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  • May 21st, 2016 @ 9:40pm

    Accidental crime

    Notably, there is no effort at all to identify the specific "accident" by which the warrant was issued. It's sort of like, "Your Honor, this was an accident! We were placing an online order for carryout and did not realize that the computer had switched from the "sushi menu" tab to the "subpoena" tab on our browser. Our sushi chefs happen to be named Ryan and Lowery, lol."

    The police should be grateful that they got off that easy. (They won't be. Their employer is the one paying, not them.)

  • May 7th, 2016 @ 7:51am

    No "first sale" required

    It is a common misconception that "The First Sale Doctrine stipulates that a rights holder is no longer entitled to control the distribution of a good once it has gone through a legitimate first sale." That is half right. But no "first sale" has ever been required since Congress first codified the doctrine in 1909. Since 1976, the Copyright Act establishes this as an entitlement belonging to the owner of a lawfully made copy. It does not limit how ownership comes about. So 17 USC § 109(a) applies to one who gains ownership by gift as well as one who already owns the material object (such as a piece of paper, a CD, or an iPhone) onto which the work is fixed by authority of the copyright owner of authority of the Copyright Act. Accordingly, if Microsoft authorizes you to download its work onto your laptop, you still own your laptop and may sell it without Microsoft's permission.

    With respect to a Nest device, the question is who owns the gizmo, not who owns the software (as in the intangible work of authorship copied onto the gizmo). Under the Copyright Act, Nest has no greater right to erase or disable the operation of the work on the gizmo than J.K Rowling has of rendering the pages of my lawfully made Harry Potter book unreadable.

  • May 6th, 2016 @ 12:36pm

    "No law" amended "maybe law"

    The issue that most troubles me about the First Amendment / copyright coexistence is the lack of any compelling explanation of why First Amendment principles do not apply with full force and effect to copyright. Sure, the Supreme Court has come up with quotable (but baseless) stuff like calling copyright the engine of free expression, and has pointed to First Amendment "safeguards" built into the Copyright Act, but that still does not explain why the ordinary operation of an amendment should not take full effect. Article 1, section 8, empowers Congress to create exclusive rights belonging to authors. Later, we amended the Constitution to provide that, notwithstanding the aforementioned power, Congress is prohibited from enacting any law abridging the freedom of speech. Copyright is an option; the First Amendment is an imperative. Congress' task then, is to decide whether to exercise the non-mandatory option of creating something in the nature of exclusive rights, and if it chooses to do so, to craft it carefully to avoid abridging freedom of speech. The notion of "balancing" the two or "accommodating" the latter is simply not an option. When in conflict, the First Amendment question should trump copyright to the same degree it would, for example, Maryland's right to issue or not issue license plates bearing characters in an order it disapproves. See Mitchell v. Md. Motor Vehicle Administration - Case No. 10, September Term, 2016, Perhaps it would be a hard task, but no harder than any other speech restriction.

  • Mar 1st, 2016 @ 7:55am

    Patent for disposing of junk mail

    Wow! When I went from disposing of the personalized junk mail delivered by the U.S. Postal Service to disposing of personalized junk mail delivered by my Internet Service Provider, it never occurred to me that I could patent the use of a computer to dispose of it. Even a small fraction of a penny for every licensed press of the "delete" key all over the U.S. would make me richer than Trump. But if the USPTO gives a patent for preparing incoming personalized spam using a computer, it must be duty-bound to issue my patent for getting rid of it using a computer.

  • Feb 9th, 2016 @ 1:59pm

    DMCA fraudulent implementation of WIPO copyright treaty

    The WIPO Copyright Treaty says this:
    "Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law."

    The DMCA says this:
    "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

    The DMCA literally ignores the requirement of a copyright nexus (which some courts are slowly recognizing as essential), and totally ignoring the fact that the WIPO treaty only intended to apply to circumvention for infringing purposes -- not non-infringing uses permitted by law.

    Sure, the DMCA also says, "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title." That should mean that the prohibition on circumvention should never be interpreted to allow the copyright owner to control uses beyond the limits of the copyright, but courts have been ignoring this, completely.

  • Feb 5th, 2016 @ 8:37am

    It's all about "effects"

    To presume abandonment of server email after 180 days is like presuming abandonment of the contents of your safety deposit box (or your savings account) after 180 days.

    The Fourth Amendment covers not just our persons, houses and papers, but our "effects" too. There is no cloud - it's just another computer hard drive where I keep my effects.

    Just as the 4th says "houses" and not "homes," my "effects" need not be limited to what I download from the server; they include what I house somewhere else.

  • Jan 11th, 2016 @ 2:52pm

    Re: Re: Licenses and sales are not mutually exclusive

    You are partially right. No license is needed to do what the law allows. But still, it is perfectly normal -- for centuries -- to treat sales of copies and licensing of works as not mutually exclusive. The common law on that point was codified in 1909 (and currently appears at 17 U.S.C. § 202). Another example, outside the scope of 117, would be, "I sell you this disc in which my work is fixed, and I license you the right to authorize two non-owners of this disc to reproduce the work onto their respective hard drives."

    Also, in my prior example, a license to make a copy onto a backup DVD "for archival purposes" converts that into a lawfully made copy free from the limitation in 117(a)(2), so such EULA-licensed archival copy may be sold without infringing the copyright, wheras the 117(a)(2) archival copy may not.

  • Jan 7th, 2016 @ 8:42am

    Licenses and sales are not mutually exclusive

    Vernor v. Autodesk was horrible in that it created a false dichotomy of "licensed OR sold" with respect to "software". Adobe and Microsoft are big fans of claiming infringement of their copyrights in "software," but the Copyright Act does not even use that word. What is does talk about are "computer programs," which are literary works. Just like "books," these works can be licensed (e.g., I license you the right to make a copy of my literary work, and recite it in public), or sold (e.g., I bough a copy of your literary work). Copies are, of course, material objects in which the work is fixed. It is perfectly sensible to sell a disc along with a license -- e.g., I sell you this disc in which my work is fixed, and I license you the right to make two copies onto computer hard drives and one copy onto a backup DVD.

    Christenson unfortunately failed to clearly state when it was referring to "software" as the intangible literary work and when it was referring to the tangible copy. But at least the context made that clear enough. It certainly seems to trash the Business Software Alliance's mantra that "software is licenses, not sold."

    It would be nice for the Ninth Circuit to finally acknowledge the existence of Section 202, which makes perfectly clear that copies and copyrights are two different things. Ownership of a copy has no bearing on copyright ownership. Ownership of a copyright has no bearing on ownership of the copy.

    My view is that the Ninth did indeed move the needle. There are active cases in the district courts in which Adobe is trying to claim that it only sells licenses for its "software". It muddies the waters, and some judges seem to take a first glance at Vernor as standing for the proposition that software is always licensed, not sold (though Vernor does not go that far, and Augusto certainly focused on ownership of the copy -- uh, phonorecord).

    But I think Adobe knows its charade is on shaky ground. I mean, seriously, do its corporate assets include millions of discs and computer hard drives in millions of homes all over the world? Does it own my hard drive because I downloaded (reproduced the work onto my hard drive under license) it onto my hard drive, converting it into a copy of Adobe's literary work? For that reason, Adobe is placing more emphasis on a "license to use" the literary work -- a right found nowhere in the Copyright Act. It uses "serial number license keys" to purport to control who may "use" (privately perform?) its works, and where.

    Our courts really need to step it up, and not let Adobe and its BSA cohorts redefine the Copyright Act. A vibrant first sale doctrine is essential to prevent those who depend on secondary markets from being disenfranchised from the promise of progress of science and the useful arts.

  • Aug 25th, 2015 @ 3:33pm

    A recipe for scrambled eggs can be copyrighted

    Lest anyone take too literally the notion that you can't copyright a recipe, there is a copyrighted work entitled "Copyrighted Recipe for Scrambled Eggs" -- see

  • May 5th, 2015 @ 8:19am

    Trade secrets?

    When I think of the "IP" bag, I include trade secrets. Although not created as a statutory right of "exclusion" (monopoly) like patents, copyrights and trademarks, Mike's framework still fits, and is perhaps better illustrated: Spilling the beans on a trade secret may get me in trouble because i spilled the beans, but the beans are not protected.

    Even with copyright, Mike is right that we must look only to the contours of the right. The private performance of a movie, for example, is never infringing. It is perfectly legal to watch a movie, and to privately perform a movie. The fact that I do so from a stolen DVD makes no difference. The fact that I do so from an infringing copy makes no difference. So, I'm caught watching a movie using a DVD that I stole from a homeless man, that he found in the trash, that was illegally made from an illegal cam-cording of a movie being illegally shown in a theater using a reel that was stolen at gunpoint in order to finance a terrorist group? Watching it is perfectly legal, and protected b the First Amendment.

  • Mar 4th, 2015 @ 12:36pm

    Republicans want to strengthen antitrust laws? LOL

    If a Republican Congress says it prefers to make antitrust laws the preferred way of dealing with something, what it really means is it doesn't want to deal with something. Ever since Reagan teamed up with the Chicago School Kool-Aid makers, "antitrust law" has been that weird uncle everyone tries to ignore during Thanksgiving dinners - a mere shadow of what it was 50-60 years ago.

  • Mar 4th, 2015 @ 12:22pm

    He's got it bass ackwards on Internet neutrality

    If we have self-driving cars, the last thing I want is for Verizon to be doing deals with BMW and Apple to make sure their cars never crash into each other, while Comcast threatens Nokia and Chevy with slow accident-avoidance response times if they don't pony up what BMW and Apple are paying Verizon.

  • Mar 4th, 2013 @ 10:33pm

    Re: Be silly that reseller rights are more than the creators.

    You have it exactly backwards. The Copyright Act specifically says that the right of the author to distribute copies of the work is "subject to" the right of the owner of the copy to distribute it without permission from the copyright owner. That is, you can't get a copyright without it being subject to the superior right of the copy's owner to lend it, sell it or give it away. And that makes perfect sense. It is quite common for us to own the tangible medium (paper, USB, computer hard drive) before the copyrighted work becomes embodied in it, making it a "copy" under the Act. If I own a piece of paper and you license me the right to reproduce your poem onto it, I still own the paper, and have the right to sell it. It should make no difference that I happened to be in Ontario at the time I reproduced it onto my paper.

  • Mar 4th, 2013 @ 10:27pm

    Re: Re: What about agriculture?

    It would not affect your sale of the taco itself, but it would affect the sale of any wrapper containing copyrighted text or images. Crazy, I know. Some video games have a copyrighted disc made in the USA and copyrighted packaging made abroad.

  • May 18th, 2012 @ 11:55am

    Re: No, this is more like recipes

    Ah, but you can copyright a recipe. See John T. Mitchell, Copyrighted Recipe for Scrambled Eggs, 2007 (Trademark Registration No. TX0007357813). And, "prior art" relates to patents, not copyrights. The devil is in idea/expression dichotomy.

  • May 18th, 2012 @ 11:52am

    Re: Obscene not the same as illegal

    It is incorrect to say that "obscene pornography" is illegal. Obscene material is not protected by the First Amendment to the U.S. Constitution (so held a 5-4 majority in the Supreme Court), but whether it is illegal depends on what specific jurisdiction you are in, what jury is judging it, and when. One court held that what may have been obscene 9 months earlier it not the same as what is obscene today, since obscenity is judged by the "contemporary" community standard, which may change rapidly.

  • May 18th, 2012 @ 11:18am

    Re: You CAN copyright a recipe

    The myth, "you still cannot copyright a recipe," persists. It is false.

  • Aug 23rd, 2011 @ 5:39am

    Might this stance backfire?

    On the question of "Whether the District Court erred by concluding that making a copyrighted work available for download on an online file-sharing network is insufficient to constitute a 'distribution' under 106(3) of the Copyright Act," I've always wondered whether the copyright owner position might backfire, and harm all copyright owners. Given that the 106(3) right is expressly made subject to 109(a) (the first sale doctrine), one would think that any expansion in the reach of 106(3) to cover making available a copy for reproduction over the Internet would necessarily expand the reach of 109(a) as well. Although the plain language of 106(3) clearly applies to "copies and phonorecords" distributed in tangible form (as those two are defined as tangible objects, if plain English can make leaving your copy out where someone can copy it a violation of the distribution right, then wouldn't anyone who legally reproduced a work from a copy or phonorecord that the copyright holder made available over the Internet necessarily have the right, without the consent of the copyright holder, to make that copy or phonorecord available to others? I know it sounds silly, but no sillier than saying I "distribute [tangible] copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership [of the physical object], or by rental, lease, or lending [of the physical object]" whenever I allow someone access to my copy sufficient to allow them to reproduce it.

  • Dec 12th, 2010 @ 8:53pm

    Re: $15 for DVD? HUH?

    Perfectly legal -- an has been forever. Often called the "first sale doctrine," it is currently codified in two sections of the Copyright Act. Section 202 says that copies and copyrights are two separate things, and selling one does not convey the other. Section 109(a) says that the owner of a copy lawfully made under the Copyright Act is entitled, without the consent of the copyright owner, to transfer title or possession to anyone. Section 106, which confers the copyright in distribution, makes it "subject to" section 109, so the right of the owner to rent, lend, sell or give away the disc trumps the rights of the copyright owner. But it is provides a huge benefit to copyright owners. I mean, how much would you really pay for a new car if you had to have the manufacturer's permission to trade it in, sell it, let someone else borrow it, or let the junk dealer pick it up? I'm willing to pay $15 bucks in part because I am free to part with it.

  • Jun 2nd, 2010 @ 11:30am

    Might not CopyLeft give protection for lawyers who want it?

    I've filed my fair share of briefs, and other lawyers have often used them either to aid their own research or even as copy/paste for their own briefs. I have no problem with that, but the bias in the current copyright system is that no one knows I have no problem with that. The legal presumption is that I am a copyright maximalist. Perhaps I should be adding a Creative Commons type of license to my briefs which would allow such uses, but with a proviso that prohibits services such as LEXIS or WestLaw from charging for them (or if they do, requires them to pay me a fee for permission).

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