April 24, 2014

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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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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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A Response to Jerry: Craig Should Still Dismiss

[Cross-posted on my blog, Managing Miracles]

Jerry Brito, a sometimes contributor to this blog, has a new post on the Reason blog arguing that I and others have been too harsh on Craigslist for their recent lawsuit. As I wrote in my earlier post, Craigslist should give up the lawsuit not just because it’s unlikely to prevail, but also because it risks setting bad precedents and is downright distasteful. Jerry argues that what the startups that scrape Craigslist data are doing doesn’t “sit well,” and that there are a several reasons to temper criticism of Craigslist.

I remain unconvinced.

To begin with, the notion that something doesn’t “sit well” is not necessarily a good indicator that one can or should prevail in legal action. To be sure, tort law (and common law more generally) develops in part out of our collective notion of what does or doesn’t seem right. Jerry concedes that the copyright claims are bogus, and that the CFAA claims are ill-advised, so we’re left with doctrines like misappropriation and trespass to chattels. I’ll get to those in a moment.
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Dear Craig: Voluntarily Dismiss with Prejudice

[Cross-posted on my blog, Managing Miracles]

Last summer, Craigslist filed a federal lawsuit against the company Padmapper (and some related entities). Padmapper.com is a site that, among other things, allows users to view Craigslist postings on a geographical map. It is a business premised on providing value added services to Craigslist postings — with some of that added value going back to Craigslist in the form of more users. Craigslist did not like this, and alleged a host of claims — seventeen of them, by the time they were done with the “First Amended Complaint” (FAC). Among their claims were alleged violations of copyright, trademark, breach of contract, and — surprisingly — Computer Fraud and Abuse Act (CFAA). The CFAA claims were not in the original complaint (they showed up only in the September 2012 FAC). Today, the judge ruled that some of the claims would be dismissed, but that many would survive.

I am still at a loss about why Craigslist is taking such a scorched earth tactic against a site that appears to help more people find Craigslist postings. Sure, they’re looking to make money while doing it, but that’s how much of the internet business ecosystem works. I’m particularly shocked, because Craig Newmark has been at the forefront of fighting for so much good online policy. We’ve met a few times, including the period when he was embroiled in the fight over whether or not “adult services” would do away with his CDA 230 intermediary liability. He was on the right side of SOPA/PIPA and helped to fight against over-expansive copyright. I’ve always found him to be personally friendly, thoughtful, and savvy about what makes the internet work.
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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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The New Freedom to Tinker Movement

When I started this blog back in 2002, I named it “Freedom to Tinker.” On the masthead, below the words Freedom to Tinker, was the subhead “… is your freedom to understand, discuss, repair, and modify the technological devices you own.” I believed at the time, as I still do, that this freedom is more than just an exercise of property rights but also helps to define our relationship with the world as more and more of our experience is mediated through these devices. I also believed that the legal tide was running against the freedom to tinker, as creative uses of technology were increasingly portrayed as illegal or deviant behavior. Now, at last, things may be starting to change.
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White House Statement on Cell Phone Unlocking: A First Step Toward DMCA Reform?

Yesterday, the White House officially responded to the online petition to “Make Unlocking Cell Phones Legal,” which garnered more than 100,000 signatures in under 30 days. The Administration’s headline was emphatic: “It’s Time to Legalize Cell Phone Unlocking.” The tech press heralded this significant but symbolic first step in addressing some of the most egregious shortcomings of the Digital Millennium Copyright Act (DMCA). I hope the White House’s response signals a new chapter in the struggle to regain the freedom to innovate, research, create, and tinker. Last week, I discussed the petition and its context with Derek Khanna, who has been a champion of the cause. You can watch the video here:

As Derek pointed out, this battle is connected to a much larger policy problem: the DMCA bans many practices that are good for society–and without clear counterbalancing benefits. Reading the White House statement, it is hard to tell whether the Administration appreciates this fact.
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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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Facebook Copyright Statement: Not Entirely Silly

There’s a meme going around on Facebook, saying that you should post a certain legal incantation on your Facebook wall, to reclaim certain rights that Facebook would otherwise be taking from you. There’s an interesting counter-meme in the press now, saying that all of this is pointless and of course you can’t change your rights just by posting a statement on a website. Both memes have something to teach us about perceptions of rights and responsibilities online.
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Is Spotify the Celestial Jukebox for Music?

In 1994, law professor Paul Goldstein popularized the term “celestial jukebox” to refer to his vision of a networked database of consumable on-demand media. In the face of copyright law that was ill-suited to the rapid rate of technological change, he described a system in which consumers would pay-per-play rather than purchasing and owning individual works. In his book Copyright’s Highway, he predicted that, “the pace of technological development is so fast and the forces of market demand so strong that the celestial jukebox, however configured, will be in place sometime early in the twenty-first century.”

The explosion of broadband and mobile internet access has made that viable, and countless startups have taken a stab at implementing the vision. One of the biggest challenges for these companies has been compiling a library of licensed works that is comprehensive enough to attract a critical mass of users. In the music market, the pay-per-play model has generally given way to monthly subscription or ad-based models. I’ve been a casual user of Last.fm and Pandora, but my listening habits haven’t been fundamentally altered. That changed last week when I finally decided to try Spotify. Spotify may be the first real contender for a mainstream “celestial jukebox” of music. But is that a good thing?

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