Cyberlaw Central

Happy New Year to all my loyal readers! You know who you are, and how much I appreciate your comments. I’ve truly enjoyed keeping up the blog and the interesting people I’ve met along the way.

I hope to become YABHTU in the new year, my tablet should arrive next week. I’ll post about my experiences, both good and bad. The model? The Acer Travelmate C200. It’s got the three important things for me – small size, low weight, and good value for the money. We’ll see how it lives up to my expectations.

See you all in the New Year!

I am looking forward to the new year, in which I plan to get a laptop to replace my older, luggable device. The question is, will I become Yet Another Blissfully Happy Tablet User (”YABHTU“)? Whenever I get together with other bloggers, I am always impressed with the additional functionality of the tablet design and the numbers of people that are switching to tablets. I think I’m more interested in a convertible versus a slate right now.

I’ve got my eye on three tablet models right now:

If any of you are currently YAHBTU, please let me know what model you use, and what you like or don’t like about it. You can either leave a comment here, or email me at cyberlawcentral (at) gmail.com. I look forward to your comments!

The Seventh Circuit ruled yesterday in the case BMG Music v. Gonzalez, which involves a claim of fair use for songs downloaded from the peer to peer file sharing system, KaZaA. The district court had granted summary judgment to BMG, awarding $22,500 in statutory damages and an injunction against further infringement. Gonzalez then appealed to the Seventh Circuit.

Although Gonzalez downloaded more than 1,370 songs, the subject matter of the case is actually thirty songs that Gonzalez confirmed that she could not prove ownership of legitimately distributed copies for (i.e. she owned the CDs). How many more of the approximately 1,340 that remained she actually owned is disputed.

Her claim was that she intended only to sample music before buying it, and that this action constituted fair use under copyright. The Court went through the fair use factors of Section 107, ultimately concluding that her conduct did not constitute fair use. She copied the whole work, in this case copyrighted songs. The Court also held that her downloading affected the market for legitimate artists to make a profit from their copyrighted works. Accordingly, it could not be fair use. Further, the Court went on to point out that *all* of the downloaded songs violated the statute, it does not matter that you already own the CD. The downloading is still an unauthorized distribution of a copyrighted work. Ultimately, the district court’s grant of summary judgment was affirmed.

This case will now be cited against defendants who claim their particular circumstances are sufficiently different enough from Gonzalez’s facts to merit consideration. However, the court’s reasoning that all copies from a peer to peer service are infringements will be difficult to overcome, I believe.

Gonzalez’s argument points out a common misconception about copyrighted works: that if you own one copy of the work, like on a CD, that you own the *song.* Actually, what you own is a particular *copy* of the song. Proponents of this misconception often use the rallying cry “How many copies of _[INSERT TITLE HERE]_ do I need to buy?” I know that I have personally purchased the original Star Wars movies multiple times, at last count I have three different VHS releases, plus now the “Special Editions” on DVD. At no time did I ever receive a “lifetime copy” of the film, instead my copies are limited to the life of the media. If they should be damaged I do not have the right to pull copies off a file sharing network, but should instead be on my way to the store.

For more discussion of this case, here are some good links:

My thanks to Evan Brown who asked me to be a guest on his InternetCases.com podcast to discuss the recent controversy over RSS Hijacking. I’ve written about hijacking here and here. Also interviewed is Rick Klau, the Vice President of Business Development for Feedburner. I was fortunate to meet Rick at Blawgthink 2005.

The podcast can be downloaded from this link: InternetCases.com December 7, 2005 Podcast

In my last post on RSS Hijacking, the views there are from the point of view of the podcaster. Lisa Vaas, in a followup to her first article, has written another article for eWeek. This time, she writes about the point of view of the alleged hijacker, in this case the Podkey redirection service.

Interestingly, this appears to be a “service” that someone signed up the podcast at question to. Since Erik Marcus’ first request to Podkey was to have the service cancelled, and Podkey complied, there is no longer any contact information available as to who did the registering. Of course, Podkey would prefer us to think that Marcus or his webmaster signed up for the service and then forgot about it. We’ll see how this plays out, but if Podkey can successfully argue that consent was obtained before this alternate feed was created, then the podcaster may have little argument to present. By deleting the contact information for Marcus, Podkey may have deleted the best evidence it needed for its own defense.

Colette Vogele has a great posting on her blog about the ongoing situation regarding the RSS hijacking of the podcast of Erik Marcus. This is also the subject of an article at eWeek. Briefly, a third party has created a URL that links to the official RSS feed from Erik’s podcast. This URL has been spread throughout podcast directories as if it were the official link to subscribe to Erik’s show. If someone subscribes to this feed, it does deliver the podcast, provided that the third party interloper maintains the link back to the official feed. Now, this third party has refused to maintain the link to the official feed without a monetary payment. To add to the problem is that ITunes picked up the interloper’s URL as the feed for Erik’s podcast, so anyone who uses that program as their podcatcher cannot get the show. Erik reports that his traffic is now down 75%.

Colette reports that she is still analyzing the problem to see what the best legal theory is to apply. She has a great quote on the subject of how difficult it is to apply legal theories to new fact patterns, read her article for it. That’s what makes this area of the law so much fun to me, knowing that the conduct is wrong and trying to explain why.

Looking now at the general problem, and not the specific facts in Erik’s case, my take is that alleging copyright infringement should work, at least for purposes of a cease and desist letter. Under Section 106 of the Copyright Act there are six exclusive rights of the copyright owner. The most important right here is the exclusive right to distribute copies of the copyrighted work. I would argue that the hijacking of the RSS feed interferes with the distribution right sufficiently to constitute infringement. Another right, only for sound recordings, is “to perform the copyrighted work publicly by means of a digital audio transmission.” Section 101, Definitions, defines a “digital transmission” as “a transmission in whole or in part in a digital or other non-analog format.” To “transmit” means to “communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.” Normally, this section would protect just the unauthorized playing of the copyrighted work, but since the RSS feed is the method of the digital transmission it could also constitute infringement to interfere with its normal operation.

Interestingly, although the RSS feed itself could be copyrightable by itself if it contains sufficiently original material, this method of infringement doesn’t copy the RSS feed itself. The interloper’s site just links to the existing feed which remains intact at the podcaster’s site. The interloper just acts like any other subscriber to the feed, making it difficult to detect.

There are other possible causes of action, but since this isn’t legal advice I shall not go into them here more fully. Suffice it to say it wouldn’t be my only cause of action I would allege in a complaint.

I would be curious to obtain other’s reaction to this hypothetical copyright claim.

UPDATED TO ADD: Lisa Vaas has written another article, this time from the point of view of the alleged hijacker.