Category: Intellectual Property

1

Sony DRM: Singing the Blues

sonybmg2.jpgTalk about a backfire. A brief update on a story I previously blogged about a week ago. Sony attempted to install hidden DRM software into the computers of its CD users. A blogger criticized the software, setting off a firestorm of attention that has had Sony reeling ever since. The latest news:

1. Hackers and virus makers have been exploiting the Sony software as a vulnerability because it’s hidden.

2. Sony has stopped using the software.

3. Microsoft will update Windows to delete the Sony software.

4. Lawsuits are on the way.

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1

Grokster R.I.P.

grokster.gif The recent news of the Grokster settlement has generated only modest discussion, and I suppose that’s not surprising. The Supreme Court’s decision in the case came out months ago, and the big open questions left by that decision are unaffected by the settlement. Moreover, there appeared to be sufficient evidence in the record of “actual inducement” to make Grokster’s shut-down unsurprising.

Still, I would note that, according to the reports, the recording industry got Grokster to agree to pay $50 million in damages, even though they don’t expect to be able to collect. This gives the industry a big number it can use to deter future such technologies, and it’s consistent with the broader strategy of publicly signalling (through public announcements, lawsuits against end-users, education efforts, and even movie previews) that these activities are, in the industry’s view, infringing.

To some extent, this is the flip side of an earlier post I made about information regarding fair use rights. Just as some would like individuals to have greater information about their fair use rights, the copyright industries would like users to have greater information about the restrictions imposed by copyright. (Jason Mazzone has an interesting proposal about what to do when the industry overstates such restrictions).

All of this is to suggest that there seems to be a need to give individuals clearer and better information about what they can or can’t do under the copyright laws.

8

Sony’s Secret DRM and the Power of the Blogosphere

CD2.jpgSony BMG Music Entertainment placed Digital Rights Management (DRM) software onto its CDs in order to prevent people from copying the music on their computers. The software restricts the number of times that a person can copy a CD on his or her computer. According to a BBC article:

About 20 titles are thought to be using the XCP software and in May 2005 Sony said more than two million discs had been shipped using the technology. XCP is just one of several anti-piracy systems Sony is trying.

XCP only allows three copies of an album to be made and only allows the CD to be listened to on a computer via a proprietary media player. The hidden files are installed alongside the media player.

Sony had been using the software for about 8 months, until Mark Russinovich, a computer expert and blogger, discovered it and blogged about it on October 31, 2005.

According to an article in USA Today:

The controversy started Monday after Windows expert Mark Russinovich posted a Web log report on how he found hidden files on his PC after playing a Van Zant CD. He also said it disabled his CD drive after he tried to manually remove it.

Russinovich made the discovery while running a program he had written for uncovering file-cloaking “RootKits.” In this case, the Sony program hid the anti-piracy software from view. Similar technology also has been used by virus and worm writers to conceal their code.

A firestorm quickly erupted over what appeared to be an attempt by the music company to retain control over its intellectual property by secretly installing hidden software on the PCs of unsuspecting customers.

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1

Who Pays for the Law?

A couple of posts discussing the Google Print case have mentioned how they see it as an opportunity to get a court decision clarifying the scope of fair use on line. This makes me wonder: is there a public goods problem with respect to fair use law itself?

Fair use is notoriously fuzzy. Judicial opinions reduce the fuzziness somewhat by providing additional data points. These opinions benefit a wide range of parties by providing them with more guidance. Yet the cost of producing a ruling is borne largely by the private parties engaging in the litigation. So, in theory, will the existing system under-produce fair use law?

Perhaps it’s not meaningful to talk about an “optimal” level of legal guidance. But it remains the case that: (a) many potential fair users (particularly small-scale users) operate with insufficient guidance about what constitutes fair use; and (b) these folks are dependent upon large companies like Google being willing to litigate these (or analogous) issues to a decision.

So, if we want more clarity regarding the scope of fair use, how do we best produce it? Should we somehow subsidize fair use litigation (for example, by fee-shifting)? Or should we rely on a regulatory mechanism, like fair use regulations promulgated by the copyright office? (Michael Carroll of Villanova has a very interesting draft, proposing an administrative solution). Or are we comfortable with the existing level of guidance?

I assume this issue is not unique to copyright, and would be interested to find out whether other areas of the law have adopted responses to this.

6

Liability for unauthorized picture use?

I recently heard about a blog scandal involving a “fake” blog. Some bloggers got together and, for kicks, created a fake blog. They created fake identities for the blog, and wrote fake stories about fake lives. They originally intended this to be an experiment in participatory fiction; when the ruse was discovered, many readers responded angrily.

An interesting legal question arises out of these bloggers’ use of photos. In order to create identities, the participants went online and searched through google images until they found realistic looking photos for their characters. The photos they used were of unknown provenance, and (with one exception) it is probably all but impossible for most people to trace them to their real source. Each photo was matched with a bio to create the fictional characters.Biographical information (“favorite move: Star Wars”) matched with the photo creates the illusion of reality.

The site’s participants have stated that no permission was ever sought (or obtained) from the photos’ real owners. Do the real people whose photos were used to create these fictional identities have any legal cause of action against the bloggers who appropriated their images?

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6

Short movie remakes

I just noticed the new Empire Strikes Back animated gif created by Folds Five. (via Boing Boing). empire.gif This is the latest in a series of modified movies that seem to be proliferating on the internet, ranging from the “movies in 30 seconds, as re-enacted by bunnies” of Angry Alien to the recent, hilarious redone trailer of “Shining” which recasts the classic horror movie as a Cameron Crowe style family comedy.

Many of these make me laugh. I’m not so sure about their legality, though. Parody? Maybe. (Are they clearly parodies?) Fair use? Again, maybe. But I wouldn’t really want to bet the farm on either of those. What do our IP experts think?

1

Google & Grokster

googleprint-thumb.jpg

Being new to the blogosphere, I missed out on the initial round of comments on the pending litigation between the Authors Guild and Google over Google Print, Google’s effort to create a searchable database of print books. My sympathies tend to be with Google, as I have yet to see a strong, non-circular argument that authors would be economically harmed by Google Print (at least as I have heard it described).

But even if you believe, as do I, that Google’s activities are or should be fair use, there’s an interesting separate question re: what efforts, if any, Google should be obligated to take to keep the digitized books secure from third parties. For example, what if third parties could use Google Print to easily reconstruct full digital versions of print books (e.g. by sending a series of overlapping queries to Google Print and reassembling the search results)?

Presumably, Google could implement all sorts of technical measures to make this kind of activity more difficult (and indeed, there is some indication that it has implemented them). But what if it didn’t implement any of these measures? Should it be obligated to?

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5

Does Google Image Search Violate Copyright Law?

googleimagesearch.jpgPerfect10, an adult industry website, has sued Google claiming that Google Image Search is violating its copyright. For those who haven’t tried it, Google Image Search is a terrific resource. One can search the web for images, which appear as thumbnails on the search results page. EFF, which has filed an amicus brief in the case, argues on its website:

Thumbnails created by Google Image Search allow users to identify information they are looking for online and then access that information—much like an electronic card catalog. As certain information about images can only be conveyed visually, there is no other feasible way to provide image search on the Internet than capturing images, transforming them into thumbnails, and then displaying them on a search results page for users.