Archive for October, 2008
October 27th, 2008 by Joshua Kagan
Twitter is a micro-blogging service where users post short updates called “tweets” about whatever is on their minds. I’ve been using Twitter for just over a month now. I’ve found it to be useful not only for keeping up-to-date with friends and associates, but also for getting quick updates about interesting technology law articles from around the Web.
Not surprisingly, three of the most useful of these feeds are maintained by my friend Michael Scott of The Singularity Law Blog, who goes by the handle @LawProf on Twitter. His first feed, @CopyrightLaw, features broad coverage of copyright issues with an emphasis on new media. His second feed, @InternetLaw, provides coverage of Internet Law news scoured from sources like Slashdot, Ars Technica, TechDirt, and many others. One of Michael’s talents here is his ability to filter the news for us, picking out the most interesting and well-written stories to save us time. His third feed is called @PrivacyLaw and it specifically focuses on privacy on the Internet. I follow all three of Michael’s tech law feeds and I find them useful.
In addition to Michael Scott, there are also a few other legal bloggers and pundits who have begun using Twitter to provide occasional insights. Harvard Law Professor and author Jonathan Zittrain has a feed at @zittrain although his updates are somewhat sporadic, and fellow blogger/podcaster Denise Howell has her own feed at @dhowell that can be interesting at times.
Of course, I also have my own feed at @JoshKagan where I post updates regularly.
Do you have a favorite feed that should be on this list? Tell me about it by adding a comment below!
October 27th, 2008 by Joshua Kagan
Are search engines engaging in widespread copyright infringement? Can eBay sellers bring libel actions against buyers who leave negative feedback about them? What does the revised iPhone NDA mean for developers and the Internet in general? Michael and Josh tackle these questions and more on this week’s edition of The Singularity Law Podcast.
Click the play button below to listen, or click here to subscribe to us on iTunes!
Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.
Here are the show notes for this week’s episode:
Shownotes for The Singularity Law Podcast: Episode 5 for October 27, 2008
Our Panel for Today:
Search Engine Caches Covered by Implied Licenses: Parker v. Yahoo!, Inc.
- Parker v. Yahoo!, Inc. 2008 U.S. Dist. LEXIS 74512 (E.D. Pa. Sep. 26, 2008).
- Perfect 10 v. Google, Inc., et al., 416 F. Supp. 2d 828 (C.D. Cal. 2006).
- Perfect 10 v. Amazon.com, Inc., 487 F.32 701 (9th Cir 2007).
- Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir 2003).
- S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081 (9th Cir. 1989).
- MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993).
- Ticketmaster Corp. v. Tickets.com, U.S.P.Q.2d (BNA) 1344 (C.D. Cal 2000). This is an unpublished decision.
- Ticketmaster Corp. v. Microsoft Corp., Case No. 97-3055 DDP (C.D. Cal., filed Apr. 28, 1997).
- Josh Kagan: Is a Search Engine Cache a Copy? Revisiting Kelly v. Arriba Soft through Parker v. Yahoo!, Inc.
- Eric Goldman: Search Engine “Cache” Function Covered by Implied License–Parker v. Yahoo.
- Jeff Neuburger: Challenge to Search Engine Caching Dismissed on Most (But Not All) Grounds.
eBay Libel and the Danger of Libel Tourism
Apple Drops the iPhone NDA for Released Applications
Practical Corner: The Dangers of Screening Employees via Social Networking Sites
Final Thoughts: Murder in Cyberspace!
This recording is an informational resource only. It is not designed to offer legal advice.
October 26th, 2008 by Joshua Kagan
It’s not easy being a search engine these days.
The job of a search engine is to organize information on the Web and present that information to users in a way that is meaningful and skimmable. Modern search engines like Google and Yahoo! work by scouring Web sites for information and then indexing the contents of each page in a database from which it can draw information to respond to queries. This process involves creating a cache, which is a copy of the text or other content of each Web page added to the index.
It’s certainly not a new story to hear about a copyright owner complaining about this cache. Perfect 10 litigated the hell out of this issue two years ago when they demanded that a court enjoin Google from creating “thumbnail” (small low-resolution) images for its Google Image Search. Perfect 10 prevailed in their initial action but then lost on appeal when the 9th Circuit found that Google’s fair use defense trumped Perfect 10’s infringement claim. This appellate decision followed the tradition of Kelly v. Arriba Soft, an earlier case which established that the use of thumbnail images on a search engine is a fair use.
The Kelly decision gave us a doctrine that I support, even though I have to admit I’m not entirely comfortable with it. It’s not hard to see why the Ninth Circuit found that a cached thumbnail image is a fair use. The four-pronged fair use test in § 107 of the Copyright Act weighed heavily in favor of Arriba Soft, with the all-important fourth prong–the effect of the use upon the potential market for the original–solidly on the search engine’s side because, if anything, a low-quality thumbnail preview will guide consumers to the original copyrighted works.
Fair enough. This means that we need to consider whether a copy accomplishes the goals of the original, whatever those may be. Arriba Soft’s thumbnail copies didn’t, because they were low-resolution versions of Kelly’s epic photos. But what about Perfect 10’s images? Perfect 10 is a pornographic magazine. In fact, their business model includes selling small cell-phone-sized versions of their images that are similar to the thumbnail images cached by Google, Arriba Soft, and other search engines. Clearly the thumbnails can substitute for the originals of similar size. Luckily, this isn’t why Perfect 10 lost; Google prevailed largely because the Web sites supplying the source for its thumbnails were not even owned by Perfect 10. The Court found that those third-party sites might be infringing, but that was an issue that would need to be litigated independently of Google.
But what if a copyright owner brought suit over something like those Perfect 10 thumbnail images without the messy third-parties involved? I don’t think that wouldn’t be a fair use under § 107. It would mean that search engines are making full copies that can completely fulfill the purpose of the source images. And when a search engine copies a Web page in its entirety and makes it available in something like the Google cache, that’s also not a fair use for the same reason. That means that search engines either needed (1) another defense or (2) a license.
This is the situation that presented in Parker v. Yahoo!, Inc. Parker claimed that Yahoo! infringed by copying text from his Web site into its cache, but the Court rejected his argument because, according to a well-known and well-accepted Internet convention, Parker could have prevented the indexing and caching of his page by using a robots.txt file. Parker even admitted that he was aware of this. The Court reasoned that, by not including a robots.txt file, Parker granted Yahoo! and other search engines an implied license for that use.
This is a great precedent for search engines. Decisions like Parker and others have gone a long way toward making me feel comfortable with Kelly. I’d still like to see the courts square off this concept in future cases. For example, one of the characteristics of the Web is that information is released it’s very hard to contain. One of the questions that survived Parker was whether the implied license is revocable. Saying “yes” to that might be like telling a newspaper that it can recall old editions of its paper at will. But judging by the trend we’re seeing in these search engine caching cases, I’m not terribly worried.
October 19th, 2008 by Joshua Kagan
Will DRM be the final nail in the coffin of PC gaming? How anonymous can the Internet be? Why won’t YouTube grant a full legal review of all DMCA takedown requests on election campaign videos? Will trademark owners be forced to monitor domain name registrations? Can libraries go digital? Can a record label infringe its own copyright? Michael and Josh tackle these questions and more on this week’s edition of The Singularity Law Podcast.
Click the play button below to listen, or click here to subscribe to us on iTunes!
Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.
Here are the show notes for this week’s episode:
Shownotes for The Singularity Law Podcast: Episode 4 for October 19, 2008
Our Panel for Today:
DRM and Activation in Video Games
Anonymity on the Internet
Google and YouTube refuse to grant special DMCA treatment to McCain Campaign Videos
Cybersquatters: The Hidden Trademark Danger
The Elephant is in the Library: Digital Libraries Online
Final Thoughts: Can a record label infringe its own copyright? One hosting provider thinks so.
Record Label ‘Infringes’ Own Copyright, Site Pulled
October 12th, 2008 by Joshua Kagan
In this episode Michael and Josh team up with Tigran Palyan, a 3L at Southwestern Law School here in Los Angeles, who tells us about his research into the cutting-edge subject of Privacy in Virtual Worlds.
Click the play button below to listen, or click here to subscribe to us on iTunes!
Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.
Here are the show notes for this week’s episode:
Shownotes for The Singularity Law Podcast: Episode 3 for October 12, 2008
Our Panel for Today:
- Josh Kagan, author of The Josh Kagan Blog
- Prof. Michael Scott of The Singularity Law Blog
- Tigran Palyan, author of “Common Law Privacy in a Not So Common World: Prospects for the Tort of Intrusion upon Seclusion in Virtual Worlds”
Privacy in Virtual Worlds – Tigran tells Michael and Josh about his new article
Kentucky Seizes Gambling Domains
Talking Point of the Week: A EULA to End All EULAs
October 5th, 2008 by Joshua Kagan
Once again Michael and I discuss the most important tech law issues of the week. This week’s topics include RealNetworks’ new DVD-importing software, the EFF’s report on five years of RIAA litigation, net neutrality, Apple’s threats to shut down iTunes in the midst of a royalty dispute, an online gambling scam, and how you too can own “James Bond’s” computer! Click the play button below to listen, or click here to subscribe to The Singularity Law Podcast on iTunes!
Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.
Here are the show notes for this week’s episode:
Shownotes for The Singularity Law Podcast: Episode 2 for October 5, 2008
Our Panel for Today:
Josh Kagan, author of The Josh Kagan Blog
Prof. Michael Scott of the Singularity Law Blog
MPAA v. RealNetworks
RIAA Lawsuits – Discussion of the EFF’s Report
Did Statutory Royalties Almost Spell the End of iTunes?
Online Poker Cheating Scandal
Network Neutrality: A Few Observations
Talking Point of the Week: MI6 Photos and Data Accidentally Sold on eBay
This recording is an informational resource only. It is not designed to offer legal advice.
October 5th, 2008 by Joshua Kagan
I used to work for a video game publisher here in LA, so it’s not unusual for video game-related news and cases to come across my desk. But over the last few days I’ve seen an unusually high amount of commentary from all different corners of the industry about used game sales. I don’t think this is as big of a problem as those commentators have suggested.
The Issue of the First Sale Doctrine
The First Sale Doctrine as codified in the Copyright Act permits a purchaser to transfer ownership of a particular copy of a copyrighted work as long as no additional copies are retained. Game discs qualify for this, and so they can be freely sold. Historically, this has never been much of a problem for the industry. Unlike novels and videos which are often used once and then archived, consumers have traditionally resisted selling their used games because it’s a different kind of product. But now, with companies like Gamestop building retail businesses that aggressively promote the sale of used game discs, the situation has changed significantly. Some publishers and developers fear that an overly powerful secondhand games market could strangle the industry by cutting off consumers’ demand for new game discs. With new games costing as much as $30 million to develop in an industry that employs around 100,000 Americans, it’s not hard to understand that fear. On the other hand, novelists and movie-makers have been dealing with the First Sale Doctrine for ages, but those industries have managed to survive even with the proliferation of lending libraries and video stores.
Digital Downloads as a Work-Around
One potential solution would be for the industry to move more toward digital downloads. Some of the most successful games in recent weeks, such as Braid and the highly anticipated Capcom title Mega Man 9, have found tremendous success as downloadable games on platforms like Nintendo’s WiiWare, Sony’s PlayStation Network, and Microsoft’s Xbox Live Marketplace. Many developers have also found success on Apple’s App Store, a service that puts application and game downloads at the fingertips of iPhone and iPod users. The use of digital downloads has a number of advantages to the industry, one of which is that downloaded games are typically locked to a single device through the use of DRM, cutting off the First Sale Doctrine at its knees.
DRM Problems
But moving further into downloadable games also has serious consequences for the industry. While mainstream gamers have generally been accepting of DRM, with services like Nintendo’s Virtual Console reporting sales on the order of 10 million games sold per year, critical demographics such as the 18-35 year-old male group have expressed dissatisfaction with the DRM restrictions placed on popular games like EA’s Spore. With the entertainment sector moving increasingly away from DRM, it’s not clear that the video games industry would benefit in the long run from increased reliance on a dying technology.
Storage and Bandwidth Problems
Another more important problem is that the storage and bandwidth limitations of game consoles don’t always meet the needs of today’s cutting edge games. For example, most games for the PlayStation 3 ship on Blu-Ray discs that can hold up to 50 GB each. Some recent games such as Konami’s Metal Gear Solid 4: Guns of the Patriots have already managed to fill these discs. Delivering games this large over the Internet is impractical with current technology because they would take far too long for players to download and would occupy too much space on game consoles’ hard disks.
There’s no denying that this situation puts the industry in a tough spot.
The Best Solution: Leverage Games’ Perceived Value and Add Replayability to Game Discs
I think that the best solution here would be to make some small changes to the nature of mainstream disc-based games. One of the things that distinguishes a game disc from a novel or a video is that, in many cases, once a novel or video has been used (i.e. read or viewed) once, there might not be a lot of perceived value to the consumer in using the product again. That’s why there will always be a sizable block of consumers who rent many DVDs but don’t buy any. But the video game industry can be different by crafting products that retain their perceived value even after they have been enjoyed once.
One way to do this is by providing gamers with experiences that go beyond a typical “single player campaign” experience. Nintendo’s Metroid series was a pioneer in this area; they contain items and areas that are not essential to finishing the game, but that greatly enhance and change the nature of the game if the player chooses to explore. Vivendi’s Diablo series is similarly innovative, with dungeon layouts and discoverable items that are randomly generated each time the game is played, presenting the player with a slightly different experience on each playthrough. Some other recent games have begun to emphasize Internet multiplayer capabilities that pit players with (or against) other players from around the world. This creates communities in which players build perceived value in the game over time. It also encourages players to push sales of those games through word-of-mouth advertising because players know that the more people have the game, the better it will be. Finally, another solution is to make available new content in the form of downloadables. These can be offered to players for free simply to drive sales even as the game gets older, or they can be sold to players in the form of revenue-generating micro-transactions. It’s worth mentioning that a gamer who has invested even a few dollars in game-related micro-transactions is probably far less likely to ever sell his copy than someone who has invested nothing other than the purchase price.
Americans spent nearly $19 billion on video games in 2007, and that number is set to look even better once 2008 comes to a close. Over the past two decades we’ve watched this industry adapt dynamically to a number of consumer and technological trends such as Internet piracy and the emergence of the “casual” games market. In every case the industry has emerged stronger than it was when it went in. I wouldn’t lose sleep over the emergence of a used games market.
Save your fear for Capcom’s upcoming Resident Evil 5 launch instead. If it’s anywhere near as good as its predecessor, when that hits in March 2009 I think we’ll all be having a few zombie nightmares.