Wednesday, November 30, 2011

In View of Events From the Last Several Days, Are PROTECT-IP and SOPA Even Necessary?

I've written in the past about the so-called PROTECT-IP act and SOPA, two proposed bills currently before Congress.  Proponents of the bills claim that they are necessary to protect legacy content industries against "rogue websites" that supposedly enable intellectual property theft.  As other opponents of the bills and I have noted, the bills are overbroad, overreaching, and will do more harm than good.

Events of the last several days suggest that the government and IP holders are not afraid to use (and perhaps abuse) existing case law and court procedures to deal with "rogue" websites.  In particular:

  • On Monday and again today, several sources reported about a Nevada district judge granting a far-reaching TRO sought by Chanel, the maker of luxury goods.  As a private party, Chanel asked the court to seize domain names that allegedly sold counterfeit goods.  The Court didn't simply grant an injunction against the defendants prohibiting them from using any Chanel marks or selling any Chanel products.  It went further and ordered (1) an injunction against the top-level domain name registry, directing it to change the registrar of record for the domain names to GoDaddy; (2) an injunction telling GoDaddy to change the DNS data for the domain names so the domain names resolve to a site where a copy of the case documents are hosted; and (3) an order requiring Google, Bing, Yahoo, Facebook, Google+, and Twitter to "de-index and/or remove [the domain names] from any search results pages."

It's not clear whether the ICE seizures actually comply with due process, or are otherwise illegal.  It's even more unclear whether the Nevada court's order is legal (among other things, it doesn't seem proper for a court to enjoin non-parties such as Google, Bing, etc.)  However, if the government already has the power to seize websites, and if existing law already gives private companies such as Chanel the right to obtain such broad remedies, it's hard to see what PROTECT-IP act and SOPA will really add to stopping "rogue websites."  Perhaps, as we have argued, what the proponents of those bills really want is to obtain far broader powers against legitimate Internet-based companies and free speech.

Tuesday, November 29, 2011

Internet "Piracy" Explained

When legacy content industry lobbyists say that file sharing is "theft" or "piracy," their facts are not quite right.  Here's a handy diagram explaining the situation.

Saturday, November 26, 2011

Judge Posner Puts a Picture of an Ostrich in an Opinion

Judge Posner of the Seventh Circuit put a picture of an ostrich -- and something worse -- in this opinion. Scroll down to pages 5-6.

Friday, November 18, 2011

Fenwick's Magnum Opus on Internet Copyright

Fenwick & West has prepared a 557-page paper entitled, "Advanced Copyright Issues on the Internet."  I obviously haven't read this entire paper, but at least parts of it seem to include a comprehensive discussion of Internet-related Copyright law.

Thursday, November 17, 2011

Miscellaneous Links About Yesterday's SOPA Hearings

Yesterday the House Judiciary Committee held a hearing on SOPA, the so-called "Stop Online Piracy Act."  The above site has a link to a webcast of the hearings.  Techdirt's summary of the hearings is here; as that summary notes, surprisingly some of the Representatives expressed concerns about the overreaching aspects of the proposed act.  (Techdirt has many other articles about SOPA and the hearings.)

Here are some other links about SOPA:

Wednesday, November 16, 2011

Planning Ahead for Thanksgiving?

 Here's some suggestions.  But note that several people advise avoiding "The ancient marshmallow yams of sorrow."

Wednesday, November 9, 2011

Post-Hearing Letter Briefs in Viacom v. YouTube

The Second Circuit heard oral argument in Viacom v. YouTube and Premier League v. YouTube on October 18, 2011.  Following the argument, on October 25, the Court asked the parties to submit letter briefs on the following two questions:

The parties are hereby ordered to submit letter briefs, not exceeding ten pages doublespaced, on the following questions: (1) whether and how the red-flag knowledge provision would apply under the Defendants’ “specific” knowledge construction of § 512(c)(1)(A); and (2) whether YouTube’s “syndication” of videos to third parties falls outside the scope of safe harbor protection for activities that occur “by reason of . . . storage at the direction of a user” under § 512(c)(1).
YouTube's November 1 letter brief is here; the plaintiffs' joint November 8 letter brief is here.  Needless to say, the parties didn't agree on very much.

Monday, November 7, 2011

SOPA: A Really Bad Idea

Some people have asked me about SOPA, or the "Stop Online Piracy Act."  SOPA is a House bill that is the House's version of PROTECT-IP, a Senate bill.  

If it passes, SOPA would be a disaster for technology companies. SOPA would allow the legacy content industries to use litigation to shut down any new technology they didn't like. A neutral analysis of the act is here.  Other people have written about some of the many problems with the bill.  EFF has several articles about the act, including this one, this one and this one. Techdirt has many articles about the act, including this comprehensive article, this article describing how the bill's supporters misstate what it would do, and this article discussing how SOPA would harm innovation.  Here's a Techcrunch article about the bill. 

There are several petitions opposing the act. I have signed two of them, one sponsored by the EFF and one on the website.

UPDATE: Here is Techdirt's even more comprehensive post about SOPA.

MP3Tunes Amended Opinion: DMCA Applies to pre-1972 Sound Recordings

In August I mentioned a ruling in the Capitol Records v. MP3Tunes case, in which a district court gave MP3Tunes broad DMCA protection for much (but not all) of its activity.  The record company plaintiffs moved for reconsideration, in part claiming that the DMCA does not give protection to songs recorded before 1972.  Such songs are presently protected by state law, not the federal Copyright act.  In response, the court issued an amended opinion holding that the DMCA applies to pre-1972 sound recordings

"The plain meaning ofthe DMCA's safe harbors, read in light oftheir purpose, covers both state and federal copyright claims. Thus, the DMCA applies to sound recordings fixed prior to February 15, 1972."

Thursday, November 3, 2011

Copyright Irony of the Day

So let's get this straight:  John Wiley publishes a book, "BitTorrent for Dummies," telling people how to use that software to share copyrighted files without permission.  Surprise!  BitTorrent users wind up sharing other books in Wiley's "Dummies" family.  What's Wiley to do?  Sue them, of course.

Wednesday, November 2, 2011

"The 32 Wittiest Comebacks Of All Time"

Snappy comebacks.  While Winston Churchill is probably mentioned most often, my favorite is Faulkner vs. Hemingway.