Jan 182016
 

The following was originally posted at The Daily Beast on 12/7/15. Later that day I also appeared on Al Jazeera TV to discuss the same topic.

I’m seeing a lot of friends and others who generally hang out near me on the left of the political spectrum express outrage at a recent vote in Congress to reject fixing what at first glance seems like a terrible loophole: People on the terrorist watch list can still buy guns. Even President Barack Obama, who called Sunday night for a law that would prevent people on a subset of the terror watch list from purchasing a firearm, is among this crowd.

Their outrage stems from the logical reaction, “If there are people we think are bent on doing us harm, why are we giving them easy access to the tools to do it?”

The concern is reasonable. The proposed remedy—to deny people on the watch list the ability to buy guns—is not, however. Not because it has anything to do with guns, but because it has to do with lists.
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Coke isn’t it, and why MTM v. Amazon is a trademark case to watch

 Analysis/commentary, Criminal IP Enforcement, Intermediary liability  Comments Off on Coke isn’t it, and why MTM v. Amazon is a trademark case to watch
Aug 152015
 

Earlier this year the Ninth Circuit Court of Appeals issued a troubling ruling in Multi Time Machine v. Amazon.com.  If allowed to stand this ruling will raise the risk for ecommerce and other online (and even potentially offline) businesses that their normal and reasonable operation might be found to infringe trademarks, even though such a finding would seem to be far beyond what the Lanham Act, which governs trademarks, actually allows.  In light of this unexpectedly and untenably heightened legal risk I filed an amicus brief at the Ninth Circuit on behalf of Rebecca Tushnet and other intellectual property professors in support of Amazon’s petition that this earlier ruling be reconsidered. Continue reading »

Dancing Babies, The DMCA, Fair Use And Whether Companies Should Pay For Bogus Takedowns (cross-post)

 Analysis/commentary, Intermediary liability  Comments Off on Dancing Babies, The DMCA, Fair Use And Whether Companies Should Pay For Bogus Takedowns (cross-post)
Jul 162015
 

Cross-posted from Techdirt.

Earlier this week the Ninth Circuit heard oral arguments in the appeal of Lenz v. Universal. This was the case where Stephanie Lenz sued Universal because Universal had sent YouTube a takedown notice demanding it delete the home movie she had posted of her toddler dancing, simply because music by Prince was audible in the background. It’s a case whose resolution has been pending since 2007, despite the fact that it involves the interpretation of a fundamental part of the DMCA’s operation.

The portion of the DMCA at issue in this case is Section 512 of the copyright statute, which the DMCA added in 1998 along with Section 1201. As with Section 1201, Section 512 reflects a certain naivete by Congress in thinking any part of the DMCA was a good idea, rather than the innovation-choking and speech- chilling mess it has turned out to be. But looking at the statutory language you can kind of see how Congress thought it was all going to work, what with the internal checks and balances they put into the DMCA to prevent it from being abused. Unfortunately, while even as intended there are some severe shortcomings to how this balance was conceptualized, what’s worse is how it has not even been working as designed.
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Jul 072015
 

The following is cross-posted from Popehat.

There is no question that the right of free speech necessarily includes the right to speak anonymously. This is partly because sometimes the only way for certain speech to be possible at all is with the protection of anonymity.

And that’s why so much outrage is warranted when bullies try to strip speakers of their anonymity simply because they don’t like what these people have to say, and why it’s even more outrageous when these bullies are able to. If anonymity is so fragile that speakers can be so easily unmasked, fewer people will be willing to say the important things that need to be said, and we all will suffer for the silence.

We’ve seen on these blog pages examples of both government and private bullies make specious attacks on the free speech rights of their critics, often by using subpoenas, both civil and criminal, to try to unmask them. But we’ve also seen another kind of attempt to identify Internet speakers, and it’s one we’ll see a lot more of if the proposal ICANN is currently considering is put into place.

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Jul 022015
 

It would take many, many blog posts to fully articulate all the ways that modern copyright law threatens innovation. But one notable way is through Section 1201 of the copyright statute.

As discussed previously, Section 1201 is ostensibly supposed to minimize copyright infringement by making it its own offense to bypass the technical protective measures (TPMs) controlling access to a particular copy of a copyrighted work. (Sometimes these sorts of TPMs are referred to as DRM, or Digital Rights Management.) It is a fair question whether forbidding the bypass of TPMs is at all an effective approach to minimizing infringement, but it’s an even more important question to ask whether the portion of the copyright statute that forbids the bypassing of TPMs does so at the expense of other sections of the statute that specifically entitle people to make certain uses of copyrighted works.

The answer to this latter question is clearly no, and in fact Congress anticipated that it would be “no,” when it put into Section 1201 the requirement that the Copyright Office consider afresh, every three years, whether certain types of TPM bypassing should be deemed specifically permissible, notwithstanding Section 1201’s general prohibition against it. Unfortunately these triennial rulemakings are an extremely cumbersome, expensive, and ineffective way of protecting the non-infringing uses of copyrighted works the public is entitled to make. But the even bigger problem, and the one that I will focus on here, is that Section 1201’s prohibition against bypassing TPMs is increasingly standing in the way of not just non-infringing uses of copyrighted works but non-infringing uses of computing devices as a whole.
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The unfortunate Oracle v. Google redux

 Analysis/commentary, Criminal IP Enforcement  Comments Off on The unfortunate Oracle v. Google redux
May 272015
 

This is not the first time I have written about this case, but with any luck it won’t be the last because hopefully the Supreme Court will agree to review it and reverse the Federal Circuit’s unfortunate (and statutorily-questionable) ruling finding that software APIs could be subject to copyright.

Unfortunately the odds of the Supreme Court even taking up the case this may have dropped this week following the submission of a brief by the Solicitor General to the Court urging it not to (the brief is embedded at the bottom of this Techdirt post). In this brief the Solicitor General, acting on behalf of the Obama Administration, stated its belief that the Federal Circuit had been correct in the first place and that there was no need for the Supreme Court to revisit its analysis.

This brief is itself unfortunate, in part because its analysis is fairly incomplete (ignoring relevant precedent) and under-theorized. There’s always tension in copyright law between the idea-expression dichotomy. In other words, while expression can be copyrighted, ideas cannot be (for good reason), and it can be difficult to figure out which side of the copyrightable line certain types of works, like software (or their APIs), fall on. Unfortunately the government’s brief sheds little light on how these sorts of difficult questions should be resolved, or why.

It’s also unfortunate that the view in support of the Federal Circuit’s ruling is the government’s view. One would hope that the US government would support the statutory interpretation that most promotes innovation. Unfortunately that is not the view of the Federal Circuit, which in fact tends to run counter to an innovation-promoting policy goal. To further explain why this is so I am cross-posting the article on the subject I wrote last year for Al Jazeera explaining why the Federal Circuit’s interpretation of copyright law with regard to APIs is so destructive to future innovation.
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Mar 242015
 

A few months ago an advisory committee for the California State Bar promulgated an interim ethics opinion addressing when lawyers’ blogs should be subject to applicable bar rules governing lawyer advertising.

The impetus behind having bar rules addressing lawyer advertising is generally a reasonable one. The nature of the lawyer-client relationship, the relative imbalance in their respective expertise, and the stress inherent with the sort of situation that would require a lawyer’s assistance makes it important to ensure that lawyers are not misleading or overly aggressive in their solicitation of business. The applicable bar rule regarding lawyer advertising in California is also not especially onerous (although the same may not necessarily be said about similar rules in other jurisdictions).

But a blog is speech, and applying regulation to speech is something that constitutionally can only be done in very limited ways and in very limited circumstances. Yet there is nothing limited about this recommendation. It promulgates a standard that would ultimately catch many, if not most, legal blogs in the California bar’s regulatory net, despite it being unnecessary and chilling to speech that should be beyond government’s reach.

It’s also simply not a good idea that serves the public interest.
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Mar 152015
 

I was asked by someone to comment on an opinion article lambasting the recent FCC action to regulate Internet broadband under Title II. Some of the rhetoric surrounding Net Neutrality is so polarized, he observed, that he couldn’t tell fact from hyperbole and was hoping I could demystify what is going on. As I started writing down my thoughts, they began to take the shape of a blog post, which follows here.

The infrastructure allowing people to connect to the Internet is, by and large, in the hands of a few private commercial entities who have figured out that it might be profitable for them to prioritize certain network traffic over other traffic if those originating this content pay them for this prioritization. The worry here is that content prioritization inherently also amounts to content discrimination. If this practice is allowed to continue, such that the only content Internet users can effectively access is that which is produced by moneyed players able to pay for its prioritization, all the grassroots voices or start-up businesses that also depend on the Internet to have their content disseminated, but cannot afford to pay for the broadband carriers for it, will effectively be drowned out.

Of course, not everyone believes that this sort of scenario is something to get worked up over, and this view shows up in the net neutrality debates. But increasingly the attitude of “Net Neutrality? Who cares?” seems to be largely marginalized. Public opinion (especially ever since the John Oliver soliloquy) seems to be of the view that for the Internet to remain the valuable resource it is, entities providing access to it should allow for the transmission all content equally. President Obama has also come out publicly in support of this view, and at least the three FCC commissioners who ended up voting for the Title II classification appear to share it as well.

Essentially the debate has now moved from “should we have Net Neutrality?” to “how do we achieve Net Neutrality?” The problem now is, though, that while we may want a free and open Internet, it’s not entirely clear how we get it.
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Google v. Garcia oral argument summary

 Analysis/commentary, Intermediary liability, Regulating speech  Comments Off on Google v. Garcia oral argument summary
Feb 212015
 

Back in December I traveled to Pasadena to observe the oral argument in the en banc appeal of Google v. Garcia, a case I filed an amicus brief in on behalf of Techdirt and the Organization for Transformative Works. (Actually, I ultimately wrote two briefs, one in support of the en banc appeal being granted and one as part of the appeal once it was.) After the hearing I wrote a synopsis of the arguments raised during the appeal on Techdirt (originally titled, “Celine Dion And Human Cannonballs“), which I’m now cross-posting here: Continue reading »

The NSA and the Fifth Amendment

 Analysis/commentary, Privacy from government  Comments Off on The NSA and the Fifth Amendment
Sep 162014
 

In addition to the amicus brief in Smith v. Obama, a few weeks earlier I had filed another one on behalf of the National Association of Criminal Defense Lawyers in Jewel v. NSA, another case challenging the NSA’s telecommunications surveillance.

Unlike Smith v. Obama and other similar cases, which argued that even collecting “just” telephonic metadata violated the Fourth Amendment, in Jewel the surveillance involved the collection of communications in their entirety. It didn’t just catch the identifying characteristics of these communications; it captured their entire substance.

The Electronic Frontier Foundation originally filed this case in 2008 following the revelations of whistleblower Mark Klein, a former tech at AT&T, that a switch installed in a secret room at AT&T’s facilities were diverting copies all the Internet traffic passing through their systems to the government. This, the EFF argued in a motion for summary judgment, amounted to the kind of “search and seizure” barred by the Fourth Amendment without a warrant.

Like in Smith v. Obama, this surveillance necessarily implicates the Sixth Amendment in how it violates the privacy of communications between lawyers and their clients. But because the surveillance involves the collection of the content of these communications it also inherently violates the Fifth Amendment right against self-incrimination as well. Continue reading »