Intellectual Property Directions

Who knew! The keys to the jail are held by the Librarian of Congress! The jail in question is the monopoly lock on iPhone/iPad applications that Apple has been trying to assert using The Digital Millennium Copyright Act. As you probably know, you have to modify your iPhone - to “jailbreak” - in order to load applications that aren’t provided through Apple’s iTunes store. You also have to jailbreak your phone to use a cell phone carrier other than AT&T.

Under the terms of the The Digital Millennium Copyright Act it is illegal to circumvent digital rights management schemes. However, also included in the act, is the option for the Librarian of Congress to exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. In the most recent ruling, the Librarian has exempted six new classes material from this prohibition.
The two classes that apply to jailbreaking are:

(1) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

(2) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

Where I have added the emphasis. Strictly read, these rules only apply to “telephone handsets” and not to the iTouch or iPad, but I doubt that Apple will pursue owners of these devices now that they’ve lost the iPhone jailbreak war - but then again, Apple is pretty arrogant.

Official Statement

Crank up the music! Turn on the camcorder! And turn your kids loose on the dance floor! YouTube is safe again for you to post those simply adorable videos of your child stumbling his or her way through Purple Rain. Yes, Universal Music, the same company that made you afraid to go in the water with “Jaws” and set out to make YouTube a scary place too, has been given a second dope slap by the Electronic Freedom Foundation and District Court Judge Jeremy Fogel.

The case started a couple of years ago when Universal, trolling the internet, uncovered a significant violation of their copyright in a 29 second video of Stephanie Lenz’s baby “dancing” to a Prince song. Swinging into action immediately to fight this threat, Universal relied on the Digital Millennium Copyright Act to sent a take down order to YouTube.

Luckily the EFF took up Ms Lenz’s case. According to Zusha Elinson on Law.com,

The Electronic Frontier Foundation sued Universal on behalf of Lenz in 2008, arguing that the music company’s lawyers should have taken a moment to consider whether Lenz had a fair-use right to post the clip before firing off a takedown notice to YouTube. YouTube removed the video, but restored it six weeks later when Lenz filed a counternotice.

In the most recent action, Judge Fogel ruled that Ms Lenz can recover some level of damages. Quite reasonably, the EFF asked for damages to make real a deterrent for copyright holders who abuse the takedown process of the DMCA. Universal, of course, argued that Ms Lenz should only be allowed to recover financial damages caused by their overzealous application of copyright (which of course are essentially zero) rather than to receive compensation for the violation of her right to post the video. The judge agreed, writing;

Requiring a plaintiff who can make such a showing to demonstrate in addition not only that she suffered damages but also that those damages were economic and substantial would vitiate the deterrent effect of the statute.

Now we wait to see what damages are assessed. But in the meantime, it’s safe to go back in the water.

Although it’s been all over the news I thought I’d mention that the Joel Tenenbaum was ruled guilty (based on his admissions in court) of illegally downloading 30 songs. His punishment? Nearly $700,000.

He says he plans to appeal the decision - based on the fair use doctrine - but I think he personally would be better served appealing the sentence.

He did knowingly “steal” the copyrighted music? Sure. I don’t believe for a moment that he didn’t know the record companies wanted and expected payment for each copy of the songs nor do I believe he thought he was making fair use of these songs.

What’s out of whack is the $22,500 penalty per song and the singling out of just a few individuals out of the many thousands who were/are just as culpable.

Sheri Qualters reports in the National Law Journal on Monday that Judge Nancy Gertner dismissed defendant Joel Tenenbaum’s counterclaim argument that the record industry’s lawsuits to stop parties downloading and distributing copyrighted works is an “abuse of process”.

Tenenbaum’s argument, apparently, was that the RIAA campaign is focused at students and other young people who cannot afford attorneys. In particular, of course, Tenenbaum feels cases like his are using a sledgehammer to swat flies in order to strike fear in whole population of individuals unable to defend themselves.

Unfortunately for Tenenbaum, the judge is reported to have stated: “Abuse of process, as the cause of action is defined, does not turn on the identity of the defendants, their ability to hire an attorney, nor their inclination to settle the claims against them.” …  ”Congress has handed the Plaintiffs a massive hammer to combat copyright infringement, and they have chosen to use it. That choice, whether wise or unwise, does not amount to an abuse of process.