Posts by Jef Pearlman:

Sherwin posted last week about the amended Google Books settlement and our amicus brief expressing our opposition to the settlement as written and our concern that it would lead to a monopoly on providing access to orphan works. The DOJ's Antitrust Divison has once again weighed in on the settlment (their previous brief is here, with our analysis here). Their conclusions appear to be largely the same as ours: "Although the United States believes the parties have approached this effort in good faith and the [Amended Settlement Agreement (ASA)] is more circumscribed in its sweep than the original Proposed Settlement, the ASA suffers from the same core problem as the original agreement: it is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation."

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In the media world, there’s an ongoing war about what it means to “own” a copy of something. Most of us are used to the world of paper books and plastic CDs, where the media you buy is yours to do what you like with, be that play it in your living room, lend it to a friend, or (as a practical matter) rip it to your computer for your own use on other devices or locations. But in the world of DRM, the copyright owner gets to decide when, if, and for how long you get to do those things. The latest salvo in the battle to get consumers to accept DRM is DECE: the “Digital Entertainment Content Ecosystem.” DECE appears to be an attempt to make DRM interoperate better across different devices, services, and content sources. Is this a good thing – or at least a less bad thing – for content users? I’m not holding my breath…

**Ownership vs.

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[This post was written at a live event.]

Welcome to the third session:

Chris Burke, Terri Bays, Lincoln Bandlow, Mark Dery, and DJ Earworm with moderator Orlando Bagwell.

OB: This is gonna move fast!

LB: One comment on the last panel and statutory damages. Statory damages is a range of money. We should have a legislative fix, where if the defendant brings a good faith fair use defense, statutory damages shall be $250. Second legislative fix: If you prevail on fair use, you shall be awarded attorneys fees. I'm a lawyer, that's for you makers. I'm goig to show you a clip from a documentary about roadside eateries. Clip about Bob's Big Boy. Interview has a picture in the background by artist who had been commissioned to paint it. Sued for copyright infringement. LB: brought fair use defense and case immediately thrown out — documentary film, and should be able to present the wrold as it is.

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[This post was written at a live event.]

Gigi does brief introductions of the panelists: Rakesh Agrawal, Dan Reetz, Andrew McLaughlin, and Michael Robertson.

GBS: Intro question. What has been your biggest fair use challenge? And for AM, what will be the administration's approach to fair use?

RA: Our product (Snapstream) is a cross between a DVR and a search engine — search inside TV shows and do things with what you find. Slide shows you can search, find something in a show, and it will take you to the point of the show that has the reference in question. Typically our customers are the ones making fair uses of what they find. Gov't organizations use it for ego searches ("what's being said about us"?) Used for research for journalism schools. Used by TV shows like The Soup and the Daily Show for source clips. Demo video from the Soup about Twitter: Great montage of all the shows talking about Twitter that week. ("It's the digital Macarena!") Just one example.

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[This post was written at a live event.]

Up during lunch we have Anthony Falzone and Peter Jaszi answering question about copyright, fair use, and remixing.

AF: Started the Fair Use Project 3 years ago to clarify/expand the boundaries of Fair Use, primarily through litigation but also through authors. Have represented numerous fair users. Formerly represented Shepard Fairey, but to be clear: he still believes completely in the merits of Shepard's case.

PJ: Lots of work on fair use at the Samuelson. Recently working with Pat with communities to develop codes of best practices for fair use which are having impact within the field. People who use the works are reclaiming the rights they had been given 170 years ago by the courts. Thanks to PK and the practitioners who are exercising the rights the (c) act gives them. Thanks also to generations of lawyers/clients who have done so much to make fair use real: EFF and Fair Use Project, but also individuals and their lawyers.

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You may remember that at the end of last year, the FCC declined to give a small group of Hollywood studios the ability to turn off the video inputs that over 20 million high definition televisions rely on. Almost a year later, the MPAA is back, threatening not make content available, responding to year-old arguments while trying to pretend 2009 never happened, and making a lot of noise without saying anything new. So we're back, too, with a letter detailing why the MPAA's petition to use Selectable Output Control (SOC) at worst imposes millions of dollars of costs on consumers and at best leaves us scratching our heads asking why the Commission would even consider it.

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On Friday, the Department of Justice Antitrust Division submitted a "Statement of Interest of the United States of America" to the court about the proposed Google Book Search settlement. Its conclusion: "the Proposed Settlement does not meet the legal standards this Court must apply." It seems the DOJ shares both our hopes for and appreciation of the Google Book Search service and many of the concerns about the settlement that we expressed in our amicus brief filed two weeks ago.

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This Tuesday, Public Knowledge filed a brief asking the court not to approve the proposed Google Book Search settlement as it is currently constructed. The proposed settlement raises significant antitrust and class action procedural concerns. In plain English, these concerns are that the settlement represents an attempt to license a lot of books belonging to people who are unable to protest, set up a system to pay other people for the use of those books, and give a single party the exclusive right to use many of those books indefinitely. Read on for some more detail about our concerns.

But first, let’s be clear: We want online access to all books for everyone. We want a world without orphan works, where one can either find a copyright’s owner and seek to license use of their work, or else that work is available for use by all. We want all books to be made accessible so that the blind can read everything the sighted can. We are happy with Google’s current lawful scanning, indexing, and excerpting of all books, and the ability it provides to locate works which would otherwise lay dormant. We would like to find a way that anyone who wants to can offer the public even more complete access. And we have no doubt that whatever happens, Google will continue to offer searches of all books, offer full, accessible access to the books it has licensed, and find ways to locate as many rightsholders as possible to obtain more licenses.

But access through a single party is not true access: What we do not want is for books to be made available only through a single company that has, through judicial gymnastics, obtained the only possible license to those works. What we don’t want is a system where the books of absent authors are being sold and the unclaimed proceeds are going to those who should be finding those authors in the first place.

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Perhaps you remember Rashmi’s post about how the Ninth Circuit’s decision in Omega v. Costco opened the door to copyright owners taking control of the import markets for all kind of products, merely by slapping a copyrighted logo onto everything they make. Wednesday, PK and EFF filed a brief asking the Supreme Court to take the case, explaining that the consequences of the Ninth Circuit’s decision go even further than controlling imports. The short version is that under the Ninth Circuit’s interpretation, any product which has a label or logo manufactured abroad cannot be imported into the U.S., resold, or given away by a lawful purchaser without permission of the owner of the label’s copyright. Sound like a big deal? It is.

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Christine Varney, Obama’s recently-confirmed Assistant Attorney General for Antitrust at the Department of Justice, spoke yesterday at the Center for American Progress. Her speech gave us the first direct view into the direction Varney plans to take the Antitrust Division during her tenure. Varney’s thoughts, in sum: “In the last decade, the division has not been, in my opinion, as active as it could have been. It is time for the Antitrust Division to step up its efforts.”

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