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30 June 05.
Two interesting IP cases lately. One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses. The court clearly wanted to have Grokster nailed---forget any conservative-liberal split, the ruling was 9-0. As such, the ruling fits the bill, since Grokster really did take all the affirmative steps above. The next question, which will be asked by a multitude of courts, is of course when advertisement or offhand comments in the source code are `clear expression or other affirmative steps taken to foster infringement'. That other lawIt might be worth looking at the history of the comparable evil of the Digital Millenium Copyright Act, which has been around for about five years, including assorted initial approvals by assorted courts (excluding the Supreme Court, which never heard a DMCA case). The idea is that if one party has a `copy protection scheme' in the interface of their device, which is implemented by any sort of software, then anyone who works out that copy protetion scheme is trafficking in a circumvention device, which is a felony.The copy protection schemes claimed have been pretty lame. Lexmark's printer cartridges include a 55-character long program which is required for the cartridge to be compatible with its printers, so when a competitor worked this out and put the same program on their cartridge, Lexmark sued under the DMCA. The other fave example is Chamberlain, which makes garage door openers whose remote controls send the number of times the button has been pressed and a code to the opener, which then verifies both figures. This, Chamberlain claims, is a copy protection scheme. Lexmark and Chamberlain haven't gotten much respect. Chamberlain was laughed out of the California District Court, and Lexmark scored a win on the first level but has lost every appeal since, including its request that the Supreme Court hear its story. What I'm getting from this is that the courts finally worked it out. These are absurd abuses of a badly written law, and they're not getting any sway. The next guy who claims that her dongle is a copy protection scheme will have some tough precedents to explain away. But it's been five frigging years. Lexmark v Static Control is _still_ in court [The Supreme Court only denied cert on the preliminary injunction. The District Court trial hasn't taken place yet.] The questions about where the line is to be drawn on real live encryption schemes is still basically unexplored. That means researchers are sitting around waiting. Remember, it's a _felony_, and at least one person has actually spent a month in jail for writing software. I expect that the Supreme ruling on MGM v Grokster will follow the same course as the DMCA. Over the course of the next several years, the various courts will hear cases about various points on the spectrum between blatant `use this to steal' advertising on one end and cdrecord's manual page example about copying audio CDs on the other. ["To copy an audio CD in the most accurate way, first run cdda2wav dev=2,0 -vall cddb=0 -B -Owav and then run cdrecord dev=2,0 -v -dao -useinfo -text *.wav". Is that "clear expression or other affirmative steps taken to foster infringement"?] Where will the line be drawn? I have no idea. The optimist in me hopes that it'll be somewhere reasonable and that my software won't be crippled. But my guess is that Jörg Schilling has already deleted these instructions, and next time I `upgrade' my copy of cdrecord it will have a less informative manual. A lot depends on the test cases. The famous technique for collecting royalties on a patent, for example, is to sue pornographers first. Most will just pay, `cause they're small businesses who can't afford a big ol' legal battle. Maybe one will fight, but will look bad in court no matter how expensive the outfit. Once they lose, a precedent is set which facilitates suing everybody else. The DMCA followed a similar course, where the defendant in the test case that really ratified it under the law was 2600: the hacker quarterly. Doesn't matter how 733t they may be among their peers; they looked like scum to the Circuit Court, and now everyone else in the USA is living with the consequences. Similarly, Grokster is not the most honest business around, and everyone with an MP3 player may wind up worse off for it. Faster, pussycourt! Kill that bill!Five years of bickering over the details is all business as usual for the legal system. The Supreme Court hands down a vaguely-worded decision which may stand for over a century, while lower courts make minor fixes and changes to keep the ruling fresh. If the Supreme ruling was more detailed, the lower courts would need to manage in a less flexible framework, for what could be a very long time.Pregnancy today will look a lot like pregnancy a century from now, so the Supremes have every reason to write as robust yet flexible a law as possible to dictate what a pregnant woman may or may not do. If the Court writes a law which takes a few decades to get hammered out in the lower courts but is a good law for eighty years after that, then maybe the years of growing pains would all be worth it. The Supreme Court is writing laws for the long haul. But, as much as I hate this cliché, technology really _does_ move faster. I have no clue what our music-playing devices will look like a century from now and therefore no clue how they'll interface with the law. I can make this prediction with confidence, though: our concept of copyright law will have no resemblance to either Sony v Betamax or MGM v Grokster. Writing a flexible, sort of vague law for the sake of the long haul is a waste of time---the five years that encryption has entirely not advanced feels like an awful long time to anyone who deals with this stuff, and won't make the world a better place thirty years from now. One benefit is that, since nothing has changed [and since there are other laws that basically require that your encryption be weak enough that the FBI can snoop on you], the tools are pretty mature. Here's a video tutorial for getting the password to your neighbor's wireless Internet. Write your congresspeople and thank them for passing the DMCA and thus keeping encryption and decryption technology so stable for the last five years. I'm not entirely sure how the Supreme Court would go about writing a law that works out of the box and doesn't need five or more years of debugging. It would be a lot more precise, and would avoid the deliberate vagueness of laws about the unchanging human condition. It would require less heavy dependence on precedent, since software and steam engines really do have fundamental differences. It would be frequently revisited, even if not overturned. [I guess they're doing sort of OK on that count. Roe v Wade: 1973, not yet really revisited; Sony v Betamax: 1984, revisited 2005.] The problem with MGM v Grokster is that it's the old legal paradigm applied to a very different world, and the old paradigm has no interest in changing to accommodate the new. The other IP newsis neatly reported at this blog. Nike, which has spent decades being made fun of and ripped off by the counterculture, has ripped off the counterculture. If I were really a pundit, I'd say that this is a turning point on a lot of dimensions, both cultural and legal. Figure 1: I'm delighted to say that presenting these images falls under fair use. But instead, I'll try to reconcile Nike's action, which pisses me off, with all of the Adbusters-type stuff which reworked Nike graphics and which I always thought was dumb but OK. One would think, on first blush, that if it's OK for the counterculture to make fun of Nike, then the reverse is also true. The basic premise of trademark law (not copyright) is that it is intended to prevent actions which would create confusion in the marketplace. If the average consumer can tell the difference between Strabuck's little green circle logo and J. Cutterbuck's little green circle logo, then all is well and good; if they can't, then J. Cutterbuck is being dishonest. [I was in Taiwan a few months ago, and every last coffee shop had a green circle logo of some sort. Oh, some were brown circles with an SBUX typeface.] From the confusion-in-the-marketplace perspective, Adbusters ripping off Nike and Nike ripping off Minor Threat are very different things, because a reasonable consumer would never think that Adbusters has finally cut a deal with Nike. But with the Pixies touring and Devo's anti-consumer songs selling Target lamps, a not-braindead consumer may actually believe that Nike is in a cooperative venture with Minor Threat's label. Copyright and trademark are of course different things, and the intent of copyright has little to do with confusion in the marketplace. Both Adbusters' coopting Nike's swoop and Nike coopting Minor Threat's album cover are violations under the letter of copyright law. But one can think of any copyright as a sort of informal trademark, because if two works are close enough to be recognizable, then the consumer of both will make an implicit association. If the implicit association is false, then the copying party is being dishonest (which differs, of course, from breaking the law; this part is my opinion of how the law should look). But nobody who can read and chew gum at the same time thinks that Fox was OK with Al Franken's Lies and the lying liars who tell them: A fair and balanced look at the Right (amusing court transcript), even though the phrase "fair and balanced" is indeed a Fox trademark. Nor would a not-brainded consumer think that the estate of Margaret Mead was OK with The Wind Done Gone. [This case plus a few too many annoying fees was why I closed my SunTrust account.] To give another famous example, a certain Mr. Bikram has a copyright on a sequence of yoga moves. Thanks to his testicular magnitude, he has been happy to take a number of yoga studios to court over his copyright. They all settled out of court in confidential settlements---including one group which was explicitly seeking an open settlement. But according to this informal source (which I've made no effort to verify), the agreement is really about confusion in the marketplace. Go ahead and teach the sequence, but don't claim that it's Bikram brand yoga. It is my opinion that confusing consumers is a bigger problem for a functioning economy than loosely imitative or derivative works, for reasons I'll go into next time. I would love to see copyright move in the direction of barring implicit dishonesty in marketplace confusion, and away from outlawing simple imitation. That means that when the corporate world coopts the counterculture, it's a sin entirely not-comparable to that of the counterculture coopting corporate graphics.
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