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?
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.
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.
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.
Section 1201(a)(1) of the copyright law requires that every three years I am to determine whether there are any classes of works that will be subject to exemptions from the statute’s prohibition against circumvention of technology that effectively controls access to a copyrighted work. I make that determination at the conclusion of a rulemaking proceeding conducted by the Register of Copyrights, who makes a recommendation to me. Based on that proceeding and the Register’s recommendation, I am to determine whether the prohibition on circumvention of technological measures that control access to copyrighted works is causing or is likely to cause adverse effects on the ability of users of any particular classes of copyrighted works to make noninfringing uses of those works. The classes of works that I designated in the previous proceeding expire at the end of the current proceeding unless proponents of a class prove their case once again.
This is the fourth time that I have made such a determination. Today I have designated six classes of works. Persons who circumvent access controls in order to engage in noninfringing uses of works in these six classes will not be subject to the statutory prohibition against circumvention.(emphasis added)
(5) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace…
Judge Garza of the New Orleans based 5th Circuit has ruled that circumventing software protection is not per se a violation of DMCA. Courthouse News reports:
General Electric did not infringe on a power supplier’s digital copyrights when it used protected software unlocked through a hacked security key, the 5th Circuit ruled.
“Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the (Digital Millennium Copyright Act’s) anti-circumvention provision,” Judge Garza wrote for the New Orleans-based court.
“The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.”
The ruling represents a parting of the way with the current prevailing view in most of the nation’s courts, according to author and digital rights activist Cory Doctorow. Such a split, says Doctorow, is often the precursor to seeing the ruling challenged in the Supreme Court. Doctorow also points out that Judge Garza’s ruling, which might otherwise be viewed as a victory for proponents of a less rigid enforcement of the DMCA, is nonetheless a victory not of an underdog hacker but instead is an example of a large and powerful corporation prevailing. Quoting Doctorow’s July 25th post at boingboing.net,
What’s more, the defendants here are General Electric, not hackers in black t-shirts or sketchy offshore Xbox-modchip vendors (theoretically the law shouldn’t care if the defendant is a hobo or a billionaire, but in practice, billionaires usually get better precedents, and not just because they can afford better lawyers).
These are likely to be two of the best posts you will read regarding the recently released ACTA text, filed at Balkinization by Margot Kaminski of the Yale Information Society Project:
The big picture issues are unchanged: 1) ACTA establishes a new institution outside of existing international law; 2) ACTA pushes the international standard for IP law to an IP-maximalist’s dream; and 3) when you establish the information-sharing and investigative infrastructure, bad things (civil liberty violations) will follow.
By Galen Gentry
According to WebProNews Facebook was the most visited site for the week of March 7 to March 13. The fact that FB was the number one site will influence the value of advertising on the site and surely increase the advertising by big business. Facebook advertisers can be very specific as to who they target. For instance you can advertise on Facebook just to lawyers or people who list horses in their interests and live in Toledo. That is drilling down. These are exciting times for Facebook and interesting times for big business as they try to spend their advertising dollars wisely on a user content focused web.
From Reuters, an article reporting developments in Big Content, including the possibility of $30M Comcast deal to buy NBC. Most of the article is business reporting, but the following quote goes a little farther:
“The problem is people don’t want to pay for anything on line,” said Paul Levinson, media professor at Fordham University in New York.
This is incorrect. The problem is that people on line increasingly understand that on line technology allows for effectively limitless distribution of effectively limitless copies of an ever burgeoning content catalog. Those same people have been raised to believe in the principles of a free market, wherein prices drop as supplies rise. By such principles, with content supplies approaching infinity, content costs should approach zero. This has already happened with data storage. Not so long ago A 1mb floppy cost a dollar. Today a free gmail account comes with over 7gb of space, a $7,000 value by not so distant standards. The cost of data storage been so completely deflated as to make a megabyte effectively free. It is true that those accounts, along with google’s free search engine, and services like facebook and twitter and youtube, are not completely free. Better to say they are free to users, having been subsidized by advertisers, much like television. This doesn’t change the central fact that today’s technology allows such subsidies of what formerly would be a $7,000 retail value.
A business model built a century ago in an era of content (and replication and distribution) scarcity simply will not survive the realities of the wealth we enjoy today, a wealth created by advances in communications technology. The beneficiaries of the old business model will not be able to keep all that wealth to themselves. It will be distributed to the masses by means of google and youtube and the descendants of napster and grokster, and no amount of wishful thinking or manufactured scarcities can prevent such distribution. The lid to Pandora’s box swings only one way, and the technology that provides our riches ultimately cannot be wished away. Instead, old business models will become increasingly less viable and new ones will supplant them. The people who profit most in the next decades will be those who develop the new models.
H.&R. Block’s “Spending Vehicle” patents were struck down in a decision relying heavily on Biliski. Opinion available courtesy of Patently-O:
A financial relationship is simply an abstract intellectual concept. Absent the recitation of
a computer, the ‘862 patent would certainly claim unpatentable subject matter.
The ’862 patent is the “Spending Vehicles for Payments”, and one is tempted to assume the inapt use of metaphor has once again lead to poor legal reasoning, this time on H&R Block’s part. The Patently-O article is worth reading, as are many of the comments.
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