March 31, 2004
Time to Move to Canada

An Ottawa Federal Court has denied the Canandian Recording Industry's (CRIA's) demand for the names of alleged music sharers, on grounds that remind us why diversity in copyright laws is a good thing: Canada's got this one right.

The court ruled that plaintiffs had not shown that they had the right targets or that their targets infringed copyright (they failed to "establish a prima facie case against the unknown alleged wrongdoer").

  • Downloading a song for personal use does not amount to infringement
  • Placing personal copies into a shared directory is not "distributing" or "authorizing the reproduction" of sound recordings
  • There was no evidence of knowledge, necessary to secondary infringement liability
Congrats to the Canadian Internet Policy and Public Interest Clinic, whose intervention helped the court get there.

The court "cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service." The court also held that the CRIA had delayed its requests too long, presented too little evidence of methods for tracking users, and would have to reimburse ISPs if it were ever permitted discovery.

Posted by Wendy at 12:10 PM
March 22, 2004
Copyfighting at Corante

I'm honored to be joining Donna Wentworth, Aaron Swartz, Jason Schultz, Elizabeth Rader and Ernest Miller at Copyfight--the Expanded Edition. We'll be building Donna's tremendous solo copyfighting into a new group blog. Hope to see you there.

Posted by Wendy at 11:40 AM
March 21, 2004
Net Judo, when the Web Fights Back

Don't tread on meWhen I'm talking to lawyers about litigating on the Net, I like to remind them why an early American flag pictured a rattlesnake: Those you threaten might bite back. Cory and Dan point up another example, when "Dr." Gray's libel-threats backfire.

From BoingBoing: Gavin Sheridan has been threatened by "Dr." John "Men are From Mars, Women are From Venus, I am From Uranus" Gray for declaring that Gray was a fraud whose degrees came from a diploma mill. Gray's lawyers demanded a retraction and reserved the right to sue for libel anyway.

Well, in an act of increasingly common Internet judo, Sheridan posted the nastygram, and the collective outrage from other Web-writers has spread the news of Gray's bullying -- and the dirt behind his degrees. Threatening to sue in order to silence a critic has simply spread the criticism much, much further.

Posted by Wendy at 04:25 PM
March 20, 2004
Scoping out Trademark Abuse

James Gleick chronicles the increasingly frequent collisions between trademark claims and rationality in Get Out of My Namespace, NYT Magazine. Some of his examples could be drawn straight from the pages of Chilling Effects, where we see corporations threatening those who use similar names in unrelated fields (Pet Friendly, Inc. against Pet Friendly Rentals), or those whose names couldn't plausibly have been confused (PayPal against

Elsewhere, and even in pre-Internet trademark law, we've solved these problems by distinguishing among namespaces -- different realms in which the same name can have different meanings. Computer programmers recognize that identically named variables can have different values in different scopes; trademark lawyers of 50 years ago recognized that a "Dawn Donut" in New York didn't interfere with "Dawn Donut" in Michigan. The advent of the Internet should make us more careful in scoping our references, not throw sense and free speech out the window by giving contested domain names to the most corporate claimant.

Says Gleick: To cope with the dynamic, entangled, variegated nature of our information-governed world, perhaps the law just needs to relax -- loosen the cords, instead of tightening them.... The law needs to prevent miscreants from pretending to be people they're not or from passing off spurious products -- but that is all. BODACIOUS-TATAS.COM may be unsavory, but it was not fooling anyone; it was not trying to impersonate the House of Tata; its wares were exactly as advertised.

Namespaces will collide. Let them.

Posted by Wendy at 04:01 PM
March 19, 2004
Voluntary Collective Licensing, the Open Way

p2p_VCLMy colleague Ren has put together a nice diagram of the basic components of a voluntary collective license, along the model that EFF has proposed. Even nicer, he's posted all the source files under Creative Commons license so others can rearrange or add to the diagram with their comments.
Don't think sampling will work? Add a few "bugs" to the picture.
Like hardware levies? Add them in.
Then, please share what you rip-mix-burn

Posted by Wendy at 06:27 PM
WiFi Everywhere

If all the open APs you can find in most urban areas weren't enough evidence, today's New York Times Op-Ed, The Free Lane on the Information Highway, shows open-access WiFi is going mainstream.

WiFi holds the promise of bridging America's much discussed digital divide if we make it ubiquitous and free to use, like the public library system. After all, just as roads and bridges were among the most important public investments in the industrial period, wireless access to the Internet is arguably the most crucial public investment of the information age.
Ubiquitous, unmetered WiFi access can help make the Internet available to everybody, with benefits that should be clear even to those unswayed by notions of "public good." Just as businesses benefit when their employees are literate (public schools and libraries) and when their customers can get to stores (public roads and mass transit), they benefit when customers can easily search their online offerings to buy their e-commerce or entertainment products.

Posted by Wendy at 08:06 AM
From SxSW to WxNW

Back in San Francisco, that is, after visiting Austin for SXSW Interactive. The best part, for me, was talking with people -- on panels and off -- who are pushing the bounds of technology to do more for us, its users and public, rather than treating us like mere consumers. Eli Pariser and Zack Exley got it, and have made into a site that empowers its users as citizens. Jonathan Abrams talked, by contrast, about constraining users into his vision of what Friendster should do.

I'm sorry to have missed the Magnatune/Creative Commons party, but the EFF, EFF-Austin, Creative Commons, Magnatune party was a good preview.

Posted by Wendy at 06:38 AM
March 17, 2004
Singing ATMs, from Diebold of course

Unless it's a clever hoax at CMU, here's yet another reason to demand greater security from e-voting machines than from other Diebold hardware:

A Diebold ATM in Baker hall just crashed, and dropped to a Windows XP desktop.
Several intrepid students started Windows Media player, and it was playing a variety of music with a nice visualizer.
Via Dave Farber's IP, with links to photos. But were the songs licensed for public performance?

Posted by Wendy at 04:25 PM
March 16, 2004
The National Debate survives copyright complaint

Dan Gillmor reports that the New York Times has decided not to play the heavy over The National Debate's NYT Corrections page.

It seems The National Debate offered "corrections" to NYT op eds, in a format that looked much like the Gray Lady's own. NYT sent a DMCA takedown demand to TND's ISP, claiming copyright infringement. As befits a news organization, the Times has conceded that TND had a right to parody their style, so long as it didn't confuse readers. Interestingly, the underlying complaint actually sounds more in trademark -- the NYT didn't want readers confused about the source of these "corrections," and trademark law protects against consumer confusion -- but NYT, like others we've seen, used copyright claims because the DMCA gives quick takedown process. I'm glad to see this resolved in a legally reasonable manner.

Posted by Wendy at 12:00 PM
Free vs. "Free"

Starbucks has been in the news for the free music-listening stations it's rolling out to stores -- stop by for a few minutes of selected music with your frappucino, and maybe buy a CD on your way out. Frankly, I like the way shops around Austin have been doing it better, especially around SXSW: Open up your laptop for free WiFi access, choose any music you like from the SXSW playlist or Magnatune and listen all you want while you sip, browse, or work.

Posted by Wendy at 06:30 AM
March 14, 2004
Power to the People at SXSW

Not long after Cory blogged SXSW's no-photos, no-electricity policies, Jon announced his "photograph as much as you want" policy for his panel, and noted that it was now licit to plug in to the hallway outlets at SXSW. Thanks Jon and Cory. I'm happy to allow reporting at my panel tomorrow.

Posted by Wendy at 07:49 AM
March 10, 2004
Fair Use and Political Speech: Priceless (MasterCard v. Nader)

Thanks to LawGeek for sharing news of Ralph Nader's "priceless victory." A mere 3 1/2 years after Nader ran "Priceless" TV ads, a court has granted his motion for summary judgment, finding no copyright or trademark infringement. The decision offers nice analyses of copyright fair use and trademark non-commercial use, and you've got to love phrases like:

As a matter of law, plaintiff has failed to show a genuine issue of material fact as to the likelihood of confusion between MasterCard's financial services and Ralph Nader's 2000 presidential political campaign.

Now if Nader would just take this win and retire... In the meantime, let's see Pat Buchanan pick up some of the votes on the other side: Run Pat Run.

Posted by Wendy at 09:46 AM