analoghole

Alberto Gonzales is no Tom Hagen

Oh my, but AG Gonzales seems to be in a bit of hot water these days.  The U.S. Attorney "purge" scandal has prompted a number of senators to call for his resignation.  (Senator Sununu, whose desire to deep-six broadcast flag regs was recently noted here, was the first Republican to do so openly; Senator Leahy, whose IP efforts are no doubt on temporary hiatus, is busy with the Judiciary Committee trying to extract the straight dope from those involved in the firings.)  You can monitor the latest minutiae of the scandal at Talking Points Memo or see the AG's prognosis reduced to a single number on Slate's Gonz-o-meter.  And in spite of it all, the White House continues to stand by Gonzales (for now anyway).

Gonzales's fealty to the White House has led a number of media outlets, and now countless bloggers, to label him Bush's consigliere.   And yes, it's so accepted by now as to be conventional wisdom that Gonzales never made a clean break from his role as White House counsel, and still seems to consider himself the President's in-house lawyer.  It's certainly clear that he has misguided loyalties; for Gonzales, the parochial policy agenda of the White House always seems to take precedence over the greater goal of serving the country and Justice (both the Department and, you know, the concept).

But the consigliere label, with its connotations of some sort of Machiavellian genius, gives Gonzales far too much credit.  In the mafia lore from which the term entered the popular lexicon, a consigliere is more than just a loyal, trusted confidante.  After all, even the lowliest of mob henchman are supposedly quite loyal (omerta and all that).  What makes a consigliere is giving candid, frank, and thoughtful advice -- and having the boss actually heed that advice some of the time.  A consigliere is the guy who tells the don the ugly truths he needs to hear.  He's the guy who's pulling the levers behind the scenes; the one who could take over the whole operation tomorrow if anything ever happened to the boss -- if he's not already in fact running the show.   Rove is a consigliere.  Cheney is a consigliere.

Gonzales?  He may aspire to such heights (or depths), and he probably relishes having such a grandiose title bestowed on him (by the New York Times, no less).  But, come on.  Alberto, in case you're reading, here's a clue: When the big guy's nickname for you is "Fredo," you're not his consigliere.  (In fact, if some staffer asks you to go for a boat ride, you might want to make other plans....)

No, Gonzales's defining characteristic as AG has been his obedience, his unabashed willingness to give the White House the answer it wants, no matter what the question.  Far from being the go-to guy when the President needs to do some real soul-searching, Gonzales has played the yes-man, the "me too" manservant, the Uncle Tambien (as it was put in a conversation the other day) in service of the fellow in the big white house up the street.  If, as Brad Delong often laments, the administration is using 1984 as their operations manual, Gonzales's obsequiousness, his willingness to rationalize every White House whim, suggest he's cribbing pointers on "leadership" from Candide.

Mouthing whatever bullshit argument a client pays you to say plays into the popular stereotype of the legal profession, but it's a terrible disservice to one's client.  Good counsel is more than a acting as a mere mouthpiece.  Providing "counsel" involves giving guidance and advice, and at least occasionally pushing back and setting limits.

Gonzales doesn't do this.  Unlike his predecessors (recall that Ashcroft pushed back on the NSA wiretapping issue from his own hospital bed), there is precious little evidence that Gonzales has put up the least resistance to any direction from the White House.  Of course, it's possible that as more details of the current scandal(s) emerge, we'll learn that he did, but that no one at the White House listened to him.  Either way, the bottom line is that even if Gonzales thinks he's still White House counsel, it doesn't seem as though anyone's turning to him for advice.  Consigliere he ain't.

Congress Displays Emergent Symptoms of Actually Understanding IP

Yes, it's easy to be a cynic.  The members of the U.S. Congress and their staff all too often act in ways that suggest a certain failure to grasp the complexities of regulating "intellectual property" and technology -- whether it's the disturbingly pervasive attitude that more is always better when it comes to IP protection, or February's C-SPAN-gate, in which Speaker Pelosi was branded a copyright pirate by the GOP (wrongfully, it turns out) for posting some video footage of the House floor that had been taped from C-SPAN.  (Even though the footage in question was already free for copying, the latter incident prompted C-SPAN to announce a new CC-style policy for its other footage of things like committee hearings, in which C-SPAN claims copyright.)

So that's why it's especially refreshing to have witnessed a few signs from the Hill over the past couple weeks suggesting that some members and staffers really do understand that IP and technology are critical issues (and not just for big donors from the private sector, but for ordinary folks too), and complex ones, with valid interests on multiple sides (and not just a matter of big content companies versus pirates/thieves/China/college students/etc.)

First, there was Rep. Boucher's umpteenth foray into DMCA reform which, although perhaps not as sweeping as many would like, has now been toned down enought hat it might possible stand a snowball's chance of getting of of committee.

Next, there was the letter from the two honchos of the Senate Judiciary Committee, Senators Leahy and Specter, sent to both the Register of Copyrights (Mary Beth Peters) and the Director of the USPTO (John Dudas) asking them to scrap the Broadcast Treaty in its current form, dump the rights-based approach that the US has been favoring in the past, and instead advocate for a treaty "significantly narrower in scope," limited to the "signal theft" issues that were the original intended focus of the agreement.

And then, at last week's hearing on "The Future of Radio" in the House Commerce Committee's Subcommittee on Telecommunications and the Internet, Congressman Mike Doyle (D-PA) waxed eloquent about the need to give a little breathing room in copyright law for the kind of productive, transformative copying engaged in by his hometown boy Greg Gillis, a/k/a Girl Talk, a DJ whose mash-ups get great write-ups by the (mainstream) music press.

Rep. Doyle expressed his sincere hope that Girl Talk wouldn't meet the same fate as DJ Drama, and be raided or otherwise shut down by over-zealous enforcement of overly-burdensome copyright law.  (Yes, it really is all Drama, all the time here, isn't it?)  While he stopped short of calling for sweeping legislative changes, he called on his colleagues to think about some hard questions posed by copyright and its associated regulation.
(via the 463 Blog, where Sean Garrett has typed up a partial transcript).  There's more at TechDirt.

So, hat's off to Rep. Doyle (and Sens. Leahy and Specter, and even C-Span too).

Boucher, Doolittle float "FAIR USE" Act

The EFF have posted a draft of a new bill from Reps. Boucher and Doolittle, the "Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007" or "FAIR USE" Act.  As of February 28, it hasn't been introduced and is not yet up on Thomas, but the draft text is available on the EFF site.  The bill does the following:

- Specifies that courts may award statutory damages for secondary copyright infringement only where the plaintiff proves that "no reasonable person could have believed" the conduct constituting secondary infringement was lawful under the circumstances.  Sec. 2(b)
- Codifies a Sony-ish standard for hardware makers:  No liability for infringement for the design, manufacture, or distribution of a device capable of "substantial, commercially significant noninfringing use." Sec. 2(b).
- Codifies the latest round of DMCA exemptions from the Copyright Office (November 2006) in Sec. 3(a) and adds a few more (in Sec. 3(b) that exempt certain types of circumvention of access controls from liability under 17 USC Sec. 1201(a)(1), including:

- extracting clips from a work in a library for a compilation for classroom educational use
- skipping past objectionable content (similar to what was provided in the Family Entertainment and Copyright Act of 2005)
- transmitting over a local or home network, accessing a public domain work in a compilation of mostly-public-domain works
- accessing a work "of substantial public interest" solely for purposes of comment, criticism, news reporting, scholarship, or research
- circumvention by libraries in order to engage in archiving authorized by statute in the Copyright Act

A couple things of note.  First, the home/personal network exception may not be sufficient to allow the kind of space-shifting that many consumers (and indeed, lawmakers) seem to think should be allowed -- like ripping a DVD to a laptop hard drive or iPod for portable viewing.  BoingBoing reader Trevor Fiatal points out that the exception appears to apply only to streaming, not copying.  While the bill certainly doesn't make this clear, I tend to think this exception may be broad enough to allow space-shifting, at least in theory, in some circumstances.  By allowing circumvention in order to "transmit" to a home network, the bill is sufficient to allow a user to get encrypted content to a local device.  At this point, it becomes a question of regular copyright law (as opposed to the DMCA) whether the making of a tangible copy (like a copy on an iPod) is infringing or not.  But I agree that the bill doesn't make this clear, and might be read (or intended to be read) more narrowly.

Second, those with some familiarity with the DMCA may note that the listed exemptions apply only to acts of circumvention under Sec. 1201(a)(1) (and thus not to 1201(b)).  The problem with the current exemption process through periodic rulemaking by the Librarian of Congress is that the exemptions apply only to the act of circumvention, and don't address the general prohibitions on distribution of tools for circumvention (under Secs. 1201(a)(2) and 1201(b)).  So people who wish to engage in permitted circumventions may be unable to obtain a tool that would allow them to do so.  At first blush, the FAIR USE Act's exemptions suffer the same limitations -- they allow circumvention, but don't do anything to permit the development or sale of devices one would need in order to engage in such permitted conduct.   The exemption in Sec. 2 for hardware devices capable of non-infringing uses may have been intended to get at this problem, but as the bill is currently drafted, it doesn't fix it.  Sec. 2(b) exempts the makers of such devices from liability for "copyright infringement," but does not address the question of whether the maker of a device capable of (or even specifically designed for the sole purpose of) engaging in permitted categories of circumvention would be liable under the DMCA.

Even though the bill falls short of the sweeping DMCA reform many have called for, it's still likely to be controversial.  The codification of a Sony-ish standard for secondary liability for copyright infringement would seem to undo the Grokster standard, or at least muddy the waters even more, and I don't think the content folks are going to be too happy about that.

I do not think that law means what you think it means

About a week ago, the New York Times ran an article by Jeff Leeds on the DJ Drama raid.  Here's how Leeds described the beginning of the investigation:

Not long before Christmas, Jeff Baker, the chief of police of Morrow, Ga., a small town just south of Atlanta, and one of his officers were walking through a local shopping mall when they happened to pass a kiosk hawking rap music CDs. One in particular caught their attention.

The CD was “Tha Streets Iz Watchin,” with songs performed by the rapper Young Jeezy and, as Chief Baker recalled, it did not carry the name or address of the owner of the music copyrights, as Georgia law requires. Rather than arrest the kiosk vendor immediately, Chief Baker said, “We’d rather go after the source of the material. And at that point we had no idea what the source was.”

"Cracking Down on Mixtape CDs" (NY Times 1/22/07) (emphasis added).[1]

In his affidavit in support of the search warrant, Det. James Callaway describes a similar scene, albeit somewhat more officiously:

On 12/19/2006 the Affiant went to Southlake Mall in Morrow, Georgia, on a complaint of pirated music being sold from a kiosk in the mall.  Affiant located the kiosk and looked at several CDs that did appear to violate the true name and address statute under the criminal sale and reproduction of recorded material.  The employees of the kiosk did state to affiant that they were in the business of selling music and not just the artwork like the insert disclaimer noted.  The kiosk has a large selection of "mixed tapes.  ... These mixed tapes also do not have the true name and address of the true owner of the music on the disc.  The true labels of the artists are Interscope Records and Def Jam recordings among others.  None of the labels have their names or addresses on the CDs as required by law. The CDs were coming from a company named, "The Aphilliates".

Affidavit of Det. James Callaway, para. 2 (emphasis added).

Some things to notice in these passages. [2]

One thing that is apparent from both the affidavit and the quotes from Chief Baker is that the police investigating the case seem quite sure that it is a violation of Georgia law to sell CDs that are not labeled with the "true name" and address of the owner of the copyright in the works contained on the disc.  But to paraphrase Inigo Montoya, "You keep using that law.  I do not think it means what you think it means."

As noted previously, the Georgia "true names" provision, Ga. Code 16-8-60(b), forbids anyone from distributing, selling, or offering for sale, a CD (or various other items):

on which sounds ... have been transferred unless such ... disc... or other article bears the actual name and address of the transferor of the sounds ... in a prominent place on its outside face or package.

Ga. Code 16-8-60(b) (emphasis added).  "Transferor" fairly clearly refers back to the "transfer[]" of the sounds to disc mention earlier in the same sentence -- i.e., the person who made the CDs by putting sounds on them.  This is how the Georgia Supreme Court interpreted the meaning of the word, and this statute, just a couple of months ago in the Briggs case.

The investigating officers seem to read this statute differently.  They appear to believe that it requires that any CDs being offered for sale must display the "true name" of the owner of the copyright in the sound recording(s) contained on the disc.

There are a few reasons why the officers' reading of the statute is almost certainly wrong.  First, there is the plain text of the statute and its interpretation by Georgia's Supreme Court (which, basically, has the last word on what the law means).  Other parts of the statute also suggest "transferor" means something besides "copyright owner"  or "owner of the music on the CD."  Subsection a of the statute, the "unauthorized distribution" part,  forbids copying or distribution without permission of the owner of the "master" recording from which a CD is made.  Although the Georgia legislature didn't use the term "copyright owner," it uses a different term (other than "transferor") when identifying who (in the legislature's view) enjoys the benefits of "ownership" and control over the music recorded on the CD.

There is also the matter of consistency with the overarching goal of the statute.  While the officer's reading might be helpful to them in this particular case, interpreting the "true names" law as they do would actually undercut the purpose of this law --  which, as the GSCt. put it, "aims to protect the public and entertainment industry from piracy and bootlegging" (Briggs, slip op. at 5.)  It does so by requiring people who produce CDs for sale to identify themselves.  It makes the job of law enforcement easier.  If all it took to make the CDs in question legal under 16-8-60 was to include a label indicating who the copyright owner was, then it would be quite easy to circumvent.  And indeed, truly counterfeit CDs -- the kinds of knock-offs of commercial CDs that include complete facsimiles of genuine CD inserts -- wouldn't be covered.  Where ambiguity exists in a statute, it rarely makes sense to resolve it in a manner inconsistent with the underlying purposes of the statute.

Finally, there is the issue of preemption.  Although a requirement that copyright owners identify themselves on any copies containing their work does not directly conflict with federal law (there is no requirement, for example, forbidding copyright owners from using such labeling), such a requirement does run smack into the intent of amendments to federal copyright law since the 1976 Act.  Specifically, the Berne Convention Implementation Act of 1988 eliminated mandatory notice requirements as a condition of copyright protection.  For a state to then mandate such notice as a condition of, well, not going to jail, would seem to raise some preemption issues, even beyond those already dispensed with in Briggs.

For purposes of this case, the issue of whether the law requires that CDs bear the name of their producer, or on the other hand, the names of the owners of the copyrights in tracks on the disc, is critical.  The affidavit indicates that the CDs did indicate the name of their producer -- i.e., "the Aphilliates" -- and sample images of DJ Drama CDs on the web all seem to show similar identifying information.

[1]  No word on whether the investigating officers were drawn to any particular track on the disc, such as the quite apropos "Come Shop With Me, Part 2" (track 6), "Southerners Ain't Slow" (track 20) (the Atlanta hip-hop scene's apparent answer to "Sweet Home Alabama"), or perhaps "Pussy Muthafuckas" (track 2), a somber love ballad.  And incidentally, it wasn't too difficult to locate these track names or information about who produced and performed on "Tha Streets Iz Watchin," since the CD appears to be available from a variety of online merchants and is even available for download through one of the more popular (legit) music services.

[2]  Whether the officers just happened upon the kiosk, as the NYT quote suggests, or went to the mall specifically due to a complaint regarding the kiosk, doesn't matter much legally, although it would certainly give us some indication of whose idea this case was.  The mention of an outside complaint in the affidavit would suggest the case was instigated by RIAA, but on the other hand, would the RIAA really phone in a complaint about a particular kiosk at a particular mall in Georgia?  Regardless, elsewhere in both the affidavit and other news coverage, it is noted that at least later on, the RIAA worked closely with Georgia authorities on the case.

DJ Drama Search Warrant

The search warrant application and supporting affidavit for the DJ Drama/Cannon/Aphiliates raid is posted over at freethedjs.com.  (Thanks FvL for pointing this out in comments.)

These documents make clear that the police are alleging a violation of Georgia Code 16-8-60 (as the underlying predicate for the state RICO charge).  The documents supporting the warrant application claim the sales of mixtape CDs constituted a "true names" violation, and also seem to suggest these sales violated the other part of GC 16-8-60 as well (subsection (a)) which criminalizes distribution of CDs without permission of whoever owns the "master" copy.  As discussed previously, the "true names" part of the statute was upheld by the Georgia Supreme Court just a few months ago (although on a different set of facts), while the "unauthorized distribution" provision seems to run counter to federal copyright law, which preempts state laws that attempt to regulate in the area of copyright.  The affidavit also seems to suggest that Georgia police may be misreading what the Georgia "true names" law actually requires, but that's a topic for another post.

Levis Using Teams of Oxen to Tear Apart Infringing Competitors

Or teams of lawyers, actually.  An article in Monday's NY Times examines how Levis is mounting an aggressive legal campaign against its competitors whose rear pocket stitiching too closely resembles Levis' own.  It's not really clear if the competitors are actually infringing, since it sounds as though few claims have even gotten so far as to be examined by a court, and Levis' claims against designer/boutique jeans companies are by and large being settled (and in some cases, at least, for quite small amounts).

Although I imagine that most everyone buying a pair of jeans, even fancy jeans, has at least heard of the Levis brand, it would be interesting to know if any of the alleged infringement (back-pocket stitching that includes two arcs, or fabric tag on left side of the right rear pocket) has caused customer confusion.  Are there many people out there buying $200 Von Dutch or Lucky Jeans who think they're getting a pair of Levis?

Maybe the Drama drama really is about "true names"

I missed it at the time, but this ran in Billboard over a week ago.  The chief of the Morrow, Georgia, police department, who was involved in the DJ Drama raid, and who discussed the origins of the DJ Drama investigation in a NY Times article mentioned earlier, is quoted in Billboard article specifically citing Ga. Code 16-8-60, in a way that sure makes it sound like the complaint here is that the DJ Drama CDs were not labeled with the true name and address of their producer:

"We have a partnership with a joint vice task force working pirated tapes in the country," says Chief James Baker of the Morrow Police Department. "We found an outlet in Morrow for the criminal sale of recorded material, breaking the OCGA, Official Code of Georgia Annotated, no. 16-8-60, which specifies that CDs must list the true name and address of their office, which these CDs didn't, nor did they [list] copyright permission. People were able to make purchases over the Internet and these guys sold the pirated discs for profit."

Huh.  If the case really is based on the "true names" provision of Georgia law, then there's the possibility that Georgia courts will view this as a replay of the Briggs case the Georgia Supreme Court decides in November, in which case DJs Drama and Cannon are out of luck.  Nevertheless, there seem to be some critical factual differences here (like the name, or at least well-known pseudonym, of the producer(s) of the discs being prominently displayed on each, which seems to undercut at least part of a "true names" claim).

Details of US about-face on data retention still unclear

Declan McCullagh has some discussion of the latest ideas being floated regarding data retention, or requiring ISPs to retain certain records on users and communications for some period of time.  In the past, European agencies have been the ones pushing for retention (with other EU components pushing for stricter data privacy rules in equal measure), while the US has generally taken a laissez-faire approach, with a mechanism for law enforcement to request preservation of data when needed for an investigation.  One can get an idea of the old US position  in this document from 2001 pushing back on Euro-style data retention proposals. 

But of course, people change, hairstyles change, government's positions on mandatory data retention policies change...

Boucher to float a new version of DMCRA

According to National Journal, Rick Boucher (D-VA) said last week (the NJ's piece is dated "Friday, January 20, 2007, which is a bit odd, since there isn't one) that he planned to reintroduce legislation to reform the DMCA, or as NJ puts it, "repeal a ban against circumventing anti-piracy technologies on digital content."  Of course, that characterization of the bill overstates its effects a bit.  Boucher's bill from the last Congress, the Digital Media Consumers' Rights Act or DMCRA (the cleverly-numbered H.R. 1201 (PDF)) basically would have created a non-infringing use exception to the anti-circumvention provisions of the DMCA (i.e. 17 U.S.C. Sec. 1201), along with expanding some of the other existing exceptions.  Some of the bill's opponents (like the MPAA, RIAA, PFF) claimed the bill would effectively repeal the DMCA, but that's not how the bill's text actually read or its author's stated goals in introducing the bill.

The last time around, H.R. 1201 had over a dozen cosponsors, on both sides of the aisle, including Joe Barton (R-TX) and John Doolittle (R-CA).  Of course, Boucher had also previously introduced nearly identical bills in the 108th Congress (H.R. 107, with 24 cosponsors) and in the 107th (H.R. 5544, with 3 cosponsors).  So far, none have made it out of committee.  In 2005 and 2003, Boucher was also a cosponsor of Zoe Lofgren's (D-CA) "Benefit Authors without Limiting Advancement or Net Consumer Expectations" or BALANCE Act (H.R. 4536 in the 109th, H.R. 1066 in the 108th) which also would have added a "noninfringing use" exception to the DMCA.

Although Boucher did not end up chairing the House IP subcommittee this year, as some had speculated/hoped he would, perhaps the change in House leadership, along with recent developments in the tech landscape (such as the popularity of Apple's "video" iPods, to which lots of people would love to be able to download video from their own legally-purchased DVDs, but can't under the DMCA), will give Boucher's bill some more legs this time, although it's hard to tell at this point.

EFF on WIPO's January broadcast treaty meetings

EFF's Deep Links has an update on developments at last week's WIPO meetings on a broadcast treaty.