As IP Watch warns, the US Is Determined to Attack Within WIPO. Or something like that.

Good news out of the WIPO meetings we've been following: "Member states of the World Intellectual Property Organisation (WIPO) have sidelined a US government proposal to extend copyright protection for television and radio productions to cover webcasting, a WIPO official said on Monday."

Said Cory, before presenting an open letter from 20 technology companies opposing the inclusion of webcasters' rights, "This coalition shatters the illusion that there is a technology consensus on this issue."

Reads the letter, "One proposal within the Treaty would extend these pseudo-copyrights to the Internet, by means of a controversial 'Webcasting Provision.' While there has been very little support from the national delegations for this proposal, the insistent voice of self-styled representatives of the technology industry has been loud enough to see to it that this proposal has persisted through draft after draft of the Treaty."

Admitted WIPO Deputy Director General Rita Hayes after the proposal failed, "There was no support for it."

I love it when a negotiation process like this actually works, 100 per cent against the odds.

Cory beat me to the punch, but this new column by James Boyle is too good not to risk redundancy. The theme, as Cory writes, is "the crazy way that IP policy gets made" -- that is, without proof that it works for its intended purpose (providing a necessary incentive for innovation). The particular object of Boyle's scorn is copyright-like protection for databases -- something Europe had adopted and we in the US have rejected, but only by the skin of our teeth.

Snippet:

Imagine a process of reviewing prescription drugs which goes like this: representatives from the drug company come to the regulators and argue that their drug works well and should be approved. They have no evidence of this beyond a few anecdotes about people who want to take it and perhaps some very simple models of how the drug might affect the human body. The drug is approved. No trials, no empirical evidence of any kind, no follow-up. [...]

Even the harshest critics of drug regulation or environmental regulation would admit we generally do better than this. But this is often the way we make intellectual property policy.

So how do we decide the ground-rules of the information age? Representatives of interested industries come to regulators and ask for another heaping slice of monopoly rent in the form of an intellectual property right. They have doom-laden predictions, they have anecdotes, carefully selected to pluck the heartstrings of legislators, they have celebrities who testify - often incoherently, but with palpable charisma - and they have very, very simple economic models. The basic economic model here is "If you give me a larger right, I will have a larger incentive to innovate. Thus the bigger the rights, the more innovation we will get. Right?" Well, not exactly.

Absolutely fantastic news: the aspects of the copyright mashup bill that had so many of us worried were dropped before it passed in the Senate this weekend. The omnibus is now a minibus -- S 3021 [PDF].

Kudos to Public Knowledge, the Home Recording Rights Coalition, the Consumer Electronics Association, NetCoalition, and many others for their hard work in this fight.

Says Gigi Sohn in the PK press release:

Consumers won a major victory when the Senate passed legislation removing the most egregious elements of the omnibus copyright bill that had previously been under consideration. We strongly support the version of the Family Movie Act included in the bill, which gives families more control over how they watch movies and television, preserving the right to skip over commercials. The bill will benefit consumers, both in their entertainment choices now, and from the innovation in technology that will result in coming years.

We are also pleased that HR 4077 was dropped from the bill that passed. That legislation would have lowered the standard for copyright infringement. The Senate also wisely removed the PIRATE Act, which would have made the government the entertainment industry’s private law firm at taxpayer expense.

The Senate should also be commended for including in the bill legislation helping to preserve orphan works and reauthorizing the National Film Preservation Board. These features of the bill are important steps in preserving our nation’s culture. We look forward to working with Congress in coming sessions to make further progress in advancing consumer interests and preserving copyright balance.

Reuters has more; so does CNet.

Later: Derek Slater: "Take note again of how much better the public interest is being represented today than just a few years ago. Still playing a lot of defense, but at least it's relatively successful defense."

Ed Foster takes the MPAA lawsuits and the ever-ratcheting penalties for copyright infringement to their illogical conclusion, imagining what kind of punishment lies in store for us when/if file sharing actually harms the off-the-charts successful movie business:

Members of the jury, it is my sad duty today to now present the closing arguments in the prosecution's case against the defendant you know as Ms. X. I say it's sad because we all hoped that the passage of new copyright statutes last year -- popularly known as the Maintaining Mickey Mouse Mandates Act of 2010 -- would sufficiently deter crimes of this nature. As we have seen in this court, that unfortunately did not prove to the case with Ms X.

The facts here are not in dispute. On or about a week ago last Sunday, Ms. X did willfully and illegally obtain on the Internet a pirated copy of the 2008 cartoon feature 'Cinderalla Meets the Little Mermaid.' You heard the government's expert witnesses testify that secret detection technology indicated the film was indeed subsequently played on her television set. And you heard the defendant herself freely confess that she and she alone was involved in this heinous crime.

[...]

As this is one of the first prosecutions under the MMMM Act, you may also not understand why the defendant is not represented by counsel. Let me just assure you that the intent of Congress in this respect was very clear. Movie piracy is a crime that threatens the very fabric of American society. There can be no defense.

Finally, I know even the most hard-hearted of you might feel the state is going little too far in asking for the death penalty in this case. But under the MMMM Act, we in fact have no choice. If the infringement is willful, it is a capital offense.

Update (Nov. 18, 3:45 p.m.): Correction -- Cory is blogging at Deep Links after all.

Contrary to what I wrote below, it looks like all of the running notes from the WIPO meeting on the controversial Broadcast Treaty will be posted in one place: the Union for the Public Domain.

A few intriguing snippets:

A delegate from Brazil, on day one of the meeting:

IP protection should not be an end in itself, nor should upward harmonization proceed irrespective of countries' levels of development. Action is needed in all countries to ensure costs don't outweigh the benefits of IP protection. New norms in the field of copyright and related rights can have a serious impact on the development and social policies of countries in several crucial areas. The provisions of any treaty in this field must be balanced and taken on board the interests of consumers and the public at large.

Access to information and knowledge sharing are essential elements to foster innovation and creativity in the informatin economy. Adding new layers of IP protection to the digital environmment could seriously obstruct the free flow of info and scuttle efforts to create new arrangemets to promote innnovation and creativity.

A delegate from Chile, on day two:

We recognize the usefulness of TPMs [ed. - WIPO-speak for digital rights management, or DRM] for protecting authors' rights and related rights. We're also aware that the application of past treaties with similar provisions have given rise to problems regarding the use of works in the public domain and the legitimate use of protected works. We need to find a way to be sure that these measures don't unduly effect the public domain.

On a more distrubing note, Robin Gross of IP Justice reports that documents prepared by EFF [PDF] and other public-interest organizations have been trashed -- not figuratively, but literally. Copies were found in the waste basket.

The subject line of an email from the Union for the Public Domain (UPD) says it all: "Broadcasters Try to Steal More of the Public Domain this Week at WIPO."

As regular Copyfight readers may remember, the UN's World Intellectual Property Organization (WIPO) took an extraordinary step forward in October when it adopted the Development Agenda -- a proposal that the organization throttle back its "IP Uber Alles" philosophy and tap into its considerable power to spur innovation and help humanity. Starting today, the organization will hold the 3-day Twelfth Session of the Standing Committee on Copyright and Related Rights, and a number of non-government organizations (NGOs), including CPTech, EFF, and the UPD, will be there to urge WIPO to stick to its guns.

My EFF colleague, the indefatigable Cory Doctrow, will pursue four major initiatives on EFF's behalf:

• asking WIPO to apply public-interest considerations in revising the highly controversial Broadcasting Treaty, which proposes the creation of a new and unnecessary layer of pseudo-copyright protection for broadcasters (see EFF's statement [PDF] for details);
  
• joining other NGOs in proposing an alternative draft [PDF] of the treaty -- one that targets the problem (signal theft) rather than adds new rights;
  
• advocating filling in the "negative space" at WIPO -- that is, using the organization to establish a miniumum global set of rights for the public as well as for copyright holders; and
  
• supporting 20 tech companies that will speak out against the inclusion of "webcasters" in the Broadcasting Treaty.
  

Here's the best part: we get to tune in and "hear" what's going on as it happens. Below, two spots to watch for live-blogging from behind WIPO's closed doors:

• The UPD website (front page)
  
• EFF's Deep Links
  

The good people at Public Knowledge have one-stop shopping for learning about and taking steps to oppose the copyright mashup bill that may once again be on the verge of passing.

Michael Grebb @ Wired:

Several lobbying camps from different industries and ideologies are joining forces to fight an overhaul of copyright law, which they say would radically shift in favor of Hollywood and the record companies and which Congress might try to push through during a lame-duck session that begins this week.

The Senate might vote on HR2391, the Intellectual Property Protection Act, a comprehensive bill that opponents charge could make many users of peer-to-peer networks, digital-music players and other products criminally liable for copyright infringement. The bill would also undo centuries of "fair use" -- the principle that gives Americans the right to use small samples of the works of others without having to ask permission or pay.

Update (November 17): PK's updated action alert:

[It's] after the election, and the Senate is holding a lame duck session in an effort to pass what they could not before. This means, just like a Hollywood horror film, many bills are back from the dead. To get them passed, the content industry may try to put all their eggs in one basket and pass one big "omnibus" bill, or they could hitch the bills individually to other bills that have momentum. Regardless, you voiced your concerns before, and we need you to do it again.

StreamCast and Grokster have just filed a joint brief [PDF] asking the Supreme Court to leave standing the landmark Ninth Circuit ruling [PDF] that the two peer-to-peer software distributors are not liable for copyright violations by the people who use their software. At stake in the case is the continued vitality of the Betamax doctrine -- what Fred von Lohmann calls the "Magna Carta of the technology industry" because it "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.'"

The primary arguments are 1.) the Ninth Circuit ruled correctly in light of Betamax, 2.) it ruled consistently with other P2P decisions in federal courts, and 3.) if copyright law needs to be adjusted in light of P2P, that task properly falls to Congress.

Bonus links:

• StreamCast and Grokster File Supreme Court Brief [EFF]
  
• Stop the State AGs from Supporting Cert [Ernest Miller, Importance Of...]
  
• Big Media Attacks Betamax in Court [Fred von Lohmann, Deep Links]
  
• MGM & Co. petition for certiorari [PDF, EFF website]
  
• Ninth Circuit ruling [PDF. EFF website]
  
• Oral Arguments before the Ninth Circuit [MP3, EFF website] and transcript [courtesy of Groklaw]
  

Dr. Wex @ Blogbook IP:

The NY DA has, no great surprise, filed an appeal of Judge Baer's dismissal of the case against Jean Martignon for selling bootleg recordings [PDF]. J.D. Martignon, a NYC record dealer and owner of the Midnight Record store in Manhattan, was indicted under a 1994 law that made it a crime to ever sell a bootleg recording of a live performance. The problem is that the law didn't specify a time limit; thus, it gave live recordings perpetual protection, something that Martignon's lawyers successfully argued was unconstitutional.

Remember that SCOTUS, in upholding the CTEA, noted that even though the
law provides for very long copyright protection it is still time-limited
and thus technically not unconstitutional. However, the anti-bootlegging
statute (formally 18 U.S.C. sec 2319A) lacked this and thus was found to
be a violation of Congress' copyright-granting authority.

Coverage:
MTV
SF Gate

Previous Copyfight coverage here.

Because if there are, shouldn't the Department of Homeland Security be looking for them rather than personally investigating a potential trademark violation of the Rubik's Cube?

The call came in late July or early August. A man identifying himself as a federal Homeland Security agent said he needed to talk to Cox at her store.
Cox asked what it was all about.

"He said he was not at liberty to discuss that," she said.
They agreed to meet in early August, but the agent later canceled. Cox thought the matter had blown over when the agent called back Sept. 9 to say he was coming out there.

"I was shaking in my shoes," said Cox, who has owned Pufferbelly Toys for more than four years. "My first thought was the government can shut your business down on a whim, in my opinion. If I'm closed even for a day that would cause undue stress."

The next day, two men arrived at the store and showed Cox their badges. The lead agent asked Cox whether she carried a toy called the Magic Cube. She said yes. The Magic Cube, he said, was an illegal copy of the Rubik's Cube, one of the most popular toys of all time. He told her to remove the Magic Cube from her shelves, and he watched to make sure she complied.

The whole thing took about 10 minutes.

Via Siva Vaidhyanathan.

Who knew the Copyright Clause of the US Constitution was under attack?

Well, according to Robert Wright, Chair of NBC Universal, its in critical condition and needs help STAT!:

In Washington to accept a First Amendment award from the Media Institute, Wright, the dean of network chiefs, sent a message to legislators, regulators and whoever else was listening that his company is ready to lead the fight for copyright protection, saying the Copyright Clause is under "enormous pressure and requires our vigilant attention."

...

Wright said that technology, not legislation, is the best solution to intellectual property theft, but he also said that government needed to create "new rules of the road for the digital world...that encourage technological progress yet at the same time uphold the values that make commerce possible."

His suggestions:

1. Support a house Judiciary Committee package of antipiracy bills  "currently in limbo".

2. Find some compromise in the Senate Judiciary Committee on the so-called induce legislation targeted at peer-to-peer file sharing.

3. Support Attorney General John Ashcroft's proposed intellectual property protection recommendations.

Wow.. a First Amendment advocate supporting Ashcroft? Where can I get some of that Kool-aid?

mmm... Kool-aid... (tm!)

The Margaret Mitchell estate is at it again:

Heirs of Margaret Mitchell have threatened the U.S.-based Project Gutenberg and Project Gutenberg of Australia -- charging infringement of copyright.

The Stephens Mitchell Trusts wants Australian Gutenberg volunteers either to remove Gone With the Wind from their servers or else take steps to prevent downloads in countries where copyright law bans unauthorized distribution of the 1936 classic.

Otherwise, a lawyer for the heirs says in email and a certified letter, "we will take all appropriate steps to protect and enforce our clients' rights."

Previous copywrongs chronicled here.

Later Dan Gillmor:

Unfortunately, the constant extensions of copyright terms in some countries has set up this kind of situation. And this sort of situation is one of the things likely to lead to more and more "zoning" on the Net.

Even if the Australia site does attempt to block access to people from some countries, there's no way to make this work 100 percent of the time. Does the Mitchell estate really believe it will have won anything valuable?

The bigger issue, as the TeleRead story indicates, is the prospect that the most restrictive political regimes will end up telling everyone what to do. If the most repressive governments and laws determine Internet governance globally, we're all in deep trouble.

More from SCC's victory over Lexmark's DMCA claim:

"Nowhere in its deliberations over the DMCA did Congress express an interest in creating liability for the circumvention of technological measures designed to prevent consumers from using consumer goods while leaving the copyrightable content of a work unprotected."

"We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case[.]"

"Congress gives authors and programmers exclusive rights to their expressive works (for a limited time) so that they will have an incentive to create works that promote progress. Lexmark’s reading of the extent of these rights, however, would clearly stifle rather than promote progress. It would allow authors exclusive control over not only their own expression, but also over whatever functional use they can make of that expression in manufactured goods. Giving authors monopolies over manufactured goods as well as over their creative expressions will clearly not “promote the Progress of Science and the useful Arts,” but rather would stifle progress by stamping out competition from manufacturers who may be able to design better or less expensive replacement parts like toner cartridges."

Wow.. Talk about a mother lode. I've just finished reading through the Lexmark Opinion from the Sixth Circuit. There's a whole lot of good stuff in it about copyright, fair use, and limitations on the DMCA. Here's my current favorite from one of the concurrences (note the shout out to Larry L's new book!):

I write separately to emphasize that our holding should not be limited to the narrow facts surrounding either the Toner Loading Program or the Printer Engine Program. We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case: by, for example, creating a Toner Loading Program that is more complex and “creative” than the one here, or by cutting off other access to the Printer Engine Program.

The crucial point is that the DMCA forbids anyone from trafficking in any technology that “is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [protected] work.” 17 U.S.C. § 1201(2)(A) (emphasis added). The key question is the “purpose” of the circumvention technology. The microchip in SCC’s toner cartridges is intended not to reap any benefit from the Toner Loading Program – SCC’s microchip is not designed to measure toner levels – but only for the purpose of making SCC’s competing toner cartridges work with printers manufactured by Lexmark.

By contrast, Lexmark would have us read this statute in such a way that any time a manufacturer intentionally circumvents any technological measure and accesses a protected work it necessarily violates the statute regardless of its “purpose.” Such a reading would ignore the precise language – “for the purpose of” – as well as the main point of the DMCA – to prohibit the pirating of copyright-protected works such as movies, music, and computer programs. If we were to adopt Lexmark’s reading of the statute, manufacturers could potentially create monopolies for replacement parts simply by using similar, but more creative, lock-out codes. Automobile manufacturers, for example, could control the entire market of replacement parts for their vehicles by including lock-out chips. Congress did not intend to allow the DMCA to be used offensively in this manner, but rather only sought to reach those who circumvented protective measures “for the purpose” of pirating works protected by the copyright statute. Unless a plaintiff can show that a defendant circumvented protective measures for such a purpose, its claim should not be allowed to go forward. If Lexmark wishes to utilize DMCA protections for (allegedly) copyrightable works, it should not use such works to prevent competing cartridges from working with its printer. Reading the DMCA in pari materia with the rest of the copyright code supports this interpretation.

The DMCA should be used as part of the copyright code as it applies to computer software codes and other digital media. To this extent, the specific “purpose” language of the DMCA modifies the more abstract language of the previous copyright law. As the Court explains, the fair use exception in copyright law explicitly looks to the purpose of the one making the copy in determining whether or not such copying violates the statute, and the DMCA itself contains a reverse engineering exception that also demonstrates Congress’s aim merely to prevent piracy. I agree with the Court that both exceptions apply to SCC’s actions in this case. But we should be wary of shifting the burden to a rival manufacturer to demonstrate that its conduct falls under such an exception in cases where there is no indication that it has any intention of No. 03-5400 Lexmark Int’l v. Static Control Components Page 22 pirating a protected work. See, e.g., Lawrence Lessig, Free Culture 187 (2004) (noting the danger that “in America fair use simply means the right to hire a lawyer to defend your right to create”). A monopolist could enforce its will against a smaller rival simply because the potential cost of extended litigation and discovery where the burden of proof shifts to the defendant is itself a deterrent to innovation and competition. Misreading the statute to shift the burden in this way could allow powerful manufacturers in practice to create monopolies where they are not in principle supported by law. Instead, a better reading of the statute is that it requires plaintiffs as part of their burden of pleading and persuasion to show a purpose to pirate on the part of defendants.

This just in --- Static Control Corp. has won its appeal against Lexmark over the right to produce after-market replacement cartridges for Lexmark printers.

Read the opinion here

More on the case here.

Check out the new interview @ Engadget, in which our own Wendy Seltzer answers a number of Copyfight-relevant questions. Of particular interest to those concerned about the "plus-copyright" powers of the DMCA: her answer to the question of whether the recent ruling (PDF) in US v. Martignon can help rein it in:

The Martignon decision, finding the federal anti-bootlegging statute unconstitutional because it granted copyright-like protection against live recordings for unlimited times, is an important re-affirmation that copyright is a limited exclusive right, meant to balance public and private interests. In the DMCA fight, we've tried to call attention to the ways anticircumvention blocks access to public domain works whose copyrights have expired [link: EFF comments in Copyright Office rulemaking] - without success so far, but this decision might prompt courts to address those concerns. Judge Baer also ruled that Congress can't use a broader part of the Constitution, the Commerce Clause, to circumvent the limitations of the Copyright Clause. So if we can show that the DMCA's restrictions on speech aren't justified under copyright law, Congress can't make up other justifications.

The Cato Institute held a panel discussion yesterday featuring key negotiators in the discussions on the currently stalled Induce Act -- two from each "side." These are a few of the people who were infamously locked into a room together after Senator Hatch told them to come up with a workable compromise before the Congressional session ended.

For (dis)Content: David Green, MPAA, and Mitch Glazier, RIAA.

For technology/innovation/Betamax: Markham Erickson, NetCoalition, and Gigi Sohn, Public Knowledge.

Below are few very rough notes on the opening gambits from each; I couldn't stick around for the whole thing. You can listen to audience Q&A, etc., here. Fascinating stuff:

David Green begins by digging deep into an old bag of tricks -- attempting to induce, if you will, "shock and awe" over how anyone can get the lastest Hollywood product in mere "seconds" via P2P. He then segues into a discussion about how, no matter what, "everyone" agrees that bad actors must be taken out (if not by Induce, then something else, and soon), complains bitterly about the Grokster decision, and ends by arguing that Induce isn't a new and radical change to copyright law. No mention of Betamax, even while addressing this last point.

Mitch digs into the same bag, pulls out the chestnut about P2P as conduit to porn. Because you must think of the children. Discusses the various drafts; sounds as though he didn't care which one made it past the goal line. Says it's pretty clear to everyone that there is a bad business model here. These actors are bad and need to be isolated. We don't want to hurt the Yahoos and Googles of the world. But these people do need to be stopped.

Gigi starts with Betamax. Larger principles at stake. If this was just about P2P, she wouldn't be here. She calls Mitch on the porn gambit; says it's cynical and unfortunate that he mentioned porn. [People start to clap; she says, "No clapping."] Everyone here has a PC or another innovation, and it's because the Supreme Court found that the VCR is not an illegal copying tool. Technologies capable of substantial non-infringing uses are okay. This is critical. Led to all kinds of innovation. Critical to this economy. The problem with the Induce act, is that it was so broad that almost anyone would be liable. Cites EFF's "brilliant" mock complaint against Apple. Says under the "reasonable person" standard, of course iPod would fall under that. Says we heard all of this, "We won't go after Apple, we won't go after the iPod." But history shows otherwise. Induce would have punished more than bad actors, and further, more than tech companies. Even CNet was getting nervous. Never mind the promises, "No, no we won't sue you." Again, history shows otherwise.

Says she also hears, "We need to get rid of Grokster." But do we? Argues lawsuits are working. DoJ is helping. HR 4077 may even lower the standard for copyright infringement. Legit services gaining popularity, and album sales are up. Finally, spyware is scaring people away from P2P. People talk about impossibility of "competing with free" -- but you can actually do that.

Stresses again that people shouldn't be fooled that this is about P2P -- it's about who controls the future of technology. The content industry wants this. Or govt. controlling it for them. Broadcast flag -- represents kernel of that debate. Who will control: content or tech?

Gigi closes by reading the end of Grokster opinion out loud -- a lesson for content industry, for everyone. "We live in times when quicksilver changes..." Warns: Be careful what you ask for. Because you may kill the golden goose.

Markham starts by stating that "the entire Internet is a giant copying machine." So everything is a peer-to-peer platform. Legislation must distinguish between architecture and everything else. Betamax is the foundation upon which today's tech industry stands. There's got to be something above and beyond architecture. Betamax is responsible for the great products and services we have. Induce Act undermines Betamax. Proponents said they weren't touching Betamax. But our concern was that you were making cause of action irrelevant. The result is explosive litigation over every new tech that comes down the pike. We had reason to fear. So far, the content industry has sued everything that comes down that pike.

Markham says he disagrees that some in tech companies support Induce. Says they all have substantial concerns. His group worked on creating an alt. draft. Thought: secondary liability is case law, not statute. So put in Sony Betamax-like language. BSA had a thoughtful draft. IEEE did, too. Senator Hatch took all the drafts and told Copyright Office to meld/make it work -- it produced two drafts. Behavior-based and business model approach. Smart approach. But problem is that we needed time to work these things out. Hatch wanted to move this out of committee during the session. Told us to go into a room and work it out.

We tried to do that. Problem -- these discussions quickly devolved into a draft with a technology-specific approach. We had a huge problem with this approach. Who is "good," who is "bad"? This is a losing strategy. Future of the Internet is decentralization. Trying to construct this box will have a tremendous chilling efffect. Look at Internet industry and consumer electronics. The future is portability. Guess what? A lot of that content will be distributed over the Internet. They said, "If you're a good actor, you'll win in court." That doesn't help. Not when you need people to invest.

We need to look at the actions, not the tech itself.

Moderator Adam Thierer says Cato has been largely uninvolved. His own position a tough one -- he's an intellectual schizophrenic over copyright. He struggles. A hard sell on copyright policy. His qs for David and Mitch: What about the Sony precedent? That's a good decision. Made lots of money. Clearly we wouldn't have wanted it to come out another way. Why shoot the middleman at all? Analogy to gun debates. Why not just enforce directly against the infringer?

Qs for the other side -- isn't there any role at all for secondary/contributory liability in copyright law? Aren't some people really inducing? What conduct should be clearly illegal? He says the rule is: don't ban or mandate business models to solve copyright problems. But asks, are there exceptions to the rule?

Later: Coverage from Wired: Toe-to-Toe over Peer-to-Peer.

Madisonian Theory dons the little red hood wanders into the woods to explore the levels of copyright use/abuse in three recent opinions. Great stuff:

Too Much Copyright: "The conventional 'copyfight' wisdom is that excessive emphasis on copyright's property-like character can lead to quashing, instead of promoting, innovation and creativity.

Too much copyright (and badly understood copyright) has other pernicious effects. Today's example: the recent opinion of the Supreme Court of Arkansas in Arkansas Democrat-Gazette v. Brantley...The Arkansas Supreme Court...effectively [allowed] the newspaper (or any litigant) to hold up the civil litigation process – not a copyright case, but any case – on the ground that the evidence is covered by some copyright interest."

Too Little Copyright: "Sometimes, though, a little copyright goes a long way. Take Grosso v. Miramax (pdf link to the court's opinion), where the Ninth Circuit Court of Appeals ruled last month that a screenwriter who sent an unsolicited script to Miramax could sue Miramax for breach of an implied contract – a state law claim – after portions of the script turned up in Rounders. This is so, it turns out, even though the Ninth Circuit ruled that the screenwriter's copyright law was rightly rejected on summary judgment."

Just Right: "Once in a while, and perhaps more often than academics sometimes concede, the court gets it right. Take Compaq Computer Corp. v. Ergonome Inc. (pdf link to the opinion), in which the Fifth Circuit Court of Appeals recently upheld a jury finding of fair use....For all of you out there teaching and using ergonomic principles to stay healthy at the keyboard, fear not: copyright won’t stand in your way."

As most of you are no doubt aware, the Department of Justice yesterday issued a lengthy report (PDF) outlining its plans for taking the war against intellectual property "theft" to the next level. So what is John Ashcroft's answer to our copyright infringement problems? As Declan McCullagh writes, "more spending, more FBI agents and more power for prosecutors." Meaning, of course, H.R. 4077/PDEA, which among other things threatens to make automatically skipping commercials illegal, and the widely reviled Induce Act, which would put technological innovation into a deep chill and/or send it overseas.

Ah, but that's not all. The plan also includes:

• Wiretaps for some IP crimes;
  
• "Updating" the law so we can charge intellectual property criminals under US law anywhere in the world, no matter what the local regulations say; and
  
• Education programs to teach children "respect" for copyright law, so they can "Just Say No to Copyright Infringement."
  

The DoJ is evidently claiming that the new "war" will be as "forceful and aggressive" as the war on drugs. And no doubt just as effective.

Not the kind of mashup DJ Dangermouse is famous for. The kind Congress is infamous for. Meet the proposed end-of-the term substitute for H.R. 4077 (PDF) --a.k.a., PDEA Plus.

Ernie has the scoop on what the PDEA is bad for. Below is the official summary of what the Hatch/Leahy-sponsored "PDEA Plus" comprises. And here is an action alert from the good people at Public Knowledge, warning that movement is likely "possibly today or tomorrow (yes, even Saturday!)."

Title I, the "CREATE Act" (H.R. 2391/S. 2192). This title includes the version of the CREATE Act that has passed both the House and Senate.

Title II and Title III, the "Piracy Deterrence and Education Act of 2004" (H.R. 4077). This legislation passed the House on September 28, 2004, and includes the Family Movie Act, as well as legislation substantially similar to the ART Act, S.1932. The substitute modifies the Family Movie Act with bipartisan, compromise language that has been negotiated among the cosponsors and stakeholders. The substitute also includes Section 5 of the ART Act, "Civil Remedies for Infringement of a Work being Prepared for Commercial Distribution," which directs the Register of Copyrights to create a registry of pre-release works in order to better address the problems associated with piracy of creative works before they are offered for legal distribution. Title III designates the national tree as the oak tree.

Title IV, the "Protecting Intellectual Rights Against Theft and Expropriation Act of 2004" (S. 2237). The bill passed the Senate by Unanimous Consent on June 25, 2004. The substitute makes one minor change to clarify that the civil enforcement authority created by the legislation and to be exercised by the Attorney General is to be used only in lieu of criminal prosecution.

Title, V, the "National Film Preservation Act of 2004" (based on S. 1923). The National Film Preservation Act will reauthorize a Library of Congress Program dedicated to saving rare and culturally significant films. The language in the substitute includes compromise funding levels to allow the National Film Preservation Board and the National Film Preservation Foundation to continue its important work.

Title VI, the "Preservation of Orphan Works Act" (H.R. 5136). This provision corrects a drafting error in the Sonny Bono Copyright Term Extension Act. Correction of this drafting error will allow libraries to create copies of certain copyrighted works, such as films and musical compositions that, in their last twenty years of copyright term, are no longer commercially exploited, and are not available at a reasonable price.

Title VII, the "Enhancing Federal Obscenity Reporting and Copyright Enforcement Act of 2004" (S. 1933). This measure was reported by the Judiciary Committee on May 20, 2004. The substitute language includes Section 1, Section 2, Section 3, and Section 5 of the EnFORCE Act.

Ted Bridis @ AP catches up with Ernie on the Induce Act, which is officially stalled -- for now.

Edward Felten and Derek Slater examine the latest draft (PDF) of the misguided Induce Act and deliver a one-two punch:

Felten: "This draft is narrower than previous ones, in that it tries to limit liability to products related 'peer-to-peer' infringement. Unfortunately, the definition of peer-to-peer is overbroad....By this definition, the Web is clearly a peer-to-peer system. Arguably, the Internet itself may be a peer-to-peer system as well."

Slater: "It could also apply to Windows networking, which allows sharing of folders over a network that certainly could be considered 'public.' Furthermore, it could apply to IM systems that allow people to send files. 'Locate and obtain' is in no way restricted to your typical search interface; consider an IM service with a chatroom called 'Share Music'(this is basically how sharing on IRC works, with bots that you can query). Even if you think they could successfully defend themselves, they could still be dragged through a money intensive lawsuit. And the boundaries of this definition will be continually pushed my new technologies.

Shall we go on?"

Siva Vaidhyanathan is blogging today @ Eric Alterman's Altercation, and delivers a welcome call-to-arms to readers to join EFF in fighting the Induce Act:

If you are not familiar with the Electronic Frontier Foundation, you should be. This cyber-rights organization is working hard to keep freedom and information flowing over this very medium that you are enjoying right now. The EFF has scored two major victories in the past few months.

First, EFF lawyers liberated Woody Guthrie's song "This Land is Your Land" by showing the publishing company that controls its rights that the song is actually based on multiple works in the public domain, and itself entered the public domain since the early 1970s.

Then last week it took down Diebold, the incompetent electronic voting machine company that had tried stop students and journalists who dared to criticize the company by accusing them of violating the Digital Millennium Copyright Act.

Now EFF is trying to stop a stupid bill making its way through the US Senate. It's called the Induce Act, and it could potentially threaten innovation within industries that produce goods that COULD be used to facilitate copyright infringement: your photocopy machine, fax machine, personal computer, and the iPod.

Thanks, Siva!

Laura Murray has a new article warning Canada not to sign the pending WIPO Internet treaties and explaining the difference between protecting IP for its own sake and protecting culture and creators. Below, a few intriguing snippets:

On copyright rhetoric:
Spend more than a few minutes browsing Canadian court rulings, policy materials, or public hearings on copyright, and you will come across somebody seeking or promoting "protection." "Protection" seems to be a good thing, and somehow copyright provides it, or should be providing it. But protection of what? Protection from what? ... Only a few argue for protection of consumers or those whose creativity builds on copyrighted works, and fewer still the citizenry or the public domain.

On "creator" vs. "consumer":
Even the metaphor of balance has its limits because it posits users and creators as distinct entities placed on either side of a fulcrum. In fact, as many have pointed out, we cannot draw a firm distinction between "creators" and "users": every single person alive on earth is a consumer of culture, and anyone who ever puts pen to paper (or finger to keyboard) is also a creator.

On copyright in education:
Even those who would not presume to the title of artist may seek to respond creatively to pop culture, however clumsily, and a copyright system must acknowledge and enable this participation in cultural production. This is where education comes in: one might hope for a copyright law that would acknowledge students' and teachers' role as participants in culture, not just purchasers of it.

On the copyfight in Canada:
[There] has been, to date, little public activism in Canada concerning copyright reform. It is true that when the government asked for public comment on copyright reform (and specifically digital issues) in 2001, they were surprised to receive 700 submissions. Of these, some 250 consisted of form letters from members of the Electronic Frontier Foundation, and there were a few other submissions from concerned individuals or experts, but most came from educational, industry, and cultural organizations, and many of these piggybacked on each other [16]. Only in the past year has the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa established a profile on the Internet and become active in legal and policy intervention. Michael Geist is the only scholar commenting regularly in the Canadian media on public interest issues in copyright policy and cases.

Cory has very big news, and puts it best:

For years now, progressive elements and copyfighters have been trying to get the UN's World Intellectual Property Organization to start thinking about ways of promoting creativity and development instead of just IP -- to get the organization to see that its raison d'etre is a better world, and that stronger IP laws is just one way of accomplishing that -- and that IP only works sometimes.

We've been foiled at every turn by the maximalists, the movies studios and the trademark offices, the patent-cops and the recording industry lobbyists and the IP lawyers' associations.

Which is why this is such good news: at the general session of the WIPO in Geneva this weekend, the Assembly as adoped a decision to put development and the promotion of creativity front-and-center in its goals. That means that from now on, WIPO isn't an organization that blindly supports more IP no matter what, but rather one that seeks to improve the world by whatever tool is best suited to the job.

More information available here; previous Copyfight coverage here and here.

Michael Geist on why Canada should follow the UK, not the US, for culturally healthy copyright policy:

The United Kingdom provides an excellent model for such policies. In recent months, the British Library has unveiled an ambitious plan to digitize and freely post on the Internet thousands of historical newspapers that are now in the public domain. Similarly, the BBC has established the BBC Creative Archive, which will allow users to download clips of BBC factual programming for non-commercial use, where they can be stored, manipulated and shared.

[...]

Policy makers should also recognize that even ratification of the WIPO Internet treaties will not satisfy many rights holders, who have continually sought new rights that might increase their earnings. In the United States, the U.S. Congress has recently been considering proposed legislation called the Induce Act, which could conceivably regulate a wide range of electronic equipment including popular devices such as Apple's iPod.

Canadians can expect similar proposals to surface here as rights holders have left little doubt that the WIPO Internet treaties represent only the tip of the copyright reform iceberg.

Ernie has a great post gathering commentary & analysis of yesterday's crushing defeat for fair use/reverse engineering/open-source programming in the BnetD case. He also offers his own .02, highlighting the decision's oddities:

If you reverse engineer for interoperability, in order to do the same thing as another program, apparently that extends "into the realm of copyright infringement." What that means is unclear. Why it takes away your defense under § 1201(f)(1) is similarly unclear. Is the program infringing or not? If not, why don't you get the exemption?

What the heck can you use the reverse engineering exemption for under this logic? You can interoperate, but only for purposes that are entirely different? Huh?

I also like the part that open source software is more likely to violate the DMCA because it has "limited commercial purpose." You see, if you don't or can't sell it, you are even more evil according to this ruling.

Geez.

Madisonian Theory, meanwhile, manages to capture all of its wrongness in a single sentence: "It's a disaster of an opinion, from the court's uncritical acceptance of Bowers v. Baystate as authority for enforcing a 'no reverse engineering' shrinkwrap license, to the court's whimsical application of the DMCA's anti-circumvention rules to the so-called 'secret handshake' between each Battle.net game copy and the authorized Battle.net server software."

It seems to me that most unfortunate thing about this ruling is the power it gives companies to crush the competition. What copyright giveth (fair use, reverse engineering for interoperability), contract via clickwrap buttressed by the DMCA taketh away. A reader over @ Freedom-to-Tinker observes that "This ruling even implies that the only way to do it is to ask the copyright holder for explicit permission. I'd love to see that: 'Mr. Software developer, I'd like your permission to become your competitor.'" Me too. And pigs growing wings.

Could the tide be turning?

Or is this just a way to take the debate behind closed doors?

...on the Induce Act, and comes out on the right side:

Throughout the ongoing battle over Senator Hatch's controversial Induce Act, the dividing lines have been clear: the RIAA on one side, and the technology and telecommunications industries on the other, with one puzzling exception -- the Business Software Alliance. The BSA did appear at Senator Hatch's initial hearing on the Act, but other than that has been surprisingly quiet in the debate over subsequent drafts of the bill and the effort to defend the Betamax doctrine.

Last night, all of that changed. In a strongly-worded letter [PDF 65k], BSA (along with CSPP and the ITIC) told Senators Hatch and Leahy in no uncertain terms what's wrong with Induce and what any bill that expands copyright liability would need to pass muster.

Phew. Better late than never. But next time, make it sooner.

..or maybe two.

The Washington Times brings us some choice words from Richard Lessner on the Induce Act and its sponsors: "Unfortunately, this misguided legislation's chief sponsor is Utah's Sen. Orrin Hatch, a Republican who should know better and who once aspired to serve on the Supreme Court. Sen. Hatch, sometime songwriter, is close to the music industry and is happy to carry the water for this trial attorney boondoggle."

Meanwhile, the New York Times offers an amusing point/counterpoint exchange between the RIAA's Mitch Bainwol and cyberlaw prof/Yale ISP fellow/broadcast flag waiver/rising blogstar Susan Crawford:

"Napster was shut down because it had a centralized server," [Bainwol] said, referring to the father of peer-to-peer file sharing that was forced to shut down in 2001, and later reopened as a pay service. Soon after Napster's initial collapse came the decentralized peer-to-peer networks that are now at the center of the debate. "These decentralized systems exploit a loophole. They make money on advertising and their business model is based on theft."

While that may be true, opponents of the Induce Act say that the bill's language is so sweeping that many other technologies may be in danger of being caught in its grasp. They argue that innovations as common as the VCR - or Xerox machines or the iPod - would never have come about if their inventors had toiled under the threat that some users might misuse the technology.

"This is not just closing loopholes," said Susan Crawford, a professor of Internet law at the Cardozo School of Law in New York. "They're creating nooses."

Two pieces for those of you following how the Geneva proposal for a smarter and more humane WIPO is being received:

• Activists Challenge UN Intellectual Property Pact: "'We are not against intellectual property rights, however we are for intellectual property rights that strike the right balance,' said Martin Khor of activist organisation Third World Network" [Stuff NZ].
  
• Development Needs 'Override Intellectual Property Protection': "[S]upporters of a 'development agenda' claim that, under pressure from industrialised nations, WIPO continues to give undue weight to strengthening intellectual property rights such as patents, trademarks and copyright, at the expense of the public interest and other means of fostering innovation and creativity" [Financial Times].
  

Later: Via Cory, running notes from CPTech's Thiru Balasubramaniam, taken from inside the WIPO meeting.

Derek Slater: "The bill itself lists many 'findings' about the state of piracy and that it must be counteracted, but there seems to have been no research regarding whether heightened criminal enforcement under lower standards would be beneficial. Much the same can be said for the Pirate Act's allowing the feds to go after infringers as a civil offense. No one at the hearing even thought to compare the war on piracy to the war on drugs. Moreover, on a more concrete level, there's not even the most rudimentary evidence regarding whether these prosecutions and lawsuits would have any practical impact."

...from Declan @ CNet:

Geeks now have a political action committee of their own.

Three technology activists, including a Google product manager and an organizer at the Electronic Frontier Foundation, have formed a political action committee that aims to help pro-technology politicians and defeat the ones who want to expand copyright law.

Called IPac, the group is already planning to help out Democrat Brad Carson, who's in a tough race for the U.S. Senate in Oklahoma.

"Our main target is going to be the 2006 election, but during this election cycle, a few good opportunities came up," said IPac's Ren Bucholz, who manages EFF's grassroots activism network. In the last few years, Congress has been increasingly active on intellectual-property topics and is currently considering controversial bills to target file-trading users and products that could "induce" someone to violate copyright law.

Previous Copyfight coverage is here.

Yesterday, the House passed the Piracy Deterrence and Education Act (H.R. 4077) -- a.k.a., the "bad PDEA" (here's a bit about the good one).

Declan McCullagh has a solid piece on what the legislation will mean if it becomes law. But what I haven't seen yet is a discussion about what this means in the context of the push for the Induce Act.

Here's a worst-case scenario: We have a House copyright bill (PDEA) and a Senate copyright bill (Induce). November rolls around, and 'tis the season for appropriations. Someone takes out the scissors and tape, and PDEA and Induce become PDEA+Induce. There's an appropriations bill that looks a little lonely. Suppose we staple PDEA+Induce to the bottom? That way, it'll be sure to sneak by -- because you can't hold back government.

I've pasted a copy of the floor debate on the PDEA below. It's difficult not to get cynical about the way a bill become law; the transcript suggests that there has been very little opposition to the PDEA. At the same time, there are glimmers of hope here and there -- Representative Lamar Smith is careful to distinguish between laws that penalize behavior and those that penalize the technology itself. He even goes so far as to say that peer-to-peer technology "is an essential development of our Nation's high-tech economy."

Here's another reason for hope: it's a brand new PAC to support legislators who will stand up to the entertainment industry on intellectual property issues. It's called IPac, it's nonpartisan, and it aims to promote three core principles:

# Creators of ideas and inventions have the right to be compensated for their work, but not to limit political expression, veto technological innovation, or restrict education and scientific research. [read why]

# Intellectual property laws should be judged by their potential to foster new creativity, as required by the U.S. Constitution. [read why]

# Intellectual property laws should be clear and explicit, so anybody can create without fear of lawsuits. [read why]

We've been waiting for an effective "Geek PAC" for a long time; I've signed up and am crossing my fingers that IPac will take off. We need many more speedbumps in Congress if we want to stop bills like the PDEA and Induce from driving right on past.

Continue reading "PDEA + Induce = Very Bad Law"

Fred von Lohmann has yet another cogent, compelling post on the misguided Induce Act, this time explaining why the ACU (PDF) and the National Taxpayer's Union are not fans:

[Let's] call [the Induce Act] what it is: a tax on innovation. Technology companies would find themselves under constant pressure from entertainment industry lawyers waving their newly-minted "inducement" law. This means many great products would be hobbled, and many others would never be built. Less flexible, less useful products means fewer sales, lower revenues. That's a tax on our nation's technology companies, a damper on earnings, a drag on competitiveness.

And all for nothing - this tax won't magically solve the file-sharing dilemma, nor will it put a nickel into the pockets of artists.

That's why the Amercian Conservative Union and National Taxpayer's Union have both joined the long list of public interest and technology industry groups opposing the Induce Act.

I'm a copyright lawyer. I believe in copyright. But copyright has never given an oligopoly of media companies a veto over new technologies.

On that note, EFF today joined forces with Downhill Battle for a new anti-Induce initiative. If you want to make an impact on the debate happening this week in the Senate, do check it out.

Later: Also via Fred, a few numbers to put the RIAA's push for the Induce Act in perspective:

IBM 2002 operating revenues (from annual report) = $81b
Verizon 2002 operating revenues (from annual report) = $67b

Total 2002 annual revenues of motion picture and video industries
(from CBO Report) = $62b
Total 2002 annual revenues of music industry (from CBO Report) = $13b

So IBM's annual revenues are larger than the entire music and motion picture industry ***combined***.

Verizon's revenues alone beat the movie biz.

In addition, Intel's annual revenues are ~$30b (more than 2x the entire music industry).

Q: What gives the movie and music industries the leverage to demand legislation that will levy an innovation "tax" on the technology industry when the tech sector is contributing so much to the economy?

...to the Induce Act, courtesy of the good people @ Public Knowledge.

Later (11:00 a.m. PT): And another, courtesy of the good people at the American Association of Law Libraries:

AALL Action Alert
September 28, 2004

Stop Induce--Mark-up Sept. 30th
Calls/Emails Urgently Needed NOW to Members of the Senate
Judiciary Committee

BACKGROUND:
AALL has opposed S. 2560, the "Inducing Infringement of
Copyrights Act" (Induce Act) since it was introduced by Senate
Judiciary Chairman Orrin Hatch and Ranking Member Patrick Leahy
in June. The bill is strongly supported by Hollywood and the
recording industry because of their concerns about peer-to-peer
(P2P) file-sharing networks which they say are used mainly by
consumers to illegally share copyrighted materials.

If enacted, S. 2560 would make companies and other Internet
service providers (ISPs) liable if their software or technology
"induces" users to violate copyright laws. AALL is a member of a
large, diverse coalition that opposes this bill because we
believe strongly that the solution is not to ban technology
simply because it can be used to “induce” consumers to make
illegal copies. S. 2560 outlaws technology, not bad conduct, and
P2P technology is in fact used for many important legal purposes.
The bill is so broadly drafted that it has many unintended
consequences far beyond targeting those who infringe copyright.

ACTION NEEDED:
S. 2560 has undergone many revisions, and a substitute bill will
be marked-up this Thursday, Sept. 30th. Please contact your
Senator immediately, by phone or email, if he's listed below as a
member of the Judiciary Committee.

Express your grave concerns about:

1. THE PROCESS. There have been no hearings on what is now the
fourth version of the Induce Act. Rushing a bill that implies a
fundamental realignment of our intellectual property system
through mark-up and to the Senate floor with no hearings is
wrong.

2. THE SUBSTANCE. If enacted, this bill could constitute the
greatest threat to date to the innovation processes that the
copyright and patent laws were intended to promote.

• The proposed legislation defines “induces” as
simply manufacturing a product or offering a service; therefore
it wrongly targets commerce rather than conduct.

• The narrow exceptions it provides to this
extremely broad definition of inducement are full of loopholes;
therefore it will not provide meaningful protection to legitimate
businesses and services.

MEMBERS OF THE SENATE JUDICIARY COMMITTEE

Orrin G. Hatch, Chairman (R-UT)
Charles E. Grassley (R-IA)
Arlen Specter (R-PA)
Jon Kyl (R-AZ)
Mike DeWine (R-OH)
Jeff Sessions (R-AL)
Lindsey Graham (R-SC)
Larry Craig (R-ID)
Saxby Chambliss (R-GA)
John Cornyn (R-TX)

Patrick J. Leahy, Ranking Democratic Member (D-VT)
Edward M. Kennedy (D-MA)
Joseph R. Biden, Jr. (D-DE)
Herbert Kohl (D-WI)
Dianne Feinstein (D-CA)
Russell D. Feingold (D-WI)
Charles E. Schumer (D-NY)
Richard J. Durbin (D-IL)
John Edwards (D-NC

If your Senator is listed as a member of the Judiciary Committee,
you'll find a link to his/her email address at http://www.senate.gov/general/contact_information/senators_cfm.cfm

If you prefer to call your Senator's office, the U.S. Capitol
Switchboard is: 202-224-3121

Michael Geist's most recent column on the copyright crisis in Canada kills two birds with one stone, explaining 1.) how current and pending copyright law and policy is threatening innovation, and 2.) what the Canadian government can do to stop it.

The piece dovetails nicely with the announcement last week of the Geneva Declaration on the Future of the World Intellectual Property Organization, which argues that WIPO should help nations do what Professor Geist proposes for Canada: adopt IP law and policy to foster innovation and help humanity rather than merely to promote international "harmony."

Thanks to Larry and Joe Gratz, here's the opinion (PDF) in US v. Martignon, in which a district court in the Southern District of New York struck down the anti-bootlegging provision of the copyright act because copyright cannot live forever.

Writes Larry:

The opinion is fantastic. The Court concludes (1) that antibootlegging regulations are "copyright-like" regulations, and thus are within the scope of the Copyright Clause, (2) that this regulation violates the Copyright Clause because it doesn't have a limited term (citing Eldred (sweet justice)) (And remember, the 11th Circuit's case expressly did not consider the limited times argument), and (3) that Congress can't use the Commerce Clause to do what it can't do under the Copyright Clause, so long as the subject matter is "copyright-like."

I have always been a fan of Judge Baer, but never more than today.

Ernest Miller is back from Rathergate with a new IT Conversations audio program on the many alternative drafts of the misguided Induce Act.

Later (4:27 p.m. PT): Just had a visit with the charming Mr. Miller, and he tells me he has a scoop of some kind that he'll soon share, so be sure to stay tuned to Importance Of...

Later #2 (4:45 p.m. PT): ZDNet catches up with Jason/BoingBoing, running a piece on the American Conservative Union's opposition to the Induce Act.

Later #3 (5:00 p.m. PT): Just finshed listening to Induce 2.0. It's among the most informative, interesting conversations about Induce that I've heard. And I've heard many. A must-listen.

Later #4 (Sept. 25): Ernie posts the draft of Induce that the Senate will mark up (PDF), and says it's "more narrowly drafted with carve outs for everything that EFF had in their original mock iPod complaint" but "retains many of the provisions, including the incredibly vague 'reasonable person' standard, as well as other issues."

Whaddaya know (reg. req.):

A U.S. law criminalizing the sale of bootleg recordings of live performances is illegal because it doesn't limit the life of a copyright, a judge ruled in the case of a Manhattan man indicted for selling concert tapes.

U.S. District Judge Harold Baer struck down the law, which carries a five-year prison term. He didn't address a related civil statute. U.S. copyright law limits protection of a work to the life of the author plus 70 years, Baer said. The criminal anti-bootlegging act runs afoul of that legal standard because it "grants seemingly perpetual protection to live musical performances," the judge said.

[...]

The case is U.S. v. Jean Martignon, 03cr1287, U.S. District Court, Southern District of New York.

Later (Sept. 25): This I didn't know: Larry Lessig worked on this case, and will soon have the scanned opinion posted. The short of it: "It says (1) this is copyright-like, (2) must be under the Copyright clause, and (3) commerce can't supplement. "

Joe Gratz has more on the context, promising still more once the opinion is posted: "In the last notable criminal bootlegging case, United States v. Moghadam (11th Cir. 1999), the court went through some pretty deep constitutional analysis, holding that the statute was enacted under the commerce clause and rejecting Moghadam's appeal that the statute is invalid because it is inconsistent with the Copyright Clause's fixation requirement. Moghadam failed to raise the 'limited times' issue, so the court could not invalidate the law on these grounds, though it seemed inclined to do so."

I find it extremely sad that educators are forced to "plea bargain" with copyright holders over how students can use the Internet to learn. This CBC piece on the battle in Canada over proposed changes to Canada's Copyright Act shows just how the desperate the situation has become. It lays out The Rules for what we in the US might call "fair use" for educational purposes -- rules that strike me as profoundly anti-education:

[Students and teachers could use] online material, but [there are] limits:

• It only applies to students in a program under the authority of an educational institution.
  
• Students and teachers would have to cite the source of the web materials used.
  
• It excludes online content that has limited access, such as those requiring a password.
  
• Institutions would still have to pay for CD-ROMS, licensed software and web courses.
  

That's right, kids. No unauthorized learning allowed in this precinct. You're not registered to learn at an accredited school, you ain't gonna learn. Keep it on the straight and narrow. And please, guys, document every step you take, and have your parole officer -- I mean, your authorized teacher -- sign at the bottom.

The sad thing is, these are the rules that the educators themselves proposed, in a desperate attempt to carve out some way for students to learn without having access to knowledge metered and sold in chunks, to the highest bidder (or more accurately, wealthiest school district). [Note: it turns out the situation is even more complicated than it appears; see Michael Geist's recent column for details.)

One of the most extraordinary things about the Internet is that it helps bring more people more tools for education more cheaply than ever before. It's just astounding to me that our culture is so concerned with putting the wine back in the bottle that we would rob our own children of access to true -- that is, unfettered, self-guided -- learning.

Guy Kewney, asking how American copyright extremism/expansionism might influence the rest of the world (emphasis, mine):

If I copy all the stuff off my iPod onto my hard disk, using software written in Taiwan, can I be pretty sure American senators won't try to get economic sanctions against the author on the grounds that he's 'inducing' me to break copyright?

The fact is, of course, that technology changes. People listen to music on Ipods today, not on CDs. Inevitably, sales of CDs go down.

But looking back, when CDs came in, sales of vinyl went down and nobody thought it was right to create laws to protect this. Nobody should try to inhibit the mp3 trend just because it's harder to copy-protect them than it was to prevent CD duplication.

If you think I'm being unreasonable, just remember: when video cassette recorders first appeared, American movie makers sued Sony to prevent them from being made and sold.

The Supreme Court, in 1984, decided that this was stupid. It said there were "significant non-infringing uses" for the technology. By one vote: five judges thought it was fair to let Sony sell VCRs, four thought it wasn't.

The point is, it's insane to imagine that the US can pass laws prohibiting copyright breaches on the Internet unless, somehow, it thinks it can prevent them across the whole of the web. Not just in California, or Utah, where Orrin Hatch resides, or in Afghanistan, but everywhere.

And all based on a completely bogus understanding of how technology advances.

Hatch thinks that Sony versus Universal was the wrong decision and should be reversed. He said so. So if you want his definition of 'a reasonable person' then it's a person who thinks that simply owning a VCR is the same as being 'induced' to break copyright.

You don't want to know what he thinks a broadband connection and a PC could do in the mind of a 'reasonable person'. I just wish I had a comfortable feeling that he wasn't going to try to impose his version of 'reasonable' this side of the Atlantic.

There's a battle going on at the World Intellectual Property Organization (WIPO) -- one that could accurately be described as a struggle for the soul of the organization. The central question is whether WIPO will coninue to promote the prot