Monday, February 28, 2005

 

onegoodmove: No Free Pass

hmmm
onegoodmove: No Free Pass
 

FW:New CATO Institute Report re: P2P

…  urges “hands off” approach to P2P regulation by government in favor of allowing marketplace forces and DRM technology to sort things out . . .

Peer-to-Peer Networking and Digital Rights Management: How Market Tools Can Solve Copyright ...
Executive Summary The term "peer to peer" (P2P) refers generally to software that enables a computer to locate a content file on another ...
http://www.cato.org/pub_display.php?pub_id=3670 - 5.2KB - P2P: 20

 


 

Lessig interview

Via /., an interview with Lessig.

tres3 writes "In an interview with the O'Reilly Network Mr. Lessig discusses many current issues that may have future legal implications. He starts with MGM's request for Certiorari in the Grokster case. His conclusion is that ReplayTV was forced out of business by a legal challenge, not a legal victory. Lessig continues on to discuss, among other things, The Creative Commons and their new Sampling License and how it may affect the way that some movies and music, that contain samples from other sources, are made in the future. From the article: 'So the same act of creativity in some sense, you know, taking, creating, mixing out of what other people do, is legal in the text world and illegal in the digital media world.'"

Friday, February 25, 2005

 

Free Speech Implications in Trademark Dilution Revision Act

Trademarks
Mark Owners Plead Case for Expanding
Trademark Rights, Trimming Parody, Fair Use
            
Trademark owners' representatives gave support Feb. 17 to a House proposal to overturn the Supreme Court's 2003 ruling that the holder of a "famous" mark must show actual dilution in order to successfully bring an action under the Federal Trademark Dilution Act, although they disagreed on whether the bill goes far enough in restricting parody and objectionable domain name registrations.

Speaking at a hearing before the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property, representatives of the International Trademark Association and the American Intellectual Property Law Association expressed support for the Trademark Dilution Revision Act of 2005 (H.R. 683), which was recently introduced by Rep. Lamar S. Smith (R-Texas), the chairman of the subcommittee.

The Supreme Court held that the FTDA required a showing of actual dilution in Moseley v. V Secret Catalogue Inc., 537 U.S. 418 (2003). H.R. 683 would specify that only a demonstration of likelihood of dilution was necessary. The bill also defines "famous" marks, explicitly makes actionable both dilution by blurring and dilution by tarnishment, and states that acquired, as well as inherent, distinctiveness would make a mark protectable under the statute.

However, William G. Barber, a lawyer with Fulbright & Jaworski, Austin, Texas, who testified on behalf of the AIPLA, objected strongly to language in the bill that would impose liability for trademark dilution only when a defendant has used the mark "in commerce as a designation of source of the person's goods or services."

This limitation, Barber said, would prevent trademark owners from taking action against several kinds of offenses that would not necessarily constitute designation of the source of goods.


 


 

FW: Podcasts -- Killer App for Rational Copyright Law?

Brian Ibbott had always loved making mixed tapes and CD's. His podcast, "Coverville," has become one of Podcastalley's most popular, and in many ways it is like a real radio show, without the advertising. Sunday is all-request day, and listeners can call in their requests. Mr. Ibbott, 35, plays back their recorded requests before the songs.

"I don't know that I'm doing it so much as a protest against radio as I am to develop the radio show I always wanted to hear," said Mr. Ibbott, who lives in Colorado. The last great radio station nearby, he said, was bought out by Clear Channel. "And they got the same playlist everyone else did."

He pays a few hundred dollars to Ascap and BMI to allow him to play copyrighted music, he said, and is negotiating with the Recording Industry Association of America, which has filed lawsuits to prevent unauthorized music downloading.

http://www.nytimes.com/2005/02/19/technology/19podcasting.html?hp

Check out this NYT article on the podcasting phenomenon. Here you have a spontaneous citizens' movement to utilize new technologies in ways that challenge the existing broadcast and entertainment business models.

So what are the licensing and other copyright issues raised by podcasts? I think we need a thorugh discussion of what they are and how they may be addressed. There are millions of people getting into this, and if they run head long into copyright problems and penalties that means millions of people with a stake in the future of copyright law.


 

FW: Fair and balanced look at Grokster on CNN site



Thursday, February 17, 2005 10:21 AM PST 

Software may ward off RIAA, MPAA scrutiny
Daily Pennsylvanian
Thu, 17 Feb 2005 2:42 AM PST
A new program that blocks unwanted IP addresses may allow illegal file-sharers to avoid the legal consequences from downloading copyrighted material.


MPAA / RIAA Search and Destroy
p2pnet.net
Wed, 16 Feb 2005 11:47 AM PST
The two-headed beast


'24' Makes Britain a Hotbed for Illicit TV Downloads
Reuters via Yahoo! News
Thu, 17 Feb 2005 6:27 AM PST
Britain has emerged as the world's biggest market for downloading pirated TV, driven by tech-savvy fans who are unwilling to wait for popular U.S. shows such as "Desperate Housewives."


File sharing goes before Supreme Court
CNN.com
Thu, 17 Feb 2005 6:31 AM PST
(FindLaw) -- On March 29, the Supreme Court will hear arguments in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., a closely-watched case involving peer-to-peer file sharing - a process in which people send or receive music or movies over the Internet.






 

FW: Bloglines - Apple and Sony sued for non-interoperable DRM


Boing Boing

Apple and Sony sued for non-interoperable DRM

By Cory Doctorow

Cory Doctorow: A French consumer rights group has filed suit against Apple and Sony for making non-interoperable DRM:

French consumer association UFC-Que Choisir has launched legal action over the two companies' proprietary music formats, claiming that the respective DRM used by both Sony and Apple, which means songs bought from their online song shops can't be played on other manufacturers' media players, is limiting consumers' choice.

The consumer group announced it would be taking legal action against the pair after conducting interoperability tests last year between a selection of music download services and digital music players and criticising the lack of interoperable DRM.

"The total absence of interoperability between DRM removes not only the consumer's power to independently choose their purchase and where they buy it from, but also constitutes a significant restraint on the free circulation of creative works," the group said.

Link (Thanks, Stephane!)



 

"Fair Use in the Digital Age" film


a movie course, "Fair Use in the Digital Age"

> http://fiatlucre.com/home.asp
>
>


 

FW: RIAA Filing in FCC Digital Audio Broadcasting Proceeding

Four months late, RIAA responds to an EFF ex parte in the Digital Audio Broadcasting proceeding to explain why the FCC should impose content protection on DAB receivers and recorders.  For those of you writing Grokster briefs, this sentence goes a long way toward explaining how much is at stake, and how the intent of the content industry is to hobble every consumer technology:

"In short, the use of a DAB receiver/recorder to build a library of copyrighted sound recordings -- the recording industry's principal concern here -- is not protected against a claim of infringement by the fair use defense in Section 107 of the Copyright Act, and Commission's inclusion of a content protection requirement as part of its DAB rules is fully consistent with the Copyright Act."


 

FW:Music Publishers Get New President

by Sarah Lai Stirland

The National Music Publishers' Association (NMPA) on Monday named
former Justice Department Deputy Chief of Staff David Israelite as its
new president and CEO.
Israelite takes the job after four years at Justice. One of his
last tasks there was to chair the task force on intellectual property,
which late last year published recommendations on how the federal
government can improve intellectual property enforcement.
NMPA joined the Motion Picture Association of America and Recording
Industry Association of America in petitioning the Supreme Court to hear
the copyright case Metro-Goldwyn-Mayer Studios v. Grokster. The high
court will hear oral arguments March 29.
"David's outstanding legislative and political background combined
with his tremendous knowledge of the issues surrounding intellectual
property made him the obvious choice for this role, as the U.S. music
publishing industry moves forward to confront the challenges and
opportunities of the 21st century," Irwin Robinson, the chairman of
NMPA's board and chairman and CEO of Famous Music Publishing, said in a
statement.
Before joining Justice, Israelite worked as director of political
and governmental affairs for the Republican National Committee. As a
senior adviser to the committee chairman, he was responsible for the
GOP's campaign operations, government affairs, research and presidential
liaison divisions.
Israelite also worked as administrative assistant to Sen.
Christopher (Kit) Bond, R-Mo., from 1997 to 1998 and served as his


 

FW: Fair Use theatrical screening in DC

this sounds like an intersting IP film project

Jed Horovitz' "Willful Infringement" will be screened and discussed this
Tuesday, February 8, from 12:15 - 1:45 pm, at the Goethe-Institut in
Washington DC (812 Seventh Street, NW ) as part of a CLE program "Fair Use
In the Digital Age."

A preview is available at
http://fiatlucre.com/.
The registration page is at
https://fiatlucre.com/secure/register.asp.

Jed will be there. Those of you who know him, know how passionate he is
about enabling and preserving the full potential of air use, including
commercial fair use.


 

Parent File Scan: Is Your Child Downloading from P2P Sites?

Parent File Scan: Is Your Child Downloading from P2P Sites?


 

FW: [LawfulUse] Senate passes minibus

The Senate last night passed S. 167, the "minibus' version of copyright
from last year. There was little discussion and no recorded vote. The
bill includes the ART Act, Family Movie Act (without commercial
skipping), film preservation and orphan works for libraries.


 

FW: Lawsuit Claims Apple Violates Law with iTunes

 By Duncan Martell</p><p> SAN FRANCISCO (Reuters) -

An unhappy iTunes online music
store customer is suing Apple Computer Inc. <AAPL.O>, alleging
the company broke antitrust laws by only allowing iTunes to
work with its own music player, the iPod, freezing out
competitors, court filings showed.</p><p> Apple, which opened its online music store in April 2003
after introducing the iPod in October 2001, uses technology to
ensure each digital song bought from its store only plays on
the iPod, a computer or home stereo system.</p><p> The suit was filed on Monday in the U.S. District Court in
San Jose. One antitrust expert called it a long shot, but
Californian Thomas Slattery is hoping for unspecified damages
for being "forced" to buy an iPod, one of the most successful
electronics products in years.</p><p> The key to such a lawsuit would be convincing a court that
a single product brand like iTunes is a market in itself
separate from the rest of the online music market, according to
Ernest Gellhorn, an antitrust law professor at George Mason
University.</p><p> There is legal precedent for such claims, but courts
usually conclude competing products as viable alternatives,
Gellhorn said.</p><p> "As a practical matter, the lower courts have been highly
skeptical of such claims," Gellhorn said.</p><p> Since rolling out the iPod, which has sold nearly 6 million
units and was a top Christmas gift this past holiday season,
Apple has garnered 87 percent of the market for portable
digital music players, market research firm NPD Group has
reported.</p><p> "Apple has unlawfully bundled, tied, and/or leveraged its
monopoly in the market for the sale of legal online digital
music recordings to thwart competition in the separate market
for portable hard drive digital music players, and vice-versa,"
the suit charged.</p><p> Slattery called himself an iTunes customer who "was also
forced to purchase an Apple iPod" if he wanted to take his
music with him to listen to.</p><p> A spokesman for Apple declined to comment on the suit. Its
iTunes charges 99 cents per song on its online music store and
has sold more than 200 million tracks.</p><p> Although Apple is the dominant disk-drive-based digital
music player, many others, using the MP3 compression
decompression standard and others, are sold by Creative
Technology Ltd. <CREAF.O> <CREA.SI>, Dell Inc. <DELL.O>,
Gateway Inc. <GTW.N>, and others.</p><p> Apple's online music store uses a different format for
songs than Napster, Musicmatch, RealPlayer and others. The
rivals use the MP3 format or Microsoft Corp.'s <MSFT.O> WMA
format while Apple uses AAC, which it says helps thwart piracy.</p><p> While songs saved in the AAC format can be saved in the MP3
format and played on virtually any digital music player, songs
bought from the iTunes music store have an added software tag,
which Apple calls FairPlay DRM, or digital rights management,
added to the file that contains the song.</p><p> "Apple has turned an open and interactive standard into an
artifice that prevents consumers from using the portable hard
drive digital music player of their choice, even where players
exist that would otherwise be able to play these music files
absent Apple's actions," the suit alleges.</p><p> In the past Apple has aggressively pursued those who had
provided a work-around to Apple's FairPlay DRM to let songs
purchased from other online music stores play on the iPod. Last
year it also blocked technology from music rival Real Networks
Inc. <RNWK.O> that made downloads from its online music store
compatible with any other portable media player, including
Apple's.</p><p> Apple shares more than tripled last year, fueled by soaring
sales of iPods and strong demand for its PowerBook notebook
computers. The shares rose 56 cents to close at $64.50 on
Nasdaq on Wednesday.  (Additional reporting by Peter Kaplan)
</p>Would you like to send this article to a friend? Go to
http://www.washingtonpost.com/ac2/wp-dyn/admin/emailfriend?contentId=A51597-2005Jan5&sent=no&referrer=emailarticle



 

EFF helps beat RIAA in privacy for accused infringers case

Boing Boing

EFF helps beat RIAA in privacy for accused infringers case

By Cory Doctorow

Cory Doctorow: EFF's helped win another victory this week! We filed a brief in RIAA vs Charter, a case where the music industry was asserting the legal right to require your ISP to turn over your information if you'd been accused of copyright infringement -- rather than waiting until they'd proven their case. The court ruled in Charter's favor yesterday, saying that just because you've been accused of infringement, it doesn't mean that you shouldn't have the due process right to privacy until you've been proven guilty.

The Electronic Frontier Foundation (EFF), along with 21 other groups, including the American Civil Liberties Union (ACLU), the Consumer Federation of America (CFA), and the Computer & Communications Industry Association (CCIA), filed a "friend of the court" brief in the Charter case, urging the Eighth Circuit to determine that the same strong protections applied to anonymous speech in other contexts also apply when copyright infringement is claimed but has not yet been proven. In a victory for privacy and anonymity, the Eighth Circuit determined that DMCA subpoenas could not be used to get this information.
Link



 

New Legal Center for Open Source Projects

The Courts
From CmdrTaco at Slashdot
2/1

NW writes "According to a News.com story well known OSS lawyers Lawrence Lessig and Eben Moglen are launching a new "Software Freedom Legal Center" to assist open source developers with legal issues for free." You can view the website at Softwarefreedom.org.

 

Orphan Works/Copyright Office

Via John Palfrey:

The eldred.cc team needs your help for an important chance to affect copyright policy in America.
 

Inspiring Lessig/Barlow blogs from Porto Alegre

Lessig blogged this last month on the way back from the World Social Forum.

returning home

By Lessig on free culture

...This morning's panel was packed in what seemed to be an old factory. The room was overflowing with at least 1,500 people, and a panel of 5. Manuel Castells began, with a careful and extremely interesting diagnosis of the net's development. I then described the remix culture culture has been (legal and free) and the remix culture culture could be (amazing and diverse) and the blocks to that new culture coming about (law). Christian Alhert told the story of the BBC's Creative Archive. And JP Barlow gave one of the most intense and powerful speeches I've ever seen him deliver. This place is personal to him.

Then Gil [Gilberto Gil, musician and Minister of Culture] spoke. .... He electrified the audience, delivering a written speech as poetry slam. He promised more support for free software, and free culture. And he again embraced the Creative Commons movement in Brazil, which is exploding everywhere here. ..... I was reminded of his comment to me in the car the other night: we're just citizens here.

After lunch, I visited the Youth Camp at the WSF, where 50,000 tents, and 80,000 kids are participating in WSF events. At the core was a Free Software lab, with about 50 machines, all running GNU/Linux, and constant lessons about how to set the systems up, how do to audio, and video editing, how to participate in free software communities. This was organized totally by the kids who ran it. Machines in shacks, hay on the ground, wires and boxes everywhere..... Again, there were geeks, but not only. There were men, but plenty of women (and lots of kids). They were instructing each other -- some about code, some about culture, some about organizing, some about dealing with the government -- as they built this infrastructure out. Think Woodstock, without the mud, and where the audience makes the music.... I've not admired more in as long as I can remember.


And John Perry Barlow was there too:

John Barlow Pushes Open Source in Brazil
The Almighty Buck
Linux
Posted by CmdrTaco on Monday January 31, @09:00AM
from the stuff-to-read dept.
greysky writes "This story on Foxnews.com reports that as part of the larger World Social Forum, Barlow spoke on how open source software can help alleviate financial problems of developing countries: "Already, Brazil spends more in licensing fees on proprietary software than it spends on hunger"." NPR talks about how Brazil plans to switch 300,000 machines over.
 

Firm Will Sell Cheap DVDs In China To Combat Piracy

Warner Brothers Entertainment will provide dozens of its digital
videodiscs to Chinese retailers at deep discounts in the hopes that its
higher-quality products will be able to compete with pirated DVDs
circulating on the streets. The Wall Street Journal reports that Warner
will release about 125 movies this year at below-market prices. Films
with no additional features will be sold for $2.65, while DVDs with
extra footage or actor interviews will cost $3.38. That is more than the
$1 to $2 prices found on the streets, but Warner hopes customers will be
willing to pay a little more for the extra footage and higher quality.


 

times on broadcast flag

TECHNOLOGY |   February 21, 2005
Federal Effort to Head Off TV Piracy Is Challenged
By TOM ZELLER Jr.
A digital-rights advocacy group is mounting a legal challenge to a new Federal Communications Commission regulation intended to prevent piracy of digitized broadcast.
 

Balding Rockers and Big Money

Balding Rockers and Big Money
JOHN LELAND
NYT, Sunday, February 13, 2005
<>

A recent NYT article reveals that most musicians make their bread and
butter not by selling CDs, but by touring and performing:

"According to a new list of the 50 top-earning pop stars
published in Rolling Stone, over the hill is the new golden pasture.
Half the top 10 headliners are older than 50, and two are over 60.
Only one act, Linkin Park, has members under 30.

The annual list, which entails some guesswork, reverses the
common perception of pop music. Not only is it not the province of
youth; it's also not the province of CD sales, hit songs and smutty
videos.

While sexy young stars take their turn strutting on the Billboard
charts or MTV - or on the cover of Rolling Stone - the real pop
pantheon, it seems, is an older group, no longer producing new hits,
but re-enacting songs that are older than many of today's pop idols."

This has serious financial repurcussions for the business model the
industry is presently wed to. And the list of artists who are making
the big bucks reveals industry mismanagement has led to mostly
ignoring the key economic demographic driver of our century: The baby
boomers.

Here's a little secret the RIAA would rather not have you know:
Musicians make most of their money performing and touring -- not
selling CDs or downloads. Rolling Stone has a detailed analysis of
the top 50 acts . . . here's a top 10 list to whet your appetite:

2004 Music Money Makers
1. Prince $56.5 MILLION
2. Madonna $54.9 MILLION
3. Metallica $43.1 MILLION
4. Elton John $42.9 MILLION
5. Jimmy Buffett $36.5 MILLION
6. Rod Stewart $34.6 MILLION
7. Shania Twain $33.2 MILLION
8. Phil Collins $33.2 MILLION
9. Linkin Park $33.1 MILLION
10. Simon and Garfunkel $31.3 MILLION

Note that 9 of the top 10 grossing performers aren't the hot new
thing -- they are the better known rock classics -- which the labels
have mostly also been paying little attention to for so many years.

The industry can scapegoat P2P for all their woes, but a closer
analysis of the math demonstrates the claim is illusory.
(Mis)management is the primary sources of the industry problems.



 

Open-Source Practices for Biotechnology

Mitch Kapor's Weblog

Open-Source Practices for Biotechnology

By mitch@osafoundation.org

Andrew Pollack, NYT, on open source practices for biotechnology: The open-source movement, which has encouraged legions of programmers around the world to improve continually upon software like the Linux operating system, may be spreading to biotechnology. Researchers from Australia will report in a scientific journal today that they have...



 

NIH Open Access Policy



> Public Knowledge Disappointed In New Open Access Policy
>
>
>
>
> 2005/02/03 14:45:00 GMT
>
>
> For Immediate Release
>
>
> Contact Info
>
>
> Art Brodsky
> Communications Director
> Public Knowledge
> abrodsky@publicknowledge.org <mailto:abrodsky@publicknowledge.org>
> office: (202) 518-0020 x103
> cell: (301) 908-7715
>
> Background: Secretary of Health and Human Services Michael Leavitt today announced his department's policy on open-access publishing of government-funded research. The policy requests the authors of scientific papers to make their work available for free, online as soon as possible and within 12 months of the official date of publication.
>
> Statement of Peter Suber, director of Public Knowledge's Open Access Project:
>
> "I regret that the National Institutes of Health has scaled back its open-access policy. It is a retreat from the version the agency first proposed and for which public comment was overwhelmingly favorable.
>
> "The chief problem with the new rule is that it could significantly delay public access to publicly-funded medical research. It could even mean that the public will never have access to some of it at all. The new rule also creates a difficult dilemma for NIH-funded scientists by forcing them to choose between their funding agency and their publisher. The NIH will ask authors to choose early public release and many publishers will ask authors to choose late public release.
>
> "This policy is a step backward from the House of Representatives' wishes that NIH 'require' free online access after six months. In the end it looks like the publishers had more clout with NIH than scientists or taxpayers. The policy is better than nothing, but is a lot less than taxpayers deserved."
>
> ###
>
> Public Knowledge is a public-interest advocacy and education organization that seeks to promote a balanced approach to intellectual property law and technology policy that reflects the "cultural bargain" intended by the framers of the constitution.
>
> More information available at: <http://www.publicknowledge.org>
>
> All press releases <http://www.publicknowledge.org/pressroom/releases> »
>
>


 

FW:- DRM-free music service from MP3.com founder

 

Boing Boing

DRM-free music service from MP3.com founder

By Cory Doctorow

Cory Doctorow: The founder of MP3.com (who is also the CEO of Linspire, formerly Lindows) is launching a DRM-free music site that distributes tunes as MP3s.

To Robertson, such restrictions are anathema. "I think [DRM] is a problem; I've made no bones about it," he said in an interview Wednesday. "I'm not a fan of DRM. I think it penalizes paying customers. If you can get music from file sharing networks and pay nothing, and then get it from the record guys with a pair of handcuffs attached…I think it's awful."
Link (via /.)



 

FW: Getting real about the Grokster case

gigi essay on grokster's importance

Getting real about the Grokster case
By Gigi Sohn

Public-interest advocate Gigi Sohn says the peer-to-peer debate can't be resolved through one-sided proposals.

http://news.com.com/Getting+real+about+the+Grokster+case/2010-1028_3-5566243.html?tag=sas.email

Read all technology news from this week:
http://www.news.com/thisweeksheadlines/

--------------------------------
Copyright 2004 CNET Networks, Inc. All rights reserved.
CNET Networks, Inc.
235 Second Street
San Francisco, CA 94105
U.S.A.


 

FW: Cuban Blog

Grokster and America's future
By Mark Cuban
http://news.com.com/Grokster+and+Americas+future/2010-1028_3-5559340.html

Story last modified Wed Feb 02 04:00:00 PST 2005
_______________________________________________


 

S. 167 and H.R. 357.

Copyright Bills -- On Tuesday Sen. Orrin Hatch (R-UT) and Rep.
Lamar Smith (R-TX) introduced companion bills in the Senate and
House entitled the "Family Entertainment and Copyright Act of
2005" numbered S. 167 and H.R. 357.

These are the first four titles of S. 3021, the "minibus" passed last
year by the Senate. Title I is the ART Act, dealing with camcorders and
pre-release works; title II is the Family Movie Act, dealing with the
ClearPlay issue; title III deals with film preservation; and title IV
deals with orphan works.

 

FW: Two must-read articles

iTunes user sues Apple for limiting him to the iPod
http://www.washingtonpost.com/wp-dyn/articles/A51597-2005Jan5.html?referrer=email

BSA wants to make ISPs liable
http://www.washingtonpost.com/wp-dyn/articles/A51966-2005Jan5_2.html


 

RIAA Publishing Infected P2P Files?

The recording industry may be publishing spyware-infested copies of
their songs on P2P networks, according to a PC World story by Andrew
Brandt and Eric Dahl
(<http://www.pcworld.com/news/article/0,aid,119016,00.asp>).

The files are encoded in a Microsoft file format. When the user plays
such a file, the user's browser is forced to visit a URL contained in
the file. For the files at issue here, the page at that URL uses
various spyware-insertion tricks to try to infect the user's machine
with standard spyware programs. Ben Edelman reports that when he
clicked on one such page, "My computer quickly became contaminated with
the most spyware programs I have ever received in a single sitting,
including at least the following 31 programs..." Ed Bott notes that
fully patched systems won't catch spyware from this file unless the
user foolishly accepts downloads; but Ben Edelman argues that the files
try to mislead the user into accepting the downloads, and in any case
we know that users often are fooled by such tricks.

Even more interesting, PC World reports that, for at least one such
file, the spyware-distribution page is hosted by Overpeer, a company
that does lots of business with the recording industry. (It's not clear
whether the particular file Ben Edelman studied had any relation to
Overpeer.) Overpeer, for example, is paid by the recording industry to
spread spoofed files on P2P networks, in the hope that P2P users will
download the fake files rather than real (infringing) ones.

The really interesting angle here, to me at least, is who approved the
release of these spyware-bearing audio files onto P2P nets. It sure
looks like Overpeer created the files. Did Overpeer release them? That
would seem likely.

If Overpeer did release these copyrighted songs onto P2P nets, did they
have the permission of the record companies that own the copyrights on
the songs? If not, then Overpeer is a P2P infringer. It seems unlikely
that Overpeer would take this risk, especially since the files contain
a URL that points right back to Overpeer.

So it seems more likely that the record companies gave permission. If
so, is it fair to say that these particular files, which contain
copyrighted music, are circulating on P2P nets with the copyright
owners' permission? And what does this say about the record industry's
incessant argument that P2P nets distribute spyware?

All of this is speculation, of course. We don't know for sure who did
or didn't participate in the files' release. But it's hard to see a
scenario that makes both Overpeer and the record industry look good.
There's a nice investigative reporting opportunity here.


  [Updated at 1:40 PM to clarify that the file tested by Ben Edelman
might not be one of the files related to Overpeer. Thanks to Ben for
his comment pointing this out.]


 

altmodels: Germany

Germany To Impose Copyright Levy On PCs, by Robin Pilgrim, LawAndTax-News.com, London 28 December 2004

http://www.tax-news.com/asp/story/story_open.asp?storyname=18386

After a three-year battle between copyright holders and computer manufacturers, Germany is about to enforce a law imposing a copyright levy on new computers.

The District Court of Munich last week ordered Fujitsu Siemens Computers (Holding) BV to pay a copyright levy of $13 plus 16 percent VAT on new PCs. Supported by the German Patent Office, VG Wort - an association of German composers, authors and publishers - went to court originally seeking a levy of Euros 30 (US$41) per new computer sold in the country, in compensation for royalties lost through digital copying. VG Wort plans to apply the decision to all PC vendors in the country. Fujitsu Siemens is considering appealing the case, the company said.

For many years, Germany has been collecting copyright levies on the sale of analog copying devices, such as blank audio and video cassettes. The levies are intended to compensate rights holders for lost royalties from private copying of music, images and moves.

 


 

H.R. 784


Promote the Progress
J. Matthew Buchanan's legal blog focused on intellectual property and technology law issues

Mark clarification bill reintroduced

By J Matthew Buchanan on Legislation

Representative Mike Simpson (ID) introduced H.R. 784 (.pdf) on February 10, 2005. The bill, dubbed A bill to Clarify that service marks, collective marks, and certification marks are entitled to the same protections, rights, and privileges of trademarks, is identical to S. 2796/H.R. 5194 introduced in the 108th Congress.

I haven't been able to locate any significant comments on the introduction of the new bill, but everything from the prior bills is still relevant. This prior PTP post discusses the bills from the 108th Congress.

The bill is designed to specifically address the decision of the Second Circuit Court of Appeals in Idaho Potato Commission v. M&M Produce Farm and Sales (.pdf) (335 F.3d 130, 2d Cir. 2003). In Idaho Potato Commission, the court interpreted the Lanham Act as requiring that certification marks be treated differently than trademarks with respect to "no challenge" provisions in license agreements. Under an agreement that includes a "no challenge" provision, the licensee acknowledges and agrees not to challenge the validity of the mark.

Many courts have upheld "no challenge" provisions in trademark license agreements and dismissed validity challenges brought by the licensee. Patent license agreements, however, are treated very differently. In Lear v. Adkins (395 U.S. 653, 1969), the Supreme Court explicitly overruled precedent establishing licensee estoppel. In Lear, the Court acknowledged that, considering the preclusive effect of patents, it is desirable to encourage challenges to the validity of a patent. The Court stated that "[l]icensees may often be the only individuals with enough economic incentive to challenge the patentability of an inventor's discovery."

In Idaho Potato Commission, the Second Circuit Court of Appeals ruled that "no challenge" provisions in license agreements for certification marks are governed by Lear, reasoning that the policy considerations underlying certification marks is more analagous to patent policy than trademark policy.

H.R. 784 is designed to remove this newly-established distinction between certification and other types of marks.



Wednesday, February 16, 2005

 

ASCAP licenses podcasting

Boing Boing

ASCAP licenses podcasting

By Xeni Jardin

Xeni Jardin: This new licensing standard from ASCAP (the American Society of Composers, Authors and Publishers) went into effect in January -- but I hadn't read it in entirety before. Included in the various web licensing agreements here, a reference to podcasting. Link (via pho list)


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