Internet Defense League

Today I signed this blog up for the Internet Defense League.  If you have a web site or a blog, you might want to look into it.

Relativistic Baseball!

What happens if a baseball was pitched at 90% of the speed of light?  "A careful reading of official Major League Baseball Rule 6.08(b) suggests that in this situation, the batter would be considered "hit by pitch", and would be eligible to advance to first base."

Regional Patent Office to Open in Silicon Valley

The U.S. Patent Office announced today that it will open a regional office in Silicon Valley, California.  Hooray!

Further Briefing in UMG V. Veoh

A few weeks ago the Ninth Circuit asked for further briefing in UMG v. Veoh, which I wrote about in this post.  As I explained, in response to UMG's petition for rehearing, the Court asked the parties to brief the effect of the Second Circuit's Viacom v. YouTube decision.  Both the Ninth Circuit and Second Circuit opinions largely interpreted the DMCA in ways that favored the user-generated content (UGC) websites, Veoh and YouTube, and that disagreed with interpretations requested by UMG, Viacom, and other content providers.  However, on a few issues, the Second Circuit had different views than the Ninth Circuit.

The parties have now filed their briefs.  UMG's brief is here; Veoh's brief is here; a separate brief by Shelter Capital Partners (the Veoh investors that UMG also sued) is here.  Not surprisingly, Veoh argued that it was still entitled to summary judgment under the Second Circuit's standard, should the Ninth Circuit choose to agree with the Second Circuit in those few areas where the courts initally disagreed.  UMG had a more difficult task.  UMG disliked the legal rules proposed by both the Ninth and Second Circuit.  Thus, UMG's brief asked the Ninth Circuit not to adopt the Second Circuit's views, but rather arguments that both circuit courts had already rejected.

My prediction is that sometime in the next two to six months (depending on how busy the Judges are with other matters) we will see an amended opinion in UMG v. Veoh, adopting some if not all of the reasoning of the Second Circuit.  Doing so might or might not require a remand to the district court for more summary judgment proceedings, as the Second Circuit ordered in Viacom v. YouTube (my guess is not).  UMG would then have to try to persuade the Supreme Court to hear a case where the two circuit courts that hear most of the nation's copyright appeals are in substantial or complete agreement -- it's unlikely the Supreme Court would act in such circumstances.

More Proof That the Internet Is **Indeed** Made of Cats

Because you might think that the Affordable Care Act (a/k/a Obamacare) has nothing to do with cats.  But it does.

I Am Definitely NOT Moving to the East Coast

Best weather forecast ever?  You decide.

But the "IPCat" Blog Just Doesn't Sound Right

Today, we indeed have proof that the Internet is made of cats.  Courtesy of Google, of course.

Haiku of the Day

Thanks to the Huffington Post for the perfect Haiku:

Five syllables here

Seven more syllables there

Are you happy now??

Dave Barry's Christmas Gift Guide Comes Early This Year

Introducing . . . The Squatty Potty.  In particular the videos have . . . a little too much information.

Order for Further Briefing in UMG v. Veoh

I have written previously about the UMG v. Veoh and Viacom v. YouTube cases.  Briefly, both cases involve claims by content owners that the operators of user-generated content (UGC) websites such as YouTube and Veoh are liable when their users post allegedly infringing content.  Both YouTube and Veoh convinced trial courts that they are not liable for such postings because they complied with the notice-and-takedown procedure of the Digital Millennium Copyright Act, 17 U.S.C. § 512(c).  The UGC sites claim that upon receipt of proper requests, they promptly took down any infringing content.

Both sets of content owners appealed.  In December 2011, the Ninth Circuit Court of Appeals affirmed the trial court's summary judgment in favor of Veoh.  In April 2012, the Second Circuit Court of Appeals affirmed the trial court's summary judgment in favor of YouTube in part, but remanded the case in part for further fact finding on some issues (and possible further summary judgment briefing).  I discussed both opinions here and here.  In the YouTube case, the Second Circuit agreed with the Ninth Circuit's decision on many issues, but not all of them.

After the December 2011 decision in the Veoh case, the plaintiffs asked the Ninth Circuit to rehear the case.  After reading the April YouTube decision, the Ninth Circuit decided to rethink its Veoh opinion.  In an order last week, the Ninth Circuit asked the parties in Veoh to file additional briefs on the following issues:

     On December 20, 2011, this Court issued its opinion in UMG Recordings v. Veoh Networks, 667 F.3d 1022 (9th Cir. 2011), affirming in part, remanding in part and upholding the District Court’s grant of summary judgment because the defendants were protected by the Digital Millennium Copyright Act (DMCA) safe harbor provisions. The Appellants have filed a petition for rehearing and rehearing en banc, and the Appellees have filed a response.

     The Appellants argue, inter alia, that (1) the panel decision has conflated the 17 U.S.C. § 512(c)(1)(A)(i) actual knowledge standard and the § 512(c)(1)(A)(ii) “red flag” knowledge standard, see PFR/EB 12-15; and (2) by importing a knowledge requirement into § 512(c)(1)(B) (the “right and ability to control” provision), the panel decision has rendered it duplicative of § 512(c)(1)(A), see PFR/EB 15-17.

     After briefing was completed on the pending petition, the Second Circuit issued its opinion in Viacom International v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012). The Second Circuit held, in relevant part, that (1) the § 512(c) safe harbor (including the “red flag” provision) requires knowledge or awareness of specific infringing activity, see id. at 30-35; and (2) the District Court erred by importing a specific knowledge requirement into the § 512(c)(1)(B) “right and ability to control” provision, see id. at 36-38.

     Within 21 days of the date of this order, each party shall file a supplemental brief, not exceeding 3800 words or 15 pages, addressing certain relevant issues pending before this Court in light of the Second Circuit’s opinion in Viacom. Specifically, the parties should address the following questions:

1. Actual and “red flag” knowledge

The Second Circuit held:

The difference between actual and red flag knowledge is . . . between a subjective and an objective standard. In other words, the actual knowledge provision turns on whether the provider actually or “subjectively” knew of specific infringement, while the red flag provision turns on whether the provider was subjectively aware of facts that would have made the specific infringement “objectively” obvious to a reasonable person. The red flag provision, because it incorporates an objective standard, is not swallowed up by the actual knowledge provision under our construction of the § 512(c) safe harbor. Both provisions do independent work, and both apply only to specific instances of infringement.

Viacom at 31. Does the Second Circuit draw the correct distinction between actual and red flag knowledge? If so, does the distinction affect the disposition of this case?

2. “Right and ability to control”

     Does a service provider have to be aware of the specific infringing material to have the “right and ability to control” the infringing activity? Does importing such a knowledge requirement make it duplicative of § 512(c)(1)(A)? If there is no knowledge requirement, does a copyright holder need to show that a service provider possesses “something more than the ability to remove or block access to materials posted on a service provider’s website” in order to have the right and ability to control infringement? Id. at 38 (citations and internal quotation marks omitted). If so, what must the copyright holder show? Should this Court adopt the Second Circuit’s resolution of these questions? See id.

This briefing will likely result in an amended decision in the Veoh case.  That isn't necessarily bad news: there's a good chance that Veoh still wins depending on how the Ninth Circuit decides these issues.  And if the Ninth Circuit fully agrees with the Second Circuit, that lessens the possibility that the U.S. Supreme Court will decide to hear either case.

That Darn Modern Technology

A student brings a typewriter to class instead of a laptop. Hilarity ensues.  YouTube link is here.

Haiku Error Messages

Apparently the BeOS operating system used haiku error messages.  A sample:

Yesterday it worked
Today it is not working
The web is like that.

The web site you seek
Lies beyond our perception
But others await.

Error reduces
Your expensive computer
To a simple stone.

First snow, then silence.
This expensive server dies
So beautifully.

and the most well known one:

These three are certain:
Death, taxes, and site not found.
You, victim of one.

Pigs Fly Safely: With EFF's Support, Viacom Wins Fair Use Lawsuit

In December 2011, I wrote about my EFF amicus brief where EFF supported . . . Viacom.  I noted that this was a bit unusual.

EFF supported Viacom and its "South Park" subsidiary in Brownmark v. Comedy Partners because Viacom had been sued for making a parody of Brownmark's music video in a South Park episode.  EFF supported Viacom's right to make such parodies, and to get copyright suits against such parodies dismissed at the pleading stage, avoiding costly discovery and trial.

Today the Seventh Circuit Court of Appeals ruled in favor of Viacom and South Park, finding that the parody video was fair use, and that courts could dismiss cases at the pleading stage based on fair use.  The court stated:

The expense of discovery, which SPDS stressed at oral argument, looms over this suit. SPDS, and amicus, the Electronic Frontier Foundation, remind this court that infringement suits are often baseless shakedowns. Ruinous discovery heightens the incentive to settle rather than defend these frivolous suits.

I'm pleased that the copyright universe is safe for flying pigs, and the fair use defense in particular.  EFF's blog post about this decision is here.  Update: Techdirt's post about this opinion has links to the two videos.  And another blogger claims that this is the first appeals court decision to use the term "copyright troll."

I Just Have to Buy This Book When It Comes Out

If not just for this article's headline: "Copyright law threatens to destroy the world, in Year Zero."  And best of all, it's a real book!

My Friends in Texas Should NOT Click Here

However, if you live in Alaska, click away.

Judge Alsup Rules that Java APIs Are Not Copyrightable

In the well-publicized Oracle v. Google case, Judge Alsup has ruled that Java APIs are not copyrightable, at least to the extent of Google's limited use of the APIs in Android.  Judge Alsup relied on the Lotus v. Borland case I worked on many years ago, and other similar cases, to reject Oracle's copyright claim.  Since a jury ruled that Google didn't infringe the two Oracle patents being tried, that leaves Oracle with a minimal damages claim for a few lines of code (not related to the API claim).  Techdirt's writeup of this decision is here; EFF's post is here; Eric Goldman's post (by Tyler Ochoa) is here.

Some key points of Judge Alsup's ruling are as follows:

In view of the foregoing, this order concludes that our immediate case is controlled by these principles of copyright law:
• Under the merger doctrine, when there is only one (or only a few) ways to express something, then no one can claim ownership of such expression by copyright.
• Under the names doctrine, names and short phrases are not copyrightable.
• Under Section 102(b), copyright protection never extends to any idea, procedure, process, system, method of operation or concept regardless of its form. Functional elements essential for interoperability are not copyrightable.
• Under Feist, we should not yield to the temptation to find copyrightability merely to reward an investment made in a body of intellectual property.

As long as the specific code written to implement a method is different, anyone is free under the Copyright Act to write his or her own method to carry out exactly the same function or specification of any and all methods used in the Java API. Contrary to Oracle, copyright law does not confer ownership over any and all ways to implement a function or specification, no matter how creative the copyrighted implementation or specification may be.  The Act confers ownership only over the specific way in which the author wrote out his version.  Others are free to write their own implementation to accomplish the identical function, for, importantly, ideas, concepts and functions cannot be monopolized by copyright.

Much of Oracle’s evidence at trial went to show that the design of methods in an API was a creative endeavor. Of course, that is true. Inventing a new method to deliver a new output can be creative, even inventive, including the choices of inputs needed and outputs returned.  The same is true for classes. But such inventions — at the concept and functionality level — are protectable only under the Patent Act. The Patent and Trademark Office examines such inventions for validity and if the patent is allowed, it lasts for twenty years. Based on a single implementation, Oracle would bypass this entire patent scheme and claim ownership over any and all ways to carry out methods for 95 years — without any vetting by the Copyright Office of the type required for patents. This order holds that, under the Copyright Act, no matter how creative or imaginative a Java method specification may be, the entire world is entitled to use the same method specification (inputs, outputs, parameters) so long as the line-by-line implementations are different. To repeat the Second Circuit’s phrasing, “there might be a myriad of ways in which a programmer may . . . express the idea embodied in a given subroutine.” Computer Associates, 982 F.2d at 708. The method specification is the idea. The method implementation is the expression. No one may monopolize the idea.

To carry out any given function, the method specification as set forth in the declaration must be identical under the Java rules (save only for the choices of argument names). Any other declaration would carry out some other function. The declaration requires precision.  Significantly, when there is only one way to write something, the merger doctrine bars anyone from claiming exclusive copyright ownership of that expression. Therefore, there can be no copyright violation in using the identical declarations. Nor can there be any copyright violation due to the name given to the method (or to the arguments), for under the law, names and short phrases cannot be copyrighted.

In sum, Google and the public were and remain free to write their own implementations to carry out exactly the same functions of all methods in question, using exactly the same method specifications and names. Therefore, at the method level — the level where the heavy lifting is done — Google has violated no copyright, it being undisputed that Google’s implementations are different.

Interoperability sheds further light on the character of the command structure as a system or method of operation. Surely, millions of lines of code had been written in Java before Android arrived. These programs necessarily used the java.package.Class.method() command format. These programs called on all or some of the specific 37 packages at issue and necessarily used the command structure of names at issue. Such code was owned by the developers themselves, not by Oracle. In order for at least some of this code to run on Android, Google was required to provide the same java.package.Class.method() command system using the same names with the same “taxonomy” and with the same functional specifications. Google replicated what was necessary to achieve a degree of interoperability — but no more, taking care, as said before, to provide its own implementations.

In closing, it is important to step back and take in the breadth of Oracle’s claim. Of the 166 Java packages, 129 were not violated in any way. Of the 37 accused, 97 percent of the Android lines were new from Google and the remaining three percent were freely replicable under the merger and names doctrines. Oracle must resort, therefore, to claiming that it owns, by copyright, the exclusive right to any and all possible implementations of the taxonomy-like command structure for the 166 packages and/or any subpart thereof — even though it copyrighted only one implementation. To accept Oracle’s claim would be to allow anyone to copyright one version of code to carry out a system of commands and thereby bar all others from writing their own different versions to carry out all or part of the same commands.  No holding has ever endorsed such a sweeping proposition.

"The Pirate Bay Cries Foul Over Pirate Bay Copycats"

 IP and humor story of the day: "The Pirate Bay advises fans to use the authentic, original ThePirateBay and not some crummy rip-off."

Darth Seder!

Shame that Passover was a little while ago.

MAD Magazine Helpfully Explains Why "The Avengers" Made $200 Million Opening Weekend

MAD Magazine helpfully explains why "The Avengers" made $200 million in its opening weekend.

Phase One Verdict in Oracle v. Google, and It's a Mess

The Oracle v. Google case is being tried in San Francisco federal court.  The jury came back this morning with a partial verdict on Oracle's copyright claim (phase one).  Oracle claimed that Google infringed the APIs (Application Program Interfaces) in the Java language.  The jury decided that Google infringed the "overall structure, sequence and organization" of the APIs, but did not reach a verdict of whether this is fair use or not.  It is highly debatable whether API's are copyrightable at all -- the Judge will have to decide that -- and the jury's failure to decide fair use creates a real mess.  Articles by Techdirt and Ars Technica describe the mess.  Update: Here's EFF's post on the verdict.