The Privacy Commissioner of Canada has launched a new investigation into Facebook's privacy practices. The new investigation stems from a complaint filed in the wake of Facebook changing its privacy default settings.
Autodesk, Inc. v. Dassault Systemes Solidworks Corp., 2009 WL 5218009 (N.D. Cal. December 31, 2009)
One of the issues in the case of Autodesk, Inc. v. Dassault Systemes Solidworks was whether Autodesk could claim trademark rights and the letters “DWG”. The .dwg (“drawing”) file extension is the native file format for Autodesk’s flagship product AutoCAD.
Plaintiff Autodesk [...]
The U.S. Customs may search your laptop and copy your hard drive when you cross the border, according to their policy. They may do this even if they have no particularized suspicion of wrongdoing on your part. They claim that the Fourth Amendment protection against warrantless search and seizure does not apply. The Customs justifies this policy on the grounds that “examinations of documents and electronic devices are a crucial tool for detecting information concerning” all sorts of bad things, including terrorism, drug smuggling, contraband, and so on.
Historically the job of Customs was to control the flow of physical goods into the country, and their authority to search you for physical goods is well established. I am certainly not a constitutional lawyer, but to me a Customs exemption from Fourth Amendment restrictions is more clearly justified for physical contraband than for generalized searches of information.
The American Civil Liberties Union is gathering data about how this Customs enforcement policy works in practice, and they request your help. If you’ve had your laptop searched, or if you have altered your own practices to protect your data when crossing the border, staff attorney Catherine Crump would be interested in hearing about it.
Meanwhile, the ACLU has released a stack of documents they got by FOIA request.
The documents are here, and their spreadsheets analyzing the data are here. They would be quite interested to know what F-to-T readers make of these documents.
ACLU Queries for F-to-T readers:
If the answer to any of the questions below is yes, please briefly describe your experience and e-mail your response to laptopsearch at aclu.org. The ACLU promises confidentiality to anyone responding to this request.
(1) When entering or leaving the United States, has a U.S. official ever examined or browsed the contents of your laptop, PDA, cell phone, or other electronic device?
(2) When entering or leaving the United States, has a U.S. official ever detained your laptop, PDA, cell phone, or other electronic device?
(3) In light of the U.S. government’s policy of conducting suspicionless searches of laptops and other electronic devices, have you taken extra steps to safeguard your electronic information when traveling internationally, such as using encryption software or shipping a hard drive ahead to your destination?
(4) Has the U.S. government’s policy of conducting suspicionless searches of laptops and other electronic devices affected the frequency with which you travel internationally or your willingness to travel with information stored on electronic devices?
Remember what put the debate over net neutrality into high gear? In 2007, EFF and the Associated Press confirmed suspicions that Comcast was clandestinely blocking BitTorrent traffic. It was one of the first clear demonstrations that ISPs are technologically capable of interfering with your Internet connection, and that they may not even tell you about it. After receiving numerous complaints, the FCC in 2008 stepped in and threw the book at Comcast, requiring them to stop blocking BitTorrent. The Comcast-BitTorrent experience put net neutrality at the top of the FCC agenda.
Yet now that the FCC has formally issued draft net neutrality regulations, they have a huge copyright loophole in them — a loophole that would theoretically permit Comcast to block BitTorrent just like it did in 2007 — simply by claiming that it was “reasonable network management” intended to “prevent the unlawful transfer of content.”
You heard that right — under these conditions, the new proposed net neutrality regulations would allow the same practices that net neutrality was first invoked to prevent, even if these ISP practices end up inflicting collateral damage on perfectly lawful content and activities.
When we saw the loophole, we had to ask ourselves, “Is this real net neutrality?” And the answer was simply, “No.” The entertainment industry is already pressuring ISPs to become copyright cops. Carving a copyright loophole in net neutrality would leave your lawful activities at the mercy of overbroad copyright filtering schemes, and we already have plenty of experience with copyright enforcers targeting legitimate users by mistake, carelessness, or design.
If net neutrality regulations are to be taken seriously at all, then the loophole must be closed. Sign the petition to demand real net neutrality from the FCC.
A group of friends gathered after work a few years ago to record what may be now the most popular performance of Harvey Danger‘s "Flagpole Sitta." In a video that has since been viewed more than 2 million times on Vimeo, the 30 or so friends took turns lip-syncing, dancing and then ultimately falling to the floor as a group at the song’s end.
Sean Nelson, the frontman for Harvey Danger, wrote to Vimeo’s co-founder Zach Klein: "That Flagpole Sitta video made me incredibly happy, just when I thought there was NOTHING that could make me listen to that song again. A thousand thank you’s."
The problem, however, is that some of the friends mouthing those catchy lyrics were employees of Vimeo. Several record labels working under the EMI Music group filed a complaint on December 10, 2009, alleging that Vimeo not only hosts high-quality, full-length recordings of their music, but also "actively encourages" and "induces" its users to post that music as part of original work, most commonly "lip dubs." No doubt based on videos like the one above, the complaint also alleges that Vimeo staff participates in “making, selecting,
commenting on, and at times choosing to delete audiovisual works that comprise the Video website."
EMI is pointing fingers at videos like this, this, and this as evidence of the site’s infringement and awareness of that infringement. That awareness is important because it could distinguish this case from a similar one against Veoh.com, in which that video-sharing site found protection under the Digital Millennium Copyright Act’s "safe-harbor" provisions. Those provisions prevent sites from being liable for the copyright infringement of their users so long as they promptly remove infringing material once notified by the copyright owner. In any event, Vimeo is refusing to remove the videos in question. Klein called lip-dubbing "harmless" and "fun."
But a more pressing question: Is it also fair?
Take the following video for example. A couple aboard a plane passes the time by recording themselves lip-syncing Elton John’s "Rocket Man." Copyright law gives the original producer of a sound recording certain exclusive rights in the work. 17 U.S.C. §106. This means that, unless Elton John or his label permits "Rocket Man" to be reproduced, distributed or performed publicly—that includes online—anyone who does so infringes the copyright and could be liable unless the use qualifies as a fair use.
So, the couple that made the video incorporating "Rocket Man" may be infringing, but their use may be fair. EMI is targeting Vimeo instead of the couple, but to the extent their use is fair Vimeo would likely be off the hook. Fair use permits uses of copyrighted
materials considered beneficial to society. These uses include those for "purposes of criticism, comment, news reporting, teaching, scholarship or research," 17 U.S.C. §107, but there is no hard-and-fast litmus test.
To determine whether fair use applies, courts consider four well-known factors: (1) The purpose and character of the use, including whether the use is of commercial nature or is for nonprofit educational purposes; (2) The nature of the copyrighted work; (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) The effect of the use upon the potential market for or value of the copyrighted work.
Though work done for commercial purposes doesn’t preclude a fair use defense, it does weigh against the defendant. Campbell v. Acuff Rose Music, 510 U.S. 569 (1994). Lip dub videos by themselves aren’t commercial. They are made for fun and shared with no expectation of profit. Vimeo, however, is a commercial website, and it features videos to attract viewers and advertising revenue, something EMI is at pains to point out in its complaint.
Either way, a case could be made that these lip dubs are transformative, meaning they differ from the original work in a way that creates new meaning. Adding video arguably turns the original sound recording into a new expression altogether. Elton John’s "Rocket Man" becomes less about the music when it’s accompanied by two people rocking out on a plane. The viewer is no longer concerned with the music and lyrics, so much as how the people look when singing the words. The thrust of the new work is humor: the humor in watching ordinary people mouthing the words of big pop stars in incongruous places while engaged in incongruous activities.
Not convinced? Consider the choreography that’s behind the Harvey Danger lip dub or how funny this girl looks trying to sing along to The Proclaimers. That type of creativity transcends the audio and creates something new altogether.
A problem for Vimeo, though, is Elton John’s work is also creative. Under the second fair use factor, the more creative a copyrighted work is, the more protection it generally receives. Consider a creative spectrum with static on one end and Mozart on the other. Elton John is clearly more Mozart than static and the court will likely, in this respect, favor EMI’s interest in protecting his work.
On factor three, lip dub videos generally use the entire copyrighted recording, which also weighs against fair use. This might also weigh against Vimeo on factor four, the effect on the market (or a potential market) for the copyrighted work. If a court determines that fewer consumers will buy the original recording because lip dubs make the whole thing available for free online, that’s bad for Vimeo. On the other hand, who would actually substitute a goofy lip-synch for a legit copy of the song that can be played on a home stereo or portable mp3 player? Maybe it’s not as outlandish as it sounds—one could simply play the video, minimize the window, and enjoy the
original, high-quality recording without watching the performers. Rather than paying 99 cents to iTunes, one could strip the song from the video and create a new track, ready for shifting to that mp3 player. Copyright law exists to protect the economic interests of creators. Do they stand to gain or lose from lip dub videos? You get a sense of why factor four of the fair use test can be tricky sometimes.
Video sites have a history of featuring material that may not be protected by fair use. Wanting to hear a song by The Roots one night, but in the car and unable to purchase it, I accessed YouTube on my iPhone and played one of several videos that used the entire song while showing nothing more than the cover art to Rising Down. This is clearly the type of "video" that should be challenged, but I don’t think lip dubs are the same. They have independent value. They are creative. They transcend the copyrighted material and become something new. At the very least, they’re funny. Although I’m skeptical a court will favor this type of expression over what may be the economic interests of copyright holders, I do hope that in some way, on some site, lip dubs will stick around.
(Justin Silverman is a CMLP Legal Intern and a third-year evening student at Suffolk University Law School. Justin founded the Media and Communications Law Society and its SuffolkMediaLaw.com blog at Suffolk Law in 2009.)
In conjunction with Lithuanian anti-piracy outfit LANVA, software giant Microsoft has sued the alleged operator of the country’s largest BitTorrent site. Microsoft is demanding $43 million from the defendant and his company for assisting in the illegal distribution of Office 2003 and 2007.
That’s the title of my Slaw post for today. It reads as follows:
Simon beat me to the punch mentioning the iPad. I’ve been watching a live-blog of the event. These are my first impressions.
It’s meant for things like “Browsing the web. Doing email. Enjoying and sharing pics. Watching videos. Enjoying music. Playing games. Reading ebooks” . Jobs [...]
A hotels group has gained control of over 1,500 domain names, using a dispute resolution process to take control of them from one man in Germany who controls over 70,000 domain names.
IT lawyers have been muttering about the case between BSkyB and EDS (now HP-owned) for a number of years. Finally, today the judgment is out – and initial reports (and here) suggest that it doesn’t look good for EDS (though…
Install0us is an application used by iPhone users to browse, download and install millions of pirated applications. After becoming uneasy over its legal status, its creator has taken advice from a lawyer. The conclusion is that the risk is too great and development of the software will stop. Of course, others already have plans to fill the gap.