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The copyright pirates of Pirate Bay have had their appeal for a retrial denied. Epic fail (for them at least). The BBC reports that the defendants, who were found guilty of copyright infringement appealed and requested a new trial based on the discovery that one of the judges in the case had ties to a copyright protection group.1
While this certainly is an interesting thing to learn post-trial, it certainly wouldn't be enough to win the motion for a new trial.
I'm not up on my Swedish Civil Procedure or the Code of Professional Conduct for Swedish Lawyers and/or Judges, but I think the standard applied would probably be fairly high (nigh insurmountable?). In the United States, there could be an issue of conflict of interest,2 but even then, the ethical guidelines for judicial conduct seem to feel like there probably is not an issue.3 Note the use of italics to emphasize the speculative nature of those statements.
The Code of Conduct for U.S. Federal Judges, provides that judges are free to engage in civic and other extra-judicial activities as long as there is no likelihood that this activity would substantially interfere with their impartiality.4 Similarly, the ABA's model rules generally prohibit an attorney from representing a client when the lawyer is involved with another client whose interests are or a lawyer who has personal interest/affiliation from which a fiduciary duty extends which are adverse to the prospective client.5 Applying the Pirate Bay situation to an American court, it would be fairly clear that in the present case, unless you're in front of the Federal Circuit, where there's quite a bit of intellectual property work, you're probably going to get denied on the same motion. Even then I don't think it would have had much traction.
In the case of the Federal Circuit, membership in the pro-copyright group could be seen as prejudicial while the generalist judges likely don't see enough copyright cases for there to be a problem. Of course, the counter argument is the generalist judges maybe don't see many copyright cases and therefore may use the occasional copyright case as a platform to promote their cause if they were involved in the pro-copyright group. That would definitely be a violation of Canon 5 of the Federal Code of Conduct for U.S. Judges.6 I think the Code of Conduct neatly solves this by requiring the imparitality in the execution of justice.7 Unless you could prove the judge was openly hostile and blatantly adverse to the defendants, it's a pretty big stretch. So really, while it was probably an interesting sidenote that one of the Swedish judges was involved in a pro-copyright group, I think that motion was likely doomed to fail. On second thought even, my distinction between the Federal Circuit and the generalist judges is most likely a distinction without a difference.
1: Pirate Bay retrial call rejected, BBC News.com, http://news.bbc.co.uk/2/hi/technology/8121680.stm (last visited June 27, 2009).
2: See MODEL RULES OF PROF'L CONDUCT, R. 1.7, 1.8 (discussing a conflict of interest as a lawyer representing a client or conducting business with a client to which the lawyer has an adverse interest to the client and prohibiting such activity generally).
3: CODE OF CONDUCT FOR U.S. JUDGES Canon 5.
4: Id.
5: MODEL RULES OF PROF'L CONDUCT, R. 1.7, 1.8.
6: CODE OF CONDUCT FOR U.S. JUDGES Canon 5.
7: Id. at Canon 2.2.
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This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
Saturday, June 27, 2009
Saturday, June 20, 2009
Second Time is Definitely NOT the Charm...
So the Thomas copyright case in Minnesota came to a verdict this week.1 Instead of the previous $220,000 verdict, she's now on the hook for something to the tune of $1.92 million.2 Talk about things definitely not going your way. Checking the slip opinion from the trial court, it only had the motions in limine hearings, so it was not very helpful for my purposes.
Basically, as we can all tell, Thomas got put to the fire so the industry can have its big "win." The problem is this isn't a win, it's punishing someone incredibly out of proportion to what she did. Now I understand the argument that the fine should be that big because the files she shared can be shared ad infinitem.3 There is another way, you could track how many files were downloaded off of her computer and then determine how many copies of the song were released and THEN create your damages. Obviously this ignores the copies that were made and what happens to them, but there has to be a point where you stop counting.
The article does mention that the lawyers representing Thomas are also representing two other copyright infringment defendants.4 I sincerely hope they end up with a better result than this, because someone needs to find the bludgeoning tactics that the RIAA has been using. The RIAA has said it's stopping the consumer-lawsuit practice that has historically been using, however, if they really want to reclaim some of that goodwill, they should drop all their current open lawsuits and find a way to settle with people like Thomas who have been grossly over punished.
1: Chris Williams, Big fine Could be Big Trouble in Downloading Case, Yahoo.com News, available at http://tech.yahoo.com/news/ap/20090619/ap_on_hi_te/us_tec_music_downloading.
2: Id.
3: Id.
4: Id.
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This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
Basically, as we can all tell, Thomas got put to the fire so the industry can have its big "win." The problem is this isn't a win, it's punishing someone incredibly out of proportion to what she did. Now I understand the argument that the fine should be that big because the files she shared can be shared ad infinitem.3 There is another way, you could track how many files were downloaded off of her computer and then determine how many copies of the song were released and THEN create your damages. Obviously this ignores the copies that were made and what happens to them, but there has to be a point where you stop counting.
The article does mention that the lawyers representing Thomas are also representing two other copyright infringment defendants.4 I sincerely hope they end up with a better result than this, because someone needs to find the bludgeoning tactics that the RIAA has been using. The RIAA has said it's stopping the consumer-lawsuit practice that has historically been using, however, if they really want to reclaim some of that goodwill, they should drop all their current open lawsuits and find a way to settle with people like Thomas who have been grossly over punished.
1: Chris Williams, Big fine Could be Big Trouble in Downloading Case, Yahoo.com News, available at http://tech.yahoo.com/news/ap/20090619/ap_on_hi_te/us_tec_music_downloading.
2: Id.
3: Id.
4: Id.
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
Wednesday, June 17, 2009
Derivation + Twitter = Twittervative?
In case you haven't heard, two guys who are big fans of James Joyce's novel "Ulysses" decided they would put it up on Twitter.1 An interesting idea, but one that brings up some copyright law.
Section 106 of the Copyright Act provides a copyright holder (in this case James Joyce) with the right to make derivatives.2 However, the thing is, copyrights last only 70 years after the death of the author3 (in this case, again, James Joyce, who died in 1941 4). Now, nevermind that, as the Eldred v. Ashcroft5 decision warrants a whole other post (and believe me, I have plenty to say about it). The whole derivative debate hinges on authorization and if you look at section 101, you see that this exercise would probably fall under that label of "derivative."6 If it's not authorized (and I'm not going into that), then you have to go to "fair use" to save your bacon.
What I like about the Twit-Lysses (that's what I'm calling it) is it's wicked creative and if you check it out, it's seriously entertaining (for literature people). Because Mr. Joyce's copyright technically still survives (1941 + 70 = 2011), one could conceivably get in trouble for this. Technically violating the public performance right from the Act might get you in trouble....usually.7 So we've figured out you could run into trouble with 106(2) and 106(4). Ouch.
Now people are always quick to claim fair use under section 107 of the Act.7 Problem with fair use is that is typically a 50/50 if you get to a jury trial, there's all kinds of factors and no categorical exceptions,9 etc...that would be nice to get into for a jury, but ultimately, Twit-Lysses is a harmless literary exercise (in my humble opinion). It's generally transformative (hardcopy book to Twitter micro-blogging), is not acting as a market substitute for the original work, doesn't really damage the market for the original, takes a small quantitative and qualitative portion of the original and generally is entertaining. Ulysses is a fictional work, so it receives a bit more protection than a non-fiction,10 but that's really only one factor in four that heavily weigh in the favor of Ulysses.
I say Tweet on!
1: "Twitter goes literary with Ulysses performance" Reuters.com, available at http://www.reuters.com/article/technologyNews/idUSTRE55G0UY20090617.
2: 17 U.S.C. § 106(2) (2006).
3: 17 U.S.C. § 302.
4: "James Joyce" Wikipedia.org, available at http://en.wikipedia.org/wiki/James_Joyce.
5: Eldred v. Ashcroft, 538 U.S. 916 (2003).
6: 17 U.S.C. § 101.
7: 17 U.S.C. § 106(4).
8: 17 U.S.C. § 107.
9: See id.
10: See id. (noting the nature of the work is to be taken into account).
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
Section 106 of the Copyright Act provides a copyright holder (in this case James Joyce) with the right to make derivatives.2 However, the thing is, copyrights last only 70 years after the death of the author3 (in this case, again, James Joyce, who died in 1941 4). Now, nevermind that, as the Eldred v. Ashcroft5 decision warrants a whole other post (and believe me, I have plenty to say about it). The whole derivative debate hinges on authorization and if you look at section 101, you see that this exercise would probably fall under that label of "derivative."6 If it's not authorized (and I'm not going into that), then you have to go to "fair use" to save your bacon.
What I like about the Twit-Lysses (that's what I'm calling it) is it's wicked creative and if you check it out, it's seriously entertaining (for literature people). Because Mr. Joyce's copyright technically still survives (1941 + 70 = 2011), one could conceivably get in trouble for this. Technically violating the public performance right from the Act might get you in trouble....usually.7 So we've figured out you could run into trouble with 106(2) and 106(4). Ouch.
Now people are always quick to claim fair use under section 107 of the Act.7 Problem with fair use is that is typically a 50/50 if you get to a jury trial, there's all kinds of factors and no categorical exceptions,9 etc...that would be nice to get into for a jury, but ultimately, Twit-Lysses is a harmless literary exercise (in my humble opinion). It's generally transformative (hardcopy book to Twitter micro-blogging), is not acting as a market substitute for the original work, doesn't really damage the market for the original, takes a small quantitative and qualitative portion of the original and generally is entertaining. Ulysses is a fictional work, so it receives a bit more protection than a non-fiction,10 but that's really only one factor in four that heavily weigh in the favor of Ulysses.
I say Tweet on!
1: "Twitter goes literary with Ulysses performance" Reuters.com, available at http://www.reuters.com/article/technologyNews/idUSTRE55G0UY20090617.
2: 17 U.S.C. § 106(2) (2006).
3: 17 U.S.C. § 302.
4: "James Joyce" Wikipedia.org, available at http://en.wikipedia.org/wiki/James_Joyce.
5: Eldred v. Ashcroft, 538 U.S. 916 (2003).
6: 17 U.S.C. § 101.
7: 17 U.S.C. § 106(4).
8: 17 U.S.C. § 107.
9: See id.
10: See id. (noting the nature of the work is to be taken into account).
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All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
Tuesday, June 16, 2009
Comic Relief for a Dreary Tuesday
A friend of ours forwarded us this link, despite the obvious legal flaws, we did find it funny.
http://www.ubersoft.net/comic/hd/2007/08/annoyance-comes-bulk-orders-only
This raises an interesting question, if you could patent emotions (which I will tell you right now you cannot...seriously), since patents are referred to as "hard IP," versus copyright and trademarks being "soft," does that mean that an "emotional patent" would then be "hard/soft IP"? Or would it be "firm, yet yielding to the touch IP"?
Just spitballing here, carry on.
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All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
http://www.ubersoft.net/comic/hd/2007/08/annoyance-comes-bulk-orders-only
This raises an interesting question, if you could patent emotions (which I will tell you right now you cannot...seriously), since patents are referred to as "hard IP," versus copyright and trademarks being "soft," does that mean that an "emotional patent" would then be "hard/soft IP"? Or would it be "firm, yet yielding to the touch IP"?
Just spitballing here, carry on.
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
Thursday, June 11, 2009
Happy June - I Think?
It's finally June and we finally have time again to write. Two interesting news stories this week.
1. Sweden Elects A "Pirate Party" Delegate to the European Parliament.1
Aside from the very cool fact that these guys decided to call themselves the Pirate Party and are all about reduced internet surveillance and more free content, there is something else interesting here. Part of their platform calls for the abolishment of intellectual property rights (i.e., a dismantling of the patent system, and deregulation of copyrights, etc.). This is all well and good, except there's a major flaw to that argument. If people can't get protection for their inventions, it's a simple fact that people will steal them. In fact, people get protection now and others STILL steal them (hence patent infringement suits). Now call me a bit "Ayn Randian" on this one, but if a guy spends his time working to create some new great gizmo that makes our lives faster/better/stronger, etc, shouldn't be there be a reward? Likewise, eliminating trademarks and copyrights lends itself to serious abuses. I think the idyllic "no-IP" world is a good thought, but best left to classroom and bar debates. In practicality, there are enough people willing to steal another's music or images, mislabel their product with someone else's label or simply rip off another's patented (or patentable) idea because they can and leave the creator high and dry. If this segment of humanity didn't exist, then fine. But since that segment does exist, we have to protect our artists, our inventors and our businesses (ultimately protecting the public from thieves and misappropriators).
2. American Family Discovers Their Photograph Used as a Czech Ad.2
This one just makes me laugh. A Czech company used an American family's Christmast picture to advertise. This is a classic case of copyrighted material being misappropriated. The picture definitely meets the Feist standard of creativity and doesn't need to be registered (although the family talking about watermarking the picture for future use provokes further interesting questions). I can only imagine their shock when they found out the news. They probably should have asked for a stock photo fee (those can be quite significant!).
But seriously, this just goes to show you how ubiquitous web searching has become and how people don't always realize they are taking someone else's property. Fortunately, it sounds like the Czech company is doing the right thing by taking down the pictures and offering to send some kind of apology gift (along with an e-mail). Be wary the next time you Google Image Search (TM).
1: Free web Pirate Party captures seat, Yahoo.com News, http://news.yahoo.com/s/nm/20090608/od_nm/us_election_pirates (last visited June 11, 2009).
2: Mo. family Christmas photo turns up in Czech ad, Yahoo.com News, http://news.yahoo.com/s/ap/20090611/ap_on_fe_st/us_odd_card_photo_prague (last visited June 11, 2009).
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
1. Sweden Elects A "Pirate Party" Delegate to the European Parliament.1
Aside from the very cool fact that these guys decided to call themselves the Pirate Party and are all about reduced internet surveillance and more free content, there is something else interesting here. Part of their platform calls for the abolishment of intellectual property rights (i.e., a dismantling of the patent system, and deregulation of copyrights, etc.). This is all well and good, except there's a major flaw to that argument. If people can't get protection for their inventions, it's a simple fact that people will steal them. In fact, people get protection now and others STILL steal them (hence patent infringement suits). Now call me a bit "Ayn Randian" on this one, but if a guy spends his time working to create some new great gizmo that makes our lives faster/better/stronger, etc, shouldn't be there be a reward? Likewise, eliminating trademarks and copyrights lends itself to serious abuses. I think the idyllic "no-IP" world is a good thought, but best left to classroom and bar debates. In practicality, there are enough people willing to steal another's music or images, mislabel their product with someone else's label or simply rip off another's patented (or patentable) idea because they can and leave the creator high and dry. If this segment of humanity didn't exist, then fine. But since that segment does exist, we have to protect our artists, our inventors and our businesses (ultimately protecting the public from thieves and misappropriators).
2. American Family Discovers Their Photograph Used as a Czech Ad.2
This one just makes me laugh. A Czech company used an American family's Christmast picture to advertise. This is a classic case of copyrighted material being misappropriated. The picture definitely meets the Feist standard of creativity and doesn't need to be registered (although the family talking about watermarking the picture for future use provokes further interesting questions). I can only imagine their shock when they found out the news. They probably should have asked for a stock photo fee (those can be quite significant!).
But seriously, this just goes to show you how ubiquitous web searching has become and how people don't always realize they are taking someone else's property. Fortunately, it sounds like the Czech company is doing the right thing by taking down the pictures and offering to send some kind of apology gift (along with an e-mail). Be wary the next time you Google Image Search (TM).
1: Free web Pirate Party captures seat, Yahoo.com News, http://news.yahoo.com/s/nm/20090608/od_nm/us_election_pirates (last visited June 11, 2009).
2: Mo. family Christmas photo turns up in Czech ad, Yahoo.com News, http://news.yahoo.com/s/ap/20090611/ap_on_fe_st/us_odd_card_photo_prague (last visited June 11, 2009).
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
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