Next, Legalization of Blindfolds

Hmm, how will the politically correct spin this one? The President has signed the Family Entertainment and Copyright Act into law, a bill that legalizes a device that can be set to filter not-nice content from DVD's. It works on the hardware side. (See this earlier post.)

Naturally, Hollywood is horrified at its inability -- rare -- to get a piece of the action:

The legislation came about because Hollywood studios and directors had sued to stop the manufacture and distribution of such electronic devices for DVDp layers. The movies' creators had argued that changing the content — even when it is considered offensive — would violate their copyrights.

Yell "protect creators" and Hollywood usually gets its way. Here, however, it was up against the cultural (or "religious") right and "the family" (I'm one of them, by the way. I like the idea that I might be able to make these works kid-friendly, though I'm skeptical it will meet my family's own standards). Evidently this legislation managed to get painted the colors of apple pie, Mother and baseball and was beyond Tinseltown's clutches.

Kind of a conundrum for the reactionary left here. On the one hand, this is a blow against the Machine, a content-wants-to-be-free, I-bought-the-damned-DVD-I-didn't-license-it sort of thing. It's also ridiculously logical and, really, the height of chutzpah to oppose. Do I need Michael Eisner's permission to adjust the bass when I watch "Finding Nemo"?

On the other hand, ewww, who's behind it? The censors, the believers, the witch-hunters! (The hypocrites!) It will be interesting to see how this falls out.

109th Congress dives into patent reform

Earlier this week, the House Subcommittee on Courts, the Internet, and Intellectual Property held the first oversight hearing on the issue of patent reform. In his opening statement, Chairman Lamar Smith flatly stated that a reform bill will be introduced soon, possibly this Spring.

The hearing was designed to gauge the level of support for a Committee Print of a working draft bill and included witnesses representing a cross-section of patent system users (biotech, software, patent owners generally, and attorneys).

Visit this Promote the Progress post for an analysis of the hearing.

Family Entertainment and Copyright Act

Denise Howell: "According to the L.A. Times, President Bush is expected to sign a fascinating piece of legislation, the Family Entertainment and Copyright Act."

HRRC Endorses the Digital Media Consumers' Rights Act

The Digital Media Consumers' Rights Act (DMCRA), H.R. 1201, was reintroduced earlier this year in March.

Last week, the Home Recording Rights Coalition (HRRC) annnounced its support:

[The HRRC] announced its endorsement of The Digital Media Consumers' Rights Act of 2005 (H.R. 1201). This legislation would codify into U.S. law the vital standard announced in the Supreme Court's landmark 1984 Betamax decision. It would also assure "fair use" protection under the Digital Millennium Copyright Act (DMCA) for consumers, libraries, universities, archivists, and other lawful users of copyrighted works. . . .

HRRC Chairman Gary Shapiro underscored the need for H.R. 1201's Betamax codification provision:

"For innovation and for consumer freedom, the doctrine originally announced in the Betamax case is the magna carta and the Declaration of Independence rolled into one. Without the protection of this doctrine - that it is not a copyright violation to manufacture or distribute a product capable of substantial noninfringing uses - large corporate content providers would exercise a veto over every new function of every new product."

More: HRRC and H.R. 1201.

More on Gov and Bittorrent

As many of you know from my prior posts, outragedmoderates.org uses P2P to share government documents.

Recently, outragedmoderates.org has discovered that DOJ.gov and USCOURTS.gov have been visiting his site for the past several days (as well as some people from the NASA, the FCC, the FDA, CENTCOM.mil, and DISA.mil).

I have included links to several of outragedmoderates.org torrents for download. According to outragedmoderates.org, 790,000 pages of government documents have been downloaded since mid-February.

BitTorrent Links:
* Grokster briefs (20.7 MB - all 74 of the briefs submitted to the Supreme Court re: MGM v. Grokster)
* Betamax Legal Docs (4.7 MB - 41 legal documents and briefs from\r\nthe Supreme Court\'s 1984 Betamax decision from the Electronic Frontier Foundation)
* Betamax Oral Arguments - (52.7 MB - 2 mp3s of the oral arguments in the Supreme Court's 1984 Betamax decision from the Electronic Frontier Foundation)

US govt uses BitTorrent

Cory Doctorow: Adam sez, "First Bittorrent hosted off a .gov domain. Tracks the releases of World Wind since it was saturating the bandwidth of the direct download." Link (Thanks, Adam!)

Grokster Oral Argument Transcript

Derek Slater advises that The Challenge of P2P blog has posted the Grokster oral argument transcript.

see also: mgm grokster transcript (not pdf)

Grokster and the INDUCE Act

CNet News reports:

In the course of [the Grokster] hearing, several of the justices appeared interested in finding a middle ground that would focus on companies that actively encouraged, or "induced," copyright infringement.

A similar idea was at the core of last year's debate over the "Induce Act," a U.S. Senate bill sponsored by the record labels and staunchly opposed by much of the technology world. . . .

The inducement idea hinted at by the court could open new vistas in copyright law, drawing a line for acceptable behavior in the technology world which has remained ambiguous for years. . . .

The trick is to figure out exactly what "inducement" might mean.

Commenting on the above article, Freedom to Tinker writes:

There's a big difference between the Induce Act and the kind of narrow active inducement standard that was suggested to the court. Indeed, the main advocate to the court of an active inducement standard was IEEE-USA, which testified against the Induce Act. Here, as always, the details matter. A decision by the court to adopt an active inducement standard could be very good news, or very bad news, depending on the specifics of what the court says.

The worst case, in some respects, is probably the one Fred von Lohmann mentions in the article, in which the court endorses the general idea of an inducement standard, but doesn't fill in the details. If that happens, we'll be stuck with years and years of litigation to figure out what the court meant.

Prior post: Grokster and the Active Inducement Test (Apr. 3, 2005).

Wannabe Lawyer on Piracy

Han: Why "Piracy" is the biggest strawman of them all

House hearings on digital music interoperability

Today, the House Subcommittee on Courts, the Internet, and Intellectual Property held an oversight hearing concerning Digital Music Interoperability and Availability with Mr. Mark Cooper (Director of Research, Consumer Federation of America), Mr. Ray Gifford (President, The Progress & Freedom Foundation), Dr. William Pence (Chief Technology Officer, Napster), Mr. Michael Bracy (Policy Director, Future of Music Coalition).

Update on House IP Subcommittee Hearing on Digital Music Interoperability

In Response to "Morally Wrong"

Barry Ritholtz: New Arguments Against P2P: The Phony Moral Debate [via IP]

MGM's margins on DVD sales are 50-60 percent

Andrew and Tim told me that this was on boingboing, but I just saw it via http://www.siliconvalley.com/:

For an industry under dire threat from piracy, DVD vendors are doing quite well financially. According to a slide presentation posted, mistakenly I presume, to a publicly accessible portion of Metro Goldwyn Mayer's Web server, the DVD market is quite robust. Between 2002 and 2003, MGM saw a 40 percent increased in DVD shipments in North America, and a corresponding 53 percent increase worldwide. And get a load of the proft margins. MGM's margins on DVD sales are 50-60 percent.

http://www.mgm.com/mgm/images/corporate/ppt_report/P01_030402.jpg
http://www.mgm.com/mgm/images/corporate/ppt_report/P02_030402.jpg
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The Copyright Office comes to New York

Tim Marman has to inform me about what's going on at my own Alma Mater:
The Copyright Office comes to New York

For the second year, the Copyright Office is holding a NYSBA event in NYC on Thursday, April 21st at Cardozo Law School. Speakers will include Marybeth Peters (Register of Copyrights), David Carson (General Counsel), and Jule Sigall (Associate Register for Policy & International Affairs), all of whom spoke at the Fordham IP conference. See the brochure for more details or get out the registration form.

Two on Grokster from Copyfight

Grokster As a Lovers' Tiff: The arguments of both sides in MGM v Grokster, told as a quarrel between lovers.

Induce: The Second Coming?: Alex Halderman's inaugural post @ Freedom to Tinker provides his reflections on the Supreme Court arguments in Grokster (which he attended personally):

"What most surprised me was that several Justices repeatedly asked about a standard barely mentioned in the main briefs from either side: a so-called 'active inducement' test...The Induce Act, debated in Congress last summer, would have created a test based on an inducement theory, but it was widely criticized for giving copyright holders too much control over new technologies and making it too easy for them to bring frivolous lawsuits."

Are the Justices hinting to Congress?

Grokster and the Active Inducement Test

Alex Halderman has written an excellent post at Freedom to Tinker titled Grokster: The Case is Submitted. Halderman, who attended the the Grokster arguments, first comments on his observations.

Halderman then writes about the possibility of the Supreme Court adding an "active inducement" test to Sony's "substantial noninfringing uses" test:

I think it is plausible that the Court will craft a narrow active inducement test resembling the IEEE proposal. This is likely for several reasons. Such a test would be neutral with respect to technology, thus creating a precedent applicable to much more than peer-to-peer file sharing. It would be responsive to the worries of technologists by clearly defining how innovators would need to act to avoid liability, yet it would also allow the courts to hold Grokster accountable because of its past encouragement of infringement. Inducement would function as a parallel category of liability complementing Sony, so the Court could leave the celebrated Betamax test intact. With both rules in place, defendants would need to demonstrate substantial non-infringing uses of their products and refrain from overtly encouraging infringement.

Check out the rest of Halderman's post.

More: IEEE Amicus Curiae in Support of Neither Party [pdf] (including IEEE's proposed "active inducement" test).

More: Cross post at EEJD (including additional information).

Comparing Grokster to Atlas Shrugged

Taylor Buley at Fresh Politics compares the Grokster case to the trial of Hank Rearden in Ayn Rand's Atlas Shrugged:

For me, this case fully embodies the trial of Hank Rearden in Ayn Rand’s novel of biblical proportions, Atlas Shrugged. In this scene Hank Rearden - a proud and successful capitalist who has invented a new, better metal to replace iron – is legally confronted by the government to coerce him to share his innovation, under the obscure banner of 'public good.'

After providing an excerpt from the novel, Buley continues:

This court case is all about property. Defendants of P2P technology cast it as a fight for individual rights to download content and control technology, but this is a logical red herring meant to unravel the political underpinnings of this case. It is indeed about personal freedom, but it’s the freedom to produce rather than the freedom to consume.

Tim Marman is Blogging the Fordham IP Conference

* Constitution and Copyright & Orphan Works

* Copyright Exceptions and Defenses in the Digital Age

[via Loosely Coupled // Tim Marman's Weblog]

Related: Lawmeme is blogging this weekend’s conference at Yale on Information as Governance

Ed Foster on What Could Have Been

Looks like bad news for RIAA and MPAA.

U.S. Supreme Court
April 1, 1905

[...] Therefore, in the matter of defendant Thomas Alva Edison versus respondent the Book Authors Guild and respondent the Sheet Music Publishers Association, this court unanimously concurs with the lower court’s decree.

In inventing and offering for sale his “moving picture” and “phonograph” devices, the defendant induced countless infringing acts against the holders of copyrights for books and music [...]

All “record” companies and “film studios” most disgorge their ill-gotten gains and henceforth cease and desist all operations now and forevermore.

Excerpted from Copyright Decision Deals Blow to New Technology [via]

Prof. Wendy J. Gordon on Copyright

[Ed. note: This was originally published in the WSJ.]

Twenty years ago, the Supreme Court refused to hold a technology liable for its users' copyright infringement. The reason? That the technology (the now-familiar VCR) was capable of a "substantial noninfringing use." As the VCR was so capable, so probably is Grokster. Yet Mr. Olson argues that Grokster and similar peer-to-peer technologies should be held liable for how others use them. If that became the rule, our future might well look different than we expect.

For example, consider this:

"Beam me up, Scotty!"

"No can do, captain. The transporter beam has been shut down by court order. Kids have been using their home transporter machines to zap items off store shelves. To stop the kids, a court is blocking use of the technology altogether. You'll have to find another way to get back. Theft cannot be tolerated, whatever the cost."

In the nonfictional world, we know there's no free lunch. Without copyright putting some restraints on our abilities to copy, we'd lose some of our culture -- but without some restraints on copyright, we'll lose a lot more than we can afford.

Prof. Wendy J. Gordon
Boston
(Ms. Gordon is Liacos Scholar in Law, Boston University School of Law, and Visiting Scholar, MIT, Cambridge, Mass.)

Paul Eberhardt on Copyright Term

Mr. Olson's commentary [Theodore B. Olson, in a March 23 commentary, "Thou Shalt Not Steal,"] is incomplete....

The Framers of our Constitution gave Congress the power to grant copyrights "for a limited time," a phrase that wasn't in your article. For at least a century, that limited time was, at most, 28 years. That limited time for most films is now 95 years. In fact, no commercially significant copyright has been allowed to expire in the U.S. since about 1950....

Paul Eberhardt
Portland, Ore.

Excerpted from WSJ: Innovation and Intellectual-Property Rights, April 1, 2005; Page A11]

Related: Can Justice Scalia Solve the Riddles Of the Internet? [note: almost as good as the NYT op-ed on this subject ;>]