Intelectual property issues

*Packingham* And The Public Forum Doctrine Part I: Implications For Copyright.

On Monday June 19, the Supreme Court issued two significant First Amendment decisions. Most of the press attention went to Matal v. Tam aka “The Slants'” case. But the far more significant case for my little neck of the woods was Packingham v. North CarolinaBecause Packingham focused on criminal law, and did not have anything to do with the Washington Redskins keeping or changing their name, it garnered relatively little attention. But Packingham has much more importance for the future of the First Amendment online by recognizing the primary First Amendment right of subscribers to access broadband platforms and content. Indeed, Justice Kennedy’s paean to the Internet as the modern public square echoes themes from the more “Madisonian” view of the First Amendment expounded by scholars such as Cass Sunstein (and prompted alarm from Alito, Roberts and Thomas in concurrence).

 

This has significant implications for all the crap the Digital Millenium Copyright Act (DMCA) has done to make it easy to kick users offline (and the whole future of “graduated response”/”3 strikes”) and the existing and fairly abusive notice and takedown regime (and efforts to extend it further). It may also have significant implications for the First Amendment argument over broadband, net neutrality and the future of regulation of online platforms such as Facebook, but I will save that for Part II.

 

I unpack all this below . . .

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President Obama Says Some Good Things About Net Neutrality and Intellectual Property.

Everyone likes to get mad at President Obama these days. So I figured I would briefly highlight some good things Obama said during this Town Hall Meeting last week while I was off doing the Jewish holiday thing. After the holiday, I saw an email with the subject: “Obama Talks About Net Neutrality & Intellectual Property.”

 

I am sufficiently weird that “Obama Talks About Net Neutrality and Intellectual Property” is probably the most irresistible clickbait headline for me that I can think of, so of course I was hooked.

 

Speaking of clickbait, more below . . . .

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Intellectual Property, Jewish Ethics, and Aaron Swartz

Last night, I participated in a panel discussion sponsored by the Jewish Study Center and the National Museum of Jewish Military History. Inspired by Aaron Swartz’s death, the panel was to discuss intellectual property in Jewish Law and Jewish Ethics.

 

I’m copying my speech below. I have elaborated a bit in this version for those not familiar with Jewish traditional sources. In particular, I need to emphasize that Jewish tradition does not regard “the sin of Sodom” as relating to sexual immorality. The “sin of Sodom” and therefore “the way of Sodom” disparaged by the Rabbis, refers to excessive love of wealth that causes cruelty and oppression (see this summary piece here). As Netaneal and Nimmer note in this article, the prohibition against behavior considered “the way of Sodom” acts to limit excessive copyright enforcement even for those who regard copyright as creating a form of property right in Jewish law. In my remarks reproduced below, I focused on the moral and ethical dimension of the prohibition on “the way of Sodom” rather than any practical application in Jewish copyright law.

 

Text below . . . .

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Tell Hollywood “Thou Shalt Not Put A Stumbling Block Before The [WIPO Treaty For The] Blind!”

Thou shalt not curse the deaf, nor put a stumbling-block before the blind, but thou shalt fear thy God: I am the LORD. — Lev. 19:14

In a few weeks, the 186 governments that are members of the World Intellectual Property Organization (WIPO) will gather in Morocco with the goal of ratifying the Treaty For The Blind — an agreement that would facilitate global production and lending of audio books and otherwise enable the visually impaired and those with certain learning disabilities to have access to printed material and visual works.  But last minute lobbying by Hollywood and publishing interests in the U.S. and Europe have threatened to derail the Treaty for the Blind at the last minute. Despite previously expressing support for the Treaty in the past, the Obama Administration is — surprise! — wavering in its support.

Why would the Obama Administration, or anyone else for that matter, throw the blind under the bus in favor of Hollywood and the rest of the IP Mafia, especially when the laws of the United States already comply — or go beyond — what the new Treaty for the Blind would require? Perhaps this Biblical verse can provide an answer:

Do not take [campaign contributions from corporations and trade associations] for [campaign contributions from corporations and trade associations] blind the eyes of the wise and twist the words of the righteous. Deut. 16:19

As we all know now from long experience, the Obama Administration can do the right thing when they get pushed hard enough. So remind the Administration: Thou shalt not put a stumbling block before the [Treaty for the] Blind. Please sign this We The People Petition telling the Obama Administration to side with the blind, not Hollywood and the rest of IP Mafia.

Click Here To Sign Petition

More details  below . . .

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SOPA Blackout, One Year Later

A number of folks are celebrating the one year anniversary of the Great Sopa Blackout as Internet Freedom Day. I’m glad, because it deserves celebrating and remembering.

In the first place we ought to remember how the broader Internet community came together and shifted SOPA from “unstoppable” to “dead” in a week. As I noted at the time, the cynical “will have all manner of sensible explanations for what ‘really’ happened and why what we did didn’t ‘really’ make a difference.” As time goes on, and it turns out that corruption continues to corrode our political system, the siren call of the cynics likewise corrodes the will to resist despite the evidence of our own experience. It’s important, therefore, to remember what we achieved and to realize that we can therefore achieve it again.

Nor was SOPA the one-time event some seem to believe. True culture change takes time and persistence. SOPA/PIPA was not an aberration, it resulted from the normal way of doing business in Washington, where legislators and policymakers treated copyright and Internet issues as industry food fights, brokering backroom compromises between lobbyists without concern for the public or the public interest. So yes, CISPA passed the House — after Republican House leaders rushed the vote to outrun public protest. But as I observed at the time, this was a sign of weakness, not strength. Despite industry buy in, public resistance from the “Internet constituency” killed the bill in the Senate.

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In case you wondered just how much the EU hates ACTA . . .

As we get ready for the World Conference on Information Technology (WCIT) of the International Telecommunications Union (ITU), a number of governments and governmental bodies are passing resolutions and doing other stuff to get their positions out there as part of the pre-game show. Last week, the Parliament of the European Union passed a resolution directed at the WCIT which, among  other things, “Supports any proposals to maintain the current scope of the ITRs and the current mandate of the ITU; opposes any proposals that would extend the scope to areas such as the internet, including domain name space, IP address allocation, the routing of internet-based traffic and content-related issues.”

Obviously, given my previously expressed concerns about the potential impact of expanding the ITU’s jurisdiction to the Internet, I think this is excellent news. It also clearly demonstrates that concern about expanding the ITU’s jurisdiction in this area is by no means limited to the United States or motivated from a hostility to the United Nations or global coordination. But that is not actually what I wanted to talk about.

I just wanted to briefly note how the debate around the ITU and WCIT illustrates just how much the EU (and others in the world) have come to hate ACTA. No, ACTA has nothing whatsoever to do with WCIT, although I understand that the folks at the ITU — in what can only be taken as a fine irony — apparently invited the media folks who developed ACTA and SOPA/PIPA to coach them on public relations. Nevertheless, for folks in Europe, ACTA has become the archetypical awfulness that could befall the Internet without constant vigilance. Thus, the President of the European Socialist Party denounced the WCIT for its “secretive processes” similar to the negotiation of ACTA and warned that the ITU would use the WCIT to “allow ACTA by the back door.”

Leaving aside that “ACTA by the back door” sounds like something available at a certain clubs in Berlin or Amsterdam for 10 euros (15 for a side of SOPA/PIPA), I just want to emphasize how very, very much the entire process and substance of ACTA is now despised in Europe. ACTA has essentially become code for “special interests in private trying to destroy Internet freedom.” Despite brief signs that USTR might actually be getting a clue on this last summer, more recent USTR activity shows they are still utterly intent on replicating every mistake they made with ACTA in negotiating the TPP.

I am not sure how many times USTR has to screw up international trade negotiations before they stop taking orders from Hollywood. But if USTR and Hollywood think the hostility to ACTA and SOPA/PIPA are just gonna blow over and they can go back to business as usual, they really need to think again. The fact that opponents of WCIT are scoring points in Europe by comparing it to ACTA is only the latest anvil to drop on USTR’s clueless noggin as a warning to stop trying to use agreements to promote trade to policy launder Hollywood’s copyright maximist agenda.

Stay tuned . . . .

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Book Review: Year Zero By Rob Reid

Every now and then, a book becomes the catalyst for a social movement. Off all the books on the same theme, the author somehow manages to bring together the threads of compelling narrative and graphic imagery that captures the growing tide of moral outrage and gives it shape and voice. Rachel Carson’s Silent Spring. Ralph Ellison’s The Invisible Man. Upton Sinclair’s the Jungle. Could Rob Reid’s Year Zero join this mighty literary pantheon, rousing the American people against the forces of copyright maximalism that keep trying to choke our freedom of expression?

 

Almost certainly not. But even if Year Zero won’t motivate you to join the U.S. Pirate Party, it will entertain you while educating you about how messed up our system of copyright law (and patent) have become, and introduce you to the stable of music labels, lawyers and lobbyists who work so hard to make it that way. Reid provides a satire in the science fiction/fantasy tradition of Gulliver’s Travels and Idiocracy that will make you laugh and wince at the same time. Those already all too familiar with the current sorry state of affairs will have the additional fun of guessing the real identities of Reid’s thinly disguised characters.

 

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USTR “Limitations and Exceptions” Proposal Laughably Weak; Time To Get Biblical (Prov 22:15) On Their Ass.

Back in the beginning of July, the USTR made a major policy and rhetorical shift by actually acknowledging the importance of “limitations and exceptions” in copyright. As I noted at the time, this represented a major victory for opponents of copyright maximalism given the USTR’s previous refusal to even acknowledge the validity of limitations and exceptions. While applauding USTR’s positive change in direction (always make it easy for people to agree with you!), I also noted that this change was the direct result of ACTA crashing and burning and the recognition by USTR that any trade agreement must “at least pay lip service to the vital role of limitations and exceptions in the copyright ecosystem” if it expects ratification. So while this concession created opportunity to start turning back the endless erosion of personal rights by the incoming tide of copyright maximalism, I warned that “the actual language of the treaty might still undermine limitations and exceptions in practice while pretending to acknowledge their importance on the surface.” Accordingly, it would still fall to civil society to “help USTR move down the path of wisdom by refining the text” and prevent it from backsliding into its previous position that “limitations and exceptions” is just a fancy way to say piracy.

Last week, the USTR proposal got leaked. Unsurprisingly, it turns out USTR still needs some hand-holding and education on what it genuinely means to embrace the value of limitations and exceptions. Rather than get angry, however, we must approach USTR with the kind of “tough love” advised by Proverbs 22:15. Or, in other words, we just need to get Biblical on their ass — again.

I explain below . . . .

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If I were the MPAA . . . How I Would Deal With My Car Break-In.

My family and I got back from our annual vacation in the Current Middle Ages last Friday morning around 2 a.m.  Exhausted from the trip, I forgot to take in my iPod and left it visibly displayed on the front seat. When I went out to the car the next morning, I found the passenger-side window broken and the iPod (along with some other items in the front seat) stolen. I called the police, and an officer came out to take my report. He was properly professional and sympathetic. He informed me that the chief tool available was a database that pawnshops must maintain of any electronic devices that are pawned. If the serial number on my iPod came up in the database, they would nab the felon. Otherwise, though, there wasn’t much hope. The officer also advised me that there had been some similar incidents in the general neighborhood and that the best way to avoid having my car broken into in the future was to make sure that no electronics or charging cords were visible. I thanked him for his professionalism and advice and that was that.

 

Then I got to thinking, what if I were the Motion Picture Association of America (MPAA) or the Recording Industry Association of America (RIAA)? How would I handle the theft of my iPod and the advice from the police on how to avoid future break ins? Rather differently, as I explain below . . . .

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EU Parliament Rejects ACTA; USTR Starts To Get Clue, MPAA/RIAA Still In Denial.

Well, it’s been a fun week on the international trade agreement front. Monday began yet another negotiating round for the Trans-Pacific Partnership (TPP) trade agreement, this time in San Diego. To the amazement of everyone, the U.S. Trade Representative (USTR) announced on July 3 it would now include a provision in the intellectual property (IP) chapter recognizing the importance of “limitations and exceptions” to copyright and embracing the international 3-part test for what constitutes suitable limitations and exceptions. (For those not familiar with this term of art, “limitations and exceptions” are things like Fair Use and and First Sale Doctrine in the United States. As the name implies, limitations and exceptions to copyright limit the rights of the copyright holder and create exceptions to the general rule against copying without permission.)

It is difficult to convey to people who don’t routinely deal with USTR and the copyright maximalists that dominate trade negotiations just how stunning a turn around this is, given the fairly well-established limitations and exceptions in U.S. law and the fact that — as USTR acknowledged in its announcement — the three-part test for what constitutes suitable limitations and exceptions is already well-established and incorporated into international law. Indeed, given all this, the incredible thing is that this is, as USTR acknowledges, the first time USTR has included any explicit reference to limitations and exceptions. In addition, as my colleague Rashmi Rangnath points out over at the Public Knowledge blog, while this is a positive step for USTR, we have not seen the new draft TPP text, so the actual implementation of these principles in the TPP draft could still be a major step backward from existing U.S. law.

More . . . .

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