A recent decision by Judge Denny Chin in New York federal court involved two billboards in Times Square advertising M&M candies. The video animation in the billboards depicted M&Ms in various iconic scenes of New York City: an M&M hailing a cab, an M&M as the Statute of Liberty, an M&M as King Kong scaling the Empire State Building, and so on. Among these was a blue M&M dressed up like “The Naked Cowboy,” a long-time street performer who appears in Times Square in nothing but his boots, hat, undies, and strategically placed guitar. (Wikicommons image here.) The performer behind the character, Robert Burck, sued M&M maker Mars Inc. and its ad agency for two claims. First, he claimed infringement of his trademarks in the Naked Cowboy. He also claimed a violation of a New York privacy statute prohibiting use of a person’s “name, portrait, picture, or voice” in an advertisement without written consent. (This is one of the statutes I have previously suggested could be seen as prohibiting some of Facebook’s advertising programs.)

Importantly, the decision was just a ruling on initial motions to dismiss the case — essentially, arguments by the defendants that the claims are groundless so the judge should throw them out out before the litigation really gets started. Mars got a split decision. Which claim had no merit, according to the judge?
(more…)

Copyright fights with bloggers are nothing new. Heck, they even show up in divorce proceedings occasionally. But this looks like serious overreaching by AP, for three reasons. (more…)

The Governator is drawing a hard line, according to a spokeswoman: “anything that falls short of guaranteeing the protection of innocent children from exploitation will be unacceptable.” Hmm. Well, child porn existed before the Internet did, so I’m not precisely sure what ISP proposal would be acceptable. But, opposing child porn is a pretty controversial stand for a politician to take in an election year, and it’s always nice to see bipartisanship in action (AG Brown is a Democrat).

I’m deliberately being snarky, but the underlying point is real: it’s much easier to bash ISPs than to tackle the problem of child exploitation in a meaningful way. (Cuomo stated that going after end user violators would be too difficult.) And there are two other problems: overkill and underkill. Overkill means pushing ISPs to drop Usenet (including thousands of newsgroups with legit content) to squash the 88 groups Cuomo’s investigation found to contain child porn. Underkill means celebrating a faux victory over child pornography rather than doing the hard investigative work needed to reduce the problem. Both worry me.

Most of society’s ills show up on the Net. That doesn’t mean they are Internet problems, and it doesn’t mean that ISPs are the right regulatory targets to deal with them.

With that said, we’ve only heard from two attorneys general so far. Are the other 48 pro-child-porn? Come on, this is an election year! Mike Cox, Mark Shurtleff, Greg Abbott, Martha Coakley, I’m looking at you!

As it turns out, I’ll also be delivering an unexpected bit of good news. The open-access project I blogged about here last October has yielded some impressive results. The project involved scanning and proofreading the House Judiciary Committee’s Report on the landmark Copyright Act of 1976. To my knowledge, the House Report has never been freely available online — a keenly felt omission, given how frequently United States courts in copyright cases rely on the Report as an aid to construction of the (frequently unilluminating) statutory text.

That problem has now been remedied.

Working in irregular bursts over the last eight months, volunteers at the English-language Wikisource project (a sister site of the much better known Wikipedia encyclopedia) have proofread all 370 page scans from the original House report, and the results have been stitched together to form a single document: Copyright Law Revision (House Report No. 94-1476). As the accompanying color-coded chart reveals, most pages of the report have been proofread by at least two different users, and the rest should be finished within a few weeks if current trends continue.

Here are just a few reasons why the Wikisource version of the House Report is the best now available anywhere.

• It’s free. Like all U.S. government works, the text is in the public domain. And Wikisource, unlike proprietary database vendors, doesn’t purport to limit your freedom to copy or reuse the public-domain texts that are hosted on the site. If you look up the exact same report on Westlaw, for instance, you’ll find this rather forbidding warning:
  

  ©2008 Thomson/West. Copyright is not claimed as to any part of the original work prepared by a U.S. government officer or employee as part of that person’s official duties. All rights reserved. No part of a Westlaw transmission may be copied, downloaded, stored in a retrieval system, further transmitted, or otherwise reproduced, stored, disseminated, transferred, or used, in any form or by any means, except as permitted under the terms of the Subscriber Agreement wherein you obtained access or with prior written permission. Each reproduction of any part of a Westlaw transmission must contain notice of Thomson/West’s copyright. Westlaw, WIN, and KeyCite are trademarks registered in the U.S Patent and Trademark Office. WIN Natural Language is protected by U.S. Patent Nos. 5,265,065; 5,418,948; and 5,488,725.

  Where Thomson/West gets off telling me what I can and can’t do with information they don’t own is beyond me. By drawing the text of the House Report from the original U.S. Government publication, however, Wikisource’s version avoids entanglement with similarly overreaching proprietary claims.

• It’s complete. Other online versions of the Report, as well as most hard-copy reprints (e.g., 1976 U.S.C.C.A.N. 5659), omit certain portions. Typically, they exclude the text of the legislation (pp. 1–46 of the Report) as well as an especially lengthy, complicated three-column table that offers a side-by-side comparison of (1) the version of the bill that passed the Senate in 1975, (2) the text of the House’s amended version, and (3) the corresponding provisions, if any, of the Copyright Act of 1909 (pp. 186–358 of the Report). Wikisource, in keeping with its general editorial philosophy, reproduces the complete text in its entirety; the site’s editors don’t substitute their own judgments about which portions of the document will be useful to you.
• It’s pinpoint-hyperlink-able (I’m sure I’m overlooking a more technologically correct way of saying that). Did you spot those hyperlinks in the preceding paragraph? Mitigating the potential unwieldiness of posting a 370-page document as a single Web page is the fact that anchor elements are included to take you directly to any page within the document. So if you want to jump straight to the Committee’s discussion of fair use, for example, you can.
• It’s (optionally) annotated. Wikisource reproduces original texts as published, warts and all. But the architecture of the site makes it easy to offer an alternative annotated version of the text where errors are marked and corrections offered.

Assisting with the creation of the online version of the House Report has been an educational experience, and I expect to have more to say about the pros and cons after my CALI talk. For now, though, I’m pleased just to report that an important and influential primary reference source in copyright law has, three decades after the fact, at last become freely available online.

Yesterday, I posted a quick analysis of the new policy (using the methodology I propose in a new draft paper) undertaken by Sprint, Verizon, and Time Warner Cable at the behest of New York Attorney General Andrew Cuomo: they’ll voluntarily block child porn. As more details emerge, though, I’m more skeptical about the plan. First, I held off assessing how narrow this filtering system would be (does it successfully block child porn, and only child porn?), since technical details are sketchy. But if the latest reports are to be believed, I’m ready to make a call: completely overbroad. Time Warner is going to eliminate all newsgroups by the end of the month. So, to block child porn, we’ll wipe out TW subscribers’ ability to talk about SCUBA diving, radio astronomy in India, or support for people with bipolar disorder? I think this is a great candidate for addition to the paper as an approach to filtering that is not narrow. This is, in fact, complete overkill.

Will Verizon and Sprint follow suit? (more…)

This effort is, predictably, being hailed as a leap forward in the fight against child abuse and exploitation. (The problem on-line is real; University of Cambridge researchers Tyler Moore and Richard Clayton found that it takes hosting companies over 30 days to remove child porn sites - while they take down financial scams in less than 4 hours.) But there are worrisome aspects of this effort.

I’ve been working on a paper that explores how we can assess whether a given country’s Internet filtering (= censorship) system should be viewed as legitimate. (A draft version, admittedly incomplete, is available for download on SSRN; I welcome comments and feedback.) An important aspect of this effort is to denormalize or problematize filtering. It seems natural, obvious, and completely appropriate to most U.S. citizens to block child porn, or copyrighted material. But it’s just as obvious to French citizens that hate speech should be banned (as Brigitte Bardot learned), or to many in the United Arab Emirates that Israel’s top-level domain should be filtered, or to Thais that videos mocking their King should be blocked. We don’t get far if we merely apply our own preferences to other countries’ efforts: unsurprisingly, states that ban what we dislike, and permit what we favor, appear legitimate. (more…)

Three things interest me about this contretemps: figuring out what one needs to show authorship; independent creation; and, if contender #3 (Carol Joyce Carty) wins, whether we’ve all got a license to reproduce the poem. (more…)