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.

* * *

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.

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.

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.

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.

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.

* * *

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.

On July 22nd the Ninth Circuit Court of Appeals overturned almost all of a Riverside federal court judge’s rulings and jury’s findings in the $100 million Bratz v. Barbie case. Judge Stephen Larson presided over the trial which ultimately found that Mattel Inc. had the rights to the Bratz dolls produced by rival MGA Entertainment Inc.

The appeals court ruled that most of the jury instructions and conclusions reached during the 2008 trial between Mattel and MGA were incorrect. “Because several of the errors we have identified appeared in the jury instructions, it’s likely that a significant portion – -if not all — of the jury verdict and damage award should be vacated, and the entire case will probably need to be retried,” said the appellate panel in an opinion written by Chief Judge Alex Kozinski. See our orgininal blog post on this topic here. 

The panel stated in the opinion“Even assuming that MGA took some ideas wrongfully, it added tremendous value by turning the ideas into products and, eventually, a popular and highly profitable brand.”   And went on to say “It is not equitable to transfer this billion-dollar brand, the value of which is overwhelmingly the result of MGA’s legitimate efforts, because it may have started with two misappropriated names.”

Wow. Talk about a difference of opinion. The trial judge and the appeals court saw this one very differently.

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)

The fifth class would seem to bear on the 5th Circuit ruling mentioned in our previous post.

(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…

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).

In an article in the Wall Street Journal yesterday, Justin Scheck, described the short lived trademark category for marijuana.  The article reports that the USPTO plans on ‘shutting things down’ by the end of the month, but apparently there was a brief period in which  the U.S. Patent and Trademark Office created a new trademark category dedicated to medical marijuana, spurring a hoards of applications from people and businesses in the 14 states where the drug is legal for medicinal purposes.  Among the trademarks: Chronic, Mellow Yellow, and Maui Wowie.  

The trademark agency said it was “highly unlikely” that the office would grant a medical marijuana trademark anytime soon because a product must be legal for interstate trade to be eligible for trademark protection…and so it goes.  An interesting but at least for now academic argument is whether whether long-used names for the drug could be trademarked if..uh it was legal it sell it.

The justices agreed with an appeals court that the method was too abstract to be patented. The Supreme Court used a different analysis to reach that conclusion, disagreeing with the legal test used by the lower court.   Read the Wall Street Journal article on the court decision.

In City of Ontario, California v. Quon. The court held that a public employer’s examination of an employee’s personal text messages on a government-issued pager did not violate the Fourth Amendment. Justice Kennedy’s opinion for the Court remarked that a review of messages on an employer-provided device would similarly be regarded as “reasonable and normal in the private-employer context.”

A police sergeant was using a work-issued pager to send sexually explicit texts. The Supreme Court ruled Thursday that under the circumstances the police department was entitled to read his messages. In a unanimous decision, the high court said that even if police Sgt. Jeff Quon had an expectation that his pager messages would remain private, a police department audit of his messages was nonetheless reasonable.

“Because the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable,” Justice Anthony Kennedy wrote for the court.

Quon’s employer asked its wireless service provider for details about the text messages sent and received by the city’s police officers, when their texts regularly exceeded the monthly limit for which the city had contracted. Quon was disciplined for violating police department rules when the city discovered that he sent numerous personal messages. He and the individuals with whom he communicated and who communicated with him sued the city, arguing that the city engaged in an unreasonable search in violation of the Fourth Amendment of the US Constitution, the privacy clause found in Article I, section 1 of the California constitution, and also the federal Stored Communications Act (SCA).

This is good news for employers and the case gives them guidance on the issue of employee privacy in this context:

Employers should establish the level of privacy expectations with a written policy that covers all the gizmos the company uses–telephones, cellular phone, sms text, and email.

Employers should avoid reviewing the content of sms messages, or emails or asking their service providers to do so, unless the employer has a clear work-related purpose such as an investigation of suspected wrongdoing or a non-investigative financial or administrative objective.

Content review should be done in a manner that limits privacy intrusions. The Quon decision states that this does not mean “least intrusive search practicable” but instead it must be a search reasonably limited to the employer’s legitimate, work related objectives.

A reasonable review of employee communications with realistic work related objectives can also serve as a defense against privacy claims by non-employees who communicated with the employee.

Under the operative the U.S. Copyright Group, the lawyers seek out indie filmmakers and offer to sue anonymous movie pirates for no charge. The firm then subpoenas Verizon, AT&T and other ISPs to identify each John Doe user, and threatens to sue each person for $150,000 unless they agree to a $1,500 to $2,500 settlement fee, according to Ars Technica’s Law & Disorder blog and Techdirt. Defendants can pony up the cash on a website set up to accept checks and credit cards.

To identify illegal file-sharing, the firm uses a program that captures IP addresses based on the time stamp that a download has occurred and then checks it against a spreadsheet to make sure the downloaded content is the copyright-protected film and not a misnamed film or trailer, according to the Hollywood Reporter’s THR, Esq. blog

• The Anti-Counterfeiting Trade Agreement
• The Anti-Counterfeiting Trade Agreement, Part II

From Kaminski’s more recent post:

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.