Technically Legal

Technology and the law. Done right.

Apple Responds to Tracking Controversy

Apple has issued a press release explaining what location-based data they do and do not collect. The answers are a little surprising, in that Apple admits to collecting some encrypted, anonymous, data about users location in relation to cell towers and to traffic, but Apple explains that the cell tower information stored on the phone and backed up to the computer is kept to decrease the time it takes for the phone to display your location. The press release is short, and well worth the read.

1 Comment Posted in: Links on April 27, 2011

Episode 98: America Invents Poker

iPhone Collects Tracking Data, America Invents Act, US Shuts Down Poker Site

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iPhone Collects Location Data

iOS devices secretly log and retain record of every place you go, transfer to your PC and subsequent devices
3 Major Issues with the Latest iPhone Tracking “Discovery”

America Invents Act

America Invents But Congress Perverts

US Shuts Down Poker Sites

A new world for online poker

Comments Off on Episode 98: America Invents Poker Posted in: Podcast on April 26, 2011

Weekly Links: April 17-23, 2011

Another busy week has already passed us by!  Here’s what’s been on our radar in the last seven days.

Fodder for a “Social Network: PREQUEL”? [via New York Times]

Domain squatting 1-800 numbers. [via Boing Boing]

Phone searching at traffic stops. [via TechDirt]

Apple sues Samsung over several IP claims on Galaxy phones and tablets.  [via Engadget]

Weird Al’s Gaga-Saga and analysis.  [via Weird Al and Technically Legal] [original post from Al]

Apple tracking iPhones?! Gasp! [via Boing Boing]

Senators question Apple over iPhone tracking. [via Ars Technica]

Nielson says Mobile users are uneasy about mobile devices and privacy. [Ars Technica]

U.S. shuts down several poker websites in one fell swoop.  [via cnet]

America [tries] to invents a new patent statute. [via Patent Hawk]

FTC says that kids are denied purchasing “M-rated games” 87% of time. [via Ars Technica] and [original FTC release]

Grooveshark tells Apple, Google, and the RIAA that its services comply with the law. [Ars Technica]

Comments Off on Weekly Links: April 17-23, 2011 Posted in: Weekly Links on April 25, 2011

Weird Parody – Al Yankovic and Fair Use

Weird Al made big news this week when he wrote about how Lady Gaga allegedly declined permission for Weird Al to release a parody of “Born This Way” called “Perform This Way.”

The facts, briefly, are that Weird Al came up with the idea and asked for permission. Lady Gaga’s representatives asked to hear the song first they gave permission, so Al wrote the lyrics and sent them to Gaga’s staff. Gaga’s staff then said that they had to hear a finished song before giving permission, so Al recorded the song, and sent it off for approval, but Gaga did not approve.

Al, opposed to wasting his time, posted about what happened and released the song for free.

Lady Gaga came back saying that she loves Weird Al, and that she never heard the song, and immediately approved it for release.

When reporting on the story, the blogosphere has been operating under the assumption that all of Weird Al’s songs are protected by Fair Use. As much as I love Weird Al, I don’t think that is the case.

Parody v. Satire

Weird Al’s work is often labeled as parody, but not all of it is, in addition to the original work he does, Weird Al also does satire. The Supreme Court has addressed the difference between parody and satire. In Campbell v. Acuff-Rose.

Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.

510 U.S. 569, 580-581 (1994). “Perform This Way” happens to be a parody. It’s using a work of Lady Gaga’s to make fun of Lady Gaga. The song simply wouldn’t have the same effect if Weird Al wrote a song poking fun at Lady Gaga to the tune of a Taylor Swift song.

The same can be said about other great Weird Al works like “Smells like Nirvana,” and to a lesser extent, “White and Nerdy.” But what about “Canadian Idiot” which satirized American’s views of Canadians, or “Eat It,” “Gump,” or “The Saga Begins.”

While the use of “American Idiot,” “Beat It,” “Lump,” and “American Pie” added something to the song, the original songs were not necessary to achieving the goal of the satire, which would weigh against fair use.

The Saga Begins

Let’s take “The Saga Begins.” The premise of the song is that Weird Al is singing the plot of “The Phantom Menace,” from the perspective of Obi Wan Kenobi, to the tune of “American Pie” by Don McLean. “The Saga Begins” would infringe “American Pie” because it takes the melody and song structure, and it is also a derivative work of “Phantom Menace,” because it’s a rehashing of the plot. Weird Al had permission, so he wouldn’t be sued, but if he didn’t have permission, I don’t see how this was a fair use of either work.

You can make an argument about how use of “American Pie” was necessary to make fun of “A Phantom Menace,” that how by juxtaposing the beloved song with the plot of a movie that’s part of a beloved American franchise, Al was making some poignant statement. But, “The Saga Begins” doesn’t poke fun at Don McClean, and it barely pokes fun at George Lucas. So it does not fit into the Supreme Court’s definition of parody. Without permission to do so, Al would need some justification to use Don McClean’s work to retell Lucas’.

Polka Dots

Weird Al’s polkas are even less clearly fair use, if they are at all. In the polkas, Weird Al creates a medley of recent hits and sets them to a fast paced polka. The polkas themselves could be characterized as a satire of popular music, but the songs that are included are relatively arbitrary. While Weird Al only uses a small portion of each song in his medley, even uses of a few seconds of a song can be copyright infringement not protected by fair use.

The Factors, Once More

All of the elements discussed above would be weighed along with the four, non-exclusive, fair use factors. While we’ve discussed them before, here they are again:

the purpose and character of your use

the nature of the copyrighted work

the amount and substantiality of the portion taken, and

the effect of the use upon the potential market.

None of these is dispositive. Which is to say even if the use is commercial like most of Weird Al’s songs, it can still be fair use. Whether the use is a parody or satire goes to the purpose and character of the use.

The case law surrounding Fair Use is always in flux, and clear answers are almost never found. While I do believe that “Perform This Way” would have been a fair use, not all of Weird Al’s catalog would be in the clear if he operated without permission of the artists who’s music he uses.

1 Comment Posted in: Analysis on April 22, 2011

Episode 97: Paul Ceglia Strikes Back

Reposted with the correct file name! 😉

The return of the Facebook suit, FBI Takes Over a Bot Net, and a Musician gets 2 months for a YouTube video.

Please download the podcast or subscribe to the feed.  Feel free to e-mail us with comments and suggestions.

Ceglia Suit Returns

The Guy Who Says He Owns 50% Of Facebook Just Filed A Boatload Of New Evidence — And It’s Breathtaking

FBI Takes Over Bot Net

With Court Order, FBI Hijacks ‘Coreflood’ Botnet, Sends Kill Signal

Musician Gets 2 Months

YouTube Prankster Sentenced to 60 Days in Jail for Kid Vid
Misdemeanor Plea in Case Involving Making Video of Yourself Supposedly Singing Sexually Themed Songs to Children (Who Actually Weren’t Present During the Singing)

Comments Off on Episode 97: Paul Ceglia Strikes Back Posted in: Podcast on April 19, 2011

Episode 96: A new streaming model?

Zediva gets sued by several movie studios and France wants Google to save your personal information for a year (if you live in France).

Please download the podcast or subscribe to the feed.  Feel free to e-mail us with comments and suggestions.

Zediva Gets Sued by the Movie Studios

Zediva’s new movie rental model

Zediva gets sued by the studios

The complaint

Google Challenges New French Requirement to Store Personal Information For a Year, Including Passwords(?!)


Comments Off on Episode 96: A new streaming model? Posted in: Podcast on April 11, 2011

Weekly Links: April 3rd – 9th, 2011

Another busy week has already passed us by!  Here’s what’s been on our radar in the last seven days.

Pirated Android Apps and Freeloaders. [via Slashdot]

Google to buy Nortel IP? [via Google Blog]

Judge in Chicago does not like the mass p2p lawsuits. [via Ars Technica]

Court denies request to subpoena information from Twitter and Facebook.  [via the Technology and Marketing Law Blog]

Tracking using data from a cell phone in Germany.  [via]

Verizon v. FCC Net Neutrality challenge thrown out of DC Circuit on procedural grounds. [via Ars Technica]

Some questionable Toyota advertising taken down after Apple complained. [via The Next Web]  and [via Daring Fireball]

Pandora says a grand jury is looking into Apple and Android Apps. [via Tuaw]

Zediva’s clever DVD-streaming business model to be challenged in court. [via Ars Technica]

Google sues France over data retention laws. [via Google]

Yahoo! found liable for searchable content in Italy. [via Slashdot]

9th Circuit (re)affirms ruling on laptop searches at the US borders. [via Tech Dirt]

Time Warner and Viacom go to court over iPad streaming issues. [via The Guardian (UK)]

The FTC and DOJ seem to be interested in Google search engine antitrust issues. [via Reuters]

The DOJ approves Google’s acquisition of ITA (the travel search company) with some conditions. [via TechCrunch]

Comments Off on Weekly Links: April 3rd – 9th, 2011 Posted in: Links, Weekly Links on April 11, 2011

Episode 95: To the Cloud!

Righthaven goes after a Journalist, Amazon Launches CloudPlayer, Parents Sue Facebook Over Photos

Please download the podcast or subscribe to the feed.  Feel free to e-mail us with comments and suggestions.

Righthaven Sues Eriq Gardner

Righthaven hits journalist with infringement lawsuit

Amazon Launches Cloud Player

Amazon on Cloud Player: we don’t need no stinkin’ licenses

Parents Sue Facebook

Parents sue over Facebook photos of dead daughter

Comments Off on Episode 95: To the Cloud! Posted in: Podcast on April 4, 2011

Weekly Links: March 27th – April 2

Welcome to our new “Weekly Links” feature!  In this new feature, we share “what’s on our radar” in a blog post each Saturday or Sunday with links to the stories in our podcast e-mail thread.  If we missed any stories, please feel free to note them in the comments.

Righthaven sues, then dismisses case against Eriq Gardner over Ars Technica article. [via Ars Technica and Technically Legal]

Sprint officially opposes AT&T&T-Mobile merger. [via LA Times]

Groupion sues Groupon over trademark issues. [via Technology & Marketing Law]

Amazon launches cloud media player; do they need licenses? [via Ars Technica]

Parents sue Facebook over photos of deceased daughter. [via ZDNet blog]

Massachusetts fines company $110k under new data breach law. [via Slashdot]

Google settles its FTC inquiry over Buzz privacy mishap. [via FTC] [proposed settlement]

Massachusetts tries to close obscentiy loophole that implicates obscene electronic messages. [via The Boston Globe]

Google launches “+1″ service — social results ranking. [via TechCrunch]

Microsoft files antitrust complaint against Google in the European Commission. [via The Guardian]

Facebook sued for $1B over offensive page removal. [via TechCrunch]

Comments Off on Weekly Links: March 27th – April 2 Posted in: Links, Weekly Links on April 4, 2011

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