Copyright War Summit Report: Recording Industry vs. The People

Recording Industry vs. The People, presented by attorney and author of the blog Recording Industry vs. The People, Ray Beckerman
Beckerman discusses how the RIAA has proceeded in their law suits thus far, highlighting the biggest problems with the RIAA's tactics.  Some of these problems include: unlicensed investigators, insufficient evidence, and violations of various rules governing Federal Court procedures (Federal Rules of Civil Procedure). 

Most interesting is the missing proof of registration.  Under US copyright law, registration is not required for copyright protection, but it is required in order to recover statutory damages in an infringement case.  Most RIAA cases settled, and for the few that went to court, none investigated the required registrations.  But it looks like that’s about to change in the new Thomas retrial.

Another surprising element to the RIAA cases (or not-so-surprising, depending on how you’re looking at it) is that the RIAA has not gone after anyone who has used bitTorrent types of services.  Hmm… seems to me that’s like only chasing after pirates who don’t have boats.

If you’re interested in the RIAA’s lawsuits, have ever downloaded  music or even ever thought of sharing music online, Beckerman’s presentation is well worth a watch.

Souter's Mark on IP

United States Supreme Court Justice David Souter announced last week that he will be retiring from the Court at the end of next month. Justice Souter authored several important opinions in the field of IP, including Markman, Grokster, and Campbell.

Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996) changed the face of patent litigation. Markman challenged the Court with the question of whether interpreting patent claims was a question of law or a question of fact. This is an extremely important question because in American court cases, questions of law are decided by the judge but questions of fact are decided by the jury. The Court in Markman held that the interpretation of patent claims was a question of law to be decided by the judge. This led to the development of mini-trials now generally referred to as Markman Hearings. During these hearings, the judge basically determines the meaning of the patent. Sometimes the judge's determinations may lead to a settlement of the case or the plaintiff dropping the case completely, because of how the judge has interpreted the claims of the patent at issue. The value and appropriateness of Markman hearings remain much debated issues. [Some views on Markman hearings here and here.]

MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), is the case that put an end to the popular post-Napster file sharing programs. Grokster, like Napster, was a program made for people to share files. However, in an attempt to avoid the same fate as Napster, Grokster allowed file sharing without owning or running any of its own servers. Grokster was strictly peer to peer. However, in Grokster, the Court held that one who distributes a device or program with the object of promoting copyright infringement may be held liable for the resulting infringement by third parties. Thus, Grokster could be held liable for the infringement of its users. Like Napster before it, Grokster became a set of blue prints for the development of the next stage of file sharing software, eventually leading to BitTorrent and the recently litigated Pirate Bay.

Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) firmly established parody, whether commercial or not, as a fair use of copyrighted material. In this rather infamous case, publishing company Acuff-Rose claimed 2 Live Crew's rap song "Pretty Woman" infringed on their rights in the Roy Orbison hit "Oh, Pretty Woman." The Sixth Circuit had found that 2 Live Crew did commit copyright infringement because of the commercial nature of their song. The Supreme Court overturned this decision, saying that all of the fair use factors need to be considered, not just the commercial nature of the new work. Parody is considered as an aspect of free speech, something American jurisprudence holds in high regard. This case gets the best lawyering award because both Ippers and many scholars do not think Pretty Woman was actually a parody. But it was close enough that the legal argument won the day at the USSC.

Despite his simple lifestyle and his brief, rather uncontroversial, time on the Court, Souter has made a large impact on intellectual property law in the United States and the future of technology development in the country.

Are Human Readable Deeds the Solution?

There's been quite the buzz lately over Facebook's Terms of Service blunder.  One of the many responses to the debacle was a post on the Creative Commons blog entitled "The Value of Human Readable Deeds."  The post suggested that if Facebook had included human readable deeds along with their terms of service, the large misunderstanding by its users would not have arisen.

For those of you who are not familiar with Creative Commons licenses, each license includes three sets of deeds: human readable, machine readable, and the typical legalese.  The purpose of this is to ensure that everyone who needs to work with the license understands what it means, including the computer.

Now, don't get me wrong, I like Creative Commons and think their idea for using human readable agreements along with the standard ones is a good idea.  However, I also wonder if this is feasible.  What might it look like for companies such as Facebook to start using these types of multi-part license agreements?

Contract law issues: Obviously, an agreement between a company and its customers/users involves a lot of contract law.  Without trying to get too technical: If a customer reads the human readable part but not the legalese, is there a meeting of the minds, generally required for a contract to be valid? 

There's also a sort of I'm-a-dummy defense that can be used to show a lack of understanding between the parties if one side of the agreement is deemed not sophisticated enough to fully understand the terms to which they were agreeing.  As well as a kind of click-wrap defense that can be used in some situations where a computer user had to accept the terms in order to continue with a program.  What happens to these defenses?

Company Issues: Do the companies really want us to know what's in our terms of service?  In most cases, these terms of service are not in favor of the consumer, in any way.  Generally people accept it as the status quo and move on.  (The difference with the latest Facebook TOS could be that people realize these TOS concern their own content instead of their use of other people's content.)  In this respect, incorporating human readable deeds could be very beneficial to consumers by requiring companies to create terms that are more fair and balanced.  Companies should not be able to put one thing in their human readable deed and something else in their legal deed because that would probably constitute misrepresentation.

Carry-Over: If online and software companies using human readable deeds became the norm, Where else would the use  carry-over?  Rental leases?  Loan agreements?  Service agreements?  Would the general population develop an expectation of signing only agreements which contained a portion they could fully (and easily) understand?

And, of course the big question - What Will Hold up in Court?  (This question also relates back to the original concerns about contract law.)  The legalese of contracts developed over time because of the need for contracts to be very specific.  (Take a look at the difference in size between a human readable and legal code version of a CC-by license.)  The terms used in these contracts have specific meanings, either given to them by the law, or defined in the agreement itself.  Human readable deeds do not incorporate these terms of art.  This creates more room for misunderstandings. 

In general everyday practice, different interpretations of the human readable code will not matter much, but they will be huge when a disagreement involving one of these deeds goes to court.  How will the two versions of the agreement (human readable deed and legal deed) relate to one another?  What if one party says they were relying on something in the human readable section, but something in the legal section makes that interpretation unsound?  Would the human readable code be thrown out as un-important in deciding true legal obligations, or would it over-ride the legal code because it's what the parties truly agreed to?  There are many interesting questions about how this would play out in court, guess we'll just have to wait and see.