Posts by Sherwin Siy:

Day 3 ran long into the night, with delegates leaving at 11pm. How much progress has been made is officially unclear, since, after only a couple of hours, the chair called for an "informal" session, meaning that negotiations went off the record, and NGOs got kicked out of the room.

Empty Chairs

Now imagine this with the national delegates there. No, the NGO seats are still empty.

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So two days of negotiations have gone by, and it's not looking like the various countries are coming any closer to a real agreement on the WIPO Broadcasters Treaty. You can hear some of the highlights from Day 1 on the latest In the Know podcast. A more comprehensive play-by-play can be found at KEI.

a seat at the table

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Yesterday, Cablevision filed its appeal brief in the battle over its remote DVR. In March, a federal judge in New York held that it was illegal for the cable company to host the Tivo-like devices at a central location. My earlier take on that decision is here.

In that decision, the judge confused the doctrines of direct and secondary infringement, and ignored a lot of solid precedent that would have shown that Cablevision's devices were perfectly legitimate. Instead, he provided a litany of distinctions between the Supreme Court-approved VCR and the remote DVR that, upon inspection, really didn't make a lot of sense.

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Copyright law is a complex field, and it's understandable that lots of people might hold some misconceptions about some of its fuzzier aspects, like fair use. It's far less understandable that someone who represents the government's position on IP should old those same misconceptions. Unfortunately, that seemed to be the case when Susan Anthony of the Patent and Trademark Office spoke Tuesday at the University of Maryland's Copyright Utopia Symposium.

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Mark Helprin has published an op-ed in the New York Times calling for a perpetual copyright. This seems more of a philosophical rant than a serious legislative proposal, but it's an eloquent expression of illogical and incomplete ideas, mixed with a little indirect name-calling.

Helprin begins by comparing intellectual property to real property, saying that, if land shouldn't be confiscated from people after so many years, neither should copyrights. This is a sloppy comparison of two very different concepts, and a quick rundown of the differences between the two should disabuse people of the notion that ending a copyright terms is like confiscating land.

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The Ninth Circuit Court of Appeals today ruled that Google's Image Search doesn't directly infringe copyrights when copyrighted thumbnails show up in its search results. The court held that the smaller, indexed images were a fair use of the content, meaning that Google wasn't directly liable for copyright infringement.

There's actually a lot of different legal theories built in to this one lawsuit, but the big news at this stage is that the thumbnails were "highly transformative" uses of the original works that didn't hurt the market for the original images. In fact, the court noted that

"a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work."
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The Justice Department has proposed a bill that would criminalize "attempted copyright infringement;" require the government to seize devices used in the copying; and allows criminal prosecution of copyright infringement without the work being registered. The proposal also would require courts to seize and destroy any property used in circumventing DRM, and would grant the Justice Department wiretapping authority to investigate "attempted copyright infringement." Thus, an attempt to download an illegal mp3 joins the ranks of such similar crimes as bribing officials, taking hostages, or "unlawful use of explosives."

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Microsoft, along with a large number of other tech companies, has been calling for patent reform for some time. Today, they give an object lesson in exactly how necessary this is.

Brad Smith, general counsel at Microsoft, stated in an interview with Fortune that free and open source software like Linux and Open Office infringe hundreds of Microsoft-held patents. The Fortune article states that Microsoft wants royalties for these allegedly infringing patents.

This is the same Microsoft that is calling for patent reform, noting a patent system swollen with patent that should have been rejected, and brimming with litigation.

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Senator Wyden, joined by Senator Brownback, today introduced a bill designed to nullify the Copyright Royalty Board's recent ruling, which raises music licensing fees precipitously and threatens to put a lot of webcasters out of business.

The bill, called the "Internet Radio Equality Act of 2007," first throws out the Board's rulings from this year. Second, the bill changes the standard by which the Board sets fees, making it more like the standard used to set rates for satellite radio services. The bill then temporarily sets the rate at either a third of a cent per hour of music per listener, or 7.5% of the webcaster's revenue. That's the (much lower) rate that satellite radio pays. The Copyright Royalty Board will set rates under the new standard after 2010.

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This is the statement on the WIPO Broadcast Treaty that we'll be bringing to today's meeting with the US delegation. As you can see, we're not alone in our opposition, being joined by frequent allies like EFF, KEI, and USPIRG, as well as those we often disagree with on other issues (like Verizon, who isn't the biggest fan of our stance on Net Neutrality). Cory Doctorow at BoingBoing points out that AT&T, also on board, is currently being sued by the EFF.

When this many disparate interests are aligned against the treaty, it's clear that something's desperately wrong with it. For what that is, see here, or here, or here.

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