Category: Intellectual Property

7

Copyright and Bar Exam Questions

pmbr.gifA federal district court recently held that PMBR was liable for a copyright violation for using questions from the Multistate Bar Examination in its classes and materials. PMBR, the “Preliminary Multistate Bar Review,” is a bar exam preparation course. The opinion is available here.

The court concluded that many of the questions in PMBR’s materials are similar to those on the Multistate Bar Exam. In assessing damages, the court noted that “[s]ince plaintiff lost no hypothetical royalties, I cannot award actual damages in compensation. I can and will, however, factor the uniquely proprietary nature of the infringed questions

into apportionment of defendants’ profits.” Accordingly, the court awarded the plaintiffs nearly $12 million, one third of PMBR’s gross revenues during the time period of the violations. Moreover, the court held:

Defendants will be enjoined from copying, duplicating, distributing, selling, publishing, reproducing, renting, leasing, offering or otherwise transferring or communicating in any manner, orally or in written, printed, photographic or other form, including any communication in any class or other presentation, any questions obtained directly from any of NCBE’s copyrighted secure tests.

Hat tip: Lawschool.com

2

What Does It Mean to Be Interoperable?

PlugsInteroperability and content protection (a/k/a DRM) have been much in the news lately. As Deven blogged below, the French DADVSI law recently passed the French Parliament and then last week was modified by the Constitutional Council. Meanwhile, Apple is grappling with Norwegian regulators over the interoperability issue as well. And Randy Picker recently raised the issue of interoperability and video game servers over on the University of Chicago blog.

In the abstract, most people are in favor of interoperability, just like they are in favor of lower taxes, bigger houses, and better-tasting beer. But when it gets down to nuts and bolts, what’s the best way to provide for interoperability? More specifically, does an interoperable content-handling device need to protect the content in exactly the same way as the original device (which would arguably limit the amount of innovation)? Is there some sort of threshold of “good enough” protection that could be identified and mandated (and if so, by whom)? Or is it solely up to one party to decide?

Of course, there are many who hate content protection in all its forms; their answer is no doubt that the law should provide the broadest exception for interoperability possible, because that weakens content protection the most. This post is not really aimed at those people; debating the limits of an interoperability exception with diehard content protection opponents is a bit like discussing Carthaginian-Roman relations with Cato the Elder.

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1

French Interoperability: Reversed, Pinned, and Twisted into a Pretzel?

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In what has been a whirlwind of changes, the French law to promote interoperability has apparently been eviscerated as unconstitutional. What began in around March as a strong stance mandating that owners of proprietary DRM systems share information to allow interoperability and prevent one company from dominating the online music market has become what appears to be an industry influenced law that, as the article notes, may generate the opposite results. The law is called the Dadvsi law (wikipedia entry here)

The law was seen by some as aimed against Apple because “iTunes files downloaded through Apple’s music service are protected by the company’s FairPlay DRM technology, designed to play exclusively on Apple devices such as the iPod.”

So how much influence did Apple and other industry players exert on this process? I ask this because not only did the interoperability mandate vanish but according to the article reverse engineering to gain interoperability (formerly allowed) is not only prohibited but may be fined; a new licensing system will be established so that those wishing to use the systems will pay a license; and the decriminalization of file sharing with “fine[s] of 150 euros ($191) or 38 euros ($48.50) for uploading or downloading music respectively” is now “a criminal offense and potentially face several years in prison or a fine of 500,000 euros ($638,200).”

Although the fines dor file sharing seem to have been almost written by the music and tech industry, perhaps most interesting change is the licensing system. What do patent, market defenders, and others think? It is unclear what rate the French government will impose through the licensing authority but nonetheless will a system that requires a company to license its technology help or hurt interoperability?

2

Froomkin’s Law Review Copyright Wiki

copyright-symbol1a.jpgOne of the things I always attempt to do with my scholarly work is to ensure that I keep the copyright in my name. This gives me the maximum freedom in how I choose to use and distribute my work in the future. Law reviews have a welter of different policies with regard to copyright that sometimes vary from year to year and from author to author. After negotiating, I have been able to secure copyright in my work with most journals, with just a few exceptions. Having knowledge about a journal’s past copyright practices can be very helpful. I know of at least one author who was told by a law review that it was against their policy to give him copyright. This was false, since the law review had given me copyright in my piece in the very same issue. Once he told them about the discrepancy, the journal editors quickly changed their position and gave him copyright.

To help bring more clarity to the confusing and contradictory world of law review copyright experiences, Michael Froomkin has developed a wiki to track the copyright policies of various law reviews. He describes the project as follows:

The purpose of this website is for legal academics and others to share our copyright experiences with law journals and other legal publishers. As academics, we have an interest in ensuring the widest dissemination of our work. Historically, Law Journals have tended to use standard-form copyright agreements that reqire a copyright assignment, and have tended to impose unreasonable restrictions on our rights to share and re-use our own work.

This is starting to change. Increasingly, law journals, are adopting reasonable policies, or at least are open to negotiation. Due to the transitory nature of student-run law journal staffs, some staffs are actually unaware of their own past practices.

On the pages linked from here, legal writers describe their copyright experiences and law journals describe their policies. The information is as good or bad as what you contribute to it.

Hat tip: Paul Caron

8

IP Wars

YouTube has a good but not great take on Darth Vader’s little known brother, Chad. I wouldn’t watch all the way to the end but the first three minutes are solid and for any fan of the Star Wars films there are some good plays on the dialogue and scenes. Which leads me to a perhaps sad yet currently inevitable note. The IP Wars drone on and YouTube faces a copyright lawsuit.

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Perhaps someday a young attorney or scholar will ask an aging IP attorney “You fought in the IP Wars?” with awe because we will have unraveled how to develop, and let’s face it, make money on information yet manage to keep the information free-flowing so that expression and education can flourish. In a sense I think that conundrum is what Professor Yochai Benkler highlights in his book the Wealth of Networks. As someone wrestling with these questions, I anticipate and welcome your thoughts on the big question but here are the details of the YouTube suit to give some context of one slice of the IP Wars and perhaps offer facts with which to test the possible solutions. In addition, thanks to Bruce’s entry Don’t Write Angry for noting when arguments become more yelling matches rather than explorations of what to do to fix the problem. Now on with the current episode of IP Wars.

Apparently someone posted the video of the Reginald Denny beating during the 1992 riot in Los Angeles. According to the article, Robert Tur, the man who made the film, has sued claiming that the posting hurts his ability to license the video and that YouTube has profited from more than 1,000 viewings of the film. It seems that rather than ask YouTube to take down the clip under DMCA provisions, Mr. Tur filed suit. YouTube removed the clip after it knew about the lawsuit.

Whether Mr.Tur really makes that much money from licensing would be interesting to know. I frankly had not thought of the video until the lawsuit and would not want to pay to see it. Furthermore, it seems that historians should be allowed to show the clip in its entirety but of course that position runs smack into fair use problems. Nonetheless, consider that a Saturday Night Live clip was a hit on YouTube. It had at least 5 million downloads (assumedly from many who did not see the show which in 2004 seemed pleased with peaks of around seven million viewers) but NBC asked that it be removed. NBC does sell the clip on iTunes but it also allowed the clip to be seen on its Web site in an embedded player. I wonder whether NBC just hates great, free advertising or whether it really believes it can make more money by aggressive policing of its IP.

3

Don’t Write Angry!

GroundhogWay too much writing about copyright issues is done by first, allowing your blood pressure and heart rate to rise as high as possible, and then second doing your entire article (or blog comment) in “steamed” mode. This tends to lead to not-so-insightful analysis. An example appeared in this morning’s Washington Post in Steven Pearlstein’s article, “A Sound Marketplace For Recorded Music,” which focuses (eventually) on the record labels’ lawsuit filed last month against XM Satellite Radio.

The RIAA complaint alleges that XM’s new “XM + MP3″ service, which transmits to XM’s associated “Inno” receiver, falls outside the statutory license provisions for digital music transmissions and therefore violates the Copyright Act. There’s some interesting issues there, but they’re hard to glean from Pearlstein’s article.

First, Pearlstein makes the standard swipes at “monopolists” shutting down “innovation.” This isn’t much more illuminating than the standard rhetoric from large copyright owners, that “pirates” are destroying incentives. It gets very murky when you realize that “innovation” and “piracy” are not distinct categories — you can have innovative pirates. Whether a given service is or should be legal can’t be determined based on these labels, unless you’re an extremist.

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7

Baseball, books, and property rights

Alan Schwarz has an interesting new article in the New York Times on the baseball statistics case. (The article cites, among others, Eugene Volokh.) A few of the more interesting snippets (this is all fair use, I tell you!):

“If anything, this case is even more impactful if the court rules for the players, because it will speak to any time you use a name in a commercial venture,” said Eugene Volokh, a professor of law at U.C.L.A. “What if you use a historical figure’s name in a historical novel? Or other games, like Trivial Pursuit? How about ‘Jeopardy!’? Would they be liable as well? That seems to be the logical consequence of this. How do you identify what is news, and other times when there’s communication of factual information?” . . .

“Fantasy leagues are an intermediate case,” said Rod Smolla, dean of the University of Richmond Law School. “This could become like the Grokster case in the music-downloading world, where the Supreme Court could be asked to draw that line between the benefits of public use and ownership of property.” Fame, Mr. Smolla said, “belongs in part to the people who earn it and the public that gives it.

There you have the basic arguments. The difficulty comes in determining the place of baseball statistics on a continuum. On one end of the continuum are items that look a lot like property, such as detailed compilations of Derek Jeter’s batting average over the past ten seasons. On the other end are basic facts known to every Tom, Dick and Harry at every sports bar in America, like the fact that Ted Williams was the last player to hit .400. A detailed list of World Series winners back to 1901 looks more property-like; “the White Sox won it last year” doesn’t. And so forth.

Complicating matters further, the statistics case will play out in a world where ideas about property itself may be somewhat in flux. An interesting piece by Kevin Kelly ran in the NYT magazine last Sunday, about the effects of digitizing intellectual property. Kelly’s article argued that:

In a regime of superabundant free copies, copies lose value. They are no longer the basis of wealth. Now relationships, links, connection and sharing are. Value has shifted away from a copy toward the many ways to recall, annotate, personalize, edit, authenticate, display, mark, transfer and engage a work. . .

Copies don’t count any more. Copies of isolated books, bound between inert covers, soon won’t mean much. Copies of their texts, however, will gain in meaning as they multiply by the millions and are flung around the world, indexed and copied again. What counts are the ways in which these common copies of a creative work can be linked, manipulated, annotated, tagged, highlighted, bookmarked, translated, enlivened by other media and sewn together into the universal library.

There’s a lot of truth to Kelly’s argument, and it applies to much more than just books. It certainly applies in the baseball statistics case, and that reality is going to be the backdrop that determines how the case affects property rights.

Thus, Eugene’s ‘Jeopardy!’ example is a good one. We can all imagine Alex Trebek and a ‘Jeopardy!’ answer of “This baseball player was the last to hit .400.” (“Question: Who is Ted Williams?”) The real emphasis is not on the definition of property per se, but rather on what are acceptables uses of the property. This is because in a world of low-marginal-cost copying, no one can prevent me from going to MLB.com and assembling lengthy lists of player statistics. And I don’t harm MLB or anyone else if I collect such copies. What MLB wants is control over how I can use such lists.

0

Metabranding

On Wednesday, I had the pleasure of participating in a conference sponsored by the Harvard Negotiation Law Review that considered two case studies: the Oracle-Peoplesoft deal and the forthcoming MasterCard IPO. Vic Fleischer presented his thoughts on, among other things, the branding effect of certain aspects of the MasterCard IPO structure, and I was part of a group of IP folks who offered comments.

In my comments (which will be published later this year in the HNLR along with the other papers), I referred to the “metabranding” by the media that necessarily takes place when the audience for the branding message is outside the stream of communication in which the message is delivered. (In the MasterCard example, I posited that if MasterCard is indeed trying to contribute to its brand image through its IPO structure, it needed to rely on the media to carry that message to consumers (i.e., cardholders) who were not among the audience for the IPO’s regulatory documents in which that structure was described.) Because the media is not beholden to the branding entity, it is free, like any consumer, to accept or critique the branding message; the process is both inherent in the branding effort and necessarily works the deconstruction of the brand. More broadly, I see “metabranding” as a type of discourse about the branding effect itself, a discussion in which the participants deliberately and openly contribute to brand meaning. (Given that trademark meaning is always ultimately created by consumers, metabranding brings that discussion out in the open.)

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3

Blogger sued for trade libel

From the Boston Globe:

A coastal Maine blogger who criticized the state’s tourism office has been hit with a lawsuit seeking potentially more than $1 million in damages for allegedly making false statements and posting on his website, Maine Web Report, images from proposed tourism advertisements a New York agency prepared for Maine officials.

. . .

The advertising agency is suing Dutson on three counts: copyright infringement, defamation, and trade libel/injurious falsehood. It seeks statutory damages of $150,000 for each of six images it alleges were infringed upon, as well as unspecified punitive damages and legal fees.

This suit has various elements, and it’s hard to say how much of it would go forward in the absence of the (more conventional) copyright claims. This is not purely a trade libel suit based on blog content. But it contains that claim, and as such, it’s a sobering data point. In particular, if these kinds of suits (trade libel over blog content) become a broader trend, that will have serious effects on blogs. After all, a good deal of the blogosphere is dedicated to criticism of some industry or other. There is the classic “I had a bad experience with X airline” post; there are series of posts criticizing a business or industry; and so on.

Trade libel requires (as far as I’m aware, in every jurisdiction – though I’m not an expert) actual falsehood, so that is a potential defense. But even a successful defense can be costly and time-consuming and stressful, and I suspect that few bloggers would want to risk a lawsuit. Thus, the real effect of such lawsuits is the chilling effect — that bloggers will become more hesitant in their criticisms. This may be a good thing in some cases — Heaven knows thablogs often generate more heat than light — but is certainly not an unalloyed good.

In the mean time, let me say that my New York trip has been great. Loved the food. Even the subways smelled nice. Please don’t sue me, Mayor Bloomberg. Or the blog. I was just kidding when I complained about that stale bagel. And I deleted that post, anyway. What post? I didn’t see any post about a stale bagel. Did you, guys? Didn’t think so. Carry on. Nothing to see here.