Net Neutrality, ASCAP and BMI want money for iTunes 30-Second Previews, Google Demands Android Modder Take Down Software.
ASCAP and BMI Want Fees
ASCAP, BMI Demanding Payment For 30 Second Previews At Web Stores
Music publishers: iTunes not paying fair share
Google Halts Andriod Developer
Google Files Cease and Desist Over Android “Hacks”
Google responds to CyanogenMod controversy
We would like to welcome David Lu!!, a Ph.D. Candidate in Computer Science from Washington University, St. Louis, to the Technically Legal team! Although David has not attended law school, he brings some excellent technical acumen to the table in additional to his strong laymen’s interest in technology related legal and policy concepts. David will be a regular member of our weekly podcasts as well as a contributing author to the site.
In case you are wondering, the exclamation points following his surname are not entirely grammatically incorrect, but actually part his of legal name. I’m sure there is a curious story behind the matter, but we have yet to get to the bottom of it. He will have a heck of a time explaining this to a U.S. Senate committee someday.
Comments Off Posted in: Commentary on September 27, 2009
In addition to the traditional claims that they don’t qualify for protection from these kinds of suits under the DMCA, the plaintiff is claiming that Scribd’s filtering technology violates copyright.
Briefly, the filter works by making a copy of every file for which they receive a takedown notice. They then compare newly uploaded files with the database in their filter. If there is a match (presumably even a substantial, but not complete match) they won’t post the file.
But in April, this kind of use was endorsed by the 4th Circuit as Fair Use. In that case, students who submitted papers to TurnItIn had their papers copied and added to a plagiarism database. The court held that TurnItIn’s use was Fair Use under the copyright act because they transformed the paper from informative to useful in detecting plagiarism. This was despite the fact that the use was commercial, and used the entire original work. Another important factor was that there is not much of a market for licensing student papers for plagiarism databases.
Similarly, Scribd’s use was transformative, and there is currently no market for licensing copyrighted works for use in copyright infringement prevention databases.
For the record, Scribd denies copying the relevant files.
Safe-harbors under the DMCA, limits on the Computer Fraud and Abuse Act, Outing Anonymous Posters in California, Google’s FCC Filing-Unredacted.
Safe-Harbors under the DMCA
Limits on the Computer Fraud and Abuse Act
Outing Anonymous Posters in California
Google’s FCC Filing-Unredacted
Comments Off Posted in: Podcast on September 21, 2009
The online document sharing service Scribd.com is being sued for copyright infringement by none other than Kiwi Camara, the lawyer who stepped in to defend Jammie Thomas at the last minute before her recent trial.
Mr. Camara makes several claims (that we will hope to go into at some later date), but the most interesting is that by trying to prevent copyright infringement, Scibd is violating copyright.
When Scribd gets a takedown notice, they add the allegedly infringing work to a database they keep. They check newly uploaded works against the database, and reject any documents that have previously reported to be infringing.
Veoh got around that problem by creating a hash of the video file, as opposed to making a copy of it.
If one thing is becoming clear, it is that the DMCA, or copyright in general may be in need of an overhaul to catch up to technology and social norms.
The case held that GPS tracking of a car requires a warrant, which the post seems to think is an invasion of privacy. True. It is. But Massachusetts is one of only a handful of states that says you even need a warrant to slap a GPS tracker on a car. Most states, and most Federal Courts, say that it’s fine to do so without a warrant as long as the GPS device isn’t inside the car. So, Massachusetts is more protective of rights than most of the rest of the country on this issue.
Second, the post says that Justice Gants dissented. He did not. He agreed with the court, but on different grounds. The majority of the court said that putting the GPS device on a car constituted a seizure of the car under the Fourth Amendment. That because the Police were using the car for their own purposes, they needed a warrant.
Justice Gants, and two other justices, said that this constitued a search under the Fourth Amendment. In other words, that people have a reasonable expectation of privacy that their car will not be followed 24/7 by police officers. He’s also wrong.
First, the reasonable expectation of privacy isn’t from just police intervention, it’s a general reasonable expectation of privacy. Second, police *can* follow your car 24/7 without a warrant. Yes, it is more difficult than using a GPS device, but ease of the investigation doesn’t bear on whether you have a reasonable expectation of privacy there.
I’d like to be clear. I agree that putting devices on the car is a seizure under the Fourth Amendment, and should require a warrant. So I don’t disagree with the result, just the reasoning of the concurrence.
One last note: While I’m talking about this in Fourth Amendment terms, and the case technically rested on the Massachusetts Declaration of Rights, the relevants standards are unchanged (see the concurrence at page 3).
Comments Off Posted in: Commentary on September 18, 2009
As always, the good folks at the Volokh Conspiracy, come through with the latest analysis.
Comments Off Posted in: Links on September 16, 2009
Twitter Changes their Terms of Service, a new challenge to statutory damages, Glen Beck and online defamation.
Twitter Changes their Terms of Service
Challenge to Statutory Damages
Glen Beck and Online Defamation
Wil was talking about the woodgrain background that is a prominent feature of Delicious Library. As the story progressed he found yet another application that had just taken his copyrighted .png files from his desktop app and reused them in iPhone apps.
And at best I’d maybe get an injunction, not damages. And, really, they’re not making enough money for me to regain my losses.
He makes a good point. Even if he had registered a copyright on the images (the only way to get statutory damages, as opposed to actual damages), the company that was using his images probably did not have enough assets for him to recover whatever judgment he could win. And even if the company had money, that would all be sunk into lawyers before Wil saw a dime.
So, what’s an independent developer to do?
So I’m going to call them thieves publicly and embarrass them. Skip the lawyers, let’s go back to shaming people!
The strategy was effective. Eight hours after that last tweet, Wil posted this update:
Stolen images update: Tom from Netwalk apologized, said he didn’t know it was my texture, promised a resubmitted “MyMovies” update tonight!
There are really two important take-away messages from this story.
- Copying an image from someone computer’s program and using it in your own can constitute copyright infringement. If the owner of the image has registered that copyright, it can open you up to RIAA v. The People sized damages: thousands to tens of thousands of dollars per infringement. If you are selling the images, it could expose you up to jail time.
- There are ways other than the courts to resolve copyright disputes that leave both parties happy. Here, Wil was happy that people stopped using his intellectual property, and the people who took his images were no doubt happy that he won’t be filing suit, as he very well could do.
And, yes, these tweets were reproduced with permission.
The Berkman Center is hosting an open house, tonight 7pm in Cambridge, MA. Details here. I will be attending, if you are in the area be sure to stop by! Hope to see you there.