Category: Intellectual Property

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What’s the Analog Hole worth? Twenty-Four Cents

audioports.jpgI’ve overstayed my welcome, so I’ll be signing off with this post. Thanks to Dan and the other permabloggers for letting me participate.

Point a video camera at a television screen, aim a microphone at a speaker, or run a cable from the “line out” to the “line in” ports on the back of your computer, and you’re ready to exploit the so-called analog hole. Just press “play” on one device and “record” on the other, and you can copy a movie, television show, or song, even if the original is supposedly protected by digital rights management technology designed to prevent copying.

The analog hole–which arises from the fact that relatively-easy-to-protect digital content must be converted into harder-to-protect analog signals if we humans are to see or hear them–has given Hollywood and the recording industry a fair amount of heartache, has led them to displays of public consternation, and has even resulted in some proposed legislation.

Despite its frequent appearance in DRM debates, the analog hole is suprisingly unexplored in legal scholarship. Westlaw’s JLR database contains a mere thirty-seven articles that use the phrase, most in passing, and SSRN returns only three hits. Most of the commentary relies on an empirical assumption that has never before been rigorously tested: Exploiting the analog hole creates copies of such low quality as not to be good substitutes for the originals.

Doug Sicker, an Assistant Professor of Computer Science at my University, together with Shannon Gunaji, a grad student, have tried empirically to test this assumption by conducting a series of surveys assessing, among other things, what the analog hole means for the typical music consumer. Doug asked me to help bring the early results to the legal academy, and our little article, entitled The Analog Hole and the Price of Music: an Empirical Study, has been posted to SSRN and will appear soon in the Journal of Telecommunications & High Technology Law.

Our results after the jump.

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Microsoft, Google, and Copyright Scofflaws

I saw in Michael Geist’s BNA newsletter that Tom Rubin, Microsoft’s Associate General Counsel, will accuse Google of having a “cavalier” attitude towards copyright in a speech to the Association of American Publishers. FT.com has a preview of the speech, and WSJ online has the text available to subscribers. I’ve only the read the FT.com preview (I don’t subscribe to wsj.com), but I’m curious how far Mr. Rubin’s speech will go to address the problem of online piracy.

Rubin describes Google as a copyright scofflaw, saying ““companies that create no content of their own, and make money solely on the back of other people’s content, are raking in billions through advertising and initial public offerings”. Rubin will apparently try to distinguish Microsoft from Google by offering to cooperate with content producers to eliminate piracy.

I wonder how far Microsoft is prepared to go in eliminating piracy from the online sites like YouTube. I went to Microsoft’s YouTube competitor Soapbox, and put in searches for “Mariah Carey” and “Ice Age.” Both searches turned up what I presume content providers consider infringement. If Microsoft is offering to police its site for infringement (presumably the behavior most respectful of copyright), they’ve obviously done a poor job. If they’re not prepared to go that far, then they must think that there is some less aggressive behavior that is a reasonable, appropriate response to the problem of user piracy. I hope and would very much like to see what Mr. Rubin’s company thinks is the right thing for sites like Soapbox to do. If Microsoft is not prepared to do everything content creators demand, it has to articulate a theory of what their obligation is. Otherwise, it looks like Microsoft is simply criticizing its more commercially successful rival.

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Stanford and Cal Cooperate over Big Game

As a loyal Stanford alum, I don’t think I ever thought I’d see the day where Stanford and Cal would link arms over The Big Game. Thank goodness for the NFL, which has applied for a trademark on “The Big Game,” a title that has been applied for many decades to the annual football game between Stanford and Cal.

I’m hardly the first to think that the NFL’s behavior is ill-advised and heavy handed. A quick Google search turns up blog after blog making fun of the NFL’s behavior. That having been said, I’m curious…..Is there anyone other than NFL counsel who’s out there supporting this behavior or the asked-for result?

The NFL’s explanation is that they want to stop people from piggy-backing on the goodwill of the Super Bowl — you know, selling TV’s for “your big Super Bowl party.” In the story linked to above, the NFL says it sells sponsorship rights to Samsung, and suggests that the value of those rights would dissipate if they didn’t get the trademark. I’m a little surprised that someone isn’t defending this outcome as “correct” because it allows internalization of all social value from the Super Bowl to the NFL, thereby giving the NFL the proper market signal to invest in putting on its annual extravaganza. Perhaps I’ve missed it? Heaven knows I don’t read the whole blogosphere. Or, has the NFL taken us past the limits of the “internalize all externalities” policy?

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The Professor Exception and Work Made for Hire

A minor puzzle in copyright, but one of interest to faculty, is the continuing vitality of the so-called “professor exception” to the work made for hire rule. In a nutshell, the 1976 Copyright Act gives copyright to the employer for any work prepared by an employee within the scope of his or her employment. Traditionally, professors have retained copyright to their works – particularly their scholarly books and articles. But, if professors are employees of universities and they are expected to write, how does this traditional retention of copyright survive?

I am wondering if the answer lies in a nuanced understanding of the agency test promulgated by the Supreme Court in CCNV v. Reid. In particular, no one considers a professor the agent of her university when writing scholarship. If I say something outrageous in one my articles, people do not think that I speak on behalf of Boston College, nor would anyone expect to hold the university responsible for what I say. Thus, while a professor is an employee of the university in a payroll sense, he is not the university’s agent for purposes of the work made for hire doctrine because he does not write as the university’s agent.

Contrast this with how people would understand things if I were to say something outrageous in an exam I give to my students, or if I were to act inappropriately in class. In those situations, I think people would correctly understand that I am acting on Boston College’s behalf. If I committed a tort against students in those contexts (intentional infliction of emotional distress?), students would reasonably expect recourse against the university. However, to make the point again, people do not expect recourse against the university if I libel someone in my articles.

It occurs to me that this distinction may help sort out some of the tricky issues surrounding materials authored by professors for distance learning or other web-related content. In those cases (perhaps material for a branded distance learning course) where the professor is truly creating material on behalf of the university, copyright goes to the university under the agency test. In other cases where the professor writes for himself, copyright stays with the professor. Of course, contracts or other employment policies could alter this outcome. Thoughts?

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More litigation about – you guessed it – Jennifer Aniston topless pictures

The latest lawsuit is on CNN:

A Hollywood movie studio filed a lawsuit claiming gossip blogger Perez Hilton posted a stolen topless photograph of Jennifer Aniston on the Web. Universal City Studios Productions LLLP filed the suit Tuesday claiming the stolen image was posted on the perezhilton Internet site by Mario Lavandeira, aka Hilton. The picture was allegedly “misappropriated and illegally copied” during production or post-production of the 2006 romantic comedy hit “The Break-Up,” starring the actress and Vince Vaughn, the suit said. . . . The suit seeks an injunction barring further distribution of the picture and requests a court order “directing the U.S. Marshal to seize” the copyrighted material from the 28-year-old blogger.

Dan S. previously blogged about the last Jennifer Aniston nudity lawsuit, which involved allegations of breach of privacy by a paparazzi photographer. (For his excellent and very popular post, see here). The allegations in this new suit look a lot less complicated — they seem to be plain vanilla misappropriation. But as we know around here, a lawsuit involving Jennifer Aniston nude will always draw (lots of) reader attention.

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Best and Worst Internet Laws

[Preface: I’ve already overstayed my guest visit, but before I go, I want to say thanks to the Concurring Opinions team for the opportunity to blog here, and thanks to all of you for the great comments and stimulating dialogue. A complete index of my guest blog posts. Meanwhile, I’ll keep blogging on technology and marketing law at my main blog and on all other topics at my personal blog. Hope to see you there!]

Over the past dozen years, the lure of regulating the Internet has proven irresistible to legislators. For example, in the 109th Congress, almost 1,100 introduced bills referenced the word “Internet.” This legislative activity doesn’t always come to fruition. Still, in total, hundreds of Internet laws have been passed by Congress and the states. This body of work is now large enough that we can identify some winners and losers. So in the spirit of good fun, I offer an opinionated list of my personal votes for the best and worst Internet statutes in the United States.

[Keep reading for the list]

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Pharmaceutical Law Symposium

I just wanted to invite readers in the greater NYC region to the Seton Hall Law Review’s symposium on pharmaceutical law tomorrow (Friday, Feb. 16). We’ve got some interesting panels lined up, and the general counsel of HHS (Daniel Meron) will be giving the keynote.

The Symposium will focus on how the FDA’s drug approval process affects public health, intellectual property protections, and the economy. Panels will explore the FDA’s role in determining whether a drug is safe and effective for its intended uses and how its approach addresses public health needs, affects research and development, and influences insurance coverage decisions.

We’ll also have a panel on global public health, including Terry Fisher, Shamnad Basheer, and me. My presentation, inspired in part by this Laurie Garrett article, will focus on the public health infrastructure necessary to assure the proper distribution of drugs in LDCs.

OA Wars and Rapid-Response Blogging

It’s a truism of the political process that no attack should go unanswered for more than a few hours. Bloggers on IP issues are getting the message, especially in the hotly contested area of open access to scientific and medical research. Currently many publishers of such articles can lock up access to them for decades–even if taxpayers paid for the underlying research. This situation has led to increasing calls for open-access publishing, and some legislative proposals.

The Association of American Publishers has launched a vigorous lobbying campaign in response, relying on dubious assumptions about the nature of the peer review process. The attacks have led to bizarre headlines like “Open-Access or Peer Review,” a false dichotomy if there ever was one. The author of that article reassures us that “although the people behind Federal Research Public Access Act have good intentions, the market is already doing its part to disseminate information as quickly and widely as possible.” Little if any attention is paid to exorbitantly priced journals, enormous science publisher profts, publishers’ potential irrelevance to an open-access peer review process, and how high prices and DRM can interfere with effective post-publication peer review and organization of data.

Fortunately, blogs like Peter Suber’s now provide almost instant responses to publishers’ efforts to derail open access to research publications. As part of Public Knowledge, Suber is doing a terrific job providing fair and thoughtful responses to industry lobbying. He has become a “must-read’ source for anyone writing on the OA issue.

The Commodification of Humiliation

cannonball.jpgThe revitalized Radar magazine has a great piece on “Prisoners of YouTube:” individuals caught on camera in various humiliating situations and exposed to countless views on websites. (The “Star Wars Kid” has apparently been viewed 900 million times…that may well be once or twice for everyone with ready access to the internet!) As Radar puts it,

Virtually every week has seen another private error or foolish moment datacast to the world. You could get in an argument with a stranger on a bus. Or you could disastrously try your hand as a sportscaster on a college station. Or you could accidentally shoot yourself. With 780 million camera phones sold worldwide in the last two years, no one is safe from senseless and random ridicule. The surveillance state we’ve been fretting about for so many years has snuck up on us. But it’s not concerned with political control. It just wants to see people screw up.

Recently a person dismayed by their virally-video’ed fame-gone-wrong wrote to me to ask about his legal options. I obviously wasn’t going to give legal advice on email, but he did get me thinking about potential legal recourse for these “victims of YouTube” beyond my initial reflections on “inclusion harm” in searches.

For example, imagine someone has been filmed in a “stunt” that makes them look reckless. And, say, dozens of sites that get the video (of uncertain copyright ownership) show it, and make some money off ads around it. Does the person “starring’ in the video have any right to demand a “cut,” as big film has been trying to get from YouTube (and as Euro-news outlets look to be on their way to getting in Belgium)?

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The Limits of Law & Econ in IP: The Case of Digital Music

Once again, the folks at Truth on the Market have celebrated the recording industry’s efforts to assure perfect control over copyrighted content via Digital Rights Management. Free marketeers like Tyler Cowen are beginning to question DRM as a tax on consumers, and even one of the big four record companies is considering abandoning it. Untroubled by such doubts, Josh Wright and Geoff Manne push for ever more latitude for the dominant platform (iTunes) and dominant content providers (the big four recording companies).

Their posts provide classic examples of what Reza Dibadj has called the key shortcomings of conventional law & economics (L&E) reasoning. As Dibadj summarizes,

[T]hree of the most basic assumptions to the popular L&E enterprise–that people are rational, that ability to pay determines value, and that the common law is efficient–while couched in the metaphors of science, remain unsubstantiated.

Let’s take a look at how each of these assumptions drives the TOTM approach to digital music markets.

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