Weekly Newsletter Issue 24

Content and RSS Restrictions

Kinja, the new public weblog aggregator that Nick Denton describes as an "RSS reader for people who don't know what RSS is...", is coming under scrutiny by some bloggers for "using free external content to raise advertising revenue."

Similarly, Google has informed one developer that the Google News Terms of Use "do not currently permit the creation of a news feed from the results on Google News, nor do we permit webmasters to display Google News headlines on their sites. We provide a means for monitoring Google News searches through Google News Alerts and encourage you to use this service instead."

Whereas, thanks to Rafar Ali of Paid Content, Reuters has defined fair use for bloggers stating that "[i]nfringements of our copyright does not include where bloggers quote from and link back to our original story, or where sites display a headline and link back to reuters.com."

If you are interested in peeking over my shoulder to see some of the 200 sites I aggregate I put together my own Kinja public digest.

see also: Mary Hodder: Why News and Technical DRM Don't Mix: Linking and Linking Expression are Key and Randy Dotinga: Publishers may start using plagiarism-detection software

P2P and File-Sharing

File-sharing isn't killing record sales: Felix Oberholzer-Gee of the Harvard Business School and Koleman S. Strumpf of the University of North Carolina at Chapel Hill argue [pdf] that "[e]ven in the most pessimistic specification, five thousand downloads are needed to displace a single album sale...high selling albums actually benefit from file sharing." If you're lazy or don't like pdf you can read John Schwartz summary of file-sharing study.

Real Nasty Copyright Bill Passes House Panel: Declan reports that the House intellectual property subcommittee has approved the HR 4077: Piracy Deterrence and Education Act [pdf] ("PDEA").

The PDEA would allow 1) the FBI the powers to demand private information from Internet service providers (this is necessary because the courts can not be trusted to divest Americans of their privacy rights and to protect greedy corporate music executives); 2) punishes internet users who makes available $1,000 in copyrighted materials with prison terms of up to three years and fines of up to $250,000 (because apparently existing criminal copyright law is not sufficient); this provision also provides for strict liability meaning that "prosecutors would not have to prove that $1,000 in copyrighted materials were downloaded--they would need only to show that those files had been publicly accessible in a shared folder."

One of my questions is how can they hold anyone strictly liable without pre-determining the value of copyrighted content. The pending legislation that I was discussing yesterday is intended to punish internet users, who make $1,000 in copyrighted materials publicly accessible in a shared folder or 1,000 or more copies available:

(2) RETAIL VALUE: The 'retail value' of a copyrighted work is the retail price of that work in the market in which it is sold. In the case of an infringement of a copyright by distribution, if the retail price does not adequately reflect the economic value of the infringement, then the retail value may be determined using other factors, including but not limited to suggested retail price, wholesale price, replacement cost of the item, licensing, or distribution-related fees.

If we were to value a song by the retail prices set at Wal-Mart, who is is now selling songs at $0.88 per mp3 then you could safely have 1,135 songs in your share folder under section (2); however, it seems that section (3)(A) sets a hard cap to the number of songs that you could offer at 999.

This came on top of the announcement that Attorney General John Ashcroft has created a task force on copyright violations.

More on the PIRATE Act: Ernest Miller, in his post Wiretaps for Civil Copyright Infringement? writes: "copyright holders have no way of going after people who are only downloading files and not uploading them. Wiretaps to the rescue. The RIAA may not be permitted to wiretap file sharers, but the government certainly can."

European and Canadian P2P Users Beware: NYT: "International Federation of the Phonographic Industry (IFPI) said Tuesday that action had been taken in Germany, Denmark, Italy and Canada [against 247 people for illegally swapping music online]."

Back in December, it was reported that Canada deemed P2P downloading legal, now cnews is reporting that "uploading music files into shared folders on peer-to-peer networks like Kazaa is legal. Justice Konrad von Finckenstein's decision throws a wrench into plans by the music industry to sue people who share songs over the Internet. Unlike similar cases in the United States, he said the Canadian Recording Industry Association (CRIA) didn't prove there was copyright infringement by 29 so-called music uploaders."

see: BMG Canada Inc. v. Doe

Excerpted from Tech Law Advisor's Weekly Newsletter #24 (April 5, 2004)

Kevin J. Heller is an intellectual property, technology and trademark litigation attorney in New York City. My main focus is on the emerging intersection of internet and intellectual property law as well as advising clients conducting business on the web. To understand more about what I do you can click here.