Parental Immunity From Copyright Infringement?

October 30th, 2014

I was just re-reading the Aereo decision (ABC, Inc. v. Aereo, Inc., 573 U.S. __. 134 S. Ct. 2498 (2014)), and ran across this bit of dicta in Justice Breyer’s Opinion:

“A copy shop rents out photocopiers on a per-use basis. One customer might copy his 10-year-old’s drawings — a perfectly lawful thing to do — while another might duplicate a famous artist’s copyrighted photographs — a use clearly prohibited by § 106(1).”

Justice Breyer writes for the Supreme Court majority that it is “perfectly lawful” for a parent to reproduce a copyrighted work if the author is the parent’s 10-year-old child. Presumably, Breyer also believes that it is perfectly lawful for parents to thumb their noses at the exclusive rights of 17-year-old authors who happen to be their children.

Is there an age-limit to Justice Breyer’s largesse over the parental trump card? Suppose I want reproduce the work of my 32-year-old son into copies without his consent? Breyer provides no hint of the legal basis for his assertion that the Copyright Act’s exclusive rights in Section 106 are not sufficiently exclusive to exclude the parents of child-authors. Nothing in the Copyright Act suggests that Congress intended to deny child authors copyright protection from what would otherwise be infringing uses by their parents.

I suspect that there will come a day when a parent will exploit his or her child’s work for financial gain, against the child’s wishes, and cite Justice Breyer’s dicta in defense against the child’s lawsuit. Fortunately, it is dicta, which means that the Court can say “we didn’t really mean for it to apply to real facts in a real case before the Court at this time - we merely applied our lack of reasoning to fake facts in a hypothetical case not before the Court at that time.”

Edward Snowden at West Point

May 29th, 2014

Today (May 28, 2014), I heard President Obama’s speech at West Point during the same drive-time as John Kerry’s interview about Edward Snowden. The words clashed.

PRESIDENT OBAMA: I hereby absolve all cadets who are on restriction for minor conduct offenses.

Kerry: if he wants to come home tomorrow to face the music, he can do so.

Obama: It is a particularly useful time for America to reflect on those who’ve sacrificed so much for our freedom, a few days after Memorial Day.

Kerry: A patriot would not run away.

Obama: I believe that a world of greater freedom and tolerance is not only a moral imperative; it also helps keep us safe.

Kerry: Well, for a supposedly smart guy, that’s a pretty dumb answer.

Obama: Here’s my bottom line: America must always lead on the world stage. If we don’t, no one else will.

Kerry: I think it’s very sad. But this is a man who has done great damage to his country

Obama: Just because we have the best hammer does not mean that every problem is a nail.

Kerry: I think he’s confused.

Obama: we still need to ask tough questions about whether our actions are proportional and effective and just.

Kerry: man up.

Obama: we must uphold standards that reflect our values.

Kerry: man up.

Obama: I believe in American exceptionalism with every fiber of my being.

Kerry: I think he’s confused

Obama: That’s why we’re putting in place new restrictions on how America collects and uses intelligence — because we will have fewer partners and be less effective if a perception takes hold that we’re conducting surveillance against ordinary citizens. America does not simply stand for stability or the absence of conflict, no matter what the cost; we stand for the more lasting peace that can only come through opportunity and freedom for people everywhere — which brings me to the fourth and final element of American leadership: our willingness to act on behalf of human dignity.

Kerry: But this is a man who has done great damage to his country.

Obama: unlike other nations, America is not afraid of individual empowerment. We are strengthened by it. We’re strengthened by civil society. We’re strengthened by a free press.

Kerry: man up.

Obama: American leadership also requires us to see the world as it should be — a place where the aspirations of individual human beings really matters, where hopes and not just fears govern; where the truths written into our founding documents can steer the currents of history in the direction of justice.

Kerry: Edward Snowden is a coward, he is a traitor, and he has betrayed his country, and if he wants to come home tomorrow to face the music, he can do so.

Obama: Next week I will go to Normandy to honor the men who stormed the beaches there. And while it’s hard for many Americans to comprehend the courage and sense of duty that guided those who boarded small ships, you define what it means to be a patriot.

Kerry: If this man is a patriot, he should stay in the United States and make his case. Patriots don’t go to Russia, they don’t seek asylum in Cuba, they don’t seek asylum in Venezuela. They fight their cause here. There are many a patriot – you can go back to the Pentagon Papers with Dan Ellsberg and others who stood and went to the court system of America and made their case. Edward Snowden is a coward, he is a traitor, and he has betrayed his country, and if he wants to come home tomorrow to face the music, he can do so.

Obama: Leaving here, you carry with you the respect of your fellow citizens. You will represent a nation with history and hope on our side.

Kerry: man up.

Obama: Your charge now is not only to protect our country, but to do what is right and just.

Kerry: come home tomorrow to face the music.

If I warn you I am a stalker does it make stalking you OK?

June 27th, 2013

The intention behind the We Are Watching You Act of 2013 may be laudable, but the solution seems pretty narrow-minded. Fearing technology that would allow the entity transmitting video programs to your TV or computer screen to watch viewers’ reactions to what they are watching, the bill’s sponsors take the approach that you at least need to be given notice that they are watching you and an have a meaningful opportunity to avoid their gaze, at least when you want to scratch your crotch, pick your nose, or watch TV in your underwear.

It’s sort of like passing a law obligating the Peeping Tom next door to let you know he likes to peep in your window, so you can decide when to close the blinds, or ask him to look away.

Boehner Abdicates, Along With House Republicans

December 27th, 2012

CNN reports, “Obama, congressional leaders to discuss impending fiscal cliff - CNN.com,” in coverage similar to that of so much other of the attention-addled media. For the last several weeks, we have been plastered with coverage of whether Boehner and Obama can reach a deal.

Hogwash. It’s time for Obama to call them on it.

The Constitutional truth is that there is absolutely no reason for Obama to negotiate anything, apart from being sucked into the sordid Washington insider silliness that both parties covet and the Republicans master. It’s the same kind of silliness that allows a Senator to put a “hold” on a bill, just so no one has to bother with a filibuster — like negotiating to buy a car, where you tell the dealer, “give me a better price before I will tell you whether I’m really interested in buying that car” in response to each offer.

But let’s take a look at the rules. The U.S. Constitution - yes, that Constitution that Congress could give a rats ass about - gives the roadmap for avoiding the artificial “cliff” that has been created as the playing field for a game of political chicken, right there in Article 1 Section 7:

“All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

Nowhere is the President mentioned, so far. So why negotiate with him, you Republican wussies? The Constitution goes on:

“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”

There you have it. Simple as that. Just two paragraphs written generations ago provide the very simple, clear roadmap to avoiding the so-called “fiscal cliff.” Obama should have continued to vacation in Hawaii waiting for the House Republican wussies [”weak or ineffectual persons,” says my dictionary], lead by Boehner, to lead the House in passing a bill. That bill should be sent to the Senate and, if the Senate does not concur, the two chambers hash it out until a majority of the House and of the Senate concur on final language of a bill. Then, and only then, does Obama need to towel off from a morning swim and look over their handiwork.

If he agrees with it, he signs it. If he can’t bring himself to sign it, but is willing to let it become law without his name on it, he can dive back into the waves and, after 10 days, it becomes law. Or, if he really dislikes it, he can veto it. Period.

If he vetoes it, then Rep. Boehner and Sen. McConnel have their work cut out for them, as it is their responsibility to lead the two chambers to either (1) override the veto, or (2) get a bill on Obama’s desk that Obama will sign. The Democrats are not the problem, since their position is already closer to what Obama will sign. It’s the radical right wing that’s the problem, and until voters turn them out on their ears, they are Boener’s and McConnel’s problem.

But the Republicans don’t want to accept the fact that they are leaders without enough followers. They have simply abdicated their responsibility to lead, preferring to lead the press into spreading the blame. They have de facto abdicated. It’s time voters return the favor and make it real, and make the abdication de jure. But that can’t happen until election day so, in the meantime, the press should stop repeating the he says/she says finger-pointing and tell the public what’s really going on: The Republican leadership simply refuses to do its job.

Writing Wrong Kirtsaeng Headlines

October 31st, 2012

After the Supreme Court heard oral argument on the case of Kirtsaeng v. John Wiley & Sons, Inc., on October 29, 2012, many of the reports contained some inaccuracies, and some got it generally right. But who writes the wrong headlines?

Even when the story was basically correct, the headlines tended to be off base. Here are a few:

“Lawyer: Buyers have the right to resell copyright-protected works” Grant Gross (IDG News Service)
Wrong on three counts.
First, it is not about just “buyers”. It is about all “owners” of non-infringing copies. You need not have bought the copy. Ownership alone entitles you to dispose of it without the copyright owner’s permission. Second, it is not about reselling a “copyright-protected work” at all. Section 202 of the Copyright Act makes clear that copies and copyrights are different animals. Selling one has no bearing on rights in the other. What was being sold in this case were tangible “copies” of copyrighted works, not the intangible “works of authorship.” Finally, it is not limited to the right to “resell”, as explained under the next erroneous headline.

“Supreme Court Decision Could Impact Small Biz Re-selling” (Small Business Trends editor)
Well, yes, it could impact “small business re-selling,” but it could also impact large business reselling and no business re-selling. Moreover, it could impact all “distributions” under the Copyright Act, including gifts, lending, and renting. It could even leave an estate’s executor in a pickle over whether transferring that French painting to nephew Wally would be an infringement unless permission is obtained from the owner of the copyright, if you can find him, her, it or them.

“A ‘gray market’ gray area in copyright law” (L.A. Times Editorial)
“US Supreme Court weighs protection against gray market imports” (Reuters)
The popular “gray market” reference is a red herring. While a decision one way or another would indeed have an impact on “gray market” goods (imported against the wishes of the manufacturer), it should have the identical impact on goods imported into the U.S. and sold here by the U.S. copyright owner. Whether the goods themselves are “gray market” is not really a factor (though the textbook publishers have been rather successful in misrepresenting it as the only market in issue). The relevant fact is whether they were made in the U.S. or abroad. The textbook publishers are claiming (as the Second Circuit held), that even if they, themselves make the copies abroad, import them, and then sell them, they are exempt from the historic limitation on their distribution right that limits it to copies they actually own. In other words, the case deals with the fate of all copies that the U.S. copyright owner made, or licensed to be made, and which happened to have been made anywhere other than in the United States. Copyright holders who shift the manufacturing jobs abroad get special rights that no copyright owner foolish enough to manufacture the copies with domestic labor can enjoy.

The journalists who wrote the articles might not have chosen the false or inaccurate headlines, so be kind to them. But it is not that hard to avoid those errors, as Joe Mullin did: “Supreme Court seeks a way around ‘perpetual copyright’ on foreign goods” (ARStechnica)

Fuck the “F-Word”

June 25th, 2012

The Supreme Court’s ruling in FCC v. Fox Television Stations, Inc. fizzled rather than sizzled, as far as First Amendment issues are concerned. In essence, the Court did not bother to assess the First Amendment constitutionality of the FCC’s latest iteration of its indecency rules because, having determined that the FCC failed to give fair notice to broadcasters of its new rule at the time of the allegedly “indecent” broadcasts, the constitutional flaw was one of Due Process (void for vagueness) grounds. Now that there is notice, the FCC can take another shot at a “fucking” utterance over the airwaves.

In addition to seven seconds of nude buttocks, the offending broadcasts included use of the words “fuck”, “shit”, and “fucking”. But don’t bother searching for the Opinion based on those words, because you won’t find them. Even though there is no radio or television broadcast of the Opinion itself, such that the Supreme Court’s Opinion would get no one in trouble for merely publishing the written Opinion, and even though the use of those words in the Opinion would have been fully protected by the First Amendment, the Supreme Court is happy to write about them, nut dares not say what “them” are.

The Opinion, authored by Justice Kennedy, instead uses harder-to-search references, such as “f***” to refer to “fuck”, “s***” to refer to “shit”, and “f***ing” to refer to “fucking” (as well as references to “the F-Word”). Thus, we all know what the Supreme Court was pretending not to say, but the Court made it more difficult for anyone to pinpoint the ruling by use of the very search terms most central to the case.

It is high time for courts to end the charade. It they are mature enough to make decisions of constitutional proportions and involving millions of dollars in fines on the basis of “fuck”, “shit” and “fucking”, then they should have the decency to say what it is they are passing judgment upon. Perhaps, if Justice Ginsburg’s desire for reconsideration of FCC v. Pacifica Foundation (involving George Carlin’s “Seven Dirty Words” monologue that anyone can easily find on YouTube) ever materializes, the Court will finally bring itself to saying rather than alluding to what its judgment is about. Seriously, how many words begin with “f”?

The precise words, in greater context and without the bewilderingly silly asterisks, were uttered by Cher (”I’ve also had my critics for the last 40 years saying that I was on my way out every year. Right. So fuck ‘em.”); Nicole Richie (”Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”); and Bono (”This is really, really, fucking brilliant. Really, really great.”). Could Cher have passed muster with the censors by saying “So f-asterisk-asterisk-asterisk ‘em”? Certainly. And her comment would have come across as a an immature sophomoric exercise, just like Justice Kennedy’s Opinion. People don’t speak with asterisks, and neither should the Sup**** C***t.

Infringing Trip to Fridge During Commercial?

May 24th, 2012

The wait is over. Dish Sues Networks, Fox Sues Dish, Over Ad-Skipping Auto Hop, says The Wrap.

In dueling lawsuits (a declaratory judgment action filed by Dish against Fox and others, and a copyright infringement lawsuit filed by Fox against Dish), the issue is the legality of “Auto Hop,” the Dish feature that lets viewers automate what until now has required conscious thought - skipping commercials.

It used to be that the commercial break was the time to rush out and put the laundry in the dryer, pee, or get a snack. Then remote controls let you check the action on a different channel or mute the sound. The advent of the VCR and the DVR allowed one to fast-forward through the commercial break, but resuming “play” at just the right point remained a challenge.

Now, Auto Hop automates the process further, taking out the guesswork. It also brings the guesswork into the law. Since no copyright owner has claimed that a viewer infringes the copyright in an audiovisual work by refusing to pay attention to advertisements injected into pauses in the public performance of the work, how can they make a claim of copyright infringement stick against a company that facilitates non-infringing activity?

I have yet to review the complaints to sort out the fine print in the legal claims, but I find it significant that Dish sued Fox, NBC, ABC and CBS in the U.S. District Court for the Southern District of New York, within the Second Circuit, which has favorable case law concerning a cable company’s facilitation of consumer behavior comparable to a “remote” VCR. Fox sued Dish in the Central District of California, within the Ninth Circuit, which has a notorious history of missing the forest for the trees on copyright matters.

Copyrighted Recipe for Scrambled Eggs

May 29th, 2011

I’ve often heard it said, most often by lawyers, that “you can’t copyright a recipe.” That has never really been true, but the myth persists. The Copyright Office’s own website seeks to dispel it, noting that while “mere” listings of ingredients and instructions without any creative expression are not copyrightable, a recipe that meets the creative expression requirements all works of authorship must meet (which is a very low threshold) are, in fact copyrightable. See, for example, FL-122 (”Copyright law does not protect recipes that are mere listings of ingredients.”) But is does protect recipes that are not mere listings of ingredients.

But the myth persisted. Back in 2007, I wrote “Copyrighted Recipe for Scrambled Eggs,” just to make a point on a listserv discussion. Although, by law, it was copyrighted from the moment I wrote it, the naysayers might not take my word for it. So, on a whim, I took the next step of applying for copyright registration. This month, the Copyright Office agreed that it is copyrightable, and issued me Registration No. TX0007357813.

You may reproduce a copy of John T. Mitchell, Copyrighted Recipe for Scrambled Eggs, 2007, from the hyperlink.

Enjoy!

Ninth Circuit Gets Used CDs Right

January 4th, 2011

In a case we had been watching for some time (UMG v. Augusto), the Ninth Circuit finally upheld the district court’s holding that self-serving restrictions placed on so-called “promotional” CDs could not limit the right of the owner of the CD to sell it without permission.

This was refreshing news, given that the Ninth Circuit seems to be somewhat tone-deaf when it comes to the first sale doctrine. Here, although the panel deciding the case followed the ill-conceived test for determining whether a copy is “licensed or sold” (as used in Vernor v. Autodesk), thereby creating a false dichotomy and demonstrating a fundamental failure to understand the difference between “copies” and “copyrights”, this panel at least got it right in the result.

Dirty Deals Abridge Freedom of Speech

December 31st, 2010

California ban of violent video games must go, headlines the piece by Activision Blizzard’s George Rose in the San Francisco Chronicle. While Rose is correct that California’s censorship law is unconstitutional and the Supreme Court should bury it so deep no other states keep trying to get away with such a travesty, one portion of his remarks disappointed me the New Year’s Eve because they underscore the government’s bullying that results in self-censorship. Rose remarked:

“Schwarzenegger vs. EMA properly raised the same First Amendment issues regarding freedom of expression that successfully struck down similar restrictions in other states. But it also underscored that this law and similar ones are hopelessly out of date now that industry pledges to Congress are fulfilled to work with retailers to enact strict ratings systems. So for the underage kid whose parents don’t approve of a mature-rated game, buying on the sly at a major retailer is virtually impossible.

“It makes no sense for California to put in place a costly state bureaucracy to replace a privately funded system that is working. The industry’s ratings partnership has been thoroughly tested and praised by the Federal Trade Commission as thorough and effective.”

So what is this about “industry pledges to Congress” and pride that “the industry’s ratings partnership has been thoroughly tested and praised by the Federal Trade Commission”? Congress (and individual lawmakers like Sen. Joe Lieberman) has no business badgering the industry to self-censor in ways that Congress cannot do directly. The FTC has no business “testing” the industry’s ratings of its own speech.

When faced with a constitutional prohibition against censoring speech, Joe Lieberman is one of the first to use threats of doing just that as a means of arm-twisting his targets into themselves doing what no law could force them to do. Like “nuisance lawsuits” in which someone files suit on a baseless claim, with the expectation that it will be cheaper for the defendant to settle than litigate, Senator Lieberman and the FTC skirt their obligation to uphold the law, knowing it is cheaper for video game publishers to agree to censor themselves rather than have to engage in costly litigation to overturn such excesses.

It is high time our elected officials and government agencies took to heart their obligations to uphold the Constitution. Certainly, their flippant contempt for the Constitution does more harm than any violent video game ever could.