Happy Halloween !

This is our Halloween “Great Pumpkin” for this year. The carving was done so as to leave a very thin transparent outer skin which gives the pumpkin its intense reddish glow from the red candle inside. The photograph was taken just 30 minutes ago, at midnite in Germany.

Great Pumpkin

Happy Halloween to all.

Copyrights, Blogs, News, Content Aggregation and RSS Feeds

RSS and Atom Feeds: Really Simple Syndication

RSS feeds are revolutionizing the way that information is being processed on the Internet. Even Google just started their own Google Reader for RSS feeds this month.

What is the legal status of RSS feeds under Internet Law and IP Law (“intellectual property” law), especially in view of the fact that many blogs and news media make their content available through their RSS feeds? We include ATOM feeds here under the general rubric of RSS feeds, i.e. as “Really Simple Syndication“. Indeed, the IEEE sees Atom as the “standard in syndication“, even though the term RSS is everywhere used.

Implied Licenses Granted by Placing Material Online?

Eric Goldman at the Technology & Marketing Law Blog discusses whether making RSS feeds publicly available thereby grants an implied license of use to RSS feed users, and if so, how such an implied license could be negated, if necessary. But see Fair Use Vs. Fared Use: The Impact of Automated Rights Management on Copyright’s Fair Use Doctrine by Tom W. Bell, 76 N. Carolina L. Rev. 557 (1998).

As Goldman writes:
“[I]f a blogger makes a feed of his/her blog available, what can others [legally] do with that content?”

Take a look at his analysis and see also Scobleizer for a panoply of opinions on this topic. The non-exclusive implied license granted by placing materials online is also discussed at When One Thing Leads to Another – Linking and Metatag Liability, by Barbara S. Murphy and Lynn S. Walker, Georgia State University College of Law, Law and the Internet, Professor Wiseman, Summer 2003 (see II.1 in that article).

The Legality of Data Harvesting (not to be confused with E-Discovery Harvesting)

One issue that faces RSS feeds is the practice of “data harvesting” for purposes of creating websites which then sell ads to make money. Martin Schwimmer at the Trademark Blog refers to a ClickZ article by Pamela Parker which refers to other instances of data harvesting such as the ad aggregator Oodle.com or the job aggregator Indeed.com.

There are data harvesting cases which have been decided and which clearly support the principle that data harvesting is legal under some circumstances. See the article Golf Scores v. Yacht Sales: Copyright Law and Data Extraction by Javad Heydary and By No Other (related USA Today, Nautical Solutions Marketing v. Boats.com). At the same time, there are also cases which clearly have found other kinds of data harvesting to be illegal, albeit not necessarily on copyright infringement grounds, e.g. Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238 (S.D.N.Y. 2000), aff’ d, 356 F.3d 393 (2d Cir. 2004). See Phillips Nizer for an abstract of that case and the Boston University School of Law, Journal of Science and Technology Law, Legal Update by James J. Tracy for a contract view of browsewrap agreements.

Terms of Use for RSS Feeds

The terms of use for RSS feeds published by mainstream publishers such as the New York Times clearly claim a full copyright to content syndicated by RSS feeds. These terms of use strictly exclude commercial use such as commercial data harvesting.

The New York Times offers over 30 free RSS feeds, albeit under the following terms and conditions:

“We encourage the use of NYTimes.com RSS feeds for personal use in a news reader or as part of a non-commercial Web site or blog. We require proper format and attribution whenever New York Times content is posted on your Web site, and we reserve the right to require that you cease distributing NYTimes.com content. Please read the Terms and Conditions for complete instructions.

NYTimes.com also offers a free headline feed for displaying headlines on personal or professional Web sites, for non-commercial purposes. For more information and instructions, see Add New York Times Headlines to Your Site.”

Use of Headlines Written by Other Sources

With regard to the use of headlines, the Japanese Intellectual Property High Court recently decided that it was copyright infringement for a commercial online enterprise – without asking for permission – to use newspaper headlines on its website from Japan’s largest daily newspaper. We do not doubt that courts in other countries would make similar holdings.

Fair Use of RSS Feeds and Attribution

The free use which the New York Times offers is essentially an expanded “fair use”, i.e. use of news on a “non-commercial Web site or blog”. This is essentially similar to the “Creative Commons” license found at the bottom of the LawPundit blog pages, where use of LawPundit material – with proper attribution – is permitted for non-commercial purposes. The NY Times also requires proper attribution of their materials, although attribution has an unclear status in copyright law as far as “fair use” of copyrighted materials is concerned.

As written by Mark A. Lemley, Rights of Attribution and Integrity in Online Communications, 1995 J. ONLINE L. , art. 2, par. 20:

“Both of these cases [Waldman Publishing Corp. v. Landoll Inc. and Robinson v. Random House Inc)] suggest that a right of attribution does in fact exist in United States law, at least in circumstances where the failure to attribute has a commercial effect. If you copy material without identifying it as copied, that fact may hurt you in a copyright infringement suit. Even if you cannot be sued for copyright infringement, your failure to attribute copied material may be actionable under the Lanham Act if it confuses consumers as to the source of the copied material. Taken together, these cases suggest that the worst cases of nonattribution will be taken care of by the existing law.”

Attribution not required for Works in the Public Domain

The rule is different for works in the public domain, where attribution is not required. This was decided in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003). See Stacey L. Garrett, No need to Search the Nile: The Supreme Court Clarifies the Use of Public Domain Works in Dastar v. Twentieth Century Fox, Journal of Law, Technology & Policy (Univ. of Illinois), Fall, 2003.

Where is the Line between Commercial and Non-Commercial Use?

The line between a non-commercial or commercial website or blog is not clear. In Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) , the US Supreme Court found:

“The fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use. “[E]very commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright.” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S., at 451 . In arguing that the purpose of news reporting is not purely commercial, The Nation misses the point entirely. The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price. See Roy Export Co. Establishment v. Columbia Broadcasting System, Inc., 503 F. Supp., at 1144; 3 Nimmer 13.05[A]1., at 13-71, n. 25.3.”

Many websites and blogs place advertising on their online pages to help pay for costs, e.g. of webspace, etc. and are not really “commercial” undertakings as such, nor are they generally viewed to be “commercial” in nature. Where will the courts draw the line?

What happens, for example, when an otherwise “non-commercial” website or blog is so successful that its commercial ads begin to reap actual profits for the website or for the blogger? Once that happens, such websites or blogs surely become “commercial” in nature, which makes it much more difficult, but not impossible, to invoke the “fair use” exception to the copyright laws.

But even if no profit is being made, could a site harvesting RSS feeds use RSS feed material to promulgate e.g. pornographic advertising on a website in the hope of gain? The answer here must surely be “no”, and evidence of purpose, rather than profit, ought to be sufficient.

Clear Terms of Use are Important

In any case, put into different words, RSS feeds “belong” as such to the originator of the RSS feed. Fair use can be made of these feeds, but not commercial use. The solution for the “grey cases” may be in part that RSS feed originators clearly declare the permissible uses of their materials on the website pages. The New York Times terms of use listed here provide a good model to start. Of course, no copyright holder can prohibit lawful fair use, even if such fair use were to be expressly denied by the copyright owner. There will be friction in this grey area.

What about RSS Feed Catalogues?

The most interesting legal question in this connection is whether the use of RSS feeds for legitimate “cataloging purposes” by a commercial enterprise, such as Technorati or Google BlogSearch, is fair use. We think it is in principle, because we find it to be a permissible “transformative use” as in the Arriba case. However, we do not know what the courts will decide in this regard.

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IP – Is "Intellectual Property" a Misnomer?

At Slate’s “Jurisprudence: The law, lawyers, and the court”, Tim Wu, Professor of Law at Columbia and a teacher of copyright law, has a nice October 17, 2005 article titled Leggo My Ego – GooglePrint and the other culture war, in which he makes the following comparison between the planned GooglePrint “book searches” and ordinary “maps”:

“Consider what it would mean, by analogy, if map-makers needed the permission of landowners to create maps. As a property owner, your point would be clear: How can you put my property on your map without my permission? Map-makers, we might say, are clearly exploiting property owners, for profit, when they publish an atlas. And as an individual property owner, you might want more control over how your property appears on a map, and whether it appears at all, as well as the right to demand payment.”

This idea by Wu mirrors the argumentation made by Larry Lessig at Lessig Blog:

“Property law since time immemorial had held that your land reached from the ground to the heavens. Then airplanes were invented — a technology oblivious to this ancient law. A couple of farmers sued to enforce their ancient rights — insisting airplanes can’t fly over land without their permission. And thus the Supreme Court had to decide whether this ancient law — much older than the law of copyright — should prevail over this new technology.

The Supreme Court’s answer was perfectly clear: Absolutely not. “Common sense revolts at the idea,” Justice Douglas wrote. And with that sentence, hundreds of years of property law was gone, and the world was a much wealthier place.”

The concept of “property by law” is as unnatural as it is thought to be natural. There was a day when nothing on the Earth was owned by anyone, prior to the emergence of Mankind. In the beginning, property was anything that could be defended as such. Indeed, most land property rights are rooted in the exercise of sheer force, the force by which a piece of property, at some distant point in history, was taken and occupied either from other men or from nature.

Let us take America as an example. Did Native Americans “own” all of the Americas just because they were there? And what about their own legends of having driven out other – former – groups from this property?

“As Europeans settled Michigan they crowded out the native Indian populations, destroying ancient burial sites and raiding them for treasures and artifacts. They were particularly fascinated by the burial mounds scattered throughout the state.

Even the native Indians claimed not to know who the mound builders were. Some recalled old legends that their ancestors had conquered and ousted an ancient evil civilization which had dug for copper and built mounds. “

So. Even in this traditional sphere of “real property claims”, there are no absolutes.

What about intellectual property?

If we look historically at copyrights, trademarks and patents, we find that in the good old days, there were no intellectual property rights at all. Rather, all of these rights are modern legal inventions which have dynamically expanded in the modern age.

Mark A. Lemley (William H. Neukom Professor of Law and Director of the Stanford Program in Law, Science and Technology) has an abridged article on Property, Intellectual Property, and Free Riding in the Fall, 2005 Issue of the Stanford Lawyer (Vol. 40, No. 1, pp. 34-39) which was originally published in the Texas Law Review, March, 2005.

Lemley writes that intellectual property law (IP Law) has nothing to do with common-law based property law as taught in the law books. Rather, IP Law is pure “statutory law”, created by legislation.

Lemley writes that “the basic economic justification for intellectual property law comes from what was only an occasional problem with tangible property – the risk that creators will not make enough money in a market economy to cover their costs“.

This original compensatory view, which was adopted to give holders of intellectual property rights a proper incentive to be creative, has recently mushroomed into a view “that creators will not have sufficient incentive to invent unless they are legally entitled to capture the full social value of their inventions“.

But that of course is a horse of a different color, which, in our own view, involves countervailing economic costs to society which are – thus far – not compensated for by the copyright holder (whereas e.g. real property holders have to pay property taxes).

According to Lemley, there are five such significant economic costs which attach to the granting of “overbroad intellectual property rights”. These are:

1. Market distortion, creating static inefficiencies (deadweight losses)
2. Dynamic inefficiencies, created by interfering with the ability of other creators to work
3. Socially wasteful rent-seeking behavior
4. Administrative costs
5. Distortionary overinvestment in research and development

In other words, or so we interpret Lemley’s view, if an intellectual property right holder wanted to capture the full social value of their inventions or writings, then that same holder should also be prepared to pay for the costs to society of granting that holder that full social value, costs which someone has to pay. Regretably, many intellectual property right holders do not see this aspect of the issue.

Of course, no one can capture the full social value of the works that they produce any more than they can pay for the costs to society which the protection of their work engenders. As a result, intellectual property rights are not absolute and permit a “fair amount” of “free riding”, of which something like “fair use in copyrights” would be a good example.

As Lemley writes:

“Granting intellectual property rights imposes a complex set of economic costs, and it can be justified only to the extent those rights are necessary to provide incentives to create. The economics of intellectual property simply do not justify the elimination of free riding.”

Lemley concludes that:

“Intellectual property law is in need of reform. Many of the problems stem from the association that lawyers and judges often make between intellectual property and real property. In fact, there are very few similarities between the two fields of law….”

“If people think of intellectual property as a form of property because of its name, then the name should probably go…let’s start talking about “IP.”

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Regulation of Political Speech on the Internet – Blogs and Blogging

VoteLaw has a posting about a one-page order just issued by the U.S. Court of Appeals for the D.C. Circuit which has “declined to reconsider a decision requiring the FEC to write new rules to carry out a 2002 campaign finance law“. Reference is made to a Boston Globe AP article of October 24, 2005 titled “Appeals court declines to review decision on campaign finance rules“.

This is a development of utmost importance to blogging. What is the background?

The Bloglines Blog (see also WingedPig) has a posting about the fact that the FEC (Federal Election Commission) has been reviewing regulations concerning political speech on the Internet, including blogging.

The Committee on House Administration held a hearing on the topic on September 22, 2005.

The issues involved are found in this statement by Committee Chairman Robert W. Ney which we have excerpted:

“The Committee is meeting today to hear testimony on the subject of regulation of political speech and activity on the Internet….

The Bi-Partisan Campaign Reform Act (McCain-Feingold or BCRA) required the Federal Election Commission (FEC) to develop regulations to implement the Act. The Commission determined that Congress did not intend for BCRA to cover Internet communications and, therefore, adopted regulations that exempted them.

Congressman Shays and Meehan, believing the FEC regulations did not follow the intent of BCRA, sued the Commission. The Court [see material below] agreed with the Congressmen, and ordered the FEC to rewrite the rules.

As a result of this lawsuit and Court decision, the FEC was forced to rewrite the rules that cover communications on the Internet. That new rulemaking began in March 2005.

While this new rulemaking was going on, some Members of Congress were making clear that they did not intend for BCRA to cover the Internet, and that they did not want the FEC regulating these communications. In March, Congressman Conyers and 13 of his colleagues wrote to the FEC seeking an exemption for web logs or blogs….

Identical bills were also introduced in both bodies to preserve the exemption – in the Senate by Minority Leader Harry Reid and in the House by Jeb Hensarling (R-TX). Their bill language was adopted by this committee, and included in H.R. 1316, the Pence-Wynn bill, reported by the committee on June 8, 2005.

These bi-partisan congressional endorsements of the exemption show there still some issues on which both sides of the aisle can agree. We’ll later hear from two witnesses who operate blogs, one conservative and one liberal, who probably do not agree on anything except that they do not want the FEC to be regulating what they say or do on their websites.

The debate here then is not between Republicans and Democrats or liberals and conservatives. Instead, the debate here is between those who favor regulation and those who do not….”

The court decision in question was described at the hearing by Scott E. Thomas, Chairman, Federal Election Commission as follows [we quote footnote 1 at the linked source]:

“The U.S. District Court for the District of Columbia concluded that the Commission’s broad Internet exemption would “severely undermine [the Federal Election Campaign Act’s] purposes,” and would permit “rampant circumvention of the campaign finance laws and foster corruption or the appearance of corruption.” Shays v. FEC, 337 F. Supp. 2d 28, 70 (D.D.C. 2004), aff’d, 414 F.3d 76 (D.C. Cir. 2005), petition for rehearing en banc filed (Aug. 29, 2005). Though the district court held some 15 regulations invalid, it nonetheless indicated that pending resolution of the litigation and adoption of needed revisions by the FEC, the challenged regulations remain in effect. Shays v. FEC, 340 F. Supp. 2d 39, 54 (D.D.C. 2004).”

This is the court decision which the D.C. Appeals Court declined to reconsider.

Here are the issues:

Thomas points out in his testimony that the Internet should be regulated by the BCRA because the Internet is becoming a major player on the political scene.

Vice Chairman Michael E. Toner of the FEC testified that political speech on the internet should not be regulated and that the BCRA was never intended to apply to the internet.

Commissioner Ellen L. Weintraub of the FEC emphasized that “the focus of the FEC is campaign finance. We are not the speech police.” Hence, Weintraub indicates that the proposed rules will in fact regulate the internet, but that substantial exemptions will be made.

Bradley A. Smith, Professor of Law at Capital University Law School, and former Chairman of the FEC, testified that the “the on-line community has reason to be concerned” and that “there is a sizeable and powerful lobby both in and out of Congress that clearly wants to regulate the internet….A regulated internet will strengthen those who already have political power and influence; a deregulated internet will boost the influence of ordinary Americans who just want to play by the rules….” Smith particularly points to the inherent conflicts created between internet regulation and press freedom, the resolution of which is a controversial matter. For the position of blogs, see The Volokh Conspiracy.

Lawrence Noble, Executive Director and General Counsel of the Center for Responsive Politics, testified that: “There is little doubt that the Internet can be used in much the same way television, radio and the print media have been before; as an avenue for the spending of large amounts of undisclosed soft money to finance various forms of political ads aimed at electing or defeating Federal candidates. “

Michael J. Krempasky of RedState.org provided testimony from one side of the political spectrum of blogging and Duncan Black of Eschaton provided testimony from the other side. Both stated that blogs should be exempted from the BCRA.

Some links to the history of this topic are:
CNet News.com
Volokh Conspiracy

In the Agora
Michelle Malkin
Democracy Project
Ask Jeeves Blog
Captain’s Quarters

Given this court decision and barring Congressional action, there will now be much, much more about this matter on the blogosphere, you can be sure.

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Crossposted to Punditmania.

Stanford Law Grads as Technology Company General Counsels

As a Stanford Law School alum, I just received the Fall, 2005 Issue of the Stanford Lawyer (Issue 73, Vol. 40, No. 1) which I always read from cover to cover. This issue is powerpacked with technology.

The feature article by Josh McHugh (photography by Peter Stember) is entitled “Technology’s Field Generals” and profiles the general counsels at “Microsoft, Google, Cisco, eBay, Yahoo!, Qualcomm, Autodesk, and Oracle – Stanford Law School alums, all….

Although Stanford is known for its political liberalism, these general counsels show the other side of the law school equation, i.e. the indisputable fact that top faculty and top students also produce top legal people for business and technology.

It is not a question of politics – but rather one of competence.

As Stanford Law School Dean Larry Kramer writes in his introductory “Leading the Way in Law and Technology“:

“[T]his issue of Stanford Lawyer touches on just a few of the myriad ways in which Stanford Law School has become the world’s premier place for teaching and scholarship about the legal dimensions of new technology and the astonishing, often perplexing, society it is creating…. Though ranked as one of the top universities in the world, this is not a place where people sit on their laurels or tradition. Amazing things are going to happen here in the next decade, especially in law and technology.”

CALEA Wiretap Law to Increase College Tuition by $450? – FCC Rule Under Fire

Sam Dillon and Stephen Labaton write at the New York Times online on October 23, 2005 that “Colleges Protest Call to Upgrade Online Systems“.

The protest relates to the 1994 “Wiretap Law”, the 1994 Communications Assistance for Law Enforcement Act (CALEA), which has been very broadly interpreted in an FCC notice issued on August 5, 2005 and published October 13, 2005 in the Federal Register (html, pdf, summary).

As written by the FCC at its AskCALEA compliance assistance page:

“In October 1994, Congress took action to protect public safety and ensure national security by enacting the Communications Assistance for Law Enforcement Act of 1994 (CALEA), Pub. L. No. 103-414, 108 Stat. 4279. The law further defines the existing statutory obligation of telecommunications carriers to assist law enforcement in executing electronic surveillance pursuant to court order or other lawful authorization.

The objective of CALEA implementation is to preserve law enforcement’s ability to conduct lawfully-authorized electronic surveillance while preserving public safety, the public’s right to privacy, and the telecommunications industry’s competitiveness.”

The August, 2005 notice of the FCC provides:

“Responding to a petition from the Department of Justice, the Federal Bureau of Investigation, and the Drug Enforcement Agency, the Commission determined that providers of certain broadband and interconnected voice over Internet Protocol (VoIP) services must be prepared to accommodate law enforcement wiretaps, the Federal Communications Commission ruled today.

The Commission found that these services can essentially replace conventional telecommunications services currently subject to wiretap rules, including circuit-switched voice service and dial-up Internet access. As replacements, the new services are covered by the Communications Assistance for Law Enforcement Act, or CALEA, which requires the Commission to preserve the ability of law enforcement agencies to conduct court-ordered wiretaps in the face of technological change.

The Order is limited to facilities-based broadband Internet access service providers and VoIP providers that offer services permitting users to receive calls from, and place calls to, the public switched telephone network. These VoIP providers are called interconnected VoIP providers.

The Commission found that the definition of “telecommunications carrier” in CALEA is broader than the definition of that term in the Communications Act and can encompass providers of services that are not classified as telecommunications services under the Communications Act. CALEA contains a provision that authorizes the Commission to deem an entity a telecommunications carrier if the Commission “finds that such service is a replacement for a substantial portion of the local telephone exchange.”

Because broadband Internet and interconnected VoIP providers need a reasonable amount of time to come into compliance with all relevant CALEA requirements, the Commission established a deadline of 18 months from the effective date of this Order, by which time newly covered entities and providers of newly covered services must be in full compliance. The Commission also adopted a Further Notice of Proposed Rulemaking that will seek more information about whether certain classes or categories of facilities-based broadband Internet access providers – notably small and rural providers and providers of broadband networks for educational and research institutions – should be exempt from CALEA.

The Commission’s action is the first critical step to apply CALEA obligations to new technologies and services that are increasingly used as a substitute for conventional services. The Order strikes an appropriate balance between fostering competitive broadband and advanced services deployment and technological innovation on one hand, and meeting the needs of the law enforcement community on the other.”

As written at the New York Times:

“The action, which the government says is intended to help catch terrorists and other criminals, has unleashed protests and the threat of lawsuits from universities, which argue that it will cost them at least $7 billion while doing little to apprehend lawbreakers. Because the government would have to win court orders before undertaking surveillance, the universities are not raising civil liberties issues….”

Lawyers for the American Council on Education … are preparing to appeal the order … Terry W. Hartle, a senior vice president of the council, said Friday….

The universities do not question the government’s right to use wiretaps to monitor terrorism or criminal suspects on college campuses, Mr. Hartle said, only the order’s rapid timetable for compliance and extraordinary cost….

Even the lowest estimates of compliance costs would, on average, increase annual tuition at most American universities by some $450….

Hat tip to Morningstar.com

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Stanford on iTunes – The Future is Here

Stanford on iTunes !?

Via if:book, the Free Range Librarian, and the Georgia State University Library, we were linked to an October 21, 2005 story by Doug Lederman at Inside Higher Ed News entitled “The sounds of Stanford, via the iPod” concerning the October 20, 2005 Stanford University announcement that it was cooperating with Apple to make audio content of various kinds available to students and alumni across the Stanford on iTunes website:

“The project has two prongs. Through the Stanford on iTunes Web site, the university will make lectures, music, sports and other content available not only to its alumni but to the public, free of charge. Stanford unveiled the site Thursday as it opened its reunion weekend, Stocker said, and alumni crowded around a campus booth downloaded music and lectures onto their iPods. “It’s already creating a lot of buzz,” he said.

The other part of the Stanford-Apple collaboration – and the one with perhaps greater implications for others in higher education – is a controlled-access Web site through which students will be able to download course materials. The restricted-access iTunes site will enable Stanford students to load course lectures and other audio content (and, eventually, video content, now that Apple is introducing a new version of iTunes that includes movies and other images) onto their iPods and listen to them whenever they wish.”

We definitely see applications here to the law school curriculum.