Apple Sued Over ITunes Technology
These articles seem aimed at the general public, not law geeks. So I did a little research. It appears that this is regarding United States Patent 7.343,414

In other news, Activision’s “Guitar Hero” violates patent: Gibson which appears to concern Patent 5,990,405 After reading this, non-lawyer hubby Vinny and I had a long debate. He came up with the idea that by licensing use of Gibson guitars in the game, they had de facto ratified the software - perhaps waiving claims? I played devil’s advocate. I thought perhaps that if it was being examined equitably, or holistically, a judge might recognize the separation of the elements of licensing the guitar and policing patent rights - the former being done by the marketing folks, and the latter by an outside firm.

While there is no legal decision on the subject, Activision seems to agree with Vinny. The news came out after he had set forth the theory, confirming that the guy who sat in on fewer than a dozen law classes has a killer instinct for the subject. Ask me some-time about his mutual mistake theory for common-law implied obligations in marital contracts.

Video Comments:

Sarah McKee (retired Federal Attorney): Wanted to hear from non-techies how the ‘net improves their lives, and about ‘net neutrality.  She plays music for cancer and other hospital patients.  To organize them, they need the internet, without it they would not be able to operate.

Is the argument that Google seeks to make money (presented in both complaints for McGraw-Hill and Author’s Guild) effective considering the plaintiffs also seek to make money through exercising their copyrights or engaging in other deals? Generally, how should plaintiffs approach arguments in their complaints that may also undermine their own claims?

I’m not really sure how this would undermine their claims within the scope of copyright law. As owners of the copyright, plaintiffs are entitled to profit off of the works, and indeed the level of profit they may receive (or lose) strengthens their claim on fair use. (The fourth fact the courts look at is “effect on the works value”)The profit that Google stands to make likewise stregnthens plaintiffs’ case, as the “purpose and character” of their use is also looked at. In this mushy test, the more commercial a use, the less it looks like fair use.

I think that the question here is less one of weakening their own claims and more one of proper audience. Even though to the layperson the profit motive may appear to weaken McGraw-Hill’s case, this impact would not really be seen on a judge or a properly-instructed jury. Which brings us into the tangential issue of how much the court of public opinion matters.

In my view, public opinion is going to be dealt with through press releases and news stories. How many lay people (OK, excluding my husband) read court documents? I don’t think a perceived double-standard rises to the level required to be posted on the Smoking Gun. So, for the audience that really matters, this strategy seems sound.

Even so, the plaintiffs do emphasize the educational nature of their business, de-emphasizing their status as a for-profit corporation. In my opinion, this evidences the fact that overall impression matters even outside the legal issues themselves and the facts directly relevant to them. Judges and juries are still human, and psychology will always be a part of brief-writing.

The Egilman Complaint leaves out many details of the story, which are then supplied by the Answer. Is plaintiff’s case assisted by noting only those facts favorable to his case, or does it give the defendant an edge by detracting from his credibility? If the latter, is this factor amplified by the way credibility itself plays into the substance of the story? (for example, do you believe the critical article was planted as a false story to test defendants?)In the McGraw-Hill case, does the plaintiffs’ emphasis on Google’s value and profit motive change the reader’s perception of the library project? Does Google’s titling of the project, and description of it in their answer alter this perception?

After reading the complaint, what is the impression one gets of the plaintiffs’ identities? Is the ordering of the parties to list the educational companies first a tactic? Does it play into their theory of the case, and the picture they are attempting to paint on both sides?

In its answer, Google states that the plaintiff has used “rhetoric and legal argument” disallowed by the FRCP, in response to the allegation that there is “no need” for the project. If this is a violation of the FRCP, do you think it was an accidental one, or a tactical decision? What are the likely repercussions of including legal argument instead of just factual allegations and legal conclusions? Might it be a good idea for lawyers to use this tactic if the risks are low?

In the Viacom complaint, the plaintiff makes use of the verb ‘perform’ to describe YouTube’s actions. Is this a necessary step towards disallowing Google use of the safe harbor provisions, or is it a rhetoric device to make Google seem like a more active participant? (Or is it both?) If the term sounds awkward and disingenuous, does that affect your view of Viacom’s case?

The introductions in the Viacom Complaint and Answer attempt to put the issues raised in the case into a global context, and take on less of a still legalese character. The McGraw-Hill briefs are more straight-forward and factual, and incorporate their theories later on in the complaint. Does this have an effect on the reader’s perception of the issues? Does making the case sound vitally important affect the decisionmaker’s perception of who has the stronger case?

Creationist vs. Atheist YouTube War Marks New Breed of Copyright Claim.
According to Wired, the DMCA is now being used as a tool in religious wars. The Rational Response Squad had posted several critical videos that used Creation Science Evangelism ministry owned content. The latter reported to YouTube that they violated copyright law; YouTube took down the videos and even suspended the RRS’s account. According to an EEF attorney, the material was “clearly fair use” and CSE’s claim was “clearly bogus.”

It is also likely that the group disclaimed copyright in the materials; although they have now edited their site to state that copyright was placed on all materials in 2005. Those who have taken copyright can help me out here, but I believe you cannot rescind something from the public domain; assuming the screen shot is genuine, they are attempting a slight of hand by back-dating it.

This brings up interesting issues that we discussed in the first week about the wisdom of DMCA procedures that might lead to a “chilling effect.” Here, the concern is deepened - could the quick take down response that the safe harbor provisions incentivise be subject to more than just the haste and zealousness of the entertainment industry, but to targeted misuse?

Wired’s take:

“As more people catch on to how useful YouTube can be for delivering political, religious and cultural messages, DMCA claims are likely to increase. With news cycles moving at light-speed, an illegal copyright claim might well suppress unwanted news long enough to distort coverage. And if previous incidents are any indication, the issues involved could get much weightier, especially in an election year.”

Here, one could place more responsibilityon YouTube for failure to investigate before the takedown. Instead of a list of hundreds from a major content owner, you have at most a few dozen videos in the report. Of course, those videos are still aggregated with the mass of requests from other sources. You also run the risk of running too far the other way - giving a wide berth to major companies, and unequal protection to smaller copyright owners.

Once again, we are dealing with a legally-savvy recipient of a takedown notice; there may be many such takedowns that we are not hearing about.

The videos, and the atheists’ accounts, have been reinstated. The RRS is planning legal action. Such suits are not unprecedented: in 2004 Diebold falsely claimed copyright over leaked internal emails, and attempted to get them removed from the internet. Like our author friend Mr. Field, they ended up paying damages and penalties for their bogus copyright claims.

With cases such as these, perhaps there is a counter to the chilling effect of widespread DMCA claims. If copyright abuse can be charged independently in response to a takedown notice, instead of solely as sanctions on a plaintiff, it will give attorneys another reason to pause before sending cease and desist letters.

So I am beginning my first official foray into Cyberlaw and IP, outside of the work context.  I have dealt with cyber issues fighting malware at the FTC, analyzing copyright law for bloggers at the Berkman Center, and wresting with Safe Harbor provisions during my temporary stint as Stopbadware.org’s in-house counsel.  I have also done trademark and patent law at my firm last summer.  But never before have I had a general background or any academic training - it was always learn as you go.

I’m hoping this will present much blogging fodder, particularly as I am finally free of confidentiality issues on the matter.  I will also be attempting to understand the relationship between the two.  As I learned about them, and dearly missed my passion for all things internet while reading valve schematics, I began to get the impression that they were distinct entities.  As the members of my “Practical Lawyering for Cyberspace” seminar rattled off the IP courses they were taking, I realized that the connection between them is something I am just beginning to understand.

I suspect that this and my introductory intellectual property course will make up the bulk of my entries this term.  My interest is fully piqued, and one of my grades dependent on online participation, so we might see a spike in volume as well.

The first week in our Lawyering in Cyberspace Course dealt with Cease and Desist letters, including those sent by copyright holders to individuals.

In one instance, the NFL had YouTube remove a video that a law professor had posted, mostly consisting of their overreaching copyright notice. She purposefully included some footage of the game itself, and entitled the video “SuperBowl Highlights.” This layered the irony of the act; her point about the wild claims of copyrights within the SuperBowl would be made not just by its repetition, but by the act of removing that repetition under a copyright assertion.

My first reaction to the conflict was visceral, and sprung not by the removal but by the claims I saw in that video made by the NFL:

This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL’s consent, is prohibited.

What? Accounts? granted I have far to go in my understanding of copyright, but I believe you can only copyright expression, not facts. The NFL’s purported prohibition from talking about what happened in the game is therefore claiming more rights than they have. This reminds me of those little liability waivers in contracts of adhesion which parties have no hope of upholding in court, but nonetheless serve to discourage people from suing.

Furthermore, although fair use is a fuzzy doctrine, it looked pretty clear to me that this was well within the bounds of it. The purpose and character is non-commercial, and indeed political, the very essence of what is being protected. The NFL would seem to have no real property interest in the copyright notification itself (who is going to buy that?). The clip of the game itself is small and uninteresting, with no market in and of itself.

The initial takedown, prompted by NFL’s assertion of rights under the DCMA and complied with to keep YouTube within the Safe Harbor, appears to have been the result of mere carelessness. An assertion the NFL sloppily made of similarly-titled videos and/or those whose screen shot showed the game.

I’ll pause here, since this itself is problematic. Not all YouTube users are savvy law professors, who know they are in the right. Many would have no clue how to respond appropriately to get the video reinstated, a complicated procedure that requires specific claims and statements, and consent to jurisdiction they may fear making. The result will therefore be that many fair use videos will be removed, and free speech wrongfully silenced. Of course, the administrative hurdles to finding, watching, and evaluating every video present no clear alternative.

After the reinstatement, the NFL re-asserts its copyright, causing a second takedown. This is more focused, and individual. It is therefore more offensive, since they had a clearer indication that there were legitimate fair use claims here, perhaps even to the point of it being obvious there was no copyright violation. Since there was no harm to Viacom in showing the clip, as in taking away from their ownership in the game, why did they do it? At that point it becomes suspicious - they may be attacking her for the message itself.

I have been working with a fellow student on our projects. We have met to go over code issues when his blog wasn’t aligning properly (I’m an old hand at html) and have had a few discussions about our projects. After the in-class discussion, he e-mailed me on a matter that had been troubling me - what is the goal of my project?

A student pointed out that if I simply wanted to advocate for cafeteria plans, pitting the childfree against parents isn’t the best way to accomplish that. They’re right. Yet when I considered scrapping the whole Childfree Issues thing and focusing on the plan itself, the idea left me cold. It was more than just the fact that I would have to start from square one. It just wasn’t my goal.

My classmate’s email helped me hone in on the problem:

LT,
i had some thoughts on your project. i think your benefits issue and invisibility issue are kind of tension with one another and it’s probably best to focus on one for the purposes of the project. the benefits issue as you express it doesn’t seem to have a lot of appeal to parents or companies - they’re not getting anything out of this - as i understand it, you’re appealing to their basic sense of fairness, which is especially difficult if they’re not sympathetic to the childfree issue. i’d think the best way to get support on the cafeteria plan would be to show how this could benefit all kinds of employees, i.e. giving them more choice, as opposed to making it a “childfree rights” sort of issue.
the problem with that kind of argument is that it makes the childfree constituency more “invisible.” my gut reaction is that the best idea is to compartmentalize the benefits and childfree-awareness issues into separate projects.
hope this helps,
XXXXX

The first step is to get people to self-identify. While there is a vocal childfree community, the majority of people who will choose to have children do not join it. I have friends who don’t want kids, and they do not make friends on that basis, or even attach a label to it. It is not something they seek out. Furthermore, as a commenter on my blog noted:

I entered Second Life today, probably at the expense of the Constitutional Law work sitting in front of me. It feels strange to be doing something so closely related to how I previously entertained myself, even if it is for a course.

On the syllabus there was scheduled a “Second Life Fest” for both the law and extension school students, apparently mandatory for the latter. I suppose I am not up to date on their altered syllabus, since there were not too many people there. Fortunately, I did run into a few ‘at-large’ participants who were interested in discussing the projects (although they had not done projects of their own) and was able to observe those portions and representations of ES projects that were stationed in Second Life. I viewed websites advocating warnings before an avatar enters a mature area, a project about Second Life, specifically Linden Labs owning the creations of the users.

The person who asked about my project had already seen the video, but I was able to discuss it more. I realized that my project was requiring a little too much in the way of explanation, and created a gateway page for entering the website and blog… I might have to refine it, but it forced me to state more clearly what I am trying to accomplish. I also altered the text on the “What Can I Do?” page of the site to reflect the aim, which is a very abstract goal of sheer awareness… More on that later.