November 2004 Archives

Russian Animation Copyrights

Who owns copyrights in approximately 1500 animated films created by a state-owned Soviet film studio between 1946 and 1991 and who can enter into a valid exclusive licensing agreement to distribute those films outside the Former Soviet Union?

Films by Jove v. Berov, 98-CV-7674 (EDNY, Nov. 5, 2004) looks again at this case, ruling on a Rule 60(b) motion to review the decision taking into account a Russian Federation Directive enacted after the earlier rulings in the EDNY, Films by Jove v. Berov, 154 F. Supp. 2d 432 (E.D.N.Y. 2001) ("Films by Jove I") and Films by Jove v. Berov, 250 F. Supp. 2d 156 (E.D.N.Y. 2003) ("Films by Jove II").

AWN: New York Court Favors Films by Jove Over Russian Film Dupes (subscription required): Judge Rules for U.S. Company, Against Russian Agency

Polls Show Invalid Copyright Registration

Legal Intelligencer: Gallup Mistake Invalidates Copyright

After four years of litigation, a federal judge has dismissed a copyright infringement suit brought by Gallup Inc. -- the consulting firm best known for the Gallup Poll -- after finding that it never properly registered a copyright for its "employee satisfaction survey."

Gallup v. Kenexa Corp., No. 00-5523 (E.D.Pa. Nov. 8, 2004).

Not quite perfect

A group of websites publish material that may infringe Perfect 10's copyrights and trademarks. Perfect 10 sues credit card processors Visa and Mastercard for contributory and vicarious copyright and trademark infringement in addition to various other claims (state trademark, right of publicity, unfair competition, false advertising and libel.) US District Court grants summary judgment to the defendants on all grounds: Perfect 10 v. Visa International (N.D.Ca., 04-0371).

Contributory copyright infringement requires a material contribution to the infringement-- more than a mere contribution to the general business of the infringer. In order to find contributory copyright infringement, the contribution must bear some logical relationship to the actual instances of infringement. Providers of content neutral services (like credit card verification or P2P servers with no central index server) are concerned solely with financial aspects of the websites, not their content and should not be held responsible for contributory copyright infringement.

Judge Ware distinguishes the finding of vicariously liability in Napster. In Napster, the party found vicariously liable "actually supplied the product that was being used to enable the infringing distribution of copyrighted works" and could control the distribution of the infringing works. Rescinding credit card processing does not directly affect the illicit distribution of copyrighted pornography. Federal Judge Tosses Porn Purveyor's Copyright Suit Against Credit Card Companies

Archived web pages not hearsay

A Magistrate judge rules that copies of vintage web pages archived by a reputable third-party are not be hearsay and may be admissible as evidence: Telewizja Polska USA, Inc. v. Echostar Satellite Corp., 2004 WL 2367740 (N.D.Ill. Oct. 15, 2004).

Stanford's Packets reports: Internet Archive’s Web Page Snapshots Held Admissible as Evidence

FCC vs. the First Amendment?

Wired News: FCC Crackdown Could Spread

With support from both Republicans and Democrats, the Federal Communications Commission is poised to get even more aggressive about enforcing moral values throughout broadcasting, even putting cable television in its cross hairs and taking aim at Howard Stern's right to talk dirty on satellite radio.

It looks like only the courts will stand in the way of the FCC now. But a funny thing could happen on the way to washing Eric Cartman's mouth out with soap: Conservative judges might just say no. After all, not too long ago the Supreme Court rejected efforts to censor the internet.

Movie Studios Get In the Game

Movie studios join the record industry and sue file sharers.

Findlaw Special Coverage hosts the complaints:

Wired News: Movie Studios Sue File Traders

Legislate early, litigate often

One of the bills that may pass during the lame-duck session of the 180th Congress is HR2391, the Intellectual Property Protection Act. This is an omnibus bill containing some of everyone's favorite IP-related bills, including Create, PDEA, Pirate and the Family Movie Act. Each of these bills deserves to be debated on its own individual merits, but Congress may pass the omnibus act for the sake of "doing something" in this field.

The Induce Blog is the place to turn for links and analysis about this bill, such as: The Intellectual Property Protection Act.

Public Knowledge: The Intellectual Property Protection Act

Wired News: Wired News: Senate May Ram Copyright Bill

Grokster and Claria Clickwrap

Ben Edelman: Grokster and Claria Take Licenses to New Lows, and Congress Lets Them Do It

Grokster installs lots of junk if a user presses Accept. However, Grokster also installs software even if the user presses Cancel! That's right: If a user has second thoughts after seeing the long license agreements, and if the user decides to press Cancel, Grokster's installer nonetheless installs SearchLocate/SideBar and with TVMedia.

More later...

Patent Problem

The Economist: Monopolies of the mind

Patents, said Thomas Jefferson, should draw “a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not.” As the value that society places on intellectual property has increased, that line has become murkier—and the cause of some embarrassment, too. Around the world, patent offices are being inundated with applications. In many cases, this represents the extraordinary inventiveness that is occurring in new fields such as the internet, genomics and nanotechnology. But another, less-acceptable reason for the flood is that patent offices have been too lax in granting patents, encouraging many firms to rush to patent as many, often dubious, ideas as possible in an effort to erect legal obstacles to competitors. The result has been a series of messy and expensive court battles, and growing doubts about the effectiveness of patent systems as a spur to innovation, just as their importance should be getting bigger

Grokster briefs

Courtesy of SCOTUSblog, cert. petition and various briefs for MGM v. Grokster.

Another P2P Study

On Borrowed Time

In the New Yorker, Malcolm Gladwell discusses plagarism, copyright and the ethics of creativity: Something Borrowed

Under copyright law, what matters is not that you copied someone else’s work. What matters is what you copied, and how much you copied. Intellectual-property doctrine isn’t a straightforward application of the ethical principle “Thou shalt not steal.” At its core is the notion that there are certain situations where you can steal. The protections of copyright, for instance, are time-limited; once something passes into the public domain, anyone can copy it without restriction.

P2P Panel Discussion

Brooklyn Entertainment Law Society: Conflicts of Technology and the Law: The Relationship between Peer-to-Peer Software and the Music Industry

Wednesday, November 17, 2004 6:00 - 8:00p.m.
Subotnick Center at Brooklyn Law School
250 Joralemon Street
Brooklyn, New York 11201


  • Whitney Broussard
    Partner at Selverne, Mandelbaum & Mintz, LLP
  • Mark Piibe
    V.P. Legal & Busniess Affairs and Head of Contect for MusicGremlin, Inc.
  • Ken Parks
    Director of New Media at EMI
  • Andrew McCormick
    Associate at Masur & Associates, LLC

FCC's Tyranny of the Minority?

Jeff Jarvis filed a Freedom of Information Act request to see the 159 complaints filed with the FCC concerning Fox's broadcast of Married by America which led the Commission to levy a $1.2 million fine against Fox for violating indecency standards. Jarvis received a reply from the Commission:

I just received the FCC's reply with a copy of all the complaints -- and a letter explaining that, well, there weren't 159 after all. William H. Davenport, chief of the FCC's Investigations and Hearings Divison, admits in his letter that because the complaints were sent to multiple individuals at the FCC, it turns out there actually were only 90 complaints. It gets better: The FCC confesses that they come from only 23 individuals.

These 23 complaints were not all original. In fact, only 3 different forms of letters were sent to the FCC.

Groups like the Parents Television Council make it incredibly easy to file complaints with the FCC about indecent language by using web forms where concerned moralists can complain to the Commission without needing to actually watch the offending broadcast. For example:

These forms make it especially easy to file complaints with the information necessary for the Commission to investigate a complaint. The complaint procedure is described in a 2001 Policy Statement: In the Matter of Industry Guidance On the
Commission's Case Law Interpreting 18 U.S.C.§ 1464 and Enforcement Policies Regarding Broadcast Indecency
(File No. EB-00-IH-0089, Apr. 6, 2001).

The Commission does not independently monitor broadcasts for indecent material. Its enforcement actions are based on documented complaints of indecent broadcasting received from the public. Given the sensitive nature of these cases and the critical role of context in an indecency determination, it is important that the Commission be afforded as full a record as possible to evaluate allegations of indecent programming. In order for a complaint to be considered, our practice is that it must generally include: (1) a full or partial tape or transcript or significant excerpts of the program;20 (2) the date and time of the broadcast; and (3) the call sign of the station involved. Any tapes or other documentation of the programming supplied by the complainant, of necessity, become part of the Commission's records and cannot be returned. Documented complaints should be directed to the FCC, Investigations and Hearings Division, Enforcement Bureau, 445 Twelfth Street, S.W., Washington, D.C. 20554.

If a complaint does not contain the supporting material described above, or if it indicates that a broadcast occurred during "safe harbor" hours or the material cited does not fall within the subject matter scope of our indecency definition, it is usually dismissed by a letter to the complainant advising of the deficiency. In many of these cases, the station may not be aware that a complaint has been filed.

If the complaint is valid, the Commission will then evaluate the content of the broadcast, make a decision about whether the content is indecent and levy a fine, if appropriate.

In its crackdown on indecency, the FCC complaint system rewards a small minority of vocal complainers and fails to take into account the opinions of those who approve of and enjoy television programming. The complaint procedure was intended to listen to those individuals who happened to be offended by some indecent programming actually experienced on broadcast. This complaint procedure did not contemplate activist morality patrols hiring staff members to watch potentially offensive programming and draft complaints.

Can the FCC create a better complaint procedure or decency standard? Should the Commission subject sensitive viewers to a tyranny of the majority? Even if broadcast programming is popular, should it still be required to meet some decency standard beyond mere market popularity? Are there any workable alternatives?

One alternative may be to simply create a stricter standard for indecency which broadcasters are less likely to run afoul of and will reduce the chill on speech. No matter what the standard is, some viewers will complain about content that borders on indecency and ask the Commission to act.

Another alternative is to create a threshold requirement where the Commission can only act when the number of complaints reaches a certain percentage of the viewing or listening audience of the program-- Howard Stern would have to disgust many more people than a less popular shock jock. The obvious drawback to this approach is that it can create a tyranny of the majority where a minority of viewers who are sensitive of broadcast standards will have no recourse with the FCC for content they find offensive.

DMCA Wrist Slap

ACS Blog editor Sean Kellogg discusses the DMCA and Lexmark v. Static Control: DMCA Gets Only a Wrist Slap

A recent Sixth Circuit ruling stirred a great deal of excitement among copyleft supporters last month when it struck down a district court injunction, but celebration may not yet be in order. The controversy arose between Lexmark, a major producer of printers and highly profitable printer cartridges, and Static Control Components (SCC), makers of embedded computer components.

Mmm... bread

Wired News: Music Is Not a Loaf of Bread: "Giving away an album online isn't the way most artists end up with gold records. But it worked out that way for Wilco."

The Register reports: France rules Apple's DRM denial not anti-competition

The French government's competition watchdog this week dismissed a complaint brought by VirginMega, which alleged Apple's refusal to license FairPlay ran contrary to French anti-trust law.

Check your sample

The Ninth Circuit Court of Appeals denied to rehear en banc Newton v. Diamond, a case involving sampling. The Beastie Boys sampled a three-note clip with permission from the copyright holder in the phonorecord, but without permission from the composer. The court ruled that the recorded performance of the three-note segment was distinctive enough that the sampling required a license, while that the amount of the underlying composition used was de minimis and the Beastie Boys did not require a license for that use of the composition.

Newton v. Diamond, Nov. 9, 2004.

Compare the Sixth Circuit ruling in Bridgeport Music v. Dimension Films, Sept. 7, 2004, holding that any recognizable sample of recorded music requires a license, but does not address possible infringement of the underlying composition.

Are the circuits split or are the decisions reconcilable? Are other alternatives available?

Previously: Sampling without infringing

Reuters: U.S. Court Upholds Beastie Boys' Musical Sampling

Freedom Tower and Copyright Infringement

AP: Ex-Yale student sues designer of Freedom Tower, alleges copyright infringement

A former Yale University architectural student sued the designers of the World Trade Center site's planned Freedom Tower on Monday, saying the designs for the skyscraper violate copyrights of those he created at school.

VoIP slips free of state regulation

Last week, the FCC exempted Vonage and other VoIP services from state regulation, even though the states have a role in regulating traditional telephone service (POTS), because VoIP is not tied to any particular state or any physical infrastructure.

Memorandum Opinion and Order

Press Relase: FCC Finds that Vonage not subject to patchwork of state regulations governing telephone companies

Statements from Commissioners Powell, Abernathy, and Copps and Adelstein

Comedy of last resort

IP Funny: Intellectual Property Humor

Is anti-spyware legislation necessary?

| 1 Comment

Government Computer News: FTC: Technology, not legislation, needed to fight spyware

l Trade Commission commissioner Orson Swindle said that pending anti-spyware legislation is an election-year effort by Congress to appear to be taking meaningful action against a high-profile problem.

Swindle and Jim Harper, director of information policy studies at the Cato Institute, warned during a Capitol Hill briefing today that premature laws could do more harm than good.

Changes to IP law/practice?


The Free Expression Policy Project at the Brennan Center for Justice at NYU offers A Preliminary Report on the Chilling Effects of "Cease and Desist" Letters:

When does copyright control end and "fair use" begin?

Fair use allows students, artists, journalists, and others to borrow and quote from copyrighted material without permission if they are doing it for purposes like commentary, parody, or news reporting. But the contours of this fair use defense to copyright infringement are vague, and in the real world, most disagreements don't get decided in court. Instead, copyright owners - especially corporate ones - send threatening "cease and desist" letters to those they think are violating their copyrights or trademarks. Needless to say, these letters do not advise the recipients that their borrowing might be fair use.

E-Vote Irregularities


The first reports of irregularities caused by voting machines in Tuesday's elections are trickling in:

In Franklin County, Ohio, voting machines counted an extra 3,893 votes for Bush. The Columbus Dispatch reports: In one precinct, Bush’s tally was supersized by a computer glitch

A computer error involving one voting-machine cartridge gave President Bush 3,893 extra votes in a Gahanna precinct.

Franklin County’s unofficial results gave Bush 4,258 votes to Democratic challenger John Kerry’s 260 votes in Precinct 1B, which votes at New Life Church on Stygler Road. Records show only 638 voters cast ballots in that precinct.

The AP reports that an e-voting machine in North Carolina lost more than 4,500 votes: Computer Loses 4,500 Votes

More than 4,500 votes have been lost in one North Carolina county because officials believed a computer that stored ballots electronically could hold more data than it did. Scattered other problems may change results in races around the state.

These appear to be only the tip of the iceberg. According to the AP, Reports of electronic voting trouble top 1,000

there were also several dozen voters in six states — particularly Democrats in Florida — who said the wrong candidates appeared on their touch-screen machine's checkout screen, the coalition said

Expect more irregularities and inconsistencies to surface after receives the results of its FOIA request: Voting without auditing. (Are we insane?)

Such a request filed in King County, Washington on Sept. 15, following the primary election six weeks ago, uncovered an internal audit log containing a three-hour deletion on election night; “trouble slips” revealing suspicious modem activity; and profound problems with security, including accidental disclosure of critically sensitive remote access information to poll workers, office personnel, and even, in a shocking blunder, to Black Box Voting activists.

(On an unrelated programming note, the election day hiatus will combine with pre-MPRE preparation and posting here will remain lighter than normal until after the MPRE next week.)