I dunno, it sounded good

At Oh, For Goodness Sake, a perpetual roundup of all things Birther, another hilarious example of amateur lawyering:

REPLY AFFIDAVIT IN OPPOSITION
TO DEFENDANTS ANTICIPATED MOTION
FOR DISMISSAL OF THE PEOPLE’S
MOTION FOR SUMMARY JUDGEMENT
THAT MUST BE DENIED
ON THE MERITS AND LAW

ALL RIGHTS RESERVED

OFGS sums it up pithily: "Court records being public records, except in extremely limited circumstances, there are no rights to reserve."

It's not uncommon for people to have no clue what copyright law is about, but in this case I wouldn't be surprised if these poor slobs didn't even know they were referencing copyright law.

AP, Fairey settle over Obama poster

Almost two years ago I predicted that serial plagiarist Shepard Fairey was likely to win his defense of using an AP photograph as the basis for his famous Obama poster. And this week, my prediction ... became moot. Fairey and AP settled the case and there is no ruling.

But if I score my prediction anyway, I might have to call it a miss. Under the terms, AP will share the revenue from the poster and Fairey agrees not to use any more of their photographs without permission. That's hardly a victory for Fair Use.

I thought the poster would pass muster as a transformative use of the photograph, that the original was more of a factual than a creative work, that Fairey's use did no damage to the market for the original, and that these factors would provide a reasonable chance of success in defending his poster. Fairey must have concluded otherwise, since all this deal does for him is make the threat of larger penalties go away. AP, on the other hand, probably couldn't get a much better deal even with a clear win, so it was better to settle on these terms than to keep spending money fighting a court case.

As I said two years ago, I'm no fan of the way Fairey uses other people's work, but this was one of his less egregious borrowings and I would have preferred to see it vindicated.

PS. Law.com reminds me that Fairey sabotaged his own case when he initially lied about which photograph he had borrowed and destroyed evidence to hide that fact. I had forgotten about that and no doubt it factored into Fairey's estimation of his chances in court.

Copyrighting T-Rex?

Here's an interesting case I started to write about, and then forgot to finish. But I'm still going to keep an eye on it. The Black Hills Institute of Geological Research is a private company in South Dakota that specializes in selling prepared fossils and casts. They claim that they loaned some Tyrannosaur bone casts to a Montana company called Fort Peck Paleontology, who never returned them and has been selling their own copies of these casts. BHIGR is suing.

Now I don't know what the terms of the loan were, and since BHIGR is a professional and commercial operation, you'd think they would write these restrictions into any contract they made. If they didn't, that's their mistake. But what intrigues me is that the lawsuit is claiming copyright infringement, not breach of contract. They are claiming they own a copyright on these bone casts.

As a general rule, you can't copyright a fact. The landmark case here is Feist v. Rural (1991), where the US Supreme Court held that a company could not claim copyright of its list of names and phone numbers. The particular medium, method of presentation, any commentary or editing - those can all be copyrighted as creative work. But the bare facts - the list of numbers - could not.

So can BHIGR claim that their bone casts are original, creative works? The president of the company, David Larson, claims that making dinosaur bone casts requires "a blend of scientific and artistic creativity," but otherwise emphasizes the amount of time and effort that they require. That smacks of the "sweat of the brow doctrine," which claims that amount of sheer labor that went into a production justifies the creator's monopoly over the product. That's an attractive, seemingly even a common sense, doctrine, especially to producers. But since Feist v. Rural, it's not the law in the US.

The pitfall for BHIGR is that the creativity lies mainly in their methods, not in the finished product. In fact, it's hard to imagine that they could be successful selling products they claimed were artistic representations of a dinosaur bone, rather than faithful and exacting reproductions of the original. Their website emphasizes, on the one hand, that "Perhaps the most important factors required in making fine molds and cast replicas are ingenuity and creativity." On the other hand, they also boast that they "have successfully developed new methods and materials for molding fossil specimens and producing cast replicas that retain the look and feel of the original fossils." That makes it sound like the value of the casts is not in their artistry, but in their adherence to fact.

I might be looking at this wrong. Perhaps the best example is a photograph of a building: you can still copyright the photograph, even though it's a representation of an uncopyrightable fact. If so, I look forward to the ruling setting me straight.

[Post script] It occurs to me that another comparison that might work in BHIGR's favor would be translations of old texts, which are original works for copyright purposes. Thus the New International Version translation of the Bible is under full copyright, despite the great age of the Bible itself. The 400-year-old King James Version, of course, is in the public domain.]

Kookaburra loot downsized

New developments in the Men at Work case, where the poor Aussies were being plundered of their earnings by a bunch of lawyers whose only creative act was to purchase an old copyright. The pirates, AKA Larrikin Music, were demanding 50% of their revenue of "Down Under" for a 4-second reference to a children's song. They won; EMI Records appealed; the appellate judge has ruled.

The result: yes, it's infringement, but Larrikin can only get 5%, apparently the lowest rate the judge can set. The judge found the claim for 50% to be "overreaching, excessive and in my view unrealistic".

I'm seeing the verdict spun in different ways - victory for Larrikin, because they still get money, or victory for EMI and Men at Work because they don't have to pay as much. I lean toward the former view, as I said previously: this is piracy, "Old School, let's sail around and find someone productive to plunder piracy." They likely didn't expect to get the 50% they asked for, but loot is still loot.

To cement the image of Larrikin as sanctimonious assholes, their lawyer actually said, "It's just really a pity that Marion Sinclair, the lady who wrote it, didn't participate in income from the song when the song was at its height in the early 80s," even though Larrikin only bought the copyright after Sinclair's death and probably has no intention of sharing their booty with her estate.

It may not be over: EMI is planning to appeal this ruling as well.

Iran puts torturers on trial; US doesn't

Iran's judiciary last year charged 12 officials at Kahrizak prison for involvement in the death of three protesters detained there in July.

So why can't the United States do this?

Anger over the abuse emerged in August, after influential conservative figures in the clerical hierarchy condemned the mistreatment of detainees.

Oh, I see the difference now.


Via Dispatches

Jesus, the Sagebrush Rebel

Jesus wants you to join the Sagebrush Rebellion. It may not sound like something he would normally be concerned about. In fact, that whole "Then give to Caesar the things that are Caesar’s, and to God the things that are God’s" business would almost lead you to think he didn't care about government policies, while Luke 12:13-14 could easily be misinterpreted to indicate that Jesus doesn't take sides in property disputes. Good thing we have Henry Lamb to set us straight.

To be fair,Lamb doesn't say anything here about Jesus. It's just the venue that forces me to make the connection. What does a states rights view of public lands have to do with holding a "Christian world view?" As nearly as I can tell, the blending of religion and politics has gone so far that anything, anything at all, that can be associated with conservative politics is assumed to be godly, anything in Matthew or Luke notwithstanding. Public lands are an especially attractive target because many federal regulations involve environmental restrictions and we know that environmentalism is nothing but pagan nature-worship, with no other purpose than to destroy Christianity. Damn those Satan-worshiping tree-huggers at the EPA, anyway.

Lamb is under that old, preposterous delusion that the federal government cannot own land and that all the public lands were stolen from the states:

It is reasonable to conclude that when a state is carved out of a territory, it becomes a state subject to the powers and limitations of all the other states within the jurisdiction of the Constitution, and no longer subject to the federal authority suffered by the people when the land area was a territory.

*snip*

How can it be legal for the federal government to own land in a state that it did not purchase with the consent of the state legislature? How can it be legal for the federal government to exercise sovereignty over land within a sovereign state? Why were the eleven Western states and Alaska treated differently upon admission to the Union than were the other 26 states that joined the Union? when all states were supposed to be admitted on an "equal footing"?

There is only one logical conclusion: the federal government should not own the land it now claims within any state unless it is purchased with the approval of the state legislature for the purposes set forth in Article 1, Section 8, Clause 17.

Lamb is terribly confused here. He's referencing the section of the Constitution that governs the acquisition of DC, which was understood to be land that was already owned or to be acquired by existing states. It has nothing to do with the public lands that the government owned on its own behalf, in places where no state yet existed. Those would be addressed in Article IV, Section 3, which states clearly enough:

The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.

I'm always amazed that some Westerners seem to think that the eastern states were given all the land within their borders as soon as they entered the union. That's not how it worked. The land belonged to the United States and, frankly, was almost the only asset the federal government had for many years. They didn't give it away for nothing; they sold it, or used it for debts they didn't have real money to pay for (many veterans of the Revolutionary War were paid this way). Until sold, the land belonged to the federal government and could be governed by the same.

Typically, the land wouldn't go to the states anyway.* Most of it passed directly into private hands, at which time the land and its owners became subject to (in chronological order, as political development proceeded): the federal government, then the territorial government, and finally the state government.

And I do get a tad indignant - for my ancestors' sake, not my own - that in Indiana much of the land was originally purchased by speculators and the eventual settlers had to purchase it at market value, whatever that turned out to be. The Western states benefited from the various Homestead Acts, which allowed a settler to live on the land for awhile and then purchase at quite nominal prices. In the great westward rush after the Civil War, the government was all but giving the land away to anyone who could make a living on it.**

That, of course, is the rub - Western land is damned hard to make a living on. Despite being the cheapest land ever seen, in over 70 years most of it never sold. The Jeffersonian dream of filling the land with small farmsteads foundered on the drought-prone plains and deserts and only the land with reliable access to water had much value. The people in the Western states had more than enough time to acquire the public lands - they just didn't do it, and for good reasons.

Remember, though, this isn't just about land ownership. Straw-grasping legal analysis, bad history, disdain for nature, and knee-jerk hostility to the government is all part of having a Christian world view. Don't leave the asylum without it.

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* A notable exception: the Yosemite Valley was given to California on condition that it become a public park; it didn't take California long to realize that it was nicer to give it back to the Feds, who would pay the bills while the state continued to reap the benefits.

** And giving it away to railroads, too, who were expected to sell it to private holders; either way, it didn't go to the state governments.

On loyalty

You gotta love lawyers - they'll stand by their clients no matter how hopeless it looks. Example: four men are caught with a bag of electronic surveillance gear, after pretending to be repairmen so they could get access to the telephones in a Democratic senator's offices. The men are well-known political activists, with views opposite to those of said senator.

The lawyer: "I think it was poor judgment. I don't think there was any intent or motive to commit a crime."

[Update: because he got caught before completing the task, O'Keefe's lawyer can say with a straight face, ""There was no wire-tapping, bugging or interfering with the phone system." ]

Back in July I wrote about a case where ASCAP is suing Verizon, claiming that musical ringtones on cellphones are a "public performance" and Verizon should pay performance fees; this depite - no, in addition to - the fact that Verizon already pays fees to ASCAP for selling these ringtones.

On Wednesday the judge ruled in the case and, wise public servant that she is, entirely agreed with me. Although the words were measured, the upshot was that ASCAP's case was ridiculous and was a misreading of both law and fact in virtually every aspect. A ringing phone is not a "public performance" by either the customer or the provider, signalling the phone to ring is not the same thing as playing a recording, and no amount of wishful thinking allows ASCAP's lawyers to redefine legal standards and the physics of wireless communications to their convenience. They still get paid for ringtone sales, but they don't get to doublecharge by pretending Verizon is both a music store and a radio station.

Court case regarding evidence on computers

Here's an interesting court decision that came down recently: investigators who are searching a computer under a search warrant may not seize files that provide evidence of a different crime than the warrant provided for.

It's another example of established law running into confusion when it encounters new technology. Search warrants are made out for specific purposes, so if the police come to search for evidence of one crime, they can't seize on evidence of a different crime - unless the evidence of that other crime is in "plain view." Its a fuzzy standard, but the purpose is clear enough - if the searchers happen to see a corpse in the hall or drugs on the coffee table, they're not obliged to ignore them; but they aren't supposed to use the warrant as a pretext for a fishing expedition to see if they can find something, anything, to charge a person with, either.

So the Ninth Circuit Court of Appeals has slapped down an attempt to claim that every file on a computer is in "plain view" when it is being searched. Otherwise, any computer search would automatically acquire unlimited scope, regardless of the warrant. That seems like a reasonable application of the law. However, the article hints that the Justice Department might consider appealing the ruling to the Supreme Court, which might be deferential to police claims that constitutional rights interfere with their jobs. So maybe nothing has been settled yet.

(via the Archives listserv)

More trouble for the Google Books settlement

French publishers have brought suit in Paris to stop the Google settlement, because the newly-digitized collection certainly contains many French works without their publishers' permission. The rhetoric is a wee bit hyperbolic: the president of the publishers group Syndicat National de l’Edition refers to the settlement as a "cultural rape," from which you would think scanning books is comparable to, oh, Napoleon filling the Louvre with the pillaged treasures of Europe or something. Ridiculous.

I had to search several articles before I could discover that Google is scanning books from a French library, which is the only avenue I can see for thinking French courts would have any jurisdiction at all; my (shallow) understanding of the Berne Convention is that French books in America fall under American law (the main point of the convention is that they do get the protection of the other country's laws and are not fair game for plagiarism and republishing). So I dunno - it might be a stretch to have Paris courts weighing in on the settlement. But in any event, the challenges are mounting and we may be much farther from that wonderful electronic library than we need to be.

Yellowstone grizzlies back on the list

Two years after federal officials announced their "amazing" recovery, grizzly bears near Yellowstone National Park have been given renewed federal protections by a federal judge who expressed concern that climate change, among other factors, could impair the bears' hopes for survival.

Only a short announcement, but you can read a little more here. And a longer article here.

The grizzly bears in Yellowstone seemed to be in real trouble in the early 1970's, when a crash program of closing the garbage dumps that they loved to frequent, plus a hyper-aggressive program of removing bears that spent too much time in campgrounds, combined to eliminate some 88 bears in the years 1970 and 1971. This was out of population that numbered somewhere from 150 to 300, depending on whose numbers you believed*; either way, those kinds of losses were clearly unsustainable and the Yellowstone grizzlies went on the Endangered Species List in 1975.

The Greater Yellowstone Ecosystem now contains some 500 bears, the target level for considering grizzlies to be "recovered," and that is indeed a great success story. The bears were taken off the Endangered Species List in 2007. However, the judge agrees with the Greater Yellowstone Coalition that the US Fish and Wildlife Service, and the corresponding state agencies, have failed to establish a plan that has any legal teeth to it, should the bear population start to fall again. So back on the list they go, at least until a more solid management plan can be devised.

_______________________
* The dispute over the most accurate bear census was extremely bitter. You can read about the whole fracas in Paul Schullery's The Bears of Yellowstone and Frank Criaghead's Track of the Grizzly.

Copyright Office weighs in on Google settlement - not good

The Register of Copyrights, Marybeth Peters, testified before the House Judiciary Committee yesterday and she is quite skeptical about the legality of Google's plan to scan books and create a registry of authors for future compensation. The crux of her concern:

Ms. Peters said that in granting something like a “compulsory license,” a requirement that rights owners license works to others, the settlement essentially usurped the authority of Congress and skirted deliberations.

“In essence, the proposed settlement would give Google a license to infringe first and ask questions later, under the imprimatur of the court,” Ms. Peters wrote in her prepared testimony.

This has always been the biggest legal sticking point in Google's digitization scheme - do they need to negotiate approval first (the opt-in position), or can they go ahead with their scanning and then later restrict books whose rights-holders step up and ask them to stop (the opt-out position). Getting prior permission for millions of books is impractical, to say the least, so Google has always preferred opt-out: we'll scan it, but let us know if you don't want us making it available.*

Peters is arguing that, practicality be damned, the law just doesn't allow it. Like it or not, you need permission first.** The Google registry essentially creates a compulsory license system, much like how songwriters get paid but can't make a radio station stop playing their songs. The latter system, of course, came about by an act of Congress and there's the rub - Google isn't Congress, even if they do have a stronger bank account.

You can read my contemptuous views on the so-called Google "monopoly" here, but the registry is a more serious matter. Even if it's a good solution - and I believe, for the most part, it is - it might not be legal without federal legislation. Unfortunately, so long as it appears only one company is in a position to benefit, that won't happen. Amazon may be building a digital library under an opt-in system, but that leaves an enormous amount of literature - the orphan works - untouchable.

So it's entirely possible that, while there's no illegal monopoly here, the fear of one will prevent an allowable solution - Congress stepping in and creating a compulsory licensing scheme. It will be a tragedy if we lose a chance to make all these books accessible because only one company was bold enough to take on the task***, but that could well be the result. Is it really better to have no grand digital library than to let Google be the spearhead?


___________________
* Where major publishers are aware of what's going on, though, they don't hesitate to opt-out before the scanning takes place. At the UM libraries, the stacks are festooned with pink slips that read "Not scanned at publisher request."

**Unless, like Bobby Bowfinger, you're lucky enough to catch those publisher in some kind of embarrassing situation....

***Ayn Rand fan should be hearing, "Why should only Henry Rearden be allowed to make Rearden Metal?" Seriously, I've seen suggestions that Google should be forced to give away all the digital files they've made at enormous cost.

IP and OLD technology meeting a changed culture

James asked for a post on the pending legislation that would require radio stations to compensate performers for playing their music on the air. So here goes.

The crux of the issue is this: when a radio station broadcasts a song, they have to pay royalties. But those royalties are due only to the composer of the song, not the performer. I'm not sure entirely why, other than that this arrangement dates back to the early 1920's when it was more common to identify a song by the composer than by the performer. Few composers would ever sing their own tunes and, for example, a Gershwin tune would remain a Gershwin tune regardless of who sang it. The notion of a "cover," have to acknowledge the fact that you're not the first to sing this song, would have generally been a redundancy.*

Well, times have changed and people care more about who sang the song than they do about who wrote it (if they're not the same person). A lot of folk won't recognize the names Jerry Lieber and Mike Stoller, but they can't help but think of Elvis Presley if they hear "Hound Dog" (most won't know that he didn't sing the real lyrics, either). Does it make a difference to heavy metal fans whether "You've Got Another Thing Comin'" is performed by Judas Priest or Pat Boone? You better believe it. Performers have eclipsed composers in the public's mind when they think of musical creativity.

So, if radio stations have to pay the composers when they broadcast music, why shouldn't they have to pay performers, too? Indeed, why not? I can't think of any good reason at all.**

Of course, the broadcasters can think up one really good reason why they don't want to, and plenty of weaker reasons why they shouldn't. To my mind, almost none of them fly.

First off, let's dispense with the BS about royalty fees representing a "tax." Royalties aren't taxes; people just hate the word more. That's just faster-than-78-rpm spin.

Nor will it drive radio stations out of business, or force them all to become talk radio stations (surely that market is already saturated!). We've heard it all before, every time the minimum wage goes up or automobile fuel efficiency standards are raised. "Can't be done! We'll all go out of business!" Nonsense. Remember how you used to see McDonald's and Burger King on every street corner, until they raised the minimum wage in 1993? And now you just can't find a fast food res - yeah, right.

You have to try to pass the cost on to your customers, but so do all your competitors. Unless the customers stop patronizing all of you, they end up paying the cost and everything goes on as before. Unless advertisers desert radio altogether, they'll just have to make their contribution to paying those royalties.***

The broadcasters do have one true argument. It's not really a legal argument, but they simply point out how much musicians benefit from having their music on the radio. And indeed they do. The payola scandals of the 1950's prove it - it was considered cheating for a record label to pay the radio stations to play certain artists. This wouldn't make any sense if they thought of that broadcast as a rip-off, but is perfectly sensible if they viewed it as advertising that boosted their overall revenue. Follow the money, if you want to know what they really believe.

Here's my take. Demanding revenues for the performers is perfectly fair and justified. However, it might be short sighted, especially if the fees are too hefty. So let's do this: let's let someone muscular, like Clear Channel, refuse to broadcast any music unless the performers pay for the advertisement. The market can be the referee and we'll see who really had whom by the balls all along.



[PS. The ringtone post was already getting long, or I would have discussed the performance-as-advertising aspect of that case. There should certainly be some awareness that selling ringtones has increased the market for popular music, to the artists' advantage. They deserve their cut, but trying to milk it that hard just shows a certain lack of respect for how little they directly contributed to expanding their own market.]

[PPS. It occurs to me (soemtime later) that composers for theater still enjoy preeminence over the performers. For example, Andrew Lloyd Weber enjoys a tighter association with his music more than any singer ever will, not even Sarah Brightman. I presume this reflects the difference between a transitory stage performance vs. the "imperishable" recorded performance.]


_____________________
* This may have much to do with the relative infancy of the recording business, too. In the age of live music, the performance was transitory and only the composition could have any permanence.

** In fact, internet radio - under more recent legislation - is already doing just that and would like to see the playing field leveled.

*** The broadcasters do point out that advertising receipts are down, but that can mean one of only two things: everything will be fine once the economy improves, or else radio is a failing industry anyway. Either way, special protections don't make long term sense.

IP and technology - the neverending story

So you may have seen these news items about the latest move from the American Society of Composers, Authors, and Publishers (ASCAP). Those pop-song ringtones you buy for you cellphone, so that you sound all funky to the world and id your ex-girlfriend's call before you answer? Those are public performances and your phone provider should be charged accordingly!

This has led to a fair amount of outrage and – as seems typical of ASCAP legal ploys (see footnote below) – almost seems designed to elicit giggles. A phone ring is a public musical performance? How about your neighbor's stereo? What if I roll down the windows of my car and someone hears my stereo? How about little girls singing at girl scout camp?* Are all of these public performances?

Everyone seems to be talking about this potential threat to the owners of the phone, but as I read the documents, that's exactly the line of thinking that ASCAP is hoping to avoid. That's because casual, non-commercial performance of a song or recitation of a text are pretty clearly exempted by section 110(4) of the Copyright Code. If I perform a song for money, or play a recording because it draws more people to my business, then I owe ASCAP money. If I'm just playing my stereo or singing a song, and other people happen to hear it, then I don't. ASCAP doesn't want anything to do with section 110.

Here's what happened: ASCAP was charging performing rights fees to cell phone service provicers. But they were also getting a cut of the sales revenue from the ringtone purchase. When the court ruled, a couple years ago, that a downloaded music file should be treated as a record sale, while a streamed audio file counted as a broadcast performance, Verizon and AT&T decided the money off the sales was all they owed, and they quit paying for performing rights.

ASCAP doesn't like this and they're suing. But here's what they have to do to win their case: they have to first convince the court that a downloaded file triggered by a remote signal is really a form of streaming audio, and then they have to establish that the responsibility for the playing of music lies with the folks who notify you of a call, rather than the person who buys the music and sets it to play when his phone rings.

To argue the first part, ASCAP is grasping onto language in the definition which includes the words “designed for” or “capable of” contemporaneous playback. “Hey! It's exactly the same type of digital file, no matter how you deliver it! It could be played contemporaneously when it's downloaded, so this can treated as streaming audio! Triggering a downloaded file is just a tricky techno-dodge to get around their obligations.**”

If they pull that off, then they still have to establish that the ringing phone constitutes a public performance, and that it is a public performance by the phone company. That's critical, because 110(4) is ASCAP's third rail: if their case touches on it, they're probably fried. So they're trying hard to redefine the core issue. It's not about you playing your phone's ringtone; it's about AT&T or Verizon playing your ringtone for you.

ASCAP argues that, because the phone company can cancel your contract, has elected to sell you the ringtone, owns the network, and sends the signal to your phone, they are controlling the performance. Never mind that Verizon only sends the signal to my phone and I'm the one who decides what, if any, ringtone plays to announce it. ASCAP claims Verizon is playing music for me and they have "complete control" over the performance.

Just to cover all the bases, and make sure bloggers get a good laugh at their expense, ASCAP points out that an airwaves broadcast is always considered a performance, whether or not you can prove anyone had their radio or television turned on. So ditto with phones, right? They say the ringing is “public, regardless of whether some customers' phones may be sometimes switched to vibrate, turned off or located in the home. For a ring tone performance ... to be a public performance, it need not be received by the public every time." By this reasoning, it appears to be a performance, even if I had set the phone to vibrate, dropped it in the woods a week ago, and the battery has run dead. It might even still be a performance if I had dropped the phone into a volcano and neither it nor the digital file even exists any more.

If they were arguing this case before my court, they'd have a pretty slim chance of success. But judges are known to hang a decision on some very technical, literal, and counterintuitive reading of a text. We'll see how this one plays out.

My favorite part is this line from ASCAP's response to AT&T's motion for summary judgement:

“It is difficult to imagine how AT&T could more actively induce the unlicensed performance of ASCAP work than it already does.”

Oh, come on, ASCAP. I know your lawyers have more imagination than that!


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* This example isn't chosen at random. Some dozen years ago, ASCAP leaped into a huge pile of PR manure by threatening girl scout camps to either pay up or shut up. I find it ironic that such tone-deaf people are entrusted with protecting the interests of musicians.

** In fact, downloading is the only efficient way to deliver ringtones without wasting bandwidth with every call.

Is the internet a right, pt. II? In France - yes

A couple months ago I mentioned the efforts in France to pass laws that would allow illegal file sharers to be barred from internet service. At that time, the law had been defeated, but was since brought up again and passed.

Now it's been struck down again by the French Constitutional Council. You can read their decision here, if your French is any good. Mine isn't, but the accounts are saying that the Council ignored the practical considerations - do you punish a whole household for one person's misdeeds? wouldn't you just end up nabbing the less savvy and less harmful thieves? - and went straight for the big issue.* Invoking the 1789 Declaration of the Rights of Man, which are enforceable under the French constitution, the Council wrote:

But the Council found the law violated both the constitutional right to freedom of expression and the right to presumption of innocence.

“It follows,” wrote the Court, “that in principle the legislature does not establish a presumption of guilt in criminal matters”. The Court also said exercising freedom of expression and communication, including that performed over the internet, is a prerequisite for democracy.

“Attacks on the exercise of this freedom must be necessary, appropriate and proportionate to the aim pursued,” it said.

In particular, the Council strongly disapproved that a legal punishment would be determined by a political agency rather than a court of law.

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* In marked contrast with US Supreme Court tendencies, which Ed Brayton critiques here.

Is internet access a right?

Eric Pfanner at the New York Times asks, "Should Online Scofflaws Be Denied Web Access?" You see, some folks* believe that people who pirate copyrighted media should be denied their own internet connections.** A bill to do just that was defeated in France last week and European consumers are reported as being strongly against any such thing. In fact, according to Pfanner,

Last month, in a pre-emptive strike, the European Parliament adopted a nonbinding resolution calling Internet access a fundamental freedom that could not be restricted except by a court of law.

At first blush, that sounds a little far-fetched, calling internet access a fundamental freedom. What's next, a fundamental right to quarter-pound hamburgers? Plus a constitutional right to fries?

At second blush, though, maybe not entirely far-fetched. The internet has now become the most basic informational, organizational, and administrative infrastructure we have. It's how I get the news, it's how I write to people, it's how I access my bank account and pay many of my bills, it's how I do much of my work at home, and it's almost the only way to hunt for a job nowadays (and often the only way they want you to apply for one). Would losing all that be proportional to the crime of sharing music files?

How often do we punish a person by depriving them of access to fundamental infrastucture? I mean, aside from actually tossing them into the pokey? The nearest equivalent I can think of is taking away their driver's license. But here's an illustrative point about traffic laws: we make this big distinction between moving and non-moving violations. You can have your car impounded for not paying parking tickets, but they don't permanently confiscate the car or prevent you from driving someone else's because of it.

You're still allowed to drive after offenses like that. We only take away your license when you're just too damned dangerous to be allowed on the road.*** It's the crimes that are likely to lead to mayhem and death that justify barring a person from the road. Not property crimes; just threats to life and limb. And internet piracy doesn't offer any equivalent to drunk drivers or street racers. Property crimes don't justify cutting someone off from the virtual world, because that's where everyone is doing real business nowadays.


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* Often spelled R-I-A-A.

** Presumably, they could still go online at a library or coffee shop, but not have their own ISP. This gets trickey, because many household connections are shared by several family members and some wireless connections are shared by multiple households. Then there's the possiblity of someone hacking into your wireless account, and ... it's just not as easy as saying "Here's the ISP, so we have the guilty party."

*** And often not even then. It's so crippling to be barred from the road in our culture that we're reluctant to impose that penalty even on maniacs.

Fair use victory

'Family Guy' wins copyright battle over song

According to Reuters, a Manhattan judge has thrown out a lawsuit filed by music publisher Bourne Company in relation to the track, which appeared in the season three episode When You Wish Upon A Weinstein.

Bourne had claimed that the Family Guy version, named 'I Need A Jew', was in violation of their copyright, and that its "vile and outrageous anti-Semitic message" had caused "substantial and ireparable harm" to the company.

In essence, Bourne is arguing that parody should be illegal and the judge rightly pointed out that, as a matter of law, it is not. Case closed. Perhaps more surprisingly, the judge went on to demonstrate that she has a fair understanding of how parody works:

She added that copyright ownership did not provide protection from parody and noted that the song had enjoyed a "beneficial association" with "wholesome" films such as Disney's Pinocchio.

"It is precisely that beneficial association that opens the song up for ridicule by parodists seeking to take the wind out of such lofty, magical, or pure associations," she said.

Good on ya, yer Honor.

As a bonus, here's another article which provides a link to "The Freaking FCC", which is mandatory, NSFW viewing. This one's not about copyright; it's just a poke at the morals police.

Is metadata part of a document? AZ court says no.

Here's an interesting article picked up by Peter on the archives listserv: the Arizona Court of Appeals has ruled that metadata is not part of a document and therefore not a public record. At issue was whether a Word file's hidden "properties" could be demanded, in order to prove that the creation date was the same as the date printed in the document text; the Court ruling says that it cannot. Only the document as it would appear in a printed version is public.

This strikes me as a wrong decision, or at least the wrong outcome (there may not be any case law on this issue to make a ruling either way technically incorrect). But then archivists have an expansive view of what comprises a document and may not see things the same way that a politician or other public official would. I expect this topic to get revisited, eventually at the federal level, before too many years pass.

Those VP records

This came down a few days ago: Ruling on Records Delivers a Win to Cheney

The judge has lifted an injunction against the OVP handling their records as they see fit because she sees no basis for presuming ill intent. The lawsuit in question was arguing exactly that: that an injunction to preserve all records was necessary because there's such a high suspicion that there will be inappropriate destruction of documents. Given that the judge herself comments on the Justice Department's "constantly shifting arguments" that have been rejected at every turn, it seems her decision could easily have gone the other way, but that's not what happened. As it stands now, the OVP is free to do as they please and be judged after the fact.

The illegal West Virginia

Over at Strange Maps appears this intriguing map, apparently drawn up in spring or summer of 1861:



In this map, West Virginia (still tentatively naming itself for the Kanawha River) and Maryland have slice apart most of Virginia, leaving the Old Dominion a landlocked sliver of its former self. After the war, no rearranging of state boundaries occurred, but WV did secede from Virginia and gain admittance as the 35th state in 1863. Both the proposed partition and the actual emergence of WV are highly unconstitutional, as Article IV, Section 3 reads in part:

"[N]o new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress."

That's pretty plain for a legal document: none of this could be done without the consent of the Virginia legislature, which of course was never offered. If truth is the first casualty of war, law often falls bleeding beside it.

Now, you could argue that Virginia was no longer protected by the Constitution, having seceded, and so the westerners had every right to secede from the country in the same way that the American revolutionaries had seceded from England. But that would make the Civil War an act of aggression against another country and the North never accepted that characterization; the whole premise of the war, from the Union perspective, is that the Southern states were still part of the United States all along and those federal armies were just putting down and insurrection. So the Constitution ought to still apply.

The Southerners found that argument more attractive in 1866 than they had in 1861 and were happy to argue that they were still in the Union, exactly as before. By now, though, the Republicans had also changed their minds. The Southern states were outside the Union, after all, and wouldn't be allowed back in until they had "consented" to a few alterations to that Constitution ....