Archive for the ‘copyright’ Category

City of London Police Hijacking Websites Without Court Orders

Thursday, October 10th, 2013

Some scary news out of London. The City of London Police has a new Intellectual Property Crimes Unit, and they are demanding – without a court order – that domain registrars shut down websites and redirect traffic to commercial websites that seem to be affiliated with the companies that made the triggering complaints to the police.

EasyDNS’s Mark Jeftovic – one recipient of these demands – is fighting back. He’s posted Whatever Happened to “Due Process” ? on EasyDNS’s blog.

Among the good points he makes:

Who decides what is illegal? What makes somebody a criminal? Given that the subtext of the request contains a threat to refer the matter to ICANN if we don’t play along, this is a non-trivial question. Correct me if I’m wrong, but I always thought it was something that gets decided in a court of law, as opposed to “some guy on the internet” sending emails. While that’s plenty reason enough for some registrars to take down domain names, it doesn’t fly here.

We have an obligation to our customers and we are bound by our Registrar Accreditation Agreements not to make arbitrary changes to our customers settings without a valid FOA (Form of Authorization). To supersede that we need a legal basis. To get a legal basis something has to happen in court.

(Emphasis and links omitted.) He also makes this point:

What gets me about all of this is that the largest, most egregious perpetrators of online criminal activity right now are our own governments, spying on their own citizens, illegally wiretapping our own private communications and nobody cares, nobody will answer for it, it’s just an out-of-scope conversation that is expected to blend into the overall background malaise of our ever increasing serfdom.

By the way, the City of London Police is the smaller of two police forces in London. The other is the Metropolitan Police. The City police are responsible for the smaller and older portion of London that is referred to as “the City,” which includes the center of the finance/banking industry as well as many of the major law firms. The Houses of Parliament, Buckingham Palace, and most of the rest of what you think of as London is outside the City and under the jurisdiction of the Metropolitan Police.

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Some Blog Law for Super Bowl Sunday

Sunday, February 3rd, 2013

NFL logoHappy Super Bowl Sunday!

For some NFL-related blog law, I’ll refer you to a paper I wrote, The NFL, Intellectual Property, and the Conquest of Sports Media, 86 North Dakota Law Review 760 (2010).

It includes mention of the NFL’s extremely aggressive stance toward bloggers that attempt to do play-by-play coverage of games, including it’s ejection of a New York Newsday reporter from Giant Stadium for live blogging.

My conclusion is that the NFL’s press policies and its assertions of intellectual-property ownership represent a threat to press freedoms of the sports and news media.

Aaron Swartz, Champion of Online Freedom, Dead at 26

Tuesday, January 15th, 2013

Aaron Swartz, a computer programmer who helped create RSS – the open blog syndication standard – and who helped launch Reddit, took his own life on Friday.

His funeral is today in Highland Park, Illinois.

Swartz was facing the prospect of a very long time in prison because of his alleged attempt to download the JSTOR academic archive database, ostensibly to make it available for free.

Swartz was very much a good guy. His prosecution is an example of what happens when the justice system loses its moral compass. He will be very much missed.

A memorial website has been set up.

More:

Blogger’s Fair-Use Argument Regarding Copyrighted Photo Questionable

Tuesday, November 20th, 2012

Screengrab of RK Associates blogA blogger’s use of a photo of the target of her posts has prompted a copyright infringement lawsuit from the person she writes about – and leads to some interesting questions about fair use of copyrighted material.

Irina Chevaldina maintains a blog styled “RK Associates” whose sole purpose seems to be criticize the business dealings of Miami-area businessman Ranaan Katz. The blog intro says:

This blog presents publicly available information about RK Centers (former RK Associates), including court records, media publications and opinions. Raanan Katz is the owner of RK Associates (Centers). Raanan Katz is a minor owner of Miami Heat.

The offending picture of Katz is a head shot apparently taken courtside (by someone other than Katz) at a basketball game in Israel. The picture appears in several posts, recently with the message “He ripped off special needs little Jewish girl” superimposed over his chest.

Here’s where it starts to get interesting: Katz apparently bought certain rights to the photo, in the interest of bringing a copyright infringement suit against Chevaldina, which he then did in the U.S. District Court for the Southern District of Florida. Her lawyers have filed a motion to dismiss the case. In it, Chevaldina’s lawyers correctly point out that Katz cannot make any claim of infringement occurring before he bought the rights on May 29, 2012, absent any evidence that he bought the right to sue for past infringement.

The other claims in the trial motion – at Defendant’s Second Motion to Dismiss, Katz v. Chevaldina, No. 1:12-CV-22211-JLK, 2012 WL 4504086 –  lay out the battleground for the brewing legal fight.

The lawyers lead with the argument that Chevaldina can successfully raise a fair-use defense under the Copyright Act:

When determining the fair use of copyrighted materials for purposes such as criticism, comment, news reporting, teaching, scholarship or research, courts look to the following factors:

1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2) the nature of the copyrighted work;

3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107. [other citations omitted]

No one factor in the fair use analysis is dispositive, and they must be weighed together.

Now, Chevaldina’s lawyers seem to say that because Chevaldina wants to criticize Katz the businessman, it is OK for her to use a copyrighted picture of Katz the basketball fan to do so. Criticism in the Copyright Act sense more typically references criticism of the copyrighted work itself (think of book or movie reviews, analyses of museum exhibits, and the like).

So it will be interesting to see how that part of the case develops.

Chevaldina’s lawyers also correctly point out that courts value news uses of copyrighted works in the fair-use analysis:

In assessing the components of the four factor test, the Court is mindful that, while § 107 does not accord the statutory factors any particular weight in relation to one another, the characterization of defendant’s use as news related carries great weight in the analysis of fair use.

They further assert that Chevaldina’s use is a news use. Their brief lacks any exposition on this point, though.

Chevaldina’s lawyers also contend that her use of the photo is transformative, another key element in a Copyright Act fair-use defense:

The transformative nature of copyrighted material’s use is determined by whether the use adds something new to the copyrighted work, altering the first with a new expression, meaning or message; the more transformative the work, the less will be the significance of other factors potentially weighing against fair use.

Of course, the use in question does not have to transform the photo itself to be a transformative use.

So, again, it will be interesting to see how this all plays out as the case moves forward.

2012 Election Coverage from a Blog Law Perspective

Wednesday, November 7th, 2012

vote button red white and blue over American flagAs promised, here’s your blog-law-focused election coverage:

Barack Obama, a critic of SOPA, beat Mitt Romney, a foe of net neutrality, for President of the United States.

The main Congressional race of interest from a blog-law perspective is still to call at this hour. But Republican Congresswoman Mary Bono Mack, sponsor of the 1998 Copyright Term Extension Act, is trailing Democratic challenger Raul Ruiz by 48.6% to 51.4% with 66.5% reporting. Mack, widow of entertainer Sonny Bono, for whom the copyright term extension law was named, was also an early proponent of SOPA, those she later said the bill raised “legitimate concerns.”

Other key players in internet law won re-election easily.

Democratic Representative Zoe Lofgren from Silicon Valley, who is one of the strongest members of Congress when it comes to resisting legislation that threatens blogs and the internet, was re-elected with 72.4% of votes cast.

Republican Representative Darrell Issa, a very vocal critic of SOPA, handily won re-election in the California 49th.

Republican Representative Lamar S. Smith, the House Judiciary Committee Chair and chief advocate of SOPA, cruised to re-election in the Texas 21st by a margin of 25 points.

Republican Senator Orrin Hatch, sponsor of the 1998 Copyright Term Extension Act, was re-elected from Utah.

Vote Obama-Biden for Pro-Blogger Internet Policy

Monday, November 5th, 2012

Many of you out there are single-issue votes when it comes to the office of president. And, of course, that single issue is blog law. Or not.

But if you issue is blog law, your candidate is Barack Obama.

While blog law did not take center-stage (or even side-stage or backstage or offstage) at the debates, we do know something of candidates’ positions on blog law. Happily, Scientific American asked the candidates for president 14 questions related to science. In truth, I’m not sure internet policy is a “science” question, but, as it so happens, SciAm included the following: “What role, if any, should the federal government play in managing the Internet to ensure its robust social, scientific, and economic role?”

Interestingly enough, the candidates’ answers are importantly different. And Governor Mitt Romney takes a position that is squarely against the interests of bloggers. So, if you are voting on the basis of blog law, vote Obama-Biden.

Let’s take a look at what they said.

President Barack Obama:

A free and open Internet is essential component of American society and of the modern economy. I support legislation to protect intellectual property online, but any effort to combat online piracy must not reduce freedom of expression, increase cybersecurity risk, or undermine the dynamic, innovative global Internet. I also believe it is essential that we take steps to strengthen our cybersecurity and ensure that we are guarding against threats to our vital information systems and critical infrastructure, all while preserving Americans’ privacy, data confidentiality, and civil liberties and recognizing the civilian nature of cyberspace.

That’s a pretty boring response that seems designed to offend no one. There is one nugget of a controversial-stance taking inside of it. When the president says “any effort to combat online piracy must not reduce freedom of expression, increase cybersecurity risk, or undermine the dynamic, innovative global Internet,” he seems to be talking about the hypercopyright bill SOPA, which I’ve blogged about several times. That’s good, because anti-SOPA is pro-blogger.

Governor Mitt Romney:

It is not the role of any government to “manage” the Internet. The Internet has flourished precisely because government has so far refrained from regulating this dynamic and essential cornerstone of our economy. I would rely primarily on innovation and market forces, not bureaucrats, to shape the Internet and maximize its economic, social and scientific value.

Thanks to the non-governmental multi-stakeholder model, the Internet is — and always has been — open to all ideas and lawful commerce as well as bountiful private investment. Unfortunately, President Obama has chosen to impose government as a central gatekeeper in the broadband economy. His policies interfere with the basic operation of the Internet, create uncertainty, and undermine investors and job creators.

Specifically, the FCC’s “Net Neutrality” regulation represents an Obama campaign promise fulfilled on behalf of certain special interests, but ultimately a “solution” in search of a problem. The government has now interjected itself in how networks will be constructed and managed, picked winners and losers in the marketplace, and determined how consumers will receive access to tomorrow’s new applications and services. The Obama Administration’s overreaching has replaced innovators and investors with Washington bureaucrats.

In addition to these domestic intrusions, there are also calls for increased international regulation of the Internet through the United Nations. I will oppose any effort to subject the Internet to an unaccountable, innovation-stifling international regulatory regime. Instead, I will clear away barriers to private investment and innovation and curtail needless regulation of the digital economy.

Romney’s pro-big-telecomm stance against net neutrality should be very concerning for bloggers. I’ve explained why net neutrality is important for bloggers. (In fact, I’ve written about it a lot.)

On that basis, Blog Law Blog officially endorses Barack Obama for president of the United States. (Just to be completely clear, that’s coming from the Blog Law Blog Editorial Board, which is me, and does not necessarily reflect contributor viewpoint.)

So go and vote. And beginning tomorrow, I will provide you with some of America’s least comprehensive election coverage. (But, hey, it is likely be America’s only election coverage solely devoted to blog law issues!)

What Will The Big Mouse Do About Star Wars Fanfic?

Wednesday, October 31st, 2012

Now that George Lucas has announced he’s selling Lucasfilm, including Star Wars, to Disney, the big question in my mind is what will happen to Star Wars fan fiction?

Lucas has long been welcoming of fanfic adaptations of his Star Wars properties. The House of the Mouse, on the other hand, has long been the leader in pursuing ever larger copyright entitlements, dismissing issues of cultural and expressive freedom.

So, will the copyright stormtroopers be coming after camcorder-weilding Star Wars geeks?

Joe Mullin tackles the issue on Ars Technica: Disney owns Lucasfilm: will it have room for Star Wars fan movies?

Mullin’s post includes an embedded YouTube video with an awesome Cops spoof featuring stormtroopers. It’s so awesome, I’ll just embed it here, too.

You can’t tell me the world’s not a little bit better when Hollywood outsiders can create and distribute gems like this:

Wanting a Chance to Be Heard in New Trade Negotiations

Friday, May 11th, 2012

The Office of the U.S. Trade Representative is conducting closed-door negotiations for a new trade deal involving intellectual property – the Trans-Pacific Partnership Agreement. Big Hollywood and Big Pharma are involved and are allowed to see negotiation documents. The public is not. Once the deal is concluded, it could bind Congress to change IP law and restrict free-speech, fair-use, and access-to-information rights.

In a brash move snubbing the lobbyist-challenged public, the Office of the U.S. Trade Representative decided to cancel a very limited opportunity for people to voice their concerns at a “stakeholder” meeting.

The following is an abridged version of a letter to the signed by many legal academics to the U.S. Trade Representative, Ambassador Ron Kirk.

The letter was written by law professors David S. Levine of Elon, Christopher Jon Sprigman of UVA, and Sean Flynn of American U.

Dear Ambassador Kirk:

We write as legal academics from the US and current or potential future Trans-Pacific Partnership Agreement (TPP) member countries to express our profound concern and disappointment at the lack of public participation, transparency and open government processes in the negotiation of the intellectual property chapter of the Trans-Pacific Partnership Agreement (TPP). We are particularly and specifically concerned that the United States Trade Representative (USTR) took the opportunity of its hosting of the latest round of negotiations in Dallas, Texas, to begin this week, to further restrict public involvement in the negotiations by eliminating the full-day stakeholder forums that have been hosted at other rounds. We call on the USTR and all TPP negotiating countries to reverse course and work instead to expand, rather than contract, the opportunities for public engagement in the formation of the TPP’s intellectual property chapter.

At a time when the last international intellectual property law to be negotiated under a similar process, the Anti-Counterfeiting Trade Agreement, teeters on the edge of rejection by the European Parliament in large part because of the loss of faith in its secretive process demonstrated by hundreds of thousands of marchers across Europe, the move to scale back participation in the TPP appears highly unwise and counterproductive. The functional and theoretical impact of the lack of transparency and accountability in the TPP and other trade negotiations institutionalizes the kind of process that the late Senator Daniel Patrick Moynihan criticized as policy making through “ignorant armies clash[ing] by night.” This is no way to build support for a broad reaching new international law that will constrain democratic law making over intellectual property matters in the US and abroad, particularly in an era of massive and rapid technological change that is testing the bounds of our current policy framework.

Our first and most important suggestion is to immediately begin a policy of releasing to the public the kind of reports on US positions and proposals on intellectual property matters that are currently given only to Industry Trade Advisory Committee members under confidentiality agreements. The USTR has previously refused to share its own proposals with its own citizenry claiming that, under the Freedom of Information Act (FOIA), to do so would damage the national security of the United States. …

Our concerns flow from the now-established observation that “trade” agreements no longer focus exclusively, or perhaps even predominantly, on the regulation of trade. Rather, the agreements increasingly propose international law standards that bind the legislative branch to change, or lock in place, domestic regulatory decisions. …

Unfortunately, there is little about the TPP negotiating process that is open to the broad range of inputs that would be reflected in domestic policy making. There has been no publicly released text of what USTR is demanding in these negotiations, as there would be in policy making by regulation, in Congress or in multilateral forums. Reviews of leaked proposals show that the US is pushing numerous standards that are beyond those included in any past (i.e. publicly released) agreement and that could require changes in current US statutory law. Reviews also show that the US proposal is manifestly unbalanced – it predominantly proposes increases in proprietor rights, with no effort to expand the limitations and exceptions to such rights that are needed in the US and abroad to serve the public interest. …

The unbalanced product results from an unbalanced process. The only private individuals in the US who have ongoing access to the US proposals on intellectual property matters are on an Industry Trade Advisory Committee (ITAC) which is dominated by brand name pharmaceutical manufacturers and the Hollywood entertainment industry. There is no representation on this committee for consumers, libraries, students, health advocacy or patient groups, or others users of intellectual property, and minimal representation of other affected businesses, such as generic drug manufacturers or internet service providers. …

All of the above makes the most recent further withdrawal from the TPP negotiation of a limited participation venue particularly disturbing. … While far from ideal for all involved, including the USTR and its ITAC advisors, this mechanism at least allowed for some exchange, even if that exchange was fundamentally flawed and artificially limited in value because of the information-disparity problems discussed above. In the place of these full day open forums in Dallas, USTR has channeled stakeholder input into a 4-hour mid-day (10:30am-2:30pm, i.e. over the lunch hour) exhibit hall for stakeholder tables. There will be no opportunity, as in the past, to speak to assembled negotiators through presentations. …

Likes, Takedowns, and Server Seizures – Great Posts from Goldman’s Blog

Monday, May 7th, 2012

Eric Goldman

Here’s just some of the required reading coming off of Eric Goldman’s Technology and Law Marketing Blog:

Facebook “Likes” Aren’t Speech Protected By the First Amendment–Bland v. Roberts

This is a case where a sheriff fired sheriff’s department workers after they Facebook-liked the sheriff’s opponent in an upcoming bid for re-election. Venkat Balasubramani and Eric G. explain why the court’s wrong that liking someone on FB isn’t protected First Amendment speech. I agree, of course. It’s a baffling decision.

512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom

This is exactly the kind of thing your civil procedure professor was talking about when they said “procedure is substance.” Big Hollywood is free to machine-gun takedown notices out there, and despite a substantive legal right to get redress for such bogus takedowns, the procedural requirements make the right nearly worthless, turning §512 of the Digital Millennium Copyright Act into something quite different than what you would think it is just by reading it.

As Eric G. notes, “unless the 512(f) plaintiff has smoking-gun evidence of the copyright owner’s bad intent before filing the complaint, the plaintiff has virtually no chance of getting a 512(f) claim into discovery.”

Comments on the Megaupload Prosecution (a Long-Delayed Linkwrap)

The Megaupload case is one of those things that is extremely troubling, but it can be hard to explain exactly why it’s troubling in a pithy way. But here’s a quote from Eric G. that does a pretty good job:

The government is using its enforcement powers to accomplish what most copyright owners haven’t been willing to do in civil court (i.e., sue Megaupload for infringement); and the government is doing so by using its incredibly powerful discovery and enforcement tools that vastly exceed the tools available in civil enforcement; and the government’s bringing the prosecution in part because of the revolving door between government and the content industry (where some of the decision-makers green-lighting the enforcement action probably worked shoulder-to-shoulder with the copyright owners making the request) plus the Obama administration’s desire to curry continued favor and campaign contributions from well-heeled sources.

The resulting prosecution is a depressing display of abuse of government authority. It’s hard to comprehensively catalog all of the lawless aspects of the US government’s prosecution of Megaupload …

Megaupload’s website is analogous to a printing press that constantly published new content. Under our Constitution, the government can’t simply shut down a printing press, but that’s basically what our government did when it turned Megaupload off and seized all of the assets. Not surprisingly, shutting down a printing press suppresses countless legitimate content publications by legitimate users of Megaupload. Surprisingly (shockingly, even), the government apparently doesn’t care about this “collateral,” entirely foreseeable and deeply unconstitutional effect.

What do these three recent developments all have in common? Big guys win, little guys lose. Sometimes law is very dispiriting.

Righthaven Story by Defendant Eriq Gardner is ABA Journal Cover Story

Thursday, April 26th, 2012

Eriq Gardner, legal-issues journalist for the Hollywood Reporter, has penned the ABA Journal magazine’s new cover story: “The Righthaven Experiment: A Journalist Wonders If a Copyright Troll Was Right to Sue Him.”

As a funny aside, the online version of the story says “Posted May 1, 2012 5:20 AM CDT.”

As I write this, it’s April 26, 2012 7:35AM CDT.

Posted May 1, 2012 5:20 AM CDT By Eriq Gardner

Ding Dong! Righthaven is Gone!

Friday, March 16th, 2012

Righthaven, the Nevada-based copyright thugster that sued scores of mom-and-pop bloggers with heavy-handed lawsuits seeking six-figure awards, has had its engine – or it’s malignant beating heart, the metaphor’s up to you – pulled out of it. The U.S. District Court in Las Vegas has ordered the transfer of all of Righthaven’s copyrights – the copyrights it used as its basis to sue – to a court-appointed receiver to auction them off against $186,680 owed to creditors, including Righthaven defendants who won fee awards.

The first auction may start on Monday.

On the Radio Talking About SOPA!

Thursday, January 19th, 2012

Guess what I did today! I was on the radio talking about SOPA! Not an internet radio station, but a real stick-in-the-ground over-the-airwaves AM radio station: KNOX 1310 Grand Forks, a talk program hosted by Brian Michaels and Denny Johnson.

Has the MPAA and RIAA finally overreached when a law professor is on a midday radio show talking about INTELLECTUAL PROPERTY? Yup, I think so.

Thanks to the blackout against SOPA, and mostly Wikipedia’s part in it, Copyright’s suddenly become a mainstream political issue. The blackout against SOPA was even on NBC Nightly News with Brian Williams last night! How about that?

Down Against SOPA

Wednesday, January 18th, 2012

Today, Congress is considering passage of SOPA – the Stop Online Piracy Act – legislation that would destroy the free architecture of the internet and initiate censorship.

I’m blacking out Blog Law Blog for the day to join with many others in showing symbolically what the internet could look like if this bill becomes law.

If you are in the U.S., please take a moment to contact your representative to register your opposition.

Blackouts Tomorrow for SOPA and PIPA

Tuesday, January 17th, 2012

Wikipedia is planning to blackout its whole site tomorrow as a protest to SOPA and PIPA – those internet censorship-in-the-name-of-fighting-intellectual-property-piracy bills on Capitol Hill. I know other websites are planning or contemplating the same.

I think I’ll do the same here on Blog Law Blog. I just have to figure out how to do it in terms of the code on the back end. If you are planning to join in, read up on how to do it the right way so you stay friendly to search engines.

White House Blogs in Response to Anti-SOPA Petitions

Monday, January 16th, 2012

The White House has responded to online petitioning done by opponents of SOPA. In a blog post, IP czar Victoria Espinel, U.S. CTO Aneesh Chopra, and national cybersecurity coordinator Howard Schmidt wrote:

While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.

That’s very good to hear.

Newton’s Third Law of Intellectual Property

Thursday, December 29th, 2011

Test firing of rocket engine with blue flamesIn Monday’s post, I noted that Dutch M.P. Marietje Schaake linked America’s proposed Stop Online Piracy Act (SOPA) with China’s censorship of political expression (a point also picked up by Techdirt’s Glyn Moody.)

So, is it really fair to equate shutting off internet access because of claims of intellectual-property infringement with shutting off internet access because of unapproved political expression? Yes it is. Here’s why.

It’s what I call Newton’s Third Law of Intellectual Property. This is actually my thing, not Isaac Newton’s. But it is analogous to Newton’s Third Law of Motion.

In physics, Newton’s famous Third Law is that for every action there is an equal and opposite reaction.

My law, is that for every intellectual property entitlement, there is an equal and opposite reduction in freedom.

So, if someone has a trademark entitlement with regard to a certain word or phrase, the extent of that right is exactly coextensive with the public’s lost ability to legally use that word or phrase. Same for copyright: A copyright over a musical melody means a loss of freedom of everyone else to play that melody.

I don’t mean for Newton’s Third Law of IP to impugn all intellectual property. Just because something reduces freedom doesn’t mean it’s unjustified. But it does mean that there is an inescapable tradeoff. When one person gains an IP right, everyone else loses a freedom. Perhaps the loss of freedom is worth it for the good that the IP entitlement does, such as encouraging innovation. But it is intellectually dishonest to argue or imply that intellectual property entitlements don’t come without a surrender of some amount of liberty.

Image: NASA

SOPA Stopped – For Now

Monday, December 19th, 2011

Under a wave of phone calls and social-media attention, Lamar Smith (R-Texas) abruptly called an end to the hearings on SOPA, saying they would be rescheduled for the future. Lamar Smith is a toughie. So getting him to take a step backward is quite an accomplishment!

More:

Please Call Right Now to Stop SOPA

Thursday, December 15th, 2011

CALL NOW - Capitol HillThis is it. This is the time to make your voice heard on Capitol Hill before the disastrous Stop Online Piracy Act is passed by the U.S. House of Representatives.

Go to EFF’s action page on SOPA and type in your zip code to instantly get the phone number of your rep. And you can bet I’ve called.

SOPA is a threat to blog freedom and internet freedom in American and abroad.

Make the call, and blog on!

Stanford CIS to Host Panel on SOPA

Monday, December 5th, 2011

Stanford Center for Internet and Society logoThe Stanford Law School Center for Internet and Society, where I am an affiliate scholar, is hosting a panel discussion on SOPA – the Stop Online Piracy Act – and the Protect-IP Act that are making their way through the U.S. Congress.

The discussion – WHAT’S WRONG WITH SOPA? – is open to the public and will take place on Wednesday, December 7, 2011, at 7 p.m. PST in Room 290 of the Law School Building at Stanford. There will also be a 6 p.m. reception on the Neukom Terrace, at the Neukom Building. You’re encouraged to RSVP.

U.S. Chamber of Commerce Backing SOPA Even as Members Back Away from the Chamber

Thursday, December 1st, 2011

Declan McCullagh at CNET has a worthwhile post about one lobbying group’s puzzling and unfortunate support for SOPA:

The Chamber claims SOPA is good for businesses, but the businesses that oppose it include eBay, Google, Yahoo, Twitter, Facebook, AOL, and LinkedIn. Yahoo has quit the Chamber now, and the Consumer Electronics Association and Google may soon do the same.

Please Help Stop SOPA

Saturday, November 26th, 2011

STOP SOPA

Something very bad may be about to happen to the internet.

The United States Congress, which is currently slightly more popular than the rabies virus, may be on the brink of passing the Stop Online Piracy Act, an outrage that attempts to placate big Hollywood content industries by selling out freedom on the internet.

I’ll be writing about SOPA (and PIPA, as it’s known in the Senate) in upcoming posts. Please take the time to educate yourself and call your representatives.

Also, consider adding a STOP SOPA badge to your website. Feel free to swipe them off of this blog – I handmade these (entirely independently), so I can and hereby do license them to you. And then link them to one of the many explanations out there for why SOPA presents such extreme peril.

10,000th Konomarked Photo

Tuesday, November 22nd, 2011

icon of a pineapple in a thick black circleI just uploaded my 10,000th konomarked photo to Flickr.

Konomark is a project I’ve started to help facilitate sharing of photos and other copyrighted content on the internet. My putting a “konomark” on your copyrighted content, you invite strangers to e-mail you and ask for permission for gratis re-use.

You may have noticed this blog is konomarked, and there’s a line of konomarked photos that appears running down the column on the right.

If you’d like to konomark a photo on Flickr, here’s the best way to do it.

First, tag the photo with the word “konomark”.

Second, insert the following into the description for the photo:

This photo is <b><a href=”http://www.konomark.org” rel=”nofollow”>konomarked</a></b> (“Most Rights Sharable”): If you would like to use this image without paying anything, e-mail me and ask. I’m generally willing to share.

Reflections on MediaNews Group’s Split with Righthaven

Friday, September 16th, 2011

Last week, Steve Green, the reporter who has most closely followed the Righthaven story, asked me what I thought of the revelation that MediaNews Group broke off its deal with Righthaven. Here’s what I told him:

The law has long had a special affection for newspapers. That’s reflected in a long line of Supreme Court cases. Given that history, it has been very dispiriting to see newspapers try to game the law in pursuit of a quick-money scheme, especially one that involves suing readers.

The participation of MediaNews Group was especially troubling to me, given that they operate many of the nation’s most important and well-respected newspapers. Thus, it is a great relief to see that MediaNews has parted ways with Righthaven.

A newspaper is sometimes described as a community talking to itself. Can a newspaper uphold that vision while partnering with Righthaven? I don’t think so. And that’s a point that I think most publishers understood as soon as Righthaven pitched them.

MediaNews Group was the only big news organization that put aside the sense of public trust we expect of newspapers to take part in this misadventure. They have shown integrity and good sense by now walking away.

Todd Kincannon Unfazed by Righthaven’s Bankruptcy Talk

Tuesday, September 13th, 2011

Righthaven antagonist J. Todd Kincannon (Photo: The Kincannon Firm)

I asked Todd Kincannon, the lawyer signing up plaintiffs for a Righthaven class action, what he thought of the company’s claim that it was on the verge of bankruptcy.

“I always knew Righthaven would file bankruptcy if things got rough,” Kincannon told me by e-mail. “They
were set up as a limited liability company just so they could do that. Fortunately, Stephens Media, MediaNews Group, Sherman Frederick, Steve Gibson, and Dickinson Wright all seem to have plenty of money.”

I kind of thought he might think that.

The truth is that Righthaven’s bankruptcy, if and when it comes to that, won’t be the end of the Righthaven story. Instead, it will be the beginning of the second half.

Over its first year and a half, Righthaven was on the offense, swooping down on unsuspecting bloggers and holding them up for a few thousand dollars a piece. Then, in June, the Democratic Underground decision came down, and the tide reversed. Things are now swooping down on Righthaven. Not only does Kincannon have his nascent class-action, but there’s the strong possibility of bar discipline against Righthaven attorneys, and you can even see the potential for criminal charges (federal racketeering charges and conspiracy to obstruct justice, for instance).

The Implosion Accelerates: Righthaven Begs for Stay, Warns of Bankruptcy

Monday, September 12th, 2011

Bankrupt monopoly guy with copyright symbol replacing faceThe copyright-lawsuit factory that has sued scores of bloggers appears to be nearing the financial precipice. Steve Green of the Las Vegas Sun and Vegas Inc. reports that Righthaven is pleading with the U.S. District Court in Nevada to stay an order to pay $34,045 in attorneys fees arising from Righthaven’s failed lawsuit against Kentucky resident Wayne Hoehn over a post on a sports-betting message board. Judge Phillip Pro dismissed that lawsuit in June, holding that Righthaven lacked standing to sue Hoehn, and, additionally, that Hoehn’s reposting of an entire column from the Las Vegas Review-Journal was protected as fair use. As a result, Judge Pro ordered Righthaven pay Hoehn’s attorneys fees. On Friday, Righthaven asked Judge Pro to stay his order while it is appealed to the 9th Circuit. Green writes:

Righthaven … said the gridlock over its lawsuits has hurt its finances – and expressed concern that attorneys for prevailing defendants like Hoehn may seize its assets and put it out of business.

Righthaven, begging for mercy. I don’t even have the words to describe the irony here.

When a company breathes the word “bankruptcy” as part of a plea for delaying the payment of some debt, it generally means the implosion is already well underway. That being the case, we can expect anyone who has a judgment against Righthaven to rush to seize assets as fast as possible. That will force Righthaven to run to bankruptcy court to get the protection of the automatic stay available for bankruptcy filers.

I haven’t seen Righthaven’s emergency request to Judge Pro, but I can’t imagine there’s any good reason to grant it unless Righthaven is able to post a bond – which they might not be able to do if they are nearing bankruptcy. This is something that the bankruptcy courts can sort out, and will probably will have to.

And, by the way, yes, this means Righthaven defendants could end up controlling – through a creditors’ committee – the copyrights that were used as the basis for suing them. It also means that a lot more Righthaven documents could be opened up to public scrutiny.