IP/Internet/New Media Blog

Professor Jason Mazzone‘s latest post at Balkinization invites consideration of adding a provision to copyright law which would create penalties for falsely marking content as copyrighted.

The Copyright Act should be amended to include a false marking provision modeled on section 292 of the Patent Act.

A false marking provision in copyright law would incentivize publishers to provide accurate information about the status of a work. Public domain works marked as copyrighted would result in liability. A new edition of a public domain work that adds copyrighted material (an introduction, for example, or annotations) would be required to carry a notice specifying what is copyrighted and what is not.

As with the Patent Act, anybody would be able to bring a claim against the publisher who falsely marks a work as copyrighted. The person bringing the lawsuit would retain a portion of the remedy.

Section 292 of the Patent Act furthers the utilitarian purposes of our patent system. A copyright false marking law will likewise promote the public interests of copyright.

Would such a provision improperly burden the profitability of publishers who add copyrighted material to public domain works?

Julie Samuels of the Electronic Frontier Foundation reports:

This patented device enables Apple to secretly collect, store and potentially use sensitive biometric information about you. This is dangerous in two ways: First, it is far more than what is needed just to protect you against a lost or stolen phone. It’s extremely privacy-invasive and it puts you at great risk if Apple’s data on you are compromised. But it’s not only the biometric data that are a concern. Second, Apple’s technology includes various types of usage monitoring — also very privacy-invasive. This patented process could be used to retaliate against you if you jailbreak or tinker with your device in ways that Apple views as “unauthorized” even if it is perfectly legal under copyright law.

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In other words, Apple will know who you are, where you are, and what you are doing and saying and even how fast your heart is beating. In some embodiments of Apple’s “invention,” this information “can be gathered every time the electronic device is turned on, unlocked, or used.” When an “unauthorized use” is detected, Apple can contact a “responsible party.” A “responsible party” may be the device’s owner, it may also be “proper authorities or the police.”

Such an extensive capture of identifying information raises questions of Apple’s duty to properly protect such data from misappropriation and misuse and what liability might arise from any failure of such duty. Also of interest is the question of whether such measures might be implemented even without patent protection.

Monday, August 9, 2010, Verizon and Google published their Legislative Framework Proposal(link to pdf). The proposal addresses everything from net neutrality to the national broadband plan, giving the FCC “exclusive authority to oversee broadband Internet access service” but stripping the FCC of “any authority over Internet software applications, content or services.”

Keeping in mind that this is merely an aspirational statement by Verizon and Google, stating how they would like to see legislation crafted, the proposal nonetheless merits consideration and analysis, representing as it does a public statement of the kind of lobbying these two interests will be funding.

As reported in the New York Times and elsewhere, the FBI demanded Wikipedia remove the FBI’s seal from Wikipedia’s article on the FBI. General Counsel for Wikimedia Foundation replied with a letter worthy of note(link to pdf) for it’s wry tone, strong stance, and most of all as an example of clearly worded legal reasoning.

May we talk a little bit further about ejusdem generis and your creative editing of the statute? I have reproduced the full statute below. (It is helpfully titled “§ 701. Official badges, identification cards, other insignia” – I note that your idealized version of the statute omitted the section title.)

Certain words that you redacted, which are central to the interpretation, are bolded and underlined for your convenience:

Whoever manufactures, sells, or possesses any badge, identification card, or other insignia, of the design prescribed by the head of any department or agency of the United States for use by any officer or employee thereof, or any colorable imitation thereof, or photographs, prints, or in any other manner makes or executes any engraving, photograph, print, or impression in the likeness of any such badge, identification card, or other insignia, or any colorable imitation thereof, except as authorized under regulations made pursuant to law, shall be fined under this title or imprisoned not more than six months, or both.

The underlined words are conclusive proof that the canon of statutory construction ejusdem generis applies. Under that principle, “where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001). Courts use ejusdem generis in conjunction with common sense and legislative history to discern the legislature’s intent in writing a statute.

You will note that the phrase “or other” precedes the word “insignia”, both of which follow the enumerated items “badges” and “identification cards.” This constrains the definition of insignia to those objects which are similar in nature to badges and identification cards. This definition comports with case law interpreting 701. As I have noted above (I’m requoting this passage because I truly love it), “the enactment of section 701 was intended to protect the public against the use of a recognizable assertion of authority with intent to deceive.” United States v. Goeltz, 513 F.2d 193, 197 (10th Cir. 1975) (contrasting political use of insignia with defendants’ conduct, which “was of the dirty-trick variety and was for the purpose of enraging its victims”). Badges and identification cards are physical manifestations that may be used by a possessor to invoke the authority of the federal government. An encyclopedia article is not. The use of the image on Wikipedia is not for the purpose of deception or falsely to represent anyone as an agent of the federal government. Using both ejusdem generis and common sense, we can see that 701 does not apply to the use of an image on an online encyclopedia.

It may be tempting to cherry pick one’s excerpts of code or cases when preparing an argument, as Godwin seems to suggest the FBI has done, but the temptation should be resisted.

It bears mention that copyright is not at issue here, nor is it the only way one can end up in conflict regarding such usage.

An August 4 New York Times web article lead with the following,

Google and Verizon Near Deal on Web Pay Tiers
By EDWARD WYATT
Published: August 4, 2010

WASHINGTON — Google and Verizon, two leading players in Internet service and content, are nearing an agreement that could allow Verizon to speed some online content to Internet users more quickly if the content’s creators are willing to pay for the privilege.

Some commentators opine that it heralds the end of net-neutrality. Marvin Ammori writes at Balkinization,

So, as a business matter, the deal is important. And, yes, it may be the end of the Internet as we know it, if the FCC blessed such deals. The deal yesterday announces that Verizon and Google open the door to all of this.

But Google denies any such conversations, writing via Google’s Public Policy twitter stream,

@NYTimes is wrong. We’ve not had any convos with VZN about paying for carriage of our traffic. We remain committed to an open internet.

Google has long enjoyed a favored position in the eyes of net-neutrality proponents, and Verizon, along with “big telcom” in general, have long been cast as acquisitive robber barons seeking an end to the level playing field of open networks. But with the increasing closeness of Google and Verizon engendered by their joint projects with the Android phone there are concerns by many that Google may have moved away from its core values in favor of a profitable alliance.

Ryan Singel of Wired’s “Epicenter” reports on a Freedom of Information Act request submitted by wired.com to the FTC.

Wired.com sought a copy of Adobe’s complaint by filing a Freedom of Information Act request in early May, which was denied in whole in a July 23 letter.(link omitted)

“We have located 189 pages of responsive records, all of which are exempt from the FOIA’s disclosure requirement,” wrote Joan A. Fina, the FTC’s assistant general counsel. “These records are exempt… because disclosure of that material could reasonably be expected to interfere with the conduct of the Commission’s law enforcement activities.”

The language all but confirms that the FTC is actively investigating Apple…

Apple has been criticized for banning Adobe Flash applications on the many Apple products such as the iPhone and iPad. Apple’s official position is that the company prefers to support open standards such as HTML5, CSS, and JavaScript. However, also included in an open letter by Apple’s Steve Jobs, is this:

Symantec recently highlighted Flash for having one of the worst security records in 2009. We also know first hand that Flash is the number one reason Macs crash. We have been working with Adobe to fix these problems, but they have persisted for several years now. We don’t want to reduce the reliability and security of our iPhones, iPods and iPads by adding Flash.

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Flash is a cross platform development tool. It is not Adobe’s goal to help developers write the best iPhone, iPod and iPad apps. It is their goal to help developers write cross platform apps. And Adobe has been painfully slow to adopt enhancements to Apple’s platforms. For example, although Mac OS X has been shipping for almost 10 years now, Adobe just adopted it fully (Cocoa) two weeks ago when they shipped CS5. Adobe was the last major third party developer to fully adopt Mac OS X.(emphasis added)

Singel’s Epicenter article suggests the FTC is now taking a look at Apple’s position on Flash with a possible eye to anti-trust issues.