Tag Archives: litigation

DRM-less online music sales and other good news

Well, Steve Jobs certainly looks prescient, what with EMI dropping DRM for its iTunes sales. Why do I suppose they were already in negotiations when Steve Jobs wrote his editorial?

Never mind, it’s still good news. (As is the decision from the Supreme Court on EPA’s responsibility to regulate greenhouse gases, a case that worried me. Yes, Virginia, if masses of scientific evidence show that human emissions are harming the environment, then the Environmental Protection Agency needs to deal with it.)

we knew it would come up eventually

A recent court denied a motion to preliminarily enjoin distribution of copyrighted dildos, noting that dildos are useful articles, and separating the copyrightable expression from the unprotectible ideas would be … difficult. Bill Patry excerpted some of the best parts of the decision. Conwest Resources, Inc. v. Playtime Novelties, 2006 WL 3346226 (N.D. Cal. 2006).

It used to be that my most exciting legal props quest was to find a jeweled bee pin.

political grandstanding: SO annoying

I really can’t stand it when politicians engage in cheap & sleazy grandstanding, knowing that what they’re doing is actually irrelevant. I’m speaking of Mitt Romney’s “lawsuit” to get the Mass. courts to step in to force the Mass. legislature to vote on an anti-same-sex-marriage amendment. [nyt 11/25]

Cheap & sleazy political grandstanding may be characterized by (a) someone making a gesture that appears potentially functional, but (b) is actually known to be ineffective, and (c) is undertaken for purposes of making a point.

I have no objection to Romney just making the frickin’ point, already. He could, and should, decry the legislature for not voting on the amendment. Sure, it’s tedious, hateful, and boring, but it’s to the point.

On the other hand, filing an obviously meritless lawsuit, rather than just making speeches, wastes government resources. I honestly think Romney and his co-litigants should be sanctioned for filing frivolous litigation.

Not only is this lawsuit legally frivolous, but it’s stupid: Even if he did force a vote, he doesn’t have the votes!

Thanksgiving weekend research questions: (1) Does Massachusetts have a political question doctrine to get this thing done with quickly; and (2) what are the possible sanctions for filing frivolous litigation.

Update 10 minutes later:

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NJ SSM decision

The NJ Supreme Court is releasing its SSM decision today @ 3pm. [available at NJSC website]

Will they help us out but energize the Republicans and lead to queers being blamed if the Dems don’t take the House or Senate? or will they fuck us over leaving everyone, but us, happy?

(And if I’m writing to a general audience comprised mostly of non-queers, should I really use the pronoun “us”? I’m doing it anyway—learn to read as The Other.)

update: A winnah!

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what is rational: rationally angry about irrational decisions

NY’s Court of Appeals just handed down its no-same-sex-marriage decision, holding that denying marriage licenses on the basis of gender to same-sex partners does not violate New York’s Constitution. In my opinion, this is a big setback for equal protection and individual autonomy. We had a certain momentum going forward in terms of courts accepting the logic, and this decision slows that down. The decision is also remarkably retrograde in some of its reasoning.

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gayness

* Alas (a blog) has deemed Father’s Day “queer sex day” for very good reasons.

* Jon Stewart points out the obvious to Bill Bennett’s proffered state rationale for recognizing only male-female marriages:

Divorce doesn’t occur because 50% of marriages end in gayness.

* New York’s highest court (the confusingly named “Court of Appeals”) heard arguments in Hernandez v. Robles on Wed 5/31:

Chief Judge Judith S. Kaye said the court would have to decide the constitutional questions, ”whether we do it frontally or whether we do it in some more subversive way,” like changing language about gender.

To which Terence Kindlon, a lawyer for same-sex couples in Albany, replied, ”Subversive is one of the words I’ve liked all my life, your honor.”

[NYT 6/1oral arguments webcast]

alito on copyright, first amendment, cyberlaw

DRAFT: a work in progress; will be updated as I review more cases (or find typos)

Well, according to NPR, Judge Sam Alito from the Third Circuit is nominated. I’m sure that everyone will be all over his record on every conceivable issue in no time at all, but I’m looking at his copyright etc. for a few minutes just to see what’s out there.

copyrightprivacyfirst amendment & speechconsumer rights in telecomm, clickwrap, EULAs, antitrust, etc.other cyberlawalso interesting

copyright

I haven’t found much in the 3rd Circuit case law that suggests Alito has dealt with a lot of the most pressing copyright questions or the constitutional copyright questions, beyond originality. He has been good on originality, and in general he appears to be careful and thoughtful about copyright. So far, I’ve found:

Four opinions signed or written by Alito relate to originality: Alito wrote one opinion (Southco) and signed two (Southco en banc and R&B v. Needa (unpublished)) finding that part numbers lack sufficient originality for copyright protection. Alito also signed the troll doll opinion (Dam Things) which basically said that a derivative work needed to be carefully parsed for originality.

Two opinions on copyright registration technicalities. Alito signed a per curiam in Gallup v. Kenexa, and dissented in Raquel; the Raquel majority opinion was specifically criticized by the Copyright Office and then reversed by Supreme Court. In both instances Alito was critical of technical readings of registration requirements that stripped registrants of their copyright protections.

Two opinions on copyright preemption in Orson v. Miramax: Alito dissented in Orson I, and then signed the 3rd Cir en banc opinion, reversing Orson I, and holding that the a Pennsylvania film distribution statute was preempted by the Copyright Act.

Alito signed an unpublished copyright licensing opinion in Operating Systems Support v. Wang. I’ll have to read it very closely, but at a quick glance, it looks like a business-to-business software licensing agreement. Looks mostly like a close contractual reading of the terms of the various licensing agreements, without much analysis of the Copyright Act. As Seth Finkelstein pointed out on copyfight, business-to-business licensing cases don’t give a good sense of a judge’s opinion of consumer issues in contracting. But, Ideoblog looked at Alito’s contract cases, and said that

Alito has displayed a marked tendency to enforce contracts as written, specifically including choice of law/forum and arbitration provisions that are intended to mitigate litigation costs.

That could bode ill for any shrinkwrap cases that make it to the Supreme Court, including anti-reverse engineering clauses, anti-resale/First Sale clauses, or other consumer-unfriendly clauses.

copyright cases with brief cites & descriptions:

  • Alito wrote the first 3d Circuit opinion in Southco v. Kanebridge, 258 F.3d 148 (3rd Cir. 2001) holding that part numbers are not copyrightable. He also signed the en banc opinion that also held part numbers are not copyrightable. [I discussed Southco; William Patry did a detailed analysis; and madisonian.net promises analysis later today]

  • Gallup v. Kenexa Corp, 2005 WL 2271271 (3rd Cir. 2005) – A very recent per curiam opinion from Sept. 19, 2005. Reversing summary judgment to defendant Kenexa on a copyright infringement claim, because the District Court erred in declaring Gallup’s copyright registration invalid on a technical reading of the registration requirements.

  • Orson v. Miramax, 189 F.3d 377 (3rd Cir. 1999) – Alito joined the majority en banc holding that a Pennsylvania statute was preempted by Copyright Act. The statute (Pennsylvania Feature Motion Picture Fair Business Practices Law) restricted movie distributors use of exclusive first run licensing contracts. Alito dissented in the reversed 3rd Cir. ruling, 174 F.3d 377 (3rd Cir. 1999), which held that the Pennsylvania statute was not preempted.

  • Raquel v. Education Management Corp., 196 F.3d 171 (3rd Cir. 1999). Alito dissented in another copyright registration case. Taken with Gallup, Alito really doesn’t like technicalities getting in the way of copyrights (at 182):

    I believe that the majority’s decision elevates form over substance and works a forfeiture of a valid copyright because of a misstatement that the trial court had already labeled inadvertent.

    This is another instance in which Alito has a good record with the Supremes: Cert. was granted & judgment was vacated by 531 US 952 (2000) which simply said:

    Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Third Circuit for further consideration in light of the position asserted by the Solicitor General in his brief for the United States, as amicus curiae, filed September 20, 2000, and the Copyright Office’s July 5, 2000, Statement of Policy, 65 Fed.Reg. 41,508.

    Basically the Copyright Office wrote that the 3rd Cir had gotten it wrong (65 FR 41508-01):

    [T]he court appears to have misunderstood the Copyright Office’s longstanding published practices relating to the “nature-of-work” space.

  • Alito was on a (the?) troll doll court! Dam Things from Denmark a/k/a Troll Company ApSm v. Russ Berrie & Company, Inc., 290 F.3d 548 (3rd Cir. 2002). The troll dolls from the 60s fad had copyright restored by 104A. The court held that the copyright qualified for restoration and was not abandoned, but that the District court had not properly considered the 104A safe harbor for derivative works, or properly done the infringement analysis. After spanking the District Court for its “somewhat conclusory treatment of the issues” and for not carefully distinguishing which troll was which, the 3rd Cir. remanded “for further consideration in light of this opinion.” (at 552) The 3rd Cir. went on to strongly suggest there was infringement, then said that the District Court needed to closely evaluate each work for infringement AND for originality to see if the minor differences noted between the various trolls constituted sufficient originality to qualify for the derivative works exception to 104A.

  • Operating System Support, Inc. v. Wang Laboratories, Inc., 52 Fed.Appx. 160 (3rd Cir. 2002) (not published). Alito joined an unpublished copyright license opinion. At a quick glance, it looks like a business-to-business software licensing agreement, with some close contractual reading of the terms of the various licensing agreements, and little analysis of the Copyright Act. Business-to-business is not very informative for consumer rights by itself, but see above, where I mentioned Ideoblog’s analysis of Alito’s contract cases that do implicate consumer rights. (Thanks to Seth Finkelstein’s comment on copyfight for making it clear that I needed to be a bit more descriptive about why I was distinguishing the case as a business-to-business contracts.)

  • R&B, Inc. v. Needa Parts Mfg., Inc., 50 Fed.Appx. 519 (3rd Cir. 2002) (not published). Per curiam. Another parts number copyright case affirming District Court finding that part numbers not copyrightable and plaintiffs not likely to succeed on trademark infringement claim.

consumer rights & public interest in telecomm, shrinkwrap, etc.

The picture that emerges from looking broadly at consumer rights and interests is not a good one. Alito appears to be quite concerned with enforcing the letter of contracts and working through the nuances of textual interpretation. However, consumer interests are protected in contract law through broad policies that inform the interpretation of clauses and doctrines. If Alito is, as he appears to be, very concerned with the trees, he may miss the forests. [The NYT 11/5 had a good review of his business opinions, including antitrust law; also covering arbitration decisions, employee discrimination, environmental law and investor claims.]

  • Ooh, TCPA. ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513 (1998). Alito dissented from a holding that the TCPA (Telephone Consumer Protection Act) did not create right to bring action in federal court. A close reading of a negative implication case.

  • Ethical Esquire pulls together some of the antitrust commentary & suggests that Alito is not a fan of private enforcement of antitrust.
  • Operating System Support, Inc. v. Wang Laboratories, Inc., 52 Fed.Appx. 160 (3rd Cir. 2002) (not published). Analysis copied from above: Alito joined an unpublished copyright license opinion. At a quick glance, it looks like a business-to-business software licensing agreement, with some close contractual reading of the terms of the various licensing agreements, and little analysis of the Copyright Act. Business-to-business is not very informative for consumer rights by itself, but see above, where I mentioned Ideoblog’s analysis of Alito’s contract cases that do implicate consumer rights. (Thanks to Seth Finkelstein’s comment on copyfight for making it clear that I needed to be a bit more descriptive about why I was distinguishing the case as a business-to-business contracts.)

first amendment (speech clause)

Alito seems to be involved in a lot of First Amendment caselaw, both speech and establishment/free exercise. I imagine this will be reviewed closely elsewhere but I started going through some of decisions. [New World Man looked at Alito’s First Amendment speech clause jurisprudence, as did the First Amendment Center. The FAC says

A preliminary examination of his First Amendment opinions suggests that Alito is: (1) quite protective of several categories of expression, including religious and commercial expression; (2) far less protective of First Amendment claims raised by prisoners; (3) guardedly protective of First Amendment rights in defamation cases, and (4) generally concerned about prior restraints on expression.

which seems about right to me. Prisoners’ 1A rights are not significantly protected; that fits in with a general conservative law-and-order perspective.

  • Saxe v. State College Area School District, 240 F.3d 200 (3rd Cir. 2001). First Amendment; struck down school anti-harassment policy.

  • Tucker v. Fischbein, 237 F.3d 275 (3rd Cir. 2001) – a defamation case. Alito wrote opinion that “held that: (1) statements were capable of a defamatory meaning under Pennsylvania law; (2) fact issue existed as to whether attorney acted with actual malice with respect to statements made after he was served with amended complaint naming him as party in prior action; and (3) fact issue existed as to whether statements made by attorney to reporters, and published in articles, were false; but (4) magazines and reporters did not act with actual malice sufficient to support recovery.”

  • Pitt News v. Pappert, 379 F.3d 96 (3rd Cir. 2004) – First Amendment

  • White v. Communication Workers of America, AFL-CIO Local 1300, 370 F.3d 346 (3rd Cir. 2004) – labor / First Amendment

  • Edwards v. California Univ of Pennsylvania, 156 F.3d 488 (3rd Cir. 1998) – Alito wrote court’s opinion in an academic freedom case. Professor challenged public university’s restrictions on curriculum & teaching material. This one should make the “academic bill of rights” people happy: the professor was teaching instructional methods and included as examples information about religion, censorship, etc. The university restricted his teaching methods, and he claimed retaliation; Alito held that the university “the University can make content-based decisions when shaping its curriculum” (at 492). This is interesting (at 493):

    In sum, we conclude: (1) that Professor Edwards does not have a First Amendment right to choose classroom materials and subjects in contravention of the University’s dictates; (2) that Edwards failed to state a procedural due process liberty claim because he did not allege a deprivation of employment; and (3) that the district court properly dismissed Edwards’s equal protection claim after Edwards’s own counsel conceded that the complaint failed to adequately state such a claim. We find Edwards’s remaining arguments on appeal to be without merit. Accordingly, we affirm. We emphasize that we only pass on the narrow legal issues presented to us. Nothing in our opinion should be read to mean that we condone all of the conduct of the University officials that was revealed at trial.

privacy, 4th amendment

Robert Gordon wrote a good piece for Slate laying out Alito’s conservative jurisprudence with respect to Fourth Amendment search and seizure cases, and individual liberties cases generally. He found:

At least in my research, Lexis/Nexis revealed exactly one case in which Alito protected individual rights more vigorously than colleagues. That wasn’t really an individual-rights case at all; it was the states’ rights case in which Alito would have vacated the conviction for owning a machine gun. So, for example, Alito sat on a dozen panels in which judges disagreed regarding a citizen’s Fourth Amendment rights. … In each of those cases, Alito adopted the view most supportive of the government’s position. Of course, caveats apply. All of the cases are more complicated than short summaries can capture. In any given case, Alito’s position often seems reasonable; it is the accumulation of consistent results that surprises.

Alito prepared a report on privacy for a 1972 conference. [posted by EPIC; link from MT Law Blog 11/3]

  • US v. Williams, 124 F.3d 411 (3rd Cir. 1997) – Federal Wiretapping Statute, video surveillance

  • The corker is the Doe v. Groody case in which Alito thought it okay for a 10-year-old and her mother to be strip-searched. That will be well covered elsewhere, I suspect.

Other CyberLaw

CyberJurisdiction

  • Toys’R’Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3rd Cir. 2003). Alito signed opinion reversing District Court’s refusal to grant limited jurisdictional discovery and granting dismissal for lack of personal jurisdiction. Question was whether Step Two’s websites were cybersquatting, trademark infringement, unfair competition, etc. Step Two is a Spanish company with web presence in the US. the court looked to Zippo‘s purposeful availment test; also cited ALS Scan (4th Cir) and Cybersell (9th Cir). The court noted that the evidence thus far didn’t look like it met the Zippo purposeful availment test but said the District Court had erred in not granting jurisdictional discovery, by focusing solely on the website and ignoring other Internet and non-Internet contacts. The court dismissed the contention that Step Two met New Jersey’s ‘express aiming’ test.

other IP & cyberlaw issues: trademark & unfair competition

  • Marshak v. Treadwell, 240 F.3d 184 (3rd Cir. 2001). Alito wrote opinion. Trademark & common law mark case.

  • Times Mirror v. Las Vegas Sports News, 212 F.3d 157 (3rd Cir. 2000)

  • A&H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 166 F.3d 197 (3rd Cir. 1999) – en banc trademark.

  • Iberia Foods Corp. v. Romeo, 150 F.3d 298 (3rd Cir. 1998) – trademark

other links & areas of interest

The individual liberties versus institutional rights (business, government) framework, laid out by Robert Gordon in Slate, appears to be a helpful one in examining Alito’s jurisprudence.

Ideoblog looks at Alito’s contract cases; New World Man provides an Alito primer which sums up and links to a variety of other analyses. New World Man also looked at First Amendment speech clause and religion. ThinkProgress does a press-release style rundown of some of Alito’s hot-button civil liberty cases.

SCotUS blog links to a lot of other blog commentary and also to the wikipedia entry which is unsurprisingly very current & detailed.

SCOTUSblog has some other notable cases, including a dissent on the abortion husband-consent statute from Casey. We’ll all be verrrry familiar with that one before long. The quick read I gave it said that Pennsylvania legislators could have reasonably thought that forcing a woman to discuss her medical options with her spouse was permissible because she might be mistaken about whether they could afford the baby or not … Paraphrased for heightened sarcasm.

news.com reviews some of the tech decisions & has some commentary from attorneys on copyright and electronic surveillance. On the electronic surveillance, the only discussion seems to support the notion that Alito is a law-and-order kind of guy; no surprise there. My take is that he is law & order, and will support police technologies generally. Purely private surveillance will be more interesting. On employment, I would bet he finds employer surveillance of employees permissible.

IPTA Blog Blawg Review nicely wraps up a lot of coverage of Alito.

Kurt Opsahl @ EFF Deep Links summarizes the cyberlaw / 1st Amendment / 4th Amendment privacy caselaw, and links to other coverage.

religion:

  • Child Evangelism Fellowship of NJ v. Stafford Tp. School Dist., 386 F.3d 514 (3rd Cir. 2004) – an establishment clause case.
  • Blackhawk v. Pennsylvania, 381 F.3d 202 (3rd Cir. 2004) – a free exercise clause
  • ACLU-NJ v. Township of Wall, 246 F.3d 258 (3rd Cir. 2001) – establishment (public display) case
  • ACLU-NJ ex rel. Lander v. Schundler, 168 F.3d 92 (3rd Cir. 1999) – establishment (public display) case
  • FOP Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3rd Cir 1999) – Alito wrote court’s opinion holding that refusal to grant religious exception to no-beard policy violated Sunni Muslim employees’ free exercise rights.

prisoners’ rights:

  • Reynolds v. Wagner, 128 F.3d 166 (3rd Cir. 1997) – charging inmates for medical care does not violate the 8th Amendment; failure to translate it into Spanish does not violate Spanish-speaking inmates’ rights

religious use of copyright, again

a little interest of mine: religious texts and copyright.

  • Michael Geist covers a Canadian copyright case by the Watch Tower Society (Jehovah’s Witnesses) suing a website for posting religious texts. [link via boingboing]
  • Scientologists do this all the time: Operation Clambake has its own response to copyright issues. A few cites: Religious Technology Center v. Netcom On-Line communication Services, Inc., 923 F.Supp. 1231 (N.D. Cal. 1995); Religious Technology Center v. F.A.C.T.Net, Inc., 901 F.Supp. 1519 (D.Col. 1995).
  • Worldwide Church of God sued Philadelphia Church of God, 227 F.3d 1110 (9th Cir. 2000), for distributing the WCG founders’ earlier, racist works after WCG had disavowed them.

more later …

guardsmark & fraternization

Some more thoughts on the recent NLRB decision restricting employees’ off-duty fraternization. Guardsmark, LLC, 334 NLRB No. 97 (2005) (decision in pdf):

The Board majority found the rule at issue here (in Guardsmark): “While on duty you must NOT … fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees” to be similar to a rule in Lafayette Park Hotel, 326 NLRB 824 (1998), enfd 203 F.3d 52 (D.C. Cir. 1999) which stated “Employees are not allowed to fraternize with hotel guests anywhere on hotel property.” A limited dissent felt that Lafayette Park Hotel‘s rule was too broad and so was this one. I see significant differences in the two cases.

  1. Lafayette Park Hotel is about employee-guest relations, and might reasonably implicate questions of adequate responsiveness to guests; Guardsmark is about relations between Guardsmark employees and between Guardsmark Employees and Guardsmark client employees.
  2. The Lafayette rule regulated only conduct at the workplace. The Guardsmark rule purports to regulate on- and off-duty conduct regardless of location.
  3. Lafayette used the phrase “fraternize”, which when used by itself is usually taken to mean “hang out”. The Board felt that “in context, the rule here is reasonably understood as prohibiting personal entanglements, rather than activity protected by the [National Labor Relations] Act.” Actually, it is pretty clear that this rule is meant to sound much stronger than the rule in Lafayette was meant to sound. It is significantly broader in the ways already mentioned, and its significantly broader in its description of the prohibited conduct. The rule says fraternize, adds date, and then adds “become overly friendly”. That phrase in particular is, in First Amendment terms, both overbroad and vague. From reading it, one has no idea of what sort of conduct is prohibited, and one senses that almost anything could be prohibited.

The Board attempts to justify this because of “heightened security concerns”. Yes, I’m sure a security contractor company can increase security by prohibiting friendships. Spartans and every army ever notwithstanding, security forces are just much more secure when their employees barely know the people they work with.

Aggghhh.

Related posts: 8/13

grokster

well — grokster is out. from the beginning:

We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.

and from the end:

There is substantial evidence in MGM’s favor on all elements of inducement, and summary judgment in favor of Grokster and StreamCast was error. On remand, re-consideration of MGMís motion for summary judgment will be in order.

J. Souter wrote the majority opinion which apparently and not surprisingly developed an “inducement” theory. Breyer concurrence (with Souter & O’Connor) and Ginsburg concurrence (with Rehnquist and Kennedy).

I saw it here [on Joe Hall’s NQB2] first.

lots of discussions (confession: i haven’t had time to read them yet; just the opinion; my thoughts on metablog commentaries may come later tonight):

my own quick thoughts:

  • This outcome is no surprise. It seemed obvious that the Court was going to take a middle position that would take some kind of bite out of Sony; the real question was how big a bite.
  • So how big is this bite? The Court established an inducement standard, setting out the facts implicating Grokster et al’s knowledge and intent to have copyrighted files copied. The battle for the next few years or decades will be to expand or constrict this standard to the facts of Grokster.
    • The inducement standard is treated as part of the contributory infringement standard in one place, (p.12), but elsewhere as a third test parallel to contributory and vicarious.
    • The new inducement standard on the one hand might not be horrible, if it is limited to the facts at hand: It was certainly clear that Grokster et al intended to follow in the footsteps of Napster. Modeling your entity after another entity that was successfully characterized as a “bad actor” now looks like not so good an idea.
    • But on the other hand, the evidence cited in some instances is pretty patchy/sparse:
      • The majority opinion cites, for instance, that “Grokster’s name is an apparent derivative of Napster.” p.7, and again at p.21 (“Grokster’s name is apparently derived from Napster…”) If that kind of naming can constitute evidence then every e-business and i-product may someday be in trouble.
      • The majority also cites attempts to capture / buy relevant search engine keywords. (p.7 & p.22)
      • The Court also felt that “the defendants’ failure to develop … filtering tools or other mechanisms to diminish the infringing activity … underscores Grokster’s and StreamCast’s intentional facilitation of their users’ infringement.” I really dislike this and any other pro-network-policing implications.
    • More generally, though, I am still concerned with the dotted line this opinion implicitly draws around design decisions. It should be permissible to design your product around precedents, to avoid clearly unlawful behavior. It can and should be permissible to push that boundary in new directions — new innovation proceeds by pushing old boundaries. In the case of copyright infringement, pushing a boundary too far carries its own risk: that you might fall afoul of that boundary and be found liable for copyright infringement. But here, acknowledging the design decisions is evidence in and of itself of “inducement”. That’s troubling, because it requires that designers adopt a willful blindness attitude very similar to that which Judge Posner decried in Aimster. And it could make it difficult to defend and describe innovations in court.
    • I’m also concerned with the very notion of including an intent-based standard in copyright. Copyright is a strict liability regime. Liability is thus quite broad: any actual infringement creates liability, regardless of intent. Adding an intent-based liability to the further-afield secondary liability broadens copyright even further. The Court did attempt to address this, at p.19:

      We are, of course, mindful of the need to keep from trenching on regular commerce or discouraging the development of technology with lawful and unlawful potential. Accordingly, just as Sony did not find intentional inducement despite the knowledge of the VCR manufacturer that its device could be used to infringe, 464 U. S., at 439, n. 19, mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.

      Yeah, we’ll see. Here’s hoping the Court is right in its optimistic assertion that its new inducement “does nothing to compromise legitimate commerce or discourage innovtaion having a lawful promise”.

    • The Court also played dangerously with the numbers game, citing “the number of infringing downloads that occur every day using StreamCast’s and Grokster’s software” as a “powerful… argument for imposing liability”. At 12. And again at 23: “As the account of the facts indicates, there is evidence of infringement on a gigantic scale, and there is no serious issue of the adequacy of MGM’s showing on this point…. ”

      These lines will certainly appear in content-owners’ briefs and attempts to get courts to consider the quantity and volume of infringement — the very standard rejected in Sony.

    • The Court states that neither of the Sony uses (recording TV off-air, and librarying programs) was “necessarily infringing”. (p.14). So presumably new uses are not “necessarily infringing”. But wouldn’t this have applied to Napster? Personal file sharing, of degraded-quality MP3s, without commercial exchanges — that was a new use, and not a “necessarily infringing” use. Ah, this is going to beef up the market prong of the fair use test, I bet. Like it needs any more beefing.
    • The Court restricts Sony to contributory infringement not vicarious liability. Some courts assumed so anyway, but Posner in Aimster pointed out that it was really unclear. Grokster resolves that unclarity by describing Sony as merely about contributory infringement, not about vicarious liability.

      On those facts, with no evidence of stated or indicated intent to promote infringing uses, the only conceivable basis for imposing liability was on a theory of contributory infringement arising from its sale of VCRs to consumers with knowledge that some would use them to infringe. Id., at 439.

      at 14. And later at 16-17:

      [The Ninth Circuit’s] view of Sony, however, was error, converting the case from one about liability resting on imputed intent to one about liability on any theory. Because Sony did not displace other theories of secondary liability …

    • On the other hand, the Court seems to want to leave Sony otherwise untouched:

      Because Sony did not displace other theories of secondary liability, and because we find below that it was error to grant summary judgment to the companies on MGMís inducement claim, we do not revisit Sony further, as MGM requests, to add a more quantified description of the point of balance between protection and commerce when liability rests solely on distribution with knowledge that unlawful use will occur. It is enough to note that the Ninth Circuitís judgment rested on an erroneous understanding of Sony and to leave further consideration of the Sony rule for a day when that may be required.

      at 17.

      Added commentary (6/28):

      The real problem is that while the Court leaving Sony untouched in name only, the Court manipulated the entire environment in which Sony lived. Sony, as it played out in the real world, stood for the generic proposition that secondary liability for developing & distributing a technology accrued only where there were no “substantial noninfringing uses” to the technology. The fact that Sony was vague on the vicarious / contributory distinction was fine — it created a grander position for the Sony standard vis-a-vis secondary liability generally. Technological development ought not be held hostage either to existing business models or to those who seek to get around the existing business models.

      Despite the Court’s intentions, Grokster chips away at Sony in two ways: First, the Court hones down the vagueness and wiggle room in Sony by construing it as a contributory case. Second, the Court opens up an entirely new avenue for secondary liability, one with (as yet) no pro-technology out. So, now technology developers, instead of being able to rely on a general, broad principle of protection for multiple-use technologies, have to watch out for both vicarious liability and the new (to copyright) inducement standard.

      The protection for technological development is gone. So what if Grokster developed its technology intending to foster copyright infringement? Once the technology is out there, it started being used to, yes, share noninfringing materials. And those uses will continue to grow and evolve. On some level, Grokster the company is merely an agent for technological evolution. But this decision is not aimed at the agent; it’s aimed at technological evolution itself. If they had wanted to aim at the agent, then they could have restricted their theory to the inducing acts and words — not to the development and distribution of the technology. How much did Grokster’s ad campaigns actually induce infringement? And how much did the mere capability of the technology “induce” infringement? Unfortunately this decision doesn’t (at first reading anyway) lend itself to focusing on the acts. It looks at the acts, but it targets the technology.

      < / end of added commentary >

    • I don’t like footnote 13:

      It is not only that encouraging a particular consumer to infringe a copyright can give rise to secondary liability for the infringement that results. Inducement liability goes beyond that, and the distribution of a product can itself give rise to liability where evidence shows that the distributor intended and encouraged the product to be used to infringe. In such a case, the culpable act is not merely the encouragement of infringement but also the distribution of the tool intended for infringing use.

  • Concurrences:
    • Breyer/Souter/O’Connor concur with the majority but disagree with Ginsburg’s concurrence (Ginsburg/Rehnquist/Kennedy) evaluating Grokster’s potential liability for “contributory infringement”. Breyer agrees with the inducement carve-out, but separately finds that Grokster meets the Sony test for contributory infringement.

      On the other hand, Breyer regularly cites the quantity in Sony — which suggests that even though he is supporting Grokster in this discussion, he has bought into the quantitative analysis anyway. However Breyer does clearly point out that 10% may not be enough, should not be fixed, and that Aimster was a stricter interpretation of Sony than he would have put forth.

      Breyer’s opinion is ultimately the most thoughtful and most directly engages the policy balances at stake. And, demonstrates the most familiarity with the record.

    • Ginsburg: I really take issue with this concurrence. How can J. Ginsburg say

      Here, there has been no finding of fair use and little beyond anecdotal evidence of noninfringing uses. … These declarations (some of them hearsay) include assertions that number of copyright owners authorize distribution of their works on the Internet and that some public domain material is available through peer-to-peer networks.

      (at 5) The fact that Rick Prelinger and Brewster Kahle have not personally used the P2P networks is used against them! Merely providing content which they authorized for distribution over P2P networks was not enough. Contrast Sony: If Ginsburg had been writing it, apparently Mr. Rogers’ statements that he was happy to have his content copied would not have been sufficient. No, Mr. Rogers would have been required to have actually used VCRs to tape his materials off air.

      Apparently all public domain and permissive filesharing constitutes “anecdotal evidence of noninfringing uses”. But shouldn’t distribution of teachers’ guides, satires, etc., count as fair uses? Oh — someone needs to make the compelling case for fair use filesharing! But I suspect nothing would persuade J. Ginsburg. Even blind orphans from Tanzania who get copies of works not otherwise available in Tanzania may not merit a tear if weighed against the all-important interests of large copyright-holding movie companies and cartels.

      Ginsburg is pushing for a reconsideration of quantitative factors, which apparently will look at the state of infringement at the moment the litigation is filed. Needless to say this would stifle and kill all sorts of technological developments.

that wacky 5th circuit

Unbelievable:

At times the federal appeals court has been unfathomable to its critics. Last December, for instance, it considered the last-minute appeal of Billy Frank Vickers, scheduled to die for the killing of a grocer in 1993. With the inmate already given his last meal, the judges deliberated until 9 p.m. and announced they were leaving, with no decision. Bewildered state prison officials allowed the death warrant to expire, granting Mr. Vickers a delay. He was executed six weeks later.

In October, a Houston federal judge granted a last-minute stay to Dominique Green, but the state appealed. The Fifth Circuit then gave defense lawyers less than half an hour to file their response, Professor Dow said. A rushed brief was e-mailed to the court and turned down. The Supreme Court also rejected a stay, and Mr. Green was executed that night.

— Adam Liptak & Ralph Blumenthal, Death Sentences in Texas Cases Try Supreme Court’s Patience [NYT 12/5]

Canada Supreme Court OKs SSM

Canada’s Supreme Court has given its official advisory opinion re: same-sex marriage, basically giving the green light to federal legislation to authorize same-sex marriage nation-wide. The Yukon Territory and six of ten provinces have already struck down opposite-sex-only marriage requirements, allowing couples to marry regardless of gender. [cite – from ping]

News | canada.com network

serial numbers are non-copyrightable

Serial numbers are non-copyrightable — Southco v. Kanebridge Corp., No. 02-1243, 3d Circ., en banc, 12/3/2004.

Wacky procedural history. The case is all about Southco’s screw numbering system — which produces numbers that look like this: “47-10-202-10” and “47-10-502-50”. Kanebridge used Southco’s screw numbering system to label their own screws which were sold at a lower price. Southco of course sued, for copyright & TM infringement. [I haven’t read the briefing & lower court opinions but wouldn’t Kanebridge have had a counterclaim for intentional interference with business, unfair business practices, and abuse of process? The TM infringement claim is not discussed in this case but must surely have been dismissed — you can use someone else’s mark to make comparisons.]

Lower court (2000 WL 21257, ED PA 2000) said, Yes, the numbering system is copyrightable.

The Numbering System, with its unique, non-intuitive and highly complex attributes, easily satisfies the standard for originality. It was created out of nothing, and has developed to some use as an industry standard…. It is expandable as new products are developed, and is of use to Southco employees and customers.

That was clearly wrong — a system is by definition not copyrightable.

A Third Circuit panel in SouthCo I (258 F.3d 148 (3d Cir. 2000)) thought so too, and reversed/remanded, finding that there was a system, which was not copyrightable because, well, systems aren’t copyrightable. As for the individual numbers, the system dictated the assignment of numbers, and there was no creativity in their assignment.

Dist. Ct followed, apparently reluctantly, SouthCo I and granted SJ.

A new 3d Circuit panel now reversed, saying that panel I was factually wrong as to how the numbers were assigned. SouthCo II.

Now the Third Circuit decided to hear the case en banc and concluded that the SouthCo part numbers are not copyrightable.

Discussion

The court supported its holding of noncopyrightability with two lines of reasoning.

(1) The first looked at the Feist for originality, and found that

In this case, the Southco product numbers are not ‘original’ because each number is rigidly dictated by the rules of the Southco system. Because ideas may not be copyrighted, Southco does not assert any claim of copyright in its numbering system, but instead focuses on the part numbers themselves. The numbers, however, do not reflect any creativity. … In sum, we hold that the Southco part numbers are not protected by copyright because they are mechanically produced by the inflexible rules of the Southco system.

Southco v. Kanebridge Corp. [pdf], p.10, p.14. Southco had argued that Burrow-Giles (the Oscar Wilde photographs-can-be-copyrightable case) supported their contention that the mechanical process of assigning numbers was akin to the mechano-chemical processes that created photographs. The court also pointed out that an “aleatoric painting (or other work of aleatoric art) does not result from the rigid application of a system of pre-set rules,” (*) apparently responding to a suggestion at oral argument that aleatoric painting might be a good analogy to the Southco numbering system!

(2) The court also said that the numbers themselves were not copyrightable because they were effectively short phrases or the titles of works, citing to 37 CFR § 202.1. The court cited Copyright Office’s determination that such short numbers lack creativity, and concern that granting copyright to them would interfere with their legitimate uses.

… more later

grokster cert. petition thoughts

I was sad to see how many different groups jumped in on the Grokster cert. petition (asking to grant cert). [EFF’s Grokster page] Our amicus (telling the court to deny cert) looks pretty lonely in comparison.

Our brief addresses what two of what I think are the four possible reasons to take the case. One argument to take the case: the 9th Circuit & the district court got it wrong, and there are not substantial noninfringing uses. Our brief points out that there are substantial noninfringing uses, and thus the decision falls within Sony. A second argument to take the case is that the court might wish to reconsider Sony. Our brief argues that there’s no reason to reconsider Sony; Sony is still a good decision and has many beneficial effects, and Congress and private parties can tinker with it on the edges as necessary.

Other arguments to take the case that we don’t address: Third: circuit split. We don’t take this one on but EFF did — there is no circuit split, really, although there is an apparent split in outcome on the technology. But the question, under Sony, is whether there are substantial noninfringing uses. Aimster court said there probably were noninfringing uses, but since the parties didn’t put forward any noninfringing uses, the lower court wasn’t wrong to not seek them out. Grokster said the parties put forward noninfringing uses and found them substantial. That doesn’t look like a circuit split to me.

A fourth line of argument says take it on because this is a big technology, a big deal, and it’s very important. Nothing you can really do with that argument except point out that it’ll work itself out, which it will. We don’t really address that in detail in our brief but we do address it implicitly.

The various arguments the amici & parties lay out in favor of granting cert boil down to this: (a) we really want Sony reconsidered; and (b) this is a big controversial issue.

But as to the second, IMO, newsworthiness isn’t enough of a reason to grant cert.

That leaves the first. The only reason, really, to grant cert would be if the court wants to reconsider Sony — if they do want to reconsider Sony, then I agree that would be a good reason to grant cert. I fervently hope the court does not want to reconsider Sony. Interestingly, the support-of-cert petitioners aren’t ballsy enough to actually say outright that they want Sony reconsidered. (Or at least, none of the ones I’ve read yet have said so.) So instead they’re just trying to poke holes at it and suggest that it’s not working for the Internet, or in these times, or with this new technology, whatever. Some of them argue circuit split but none do it very convincingly. The content industry briefs (including the party brief by MGM) take on the substantial-noninfringing-uses argument, basically arguing that the noninfringing uses are not substantial.

Admittedly, I’m biased, but I don’t think that overall they make a convincing case for granting cert.

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