September 24, 2004  ·  Lessig

A district court in the Southern District of New York has struck down the anti-bootlegging provision of the copyright act. There is a new report here. I should have the opinion up soon. (Disclosure: I did pro bono work on this case.)

UPDATE: I have a scanned pdf of the opinion. (Warning: It is huge (64mg)). (Thanks to Joe Gratz, here‘s a very readable compressed version at about 500k).

The opinion is fantastic. The Court concludes (1) that antibootlegging regulations are “copyright-like” regulations, and thus are within the scope of the Copyright Clause, (2) that this regulation violates the Copyright Clause because it doesn’t have a limited term (citing Eldred (sweet justice)) (And remember, the 11th Circuit’s case expressly did not consider the limited times argument), and (3) that Congress can’t use the Commerce Clause to do what it can’t do under the Copyright Clause, so long as the subject matter is “copyright-like.”

I have always been a fan of Judge Baer, but never more than today.

September 3, 2004  ·  Lessig

The UK Parliamentary Office on Science and Technology is preparing a POST note on ‘Open Source’. (No, I didn’t know what a POST note is exactly either, but check it out here.) The author is looking for helpful comments. I’ve created a temporary email address for David Berry. You can send him comments at that address for a week.

August 6, 2004  ·  Tim Wu

Here’s the question: What would the Induce Act look like if it balanced the interests of copyright owners and technological innovators? Here’s what: the Inducing Innovation Act.

Comments welcomed, and thanks to all those who helped work on this.

Short Commentary

The goal of this Act is to clarify the scope of secondary and vicarious liability under copyright. Today, pernicious consequences have attended the vague scope of liability under copyright. In some cases, parties as distantly connected to content as credit card companies have been brought into court on copyright infringement charges. Other companies who handle or pass-on copyright content are forced to adopt costly measures for fears of vicarious liability. Companies that design legitimate new electronics or services have very unclear ideas of when they can expect to face liability for the potential acts of their customers.

This Act remedies these problems by making it clear that, as in federal criminal law, only accomplices to copyright infringement are liable for the acts of the principal. Accomplices are defined as those who intentionally aid or command specific acts of copyright infringement. The Act also makes clear that merely knowledge that a product could be used for infringement is not sufficient to create liability. This approach is consistent with the scope of accomplice liability in other areas of the law, and puts industries regulated by copyright on an equal footing with others. The Act further reaffirms the safe harbour for “substantially non-infringining products: from the Sony Betamax case, a case hailed for its role in great pace of information technology growth over the last two decades.

The point of the Act is make it as clear as possible to innovators what they can do to steer clear of copyright liability. It strikes a balance: persons and companies may not serve as intentional accomplices to infringement, but are otherwise free to design legitimate, neutral devices and services without undue liability concerns.

August 4, 2004  ·  Tim Wu

So today copyright scholar Joe Liu at Boston College asked a room full of law professors an interesting question. What did we think copyright would look like in 8 years? Here were some of the main categories of predictions (some contradict):

1. Primarily a criminal regime (remember when copyright was considered civil law?)
2. Focused on control of the design of hardware & software (in the model of the Broadcast Flag) to prevent infringement ex ante;
3. A regime dedicated to preserving the retail market and revenue streams for 4 discs: (CDs, DVDs, Software CDs, and Video-Game CDs), having given up on nearly everything else;
4. Made in WIPO or the FCC as often as the U.S. Congress;
5. Gone (not a good bet).

Any others?

July 27, 2004  ·  Lessig

Stefan Bechtold writes that the EU Commission (ok, a staff report) has decided that copyright terms for recordings in Europe should not be increased beyond the current term (50 years after publication), despite the growing pressure of recording labels to increase the term to “save” (as they put it) some of the most important Rock from entering the public domain. The story is getting press in Europe. (Independent, BBC).

This is an extremely important development in this battle. For once, a government-related entity has recognized the truth (or at least, not had its recognition crushed). I’ve already been talking to archives that are working on the idea of releasing all the recordings they can when they pass into the public domain on January 1, as a way of demonstrating the value of a wide range of work becoming available, unencumbered, for widespread use.

Here in the U.S., we’ll be able to celebrate the same in, um, 2019. Till then, for your listening pleasure, an oldie (first posted here last July): a 1937 radio program from the Columbia Workshop about creative works passing from the “copyright lane” into the “public domain“.

May 21, 2004  ·  Lessig

As reported, we survived the government’s motion to dismiss in Golan v. Ashcroft. Thanks to the excellent work of lawyers at Wheeler, Trigg & Kennedy, we’ve now convinced the court of the importance of discovery to demonstrate the actual harms caused by “restored” copyrights.

Aaron has built a site to help us collect stories, some of which may become part of the suit. Please help spread the link: the beginning of an archive to the public domain.

October 10, 2003  ·  Lessig

It is so rare that I am in 100% agreement with the Cato Institute, but there have been important examples in the past (Eldred). Here’s another. There’s a great essay by Doug Bandow titled “Don’t Ban Technology to Solve Copyright Problems,” which appeared in the Washington Times but is not yet on Cato’s site here. Stay tuned, and stay right (as in correct) Cato.

October 10, 2003  ·  Lessig

This is good news (ok, not for Halderman but for the law). SunnComm says it is suing Alex Halderman (Ed Felten’s student) because he posted a paper pointing out the weaknesses in SunnComm’s copy-protection software. I’m sure there will be a world of legal support to help Halderman establish what should be an obvious point: tell the truth is not yet a crime, and (fortunately for most professors) writing even wrong papers is not either.

UPDATE: Oh well. Looks like SunnComm has come to its senses. No lawsuit after all.