Thursday, March 31, 2005

Grokster Arguments by Justice

I had hoped that someone would do this:

EEJD points me to Harlan Yu at Information Technology and the Law who was present at the oral arguments and breaks down the arguments by justice:
In all, Justices Scalia, Souter and Breyer were all squarely concerned about the impact on new inventors and future innovation, while Justices O’Conner, Ginsburg and Kennedy were most interested in the interpretation of Sony and the merits of the other proposed tests. It was difficult to glean the stance of Justices Rehnquist, Stevens and Thomas from the oral arguments alone.

My best guess is that the Court will not issue a decision that drastically hurts future technological innovation in general. It was comforting to hear that more than a few Justices recognized possible problems that future innovators would face if they reverse the 9th Circuit based on the existing doctrine. I believe that the Court will attempt to clarify the existing Betamax doctrine or will adopt a new test altogether that incorporates some conception of intent or inducement. I also presume that the Court will not issue a decision that gives companies, with Grokster-like business models, a free pass to induce infringement.
related: mp3newswire's Grokster roundup

Induce Act Blog Adds Newest Member

I'm pleased to announce that Brandon Rash, a second-year law student at the University of Richmond School of Law with an undergraduate degree in electrical engineering from Virginia Tech and author of The EEJD Blog, has signed on to contribute to the Act Blawg.

Brandon will be posting on copyright, technology and other related aspects of bills and cases currently winding their way through Congress and the Courts. He joins Matt Buchanan, Steve Nipper, Andrew Raff, Chris Cohen, Ronald Coleman and myself in bringing you information on all intellectual property related matters.

You can access the Induce Act blawg feed here. The Induce Act Blawg is licensed under a Creative Commons License, hosted by techlawadvisor and provided ad-free as a public service to the internet community.

Salon on Grokster

Salon: Grokster means the freedom to rip your vinyl and own your data
Cory Doctorow: Salon's Andrew Leonard has posted a great editorial on Grokster:
If the entertainment studios had their way, every time a format changed, you'd have to buy all your records all over again. In their ideal world, we would hold restricted licenses to our content, not ownership. Digital rights management would cripple our all-powerful computers, creating backups would be impossible, and the basic human impulse to share the wealth of information that helps define who we are would be beset with obstacles. This is not paranoia. At every step of the way, intellectual-property-right holders have resisted technological innovations that give ordinary people more scope to enjoy and consume music, television, movies or any other content.

That's why MGM vs. Grokster is so important. The deeper we get into the digital age, the more we will be defined not by our relationships with physical objects but with the data that we have accumulated in our journeys through life. If we lose the right to own that data and do what we want with it, if the power of the computer, and the Net, is taken from us, we're at risk of losing a lot more than a few files -- we stand at risk of losing the evidence that tells us who we are.

What He Said: Corante > Copyfight >

What He Said: Corante > Copyfight >: "The idea that intellectual property law should have the protection of intellectual property as its purpose rather than as the means used toward the end of overall social betterment is a serious error that the content industry has been remarkably successful at inducing in American society.

Spot on. "

Wednesday, March 30, 2005

More Grokster Coverage

* Indirect Liability and Grokster


* Harold Feld of Media Access Project writes about My Day with the Supremes [via]

* Grokster: "More important than God"

Miller on Armstrong on Grokster

Copyfight points us to two recent Ernest Miller on Grokster posts:
Ernie Miller has a detailed, nuanced response to the most detailed, nuanced blog post from yesterday's barrage -- Timothy Armstrong's A Few Notes from the Grokster Argument.

Also not to be missed: Ernie fisking a number of Grokster editorials, including the one Matthew Yglesias tackles -- the Washington Post's Not an iPod.

Susan Crawford on Nimmer

At a Grokster forum this afternoon (graciously hosted by GW), the power of the Nimmer copyright treatise was on display. There is really no caselaw on contributory copyright liability for "inducement." In 1911, Justice Holmes said that "the most innocent objects may be used for unlawful purposes." But the case in which he said this wasn't about inducement -- it was about direct infringement. Since then courts really haven't discussed "inducement" in the copyright context, except as part of boilerplate lists.

Tuesday, March 29, 2005

Grokster Coverage

* Justice consider legality of sharing movies and music on Internet

* Supreme Court takes hard look at P2P

* Grokster

* Wendy Seltzer on Grokster

* High Court Divided in Grokster Case [Brand X]

* EEJD's Grokster Roundup

* Tim Marman's

* jewishbuddha dot org on Foiled Again! MGM v. Grokster: "Note: I got into the 10 Commandments cases, but not into either of the two copyright cases I tried to attend. From this, I can only conclude that copyright is more important than God."

Scotus: Court conflicted over file-swapping

Court conflicted over file-swapping

Grokster Needs a Better Story

* madisonian theory on P2P, Stealing and Grokster

* WAPO's Grokster Primer

* A-listers on the Copyfight: Atrios @ Eschaton and Matthew Yglesias

David Byrne on file-sharing

Excerpt from Interview with Xeni Jardin of boingboing (David Byrne launches internet radio station):
XJ: How do you feel about the fact that some of your fans are downloading your music for free?

David Byrne: It's a mixed bag. Sure, I would love to have compensation for that. But the argument of record companies standing up for artists rights is such a load of hooey. Most artists see nothing from record sales -- it's not an evil conspiracy, it's just the way the accounting works. That's the way major record labels are set up, from a purely pragmatic point of view. So as far as the artist goes -- who cares? I don't see much money from record sales anway, so I don't really care how people are getting it.

XJ: You've said that from an artist's perspective, one creative challenge of a cultural shift towards downloading individual songs is that when we're choosing what to download -- whether for free, or from fee-based services -- we tend to pick tunes we already know we like. Can you explain what you mean?

DB: I notice that the work of mine that tends to be downloaded most is the typical stuff, the hit singles, older Talking Heads material. From a creative point of view, the downside of that is that it becomes a kind of lowest common denominator -- you might not have as much of an opportunity to hear the full range of an artist's work as when you're buying an album. There's value in being exposed to things you didn't know you want. When you walk down the street, you have experiences that are unplanned and accidental that may expose you to new ideas, new things... it isn't just a matter of running an errand, or achieving a specific goal. It's about the accidental things that happen to you along the way.
see also: Musician and artist David Byrne, known most widely as co-founder of the Talking Heads, has just launched an internet radio station that streams the music he digs....

Going Grokster

Andrew Raff: Going Grokster

Monday, March 28, 2005

Grokster Preview: Piracy v. Spending

Katherine Kirkman, of Wilson Sonsini Goodrich & Rosati and the Silicon Valley Media Law Blog has this post on Grokster:
The BSA brief notes that it has both compelling interests in copyright protection as well as in technological innovation. It cites the estimated annual piracy figures of $7.2 billion in the content industry and $32 billion in the software industry. However it contextualizes these losses by comparing them to the $500 billion that the Department of Commerce estimates is spent annually on IT hardware and software procurement in the U.S., and to the $1 trillion in annual sales of U.S. information technology companies and their overseas affiliates.
Excerpted from Tech industry weighs in on Grokster.

Edward W. Felten on Grokster Eve

Excerpted from A (True) Story for Grokster Eve:
Recently I met a promising young computer scientist, whose name I will withhold for reasons that will soon be evident. He has developed a very interesting network software system that would be useful for a great many legitimate applications. I was impressed by his system and wondered why I hadn't heard of it before.

The reason, it turns out, is that he isn't sure he wants the public to find out about his research. He says this, even though his work would probably be of interest to many people, and could be useful to far more. The problem, he told me, is that if too many people find out what he has done and realize its value, some of them may start using it for illegal purposes. He doesn't want that kind of trouble, so he is avoiding bringing his work to the attention of the broader public, publishing it in research venues where a small community of experts will see it, but avoiding any further disclosure.


The Supreme Court, in deciding Grokster, can make his problem much worse. Or it can give him the confidence to proceed with the development and application of his great ideas. Let's hope the Court chooses wisely.

P2P is not a threat: Japan

Japanese Study Finds P2P Has No Impact On Sales: Study shows that the most popular P2P application in Japan, has no effect on CD sales. In fact, the study found that P2P helps to promote music sales and allows for new music discovery. [via BNA]
* English translation pdf
* Japanese report html
* P2P is not a threat
* File Sharing Studies
* File-sharing isn't killing record sales
* Pew Study Induces Infringement

Would Dilution Bill Affect 'Barbie Girl'-type Cases?

Marty asks. You answer.

* First impressions of the Trademark Dilution Revision Act (H.R. 683)
* EFF: Stop the Trademark Act from Diluting Free Speech!

Post Grokster Meetup: Copynight

There will be a copyfighter meetup in New York on March 29th (the day of the Grokster arguments before the Supremes) - CopyNight.

Myself, CRC, Andrew Raff and Tim Marman are slated to be in attendance.

update: I have a mandatory CLE tomorrow night.

Tomorrow is Grokster Day

* NYT Op-Ed: When David Steals Goliath's Music -- New York Times Editorial Board Blows It on Grokster and Lessig

* New Yorker Profile Provides Some Insight on Oral Arguments

* A Supreme Court Showdown for File Sharing

* Supreme Showdown for P2P's Future

* FAQ: Betamax--tech's favorite ruling

More: Monday’s Complete Grokster Roundup

Sunday, March 27, 2005

Mark Cuban on Grokster

Let the truth be told…MGM vs Grokster [via]:
Unless Grokster loses to MGM in front of the Supreme Court. If Grokster loses, technological innovation might not die, but it will have such a significant price tag associated with it, it will be the domain of the big corporations only.

It wont be a good day when high school entrepreneurs have to get a fairness opinion from a technology oriented law firm to confirm that big music or movie studios wont sue you because they can come up with an angle that makes a judge believe the technology might impact the music business. It will be a sad day when American corporations start to hold their US digital innovations and inventions overseas to protect them from the RIAA, moving important jobs overseas with them.

Thats what is ahead of us if Grokster loses. Thats what happens if the RIAA is able to convince the Supreme Court of the USA that rather than the truth, which is , Software doesnt steal content, people steal content, they convince them that if it can impact the music business, it should be outlawed because somehow it will. It doesnt matter that the RIAA has been wrong about innovations and the perceived threat to their industry, EVERY SINGLE TIME. It just matters that they can spend more then everyone else on lawyers. Thats not the way it should be. So , the real reason of this blog. To let everyone know that the EFF and others came to me and asked if I would finance the legal effort against MGM. I said yes. I would provide them the money they need. So now the truth has been told. This isnt the big content companies against the technology companies. This is the big content companies, against me. Mark Cuban and my little content company. Its about our ability to use future innovations to compete vs their ability to use the courts to shut down our ability to compete. its that simple.

Upcoming events

Here are some upcoming events beyond the Grokster and Brand X oral arguments that will focus on copyright law and policy and may be of interest:

The Future of Music Coalition is hosting DC Policy Day Seminar on April 12:
On Tuesday, April 12 join us in Washington for a DC Policy Day.  This will be like a one-day version of our Policy Summit, but with a laser-beam focus on four issues that are emerging in the Courts, Congress and at the Copyright Office.  By bringing together key stakeholders – musicians, advocates, policymakers, technologists, academics – we will once again generate a meaningful, well-balanced discussion on the issues that will impact musicians and the music community in 2005 and beyond.
Speakers include FCC Commissioner Jonathan Adelstein, Representative Diane Watson (D-CA), Jule Sigall (Associate Register for Policy & International Affairs, US Copyright Office), John Simson (Executive Director, SoundExchange), Gigi Sohn (President, Public Knowledge).

The Signal or Noise II conference will be held in Ames Courtroom, Austin Hall on the Harvard Law School campus on April 8, 2005.

Q the Lawyers

A report in the online Financial Express says that Nissan is suing Audi over "Q." To wit: “We are seeking to bar Audi from using any names that could infringe on Nissan’s right over the letter ‘Q’,” she added.

Quazy. It's been ten years since the Supreme Court said that if you establish secondary meaning, you can have trademark rights in a certain color. But I guess when you can't win back your own name in trademark litigation, you may as well try for an entire letter of the alphabet.

According to Marty Schwimmer, cited in this article, Nissan could win if it convinces the court of its right to a "family" of trademarks. This "family" of trademarks concept is another judge-created doctrine that, in my humble mind, is a troubling per se species of trademark dilution that is allowed in through the infringement door and therefore avoids the more stringent test (e.g., fame, commercial use, registration) required in order to prove (federal) dilution -- tests which are about themselves ab out to become even weaker if Congress again asks only "how high?" to trademark owners in this "branders take all" environment.

Not to worry, though. If Nissan wins, there will still be 25 letters left for everyone else.

Saturday, March 26, 2005

Torrent of MGM v. Grokster briefs

Dear various P2P folks,

This is a torrent of all of the briefs submitted re: MGM v. Grokster, in the zip format provided on the U.S. Copyright Office site. It is downloadable there, but I figured someone should put a torrent of it out there for the sake of it (and someone probably already has, but I couldn't find it if they did).

Torrent Link: torrent
Size: 20.7 MB
Files: 74 files
Source: U.S. Copyright Office, MGM v. Grokster Page (

/s Thad Anderson

Grokster Preview: Meet the Lawyers

• Donald Verrilli Jr., the Jenner & Block partner and former William Brennan Jr. clerk who has played a dominant role in nearly every telecommunications case before the Court in recent years, will argue in favor of copyright protection for the movie and music industries in the Grokster case.

• Opposite Verrilli will be Richard Taranto, whose low-tech D.C. firm Farr & Taranto doesn't even have a Web site. The former clerk for Justice Sandra Day O'Connor will argue on behalf of high-tech Grokster and StreamCast that their file-sharing software does not violate copyright.

• Acting Solicitor General Paul Clement, a former Scalia clerk, will argue along with Verrilli in the Grokster case.
Excerpted from Top Attorneys Tapped for High Court Tech Cases (Tony Mauro, Legal Times, 03-28-2005)

Friday, March 25, 2005

Fiona Apple on P2P File Sharing

If it wasn't for the internet, noone would ever have heard [Extraordinary Machine] -- not sure if she actually said that, but I'm guessing she would if I could reach her for comment.

I almost forgot, indie artists heart file-sharing too.

see: Fiona Apple's Unreleased Album is a Hit and Fiona on Google [via]

see also: Wilco

Doron Ben-Atar on Grokster

Unable to go after actual violators of their intellectual property, the studios target P2P developers whose programs, among other things, facilitate some piracy. But it is impossible to contain the abuse of technology without undermining the free flow of knowledge that is the prerequisite for innovation. In order to prevent 12-year-olds from downloading their favorite movie, the plaintiffs and their allies in the Justice Department are threatening our most cherished economic assets -- the public sphere of knowledge and the conditions of intellectual exchange. Shutting down software companies that develop file-sharing technologies will only push programming into other national jurisdictions. The United States can stay ahead of its competitors only by remaining the world's leader in innovation and creative entrepreneurship. Protecting the culture of innovation and allowing P2P development to take place in the United States are in the true interest of the nation.
Excerpted from Hollywood Profits v. Technological Progress [via]

Jonathan Zittrain on Use of Copyrighted Work

Jonathan Zittrain is attributed by the NYT as saying that:
there is no obvious historical analogue to the scattershot subpoenaing of individuals in copyright law enforcement, which has traditionally been aimed at businesses or people who are profiting from illegally copied material.
Subpoenas Sent to File-Sharers Prompt Anger and Remorse (July 28, 2003)

Mr. Zittrain is drawing two distinctions here. The first is between use of the copyright and use of the work. A competitor uses the copyright, whereas a consumer simply uses the work. The second is that historically, copyright is a tool used against businesses i.e. competitors, i.e. the person selling pirated copies on the street, and not against consumers.

A Note on Fair Use
To further validate these points we can look at the fair use doctrine:
As originally promulgated, the fair use doctrine was a fair "competitive" use doctrine designed to enable a rival author or publisher to use a copyrighted work in preparing another publication.
Therefore, the doctrine applied only to competitors, not consumers. [cite] What this means:

1. If consumers don't use the copyright, then there can be no copyright infringement.
2. If copyright law hasn't been enforced against consumers for centuries, then can it be fairly be applied against them now?

Originally: Should consumers be treated the same as competitors?

Professor L. Ray Patterson on File Sharing

As Professor L. Ray Patterson explains:
The competitor uses the copyright; the consumer uses the work. The copyright owner, by reason of the Copyright Act and the copyright clause, has not only no right to interfere, but a duty not to interfere with the consumer's use of a publicly disseminated work.
In the course of copyright legislation and through a drafting error that occurred at the time of the 1909 act fair use was now being applied to consumers where previously it had only applied to a competitor’s use or piracy:
As originally promulgated, the fair use doctrine was a fair 'competitive' use doctrine designed to enable a rival author or publisher to use a copyrighted work in preparing another publication. Therefore, the doctrine applied only to competitors, not consumers.
Therefore an individual user should not be liable for copyright infringement unless their actions rise to the level of commercial copying and distribution for profit. Commercial P2P file sharing networks are competitors.

Consumers are not competitors. Copyright law should not apply to consumers use of the work -- whether that be distribution or downloading; so long as that use remains non-commercial.

Originally: P2P File Sharing is Non-Competitive Use of the Work

Thursday, March 24, 2005

Thomas Edison on Copyright Control

False Positives points us to an excellent quote from a recent article on the peer-to-peer showdown: - Illegal file-sharers under attack

The music business should have stuck by Thomas Edison’s technology if it wanted to avoid the threat of piracy. His wax cylinders could record a performance but could not be reproduced; that became possible only with the invention of the flat-disc record some years later.
This reminds me that I should have quoted from that WSJ $ article cited previously:
Supreme Court Hears Two Key Internet Cases

But technology companies and some independent analysts warn such a decision would chill investment in new products and services that, for instance, allow consumers to share content between their own household devices like digital video recorders and laptops.

P2P is not a threat

RIAA: After declining for four consecutive years, the number of CDs shipped domestically from record companies to retail distribution channels rose 5.3 percent -- a 2.7 percent increase in value -- in 2004, compared to the previous year.

A detailed breakdown of these statistics can be found here [pdf].

update: Japanese Study Finds P2P Has No Impact On Sales
Study shows that the most popular P2P application in Japan, has no effect on CD sales. In fact, the study found that P2P helps to promote music sales and allows for new music discovery. [via BNA]
* English translation pdf
* Japanese report html
* File Sharing Studies
* File-sharing isn't killing record sales
* Pew Study Induces Infringement

Pew Study Induces Infringement

The 463 pointed me to a new Pew study that says regardless of the outcome of Grokster Americans will find ways to share music:
About 36 million Americans—or 27% of internet users—say they download either music or video files and about half of them have found ways outside of traditional peer-to-peer networks or paid online services to swap their files, according to the most recent survey of the Pew Internet & American Life Project.
[link to pdf of Report]

Cyberlaw in the Supreme Court

April 30, 2005
Stanford Law School

Registration now Open!

On March 29, 2005, the U.S. Supreme Court will hear arguments in two cases that together will greatly determine how government can and will regulate the Internet in the future, and the impact that the public interest will have on the development of cyberlaw over the next decade.

In MGM v. Grokster, the Court will decide whether copyright holders can veto consumer electronics and computing innovations that upset the content industries' prevailing business models, even where the technology's non-infringing uses provide substantial benefits to consumers. The question is whether consumer demand for new and better products will drive technological development, or copyright owners' demand for control will retard it.

In Brand X v. FCC, the Court will decide whether the FCC should retain the option to regulate cable modem services to promote open access to broadband lines, universal service and network neutrality, as it did in the early days of the Internet when most people connected over common-carrier telephone lines. The question is whether tomorrow's communications services will be defined by citizen choices or by the business interests of a handful of cable broadband companies.

At Cyberlaw in the Supreme Court, the Stanford Law School Center for Internet and Society will convene a discussion of these cases, their broader implications, and what effect the pending Supreme Court decisions could have on the public interest. Panels of attorneys litigating and arguing these cases, the parties affected by them, the policy advocates whose work will begin once the Judges rule, and the people thinking about what the legal landscape will look like for the next ten years will discuss both cases and the impact the decisions will have on the future.

Register at:

Thurston Moore on Grokster

For those of us who think that digital delivers a harsher sound than analog, it's a sonic nightmare dealing with the new world reality of MP3s. They're even more compressed and harsh than CDs, and in the case of vintage grooves - be it Led Zeppelin, Bad Brains, or Pavement - sound even more detached from musical vibration.

But even if MP3 music sounds lame, as long as it's recognizable in form, free, and shareable, it's here to stay.

Once again, we're being told that home taping (in the form of ripping and burning) is killing music. But it's not: It simply exists as a nod to the true love and ego involved in sharing music with friends and lovers. Trying to control music sharing - by shutting down P2P sites or MP3 blogs or BitTorrent or whatever other technology comes along - is like trying to control an affair of the heart. Nothing will stop it.
Adapted from Mix Tape: The Art of Cassette Culture, edited by Thurston Moore, to be published by Universe in May.

[ed.: Sonic Youth f*n rocks!]

Grokster Preview: 4 Days til Grokster

8/19/2004: Ninth Circuit Affirms Grokster

Read the decision. [pdf] [html] [txt]

Andrew Raff reports: Ninth Circuit Affirms Grokster. Ernest Miller rounds up. What does Wilco have to do with the decision? Answer. Ernest Miller has an audio show on MGM Grokster.


2/2/2004: Grokster, Morpheus and the Future of P2P: Judge John Noonan: "So 10% is noninfringing? That sounds like a lot of noninfringing files to me." and "You don't solve it by calling it 'theft.' You have to show why this court should extend a statutory monopoly to cover the new thing. That's your problem. Address that if you would."

Donna Wentworth offers Betamax in the Balance and an audio file of the MGM-Grokster oral argument.

Ren Bucholz compares Betamax oral arg to MGM/Grokster.


4/25/2003: Judge rules in favor of Napster follow-ons: In a case that could turn the tide on online piracy, U.S. District Court Judge Stephen Wilson ruled in favor of online file-sharing services Grokster and Morpheus, saying the two companies are not liable for online piracy by users of their service: "Grokster and Streamcast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights."

METRO-GOLDWYN-MAYER STUDIOS, INC. v. GROKSTER, LTD. (April 25, 2003) (decision Holding That File-Sharing Companies Grokster and Streamcast Networks (Morpheus) Are Not Liable For Contributory Copyright Infringement [pdf]Comment on Slashdot discussion [via Furdlog] states "I know it's long read, but check out the decision. The best bits are:pg 11, lines 1-3; 24, 4-7; 26, 8-15; 31, 22 - 32, 26; 32, 25 - 33 2"

Wednesday, March 23, 2005

outragedmoderates cited by MGM v. Grokster amicus briefs

Wanted to pass on some news regarding, a site I discussed last summer regarding substantial non-infringing uses of p2p.


Law school student's blog cited by MGM v. Grokster amicus briefs

Queens, NY – Thad Anderson, a second-year student at St. John's School of Law, learned that his political blog is cited in two of the amici curiae briefs submitted to the Supreme Court regarding the MGM v. Grokster case (scheduled for March 29th).

Briefs submitted in support of the respondents by the American Civil Liberties Union and Free Software Foundation and New Yorkers for Fair Use cite's Download For Democracy campaign – which uses P2P networks to distribute government documents – as an example of a "substantial noninfringing use" of the controversial technology.

The ACLU brief states that provides access to "numerous government documents such as the 9/11 Commission Report, all seventeen of the accompanying staff statements, and the actual testimony of many principal staff members from the Clinton and Bush administrations" (ACLU amici curiae brief, pages 11-12).

The brief also cites a July 2004 Wired article discussing, noting that "[a]lthough these public documents are available from other sources as well, the nature of peer-to-peer technology makes it much easier - and quicker - to access and view the documents, many of which are quite lengthy and otherwise difficult to locate."

According to the Wired article: "Anderson said that seeing the documents themselves, rather than reading about them through the filter of a news article, has a greater impact. 'It's a very direct and primary source when you read (these documents) without any spin,' he said. 'Unlike a Michael Moore film, there is no dramatic music being played. You're sitting there looking at it on your computer, and it's a great way for people to make up their own minds about things.'"

Despite the high-tech nature of the MGM v. Grokster legal battle, Anderson says that he inherited his belief in freedom of speech and open government from a decidedly old-fashioned source: his family's roots in North Carolina. Anderson was born and raised in Raleigh, NC, and his grandfather and great-grandfather are characters in Tim Tyson's critically-acclaimed 'Blood Done Sign My Name," which tells the story of a racially-motivated murder in Oxford, North Carolina.


Andrew Zangrilli, blogbook, bothers to pull the cites:
First citation:
(discussing the website, which contains hundreds of government and court documents and makes them available for download through peer-to-peer networks).

Second citation:
See (last visited Feb. 24, 2005).

The Free Software Foundation and New Yorkers for Fair Use brief contains the second double mention of

First Citation:
In the Table of Authorities, the blog is listed under the Other Materials section, as

Outraged Moderates: Government Document Archive
GovernmentDocumentLibrary.html (2004) . . . . . . . . . . 11

Second Citation:
Footnote 9 . . . see also Outraged Moderates: Government Document Archive at http:
// (2004)

6 days til Grokster

* Will the Betamax Rule Go the Way of the Betamax?
Some Pre-Grokster Positioning: Furdlog points to this paper to read: Time for the Recording Industry to Face the Music: THe Political, Social and Economic Benefits of Peer-to-Peer Communications Networks [cited in CNet News’Consumer groups challenge Hollywood, labels]
* Ninth Circuit Affirms Grokster
* WSJ: Supreme Court Hears Two Key Internet Cases
* tag
* technorati tag

Tuesday, March 22, 2005

Countdown to the Grokster Argument

EFF is presenting a Betamax-protected device every (week)day until March 29:
Ever since the Betamax ruling in 1984, inventors have been free to create new copying technologies as long as they are capable of substantial noninfringing (legal) uses. But by the end of this year, all that could change. In MGM v. Grokster, Hollywood and the recording industry are asking for the power to sue out of existence any technology that appears to be a threat, even if it passes the Betamax test. That puts at risk any copying technology that Betamax currently protects as well as any new technologies Hollywood doesn't like.

Monday, March 21, 2005

Grokster Preview: News Roundup

* Lee Gomes: If Studios Get to Curb TV Shows on the Web, Let's Ask Quid Pro Quo [wsj]

* Marcia Coyle: Justices to Weigh Key Copyright Case [via]

* Derek Slater: Nearing Grokster - Petitioners have filed their reply brief in Grokster.

* Denise Howell: WLF Grokster Program Thursday - Thursday morning 3/24, 9:00 - 10:15 a.m. EST, the Washington Legal Foundation will Webcast a program in its "Media Briefings" series, titled "MGM Studios, Inc. v. Grokster, Ltd.: Can the Court Advance Innovation while Protecting Property Rights?"

Grokster Preview: VCR is the Boston Strangler

Godwin's Law remembers Jack Valenti:

“Home Recording of Copyrighted Works,” Committee on the Judiciary, United States House of Representatives, April 12, 1982

Previous Posts:
* Valenti's Notable Quotables
* MIT interview with Jack Valenti
* Valenti Spews More Copywrong
* Hey Jack, Leave the CONSUMERS ALONE!
* This guy must be buds with Valenti
* Fair Use Disemboweled

IPtelligentsia Podcast

Andrew Raff's podcast looks at MGM v. Grokster, in particular, how the arguments made at oral arguments were reflected in the 9th Circuit ruling.

Friday, March 18, 2005

EFF: Stop the Trademark Act from Diluting Free Speech!

The Trademark Dilution Revision Act (TDRA, HR 683) is a big company's dream. If it passes, the lawyers policing a trademark could sue businesses and individuals for using words, images, or even colors that look vaguely like a famous brand - without even having to prove that the company is being harmed. In other words, TDRA would make it possible for UPS to sue Brown's Record Store, even though nobody in their right mind would get the two confused. This bill would chill speech and hand ownership of common words to big companies. Fight the TDRA today! [via]

Make your voice heard with EFF's action center here.

Text of TDRA here.

see also: Cohen on First impressions of the Trademark Dilution Revision Act (H.R. 683)

More here and here.

First rethink(ip) aloud podcast launched

The rethink(ip) team released its first podcast -- rethink(ip) aloud -- this week. In the initial installment, the team discusses patent reform and the effects of the Knorr-Bremse decision. And there's a Sorocco rant, too!

Download or stream the the podcast here (.mp3 format); feed available here.

Stay tuned for more podcasts - and keep an eye out for even more from the rethink(ip) team (Buchanan, Nipper, Sorocco).

Thursday, March 17, 2005

Hatch to Head Senate Panel on Copyright

David McGuire
Sen. Orrin G. Hatch (R-Utah) will remain at the forefront of the national debate over copyright and illegal downloading after being named to head a new subcommittee on intellectual property. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) today officially christened the panel, which will have jurisdiction over copyright, trademark and patent law, as well as treaties intended to protect American intellectual property overseas.
Can anyone confirm?

Wednesday, March 16, 2005

First impressions of the Trademark Dilution Revision Act (H.R. 683)

Big news for the world of trademark! New legislation is what we do here on the Induce Blog and trademark is fair game. Read on...

In Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 123 S.Ct. 1115 (2003) [PDF] the US Supreme Court dealt a serious blow to the usefulness of the trademark dilution statute in Section 43(c) of the Lanham Act. Typically, dilution claims are used in cases in which a consumer is not truly confused by a trademark's source signification, but they do associate a famous senior mark and a junior mark in their mind. This is a problem because it leads to the dilution of the distinctiveness of the famous mark through tarnishment (if the association harms the reputation of the famous mark somehow) or blurring (if the association impairs the distinctiveness of the famous mark).

The facts of the Moseley case are basically that the defendant opened up a sex toy shop called "Victor's Little Secret" (at first it was named "Victor's Secret," but was changed in response to Victoria's Secret complaints). Victoria's Secret eventually sued claiming the tarnishment variety of trademark dilution - they did not want their mark being associated with a novelty sex shop. The Supreme Court accepted the case in order to clear up a circuit split on the issue of what degree of proof was necessary in order to show dilution - was actual proof needed, or was likelihood of dilution enough? The Supreme Court went with an actual proof of dilution requirement, despite the apparent difficulty of producing such proof. Some commentators considered the entire dilution cause of action had been made irrelevant by the decision - it's use was certainly greatly limited.

As could be expected, owners of famous marks (the only trademarks that may take advantage of the anti-dilution statute) were very unhappy. They went to Congress to overturn the ruling and they appear to be on the verge of success via the Trademark Dilution Revision Act of 2005 (H.R. 683). The TDRA completely overturns the Moseley opinion and fixes up some lingering issues in the circuits. It is also noteworthy that it specifically protects First Amendment rights while broadening trademark protection for famous marks.

Here, I'll just go through a few of the obvious changes the TDRA makes to Section 43 of the Lanham Act, these are my first impressions upon reading it:

(1) Establishing a lower burden of proof on the plaintiff-owner of a famous mark by using a "likely to cause dilution" standard as opposed to an "actual dilution" standard. In Section 2(1)(c)(1) the TDRA would allow for injunctive relief against a defendant who uses a famous mark in such a way "that is likely to cause dilution..."

(2) The TDRA makes clear that there can be actions for both tarnishment and blurring. Whether there was a tarnishment action left after Moseley had been questioned. Section 2(1)(c)(1) of the TDRA states that a plaintiff is "entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury." The TDRA even defines blurring and tarnishment in their own sections - 2(1)(c)(2)(B) & (C) respectively.

(3) The TDRA overturns a quirky Second Circuit rule that a mark would only be considered "famous" for the purpose of a dilution action if it was "inherently distinctive" (arbitrary or fanciful, i.e. made up words like Xerox or Google) as opposed to a mark that has gained fame through use (but perhaps is only "merely descriptive"). See Savin Corp. v. Savin Group, 391 F.3d 439 (2d 2004) to see the Second Circuit discuss this. TDRA Section 2(1)(c)(2) states that "a mark is famous if it is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner." It then lists factors to consider that do not include a determination of the classification of the mark as inherently distinctive or otherwise.

(4) The TDRA makes special exclusions to the dilution action in recognition of the basic First Amendment concerns that the dilution statute raises by broadening the classes of protected marks. This is interesting because it seems to be an acknowledgement of those concerns and could be understood by the courts to mean that Congress wants them to be fairly strict with dilution.
- TDRA Section 2(1)(c)(3)(A) provides an exclusion for comparative advertising.
- TDRA Section 2(1)(c)(3)(B) provides exclusions for brand identification for fair use purposes of parody, comment, and criticism.
- TDRA Section 2(1)(c)(3)(C) provides exclusions for news reporting and commentary.

I have yet to see much commentary on the TDRA. I hope this heats up the conversation. If anyone knows of a place to find more info drop it in the comments.

Here is a link to the House hearings on the TDRA.

For a great overview of the dilution action as it currently exists see "Federal Dilution Claims after Moseley v. V Secrets Catalogue," by Howard J. Shire and Michelle Mancino Marsh, published in the INTA Trademark Reporter.

FECA skips through to the House

ALA: "The House Judiciary Committee of the U.S. Congress passed S. 167, [Family and Entertainment Copyright Act of 2005] that had been approved by the Senate on February 1. The full House is expected to pass the bill soon. [FECA] picked up a number of provisions that were included previously in Senate and House copyright bills in the 108th Congress that did not pass."
Title I of the bill criminalizes the unauthorized recording of motion pictures in a movie theatre. Title II makes clear that consumers who use technology in their homes to skip over offensive material in motion pictures are not infringing copyright. Title III reauthorizes the National Film Preservation Board and the National Film Preservation Foundation, and will help ensure the preservation of our national film heritage. Title IV of the bill, the “Preservation of Orphan Works Act,” would amend Section 108 of the Copyright Act to allow libraries to engage in preservation, scholarship and research of musical works, motion pictures, and other audiovisual works during the last 20 years of their copyright term.

DMCRA Reintroduced

ALA: "Congressmen Rick Boucher (D-VA), John Doolittle (R-CA) and Joe Barton (R-TX) re-introduced the fair use bill, H.R. 1201, the Digital Media Consumers Rights Act of 2005."

The Digital Media Consumers’ Rights Act attempts to restore the historical balance in copyright law post Digital Millennium Copyright Act (DMCA), to re-establish the Betamax standard and restores valid scientific research.

The text of the bill will be available soon at

Tuesday, March 15, 2005

Update on broadcast flag

There was an additional briefing this morning before the U.S. Appeals Court for the D.C. Circuit in the case against the FCC’s broadcast flag regulatory regime.

At oral argument on Feb. 22, Judge David B. Sentelle was concerned whether some of the parties, including including Public Knowledge and the American Library Association, had standing to bring suit.

The court issued an order today directing the parties to file affidavits and brief briefs on the standing issue. Stay tuned.

Because of programs like Bit Torrent, we may see more INDUCE Act styled legislation even if Grokster loses.

Bit Torrent is not the easy target that Napster and Grokster have provided to copyright owners. Legitimate uses of it are not a mere token amount as they are with Grokster, plus it doens't point you to other users who have Torrent files, you have to go find them yourself. Will major copyright owners be forced to embrace it (or something similar) to distribute content or will they try to defeat it through new legislation? The Grokster decision probably will not be broad enough to capture Bit Torrent even if it turns out that Grokster gets a spanking. An INDUCE Act type bill may do the trick though - assuming such legislation narrows the Sony Betamax (substantial non-infringing uses) doctrine and lowers the intent/knowledge/ability to control standards for third party liability copyright infringement.

Even if Grokster loses their appeal we'll see INDUCE Act style legislation proposed again. Copyright owners can make the easy argument that legislation is the only way to deal with fast-changing technology, the technology must be killed off at inception, because the courts simply are not quick enough to deal with the resulting problems that it causes. Grokster is a case in point - it isn't even a very popular file sharing network anymore, people have moved on to new technologies already, ones that will not be covered in the Grokster decision because their facts for litigation purposes are substantially different than those the Grokster case presents. So while copyright owners may well score a big victory at the Supreme Court in the Grokster case, they are unlikely to achieve the ultimate goal of stopping file sharing- they'll only stop a certain type of file sharing. They'll have to go back to Congress.

Read more about Bit Torrent's legal situation here:
Yahoo! News - BitTorrent May Prove Too Good to Quash

free access to public info to be restricted

Cory Doctorow:Public non-copyrighted information is going to be subjected to controls and restrictions...
the Government Printing Office, is proposing a new set of policies that will drastically reduce free access to government information. Three librarians from the University of California San Diego have written an article about the details."

Friday, March 11, 2005

Cal-Induce Bill Morphs Into Filtering Mandate

Edward W. Felten: A bill in the California state senate (SB 96), previously dubbed the "Cal-Induce Act," has now morphed via amendment into a requirement that copyright and porn filters be included in many network software programs....

Why did Dems support bankruptcy bill?

Campaign contributions from K Street says a House Democratic staffer.

KOS: "Groups that lack steady conflict with the labor-enviro-lawyer triumvirate offer the most attractive targets. That's why Dems end up cozied up to the technology and financial services industry"


iPods, V-Chips and Media Overload Legislation

Techdirt writes that there is new legislation being introduced by three Senators to research the impact on kids being exposed to consumer electronics products and media all the time. [bmn]

see also Study Shows Ever More Kids Embrace a Plugged-In Lifestyle and Will Your iPod Get A V-Chip

[ed.: legislation is not necessary - I can regulate my own kids thank you Hill.]

Wednesday, March 09, 2005

Digital Music Licensing and §115 hearing

Yesterday, the House Judiciary Committee Subcommittee on Courts, the Internet, and Intellectual Property held an oversight hearing on Digital Music Licensing and Section 115 of the Copyright Act. The Subcommittee heard testimony from Wood Newton (Songwriter, Nashville, Tennessee), David Israelite (President and Chief Executive Officer, National Music Publishers' Association), Larry Kenswil (President, eLabs, Universal Music Group) and Jonathan Potter (Executive Director, Digital Media Association). A webcast is available.

Friday, March 04, 2005

More Briefs filed

PDF: mentioned in Free Software Foundation's amicus brief on Grokster case! (footnote on page 17; the whole brief is an inspiring read) [via]