April 17, 2014

Annemarie Bridy

Annemarie Bridy has been a member of the faculty of the University of Idaho College of Law since 2007. Professor Bridy teaches Contracts, Copyrights, Introduction to Intellectual Property, and Cyberspace Law. Before joining the faculty, Professor Bridy was an associate with the lawfirm of Montgomery, McCracken, Walker & Rhoads in Philadelphia, where she practiced in the area of complex commercial litigation. Bridy holds a B.A from Boston University, a M.A from the University of California, Irvine, a Ph.D. from the University of California, Irvine, and a J.D. from Temple University James E. Beasley School of Law.

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FOIA: When the Exemptions Swallow the Rule

I’ve been researching and writing over the last few years on privately ordered—what the government calls “non-regulatory”—approaches to online IP enforcement. The gist of this approach is that members of trade groups representing different types of online intermediaries (broadband providers, payment processors, ad networks, online pharmacies) agree in private contracts or less formal “voluntary best practices” documents to sanction or cut services to alleged IP infringers. I put quotes around “non-regulatory” not only because that’s the government’s word, but because the descriptor masks the fact that the government, at the behest of corporate rights owners, leans heavily on targeted intermediaries to negotiate and accept these agreements, all the while holding the threat of regulation over their heads. It has proven to be a very effective strategy. Many of the website blocking provisions in SOPA, which so memorably went down in flames of public outrage, have subsequently been implemented through these agreements, which belong to a broad category of regulatory practices that governance scholars call soft law.
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Is There a Future for Net Neutrality after Verizon v. FCC?

In a decision that was widely predicted by those who have been following the case, the Court of Appeals for the D.C. Circuit has invalidated the FCC’s Open Internet Rules (so-called net neutrality regulations), which imposed non-discrimination and anti-blocking requirements on broadband Internet access providers. The rules were challenged by Verizon as soon as they were enacted in 2010. The court held that, given the FCC’s past (and never reversed or modified) regulatory choice to classify broadband providers under the Telecommunications Act of 1996 as “information services” rather than “telecommunications services,” it cannot now impose on them common carrier obligations that apply under the statute only to services classified as telecommunications. Verizon argued in the case that the Open Internet Rules were not common carrier regulations, but the court didn’t buy it.
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A Good Day at the Googleplex

            Judge Chin has issued his decision in the Google Book Search case, and it’s a win for Google. For those of you who have been following the litigation, it’s been a long trip through the arcana of class certification. Today’s decision, however, finally gets to the merits of Google’s fair use defense under the Copyright Act. The outcome is not surprising in light of last year’s decision in the related HathiTrust case, which held that Google’s mass digitization of books on behalf of academic libraries to facilitate scholarship and research and to aid print-disabled library patrons is fair use. The Google Books case could have come out differently, however, given that Google, unlike an academic library, is a commercial enterprise and that the service it provides through Book Search reaches far beyond an academic audience. In addition, the amount of text that Google displays in Book Search results (multiple contextual “snippets” including the search term) is greater than the amount displayed by the HathiTrust (only the page numbers and number of hits per page for the search term). Both of those factors—the commercial or non-profit nature of the use and the amount of text displayed—are relevant to the fair use analysis.

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No Facebook, No Service?

The Idaho Statesman, my sort-of-local newspaper, just announced that it will follow the lead of the Miami Herald and no longer allow readers to post anonymous comments to online stories. Starting September 15, readers who want to make comments will have to login through Facebook. This is the second time I’ve encountered a mandatory Facebook login for users trying to gain access to a third-party service. The first time was when I tried to sign up last year for the music streaming service Spotify. (Spotify now allows users to create an account using an email address, but it didn’t always.)  I’m not a Facebook fan for reasons related to Facebook’s privacy and information practices, but that’s really neither here nor there. The question is whether I should have to be a Facebook user to access services on the Internet that have no natural or necessary connection to Facebook. I’m not talking here about giving users the option to login through Facebook if they want to share their online activities with Facebook friends. I’m talking about conditioning access to a non-Facebook service, or to some aspect of that service, on a user’s having a Facebook account. Internet users are accustomed to dealing with lots of intermediaries, from broadband providers to search engines, to get access to services and information. The Internet is all about mediated transfers of information. I get that. But this strikes me as a troubling new layer of intermediation.

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On the Legal Importance of Viewing Genes as Code

The Supreme Court yesterday issued its opinion in the much–awaited Myriad case, which challenged the validity of patents on isolated human genes. The Court held that the isolated genetic sequences claimed in Myriad’s patents did not satisfy the inventive threshold for patentability, although the complementary DNA (cDNA) claimed in the patents did. One of the more interesting elements of the case for me is the extent to which the outcome turned on a single conceptual choice: When assessing patentability, should the legal analysis focus on the isolated DNA’s chemical structure or its information-coding function? The Court decided that the information-coding function was the proper focus. That choice led the justices to the inevitable conclusion that the isolated sequences were not patentable. The Court of Appeals for the Federal Circuit, by contrast, had focused on the sequences’ chemical structure and had reached the opposite conclusion.

Why did this conceptual choice turn out to be so consequential? To be patentable, an invention must be the product of human ingenuity. Products of nature and natural phenomena are excluded from the scope of patent protection. The leading case in the domain of patents on living organisms is Diamond v. Chakrabarty, in which the Court said that patent protection could extend to “anything under the sun that is made by man.” The scope is very broad (i.e., “anything under the sun), but it isn’t unlimited (i.e., it has to be “made by man”).  The question courts must ask to separate products of nature from products of human ingenuity is whether the claimed invention is “markedly different” from something that is found in nature.
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Open-Source 3D Printing and Copyright Reform: It’s Time to Revisit Personal Use Copying

Last week, I attended MSU’s Fifth Annual Conference on Innovation and Communications Law, where I saw a wonderful presentation by Joshua Pearce, an engineering and material sciences professor from Michigan Tech, on “distributed open-source digital manufacturing” (a.k.a. open-source 3D printing). The hardware Joshua presented is called RepRap:

RepRap takes the form of a free desktop 3D printer capable of printing plastic objects. Since many parts of RepRap are made from plastic and RepRap prints those parts, RepRap self-replicates by making a kit of itself – a kit that anyone can assemble given time and materials. It also means that – if you’ve got a RepRap – you can print lots of useful stuff, and you can print another RepRap for a friend…

I love conferences that bring lawyers together with technologists, because they really help the lawyers among us understand what’s at stake for developers of new technologies that intersect—maybe “collide” is the better word—with intellectual property law. Joshua’s presentation ended with a plea to the lawyers in the room to prevent IP law from inhibiting the development and proliferation of open 3D printing technologies, which promise to revolutionize—maybe “disrupt” is the better word—our entrenched, centralized, and outsourced manufacturing model.
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Copyrights, Fundamental Rights, and the Constitution

There was a lot to take issue with in Scott Turow’s recent op-ed in The New York Times. Turow, who is currently President of the Authors Guild, took to The Times to criticize the Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons, which brought physical books manufactured and sold abroad within the protective scope of copyright’s first sale doctrine. Turow cast the Court’s decision as another blow to authors’ rights, which, by his account, are being pitilessly washed away by the digital tides. He blames the usual suspects: e-books, Amazon.com, pirates, Google, and—this last one may surprise you—libraries. The coup de grace, he asserted, will be the extension of first sale rights to digital copies of books. (It may comfort him to know that the possibility of that happening is more remote following Redigi’s recent defeat in federal district court.)
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Where Are the Legal Lossless Downloads?

I must have been very nice last year, because Santa brought me a Sonos Connect Wireless HiFi System and Network Attached Storage (NAS) with Wake-on-LAN for Christmas. This particular combination of hardware can mean only one thing: I will spend the waning days of 2012 and the beginning days of 2013 ripping my entire CD collection (which is not small) into lossless files. After poring over audiophile blogs and lurking on discussion forums, I chose FLAC (Free Lossless Audio Codec) as the format for my ripping binge. FLAC has the great virtue of combining openness with losslessness, and it seems to be the coin of the realm for the digital audiophile set. I’ve been using dbPoweramp as my ripper, and it’s all been going very well. Albeit not perfectly. There is the occasional track that for whatever reason—some physical defect in the disc or some blip in the ripping or the encoding—I cannot get FLAC-ed. Last night’s file, as it happens, was Fine Young Cannibals’ “Couldn’t Care More.”  No matter how much I tweaked the ripping and encoding settings, I couldn’t get a proper lossless copy. So I decided to do what any law-abiding music consumer would do in my situation: I searched the Internet far and wide for a paid (i.e., legal) lossless download of the song. I would have bought FLAC or ALAC or anything else lossless. Reader, I searched in vain. I don’t know why this surprised me, knowing what I do about the supply-side causes of digital piracy. But it did. I found more than one adware-bloated torrent for the FLAC version, but I couldn’t find the authorized article in anything but lossy format from Amazon or iTunes. I could, I suppose, just buy a new CD and try my luck again, but that seems a little perverse, given that the whole beauty of the digital download model is track-by-track purchasing. And I already bought the whole CD once.
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The Decline of DVD-by-Mail, or Further Thoughts on the Digital Death of Copyright’s First Sale Doctrine

Netflix reported a second-quarter profit last week as customer demand continues to drive a transition in the company’s primary delivery model from DVD-by-mail to Internet streaming. According to The New York Times, “[t]he company’s net losses among DVD-by-mail subscriptions outpaced its gains in net streaming subscriptions in the United States, reflecting the continued challenge of converting from a physical disc business to one predominately online.” The company, of which I am a longtime subscriber and fan, has famously struggled with the business implications of this transition since it began offering streaming service in 2007. (Remember the Qwickster debacle?) Those business implications derive in some interesting ways from copyright law.

The DVD-by-mail model, on which Netflix built its success, was enabled by the first sale doctrine, which cuts off a copyright owner’s distribution right with respect to a particular copy of a copyrighted work when that copy is first sold. Because of the first sale doctrine, Netflix was not required to get permission from movie studios to set up its business. In the early days, Netflix simply bought DVDs—lots of them—from whatever retailers were selling them and then rented those DVDs to its customers. If the movie studios didn’t like that, well, too bad.
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Opening Government: On the Limits of FOIA and the Metaphor of Transparency

At a recent symposium (“Piracy and the Politics of Policing: Legislating and Enforcing Copyright Law”) sponsored by the Cardozo Arts and Entertainment Law Journal, I was invited to respond to an excellent paper by David Levine on secrecy, national security, and the denial of public access to documents from the Anti-Counterfeiting Trade Agreement (ACTA) negotiation process. Dave argues in his paper for an amendment to the federal Freedom of Information Act (FOIA) that would create a qualified public right to “foreign relations” national security information. Had such an amendment been in place at the time of the ACTA negotiations, the Office of the United States Trade Representative would not have been able to invoke FOIA’s national security exemption—a dubious invocation, at best—to deny public requests for documents that were made under FOIA by public interest groups like Public Knowledge.

Responding to Dave’s article got me thinking about the use of “transparency” as a metaphor for openness in government, the use of FOIA as a mechanism for ensuring such openness, and the ways in which proponents of greater public involvement in policy-making (among whom I count myself) may disserve the cause by focusing too single-mindedly on access to information and the right to know, both of which are operationalized through FOIA. In my response to Dave’s article, a relatively short piece that I’ve posted to SSRN, I try to articulate the limits of FOIA as a mechanism for open government:
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