Joi found Paul Saffo's photo of the US-VISIT terminals: US Closed for the Day. I found only a bootup error showing a Dell Optiplex GX270 (PDF spec) missing its keyboard. (full image)

Of course, our civil liberties and those of our visitors are better off without the machines in service, since their function will be to take fingerprints and photos (no DNA samples yet) of non-citizens entering the country. Not such a warm welcome.

My brother Mark says there are fisher cats around his home in Vermont, so he's created a warning for those thinking of visiting him.

In another win for due process, Judges Sam Sparks and Lee Yeakel ruled that recording industry lawsuits in the Western District of Texas would have to proceed individually -- rather than 150+ "Does" at a time. See PDF Order. As the judges noted, the RIAA members' practice violates the Federal Rules of Civil Procedure: Rule 20(a), joinder, requires that parties be linked in the "same transaction, occurrence, or series of transactions or occurrences." Moreover,

The filing fees for the recent four cases totaled $600, whereas the filing fees for 254 separate cases would have been $38,100. That is a considerable loss of revenue to the public coffers.

Similar orders have now been filed in Pennsylvania (2x), Florida, and in a movie industry suit in California, plus several DirecTV cases around the country. Note to lawyers and law students -- that CivPro is pretty important.

While much has been stripped out of the end-of-year copyright bill that passed the Senate over the weekend S. 3021 (pdf), much that's harmful remains. Particularly egregious is a provision that hasn't gotten much attention, the "Fraudulent Online Identity Sanctions Act." Ostensibly aimed at infringers who hide behind false domain name registrations, the provision seriously penalizes those who merely want to protect their privacy.

Because there's no way to opt-out of publication of private address information in the WHOIS database when you register a domain name, your choices are to expose your address and phone number; use a possibly unreliable intermediary; or fake it. Unfortunately, if you choose the last option and FOISA passes, you'll now be presumed to be a willful infringer of copyright or trademark. A critic who makes liberal use of a company trademark, or a commentator who quotes a chunk from another's text, both now face a much steeper hurdle in their fair use defenses.

Also in the bill are criminal penalties for making available a single "pre-release" work and for recording a movie while it's playing in a theater. I'm not arguing that this infringement is right, but it's not the kind of thing we should be sending kids to jail for, either.

The bill adds an entirely new Title VII, "Professional Boxing Safety." Since the whole thing still has to pass the House, let's hope someone there finds this objectionable enough to KO the bill.

Hot on the heels of the dismissal of its suit against Visa and MasterCard, pornographer Perfect 10 brings similar complaints against Google: direct and indirect copyright infringement, trademark infringement, dilution, circumvention, right of publicity, and the kitchen sink (ok, unfair competition).

What's Perfect 10's beef? Some third party sites (Does 1-100, denominated "Stolen Content Websites" in the complaint) are posting Perfect 10's copyrighted images. But "because many of the Stolen Content Websites are judgment proof, it is economically and practically impossible to sue them for infringement of Perfect 10's rights." In other words, Google is a bigger, richer target for a lawsuit, so Perfect 10 claims it should be held responsible for the sites it links to, the images it indexes, and the keywords and site content of AdWords websites.

John Palfrey comments that the copyright complaints look like a loser in the wake of Kelly v. Arriba Soft (it's fair use to take thumbnails for an image search database). Further, Chilling Effects has two DMCA takedown notices Perfect 10 sent Google earlier this year, and from the indications on Google search pages, it appears Google complied -- which immunizes it from copyright liability for those alleged infringements.

Perfect 10's complaint doesn't look so strong, but its basic arguments are recurring ones in the online debates: that IP owners should be able to deputize intermediaries as their copyright, TM, etc. cops. (It's no coincidence that Perfect 10's lawyers include Russ Frackman, counsel to the record labels in MGM v. Grokster.) Sure, holding everyone in the chain liable might help stop infringements, but it would also kill search engines, whose value comes from helping users to find whatever they're looking for, if it exists on the Web.

Search engines reflect the language their users actually write. To prevent them from showing it to us blinkers our view of the world in a manner alien to the "progress of science and useful arts." Thankfully, we can count on Google counsel to defend our right to search.

Slashdot reports that the pcHDTV HD-3000 is shipping, and it's already sold out. The HD-3000 is a tuner card for over-the-air broadcast HDTV with Linux-only drivers. It's the successor to the card at the heart of my Myth HD PVR, a full-featured personal video recorder unencumbered by the broadcast flag. The catch is that these cards must be made before July 1, 2005, when the broadcast flag outlaws their manufacture. Let's hope pcHDTV steps up production. See EFF's intro for more information on why, and for more information on the options.

Update: The cards are not sold out. The website's been updated and more cards will be shipping shortly.

The NYT reports on the current state of the dispute between Project Gutenberg .au and the estate of Margaret Mitchell over posting of Gone With the Wind. Post CTEA, that work is still under copyright in the U.S. but public domain in Australia.

The NYT gets comment from a lawyer for the Mitchell estate -- who's surprised that his cease-and-desist demands had the effect of taking the work offline in Australia. It's not clear what else he expected:

On behalf of the Trusts, we hereby demand that Project Gutenberg and/or PGA confirm to us within five (5) days of receipt of this letter that you have removed GWTW from the Web Site entirely or that you have taken all necessary steps to prevent the downloading of GWTW in all places in which it is protected by copyright.

Given that geolocation doesn't work and legal advice isn't instantaneous or free, for the most part, what did he expect? If it was just to give a scare, that's the kind of chill we don't need more of.

Sometimes it takes a non-lawyer to show us just how far overboard the law has gone. In this case, it's trademark law and Cory's wonderful description of how TM lost its way.

Spurred by James Surowiecki's Wired piece on the decline of brand power, Cory looks back at how far we've come from the days when "consumer confusion" was the law's paramount concern.

Says Cory: This is a timely piece because the rhetoric of branding has been used to make unprecedented incursions against privacy, competition and speech.

It used to be that trademarks were intended to protect "consumers" (that's us) from being tricked into buying goods under false pretenses. If it said "Coca-Cola" on the can, there had better be Coke inside, and not Pepsi or Crazy-Bob's-Discount-House-of-Soda brand. When a competitor of Coke's shipped a bottle of stuff that was misleadingly packaged or labelled, Coke's authority to sue its competition derived from its need to protect us, not its bottom line. It didn't get to sue because it owned Coca-Cola, but because it was acting as a proxy for its customers, who were being decieved by con-artists who mislabelled their goods.

...

But as time went by, trademarks stopped being about us and started being the embodiment of brands (which, as Surowiecki points out, are on the wane and were probably never as important as we thought to begin with).

This meant that trademarks weren't just things that helped the public know what they were buying -- they are a kind of pseudo-property. Pseudo-property that could be defended on the basis that it "belongs" to a company, who need to be protected from having the value of their marks "diluted" or "tarnished."

Read it all, it's Chilling.

It's time to trade our national obsession with electoral-vote.com for a new craze -- maps visualizing where the votes really came from. The Big Picture has assembled a collection of maps with population, geography, and a bit of political black humor.

The most compelling explanatory map is the Washington Post's topography, with mountainous blue cities and rolling red plains. (click for larger version) Via IP.

In a feeble attempt to relate this to copyright, how would the fact that these images were "just lying around the internet gathering dust anyway" factor into a fair use analysis (for the maps that have sufficient expressive content to be copyrightable in the first place)?

All the polls, predictions, and futures markets come down to 15 or so hours today. It's still looking close, which means that more than ever, every vote counts. Make sure yours does by following these tips from David Dill on the e-voting experts weblog.

1. Prepare before going to the polls. Mark your votes in advance on the sample ballot that was mailed to you.

   Why?

   • We’re getting reports of long lines during early voting. This will make voting faster.

   • A few voters have reported that some offices were not on their screens, and that they didn’t discover it until they had returned to their home or car. If they had the list with them, any problem could have been detected immediately, in time to save their votes and perhaps get a witness to the problem.
   ... more ...

More e-voting resources from EFF's Deeplinks and Verified Voting.