Last we heard from Perfect 10, the porn purveyer failed miserably in its Induce Act-like attempt to hold credit card companies liable when people use the cards to purchase access to purloined Perfect 10 pics.

Andrew Bridges, a partner in the firm representing MasterCard, observed that the company's attempt to apply the Napster decision to the case shows how law made in extreme cases -- e.g., to fight peer-to-peer file sharing -- can later be applied in different scenarios (*cough* Induce).

"A lot of copyright [litigation] is being pushed by pornographers who are trying to take advantage of cases brought by more mainstream media," Bridges said.

Now Perfect 10 is at it again, this time filing a filing a complaint (PDF) against a company that it presumably hopes will be an easier target: Google.

Writes John Palfrey:

What's intriguing about Perfect 10's claims, and I suspect their best shot at differentiating their claims from previous assaults on search engines, is the way they're trying to hook nearly the entire set of claims on (in a general sense) the notion that Google gets adwords revenue thanks to the porn company's content that's been copied and distributed on "stolen content websites" who in turn pay Google (so one would presume from the complaint, anyway) for click-throughs -- see paragraphs 27 - 34, then claims 2 (contributory infringement of copyright) and 3 (vicarious infringement of copyright) and the subsequent trademark, unfair competition, and right of publicity claims.

In short, Perfect 10 says: Google is profiting -- a lot -- from the bad acts of others and they should stop doing it and pay us for what they've done.

Interesting.

Reading it in the wake of the Jeff Jarvis interview I linked to below, I can't help but imagine how he might respond: "If 'bad actors' can profit this handsomely from the 'distribution' of copyrighted works via P2P or search, why can't we find a way for the 'good actors' -- the copyright holders -- to profit just as much?"

Later (1:20 p.m.): Wendy Seltzer @ Legal Tags: "Perfect 10's complaint doesn't look so strong, but its basic arguments are recurring ones in the online debates: that IP owners should be able to deputize intermediaries as their copyright, TM, etc. cops. (It's no coincidence that Perfect 10's lawyers include Russ Frackman, counsel to the record labels in MGM v. Grokster.) Sure, holding everyone in the chain liable might help stop infringements, but it would also kill search engines, whose value comes from helping users to find whatever they're looking for, if it exists on the Web."

Planet Simpson:

I paid $350 (in US funds) to use a handful of quotes from Radiohead songs in my book. [...] I was not required to fork over a single dime to quote from The Simpsons itself, nor to quote at length from Tony Hendra's excellent book Going Too Far, nor to quote from Foucault or Mark Twain or David Foster Wallace. But to use 87 words from the collected lyrics of Radiohead? Three hundred and fifty simoleons. Roughly $4.02 per word. (Which, incidentally, is more than double the highest amount I've ever been paid per word to write for a magazine or newspaper.)

Alan Wexelblat @ Blogbook IP:

Copyfight, among others, has been tracking the varied zigs and zags of TiVO as that company tries to navigate the shark-infested waters of modern electronics. OK, those are [Copyright] Cartel lawyers, not sharks, but who can tell the difference?

Now it appears that TiVo has sold out entirely, but not to the Cartel. Instead, they've climbed into bed with a coalition of 30 big advertisers to implement a "feature" (and I use that word advisedly) that takes away your ability to skip ads. Instead of a simple forward jump, you get to have your commercials overlaid with... wait for it... commercials. But they're TiVo's commercials. Soooo much better.

According to the LA Times story linked above, these "tiverts" as I think I'll call them will pop up during fast-forwards, offering contest entries, giveaways or links to other ads. And of course, this is accompanied by a vast giveaway (well, technically it's probably a sale) of your personal information to the advertisers.

Even if you don't participate in this effort to get you to mainline commercialism, you'll still be part of an intensive "market research" effort in which TiVo will examine your viewing habits on a second-by-second basis (no, I'm not making that up) and then sell THAT data.

"The message we really want to get across," says Davina Kent, TiVo's advertising and research sales manager, "is that we now have a dedicated road map for advertising." It's completely unclear to me whether they have a dedicated roadmap for customer satisfaction.

Another must-read post, on the off-chance you haven't seen it yet: TiVo Sells Your Fast-Forward Button to Advertisers [Cory Doctorow @ BoingBoing].

via the Miami Herald:

When he bought his 10-year-old a computer, Antonio Morrell was just trying to help the boy get ahead in school. Now the Miami construction worker is being sued by the music industry, which has brought its battle against Internet piracy to South Florida for the first time.

More than a dozen record companies have sued 30 South Florida residents, accusing them of illegally downloading music and making it available for others to copy.

Some of those named in the lawsuits told The Herald the record companies have offered to settle for about $4,000 each.

Morrell said he never downloaded any songs. Yet he's named in a lawsuit, he said, because his son, Alessandro -- who was 10 when his father bought him a computer two years ago -- downloaded about 1,000 songs and opened the door for others to copy them.

''I don't see how I could be paying somebody $4,000 for something I didn't do,'' Morrell said. ``I bought the computer for schoolwork. I'm sure he didn't know he was doing anything illegal.''

Morrell said he separated from his wife over a year ago and wasn't around to monitor his son's computer activity.

The NYT reports on the current state of the dispute between Project Gutenberg .au and the estate of Margaret Mitchell over posting of Gone With the Wind. Post CTEA, that work is still under copyright in the U.S. but public domain in Australia.

The NYT gets comment from a lawyer for the Mitchell estate -- who's surprised that his cease-and-desist demands had the effect of taking the work offline in Australia. It's not clear what else he expected:

On behalf of the Trusts, we hereby demand that Project Gutenberg and/or PGA confirm to us within five (5) days of receipt of this letter that you have removed GWTW from the Web Site entirely or that you have taken all necessary steps to prevent the downloading of GWTW in all places in which it is protected by copyright.

Given that geolocation doesn't work and legal advice isn't instantaneous or free, for the most part, what did he expect? If it was just to give a scare, that's the kind of chill we don't need more of.

Another classic case of overly-aggressive IP lawyers:

Channel 6 News asked people Friday when you hear Krispy Kreme, what do you think of?

"Good donuts." "Donuts." "Donuts." "An Ice Cream Cone."

Ice cream cone? Yes. That's what Krispy Kream Drive In on Route 422 in Cambria County sells. The current owners have been in Belsano since 1968.

Christina Hoover owns the Ice Cream shop with her husband. She tells Channel 6 News, "We're an ice cream fast food stand. It's a drive in."

And business is good. Then in the past month two letters from Krispy Kreme donuts. The corporation is not happy with them. But it's not about donuts and ice cream. The problem has to do with the name. Krispy Kreme donuts wants Krispy Kream Drive In to change theirs.

Amy Hughes is the Communications Director for Krispy Kreme. She tells Channel 6 News, "Unfortunately this business is violating a federal regulation trademark that we've had since 1951. And we've respectfully requested that they cease doing so within a reasonable amount of time."

Krispy Kreme couldn't be more wrong. Sure, it may have been using the name in connection with donuts since 1951, but ice cream and donuts are two different kinds of products. No one thinks the KK donut chain sells ice cream cones.

What Krispy Kreme is really arguing is dilution of their "famous" brand. Since going IPO a few years ago, Krispy Kremes have popped up everywhere across the county, from SBC Park in SF to the Excaliber in Las Vegas. So yes, within the last few years, one could argue that they are a "famous" tradermark like McDonalds or Kodak and should be protected from dilution (e.g. someone selling McDonalds backpacks or Kodak bicycles). The problem with this argument is that you can only sue someone for diluting a famous mark after its become famous. Since the Hoovers' ice cream stand has had the name "Krispy Kream" since 1968, they are quite safe from a dilution attack.

Cory responds below to a Copyfight reader who suggests that the way to avoid being asked to pay for a particular product again and again simply to enjoy traditional "me2me" time- and space-shifting "privileges" (à la HBO ) is to refuse to purchase the product altogether. Needless to say, Cory disagrees:

That's a cool personal moral code, but it's not the one I adopt. Copyright is a limited monopoly given on our behalf to creators. What a creator can and can't demand of you is spelled out by lawmakers, who balance the cost to us of having monopolies in the market with the benefit of creating incentives to produce work we can enjoy.

When a creator conditions use or access of his work beyond the scope of copyright (you must stand on your head, you must not make a backup, you may not sell this on), it's not a fair market in creativity that can be corrected by directing a purchase in the right direction: it's an abuse of a regulatory monopoly that picks my pocket to line a right-holder's.

Monopolies aren't subject to market forces: that's why we have trust-busters. I think that buying from the ethical railway barons would not have caused the monopolistic railway barons to act better. We needed to go in with a fireaxe and bust their trust. I don't think that buying from ethical artists will get the big companies to act better either. Regulation -- the creation and maintenance of copyright -- created this mess, and only regulation -- changes to copyright -- will solve it, IMO.

Doom9 sez:

Dutch civil rights organization Bits of Freedom has run an interesting experiment: They put up a text by a famous Dutch author, written in 1871 to accounts with 10 different ISPs. Then they made up an imaginary society that is supposed to be the copyright holder of the author in question, and sent copyright infringement takedown notices to those 10 ISP via email (using a Hotmail account). 7 out of 10 ISPs took down the material, sometimes within hours and without even informing the account holder. One ISP doubted the legitimacy of the claim and asked for some proof that the alleged plaintiff was in fact the copyright holder. Yet another ISP actually realized that copyright had long since run out on the work. That's real scary, don't you think? Made up society, Hotmail addresses and a website is gone.

BOF's paper is available here (PDF)

Going on a trip and want to take the latest episode of The Sopranos with you? Forgetaboutit. Coming this June to a cable or satellite set top box near you, HBO will be locking down all fair use rights on their content -- whether analog or digital. You can make one copy of regular HBO content and no copies of On-Demand content:

Commencing in June, HBO will include a technology in its program services that provides copyright protection information to consumer electronic equipment connected to analog outputs of cable and satellite set-top boxes. The technology (CGMS-A -- Content Generation Management System for Analog) enables compliant digital recording devices to abide by federal digital encoding rules.

In accordance with the federal encoding rules, HBO and Cinemax subscribers will still be able to make a single copy of HBO and Cinemax linear programming, but will not be able to make any copies of HBO-On-Demand or Cinemax-On-Demand programming.

Continue reading "HBO freezes fair use; plugs analog hole"

When will Disney stop stealing from the public domain? I mean really, it's just like taking a CD from a record store without paying for it... except that the record store owner is dead... and well, the store is really the compendium of human knowledge.. and the CD is part of our collective cultural history. Whatever. Theft is Theft, right?

LONDON, England (CNN) -- An unlikely feud is seeing the film empire that built its name on cartoons for children -- the giant Disney corporation -- at odds with Britain's most famous hospital for sick children.

And it is all over another legendary children's favorite -- Peter Pan, the boy who never grew up.

In what the New York Post billed this week as "Sick kids vs. Disney in Peter Pan dust up," Great Ormond Street hospital for children in London is consulting lawyers over a book published by a Disney subsidiary in the United States.

"Peter and the Starcatchers" by Dave Barry and Ridley Pearson and published by Disney's Hyperion Books is billed as a prequel to the children's classic, "Peter Pan."

Great Ormond Street was left the royalties to Peter Pan in 1929 by the author, J.M. Barrie -- and million of pounds earned from copyright fees have gone towards treating sick children in Britain ever since.

This weekend sees the UK premiere of a film about Barrie's life, "Finding Neverland" -- starring Johnny Depp, Kate Winslet and Dustin Hoffman. The hospital will receive royalties from book excerpts portrayed in the film.

But the hospital charity says is getting nothing from "Peter and the Starcatchers" -- which has been on the New York Times best seller lists, has had an extensive author tour and has its own Web site. They say the book has been published without its permission.

A spokesman for the hospital told CNN that Great Ormond Street held the copyright to Peter Pan in the United States until 2023 -- although it runs out in EU countries in 2007 -- and said: "We are considering our options."

Disney, meanwhile, has insisted that Peter Pan is out of copyright in the United States.

"The copyright to the J.M. Barrie stories expired in the U.S. prior to 1998, the effective date of the U.S. Copyright Extension Act, and thus were ineligible for any extension of their term," Disney said in a statement to the Daily Telegraph.

STATEMENT OF SENATOR JOHN McCAIN

CHAIRMAN, SENATE COMMITTEE ON
COMMERCE, SCIENCE, AND TRANSPORTATION

OCTOBER 11, 2004

THE INTELLECTUAL PROPERTY PROTECTION ACT

• Mr. President, I wish to briefly remark on H.R. 2391 and H.R. 4077, a package of bills referred to as the “Intellectual Property Protection Act of 2004.” I have objected to the further consideration or passage of these bills by unanimous consent.

• From the text of the bills that have been available to date for Senators to review, I believe that one part of this broad legislation, the Family Movie Act, may actually harm consumers while appearing to help them. To be clear, I support the stated goal of the Act’s authors: immunizing from legal challenges a technology that enables parents to skip offensive material from prerecorded copies of films and television. While I applaud the merits of their stated intent, I fear that the very exemption designed to achieve this laudable goal simultaneously creates an implication that certain basic practices that consumers have enjoyed for years -- like fast-forwarding through advertisements -- would constitute criminal copyright infringement. I note that Consumers Union and Public Knowledge, as well as a host of others parties interested in protecting consumers, share my concerns.

• Americans have been recording TV shows and fast-forwarding through commercials for more than thirty years. Do we really expect to throw people in jail in 2004 for behavior they've been engaged in for more than a quarter century?

• I look forward to working with my colleagues in this chamber to address not only these concerns, but also the uncertain liability created for manufacturers that bring other innovative and pro-family products to market in the face of continual threats of extinction from powerful interests who seek to thwart their entry.

• Mr. President, for these reasons, I do not intend to remove my hold on these bills until I am satisfied that consumer interests have been protected in this legislation.

IPnewsblog notes:

The Olsen twins are threatening legal action against a California design company unless it ceases the production and sale of a popular t-shirt featuring a drawing of Mary-Kate and the words underneath "save mary-kate." The t-shirt is pictured on the link and was produced after Mary-Kate Olsen, 18, entered a facility in June 2004 for treatment of an alleged eating disorder. The letter sent was sent from the Olsen twins' attorneys to the company, contending that the t-shirt violates the Olsens' publicity, privacy, and trademark rights.

Reminds me of Arnold's threats over the Governator Bobblehead doll.

As I noted on The Importance Of..., the MPAA and RIAA have filed a petition for a writ of certiorari with regard to the MGM v. Grokster decision (MPAA/RIAA Files Petition for Cert in Grokster Case). Over on Deeplinks, Fred von Lohmann explains some of the reasons why granting cert would not be a good idea (Big Media Attacks Betamax in Court):

Often described as the Magna Carta of the technology industry, the Betamax doctrine makes it clear that innovators need not fear ruinous litigation from the entertainment industry so long as their inventions are "merely capable of substantial noninfringing uses." In today's petition, the entertainment industry urges the Court to reverse that established rule and impose on innovators a "legal duty either to have designed their services differently to prevent infringing uses, or to take reasonable steps going forward to do so." Of course, on that view, Sony's Betamax VCR would never have seen the light of day, since Sony could have designed it differently (in fact, the movie studios suggested back in 1978 that Sony implement a "broadcast flag" system!) or modified it after Disney complained.

I certainly hope that the Supreme Court recognizes that courts aren't the best place to decide what innovation is permissible and what innovation is not and declines the cert petition.

Acacia is claiming patent rights to "the methods wireless ISPs, WLAN aggregators and other Wi-Fi networks use to redirect users to a common login web page," e.g., the technology behind gateway page redirection. And that Wi-Fi hotspot operators must pay the company $1,000 a year or face a lawsuit.

Says Acacia executive VP of "business development"/general cousel Robert Berman: "Anybody who operates a hotspot with redirection can assume they'll hear from us."

Surprised much? I didn't think so.

Interesting Commentary in BusinessWeek on the follies of the RIAA's war on innovation:

Today's turmoil over copyrights contains a disturbing new twist, however. Digital technology -- from MP3 players to software that makes it easy to build Web pages -- shatters almost all of the technical barriers to duplicating and sharing copyrighted works. That has caused unparalleled anxiety among copyright holders. As a result, music and movie companies have adopted a strategy of targeting digital technology itself as well as those who design it and those who use it.

In time this could threaten the delicate balance between copy protection and technical innovation. The intent of copyright law in the U.S. is to promote learning and innovation while giving artists, musicians, and writers a limited monopoly on their work. The goal isn't to assure that artists or intellectuals make oodles of cash.

Glenn Reynolds: "More Crushing of Dissent: Following in the footsteps of the New York Times, CNN has filed a DMCA complaint trying to shut down the National Debate over its CNN parody.

CNN should be ashamed. And perhaps they should read this."

The MPAA, meanwhile, sounds not the slightest bit embarrassed or regretful about having misfired at Linux Australia, brushing off the suggestion that it could be prosecuted under spam laws and boasting that "99.9999 percent of individuals who get them are infringing on the works and they certainly not soliciting a notice of infringement from us or their ISP."

My former boss at the Berkman Center, the thoughtful, energetic and inspiring John Palfrey, explains what the Diebold case teaches: "In the Federalist Papers, James Madison wrote of the Congress' copyright authority that 'The utility of this power will scarcely be questioned.' But the scope of the power must be questioned, just as the students did. Copyright abuse can cost society dearly, especially when issues core to the functioning of our democracy are at stake."

An interesting story about a Disney character's use as a university mascot (Donald endures in hearts of Duck fans). It was a simpler time:

The university has had a web-footed mascot since at least the 1920s, when a live duck named Puddles surfaced at football and basketball games. A duck emblem was in use by 1933, and by 1936 it was starting to look more like Donald, catching the attention of Disney officials.

In 1947, Oregon Athletic Director Leo Harris shook hands with Walt Disney himself on an agreement to allow Oregon to use Donald as the mascot. The deal was put in writing in 1974 in a licensing agreement giving the university limited use of Donald at athletic venues.

Wow. A good-natured handshake agreement for almost thirty years.

Of course, such things could not be allowed to continue:

In 1991, the agreement was expanded to allow wider use of the likeness on sweatshirts, glassware and other merchandise.

The frenzied "charging duck" pumping his fists inside a large, eight-sided letter 'O' was a ubiquitous campus logo for years. It was eventually replaced as the UO marketing machine grew and felt confined by Disney's restrictive contract, which forbids the school from selling items with the Donald Duck logo beyond the Oregon border.

Although Donald is much beloved by Oregon fans, a stylized "O" will have to do for out-of-staters.

Ah well.

John T. Mitchell, who writes beautifully about the damage that code + law (PDF) can do to the public's side of the copyright bargain, has a short-but-powerful response to the BNetD decision (PDF) over @ Freedom-to-Tinker:

When a copyright owner uses the copyright monopoly as leverage to extract an enlargement of its rights even further by conditioning the license upon a waiver of rights granted by law, it thumbs its nose at Congress and enters an agreement in restraint of trade.

In effect, Judge Shaw has ruled that none of the limitations Congress placed upon copyrights (Sections 107-122) are worth the paper they are written on if the copyright owner can get the public to agree to give them up as payment for access to the works.

A travesty, and one that must be appealed.

Speaking of limitations on copyright, Derek Slater brings news that fellow Berkman-ite Dotan Oliar has written a new paper (PDF) on the roots of the Copyright Clause, revealing that (surprise) "promote the progress of science and useful arts" does indeed represent a limit to Congress's power to grant intellectual property rights. Which means, of course, that the courts ought to enforce this limitation. According to Dotan, this requires that we develop a "concept of progress for the Clause" -- and he explores several ways that the courts could do so.

Sounds fascinating. Thanks, Derek.

In a victory for free speech and transparency in electronic voting debates, Judge Jeremy Fogel has ruled that Diebold should pay damages and attorneys' fees for its knowing misuse of the DMCA's takedown provisions. Decision here.

No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were proteced by copyright.
...
The fact that Diebold never actually brought suit against any alleged infringer suggests strongly that Diebold sought to use the DMCA’s safe harbor provisions—which were designed to protect ISPs, not copyright holders—as a sword to suppress publication of embarrassing content rather than as a shield to protect its intellectual property.

Last October, Diebold threatened dozens of ISPs with lawsuits if they allowed users to post or link to a Diebold email archive documenting flaws in the company's e-voting technology. Online Policy Group, IndyMedia, and two Swarthmore students, Nelson Pavlosky and Luke Smith, didn't want to cave in, so EFF and the Stanford Cyberlaw Clinic sued Diebold on their behalf instead.

Today, that action was vindicated. Judge Fogel ruled that "there is no genuine issue of material fact that Diebold, through its use of the DMCA, sought to and did in fact suppress publication of content that is not subject to copyright protection." He further held that sending claims of copyright infringement to ISPs when their users are not infringing violates the DMCA's Section 512(f) prohibition on "knowingly materially misrepresent[ing]" infringement. Because Diebold "actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations," it was liable to the OPG and Swarthmore student plaintiffs under 512(f).

Along with opening up the e-voting archives, I hope this decision will give new strength and new weapons to other online speakers and ISPs against the chill of aggressive, improper copyright claims.

Stanford's ominously-named "Information Security" wrote:

If you believe [the DMCA infringement] notice is mistaken, you have the right to provide a counter-notice. For information on what your rights are, see Section 512 of the Copyright Act. It is available at http://www.law.cornell.edu/uscode/17/512.html.

That code makes it clear that counter-notices are only relevant for "material ... that is removed, or to which access is disabled by the service provider". That is obviously not the case when one is simply notified of an allegation of infringement, so the counter-notice provision seems inapplicable.

Stanford respects the proprietary interests, including copyrights, others have in their original works, and expects the same of its faculty, employees, students and affiliates.

Does it? Stanford orgnized and publicized an orientation-week event ("Frosted Flicks") at which a "digital collage" combining a number of movie trailers and a song was shown. Did Stanford receive permission from each of the movie studios and production companies and record labels involved?

Stanford's CourseWare website provides supplemental material for class, including scanned versions of copyrighted books, thus distributing them to hundreds of students. Stanford is clearly aware of this since before one can download the work one must agree to a notice about copyrights. Did Stanford get permission from the authors and publishing companies involved?

It appears some Stanford dorms have televisions in the lobby which show pay networks like HBO, in front of which large groups congregate. Has Stanford gotten permission for such performances?

If, however, a user subsequently receives a second notice, his or her connection is immediately disabled and the user is merely copied on the Disconnect Request.

This seems like an unreasonable and unfair punishment, considering that a DMCA request contains no actual evidence of infringement and there are no sanctions for filing a false one. It is not hard to imagine this power being abused. But Stanford provides no checks on this power; indeed, it amplifies it by quickly disconnecting the user's Internet connection. What purpose does this serve?

You have no legal liability; you are protected by the DMCA. True, the DMCA does require you take some steps to stop repeat offenders, but it does not require such draconian tactics, merely the enforcement of "a policy that provides for the termination in appropriate circumstances of subscribers ... who are repeat infringers".

I thought Stanford wanted to inspire learning and creativity. As your own law professor Lawrence Lessig notes "creativity always builds on the past". Such a draconian "two complaints and you're out" policy hardly seems conducive to encouraging creativity.

This just in: Consumers Union, Public Knowledge and EFF are working another angle in the fight against over-broad patents: asking (PDF) the courts to take a narrow view of patent claims. Literally.

The case is Phillips v. AWH Corporation, in which a key issue is, interestingly enough, interpretation of the word "baffle" (the physical kind, not the mental one). The appeals court made a specific request for industry and public opinions on interpreting claims. According to the counsel-of-record for the brief, Joshua Sarnoff, this could be the most important patent case ever decided. "Claim meaning is the name of the game in patent law," says Sarnoff. "[The] Federal Circuit has the chance to lay down clear rules to determine claim meaning that will benefit society."

The joint amicus brief (PDF) takes aim at earlier panel decisions finding that patent claims are valid if they are not "insolubly ambiguous." Amici argue that this invites judges to impose a meaning on ambiguous claims, when they should instead reject them outright.

Later: The Foundation for a Free Information Infrastructure (FFII) tells The Register that even narrow interpretation can't rescue software patents from the land of bad ideas: [Our] concern is that this kind of thing could give the impression that we only need to worry about bad patents, that if only patents were awarded according to the rules, properly examined and checked for prior art, everything would be OK. We don't believe that to be the case. We believe, more fundamentally, that the whole nature of patents on computer code is a mistake."

One topic of discussion this weekend at the EFF staff and board retreat was what Wendy calls the "Attack of the Subpoena-bots" -- that is, the trend toward automatic weapons-style litigation campaigns. This is when companies or industry groups like the RIAA and MPAA use key-word searches and the like to target possible infringers before firing off round after round of seemingly indiscriminate cease-and-desist letters. The problem with this is that even if the recipient is 100 percent innocent, he or she may have no idea of how to respond to the intimidating legalese/exhorbitant demands in these letters. Rather than risk doing the wrong thing, and eager to avoid the expense of an attorney, the recipient frequently decides to give up rather than to fight -- leading to the widespread chill of perfectly legitimate activities.

Fortunately for the Internet community, every once in a while a stray round hits the wrong guy -- someone not only willing but eager to fight back. Which is evidently what happened when the MPAA recently sent cease-and-desist notices to Linux Australia for providing access to two copyrighted movies: "Grind" and "Twisted." Except that what Linux Australia actually did was provide access to a download of the Twisted framework written in Python, and Valgrind, a tool for developers to locate memory management.

Needless to say, Linux Australia was not amused. And as luck would have it, the group has the legal chops and resources to do something about it:

"This seems to be a huge misuse of resources, an infringement upon various global spam laws, an infringement upon our own Copyright Act under Section 102 and needless stress and cost upon small Australian organizations and companies," [Linux Australia President Pia] Smith said.

[...]

"Linux Australia is concerned that this kind of shoot-in-the-dark approach to copyright protection is potentially damaging for Australian organizations and companies," Smith added. "Organizations that participate in such behavior should be held accountable, and forced to put at least some effort into researching the validity of their keyword searches."

Here in the states we're waiting for a ruling to come down that may provide additional protection for those inappropriately targeted by infringement claims: the decision in OPG v. Diebold. As Wendy notes in a recent OJR article, there's a seldom-used section of the Digital Millennium Copyright Act (DMCA) aimed at stopping misuse: 512(f), which provides that anyone who knowingly misrepresents material as infringing "shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer."

[Section 512f] allows one who has been hit with a purposely abusive demand letter to reply, "Not only am I not in the wrong, but you don't have the right to say I am," says Seltzer.

What I'm wondering is what the court will require to prove that Diebold knowingly abused the DMCA to silence its critics -- and how that might compare to what it takes to prove that someone has knowingly violated copyright law.

Walt Crawford of the excellent Cites & Insights has a new piece over @ EContent in which he updates the Constitution's copyright clause to reflect today's unfortunate reality:

Original: "The Congress shall have power...To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries."

Crawford's update: "Members of the MPAA, RIAA, and AAP shall have the right to control technological change in order to enforce perpetual rights to creative works. Congress shall ensure that the corporate right to control over and payment for every use of those creations takes precedence over outmoded notions such as freedom of speech, fair use, and the first purchase doctrine."

Nice. Or rather, not so.

Crawford notes that he's been writing a lot about copyright in Cites & Insights, and adds that there's no shortage of other sources on the Web -- but "no matter where you look you'd best be paying attention to the evolution of copyright as it hits closer and closer to rights you may have taken for granted." Spot on.

On the heels of Fritz Attaway's antagonistic comments about P2P the other week, there was an interesting Q&A in CNET last week with Mitch Glazier, head DC lobbyist for the RIAA. I found this exchange particularly illuminating:

There has been speculation that the original Induce Act could make Apple Computer liable for selling like the iPod. Could it?

No.

Why not?

The original Induce Act focused on the totality of the circumstances. There's no way that a company that produces great digital rights management for a licensed product is ever going to be shown to want to profit from piracy.

In other words, the RIAA intends to use INDUCE as leverage to pressure companies into incorporating DRM. If you incorporate "great digital rights management for a licensed product", they won't sue. Leave out the DRM, however, and well.. you enter the marketplace at your own risk.

Also, it appears that Mitch is confusing his Apple products. Apple's iTunes Music Store does put DRM on each of its songs, but the iPod can handle an unlimited number of DRM-free MP3 files without any restrictions. Apple could have designed the iPod to only handle DRM-protected content, but it didn't. Does the fact that it enforces DRM rules for some songs but not for others still mean it can't INDUCE?

Continue reading "RIAA Lobbyist: DRM 'up or INDUCE is gonna getcha"

Judge Posner, over at the Lessig blog, describes

a very worrisome problem concerning fair use. It has to do with a dichotomy long noted by legal thinkers between the law on the books and the law in action. They often diverge. And fair use is an example of this divergence. As I said in an earlier posting, fair use often benefits rather than harms the copyright holder. However, it doesn’t always; moreover, even if a copyright holder is not going to lose, and is even going to gain, sales from a degree of unlicensed copying, if he thinks he can extract a license fee, he’ll want to claim that the copying is not fair use; and finally, because the doctrine has vague contours, copyright owners are inclined to interpret it very narrowly, lest it expand by increments.

The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright’s breadth.

We at EFF and Chilling Effects have seen these copyright overreachings frequently too. Sometimes, though, we find a little guy who doesn't want to cave in the face of threats, doesn't want to remove the web posting or excise the portion claimed to "infringe," but wants to fight for his fair use and First Amendment rights.

In the case of OPG v. Diebold, when Diebold claimed that copyright in internal emails entitled it to demand that ISPs remove criticism of Diebold e-voting machines, we took OPG's case and sued Diebold for copyright misuse and DMCA misuse. The way misuse works, if you assert more copyright than the law gives you, you're barred from enforcing any copyright in the work until you stop overreaching. Like the owner of the golden-egg-laying goose, if you ask for too much, you get nothing at all.

Judge Posner recommends the doctrine of copyright misuse too -- and as a judge, he doesn't just blog about solutions, but suggested this one in his WIREdata opinion. Let's hope that more courts, and more lawyers for the little guys, can use this doctrine to keep copyright overreaching in check.

From the oops-maybe-we-shouldn't-have-shut-down-SP2Torrent.com dep't, the Washington Post is carrying a story (Windows Upgrade Causing Campus Headaches) about numerous universities actively blocking SP2 updates because, among other things, they take up too much bandwidth to download directly from the Microsoft site:

Worried that the upgrade could conflict with other applications running on university networks, and a related concern that thousands of students attempting to download the software could bring campus computer networks to a standstill, technology administrators at some universities have taken steps to block an automatic service that downloads the software.

...

"Our primary concern is the impact this will have on our network and the length of time it would take to get from Microsoft directly," said Damon Palyka, a computer security technician at the school.

Ok/Cancel is a great blog/webtoon about HCI and UI issues. This week, they hit the nail on the head about how web companies overreact to actual competition in their space -- with threats of litigation vs. inspiration to innovate and actually beat out others in the marketplace.

Teleread reports on public domain price gouging (Public domain classics priced to make Jack Valenti smile). Apparently, eReader.com will provide you 250 public domain ebooks for the low, low, low price of $995. Act now and for $1,495 you can get 500 titles (aka the "Gold" edition)! Purchase the Educational Classics Collection CD now! Operators are standing by:

In a move designed to give schools an affordable way to use eBook technology, eReader.com and Lightning Source Inc. developed The Classics Collection CD, a comprehensive collection of 500 titles that includes "The Red Badge of Courage," by Stephen Crane, "Little Women," by Louisa May Alcott, "Night and Day," by Virginia Woolf, the works of William Shakespeare, and other books commonly found on middle and high school reading lists.

This collection provides schools with a cost-effective way to easily distribute eBooks to students. The eBooks cannot be lost, stolen, or damaged, and the license entitles the school to internally distribute as many copies of the eBooks as it wants, as many times as it wants.

Or, you could download the works via Project Gutenberg for free or, for a very modest fee, get a CD from Blackmask Online.

And don't forget to proof a page or two, okay?

The San Francisco Chronicle reports that a bobblehead manufacturer has settled its free speech case with California Governor Schwarzenegger (Governor's bobblehead says farewell to arms). The company will be permitted to continue to make bobbleheads, sans the rifle and bandolier as pictured to the left. The Smoking Gun has the documents (Bobblehead Detente).

I understand why the company had to settle, a lawsuit would have been very expensive with no guarantee that they would win. However, it is sad that such a case can be brought. I guess that Schwarzenegger is the only one who can lampoon himself with references to his prior profession? He is permitted to call opposing legislators "girlie men," in homage to his previous career as a weight-lifting champion, but heaven forbid someone parodies that in bobblehead form. If someone sells a bobblehead of John Kerry as Vietnam vet, John Edwards as an ambulance chaser, or George Bush as a Texas oilman, I guess they should have the right to sue too?

Previous Copyfight coverage here: Schwarzenegger Threatens to Sue Over Bobblehead Doll, Free Speech? Not on the Gubernator's Watch, and Lawsuit Launched Over Schwarzenegger Bobbleheads.

via How Appealing

...and the numerous reports are now confirmed: "In light of the July 30 deadline that Ludlow had set down in its threat letters to JibJab and its upstream hosting providers, we [EFF] felt we had little choice but to file suit to defend JibJab's fair use and free speech rights.

Both sides continue to exchange correspondence, and JibJab hopes this dispute can be resolved without further litigation. For the reasons discussed in our July 28 letter (PDF) to Ludlow, we continue to believe that 'This Land' is a fair use, especially in light of the fact that Woody himself borrowed the melody from an earlier song."

I can't say more than that about the JibJab case, but here are a few apropos links for those of you following the ongoing conversation about parody v. satire, fair use, free speech, and democracy:

• Copyrighting the President: "Many are concerned about the ever-expanding reach of copyright law. More are concerned about the ever-increasing concentration of the media. Greenwald's dilemma highlights how the two trends are linked: As media becomes more concentrated, competition to curry favor with politicians only increases. This intensifies during an election cycle. Networks able to signal that they will be 'friendly' - for example, by ensuring that embarrassing moments from interviews won't be made available to others - are more likely to attract candidates for interviews and so on, than networks that don't. Concentration tied to copyright thus gives networks both the motive and the means to protect favored guests" [Lawrence Lessig @ Wired Magazine].
  
• Some Troubling Implications about the Jibjab Case: "The social environment right now is politically riven; we are in the midst of the Democratic National Convention and at the heels of the Republic National Convention, with only a few months left before the election. Each side is tossing claims back and forth, promising to be the party that unites the nation. If the EFF successfully argues that Guthrie's song is about national unity, then Jibjab's release in the context of the surrounding sociopolitical climate can most definitely be argued as a parodic gesture. It just makes sense.

  By the same argument, though, Ludlow Music could propel the idea that the animation is a satire on the political campaign. How, then, can a proper decision be reached in the case?" [Free Culture].
  

• This Land Is Not the Land We Thought It Was: "Guthrie was a radical in many ways. 'Mean Talking Blues,' a Guthrie song, is unabashedly pro-union, going so far as to portray the capitalist businessman in the persona of the Devil incarnate. We all sang as school kids this apparently very patriotic song extolling the virtues of 'This Land.' But when the mysteriously missing three stanzas are added, it becomes clear that 'This Land' is itself a parody, a takeoff on the happy-go-lucky optimism of a man who sees only good in his country while he overlooks glaring problems and inequalities.

  Face it, by our standards, the man was a radical.

  Anyway, I'm no expert, but when I saw the JibJab piece, my first thought was, ol' Woody woulda liked this one" [Dead Parrot Society].
  

• Copyright: Blawg Channel Gets the Joke: "Now, before you dismiss the fact that I saw the parody clearly merely because I practice copyright and trademark law and do this stuff all day, please note that as early as eighth grade, Mrs. Jacobson, our English teacher, lauded my ability to spot metaphors and the like in the assigned reading (a comparative advantage accruing to me by being the only person wonky enough to do the reading).

  Be that as it may, as the Nader/Priceless court says, perceiving the parody clearly (or readily) is not the critical factor - parody can be subtle" [Marty Schwimmer @ The Blawg Channel].
  

Edward Felten, with the definitive post on the below-discussed fracas over Real reverse-engineering for compatibility with Apple's iPod:

Pay attention now, 'cause this story gets kinda complicated.

See, Apple had this product called iPod that lets you listen to music. That sounds like a good idea. But Apple thought it would be better if the iPod could do less. So their engineers pulled a bunch of all-nighters to make sure that the iPod couldn't play just any music a customer might have laying around. They called this DRM. I think that stands for Don't Replay Music.

Now Apple had a competitor called Real. And Real was unhappy that Apple had made its product less useful. So Real's engineers pulled a bunch of all-nighters, so that they could make Apple's product better. They could've spent that time making their own product better, but that would have been a waste after all of the time they had already spent making their own product worse by making it do DRM too.

You still with me? Good.

Okay, so Apple was mighty ticked off that Real had made Apple's product better, without even getting permission or anything. So Apple cried foul. Apple was shocked 'n' saddened that Real was trying to improve Apple's product, like those hacker guys are always doing. So Apple drew a line in the sand, and swore to make its own product worse again.

I don't know about you, but I find this all very confusing. I guess I just don't have a head for business.

Four quick pointers:

CNN: "'We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod,' Apple said in a release.

Apple said Thursday it is looking into Real's actions under various laws, including the Digital Copyright Millennium Act (DMCA), which prohibits the manufacture, sale, or distribution of code-breaking devices used to illegally copy software."

Derek Slater: "Along with piracy rhetoric, we now get evil hacker rhetoric. Since when is reverse engineering unethical? Oh right - since the DMCA, which Apple is predictably waving around. Let me remind you that Real was one of the first companies to sue the creator of an interoperating product under the DMCA, so it's not as if they're the innocent defenders of innovation here. This could make for a fine DMCA battle royale, with copyright holders caught in between. Or it could fade away - we'll see."

Ernie Miller: "As if being a hacker is bad thing. What do you call those two guys who built a computer in their garage and started a little computer company named after a fruit?"

ZDNet: "'It is highly likely that Real's Harmony technology will cease to work with current and future iPods,' the company said in its statement."

Fred von Lohmann breaks the news that Woody Guthrie may have "borrowed" quite a bit of "This Land Is Your Land" from The Carter Family, which in turn may have "borrowed" it from someone else.

Writes Fred, "[In] the letter (PDF) threatening copyright litigation over JibJab's animated political parody, 'This Land,' Ludlow's lawyer goes out of his way to attack JibJab for copying 'the entire melody, harmony, rhythm and structure of the [sic] Mr. Guthrie's song.'

Er, sorry there Ludlow, but actually, the entire melody, harmony, rhythm, and structure of 'This Land is Your Land' doesn't belong to you. And I'd like to think Mr. Guthrie would never have claimed credit for them, if he were still alive to ask."

I'm appropriating Andrew Raff's especially apt title to announce that the cat has officially escaped the bag: EFF has taken on JibJab as a client. EFF's reply (PDF) to the latest threat letter (PDF) from Ludlow Music, Inc. discusses the recent debate over whether or not "This Land" is a true parody under copyright law, citing Copyfight author Ernie Miller and the good people over at The Blawg Channel.

Check out Ernie's post over @ Importance Of...; it's got a nice juxtaposition of the text in the Ludlow threat letter and EFF's reply, plus (as always) a whole lot more.

Michael Froomkin has started a mini-campaign of interest to Copyfight readers: he's collecting Copyright Experiences to help pool knowledge about the kinds of copyright demands that law journal publishers are making of academics. As part of the initiative, he's soliciting model copyright agreements -- the nitty gritty, fine print details that determine whether or not someone like Siva Vaidhyanathan can freely encourage others to copy and share his work.

(Thanks, Susan!)

The NY Post reports that Apple is threatening a lawsuit against upstart music video channel Fuse for ads that parody Apple's silhouettes campaign (Apple Blows Fuse Over Ads). Unlike the happy music listeners in Apple's ads, these ads reportedly feature people doing beer bongs, pole dancing and masturbating. Some iPod owners are reportedly furious as well, which is no surprise considering the rabid devotion strong affection many Mac and iPod owners have for Apple.

UPDATE 1050 PT
Gizmodo now has hi-def versions of all the (somewhat offensive) ads (Apple Parody Fuse Ads).

via Gizmodo

Fascinating story about an RIAA crackdown on a popular alternative music store selling DJ mixtape CDs (Busting Berry's Music). The music shop was raided, stock taken, and the store's named dragged through the mud. No warning, no cease and desist, the RIAA simply went full bore after the store for selling something (DJ Mixtape CDs) the recording industry praises in other forums. This was not about selling bootlegs or counterfeits. It was a store promoting music. You'd think the RIAA would be a little more supportive.

Nah.

The owners suspect they were targeted because they broke "streetdate," the day a release is officially to be sold. Stores frequently receive copies on a Saturday when the albums aren't supposed to go on sale until Tuesday. Seems like something the distributors could handle if the labels didn't like it.

Interestingly, the federal copyright charges against the store were dropped. However, the store was still prosecuted for violating a "true name and address" bill that requires the name and address of the CD manufacturer on CDs. Ridiculous. And the RIAA wonders why music sales are doing so lousy. Perhaps taking legal action against music stores and forcing them to close has something to do with it.

The Competitive Enterprise has released an OpEd critiquing the INDUCE Act, set for hearing tomorrow in the Senate Judiciary Committee:

The INDUCE Act is the latest in a string of fast-tracked Senate proposals designed to give major media players more “power tools” to attack downloading, duplicating, and exchanging music and video files over the Web. However, this legislation is not confined to person-to-person (P2P) file exchanges: It would affect cable, PC, PDA, satellite TV and radio, photocopying, and other technologies that allow transmission of data—and threaten the emergence of future technologies. Had such a law been in place during the 1970s, we may not have PCs, CDs, and other technologies we now take for granted.

Audible, the audio e-books site, is making the 9-11 Commission hearings available for download, free. Go Audible. I'd link to the specific page, but you can't.

In order to download the files you have to register with Audible. Okay. Understandable, sell your personal information for Audible's bandwidth. You also have to download Audible's proprietary file organizer. Again, understandable. These requirements are not particularly admirable, but Audible is a business. Even more strange, however, is that in order to download these public domain hearings, you have to agree to Audible's terms and conditions (which I can't provide a direct link to either):

When you "clickout" or otherwise "purchase" (referred to herein, collectively as "Purchase") Audible Content from the Audible Service, Audible grants you a limited, revocable, non-exclusive, non-transferable license to download or stream such Audible Content to your computer and/or your Device(s) solely for your personal non-commercial use. You shall not copy, reproduce, distribute or use the Audible Content in any other manner. You shall not sell, transfer, lease, modify, distribute or publicly perform the Audible Content in any manner and you shall not exploit it commercially. Do not (A) decompile, disassemble, or reverse engineer the Audible Content or attempt to do so; or (B) modify the Audible Content or create any derivative works therefrom. [emphasis in original]

Gosh how I love the way some companies claim dominion over the public domain.

Bonus: The White House provides the President's weekly radio address in Real format so that you can't download it (White House Radio).

via MacSlash

James Grimmelmann @ LawMeme has a post demonstrating the sheer prolific magnitude of Ernest Miller's writing on the Act formerly known as the Induce Act, adding a few well chosen words of his own:

His coverage matters to lawyers, techies, copyfighters, and consumers. That is, everyone. Ignore it at your peril. The IICA is one of the most dangerously misguided and malicious pieces of technology legislation to rear its ugly head in the last decade. Ernie's obsessively detailed articles are a powerful indictment of a bad idea. I have only one thing to add to what Ernie is saying: an index.

Here's one more: No matter what we say about the Induce Act, it could still pass. If you don't like that idea, take a few minutes to tell your senator why.

Peter Hirtle, who knows from fair use, responds to my post on Siva Vaidhyanathan's experience with a professor asking to make fair use of his book. He argues for what I'd characterize as the Creative Commons solution: making the author responsible for asserting affirmatively that people have rights to the work:

Vaidhyanathan, Wentworth, and Finkelstein use [Siva's experience] to discuss how hard it is to use fair use; as Larry Lessig has noted, "fair use in America simply means the right to hire a lawyer." There is a second solution to the problem, however. Namely, Siva could have made clear in the book what users could and could not do with the text. [...]

We can, and should, try to change fair use to make it easier to use. But we should also be as explicit as we can on the uses we allow. For example, on my publications I always try to include the following wording: "Permission is granted for nonprofit educational and library duplication and distribution, including but not limited to reserves and coursepacks made by nonprofit or for-profit copyshops." A statement such as this in Siva's book would have made the whole fair use analysis moot.

I say: Go for it. If copyright is broken, rebuild it with your explicit instructions. And obviously, choose the kind of publishers that embrace such reconstruction.

Here's a link to a preliminary ruling on Monday (PDF) in which a federal court in Los Angeles found that several key terms in disputed Acacia patents are "indefinite."

Larry Lessig today brings us a little variety in perspective,: a Hollywood publication -- Variety, no less -- explaining the difference between stealing copyrighted material and making fair use of it:

If Greenwald's use of Fox's content is "fair use" -- as we believe it plainly is -- then it is no more "stealing" than walking across a sidewalk in front of a neighbor's home is trespassing on the neighbor's property.

Copyright is property, but like all property, the rights it grants are limited. "Fair use" is one such limit, constitutionally compelled, giving critics such as Greenwald the right to use a limited amount of copyrighted material without asking permission first.

Democracy depends upon such criticism -- especially as the owners of our culture become fewer in number, and the power they exercise, because of media concentration, increases.

Jason Schultz, meanwhile, engages in a more familiar battle-of-metaphors with Robert Berman, executive vice president of Acacia -- the company whose web streaming patent EFF has targeted for busting:

"Property rights are as important as the right to free speech," Berman told AVNOnline.com July 6. "For example, if someone broke into your garage and stole your SUV, and put a speaker on the top, and was driving around the neighborhood making some political statement, trying to get your SUV back wouldn't be trying to stifle free speech, it would be you trying to get your property back. If somebody is using your property, you have a right to stop them or receive a license or receive royalties."

That, said EFF Staff Attorney Jason Schultz, is "possibly the most twisted and contorted analogy I have ever heard," saying it shows Acacia and similar companies -- other EFF frivolous patent candidates include Clear Channel, Nintendo, Ideaflood, Firepond, and Acceris -- conflate physical property with dreams of intellectual property.

"There's no question now that an SUV in your garage is something you own. But here there's a real question as to whether Acacia actually invented anything new or simply is claiming monopoly on technology that millions of people use every day to express themselves," Schultz told AVNOnline.com. ..."[Acacia] doesn't want to own just the SUV, [they] want to own every single automobile and stereo system in the world, to use [their] contorted analogy."

Just below, Donna discusses the new documentary (OutFOXed) that criticizes Fox News' "fair and balanced" news reporting (Fair Use It or Lose It, Part II). One of the main issues is whether or not Fox News will sue for copyright infringement against the fair use commentary of the movie. Well, it looks like Fox just may, according to statements from Fox this afternoon: Outfoxed Rope-a-Dope Begins?:

The illegal copyright infringement actions of moveon.org in cooperation with The New York Times, including 'cutting a deal' not to give Fox News Channel adequate time to react, is unprecedented.

On the heels of the brouhaha over OutFOXed comes yet another tale of copyright gone bad.

The protagonist is Liane Curtis, who compiled an anthology including excerpts of unpublished work by Anglo-American composer Rebecca Clarke for publication by Indiana University Press. The copyright to this work is held by Christopher Johnson of Oxford University Press, and he accuses Curtis of violating it by using unauthorized excerpts. Ms. Curtis disagrees, arguing that the use is fair -- but her publisher simply doesn't have the resources to back her up in court.

The problem isn't that Ms. Curtis should be able to use any copyrighted materials she chooses -- she may indeed have violated Mr. Johnson's copyrights. It's that without sufficient funds or friends of the pro bono persuasion, there isn't any contest. The threat of a lawsuit is alone adequate to decide the "case" in favor of the copyright holder. This means that even (or especially) in academic publishing, the bottom line is the bottom line -- because, as the Indiana press music editor puts it, "No one has $11-million to test the gray areas."

Sigh. We've seen this scenario play out in a number of different arenas, but it's especially sad to see it happen in academia.

Rob Heverly is starting a collection of strange and/or absurd copyright claims (Strange Copyright Claims). One such claim was found in a disclaimer at the bottom of a website "This material may not be published, broadcast, rewritten or redistributed." Well, the fact that it was already on a website indicates it was published.

Anyway, Heverly isn't sure what he'll do with the collection, but he is asking people to send him more examples of bizarre copyright claims.

Yesterday's NY Times' Circuits section had a great article about the impediments of DRM and the DMCA for those who legitimately own DVDs (Whose DVD? A Debate Over Copies). One example used is of a couple who take copies of their large (expensive - lots of money sent to Hollywood already) DVD collection when they travel on their boat. The ability to copy saves hauling the DVDs back and forth and the consequent risk of loss, damage or theft. Well, we may not all own boats in Bermuda, but we can all sympathesize with the couple who have no intention of harming Hollywood.

The story publishes the counter arguments:

The Federal District Court judge in one case, Susan Illston of San Francisco, was unswayed by arguments that users of the company's products did not routinely engage in piracy or otherwise damage the market for DVD movies. "It is the technology itself at issue, not the uses to which the copyrighted material may be put," she wrote in her opinion.

That sounds persuasive. Not.

It is stories like these that will eventually undermine Hollywood's desparate attacks on consumers.

Copyfight co-author Jason Schultz @ LawGeek: "First, they came for the after-market printer cartridges. Then they came for the garage door opener remotes. Now, they may come for the cell phone and camera batteries."

Yesterday, the Boston Globe regurgitated a press release and "reported" that bundled telecommunications provider RCN has announced a new music subscription service that provides some access to $700,000 songs for $8/month with no downloading fees (RCN starts Net music service). Read the press release: