September 29, 2005
RentMyDVR. Buy my lawsuit?

PVRblog found a service that sounds like something out of a law school copyright exam: Rent My DVR.

Never miss your Favorite TV Show again!

Now you don't have to remember to program your DVR or VHS to record you favorite TV show. With the Rent My DVR site you can simple hire someone that will do the recording for you.

Simply file a request on our site to have someone record for you and as soon as a new episode of your favorite show has been broadcasted, it is downloaded automatically to your computer and you can watch it whenever you want.

The site appears to be a "matchmaker," facilitating digital transfer of shows from someone who has recorded them to another who wants to watch it. (It also says it's based in Sweden, but since I know U.S. copyright law better, I'll stick to that.)

The site analogizes its users' activity to the time-honored practice of giving or lending a videotape to a friend -- without the videotape. So would judges extend fair use protection to this transposition of an offline use, or would they trip over the fact that multiple "copies" are being made? If there's infringement, is RentMyDVR a contributor, vicarious assister, inducer?

Answer guideline: 2000 words or less.

Posted by Wendy at 12:08 PM
September 26, 2005
The new threat: Subway map sharing?

Wired News reports on cease-and-desist letters two transit agencies have sent to, each complaining infringement of intellectual property rights. A student had alerted me to the site a bit earlier, so we have the letters up on Chilling Effects too.

What's up here? The letter from New York's MTA is light on the detail, not much more than "if right, then infringement." It's not clear how helping people find their way through the labyrinthine NY subway system hurts the transit authority, but that didn't seem to enter the equation. As a copyright matter, this transformative posting (re-sized and formatted for mobile devices) has a good claim to fair use.

The letter from San Francisco's BART spells things out further, invoking both copyright and trademark. BART doesn't want people to think out-of-date maps reflect the current subway system -- a valid concern of the sort that trademark law is well-suited to address. Of course they can address this concern short of prohibiting distribution of any maps, by asking the site to indicate clearly the date of its information and its independence from BART, or even by helping to keep it up-to-date.

As reported, the maps' poster has been working to create his own maps to replace the earlier images. Since copyright protects only "original expression," not facts or ideas, it offers thin protection to maps. The transit agencies can't copyright the locations of stations, their names, or the colors and symbols by which the public identifies them. A new map may look very much like the old ones without copying any copyrightable expression. So long as it's clear these are unofficial maps, the trademark "confusion" dissipates as well. I'll look forward to seeing the new maps posted soon -- and then porting them to the Treo!

Posted by Wendy at 09:40 AM
September 21, 2005
Authors Guild Sues Google

As if cued by my class discussion of copyright and fair use, which included some hypothetical riffs on the Google Print Library Project, the Authors Guild has sued Google. (complaint) Sorry!

The complaint seeks class action status on behalf of "all persons or entities that hold the copyright to a literary work that is contained in the library of the University of Michigan," notwithstanding the great variety of authors and works of authorship in that category.

3. By reproducing for itself a copy of those works that are not in the public domain (the “Works”), Google is engaging in massive copyright infringement. It has infringed, and continues to infringe, the electronic rights of the copyright holders of those works.

6. By this action, plaintiffs, on behalf of themselves and all others similarly situated, seek damages, injunctive and declaratory relief with respect to Google’s present infringement, and declaratory and injunctive relief with respect to Google’s planned unauthorized commercial use of the Works.

Google defends the project on its blog and Jon Band offers a detailed fair use analysis.

Posted by Wendy at 05:03 AM
September 15, 2005
Openness isn't just a slogan

Jennifer Granick has a great new column for Wired News. her first piece, Wired News: Open Internet, We Hardly Knew Ye, picks up ways restrictive laws (copyright, CFAA, trespass) could have blocked the creation of a central hurricane-relief people-finder:

People in far-flung places across the United States turned to the robust, decentralized internet to find their loved ones. Almost immediately, there were too many sites to choose from. A grandchild looking for her grandmother, or a father for his son and wife, had literally dozens of online databases to search. The internet offered a solution here as well. An international, ad hoc group of self-described geeks built a system that automatically combined information from the dozens of refugee listing sites into a single, searchable database that family members could use to find each other.


But under a permission-only legal regime, the volunteers would have had to contact every site with listing data and ask for authorization to use the information first. With dozens of sites popping up in the days following the storm, getting permission would have taken a lot of time -- if the site owners could even be reached and convinced of the merit of the idea in the first place.

Thanks, David!

Posted by Wendy at 01:34 PM
The meaning of TiVo's DRM bug

Cory picked up on PVRblog's coverage of what was eventually determined to be a bug: Users found their TiVos unexpectedly expiring recorded shows.

It might well have been a bug in this instance, but bugs like that don't just come from nowhere, with fully formed error messages alerting viewers that "Due to policy set by the copyright holder, 'Keep until I delete' is not permitted." Maybe it wasn't meant to show up here and now, on broadcast TV, but someplace in TiVo's corporate innards, someone decided that unrequested expiration was a feature.

Nothing in copyright law mandates this "feature." To the contrary, once you have a lawful copy of a copyrighted work, the first sale doctrine says you have the choice whether to save, lend, or discard it, while Betamax says timeshifting creates a lawful copy. If not copyright law, then copyright-holder muscle probably sits behind TiVo's design. Copyright holders work with Macrovision to implement extra-copyright controls, then jointly lean on TiVo to respond to them. Together, they restrict user rights beyond copyright.

The bug also illustrates the fallibility of proprietary technologies (particularly those with automatic update). "Update" doesn't always mean "improve" -- an update can take away functions you've come to enjoy, just because someone else objects. This misfeature of any DRM that implements "revocability" gives "planned obsolescence" a whole new meaning.

Like Cory, I've gone the MythTV route instead. With hundreds of people hacking on its open-source code, MythTV updates really are improvements. Its features are truly features, like commercial skip, time-stretch, transcoding and transfer to other media, plus an open-format music server on the side, giving full access to all the rights copyright reserves to the public. Sorry TiVo, you've been out-evolved.

Posted by Wendy at 10:02 AM
September 14, 2005
Kids: Understand the USPTO's distortion of the law

Robyn alerts me to the USPTO's kids' pages, where they've posted a colorful -- but sharply slanted -- "Put a stop to piracy" campaign. We thought it needed a bit of annotation to help kids understand (red from the USPTO page, black mine):


You hook up a VCR to your DVD player and make copies of your movie collections as gifts for your pals.
Sorry. You try to hook the two together but Macrovision prevents you from getting a clear picture, even when the movies you want to copy are no longer in print or you're trying to extract scenes to add to commentaries. You probably won't be able to find a macrovision-less VCR, because Macrovision has been suing their makers for patent infringement.

You capture pictures from TV shows and post them on your website along with soundbytes that make you laugh.
Great, you've got a pre-broadcast-flag TV setup that lets you make fair use of media. Hold onto it, because if Hollywood and the FCC have their way, you'll be technologically prevented from grabbing these captures in the future. A "soundbyte" sounds ok, just remember that a sound-gigabyte probably exceeds fair use.

You buy a fake pair of designer shoes from a street vendor - they look like the real thing and cost only a few dollars.
Cool, so long as they weren't made by sweatshop labor and you weren't deceived into thinking you'd bought real designer merchandise. You've just saved yourself a bundle and helped the free market. Fashion designs aren't copyrightable, and trademark protects only against consumer confusion.

Can you spot others? Remember, kids, "these laws and regulations as well as the application process can be very complicated."

Posted by Wendy at 07:40 AM
September 08, 2005
What Can't You Do With the New IPod Phone?

That's the question David Pogue asks in today's NYT column, because what you can do doesn't include many of the things a customer would most want. Add Apple/Cingular/Motorola's new Rokr to the list of technologies Derek recently reviewed in the new guide, The Customer Is Always Wrong -- deliberately crippled to protect outdated business plans.

...Will the phone have a hard drive that can hold thousands of songs? Will you be able to download songs straight from the Internet? Will it have a FireWire or U.S.B. 2.0 connector for superfast music transfer? Will you be able to use your songs as ring tones, so that the phone bursts out in "You Make Me Feel Like a Natural Woman" when your husband calls? ...the answer to all of [those questions] is no.

No, the phone doesn't contain a hard drive. It comes with a tiny, 512-megabyte TransFlash memory card. Incredibly, though, you can only store 100 songs on the phone, tops, no matter how much room is left on the card.

... No, you can't use songs as ring tones, at least not the songs you've bought from Apple's music store. (You can use ordinary MP3 files as ring tones, but loading them onto the phone isn't trivial.) This, too, is almost certainly a limitation driven by corporate interests. Cellphone carriers charge $1.50 to $3 apiece for ring tones; Cingular certainly wouldn't want to hand that lucrative business over to Apple's music store.

If you'd rather listen to music on your phone than grouse about these engineered limitations, there's always the open-source TCPMP for Treo or WinCE, which not only plays MP3 and OGG files, but videos too.

Posted by Wendy at 10:55 AM