September 29th, 2008 by Joshua Kagan
This is a pilot for a new podcast on technology law that I’ll hopefully be recording each week along with Michael Scott. In each episode we’ll cover some of the most interesting topics of the week, identify trends, discuss new legislation, analyze recent cases, and end with our favorite talking point of the week. We hope you’ll like it. Click the play button below to listen!
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Here are the show notes for this week’s episode:
Shownotes for Singularity Law Podcast Episode 1 (September 29, 2008)
Our Panel for Today:
Josh Kagan, author of The Josh Kagan Blog
Prof. Michael Scott of the Singularity Law Blog
Cloud Computing
Walmart and DRM
Capitol Records v. Thomas
New Copyright Legislation (PRO-IP Act)
Talking Point of the Week — Banned from the Internet for Life
This recording is an informational resource only. It is not designed to offer legal advice.
September 29th, 2008 by Joshua Kagan
Last Wednesday a federal judge declared a mistrial in Capitol v. Thomas and set aside the judgment for the plaintiffs when he found that the theory of “making available” may not have been sufficient to constitute infringement. The core of the RIAA’s position here is that Thomas infringed by merely offering to distribute copies of a work from her computer, even if no one ever actually downloaded a single copy. The problem with this sort of a theory lies of course in the Copyright Act. While § 106(3) provides recovery for “distribution,” nowhere does the Act permit recovery for “attempted” copyright infringement of any kind.
If you haven’t been following this case, the solution might seem obvious. Why doesn’t the copyright owner simply present evidence that the defendant actually distributed some copies? But it’s not that simple, and I don’t think the RIAA can win this time. Here’s why.
Recording companies identify plaintiffs through a fairly crude process. When an Internet user runs a file-sharing application that uses the peer-to-peer model, the file-sharing application typically searches the user’s computer for media files and indexes all that it finds. The index will normally contain a list of the audio files sorted by artist, album, genre, and some other criteria. It then uploads this index to another computer on the peer-to-peer network with a fast connection and large storage capacity. The computers that store indexes of other users’ files are commonly called “supernodes,” while other users are called simply “nodes.”
When one node on the network wants to find a particular recording, it submits a search query to a supernode. The supernode returns a response that indicates which computers on the file-sharing network have copies of the file along with the IP addresses of those computers. When a copyright owner (or one of its contractors such as MediaSentry, a company that provides online copyright enforcement services) wants to identify infringers, it connects to a file-sharing network as a node and searches for the name of a recording for which it owns the copyright. When the supernode returns a list of computers that are offering the file for download, the copyright owner sends another query to the supernode called “find more from this user” that returns a list of all of the files being offered from one of those computers. The copyright owner then brings suit against the Internet subscriber using that IP address for damages arising from infringement of the copyright owner’s exclusive distribution right under 17 USCS § 106(3).
Assuming that the indices generated by the defendants’ computers accurately convey the media files that are hosted by that node, the copyright owner now has an accurate list of files that the defendant is making available to the public–nothing less and nothing more. The node is offering these files for download and, if a third party wants to initiate a file transfer, such a transfer will likely occur. But neither the supernode nor the node contains any evidence that such a transfer actually took place. In other words, the copyright owner has plenty of evidence that the defendant made an offer to distribute infringing copies but no evidence that anyone actually took him up on that offer. Worse yet, given the number of nodes available on most file-sharing networks at any one time (typically millions or more), for popular sound recordings and movies, it is actually exceedingly unlikely that most nodes have ever consummated an outgoing transfer because there are so many other nodes with copies of the same content.
In a court filing, an RIAA attorney contended that ”requiring proof of actual transfers would cripple efforts to enforce copyright owners’ rights online – and would solely benefit those who seek to freeload off plaintiff’s investment.” If the plaintiffs continue to limit themselves to the methods I described above, I don’t doubt this. But there’s no question in my mind that “making available” is not equivalent to any of the exclusive rights enumerated in the Copyright Act. To win with the evidence they have, the plaintiff would need to in effect fashion a new kind of claim for attempted copyright infringement. In the Ninth Circuit, judges have already resisted such attempts. In Perfect 10 v. Amazon.com, the Court in dicta blocked what it called “the proposition that merely making images ‘available’ violates the copyright owner’s distribution right.” A separate line of cases has also evolved out of an Eighth Circuit case that has been applied to file-sharing actions. These Judges consistently find that “record companies must show that an unlawful copy was disseminated ‘to the public.’”
The problem here is that, because of the way the Internet works, we don’t really have those kinds of records in an easily accessible form anywhere. The RIAA seems to understand this. It’s one thing to use the discovery process to find out what a particular computer has downloaded. That’s trivial. But finding out what other computers have downloaded from a defendant, while not impossible, could be extremely difficult.
For this reason, I don’t think Capitol and MediaSentry can win this one.
This weblog is an informational resource only. It is not designed to offer legal advice.
September 24th, 2008 by Joshua Kagan
The Apple rumor sites are reporting that Apple has begun including the following language at the bottom of iPhone App Store rejection letters:
The information contained in this message is under non-disclosure.
I’d love to hear one of Apple’s attorneys explain what the company’s damages would be if a developer were to breach this.
That aside, there’s a bigger problem here: this is bad business sense, no matter how you spin it.
It’s also bad for society. In stark contrast to Apple’s approach, Google seems to be going in the opposite direction with their new “Android” platform. The platform is wide-open, so anyone can develop almost anything for it without any limitations. I think it’s obvious why that’s dangerous. So, as of today the market has exactly two major choices: Apple’s closed system that’s hostile to developers, and Google’s open system that’s a malware attack just waiting to happen.
I don’t think this can last.
September 21st, 2008 by Joshua Kagan
Angelo DiNardi writes that he developed an alternative email client for the iPhone called “MailWrangler” only to have it rejected by Apple’s App Store because it “duplicates the functionality of the built-in iPhone application Mail without providing sufficient differentiation or added functionality, which will lead to user confusion.”
I wonder whether an iPhone-specific version of the Firefox web browser would similarly be rejected because it’s too similar in functionality to the iPhone’s built-in Safari browser. If so, this reminds me a little (and I mean just a little) of United States v. Microsoft.
September 20th, 2008 by Joshua Kagan
Earlier this week Professor Michael Scott of Southwestern Law School called for a “coherent federal technology policy.” He pointed to the decline in government R&D spending and argued that the next president should “turn things around.”
He’s right. But I want to go one step further and specifically outline what a good federal technology policy should include. Here are my ideas.
- The first problem is that our present government doesn’t seem to understand technology when it matters. For example, Senator Ted Stevens (R. Alaska) delivered a now-infamous speech in which he demonstrated a complete lack of understanding about how the Internet works. Normally I wouldn’t care, but at the time Sen. Stevens was the chair of the Senate Telecommunications Committee. He vehemently opposed an important bill on the basis of this erroneous understanding. This is destructive. The people in charge of technology need to be experts in the technology. It’s obvious that Sen. Stevens and others in Congress have their committee chair positions simply because of seniority. In other fields this probably isn’t a big deal, but in technology it’s huge.
- Another issue is reform of the broken patent system. A good technology policy should provide consistent, predictable, and reliable protection for inventions while closing off the patent trolls as much as possible. Let’s use the U.S.P.T.O. to encourage innovation, as it was designed, instead of undermining innovators and rewarding trolls.
- We also need a consistent policy for protecting our IP abroad. We live in a nation with an increasingly information-driven economy. Innovation may soon be our greatest export, and because of the Internet information has no borders. In some industries like entertainment this is especially important. We need a fair and consistent set of rules that allow American businesses to cooperate and competitively conduct business in foreign markets over the Internet.
- The next problem is that our present government doesn’t embrace technology when it should. The Internet is a powerful tool for bringing people together and allowing them to do and understand things very efficiently. The next president should create a cabinet-level position for using technology to communicate and work with the people. For example, people should be able to use the Internet to retrieve up-to-date information about how tax dollars are being spent. Let’s use the Internet to create the ultimate transparency law.
- In addition to embracing technology, the government should also embrace science. Our current administration has an almost antagonistic relationship with science. When our scientists present valid peer-reviewed findings, the policy should be to put their recommendations first, not second to the needs of some lobbying group or faith-based position.
- The government also needs to have a policy of promoting next-generation technologies like broadband access. It’s ridiculous that the U.S. trails behind Korea, Canada, the Netherlands, and other countries in broadband penetration. The Internet is quickly becoming the most important way that people communicate, and everyone should have access, regardless of socioeconomic status. This is an area where the U.S. should lead, not trail.
- Finally, a good technology policy needs to be committed to information neutrality across all channels. This includes everything from net neutrality on the Internet to continuing the U.S. tradition of content neutrality on the airwaves. Give everyone a chance to express their opinions and to try to make their business models work.
Obviously there’s more that can be done, but I think this would be a terrific start toward “turning things around,” back on the road to being the technological leader that our nation could be. Let’s invest in our future. Let’s embrace the 21st century instead of running from it.
September 20th, 2008 by Joshua Kagan
- DRM promotes the premature obsolescence of devices and media. Digital formats and standards change all the time, and content that is restricted by DRM cannot be transitioned to a new format. In addition, many DRM schemes require communication with a central server to “authenticate” the product before it can be used. Once these servers are no longer maintained by the provider, the content can no longer be accessed.
- DRM significantly narrows the audience that can experience DRM-restricted content because such content can only be accessed by particular devices in particular ways, and must be sold through particular outlets.
- DRM is easily defeated by the professional pirates who are responsible for the vast majority of relevant industry losses that DRM schemes purport to target.
- DRM schemes tend to inconvenience honest purchasers far more than they deter piracy. As Cory Doctorow jested in a recent presentation at Microsoft’s campus, “keeping an honest user honest is like keeping a tall user tall.” Yet, in practice, casual users who legitimately purchased content are the ones who are most likely to be inconvenienced by DRM schemes.
- Because they restrict future usage, DRM schemes are incompatible with open source and so-called “copyleft” licenses like the GPL and Creative Commons which are good for society.
- DRM schemes and similar restrictions stifle artist creativity by putting distribution decisions solely in the hands of those distributors who have access to the restricted devices and DRM schemes.
- DRM schemes freeze out competition by small and emerging businesses by preventing new players from distributing their content to owners of existing devices. This is great news for conglomerates with established bases but awful news for newcomers and innovation in the industry.
- DRM severely stifles product innovation by requiring that device manufacturers make products that copyright holders want instead of the products that would be best for consumers. Could the VHS recorder (as-is) be introduced for the first time in today’s market? Of course not; the MPAA would require all sorts of restrictions and “broadcast flags.” In a world of DRM, product innovation can never reach that height again.
- DRM schemes raise the costs of distribution. Support costs for the inevitable inconveniences that DRM restrictions cause for legitimate purchasers (see #4 above) coupled with encoding and encryption costs mean that distributors need to spend significantly more to distribute and market content to end-users.
- DRM schemes enable content owners to force outdated business models even when newer, superior ones are available that would be preferable to consumers.