Meant to post this with the news of the PERFORM Act's resurrection, but didn't. Sen. John Sununu (R-NH) has announced (Jan. 8) he is working on a bill that would prohibit the FCC from implementing or imposing broadcast flag mandates. Arstecnica has a little more. No actual bill has been introduced yet, though.
January 24, 2007 in Legislation | Permalink | Comments (0)
No drama today. Just suspense. According to MTV (whose answer to Nina Totenberg would be Kurt Loder, I guess), the hearing scheduled for this morning was postponed. No new date has been set. Hopefully some more details of the charges will emerge online soon.
January 24, 2007 in IP Cases | Permalink | Comments (0)
Well, perhaps my earlier idle speculation that the DJ Drama/Cannon case wouldn't turn on Georgia's "true names" statute was wrong after all. A Monday NY Times story suggests the impetus for the case was a lack of required labels on CDs being sold in local mall (via madisonian.net). As Mike Madison points out, the seeds of the investigation as described in the Times don't exactly make for gripping police drama. But hey, exciting cases often spring from mundane beginnings.
According to the story, the Morrow (Ga.) chief of police and another officer ran across a rap mix tape in a local mall, and noticed it "did not carry the name or address of the owner of the music copyrights, as Georgia law requires." I'm not sure if this is how the police characterized Georgia law, or if some nuance has been lost in translation into a news story, but this doesn't appear to be what Georgia law actually requires for sales of CDs.
As noted previously, Ga. Code 16-8-60(b) prohibits sales of CDs (and other music, video, and similar items) "unless such [CD] bears the actual name and address of the transferor of the sounds or visual images in a prominent place on its outside face or package." The Georgia Supreme Court had occasion to analyze this Georgia true names law last November in Briggs v. Georgia, and while noting that the term "transferor" was not defined it the statute, the meaning of the term was "clear and straightforward," and that "a 'transferor of the
sounds' is the individual who conveyed the sounds by transferring them to the article in question." (Slip Op. at 3.) So the statute would seem to require a label identifying not the owner of the copyright in the underlying work, but rather, a label that identifies the person or entity who actually produced the CDs by recordings sounds onto the discs being sold.
All the pics of Gorilla Grillz/DJ Drama mixtape CDs that I've run across online seem to identify the CD as being produced by DJ Drama, and/or Aphiliates Music Group, etc. So, some more idle speculation: Could the basis for a true names charge be that that "DJ Drama" is not Tyree Simmons's "actual name"? Or perhaps the CDs don't list an address for Drama or Aphiliates?
There ought to be more details of the charges soon. According to the Atlanta Journal-Constitution, a hearing is scheduled for today.
January 24, 2007 in IP Cases | Permalink | Comments (0)
No new developments in that DJ Drama case, really. According to information blogger zeroday apparently got by fax from the Fulton Co. sheriff's office, the basis for the DJ Drama warrants was a RICO violation (violation of Ga. Code 16-14-4), which the warrant apparently characterizes as "related to copyright infringement." I have my doubts as to whether that characterizations is technically true, but at least it appears possible that the state authorities are predicating their RICO charges on violations of federal (copyright) law. According to Ga. Code. 16-14-3(9), "racketeering activity" can include any one of a multitude of state crimes (including unauthorized transfers, see below), but also some federal crimes:
'Racketeering activity' shall also mean any act or threat involving murder, kidnapping, gambling, arson, robbery, theft, receipt of stolen property, bribery, extortion, obstruction of justice, dealing in narcotic or dangerous drugs, or dealing in securities which is chargeable under the laws of the United States or any of the several states and which is punishable by imprisonment for more than one year.
Ga. Code 16-4-3(9)(B). Federal copyright violations are not specifically mentioned. The state authorities could try to shoehorn their allegations of copyright infringement into "theft" or possibly "receipt of stolen property," but it's unclear whether that would work. While colloquially, many people refer to copyright piracy as "theft," infringement is a distinct concept under federal law (although criminal copyright offenses are grouped with other offenses against property). If, however, the state's RICO theory is based on violations of federal copyright law, the case would still seem to face some serious preemption problems under Section 301.
A more likely scenario, it would seem, is that the state RICO charge is based on Ga. Code 16-8-60, and I continue to marvel at the breadth of this statute purporting to criminalize all unauthorized distribution of sound recordings or audiovisual works without the consent of the owner of the "master" (whatever that means). It is really difficult to see how this would not be preempted by federal copyright law. Of course, it also is not limited to creative expression (applying to any sounds or images) and lacks a fair use exception -- the two "First Amendment safeguards" mentioned in the Eldred v. Ashcroft case -- although it does offer some exceptions such as "archival use," and transfers made for the personal, non-profit use of the transferor.
Nevertheless, read literally, it raises some serious First Amendment issues. Even more interesting, the statute requires consent of the owner of the "master" copy "from which the sounds or visual images are derived," as opposed to the actual creator of those sounds or images. That's a significant difference from U.S. copyright law, under which the ownership of a physical copy doesn't not convey title in the underlying content. That difference isn't sufficient for the statute to avoid preemption problems, but it raises all sorts of interesting questions on its own. If I buy the negative of a photograph from the original photographer (perhaps because it's an embarassing pic, or maybe I just like it), does Georgia law prohibit subsequent sale of any copies of that photograph? Even copies that are made with permission of the photographer, or even copies made by the photographer before I purchased the negative? Wow.
Hopefully, a charging document and some more details of the state's theory will be available online soon and can settle some of this speculation.
By the way, the Georgia legislature used to make the state's law available online so that, you know, people could learn what the law is. Oh so helpfully, they have decided that's too much trouble, and now direct web visitors to Lexis and/or Westlaw. Gee, thanks.
The relevant page from the Georgia legislature's site can still be found in Google's cache at http://72.14.203.104/search?q=cache:www.legis.state.ga.us/legis/GaCode/%3Ftitle%3D16%26chapter%3D8%26section%3D60
But since it'll eventually disappear from there, here is the text of the relevant Georgia law, Ga. Code 16-8-60, in all its glory: .
16-8-60.
January 22, 2007 in IP Cases | Permalink | Comments (0)
As reported in the NY Times (Jan. 18) and elsewhere, on Jan. 16, police from Atlanta (and some surrounding towns) along with investigators from the RIAA, raided the offices of DJ Drama in Atlanta, seized 81000 CDs and other items, and arrested Drama (a/k/a Tyree Simmons) and Don Cannon. The NYT reports the two have been charged with violations of Georgia's RICO statute. For those with more voyeuristic tendencies, you can see a video report from a local Fox affiliate here.
What's odd about this? Well, at outlets like Boingboing, there has been much discussion of the fact that record labels and artists often provide new tracks to DJs with the intention of having the DJ include the music in one of their playlists/mixes. It's not clear whether these arrangements are explicit or merely a tacit understanding, or limited to "live" performances vs. cranking out CD mixes, or whether any such license (even an implied one) existed in this case. Regardless, it seems that this is not a run-of-the-mill "piracy" case.
But something else is odd. The authorities involved in the raid were state officials, not federal agents. And the charged filed are based on Georgia state law, not federal copyright law. If the basis for the raid and the charges is the unauthorized sale of CDs, wouldn't state law be preempted by federal copyright law under 17 U.S.C. Sec. 301? Well, maybe, maybe not.
Many states have "true names" laws, which criminalize distribution of sound recordings or audiovisual works that lack a label accurately identifying the producer of the copies. Generally, these laws are designed to provide a means for local authorities to go after street vendors of pirated CDs and DVDs (without having to involve federal authorities). California's "true names" statute was upheld against a habeas challenge (based on preemption and overbreadth) in Anderson v. Nidorf, 26 F.3d 100 (9th Cir. 1994). The Georgia Supreme Court recently considered and upheld Georgia's own "true names" law, Ga. Code. § 16-8-60(b), against a similar challenge in Briggs v. State, No. S06A1146, 2006 WL 3422972 (Ga., Nov. 29, 2006). (By the way, if reading this case on Westlaw, you may want to simply avert your eyes from the Westlaw-produced synopsis and headnotes. These characterize the case as involving a copyright violation. While the case does seem to implicate copyright, the notes don't accurately describe the issue as framed by the court.) In both these cases, the court majorities found that the state laws in question were not preempted because the state offense included an "extra element" (lack of an identifying label) beyond the elements of a mere copyright violation. (The "true names" provisions are also drafted so as to apply regardless of the copyright status of the underlying work, or whether the copy was authorized by a copyright owner, so arguably the state true names offenses lack some of the elements of a copyright offense as well.)
However, Georgia's state antipiracy statute goes beyond requiring "true names" labeling, treading into what clearly seems to be copyright territory. The Georgia law makes it a crime to "[t]ransfer ... any sounds or visual images recorded on [any disc, tape, or other] article ... onto any other [disc, tape, or other] article without the consent of the person who owns the master [disc, tape, or other] article from which the sounds or visual images are derived" or to distribute (or possess with intent to distribute) copies of any article to which which sounds or images have been transferred, "knowing it to have been made without the consent of the person who owns the master [disc, tape, or other] article from which the sounds or visual images are derived." Ga. Code Ann., § 16-8-60(a).
The Briggs court really only address the "true names" aspect of Georgia's law -- with which the defendant had been charged. And even though a majority upheld it, several dissents and concurrences raised serious concerns about the law's (over)breadth and its facial prohibition on anonymous speech. The majority was able to avoid directly addressing the other part of § 16-8-60, subsection (a), which would seem to be far more problematic on the issue of preemption.
The DJ Drama case may bring this issue to a head. I haven't found the specific charge against Simmons and Cannon. The NYT says it's a state RICO charge, but doesn't mention what the underlying predicate offenses are. Tring to find the DJ Drama indictment online is complicated by the fact that one DJ Drama's earlier mix complications was actually entitled "The Indictment" (and another, apparently, "The Indictment Papers"), making Google searches all but useless. (Foreshadowing, perhaps.)
Presumably, the RICO predicates include 16-8-60 violations, which are among the enumerate racketeering offenses in Ga. Code § 16-14-3(9)(A)(xx) (as Dean Rowan helpfully pointed out in a comment on the Patry Copyright blog last December, discussing Briggs). And more specifically, it would seem likely that the violations charged would be 16-8-60(a) violations, rather than "true names" violations under 16-8-60(b). Why? Although I don't know for sure in this case, it is exceedingly likely that the CDs in question accurately identify both the artists who recorded the underlying content, and the names of the DJs who produced the mixtape CDs. Unlike a typically street vendor of pirated CDs, a DJ selling mixtapes would want to identify the product as his own, and also will generally (in my admittedly limited experience) identify the various tracks included in the mix. So a "true names" violation is unlikely. Perhaps the Georgia authorities have other RICO predicates in mind that are unrelated to the content of DJ Drama's mixtape CDs (like state tax or licensing violations, or maybe someone has been taking DJ Drama's compilation label, "Gangsta Grillz," too literally). But given the involvement of the RIAA in the raid, and the public statements from the RIAA's Bradley Buckles, et al., it appears that the charges are indeed based on the mixtapes themselves.
If the basis for the DJ Drama RICO charges is indeed a claim of "unauthorized distribution" under Ga. Code 16-8-60(a), then we should expect some vigorous challenges to the statute. It would seem that Simmons and Cannon likely have the means to mount a vigorous defense, and they certainly have the incentive to do so. And given that Georgia's "unauthorized distribution" law so closely mirrors federal copyright law, it also seems quite difficult to see how the Georgia statute could withstand such a vigorous challenge.
January 21, 2007 in IP Cases | Permalink | Comments (1)
That was quick. We're only a week into the 100th, and two "flag"-related bills have been introduced already. Last Thursday (Jan. 11), Dianne Feinstein reintroduced the "Platform Equality and Remedies for Rights Holders in Music Act of 2007" or PERFORM Act, S.447, that would reconfigure the current statutory licensing scheme under 17 U.S.C. Sec. 114 for audio webcasting and digital "radio" via satellite/cable radio. The bill text looks to be unchanged from the version of the PERFORM Act introduced in the last Congress (in April 2006, also sponsored by Feinstein, plus Frist, Biden, and Graham on the Senate side, with Howard Berman and Mary Bono sponsoring a House version).
Basically, what the bill does is to impose a laundry list of new restrictions on webcasters and satellite radio who want to qualify for the statutory royalty rate for streaming audio. Generally speaking, that royalty rate is assumed to be substantially lower than what record labels would demand in the "market," although it's difficult to assess what that market would be, since U.S. copyright law doesn't include a general "public performance right" for sound recordings, and has only included a digital performance right since 1996. For an idea of what the statutory rates are, see this SoundExchange page. The rates are currently being renegotiated, but in the last go-round, rates were about $0.000762 per performance, i.e. less than one tenth of a cent per performance. So a webcaster who streamed 1000 songs would owe 76 cents in royalties. (There are a ton of caveats, but that's the gist.) The two satellite radio companies, XM and Sirius, operate under a separately-negotiated deal, and pay 10% of gross revenues. (Incidentally, these royalties are for performance of the sound recording, as opposed to the underlying musical composition -- royalties for performance of which are dealt with by older agencies like ASCAP/BMI -- and are supposed to be split by recording labels and artists.) There are lower rate scales available for non-commercial webcasters.
One can argue about whether these rates are too low or too high, but it's clear that in general, they are far lower than what record labels would demand if a webcast were considered the making of a copy, i.e. a reproduction of the sound recording, rather than a "broadcast" or performance. No webcaster (who is broadcasting music owned by major labels, anyway) could afford to stay in business if, each time they played a song, they basically had to buy a copy of that song for each of their listeners. So, to qualify for these webcast/broadcast rates, a webcaster has to jump through a lot of hoops under current law to make sure the webcast acts more like a traditional radio broadcast than the iTunes store. It has to be non-interactive. Listeners aren't allowed to select particular songs to play right now, and there are limits on how broadcasters can pre-announce songs, or play entire albums, etc.
The PERFORM Act would add several other restrictions. The two most controversial are that webcasters would have to wrap their webcasts in DRM, and not take an affirmative steps to allow recording. In the words of the bill (subsection (c), content protection) a webcaster can only qualify if:
the transmitting entity takes no affirmative steps to authorize, enable, cause or
induce the making of a copy or phonorecord by or for the transmission recipient and uses
technology that is reasonably available, technologically feasible, and economically
reasonable to prevent the making of copies or phonorecords embodying the transmission
in whole or in part, except for reasonable recording as defined in this subsection;’’
So, essentially, webcasters couldn't webcast in MP3. They'd have to use some sort of DRMed format (and in most cases, they'd end up paying royalties for the use of that, too). This is an exceedingly expensive "fix" for what is, in reality, a tiny problem for the recording industry. Sure, some people out there record streaming music so that they can keep, effectively making copies out of streams -- a digital equivalent of taping songs off the radio. But the restrictions on streaming (to make it non-interactive) are already so onerous that a would-be "music pirate" isn't going to waste time getting songs this way. They'd just go to the myriad P2P networks available andf grab the song there (after its been ripped from a CD by someone, somewhere). On the other hand, forcing webcasters to encrypt just makes it a huge pain for those people who want to webcast or listen to streaming audio. If you're a webcaster, you have to implement some sort of locked down DRM, which costs time and money. And if you're a listener, you have to hope the client app is good (and you have to have a bevy of client apps to listen to the myriad DRM flavors out there). Oh, and if you want to listen to your webcast on something other than the lowest-common-denominator Windows PC running XP (like a Mac, or a smartphone, or some sort of home media appliance) then you'd better hope there's a client available (although there probably isn't).
The part about not taking affirmative steps to enable the making of a copy appears squarely targeted at XM Radio, and its Inno device (a sort of iPod-sized Tivo for XM, which lets users record audio to the device and play it again later, although they can't transfer the digital files off the device), over which the record labels are engaged in heated litigation with XM. I'm sure the RIAA really appreciate Senator Feinstein's help. (For what it's worth, the tv/movie/music industry contributed about a quarter mil this election cycle. While this is a lot of money, it's only natural that they'd give big to a senior California senator. (And entertainment was only the 4th highest industry sector in Feinstein contributions.) California rep Howard Berman, the previous House sponsor of the PERFORM Act last year, and incoming IP subcommittee chair, got $173,000 from the entertainment industry for the 2006 cycle, which (relatively speaking, for House member) is a lot more (and his #1 industry sector).
January 13, 2007 in Legislation | Permalink | Comments (0)
My initial comments to one of Derek Slater's posts about the Rhapsody music service ballooned into a rather long back-and-forth conversation about the scope of "first sale" rights or privileges, and what those rights might mean for users of subscription-based music services.
My initial take was that section 109, the section of the Copyright Act codifying the "first sale" doctrine, did not afford to someone who merely rented a copy of a work the same freedom to redistribute that copy however they wished that a purchaser of a copy is given. For example, if I buy a a copy of a book, I am free to resell that book to someone else, even if the copyright owner objects, and even if (in the absence of the first sale doctrine) copyright law would otherwise regard my reselling as a "distribution" of the work in copies that would infringe on the exclusive right of distribution under 17 U.S.C. Sec. 106. But my (initial) take was that 109 would not grant me similar privileges with respect to a DVD I had rented from Blockbuster. So if I sold my rented DVD, not only would Blockbuster be irked and charge me fees for violating the rental contract (and perhaps call the local cops), but there could potentially be copyright implications -- remote as the possibility of an actual lawsuit might be.
After the back and forth with Derek, I'm not so sure. Derek says, in essence, that once the copyright owner sells a copy of work to someone else, then the copyright owner's distribution rights with respect to that particular copy are gone, and so section 109 permits (or rather, does not forbid) me to resell my rented copy of a Blockbuster DVD to someone else (although there may be all sorts of non-copyright property issues with this, like breach of contract, theft, etc.) The "first sale doctrine," as developed through court cases over the past century or so, does characterize the distribution right with respect to a particular copy as being "extinguished" after the "first sale" of that copy. So Derek is spot on in analyzing rights under the traditional first sale doctrine.
But the judge-made law of first sale was codified in the 1976 Copyright Act (in 17 USC 109) and has been tinkered with ever since. For example, there are special provisions in 109 for computer software and sound recordings of music. If you buy a music CD or a software program, section 109 would generally grant you the right to resell that copy or redistribute it without violating the author's distribution right in the work. But 109 says that for these types of works, you may not rent or lend out your copy (unless you're a library under certain circumstances). So if you wanted to take your huge CD collection, and start a shop renting our music CDs the way Blockbuster does for movies, you couldn't -- unless you obtained permission from the copyright owners in the CDs. These limitations of "first sale"-type privileges with respect to certain classes of works and certain users, along with similar tinkering with 109 over the past 30 years, suggests that the first sale doctrine today may be quite different from what it used to be. That is, it is no longer clear to me whether the traditional notion that an initial sale of a copy completely "extinguishes" the distribution right with respect to that copy, or whether 109 might better be characterized as allowing a copyright owner's distribution rights to continue with respect to that copy, but merely providing certain specific privileges to purchasers.
The answer would seem to bear on what copyright law would allow users of subscription music services to do with the music they obtain through the service (as opposed or in addition to what might be allowed or prohibited by contract or other areas of law).
The conversation with Derek was very enlightening (so thanks Derek for pointing out various things I had glossed over), but he seems to agree it's still quite murky. (As that old journalistic crutch goes, "it raised more questions than it answered....")
September 22, 2006 in Copyright Law | Permalink | Comments (0)
A new IP criminal enforcement bill -- a draft of which was floating around last spring -- has been introduced in the House. H.R.5921 (sponsored by Rep. Sensenbrenner). Highlights include (1) redefining "trafficking" for certain IP offenses to include import, export, and possession with intent to distribute (tracking the new definition of "traffic" for counterfeiting cases added as part of the Stop Counterfeiting in Manufactured Goods Act in March 2006); (2) a bunch of new forfeiture provisions; (3) attempt and conspiracy provisions for criminal copyright infringement; and (4) big increases in maximum sentences (which are generally doubled). One notable change from the previous draft circulated in April is the absence of any new wiretapping authority for IP crimes (which had been in Sec. 16 of the April draft).
August 03, 2006 in Legislation | Permalink | Comments (0)
Art Brodsky of Public Knowledge has a nice write up in TPM Cafe of the current state of the "net neutrality" bill proposed by Ted "Series of Tubes" Stevens. Of course, it's not really a "net neutrality" bill, and it's also much more than that, as it's been loaded up with a smorgasboard of cable and IP regs: franchising issues, boadcast flag, audio flag, etc.
Not clear which way it's headed. But either way, there are only 21 legislative days left in the Senate.
July 26, 2006 in Legislation | Permalink | Comments (0)
This week the Senate rejected a proposed Constitutional amendment that would allow Congress to prohibit "desecration" of the American flag, in what has become a biannual ritual. The Senate Commerce Committee also rejected (11, and 12-10, respectively) two Democratic proposals (one based on the Dorgan-Snowe bill, the other by Daniel Inouye) on net neutrality. But the Comittee did manage to pass (15-7) the Stevens (R-Alaska) proposal on net neutrality, S.2686. The Stevens pan doesn't do much on net neutrality, but it does include video and audio flag regulations almost identical to those floated months ago. Given that some on the Hill are voicing doubts about the (broadcast) flag provisions, and the dissatisfaction of many with the lukewarm neutrality provisions of the Stevens bill, it's unlikely to speed through.
Still, the Senators (on the Commerce Committee at least) seem intent on protecting the "sanctity" of *some* kind of flag this term. Might we suggest that instead of imposing requirements on all electronics manufacturers and consumers to worship at the altar of the broadcast flag, they could come up with a less onerous and silly bill to protect that *other* flag. How about a law requiring all manufacturers of the stars and stripes to make them fire-retardant?
June 29, 2006 in Legislation | Permalink | Comments (0)
