A Copyfighter’s Musings

1.  The one that everyone’s been talking about - Jessica Litman’s Sharing and Stealing.  See comments here, here, and here.

2.  One I stumbled upon in my research - Mark Lemley and R. Anthony Reese’s Stopping Digital Copyright Infringement Without Impeding Innovation.  The authors argue for several interesting alternatives to enforcing copyright against third-parties. 

They also take an interesting approach to Napster and Aimster, favoring the latter approach over the former while finding fault in both.  Their main reason is that Napster affirms that any actual knowledge of infringement, regardless of a capacity to act on that knowledge, nullfies the Sony defense.  That is a plausible reading, but, as I have said before in light of Grokster, I don’t think it’s correct.

Set aside, for the moment, the confusing way of applying Sony in the contributory section and the lack of application in the vicarious section, and look at the Appeals decision’s general approach.  Both section’s of the Court’s analysis stressed Napster’s control over users’ activities.  Moreover, both sections, as well as the remedy section, stressed that Napster should only be expected to control infringing uses within the bounds of its current technology.  As I wrote the other day, this rule essentially preserves the possibility for a multiplicity of design models on the Internet.  Centralized P2P like Napster can exist because it has substantial non-infringing uses, but it is still expected to control the infringing uses within the bounds of its system.

Regardless of whether you agree with Lemley’s and Reese’s assessment of Napster’s knowledge requirement, their criticisms work against my argument above because what the Appeals court said and what actually happened are quite different.  The District Court and Appeals Court created a remedy that a) went beyond the bounds of Napster’s system, by essentially requiring them to analyze the content of files, and b) required Napster to screen out all infringement of a given song, which was essentially impossible.  In that way, they negated the technology-preserving aspect of the opinion.

Lemley and Reese would say that that damns the general approach I laid out above - though it does look less plausible practically speaking, I’m not so sure it’s a terrible rule.  More later.

Filed by Derek Slater at 6:26 pm under General news
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The holidays put me out of commission for awhile, so, before the busy but drawn out semester’s end, I want to catch up on several interesting bits of news.

1.  Of course, I’m thrilled by Diebold’s folding and will be delighted when Harvard receives both my counter-notice and Diebold’s subsequent withdrawl letter.  I hope that Diebold’s carefully timed manuever doesn’t preclude a ruling in the case (though, from the press release, that sounds less likely) or slow down further discussion of e-voting. 

Once again, I would like to thank everyone who helped and supported me through this process.  I’m just happy that I could do a tiny bit to help the real stars in this, the Swarthmore students who first got the ball rolling.  They’re the ones who first put themselves on the line and who organized this massive bluff-calling.  And I’m glad that there were organizations willing and able to support those students, too.  Bravo.  (The Crimson wrote the article I urged them to write early on, covering the broader battle.  Three cheers for  that, too.)

More later on what sort of reposting I intend to do.  For now, browse the entire archive here, or the tasty excerpts here, here, and here.  Also, more later on my continuing discussions with Harvard about their DMCA policies.

2.  I’m late to the recent Posner opinion party.  Follow Donna’s links here and Scrivener’s Error.  Read the full opinion because it’s fun and quick, and because it’s got an interesting bit about copyright misuse.  You should also note what Posner does and doesn’t say about ProCD and Bowers.  He says that contracts between two parties wouldn’t apply to third-parties (which seems somewhat tautological to me), so no contractual violation beyond the copyright infringement claim is possible here; however, he doesn’t say that contract claims would not be possible in these sorts of cases.  Copyright misuse only precludes enforcing one’s own copyright, so even if the contracts amounted to misuse, they wouldn’t be invalid.  Posner notes that allowing the data company to enforce its contract against the municipalities would be “absurd”, but in a somewhat less extreme case, one could see the argument working.

So, the door is still left open to forgo copyright in favor of contract.  What Posner suggests here is that it’s possible you might not be able to have both.

Further reading: 3rd Circuit Breaks New Ground on Copyright Misuse, discussing an application of misuse as a constitutional problem, not just antitrust violation, and how that could affect DMCA cases.  It also mentions a previous Posner opinion in which he discussed how using copyright to suppress criticism could be considered misuse (sounds familiar, ay?).  See also Anti-Circumvention Misuse by Dan Burk, about abuse of DMCA’s access control provisions, among other things.

3.  IP Justice has written some fascinating pieces on the FTAA.  See also Donna’s post.  I have put time into several copyfighting organizations, but IP Justice is the last one I can remember sending money to.  The international treaty front is, in some ways, the least focused on but the most important.

4.  Given that his court date for DeCSS was only about a week away (Dec 3, says IP Justice), can you believe Jon Johansen created a work around for Apple’s FairPlay DRM? 

I wonder if Jon got more, less, or the same amount of backlash for this as he did for DeCSS.  That is, do people really believe that QTFairuse is going to cause mass piracy of iTunes files?  iTunes files are far more piratable than DVDs - all you have to do burn and rerip or record the sound as it goes to the soundcard and recompress, while, without DeCSS, you’d have to do a lot more analog workaround (see also Macrovision) and know more about movie file compression to redistribute movies.

Filed by Derek Slater at 3:41 pm under General news
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