Recently in Law Category
ORIGINAL, 2-Aug: I am deeply saddened to learn that William Patry, one of the preeminent copyright attorneys in the U.S., has chosen to end his personal copyright blog. This parting shot, like so much of his writing, is clear and well-reasoned. I did not always agree with Patry, but his writing and perspectives often led me to reconsider and re-evaluate my relationship to copyright law. I will learn less, both qualitatively and quantitatively, without his site in my RSS reader.
Even more troubling, Patry has taken down the entire archive of his site, stripping it to just his final entry. Given the
And since his own site archive is now deleted gone, I can only hint at (or try to find Google caches for) some of the articles I'd saved for my own review or to write about here:
- 19-Feb-2008: "The Press and Stupid Accusations of Plagiarism" -- digging into the historical roots of plagiarism and its abuse in the popular media, spurred by a Dana Milbank Washington Post entry on the subject and a hefty doffing of the cap to Judge Richard Posner's Little Book of Plagiarism.
- 3-Apr-2008: "The Recent Making Available Cases" -- taking a spin through the mishmash of jurisprudence stemming from the RIAA's assault on music consumers and the distinctions between reproduction, distribution, and publishing, concluding that "The only thing clear from these cases is that the issues will be with us for a long time."
- 20-Nov-2007: "First Sale, Software, and eBay" -- an early read on the Vernor case, challenging the entire notion of consumer software licenses and reaffirming both the first sale doctrine and the "duck test."(*) I did find a cached version of Patry's justifiable excitement at Vernor's preliminary victory in May 2008.
- 2-Jul-2007: "I Was a maid In a Porno Store II" -- saluting a strong, though implied, judicial attack on the "parody vs. satire" dichotomy in fair use law (see 2 Live Crew and related commentary and application for more on that scourge) through a Family Guy spoof of Carol Burnett's "charwoman" character.
I've mused about indecency and obscenity in the broadcast arena before... whether warranted or not (in the minds of the few and proud commenters in this space). Things are getting out of control again, however, which leads me to pipe up.
1. Just this weekend, Fox Sports stepped into the continuing mess with its strategic decision to show a woman at the Superdome wearing a homemade t-shirt with the slogan "**ck Da Eagles." Some tried to argue that the shirt said "Pluck Da Eagles," but Fox has now admitted its error. Poor timing, gang, especially since it wasn't a live reaction shot (by your admission) ...
2. WFMU's Liz Berg recently attended oral arguments at the Second Circuit Court of Appeals in New York City, in which Fox apparently made a strong challenge to the inane FCC policies currently in place. I appreciate Liz' reveling in the judges' eagerness to use the word that, according to the FCC's infamous "Golden Globes" ruling, "invariably calls to mind a coarse sexual image." I can't say that I ever expected Nicole Richie to be a champion of First Amendment principles, but bad law is often made on bad facts -- and the history of broadcast indecency is a continuous string of bad facts, starting with the original complainant in the Pacifica case over 30 years ago. I would also be remiss if I didn't point everyone back to the analysis of the last round of absurd FCC rulings by WFMU's broadcasting counsel and a fine scholarly paper on the F-word that I have finally downloaded and will read.
3. In the Dec. 22 edition of "Fierce Mobile Content," Jason Ankeny (better known to some of us as a former indie-music contributor to AllMusicGuide.com) offered a slightly different take on broadcast indecency and the "most important player" in that space.
Instead of analyzing the year that was or forecasting the year that will soon be, let's stay in the here and now to talk about a man whose every action seems to shake the foundations of popular culture as we know it. A man instrumental in shepherding that culture into its darkest age -- and who now carries the torch of freedom lighting our way out of the shadows. A man who still found time to date Britney Spears in all her pre-Federline glory. That man, of course, is Justin Timberlake -- pop idol, teen pin-up and herald of a new era in digital content. Hear me out.
First let's go back to February 2, 2004, and Janet Jackson's notorious Super Bowl halftime wardrobe malfunction ... the event set in motion an FCC crackdown on broadcast decency standards that also continues to this day, severely limiting the creative latitude of terrestrial television and radio content. And whom do we have to blame for all this? Jackson's duet partner Justin Timberlake, who ripped the costume from the R&B diva's chest in the first place.
Fast-forward to December 16, 2006. Timberlake is now a guest star on NBC's long-running sketch comedy series "Saturday Night Live," and appears alongside cast regular Andy Samberg in a three-minute digital film spotlighting an unbelievably raunchy holiday song performed by a fictional pop singing duo. NBC censors bleeped an offending word in the song's chorus no fewer than 16 times, but almost immediately after the network broadcast concluded, NBC posted an uncensored version ... on its NBC.com website as well as on video aggregator site YouTube. In doing so, "SNL" became the first scripted network comedy to employ the Internet as a means of circumventing the FCC, which maintains no jurisdiction over online content, further cementing the web as a safe haven for creative thought and expression. And once again, there was Timberlake at the center of it all, pointing the way out of the mess he created almost three years earlier.
The Timberlake connection is cute, even if the Bono/Golden Globes incident came first and has had a greater legal impact to date. More importantly, however, I worry that the end game of NBC's maneuver will be FCC regulation of the Internet.
I've been playing around with this post idea for a while... and once again, my procrastination is rewarded with a current news item that allows for a more complete discussion. In this case, the subject is miniature FM transmitters and satellite radio.
Sirius now has joined XM in pulling certain receivers from the shelves due to complaints about interference with "left-of-the-dial" radio stations. I had first heard of this phenomenon anectdotally in late April, followed a week later by a report on MSNBC.com. Whether fair or not, the complaints seem mostly to focus on Howard Stern and rap music offending the sensibilities of listeners seeking National Public Radio or Christian radio stations.
This issue isn't the usual kind of FCC broadcasting complaint, however -- instead of content, the crux of this debate focuses on engineering and technology. Part 15 of the FCC Rules requires standard consumer equipment to not create interference with licensed transmissions and to accept interference created by licensed sources. In other words, the FCC policy for personal electronic devices is "use at your own risk" and "don't hurt anyone else."
The XM and Sirius receivers in question allow users to use an otherwise vacant radio frequency to receive the satellite audio signal. These devices have both a satellite receiver and a FM transmitter. Since users aren't required to apply for FCC licenses, the implication is that the XM or Sirius device, or third-party add-ons from Belkin and Griffin and others, is subject to Part 15 (as opposed to the FM broadcast regulations of Part 73). These receivers are supposed to be overpowered by a local broadcast signal -- if you're driving through an area with a licensed radio station at 88.1 FM, your in-car device should be drowned out by that broadcaster. The complaints are that the XM and Sirius devices are so strong that they are drowning out the licensed FM broadcaster, in violation of the FCC rules.
Personally, my experience with a third-party FM mini-transmitter was horrific -- the Belkin device created so much static that I could barely hear my XM signal even when I knew I was on an open frequency. I still have a cassette player in my car, so I use an old-fashioned adaptor that funnels the XM audio through the magnetic heads of the tape deck.
Oddly enough, the British "Office of Communications" is on the verge of authorizing the use of miniature transmitters for localized FM reproduction, such as the Griffin iTrip. The current UK regulatory framework places the iTrip (and presumably the XM and Sirius FM mini-transmitters) in the same category as pirate radio -- intentional, unlicensed transmissions on the FM dial. I'll be curious to see whether they suffer similar complaints down the road...
The good people at BoingBoing have received (and now shared with their readers) a cease-and-desist letter from the attorneys representing a UK-based outfit that claims exclusive rights in all electronic media transmissions of live World Cup action. But rather than a straight C&D (which requires that the potentially infringing or improper act is already taking place), this is a preemptive strike -- the World Cup finals haven't started yet, and there's no evidence that BoingBoing would be hosting live accounts of games.
FOLLOW-UP: One intrepid BoingBoing reader decided to create a video detailing the kinds of things he'd be doing instead of watching streaming World Cup video... slightly juvenile but mildly entertaining, even to those (like me) who will watch some games (though more likely in a pub than over the Internet). Bonus question: did this reader get (or need) clearances to use Gary Glitter's "Rock & Roll Part II" in his video?
I can't say that the letter (JPG) was sent in bad faith, but I would think that a little more due diligence would be in order -- perhaps establishing that BoingBoing was in fact interested in sporting events. More likely, the letter is trying to prevent links to other sites (presumably also "under surveillance") who are streaming content improperly. Without getting into the exciting debate over which nation's laws govern the interwebthing, hyperlinks in the context of legitimate reportage on a major Net-impacting event (how much live streaming occurs, what kind of load on the net, how is IP multicasting and multi-homing working, etc.) would not seem to create even "contributory liability" under most legal regimes. I'm also curious how BB got selected for the honor of a letter -- and did the gang over at Engadget (a Time Warner property through AOL) get the same treatment?
Breaking news from the BBC: Apple Computer has successfully defended itself against breach of contract claims brought by Apple Corps (the Beatles' private record label). Read all about it and check out my past coverage for additional background. I look forward to tracking down a copy of the opinion (if the case actually resulted in a written opinion and not a ruling from the bench).
