Freedom to Tinker

Stefanie Olsen at CNet News.com reports that SearchKing’s lawsuit against Google has been dismissed. The judge ruled, as expected, that Google’s page rankings are opinions, and that Google has a First Amendment right to state its opinions.

Here’s the background: SearchKing sells a service that claims to raise people’s page rankings on the Google search engine. Google adjusted their page ranking algorithm to demote SearchKing’s pages. SearchKing sued Google, asking the court to grant a preliminary injunction requiring Google to restore the page rankings of SearchKing’s pages. The court has now dismissed SearchKing’s suit. For a longer analysis of the case, see James Grimmelmann’s old LawMeme posting.

An interesting amicus brief has been filed in the Aimster case, on behalf of public-interest groups including EFF, PublicKnowledge, and the Home Recording Rights Coalition; library groups including the American Library Association; and industry groups including the Computing and Communications Industry Association and the Consumer Electronics Association. A trial court found Aimster liable for indirect copyright infringement for selling a sort of file-sharing product. The amicus brief was filed with the Court of Appeals that is considering Aimster’s appeal.

The brief does not take a position on whether Aimster should be found liable, but it does argue forcefully that the trial court misinterpreted the Supreme Court’s ruling in the 1984 Sony Betamax case. In Betamax, the Supreme Court found that Sony was not liable for selling VCRs, even though VCRs were often used to infringe copyrights. The Court found, essentially, that if a product has both infringing and noninfringing uses, then the product’s maker cannot be held liable simply for selling that product. The Betamax rule has been rehashed in recent cases, including Napster (which was found liable for participating in the infringing activity) and Grokster (which was found not liable under the Betamax rule). How the Betamax rule will be interpreted is one of the key legal issues for would-be designers of innovative media products. Courts have not been entirely consistent in their reading of Betamax.

The new brief urges the Court of Appeals to narrow the lower court’s reading of the Betamax rule. According to the brief, the lower court’s reading of Betamax would impose liability on the makers of common devices such as photocopiers and digital cameras, and the Court of Appeals, regardless of its ultimate decision about Aimster’s liability, should make clear that the lower court misread Betamax.

I won’t write any more on this , since the brief is relatively short and well-written – if I’m not careful, my summary of the brief will be longer than the brief itself!

Thanks for bringing the brief to my attention go to Aimee Deep, who, despite Frank Field’s occasional doubts, appears to really exist.

DVDCCA v. Bunner – the “California DVD case” – was argued yesterday in the California Supreme Court. DVDCCA, which is basically the movie industry, sued Andrew Bunner for re-publishing the DeCSS program on his web site. DeCSS, you may recall, is a program for decrypting DVDs.

A previous case in Federal court, Universal v. Remeirdes (also known as “Universal v. Corley”, the “2600 case”, or the “New York DVD case”), led to a ruling that posting DeCSS violated the Digital Millennium Copyright Act (DMCA). There was no DMCA claim in Bunner; the movie industry argued instead that DeCSS contained their trade secrets, and so was illegal for Bunner to publish.

Bunner lost in the trial court but he won a reversal in the appeals court, with the appeals court ruling that DeCSS was speech and that an injunction against its publication would therefore be an unconstitutional prior restraint on speech.

Wired has a pretty poor story about this (bylined “Reuters”). Better is Lisa Bowman’s story at CNet News.com. Alex McGillivray was there and offers a deeper account of the legal arguments.

As usual in these cases, the plaintiffs’ lawyers offered strained analogies. California Attorney General Bill Lockyer called DeCSS a tool for “breaking, entering, and stealing”, ignoring that DeCSS only allows one to “break into” one’s own property. (The theory that using DeCSS amounts to a break-in was already rejected by a Norwegian court in the Johansen case.)

DVDCCA lawyer Robert Sugarman said something even odder. Bowman’s story quotes Sugarman as telling the court that DeCSS is designed “to allow individuals to steal a trade secret and, by virtue of that, hack into a system that protects the trade secrets of motion picture makers.” This description is wrong on several counts. First, it is at odds with the DVDCCA’s position, which is not that that DeCSS protects their trade secrets, but that it contains their trade secrets. Second, the only things “protected” by DeCSS are the digital versions of the movies, and movies in broad distribution can’t be trade secrets.

In any case, I have never understood why the industry’s basic trade secret argument wasn’t laughed out of court. By the time Bunner got hold of DeCSS and re-published it, it was available at hundreds of places on the Net, and had been available for months. Anybody who cared to know this “trade secret” already knew it, through no fault of Bunner’s. (I filed a declaration to that effect with the original trial court.) The industry never claimed that Bunner did anything illegal to get the “trade secret”; nor did they even prove that anybody else had done anything illegal to get it.