Blog Ipsa Loquitur

Published on under Legal Theory

James Grimmelmann has published a paper on the whole Google Books saga. It’s called The Elephantine Google Books Settlement, and it’s available in PDF form now. He describes it thusly:

It’s an attempt to boil down the settlement into a single clear concept that makes sense of the whole thing: the settlement used an opt-out class action to bind copyright owners (including the owners of orphan works) to future uses of their books by a single defendant. This is not a piece of close legal analysis; instead, it’s an attempt at a big picture view of the legal issues raised by the settlement.

The abstract and related articles are available at his website. If you haven’t kept up with this stuff, this is a very accessible and enjoyable way to make yourself an authority on the matter. You’ll be the hit of your next cocktail party!

Published on under The News

Boing Boing on a Swiss study about the effects of pirating movies and music:

The independent study concluded that downloaders use the money they spend to buy more legitimate entertainment products. So they’ve concluded to maintain Switzerland’s extant copyright law, which makes downloading for personal use legal.

It’s short and links to the study itself, which is anything but neutral on the topic of downloading.


Published on under The News

Last week, I wrote about the Grooveshark lawsuit. The other day, ZDNet took a look at some of the emails included in the complaint that Universal filed against Grooveshark:

“We bet the company on the fact that it is easier to ask for forgiveness than it is to ask for permission,” [Grooveshark Chairman Sina] Simantob wrote in an email to Andrew Lipsher, a partner at Greycroft, a venture capital firm. “When EMI sued, everyone thought it is the end of the company. “Once EMI, Grooveshark settle … everyone said EMI was weak anyway, so the real Goliath to beat is [Universal Music Group]. Well, it took the boys a bit before they could re-group, but I think these guys have a real chance to settle with UMG within a year, and, by that time, they’ll be up to 35 million unique, and a force to be dealt with.”

…it is unclear here how Simantob’s apparent acknowledgement that Grooveshark intended to build a business on unlicensed music will affect Universal’s case. Nowhere in the emails included in Universal Music’s exhibits does Simantob mention piracy or illegal file sharing.

Read the rest of the article – there are plenty more emails where that came from, and they’re all interesting reading.

But these exhibits are hardly the smoking gun Universal’s going to need to get around Grooveshark’s safe harbor defense I banged on about last week. While they might demonstrate some sleazy business practices, talking about having so many customers (35 million) that taking a slice of the pie would be more valuable than burning the pie isn’t illegal. I don’t see how that’s evidence of infringement.

If this is all Universal has, Grooveshark’s not in such bad shape. The safe harbor provision is probably going to protect them like it protected YouTube. General knowledge of infringing activity by users wasn’t enough there, and if general knowledge is all Grooveshark’s got, they’re in much less shaky ground than they could be.

YouTube’s got a lot more going for it than clips of the Daily Show, though. People upload videos that they’ve made, not just ones they copied from TV. Grooveshark, on the other hand, has a lot fewer non-infringing uses. Later this weekend, I’ll write a bit about the DMCA (where the safe harbor provision comes from), contributory copyright infringement, and how those work with the “substantial non-infringing uses” defense that saved Sony in the Betamax case.

Published on under The News

Professor Susan Crawford, of Cardozo Law School and about a million other great places:

So now what we’ve got is no competition and no regulatory oversight. Wireless is not substitutable for the kind of wireline Internet access that Comcast and TWC can provide. These are two separate enormous markets, each controlled by a couple of mammoth players. What’s at stake? Everything about the future of information in America.

She calls the blog post “Smug and Chagrined,” which is how she feels as she watches Comcast and Verizon carve up the market like so much roast beast. Smug for having called it, and presumably chagrined for watching the internet service market cornered by a limp-wristed version of a trust.

I’ll be preordering her book on this whole mess, and probably sob quietly as I read it.

Published on under The News

O’Reilly, better known as that company that sells nerdy books with animals on the cover, has an open letter to one of the sponsors of the PROTECT IP Act:

The idea of a “private right of action that would allow rights holders to enforce directly violations of their intellectual property rights” is abhorrent to U.S. law. What is basic to U.S. law is not IP rights but the oversight of the courts. If someone were to attempt to murder me, a much more serious (if less economic) crime than copyright violation, I would not have the right to pursue remedies outside of the court system. That’s revenge, and while we may glorify revenge in our pop culture, it’s important that it’s illegal.

But that’s precisely what SOPA and PROTECT IP are proposing: remedies to copyright violation that never come under the scrutiny of the legal system. I don’t understand at all why Blumenthal says that he tried to balance “protecting freedoms” against “protecting legitimate commercial, economic and safety considerations.” “Counterfeiters and thieves” may not be allowed to disobey copyright laws, but they certainly do get their day in court.

There are a lot of people who’re a lot smarter than me writing really intelligent things about how stupid SOPA and PROTECT IP are. This is one of them. Please go read the rest.

Published on under Irreverently Irrelevant

The Verge on HBO’s decision not to offer streaming services, and to stick with tried-and-true Cable TV delivery only:

[HBO co-predisent Eric] Kessler explained he thinks cord cutting is more of a temporary phenomenon that will go away when the economy improves, and that partnering with cable and satellite providers allows it to avoid transaction costs.

“That business model we have? It’s totally fine. That internet thing? Oh, it didn’t change the delivery of media that much. Demand falling for old media? Just a temporary hiccup. They’ll come crawling back.”

Seriously, man. People are going to watch your shows online whether you want them to or not. Do you not want to make any money online, or are you just convinced you can somehow stop the digital tide? If it’s the former, more power to you. If it’s the latter, I’ve got a bridge to sell you.