joegratz.net

I try to read all of Judge Posner’s copyright decisions, both because there’s a nonzero chance I’ll be practicing copyright law in the Seventh Circuit and because they’re really good. The latest, Gaiman v. McFarlane, is cool for a number of reasons. First, it’s a lengthy appellate decision about the comic book Spawn, which is just cool. Second, it’s a meaty copyright case that began in my home state of Wisconsin, which is all too rare (especially for a law student interested in copyright law trying to get a job with Milwaukee and Madison firms).

And third, it resolved an issue that had puzzled me last semester in my Copyright class, about which I hadn’t been able to find any clear guidance. (Even the Nimmers were just speculating.) The baseline rule is that someone is a co-author of a work only if their contribution is independently copyrightable. So, I wondered, what if everybody’s individual contribution was not copyrightable, but the whole was? Say I contribute an uncopyrightable stock character or two (Romeo and Juliet-style characters, for instance) and you contribute an uncopyrightable stock plot (let’s say, Faust). The whole is definitely copyrightable — in this case, something like “The two young lovers whose parents hate each other sell their souls to the Devil”. But under a mechanical reading of the rule, neither of us is a co-author, since we didn’t contribute anything independently copyrightable.

Posner resolves the issue with a pretty reasonable rule, which seems to be “but-for” causation. Even if the contribution is not itself copyrightable, the contributor is a co-author if the joint work would lose its copyrightability absent the contribution in question. This makes the present case come out the right way (Count Cogliostro ends up being jointly owned by Gaiman and McFarlaine), and makes the important co-authorship precedents come out the right way too. Aalmuhammed’s contributions to Malcolm X, if removed, would not change the film’s copyrightability, so he still loses Aalmuhammed v. Lee. And Trinity Theatre’s contributions to the plays in question in Erickson v. Trinity Theatre would not change their copyrightability, so Erickson still wins.

Smart guy, that Posner.

The EFF has released this white paper proposing a voluntary collective licensing scheme for music downloads. It’s a very smart paper, and I have no real criticisms of the proposal.

My lack of criticisms isn’t terribly surprising. If you compare the EFF white paper with this paper of mine, you’ll see that their proposal is similar to mine, except that the EFF paper proposes a private system and I don’t speak to the public/private question, since it doesn’t really make any difference to the substantive aspects of my proposal. It seems to me that a private system is the more likely result in the end, though the specter of Congressional intervention may be needed to move things along.

The sites listed on greytuesday.org as participants in tomorrow’s online protest, in which many sites will make the Grey Album available for free download, have received C&D letters from Capitol Records. Not all that surprising, since the samples in the Grey Album aren’t cleared and there’s no serious argument that distributing it isn’t copyright infringement.

Maybe—maybe—that each individual sample is a de minimis infringement compared with the whole White Album. Choice of law would be really important, since the sound recording of The White Album is protected only by common law copyright, not Federal copyright law, since sound recordings were not covered by Federal copyright law at the time The White Album was published. This would be a state law issue, and one state’s common law copyright rules might make distributing the Grey Album willful infringement, while others might not protect the sound recording of The White Album at all. Whoever owns the rights to the musical works underlying the White Album could certainly sue and win under Federal copyright law, since musical works were protected at the time The White Album was published. But Michael Jackson has other things on his plate right now.

The C&D’s do two things, one appropriate, one inappropriate. First, they put the webmaster on notice that the Grey Album contains copyrighted material, so if they go on and post it, the infringement will be willful and the penalties will be greater. (Edit: That assumes that willfulness increases penalties under whatever state copyright law will be used. I don’t know anything about state copyright law, and neither, by and large, does anybody else, so it’s hard to say for sure.) Second, they scare the bejeezus out of the recipient by making demands for which there is no legal basis. Here are the demands in the C&D:

1. cease and desist from the actual or intended distribution, reproduction, public performance or other exploitation of The Grey Album and any other unauthorized uses of the Capitol Recordings or any other sound recordings owned and/or controlled by Capitol;

2. identify the names and addresses of any third parties who have supplied you with physical or digital copies of The Grey Album or who are otherwise involved in The Grey Album’s unauthorized distribution, reproduction, public performance, or other exploitation;

3. provide Capitol with an accounting of all units of The Grey Album that have been distributed via your website, either physically or digitally, and of all instances of public performance of The Grey Album rendered via your website; and

4. preserve any and all documents and records relating to this matter, including but not limited to electronic data and other information which may be relevant/discoverable in the event of litigation.

In addition, to the extent that you have already commenced distribution of The Grey Album, you must make payment to Capitol in an amount to be discussed. We demand that you contact us immediately.

Number one is fine; they actually have to do that. Numbers two through four have no legal basis, and are wishful thinking on Capitol’s part. While, in litigation, Capitol could get all of that information in discovery, there’s no duty to turn it over without a court order. And, in general, the mere threat of a lawsuit does not give rise to the duty to retain everything that might be helpful to the other side. The bit about paying for prior distributions is an invitation to settlement discussions, even if it’s worded to be as intimidating as possible. It’s a nice piece of intimidation, which is its purpose. I’m sort of disgusted, but sort of impressed.

What should EMI/Capitol have done? They should have licensed Jay-Z’s rhymes from Roc-A-Fella Records and started selling copies of the Grey Album, at least on iTunes and Rhapsody if not on CD. How could they? The Grey Album is a derivative work that uses its source material unlawfully, and 17 U.S.C. 103(a) denies it independent copyright protection. Why do I like this solution? Everyone gets what they want. DJ Danger Mouse gets massive public exposure. (He has stated that his expectation interest in sales of the Grey Album was $0. His expectation interest is vindicated nicely.) EMI/Capitol and Roc-A-Fella get to make money for their shareholders and get to twirl their moustaches after teaching DJ Danger Mouse a lesson by appropriating his album. And the public gets to hear the album, much of which is really rather brilliant.

There’s Yet Another Social Networking System — but this one doubles as a library. It’s called MediaChest. Users list the books, CDs, games, and movies they’re willing to lend to other users. Instead of renting, people can borrow. (Here’s a list of the books I’ve entered, for example.) The paradigm case is friends borrowing from friends, but the potential exists to meet new people by temporarily swapping media with them over coffee. There are trust issues, certainly — inevitably, someone will abscond with a DVD every once in a while — but a built-in reputation system should keep people relatively honest.

This is precisely the sort of thing that won’t be possible in a world of “digital lockup” in which the user’s rights under the first sale doctrine are encumbered by Digital Rights Management technologies.

I wrote a little web tool to abbreviate case names according to the Blue Book rules. Unsurprisingly, it’s called the Case Name Abbreviator.

If the utility of this tool isn’t immediately obvious, it will likely be of little use to you. You see, legal citations must conform to the Blue Book, which under certain circumstances requires words in case names to be abbreviated. Unfortunately, there are about 200 words that get abbreviated, and holding them all in one’s head at once while cite-checking a law review article can be difficult.

Using this tool, rather than looking up each word on the table of abbreviated words, legal writers can just paste the full citation into the tool and apply all of the appropriate abbreviations automatically.

The interface needs to be prettier, but the tool itself works like a charm. Try it out and let me know what you think.

The FBI has announced a new anti-piracy seal to raise awareness about criminal piracy. It’s written to make the reader think that the FBI is coming after users of P2P systems, even though very few could be found guilty of criminal copyright infringement.

I’m as much opposed to criminal copyright infringement as the next guy, but this smacks of scare tactics.

And, worse, they misused the word “misanthropic” in the last paragraph. I don’t think virus writers are driven by mistrust of human nature and scorn for their fellow man. It seems they looked up “antisocial” in Roget’s and went with the most evil-sounding word listed. Tsk, tsk.

Before the D.C. Circuit and Second circuit have a chance to rule on the challenge to the last round of subpoenas, the RIAA has filed another round, this time in the Third and Eleventh Circuits, targeting mostly Comcast and Earthlink subscribers.

This brings the grand total to 1,445 lawsuits. So they’d need 2,577 times as many lawsuits just to hit everyone on Kazaa right now.

Some more stats:

• If they continue filing at their current rate (532 per month), it would take until August of the year 2587 to sue everyone on Kazaa right now.
• Barring any unforeseen advances in medical technology, if they continue filing steadily at their current rate, someone using Kazaa right now will be dead before it becomes more likely than not that they’ve been sued (in January of the year 2296).
• For a current Kazaa user, assuming a generous life expectancy of an additional 100 years, and assuming that the user keeps on file-sharing egregiously every day until her death, the chances are about one in six that she’ll be sued in her lifetime.

So even if I was a frequent user of P2P apps like Kazaa (which I’m not; I pay for my music when the copyright holder decides to take my money), I wouldn’t be worried.

Enforcement difficulties like this are the reason compulsory and collective licenses exist for other kinds of uses of copyrighted material. A flat fee, coupled with some way to measure the popularity of files, is the only effective way to get out of this mess.

A case litigated on appeal by my former Civ Pro professor, Mike Paulsen, has finally been decided. Christine Axson-Flynn was a would-be actress whose religious beliefs prevented her from saying the words “fuck” and “goddamn,” even in character. The theatre department at the University of Utah, where she was enrolled, required Axson-Flynn to perform the scripts as written or leave the program.

She left the program, then sued.

The Tenth Circuit remanded for a determination of whether compelling Axson-Flynn to utter profanity in character serves a “legitimate pedagogical purpose”, or whether it is a pretext for religious discrimination. If the University can show a legitimate, non-pretextual pedagogical purpose, they win. I think it will be a slam-dunk for the University on remand. First, proving Axson-Flynn’s claims of “anti-Mormon sentiment” at the University of Utah seems likely to be difficult. And second, substantially every theater professional in the world would testify that having to use profanity on stage is important to an actor’s development. My training as an actor is secondary to my training as a designer, but even so I came up with the same three justifications the University ended up offering off the top of my head: (1) Playing characters who are personally repusive to you tests your acting skill; (2) Stepping out of one’s comfort zone makes one a better actor; and (3) It teaches faithfulness to the playwright’s text.

The third justification has legal ramifications outside the First Amendment context; if the University mouted a production of, say, American Buffalo with all of the instances of “fuck” changed to “phooey,” they would be in breach of their contract with the rights holder unless they had special permission from Mamet. (Which he wouldn’t grant, I’m guessing.) So, this means the University would be restricted in what roles they could have Axson-Flynn perform publicly, which would hinder her development as an actor (and that of the rest of the students in her program, since plays would have to be selected with that restriction in mind.)

I remember seeing the pained expressions on the faces of my fellow theatre majors turned law students last year as Professor Paulsen described the case. I’m glad he lost (or, at least, is likely to lose on remand).

DJ Danger Mouse has remixed Jay-Zs’s Black Album with samples taken from the Beatles’ White Album. It’s a really brilliant album, both deeply acoustic and obviously computer-created. Rolling Stone raved. The Boston Globe’s music critic liked it.

And it’s illegal.

Postmodern art is fundamentally incompatible with strong copyright. Examples abound. The search cost for the copyright owner of a sample is way too high, as are the transaction costs of obtaining the license once the copyright owner is found. What’s the solution? Compulsories?

UPDATE: Illegal-Art.org has posted 192kbps MP3s of the whole album.

The Library of Congress will be opening Justice Harry Blackmun’s papers to the public on March 4th. They have prepared a finding aid listing all of the items contained in the collection, but have refused to release the finding aid until the papers themselves are released.

Well, The Memory Hole got its hands on a copy, and has posted the highlights. SCOTUSblog will be scanning and posting the whole thing over the next few days. This will provide an unusual look into aspects of recent Supreme Court jurisprudence that have remained obscure to anyone other than the Justices and their clerks. Particularly interesting will be the law clerk memoranda, conference notes, and draft opinions for cases like Roe v. Wade and the Pentagon Papers case.

The record industry has put out these new PSAs encouraging listeners to stop downloading music illegally from the Internet. They’re not that bad—better, certainly, than the oft-hecked and heckle-worthy MPAA anti-infringement ads that show before movies these days. Maybe I just like it because “God is a DJ” is such a catchy song.

The site itself isn’t that bad. At points, it tries a bit too hard to be hip. But it doesn’t materially misstate the law, for the most part. A quibble, though, with this FAQ question:

I heard if I make a tape for a friend of an album I purchased - it’s no problem; but if I burn a CD for my friend, then it’s stealing. Is that true? I don’t understand the difference.
You may be surprised to learn that neither of these activities is legally permitted, actually - one is no different from the other.

There are two respects in which this is not true. First, unlike burning a copy of a CD using a computer, making an analog tape recording of a CD is privileged by the AHRA. Analog copies made for noncommercial use are lawfully made copies. And under section 109 of the Copyright Act, any lawful copy may be given away or sold. So, there is a difference; analog copies given to friends are legal, and computer-burned CDs aren’t. (I should add that I’m not crazy about this section 1001 + section 109 loophole that allows copies originally made for noncommerical purposes to be resold for profit. I don’t think it’s what Congress intended to do. Happily, it’s difficult to exploit on a large scale, since there are only so many copies one can claim as “noncommercial” with a straight face.)

Why aren’t computer CD burns privileged, while copies made using stand-alone consumer audio CD burners are? Check out the definition of “digital audio recording device” and “digital audio recording medium”. Computers and normal CD-Rs aren’t covered. The argument could be made that CD-R drives and normal CD-R blanks are now marketed for the primary purpose of burning audio CDs, so manufacturers should have to pay royalties and implement SCMS—and copies made using them would be lawful. But until the manufacturers start paying royalties and impelement SCMS (which they will never do), the copies aren’t privileged.

I have a new favorite blog. It reminds me a little of the old Spy Magazine attitude. A little.

(Yes, I ought to be too young to remember the heyday of Spy, which ceased publication in the late 90s but had more or less sucked since the start of the Clinton administration. But, precocious thing that I was, I routinely swiped my Mom’s copy starting in 1988, at age 8. A friend once asked, “How did this happen?,” referring to . . . well . . . me. This is part of the explanation.)

Via Slashdot, of all places, a very smart article by some University of Michigan researchers on solving the spam problem. (Caution: There is a lot of math in the paper. The good news is, it still makes sense without the math, of which I understood about half.)

Their solution? When someone sends an email to a stranger (i.e., someone who’s not whitelisted), they post some amount of real money as a “bond” with an escrow agent. The recipient either discards the email or reads it. If they read it, they may either seize the bond or allow it to return to the sender.

This is elegant in a number of ways. Each person may set the price at which they allow themselves to be interrupted—for example, I might open any email with a bond of $1.00 or more attached, even if it’s herbal Viagra spam, because I want the dollar more than I want the time it takes to open and discard the email. If I want to correspond further with the sender, I will signal this by not seizing the bond; if I don’t, I signal by seizing the bond. It works just like a market—a market for attention. Smart stuff.

Recipients may either manually decide whether to open each email or may establish automatically-implemented policies, such as “Discard everything with a bond of less than $0.10″ or “I’m busy. Tell me when something with a bond of $5 or more arrives, and queue all other messages for me to go through later.” Because everyone the recipient knows is on her whitelist, she stands no risk of losing any of their correspondence with even the most aggressive discard policy.

The really cool bit is that this implements a wealth transfer from senders to recipients in a way that neither senders nor recipients can circumvent. If a given recipient seizes the bonds on all messages, that’s fine; it was worth it to the senders. If a sender send out all his spam with no (or very small) bonds attached, nobody will read it.

This would require some changes to email infrastructure, but it’s the best model I’ve seen to date of how to stop unwanted email. This scheme makes it costly for a sender to grab attention, and turns that cost into money in the recipient’s pocket.

(So, in the future, we can see 2Ls emailing resumes with very large bonds attached to hiring partners at big law firms, by analogy to wealthy law students’ current practice of overnighting them.)

UPDATE: One more thought. What would keep a recipient from setting up a “farm” of email addresses which all automatically seized the bonds on all incoming email, since there would be no ‘legitimate’ traffic? The recipient could try to get the addresses on as many spam lists as possible. This would result in a simple wealth transfer from spammers to geeks, which I suppose I can’t object to.

P2P United front man Wayne Rosso has some unkind words for competing P2P industry group DCIA:

Sharman Networks’ DCIA (Distributed Computing Industry Association) is a “phony front organization operated by a rube,” former Grokster president Wayne Rosso told p2pnet in an exclusive interview.

Ouch.

The DCIA has more or less one member — Sharman, a/k/a Altnet, a/k/a Brilliant Digital Entertainment, which created the FastTrack P2P platform used in Kazaa. P2P United is made up of companies using other platforms — Morpheus and BearShare on Gnutella, and eDonkey on its own platform. Grokster appears to be a member of both organizations, and redistributes Sharman’s FastTrack client.

Regardless of the reasons, I can’t imagine this sort of scathing interview is a smart move for P2P United. But there is reason for tension between Altnet and the rest of the industry. Altnet has an interest in the widespread implementation of certain hash-based compensation systems for P2P sharing, since they own patents that may cover the implementation of those systems. They want to work directly with record companies to come to a private solution that will force the rest of the industry to license their patents in order to participate in the compensated P2P system. P2P United wants to legitimize P2P networks as they exist today by eliminating the elements that most irk legislators (e.g., porn and spyware). The conflict is made all the more interesting by this morning’s raids on Sharman and affiliated companies in Australia.

(Full disclosure: A representative of DCIA contacted me after seeing this paper I wrote, expressing interest in discussing the similarities between my model and theirs. She addressed her email to ‘Professor Gratz’. I responded that I wasn’t a law professor or even a lawyer, but I’d be happy to talk with them about my paper and their proposal. I haven’t heard back.)

James at LawMeme takes apart some of the funniest, most ridiculous website terms of service I’ve ever seen. Stuff like, “Additionally, in the event that your actions in violation of this User Agreement result in our being deprived of our exclusive rights . . . you agree to pay us liquidated damages in the amount of five million U.S. dollars . . . .” (Say it with me 1Ls, “That’s punitive!”) and “The parties hereto agree and stipulate . . . that such images are not in the public domain, that this website is a compilation posessing originality with new material added, and that copyright law does not preempt contract law.” *guffaw*.

During Tuesday’s Grokster oral argument, Judge Noonan said the following in response to one of the content companies’ standard arguments that file-sharing is analogous to shoplifting:

Let me say what I think your problem is. You can use these harsh terms, but you are dealing with something new, and the question is, does the statutory monopoly that Congress has given you reach out to that something new. And that’s a very debatable question. You don’t solve it by calling it ‘theft.’ You have to show why this court should extend a statutory monopoly to cover the new thing. That’s your problem. Address that if you would. And curtail the use of abusive language.

Sure, this is the most overturned circuit in the land, but it sure feels good to hear somebody on the appellate bench say this sort of thing.

Way to go, Fred and Mike.

Via Donna over at Copyfight

Larry Lessig has this scathing post about Ralph Nader’s threats to run for president this year. Idealism is one thing, but inadvertently inflicting four more years of Bush is quite another.

A Nader Run for the Presidency: Unsafe, and Won’t Succeed.