Two big Internet law decisions, affecting copyright and trademark law, were launched into the legal stratosphere yesterday: the U.S. Supreme Court’s MGM v. Grokster decision and the Second Circuit’s 1-800 Contacts v. WhenU.com decision.

P2P

The Grokster decision stole the headlines, holding that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement."

The end of file swapping?

http://www.riaa.com/news/newsletter/062705.asp
http://www.mpaa.org/MPAAPress/2005/2005_06_27a.doc
c|net: Congress Applauds File Sharing Ruling

Unlikely.

c|net: Ruling Wont Slow File Swapping - Experts Say
http://www.pcmag.com/article2/0,1759,1831862,00.asp

Full Grokster decision (pdf)

POP-UPS

Under the radar so far is the Second Circuit's WhenU.com decision. Here, the court held:

"WhenU does not ‘use’ 1-800’s trademarks within the meaning of the Lanham Act . . . when it (1) includes 1-800’s website address, which is almost identical to 1-800’s trademark, in an unpublished directory of terms that trigger delivery of WhenU’s contextually relevant advertising to C-users; or (2) causes separate, branded pop-up ads to appear on a C-user’s computer screen either above, below, or along the bottom edge of the 1-800 website window."

Aside: The Second Circuit likes to refer to "computer users" as "C-users." At first glance, I thought this was drug slang.

Generally, the court did a great job of explaining the issues and analyzing the use in commerce requirement.

As Eric Goldman points out, however, the court passed on the opportunity to clarify the initial interest confusion doctrine and to draw more significant analogies to trademark keying.

http://blog.ericgoldman.org/archives/2005/06/important_2d_ci.htm

WhenU.com decision:
http://caselaw.lp.findlaw.com/data2/circs/2nd/040026p.pdf

Advertisement: Want Larger Analysis? A Better Title? More Beautiful Content? All for Free!! An article examining these 2 cases is in the works for Findlaw’s Modern Practice. Check the website after the Fourth. http://practice.findlaw.com/

The Third Anniversary issue of FindLaw's Modern Practice is now available. This month's article topics include:
The Future of Infringement,
Legality of Zabasearch,
A Shrinking Public Domain,
Employer Liability for Workplace Identity Theft,
and a retrospective of ten-year old Legal Technology writing.

Acting Assistant Attorney General of the Criminal Division, John C. Richter just announced that members of the FBI and U.S. Immigration and Customs Enforcement executed 10 search warrants across the country "against leading members of a technologically sophisticated P2P network know as Elite Torrents."

The government strike, known as Operation D-Elite, was executed in California, Arizona, Illinois, Kansas, Ohio, Pennsylvania, Texas, Virginia and Wisconsin. Unlike Operation Gridlock, "a similar takedown" of P2P users in August 2004, D-Elite targeted administrators and suppliers of protected content to the Elite Torrent network.

The DOJ press release makes special reference to the fact that Star Wars III: Revenge of the Sith "was available for downloading on the network six hours before it was shown in theatres. In the next 24 hours, it was downloaded more than 10,000 times." It concludes by noting that "the Motion Picture Association of America provided valuable assistance to the investigation." Presumably, Operation D-Elite may have been triggered by the recent pilfering of Star Wars III, a film that has earned $108.4M in its first week, according to the Variety Box Office Top 10.

The Elite Torrents central site, elitetorrent.org, was taken offline and replaced with this notice from the DOJ.

A bit of background on BitTorrent technology, taken from page 11 of the amicus curiae brief filed by the Innovation Scholars and Economists in the pending Supreme Court case MGM v. Grokster:

"An ingenious new technology called BitTorrent has advanced the technology used by Respondents one step further. BitTorrent is a PtP system that breaks down a single file into subparts, allowing it to be downloaded and uploaded simultaneously, and dramatically faster, from “swarms” ofmultiple senders to multiple recipients. See www.bittorent.com. While decentralized PtP systems inherently are more scalable and frugal on bandwidth than centralized systems, BitTorrent is far more efficient and especially fast at exchanging very large content files. Indeed, BitTorrent originally was invented (and continues to be utilized) for the lawful sharing and distribution of huge Linux operating systems and application program files among developers and licensed users. BitTorrent’s creator strongly disapproves of copyright infringement and designed BitTorrent to make identification of copyright infringers easy through markers left on files. Nonetheless, substantial infringing uses are occurring—indeed, it is estimated that this single technology has—since the advent of this litigation—risen to some 35% of all use of the Internet."

In January 2005, a Hong Kong man was arrested on charges that he uploaded three Hollywood movies "onto the Internet using the popular BitTorrent file-sharing software." Earlier this month, he pled innocent and goes on trial on June 23rd. Jail time and fines are available sentences if convicted.

The US Copyright Office received over 700 submissions in response to its Notice of Inquiry that asked whether Congress should do anything about the "orphan works problem." Broadly speaking, Orphan works are any copyrighted works where the rights holder is hard to find.

The problem extends to all creative avenues, but is particularly burdensome in the book, music and visual image arenas. Artists, publishers, compilers and producers who wish to lawfully use a protected work that has no traceable copyright holder have two basic options: 1) use the work and face potentially crushing liability under copyright law; or 2) not use the protected work.

The submissions are varied and thoughtful.

A comment filed by David Drummond, Google's General Counsel, states that oprhan works "exist in a sort of purgatory – the entity holding the copyright over the work has no interest or desire to limit public use of the work, yet the work cannot be licensed by someone who would want to use it, as the holder of the copyright cannot be reached to secure a license. As a result, millions of works, representing hundreds of years of study and experience remain forgotten and unused, gathering dust on library shelves. Google believes that these works should instead serve as a foundation of knowledge upon which future generations can build."

Another response discusses the orphan works problem as it applies to adventure games. "Many [early graphic adventure] games were created by companies that no longer exist, or that have lost interest in these games. It is possible to play these games in emulation on modern machines, but it takes time and effort to port them to a form that is playable, and it is possible that doing so could be violating current copyright laws."

Reply comments are due to the Copyright Office by Monday, May 9. Visit http://www.orphanworks.org/ to learn more about the issues and for a form for submitting reply comments.

The May edition of FindLaw's Modern Practice has been posted. The new issue's focus on small technology with big applications features articles on nanotechnology, biotech, micropublishing and global taxonomy.

I've been hearing a lot about podcasting lately, so I stopped by Kevin Heller and Evan Schaeffer's new site Blawgcast.com to find out what happens when lawyers, digital audio and RSS collide.

First, I'm happy Heller and Schaeffer didn't incorporate "pod" into their site's name. Though I work a stone's throw from Apple and appreciate their vision, their claim to the portable mp3 player is akin to Sony's claim to the portable radio/tape player -- good product, great marketing, but they didn't invent the device.

Second, IANAE* but podcasting is a bloody brilliant application of RSS to digital audio. Conceptually, it is almost identical to weblogging. Instead of the "I write and broadcast, you read and comment" model of blogging, podcasting uses an "I record and broadcast, you listen and comment" arrangement.

There are obvious differences, like the text vs. audio distinction. For many people, reading a blog post is much more appealing or accessible than listening to one. "Fair Enough," as businessmen say when they agree to disagree.

I suspect that something like podcasting has been going on for a while under a different guise. Chris Lydon, has been doing mp3 and RSS for a couple of years now. On the technical side, audio search bots have long been trolling the web and gobbling up sound files with extensions like .mp3 or .wav. These sound files are then stored in a searchable database for perusal by audio enthusiasts. Evidently, RSS has provided an easier way to get the word out about one's audio musings.

Accoding to Blawgcast.com, one AM radio station in San Francisco is already embracing the podcasting idea. It's interesting to note that the station, KYOU "Open Source Radio", is part of Infinity Broadcasting Corporation, a behemoth in the industry.

At some point, I imagine wireless companies will be streaming popular podcasts as premium content to their subscribers. Or has this happened already? Rich media, round three.

Adding lawyers to the audio/syndication mix is an interesting idea, especially since they're known to be a loquacious bunch. I'm beginning to see the light.

* I Am Not An Engineer

Dennis Kennedy has a lot going on these days -- group blogging, consulting, editing, even acting! And he still has bandwidth to practice law. DK's multi-faceted efforts exemplify the diverse talents required of today's technology lawyer.

Dennis is a pioneer in the Legal Technology game. Judging from the copyright date on his personal blog, he's been at it for ten years now. Kudos!

This week, Microsoft filed four new lawsuits against alleged spammers, brining their total anti spam suits to 101.

A suit against OPTIN GLOBAL, alleging state and federal violations, follows on the heels of last week's action filed by the FTC and California Attorney General in San Francisco. Other suits against "didyouknowclub.info" and "hoolamaco.biz" were brought exclusively under the "sexually oriented" provision of the CAN SPAM Act of 2003. All four Microsoft suits were filed in the Superior Court of King County, Washington by Preston Gates & Ellis LLP.

According to this AP article, Press Association, the organization that runs the Associated Press, will be raising the prices for online use of its content. Although PA has always charged for online use of AP wire news, some companies that have licensed AP content for print use have been able to piggyback web use at no extra cost. Seemingly, the new rate development is aimed at deriving more value from these dual uses. The formula for calculating the new license fees has not yet been established, so it is difficult to fully asses the impacts of the increase.

Generally, when an individual content provider raises its fees, media outlets that license outside news may look to content syndication as an alternative. One major benefit of syndication is convenience. An outlet can obtain multiple content sources by signing a single agreement with the syndication company. Often, syndication companies can offer lower prices because of volume discounts they receive from content providers. However, under the PA's rate increases, syndicators that offer AP news may also be impacted by the rate increases.

Back in the 90's, companies like iSyndicate, Screming Media, and Yellowbrix occupied the dwindling syndication space. Now, Syndication is back with a new group of advocates: SYNDICATE "The Premiere Event for Content Syndication Trends" happens in New York on May 17-18, 2005.

Popandpolitics.com is hosting their first mash up with Lawrence Lessig and DJ Spooky on May 3, 2005 in San Francisco.

Although it sounds as if Larry will be toasting over Spooky's mix, the actual format will be a conversation on THE FUTURE OF CREATIVITY IN THE DIGITAL AGE, moderated by multi-media journalist Farai Chideya.

Admission includes an after-party at which DJ Spooky will spin a guest set. His new album "Drums of Death," featuring Chuck D and Dave Lombardo of Slayer, was just released on Thirsty Ear. The suggested entrance donation is tax deductible (next year).

The Florida Attorney General, with the assistance of Microsoft, obtained a temporary injunction against two men accused of sending email in violation of state and federal anti-spam laws.

The complaint alleges the Florida men sent over 65,000 commercial emails, which were actually advertisements for products like pharmaceutical drugs, cigarettes and e-books. Much of the spam was collected in MSN Hotmail "spam traps," email accounts used solely for investigative purposes. The complaint also details the phoney subject lines, sender names, and bait-and-switch tactics used by the accused.

Florida is one of many states to enact their own version of the federal CAN Spam Act of 2003. If convicted under federal law, the two men face a penalty of up to $500 per email message.

Tuesday morning: up by 5:00am, to Capitol Hill by 5:30, and parked by 5:45. I arrived at the steps of the Supreme Court by 6:00am and found my spot in line-about a hundred or so people lingered before me. I paced it so my coffee lasted about an hour as I stood listening to tourists, law students, and staffer/lobbyist-types espouse their understanding of the case: "this is like the VCR case" and "there is no theft because the artists don't lose anything-they still have the same thing that they had before the download." Several people protested by sitting with their laptops and surfing the web. I doubted entry into the land's highest court, but took satisfaction in the fact that people continued to extend the queue far behind me.

Around 7:30, a police officer handed out tickets to the first 50 in line, which caused some to leave in defeat. The rest of us remained, somewhat hopeful, but primarily bound by inertia and desperation. Somewhere between 8 and 8:30, a small group of folk-looking musicians, maybe 8 groggy individuals, approached bearing guitars and signs reading "feed a musician" and "don't steal my music." They began their rebuke of the legal system and Grokster supporters with inaudible singing and melodic strumming-it was totally harsh. The crowd barely noticed. The police wouldn't permit them on the actual steps due to their menacing nature I suppose. TV Camera crews began setting camp, and soon I was handed a Morpheus button by a highly polished PR-type-he was nothing like Morpheus in the Matrix.

The real excitement started when the Grokster crew showed up. There were 10-15 people, armed with uniform black t-shirts and signs demanding that we "save betamax" and "fight for your right to innovate." Most of the crowd whooped in response. I spent the next hour or so begrudging the members of the Supreme Court bar and their much shorter line, interrupted only by a prophet who ranted about "us" not letting "them" take over the planet with artificial intelligence.

By 10:00 it was pretty much over-the first fifty ticket holders went inside the court. Nevertheless, I punished my self by remaining in line until about 11:30 when I saw Fred von Lohmann descend the steps. I headed for the Capitol City Brew Pub, ordered a burger (medium), fries, and an ESB, reflected on the morning's events, and considered the technological future of online music.

A first-hand report by Jason Allen Cody

That's the billion dollar question in front of the Supreme Court of the United States in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. on Tuesday, March 29, 2005.

The "Betamax Rule," taken from the Supreme Court case Sony Corp. v. Universal City Studios, Inc., asserts that inventors may create new copying technologies as long as they are capable of "substantial noninfringing uses." This balanced approach to assessing the legality of copying technology has provided a fertile ground for the emergence of many widely-used inventions, like VCRs, Blogs, and Email (see the EFF's Countdown to the Grokster Argument page for more).

In addition to the named litigants, over 15 organizations have filed amicus briefs on the issue of "Whether the Ninth Circuit erred in concluding, contrary to long-established principles of secondary liability in copyright law (and in acknowledged conflict with the Seventh Circuit), that the Internet-based "file sharing" services Grokster and StreamCast should be immunized from copyright liability for the millions of daily acts of copyright infringement that occur on their services and that constitute at least 90% of the total use of the services."

Will the Court find a way to reconcile the Betamax ruling with file sharing activities?

I suspect some of the Justices will favor a new approach to assessing file sharing technology, one that pays homage to the established economic power of the Copyright Owners. American entertainment is heralded as a great pillar of the U.S. economy. And regardless of the apparent inequities in the distribution of compensation within the industry, the Court may be forced to protect this precious "domestic product."

On the other hand, I don't envision a total abandonment of the Betamax test. Judging from the Supreme Court's track record, it will most likely focus on and fashion a rule based on factual distinctions between the VCR and file sharing technologies.

Or they may simply affirm the Ninth Circuit's decision, although "the Supreme Court has reversed a higher percentage of Ninth Circuit decisions than those of any other Circuit."

...it's anybody's guess.

I don't know what they put in the water in those MLS programs but can we please mass-produce it? Or at least enough for the water supply in Congress?

The ARL (Association of Research Librarians) has put out a set of principles for the International Development Agenda of the World Intellectual Property Organization. These principles summarize, in about half a page, four key elements in the creation of a viable public infosphere.

Sign-ons encouraged.

http://img195.exs.cx/img195/9146/mostefficientkeyboard0sy.jpg