I covered the Tenenbaum case earlier in a few posts here earlier this week, but I decided to step back and do a bit a broader analysis in a guest post over at the Citizen Media Law Project blog. Check it out.
Category Archives: Gadgets and Technology
Going rogue
Wired’s Nate Anderson has a great write-up over at Ars Technica of the “Legitimate Sites v. Parasites” hearing before the U.S. House of Representatives Judiciary Committee today, and it’s not looking good for Internet intermediaries:
[T]he general mood of the hearing was that tough new steps must be taken. As Rep. Darrell Issa (R-CA) asked [Immigration and Customs Enforcement director John] Morton during his questioning, “What change in the law would allow you to pursue everyone?”
In his written testimony before the committee (PDF), Kent Walker, Google’s Senior VP and General Counsel noted that such an all-inclusive approach would be impossible and counterproductive:
When it comes to offshore rogue sites, no one should think that imposing additional obligations on search engines, social networks, directories, or bloggers beyond the DMCA [Digital Millennium Copyright Act] will be a panacea. If the site remains on the web, neither search engines nor social networks nor the numerous other intermediaries through which users post links can prevent Internet users from talking about, linking to, or referencing the existence of the site. These links or references will themselves appear in search results, and will enable users to reach the site. Simply put, search engines are not in a position to censor the entire Internet, deleting every mention of the existence of a site. If a rogue site remains accessible on the Internet, relying on search engines to try to make it “unfindable” is an impossible endeavor. [emphasis added]
I recommend reading Walker’s full comments for a robust defense of why the notice-and-takedown immunity provided by the DMCA is essential for innovation.
Additional coverage by Politico, Techdirt, CNET, TorrentFreak, RIAA Blog…
Tenenbaum oral arguments on YouTube
Having attended the oral arguments before the 1st Circuit Court of Appeals in Sony BMG Music Entertainment et al v. Tenenbaum yesterday and analyzed my initial impression here, I was pleased to see that the court posted (MP3) the audio of the oral arguments on its website.
Unfortunately, it is often difficult to tell who is speaking given the bare audio. Therefore, I have decided to post the audio on YouTube and annotate it so that listeners can know who is speaking when. I hope many find this helpful.
Here are the links, in 5 parts:
- Part 1: United States as intervenor-appellant. Argument by Jeffrey Clair, Department of Justice, Civil Division. http://www.youtube.com/watch?v=1gLXSnCzgNM
- Part 2: Record labels as plaintiff-appellant. Argument by Paul Clement, Partner, King & Spalding. http://www.youtube.com/watch?v=6s5Omh2bDdA
- Part 3: Electronic Frontier Foundation as amicus curiae. Argument by Julie A. Ahrens, Associate Director, Fair Use Project, Center for Internet and Society at Stanford Law School. http://www.youtube.com/watch?v=-lqHuukDW-c
- Part 4: Joel Tenenbaum as defendant-appellee. Argument by Jason S. Harrow, Student, Harvard Law School, and Charles R. Nesson, Weld Professor of Law, Harvard Law School. http://www.youtube.com/watch?v=VWy3Wj6XbDk
- Part 5: Record labels’ rebuttal. Clement again. http://www.youtube.com/watch?v=WI-3YYN3xxY
The argument was before a panel of three First Circuit judges:
- Sandra L. Lynch, Chief Appellate Judge
- Juan R. Torruella, Appellate Judge
- Rogeriee Thompson, Appellate Judge
For even more fun, you can download the briefs here to follow along with the audio. Happy analysis!
DIRECT REPORTING: Tenenbaum oral argument
A few hours ago, I attended oral arguments here in Boston before the First Circuit Court of Appeals in Sony BMG Music Entertainment v. Tenenbaum (Wikipedia backgrounder, appellate briefs here). To summarize, several record labels sued Joel Tenenbaum for sharing music files on a peer-to-peer service, and Tenenbaum lost at trial. However, trial court Judge Nancy Gertner reduced the jury verdict of $675,000 against Mr. Tenenbaum down to $67,500.
Both sides appealed. The labels framed the sole issue on appeal as:
Whether the district court erred by holding that the jury’s award of $22,500 per work for willful infringement of 30 copyrighted works violated the Due Process Clause, even though that award is well within the range of statutorily prescribed damages awards for willful copyright infringement and even within the statutory range for non-willful infringement.
In contrast, defendant Tenenbaum framed the issues as:
1. Is the award of damages against the defendant unconstitutionally excessive?
2. Was the jury properly guided by the trial judge’s instructions?
3. Does the statute under which the defendant was prosecuted apply to individual noncommercial consumers?
4. Does 17 U.S.C. § 504(c) remain operative in the wake of Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998)?
Today’s hearing took place before a three-judge panel consisting of Chief Judge Sandra L. Lynch, Judge Juan R. Torruella, and Judge O. Rogeriee Thompson. In addition to the plaintiffs and defendants, the United States (as intervenor) and the Electronic Frontier Foundation (as amicus curiae) presented oral arguments.
Based on the judges’ questions and demeanor at oral argument, my impression is that Joel Tenenbaum faces an uphill battle and is likely to lose his appeal. I don’t have a transcript of the proceedings, but the following stands out from my notes and memory.
Chief Judge Lynch clearly had no tolerance for the defense’s contention that “no one thought” the statutory penalties for copyright infringement would ever apply to “consumers”. She pointed out that the statute appeared to apply to consumers, eliciting a concession from Tenenbaum’s counsel that statutory copyright penalties were not facial unconstitutional. This left the defense with little more than a half-hearted argument that the jury verdict was improper here because the copyright statute originally contemplated damage calculations by judges.
Judges Torruella and Thompson seemed somewhat more suspicious of the record labels’ arguments, but it was unclear whether these suspicions would help Tenenbaum win his case. Judge Torruella asked the labels’ lawyer whether “lost sales” would provide a useful measure of damages, to which he replied that damages should be commensurate with the “lost of value of the copyright”. He argued that file-sharing in the aggregate caused enormous economic losses to the labels because it essentially put the music “in the public domain.” (Why Joel Tenenbaum should be personally responsible for the actions of thousands or millions of other file-sharers remained the obvious question he never managed to answer.)
For her part, Judge Thompson questioned whether appellate courts could ever find that a jury for statutory damages in a copyright infringement action to be excessive if it fell within the statutory range ($750 to $150,000 per work infringed). The labels’ counsel did concede copyright damage awards were “not immune from Williams [Philip Morris USA v. Williams, 549 U.S. 346 (2007)] review” but maintained that such a problem would be “rare” and that this was not that case.
We likely won’t have the First Circuit’s decision for several months, so there’s still plenty of time to speculate about what the outcome will be. I’ll continue posting as I have additional thoughts.
Update 4/5/2011:
- The First Circuit has posted audio of the oral argument (MP3).
- Additional coverage by TorrentFreak, Boston Herald, TechDirt…
Covering file-sharing appeal
I’m going to be attending oral arguments here in Boston before the First Circuit Court of Appeals in the Sony BMG Music Entertainment v. Tenenbaum case (Wikipedia backgrounder) later this morning. Appellate briefs are available here, summary from the defendant’s perspective here.
Check back later today for more commentary and analysis.
“Peak bandwidth”
Long-time readers of this blog know that we like to cover broadband and Internet issues wherever possible. In the spirit of keeping everyone informed, I give you Public Knowledge’s latest report, “Peak Bandwidth” (PDF):
Bandwidth was formed by the tech bubble of the late 1990s and is typically found in strands of “dark fiber.” The largest fibers are called “backbones,” many of which were discovered next to railroad tracks. Since then, smaller pockets of bandwidth have been discovered in “last miles,” in forms such as DOCSIS-enabled coaxial cable and FiOS brand fiber.
Increasing strains are being placed on our bandwidth reserves. “Hogs” such as young people and cord-cutters are placing an unbearable strain on our bandwidth supplies, and “over-the-top” service providers like Netflix, Skype, Amazon, and Google consume copious amounts of bandwidth free of charge, without providing any valuable services in return. In short, our tubes are being clogged with bits. While that may not seem like a major problem now, the long-term is bleak. We will look back fondly on the day our tubes were clogged. Once bandwidth is gone, it’s gone. Used up bits are gone forever. They don’t come back and can’t be replaced. As a result important marketing messages, ecards, and Facebook updates will be crowded out of the ever-shrinking supply of usable bits.
Hilarious, Public Knowledge. And I think (hope?) you’ve made your point.
Pandora’s (copyright) box
It’s no secret that copyright law is ridiculously complicated and in bad need of reform. In case anyone needed reminding, paidContent covered Pandora’s CEO Joe Kennedy’s recent speech at the NARM music conference in San Francisco. The article’s headings say it all:
- “The complexity of international copyright limits Pandora’s business.”
- “How huge damages in copyright law have skewed business relationships.”
- “Our definition of ‘copies’ might need to change for the digital age.”
That’s a pretty good summary of precisely where copyright law has gone wrong. Be sure to check out the full article.
How recorded music might limit social action
iPod headphones are ubiquitous on college campuses and many other places. What effect such devices and more broadly, recorded music, might have on modern society is explored in this essay that includes references to sociologists Sudhir Venkatesh and Pierre Bourdieu:
Two years ago, at the nadir of the financial crisis, the urban sociologist Sudhir Venkatesh wondered aloud in the New York Times why no mass protests had arisen against what was clearly a criminal coup by the banks. Where were the pitchforks, the tar, the feathers? Where, more importantly, were the crowds? Venkatesh’s answer was the iPod: “In public spaces, serendipitous interaction is needed to create the ‘mob mentality.’ Most iPod-like devices separate citizens from one another; you can’t join someone in a movement if you can’t hear the participants. Congrats Mr. Jobs for impeding social change.” Venkatesh’s suggestion was glib, tossed off—yet it was also a rare reminder, from the quasi-left, of how urban life has been changed by recording technologies.
Later in the essay, Bourdieu is presented as the anti-Adorno, the sociologist who argued that music doesn’t help prompt revolutionary action but rather is indicative (and helps reinforce) class differences:
In the mid-1960s, [Bourdieu] conducted a giant survey of French musical tastes, and what do you know? The haute bourgeoisie loved The Well-Tempered Clavier; the upwardly mobile got high on “jazzy” classics like “Rhapsody in Blue”; while the working class dug what the higher reaches thought of as schmaltzy trash, the “Blue Danube” waltz and Petula Clark. Bourdieu drew the conclusion that judgments of taste reinforce forms of social inequality, as individuals imagine themselves to possess superior or inferior spirit and perceptiveness, when really they just like what their class inheritance has taught them to. Distinction appeared in English in 1984, cresting the high tide of the culture wars about to hit the universities. Adorno had felt that advanced art-music was doing the work of revolution. Are you kidding, Herr Professor? might have been Bourdieu’s response. And thus was Adorno dethroned, all his passionate arguments about history as expressed in musical form recast as moves in the game of taste, while his dismissal of jazz became practically the most famous cultural mistake of the 20th century.
This is an interesting analysis. Sociologists of culture have been very interested in music in recent decades. One line of research has insights into “omnivore” behavior, those high-status people who claim to like all sorts of music. (See an example of this sort of analysis here.)
But this essay seems to tap into a larger debate about technologies beyond just recorded music: do computers, laptops, iPods, cell phones and smart phones, Facebook memberships, and other digital technologies serve to keep us separated from each other or do they enhance and deepen human relationships?
Secondary liability, approaching the limit
The Seattle Times reported a few weeks ago that Microsoft “is pushing Washington legislators to pass a law making it illegal for manufacturers that use pirated software to sell goods in the state”:
The proposed legislation would create a legal cause of action by making manufacturing companies liable for damages, and it would give the state attorney general and companies the right to pursue injunctions in civil court to stop the manufacturers’ goods from being sold.
For example, if a large Washington store sold T-shirts made from a company in China and the Chinese company uses pirated copies of Excel at an office in Shenzhen, Microsoft could seek an injunction to prevent the manufacturer from supplying T-shirts to be sold in Washington state.
This represents a sweeping change to current intellectual property law. It is one thing to grant monopolies via copyright for “limited Times” in order “To promote the Progress of Science and useful Arts”. It is another thing entirely to extend copyright’s monopoly over physical objects alleged to have been manufactured in another country with the help of pirated software and thus to hold the buyers of those physical objects legally responsible.
To put it concretely: this isn’t holding the buyers of obviously stolen TV’s out of the back of a pickup truck legally responsible for their purchases. This is holding GM, maker of that pickup truck, legally responsible because the Chinese manufacturer of one of the parts in the truck’s engine used a pirated copy of Microsoft Outlook to receive emailed purchase orders from GM.
Now that’s secondary liability.
Hat tip to Groklaw, where I ran across this story earlier today. If you’d like to read more about this, Pamela Jones has written rather extensive commentary, including a hypothesis Microsoft is pushing for this and similar laws in other U.S. states in order to unleash a “litigation storm against Linux” — including derivatives like Android:
The law would make it possible for Microsoft to block Android sales in whatever state passed such laws if it could find some tie between the Android product and some manufacturer of a contracted part in China or wherever who happened to use a pirated version of Microsoft Word — not to make the part but to write up an ad for it. Ephemeral, much? But can you imagine how much litigation could spring from a law like this? How little it would take to keep litigation in the air forevermore? And you don’t have to even prove infringement in China, just allege it to initiate proceedings.
Of course, Jones is quick to note that the state of Washington’s “protections” do not extend to companies like Red Hat that profit from selling open source support and services. Under the law, software companies with proprietary licenses like Microsoft
can sue in civil court and the Attorney General can go after the “wrongdoer” US company, if a notice is sent and no amelioration occurs. But if the violation is of an *open source license*, the victim can’t sue anyone under the bill, and the Attorney General does nothing for you. It’s an exception to the law.
Read his lips
Perhaps realizing how much money Charlie Sheen’s endorsements are worth these days, the U.S. Patent and Trademark Office recently decided to trumpet the fact that Mr. Sheen is also the proud recipient of U.S. patent #6,283,658:
Charlie Sheen’s patent for a “Chapstick Dispensing Apparatus.” Patent No. 6,283,658 was granted on September 4, 2001 to inventors Carlos Irwin Estevez and Rodger D. Thomason and assigned to Masheen Inc. in Los Angeles.
You can smack your own lips over all 14 pages here. Hat tip to Scott Walshon, friend and patent examiner, for pointing me to the link.
Legally Sociable 