comply with provisions.
- Amazon.com: No direct infringement for linking to Google’s thumbnails or P10’s fullsize images, and no vicarious liability (affirming District Court). However, the Napster “knowledge” test (“actual knowledge that specific infringing material is available using its system”) popped up here as in Google, and so 9th remanded to consider this contributory infringement and the DMCA safe harbor.
….update 5/18: Thinking about the decision some more, I still really appreciate the “public benefit” aspect of the language that I previously highlighted. Probably not something that most artists will be able to rely on, but very helpful for information and indexing resources — so librarians can breathe a sigh of relief.
Various other scholars & interested parties have pointed out their own highlights:
- Eric Goldman posted a brief comment on the case, pointing out that the court held that a plaintiff must disprove fair use, which Joe Gratz also pointed out. I was also amused to see his take on the case as difficult to teach.
- Joe Gratz listed several points of interest, including the public interest point that I like.
- John Ottovani posted also, pointing out that the court clarified that Section 512 is available for direct as well as contributory infringement. Hmm.
- Jason Schultz @ EFF calls the decision a “huge victory” and parses out some of his insights.
- Rebecca Tushnet points out the possible significance of footnote 8 for the Google Booksearch lawsuit, and also speculates on the transformativeness of search engines versus parodies.
- The Washington Post covered the case too.
The Ninth Circuit reversed the lower court in Fair Housing Council v. Roommate.com, limiting Section 230. Section 230 is the federal statute that immunizes online services providers for their users’ content. Most courts have construed Section 230 broadly, protecting ISPs against all sorts of liability. Intellectual property is (surprise) specifically exempted.
In this case, the Fair Housing Council sued Roommate.com for violations of the Fair Housing Act, which prohibits housing advertisements that state discriminatory preferences. The lower court held that Roommate.com, as an online provider, was immunized by Section 230 for postings on its service that allegedly violate the Fair Housing Act’s discriminatory housing ads prohibition.
The Ninth Circuit’s opinion, written by J. Kozinski, distinguished Roommate.com from a protected service based on three main features:
* Roommate.com shaped its users’ input with a form questionnaire that specified gender, sexual orientation, and with-children choices;
* Roommate.com’s search mechanism which has the same pulldown search options (gender, sexual orientation, and with-children);
* Roommate.com emails people with listings based on profile preferences (gender, sexual orientation, and with-children)
J. Reinhardt would have also held Roommate.com liable for the discriminatory content posted by users in the comments section, but the majority held that that information, which was not solicited by nor built into the search engine, was not Roommate.com’s responsibility.
J. Ikuta dissented from liability, and would have followed Carafano finding broad immunity even on the form submission.
… So what does it mean? My quick take is this:
First, readers will probably be familiar with these issues from the Craigslist case, and concerned about the 7th Circuit appeal. In my opinion, this case can be reconciled with the decision in the Craigslist case (ND Ill, a 7th Circuit court). This decision expressly held that the “no parameters” forms that are just open-ended do not create liability, and Craigslist.com’s housing forms are primarily open-ended: address, rent, cats/dogs. That decision is on appeal to the 7th Circuit. Should the 7th Circuit elect to address this aspect of the decision, that’s a fairly clear distinction to make. The 7th Circuit need not address this, though, because both the search & the email features that Kozinski brought up really hinge on the structured data input, which is the only real point of distinction between a “content provider” and a “content service”.
Second, despite Kozinski’s dancing, the case will be harder to reconcile with Carafano v. Metrosplash.com, a 2003 9th Circuit case that considered defamation & privacy liability for an online personals service that set up forms for publishing user input. (Carafano, 339 F.3d 1119.) In particular, it adds some weight and significance to the distinction between an “ICP” and an “ICS” (information content provider and interactive content service, respectively).
Third, the decision’s major point of distinction between Carafano and this case was that the ISP established policies. So establishing policies that reiterate the law will be key for ISPs in the wake of this decision. Kozinski stressed that the service in Carafano did not solicit the problematic information and in fact expressly forbade some aspects of it. So, under this decision, establishing policies that reiterate the law will go some way toward protecting an ISP. While this isn’t the worst outcome for a speech-related law, it seems (to me) to be a waste of time, and I’d point out that it burdens ISPs with educating their users about the law. This sort of burden is, to my mind, inconsistent with notions of ISPs as “utilities”, and also inconsistent with the broad, unfettered access to communications that the First Amendment contemplates.
Fourth, I imagine that this case will be used by all who seek to limit Section 230’s broad immunity for ISPs. Whether the case constitutes a high-water mark for limitations on that
liability immunity, or merely a beachhead, remains to be seen.
update: Eric Goldman analyzes the decision at greater length, and you can get the flavor from the title “Ninth Circuit screws up 47 USC 230”.
PS – More on the FHA: I always think about, and rarely remember to point out, that one of the contested categories is sexual orientation, which isn’t included in the Fair Housing Act, although various state anti-discrimination codes do include it. Some people have also been confused about the roommate exception, which permits discrimination by roommates for shared-housing situations. If you lease a room in your apartment or house, for instance, you can discriminate on religion, etc. (Although shared-housing people can discriminate, advertising those discriminatory preferences is not protected.) So, generally, commercial landlords may not discriminate on race, sex, familial status, etc. (but they can discriminate on sexual orientation); shared-housing lessors may discriminate; advertising discriminatory preferences is prohibited, period. (But, again, advertising preferences against or for sexuality would be okay under the FHA.)
Over on Dan Savage’s blog I caught this video with Australian comic John Safran sharing his thoughts on Mormon missionaries — and then making his point in person to assorted Salt Lake City residents by knocking on their doors to talk to them about atheism. Hilarious.
Last week a copyright imbroglio broke out at a science blog which had written a post critiquing mainstream coverage of a science article; the blog had posted a figure from the paper to demonstrate bad science writing in the mainstream media. Wiley sent a C&D; the blogger agreed to take the material down (actually took the data and recreated the figures herself) but posted about the incident; a blogstorm erupted (see also coturnix); THEN Wiley apologized … and the blogger as far as I can tell just left her own recreated figures on the blog post, and who can blame her? It’s a (relative) pain in the ass loading images on a blog.
So some good will come out of this incident: that a bajillion people will have heard the words “fair use” and been inspired to participate in discussions about open content, fair use, control of information, etc.
I really, really hope that people do *not* take the lesson that if the publisher had not apologized and “granted permission” that the original figures would have had to stay down. This was a classic example of the chilling effect that comes from cease and desist letters. In other words, a classic example of the growth of copyright paranoia.
The law is actually on the blogger’s side on this issue. That blogger would have been well within rights to completely ignore the C&D to begin with because this was as fair use (as many people pointed out). Wiley would have then had to do a s.512 notice to the ISP (scienceblogs.com) which would also have been within its rights to ignore the notice. They could have then filed a 512(f) suit against Wiley for a bad faith s.512 notice, and EFF or any number of attorneys would have been delighted to take them on as pro bono clients, I’m certain.
My point: These incidents raise questions about the growth of copyright and whether copyright should be usefully applied to certain kinds of knowledge and how public investments in scientific research should be monitored. But they also raise simple questions of the abuse and misuse of copyright law — misuse which is illegal in some circumstances and can cost the misuser a lot of money.
I’d like to see in-house counsel advising their “junior staff” about the possible liability for misusing its copyrights. A few more high-profile cases might put that in their list of important topics to cover in their in-house trainings.