IP/Internet/New Media Blog

This is a place-holder entry. The launching point for the eventual post is EFF’s “You Bought It, You Own It: MDY v. Blizzard Appealed” and MDY’s Opening brief(pdf). Feel free to comment during the waiting period.

A previous post called frivolous the claim that lending a book is essentially copyright infringement. It turns out, however, that this argument is far from frivolous and is explicitly one of three theories on which Public Lending Rights have been created in as many as 28 countries around the globe. Excerpted from the FAQat PLR International:

What is the legal basis for PLR?

The 28 national PLR systems fall broadly into 3 categories: (a) copyright-based; (b) PLR as a separate remuneration right recognised in law; (c) PLR as part of State support for culture. Some countries incorporate a combination of all three approaches.

Within the European Union, the 1992 Directive on Lending and Rental Right established a copyright framework for the recognition of authors’ lending rights by Member States.

How do these approaches work?

The copyright-based approach can be found, for example, in Germany, Austria, the Netherlands and Latvia, where lending is seen as a form of copyright exploitation of authors’ works. Authors have the right to license the lending of their works by libraries. Arrangements for licensing and distribution of fees are undertaken by collecting societies on behalf of rightsholders. In Austria and Germany authors’ organisations negotiate with the federal and provincial governments; in the Netherlands negotiations are directly with the libraries.

This, of course, has little if any bearing on copyright law here in the U.S., but it does establish firmly that the argument is not per se frivolous. In fact, the example of collection agencies as seen in Germany and Austria might well support efforts towards a similar solution to peer-to-peer filesharing here in the U.S.. Such an approached has been championed by the Electronic Frontier Foundation and has reportedly received serious consideration from RIAA and at least one major music label.

Near the end of “A Harvard Skirmish in the Copyright Wars“, at Blown to Bits, Professor Harry Lewis, former Dean of Harvard College writes:

In a project being mounted in honor of the centennial of the Harvard Extension School, several of Harvard’s popular course, including my own Bits course, will be, in large measure, given away free.

This is offered as contrast to concerns expressed in other schools that professors need to protect their intellectual property rights in their lectures. An example of the other end of the spectrum is provided by Lewis’s quote of University of Texas advice to instructors, “Licensing Students to Create a Derivative Work“, in which instructors are encouraged to explicate the extent to which students can take, use, and share notes. Lewis’s remark following the U. of T. exceprt is, “Doesn’t sound much like a temple of the free exchange of ideas”, and this writer agrees, but that probably doesn’t reach the substance of the issue.

The argument that suggests itself at present is that there is an implied contract between the student and the institution which permits the standard and traditional uses students make of their notes. The chain of reasoning would go along the lines that the professor’s lectures were either works for hire or contractually licensed to the institution for the purpose of enabling the institution to then contract with the students, thereby letting the students make the traditional uses of class notes. This, then, is probably what ought to be explicated, both in contracts between institutions and instructors, and in contracts between institutions and students.

Via @FairlyUsed on twitter eventually leading to an article at TechDirt, “New Zealand Author Claims Libraries Are Involved In Grand Theft By Loaning Books“. The crux of the argument is:

But there’s a principle here: when one person buys a book and lends it to another person to read, they effectively become an accessory to theft. Their generous act amounts to little more than stealing the author’s work. When a public library buys a book and lends it to thousands of other people to read, it’s grand theft copyright and really no different from illegally downloading music or movies or copying CDs or DVDs on your computer. (emphasis in original)

Proponents of file-sharing start with the same basic premise: They own the file in question and are as free to share it as a library is to share it’s books. Content industry advocates reject this premise, and rightly, for it is inapt and inaccurate. Reliance on inapt and inaccurate analogies generally results in bad reasoning and bad law. Because of this all interested parties are best served by judicious choice of metaphors and analogies in support of their arguments as they advocate their various positions.

Or are they? Justice Scalia famously opined in favor of wild and arguably incompetent arguments (United States v. Gonzalez-Lopez, 548 U.S. 140 (2006)), saying during oral arguments,

“[If I am a defendant,] I don’t want a competent lawyer. I want a lawyer who’s going to get me off. I want a lawyer who will invent the Twinkie Defense [...] I would not consider the Twinkie Defense an invention of a competent lawyer [...] but I want a lawyer who’s going to win for me.”

It is a feature of our adversarial system that rhetoric often prevails over reason. But that truism does not absolve us of the responsibility to ensure the legitimacy of the practice of law. Quite the contrary, knowing that wild arguments can sway, it is our responsibility to work diligently towards descriptions and analogies that are in fact apt and which lead conclusively and compelling to just, and legal, outcomes.

There is a non-trivial argument that the practice of loaning out library books costs an author sales. There is a similarly non-trivial argument that the practice of loaning out library books increases an author’s sales. There is a plausible argument that both of the foregoing are true to some extent which may or may not be properly measurable and which may or may not work for or against the author’s net interests. But at no time is there any unlicensed or un-privileged copying, because there is in fact no copying at all. Use of evocative phrases like, “stealing the author’s work” does nothing to change the basic facts or bolster the legitimacy of the position, however the central premise, that loaning a library book is like “sharing” and electronic file, is certainly anathema to the interests of the content industry.

“Socializing the Network: Legal Strategies for Web 2.0″

Michael K. Lindsey
Paul Hastings, Janofsky & Walker LLP

Paul Lippe
CEO, Legal OnRamp

Jennifer Mardosz
VP Business & Legal Affairs, Fox Interactive Media (parent company of MySpace)

This was an exciting panel that could easily have filled twice the allotted time before entertaining questions. Each of the speakers had a different slice of the Social Media world to share, and each was fully on top of their topic. If there was a general theme to the three messages it is that sound legal principles continue to reign supreme, even in “new media.” Mr. Lindsey discussed situations in which a copyright claim might fail but a more pedestrian tort such as trespass might prevail. Ms. Mardosz emphasized the importance of such central documents as the Terms of Service, Privacy Policy, and Abuse Reporting protocols for lawyers advising social media companies. And Mr. Lippe stressed the basic human component of all social collaboration, be it the Oxford Dictionary (with an allusion to Simon Winchester’s book, “The Professor and the Madman”) or Wikipedia. Anyone who is even tangentially involved with legal issues surrounding social media surely missed a tremendous opportunity if they missed this panel.

An important question in the Internet practice area is whether or not a given situation is directly covered by statute or robust case law. The Register’s , “Bank sues Google for identity of Gmail user” is a good example of such a situation. A bank employee sent a list of 1,325 tax id numbers to the wrong address, with the bank eventually suing Google for the identity of the recipient:

Google, of course, is right to wait for a court order. And it’s right to give the Gmail user involved the opportunity to oppose the order. But the tale is a reminder that in certain situations, the information giant will indeed be compelled to turn over private data.

In a non-internet context, perhaps the closest situation would be if U.S. Postal had been used to send to the wrong address, said address being a post office box. This example maintains the feature of an address bereft of indicia of the recipient’s identity. Is there statute, U.S. Postal regulation, or case law on point for this non-digital example? If so, to what extent will such statutes, regulations, or case law control the disposition of this case?

Flowbee joins the fray, possibly with a “clone-and-copy” but bringing the number of AdWords lawsuits back up to 8. From the August 14 Technology & Marketing Blog:

I can’t recall if language in Para. 63 is just copied from the Gibson Dunn complaint, but this complaint says “A statistically significant number of consumers are likely to believe falsely that it was Flowbee who ‘sponsored’ the links that appear above or alongside the PageRank search engine results.” This, of course, remains one of the most crucial unresolved empirical questions underlying all of the AdWords-related lawsuits: exactly what do consumers think is the reason they are seeing specific keyword-triggered ads? For now, I’m more interested in a procedural question: I would love to know the exact steps Flowbee and its lawyers took to satisfy themselves of this factual statement before asserting it.

The laws of anonymous speech are stretched by the proliferation of new avenues for speech. Jacqui Cheng at ars technica takes a look, with links to specific cases in which plaintiffs sought to remove the shield of anonymity:

[A] judge in California recently acknowledged that there may be some scenario in which unmasking commenters is OK, but that the litigant would have to jump through some extra hoops to get the information. Police officer Calvin Chang had previously settled a lawsuit with UC Davis over race and sexual orientation discrimination, but believed that recent comments on the Vanguard of Davis blog may have been from university insiders attempting to discredit him—a breach of the settlement he had reached with the university.

Chang attempted to subpoena to have the commenters identified, but the judge did not immediately go along with it. Instead, she ruled that Chang could hire an investigator to find out whether the commenters were “managing agents of the university.” If they are, then they would indeed be in breach of Chang’s settlement and the judge will permit their identities to be revealed so that he could pursue further action.

…to defame, or so thinks Horizon Management Group. Horizon sued one of their tenants after she complained on her Twitter account. From law.com:

Amanda Bonnen…had merely 20 followers. But the small number of followers did not prevent this ordinary Chicago woman from being sued for $50,000 for her tweet.

This past May, Bonnen tweeted, “Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it’s OK.” Horizon Management Group took offense to Bonnen’s tweet and filed suit against her in Cook County, Ill., on July 20, 2009. Horizon alleged that Bonnen’s public tweet is libel per se and asked for damages in the amount of $50,000.

The source article (linked above) continues on with some cogent questions, such as, does a service like twitter fall under rules for traditional media and whether one person’s followers should be held liable for repeating an alleged defamatory statement.

From Wikipedia:

The United States Constitution was adopted on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania, and ratified by conventions in each U.S. state in the name of “The People”.

The Declaration of Independence gets all the glory, but the system of check and balances embodied in our Constitution is unarguably the more amazing document.

It is understood that jurors must be shielded from influences that would affect their ability to render a verdict based solely on the facts presented. Does that mean jurors must avoid social media? Probably.

Source: Technologist: The Findlaw Legal Technology Blog: Jurors: Keep Your E-Fingers to Yourselves:

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