Radical Transparency

US Department of Education Regulations take effect this summer

2010-04-20T18:35:00.000-07:00

http://chronicle.com/article/New-Regulations-on-Campus/65135/

Lessig Writes about Education and Copyright

2010-04-19T19:54:00.000-07:00

"I plan to make three observations on the way to stating an argument on the way to proposing what we can do in a debate that I think educators need to take more seriously." (Lessig)

http://www.educause.edu/EDUCAUSE+Review/EDUCAUSEReviewMagazineVolume45/GettingOurValuesaroundCopyrigh/202337

http://net.educause.edu/ir/library/pdf/ERM1021.pdf

When will the office of us intellectual property honor the open government directive??

2010-04-19T11:02:00.000-07:00

I am just wondering about this, since according to the directive, I would think that all the public comments collected by the executive office last month, would be posted in order to foster collaboration and keep the public informed.

http://www.whitehouse.gov/open/documents/open-government-directive

So far, no comments are appearing on the US Office of IP website.

http://www.whitehouse.gov/omb/intellectualproperty/

Consumers International IP Watchlist Report 2010

2010-04-19T10:29:00.000-07:00

http://a2knetwork.org/node/1716

http://a2knetwork.org/sites/default/files/IPWatchList-2010-ENG.pdf

Request for Comments NAGPRA

2010-03-27T21:03:00.000-07:00

http://edocket.access.gpo.gov/2010/2010-5283.htm

"In brief, this rule pertains to those human remains, in collections, determined by museums and Federal agencies to be Native American, but for whom no relationship of shared group identity can be reasonably traced, historically or prehistorically, between a present day Indian tribe or Native Hawaiian organization and an identifiable earlier group. These individuals are listed on inventories as culturally unidentifiable Native American human remains. The rule requires consultation on the culturally unidentifiable human remains by the museum or Federal agency with Indian tribes and Native Hawaiian
organizations whose tribal lands or aboriginal occupancy areas are in the area where the remains were removed. If cultural affiliation still cannot be determined and repatriation achieved, then the Indian tribe or Native Hawaiian organization may request disposition of the remains. The museum or Federal agency would then publish a notice and transfer
control to the tribe, without first being required to appear before the Review Committee to seek a recommendation for disposition approval from the Secretary of the Interior. Disposition requests, which do not meet the parameters of the rule, would still require approval from the Secretary, who may request a recommendation from the Review Committee.
Therefore, the Department is issuing this final rule to be effective May 14, 2010."

http://www.nps.gov/nagpra/

Michigan Repatriation Developments

2010-03-27T20:51:00.000-07:00

"On Monday, a NAGPRA committee approved a change in the act that will force museums — like the University’s Museum of Anthropology — to inform Native American tribes that “culturally unidentifiable” remains found in their tribal regions may potentially be returned to them."
http://www.michigandaily.com/content/change-act-may-make-museum-anthropology-return-native-american-remains-0?page=0,0

"A group of about 30 anthropologists, archeologists and concerned members of the University community gathered to hear Sven Haakanson, Jr., executive director of the Alutiiq Museum in Alaska, speak and answer questions about relationships between museums and Native American tribes. Haakanson also discussed how the issue of repatriation is often handled at other museums."

http://www.michigandaily.com/content/group-gathers-discuss-native-american-remains?page=0,0

Information on The Joint Strategic Plan

2010-03-27T07:10:00.000-07:00

I've been collecting a bit of information about this plan as it moves forward:

Bio of Intellectual Property Enforcement Coordinator

http://www.whitehouse.gov/omb/intellectualproperty/bio_espinel/

Some comments filed recently - I am not finding a centralized location for these public comments yet:

http://arstechnica.com/tech-policy/news/2010/03/big-content-stopping-p2p-should-be-principal-focus-of-ip-czar.ars

http://www.cdt.org/comments/comments-joint-strategic-plan

http://www.fsf.org/blogs/licensing/fsf-opposes-more-copyright-enforcement-in-joint-strategic-plan

http://www.ascap.com/playback/2010/03/action/IPEC_Announcment.aspx

http://opinion.latimes.com/files/joint-submission-re-ipec-3-24-10-2626645.pdf

Here is the letter Re: CCCC-IP Caucus & Committee files public comments on The Joint Strategic Plan, and with support of CCCC

2010-03-27T07:08:00.000-07:00

The letter should be posted soon to the CCCC-IP Committee website:

Dear Everyone:

A team of us associated with the CCCC-Intellectual Property (IP) Committee and Caucus (http://www.ncte.org/cccc/committees/ip) submitted a letter to Victoria A. Espinel, United States Intellectual Property Enforcement Coordinator regarding The Joint Strategic Plan before yesterday's 5 pm ET deadline. We had asked for your support Monday afternoon (3-22-2010; see copy of request below). We are just following up to provide a copy of the letter that was submitted, linked below (temporarily posted here-will be moved to IP Committee site soon):

http://www.martinecourantrife.com/IP-CAUCUS/cccc-ip_caucus-committee-ltr-03-24-10.pdf

Thanks to everyone for mobilizing on such short notice, and special thanks to Karen Lunsford, Chair of the CCCC Committee on Intellectual Property for working with the larger CCCC organization and obtaining their support.

We'll keep you posted on further developments.

Thanks again—

Martine for the CCCC-IP Caucus, as Junior Chair

CCCC-IP Caucus & Committee files public comments on The Joint Strategic Plan, and with support of CCCC

2010-03-27T06:56:00.001-07:00

Last week, we sent out the following email to various listserves and facebook for people to "sign" on in support of public comments crafted by the CCCC-IP Caucus and Committee - here's the email which supplies background information:

Dear Everyone:

We are inviting you to offer your “signature” in support of the CCCC-IP Caucus (endorsed by the CCCC-IP Committee and CCCC) with respect to the letter linked below, on or before Tuesday, midnight EST, March 23, 2010 (send your name and institutional affiliation c/o martinerife@gmail.com). Offering your support to the IP Caucus does not preclude you from additionally composing your own public comments (details below), and we encourage you to do so.

Each year since 1994 the Intellectual Property Caucus of the Conference on College Communication and Composition (CCCC-IP Caucus) meets for an hours long discussion/workshop on issues surrounding teachers and researchers of writing/composing as those issues intersect intellectual property law and policy.

This year, on Weds. March 17, the caucus crafted a letter to Victoria A. Espinel, United States Intellectual Property Enforcement Coordinator in response to a formal request for public comments (due on or before March 24 at 5pm EST-but to be submitted by us well in
advance of the deadline) on the topic of increasing IP enforcement (see link to “short explanation” below).

CCCC-IP CAUCUS LETTER
http://www.martinecourantrife.com/IP-CAUCUS/CCCC-ip_caucus-committee-ltr-3-22-2010.pdf

Short Explanation
http://www.martinecourantrife.com/IP-CAUCUS/Short-Explanation.pdf

Call for public comments:

http://edocket.access.gpo.gov/2010/2010-3539.htm

http://edocket.access.gpo.gov/2010/pdf/2010-3539.pdf

Some sample letters/public comments on somewhat related issues, for further ideas:

http://www.copyright.gov/1201/2008/answers/7_10_responses/decherney-reply-to-post-hearing-questions_1.pdf

http://www.copyright.gov/1201/2008/answers/9_21_responses/otw.pdf

http://www.copyright.gov/1201/2008/answers/9_21_responses/joint-supporters.pdf

http://www.ce.org/PDF/obamaIPcoalitionletter.pdf

http://www.copyright.gov/1201/2008/answers/7_10_responses/final-rife_response-to-questions-july-10-2009.pdf

http://www.copyright.gov/1201/2008/answers/9_21_responses/rife.pdf

http://www.martinecourantrife.com/IP-CAUCUS/sample-public-advocacy-letters/0Arife_request_FINAL_4-1-09.pdf

If you would like to offer your support of the CCCC-IP Caucus, please send your name and institutional affiliation to martinerife@gmail.com on or before Tuesday, midnight EST, March 23, 2010 and it will be included in the designated space on the CCCC-IP Caucus letter (see
letter linked above).

Thank you much for your time!

Martine & Traci

Traci Zimmerman, Associate Professor

The School of Writing, Rhetoric, and Technical Communication

James Madison University

Senior Chair; CCCC-IP Caucus

Martine Courant Rife, Professor

Writing Program, Communication Department

Lansing Community College

Junior Chair; CCCC-IP Caucus

Spain is set to go after file sharing

2009-10-20T12:13:00.000-07:00

"The names of 200 Web sites that offer links to illegal downloads in Spain are to be given to the Spanish industry ministry as the first major move in the fight against online music piracy, it was announced in Madrid today (Oct. 19) at the presentation of a report called Parasites' Business."
http://www.billboard.biz/bbbiz/content_display/industry/e3i5c14b307d54f1cc3d00b03f51fbe853a

Delaware Court on case of first impression holds photographs published on web in Germany not "published" in US

2009-10-15T11:27:00.001-07:00

From Loeb & Loeb LLP: "District court, addressing what it determined to be an issue of first impression, holds that posting a work created outside the U.S. on a website outside the U.S. by a foreign national does not constitute publishing the work simultaneously in the U.S., and therefore plaintiff did not need to register his photographs before filing suit for infringement in a U.S. court."

http://www.loeb.com/news/CaseList.aspx?Type=ip

The opinion states that publishing the work (photos) in Germany is not "publishing" for purposes of the requirement for registration needed on US works in order to bring suit in the US, even though after published on the web in Germany the photos were immediately available on the web in the US.

The court states on page 8, "Thus, in a case of first impression, this Court must consider the correlation between the posting of foreign copyrighted works on a foreign website and the copyright holder’s ability to file suit for infringement in the United States pursuant to the United States Copyright Act."

The court has held that even though, in reality, when the photos were published in Germany they were simultaneously published in the U.S., "as a matter of statutory law" they were *not* published in the U.S.

The opinion doesn't describe that copyright registration is a relatively easy process, and registration is needed to bring suit, not to have copyright protection.

From the opinion:
“What appears to be a simple premise actually joins an issue of first impression not addressed by any court. Defendants contend that plaintiff’s photographs, which were created undisputably outside the United States, are United States works because when
they were posted on a German website, they were ‘published’simultaneously in Germany and in the United States . . . because the posting of a photograph on a website simultaneously ‘publishes’ the photograph ‘everywhere,’ including the United States, it is a ‘United States work,’ and as such, it must be registered prior to filing suit for infringement . . . Professor Cotter explains, however, that the determination of the country of origin is not so simple, as that determination hinges on whether the work is ‘published,’ and, if so, where the work is published . . . The Court does not need to delve into yet another unsettled issue, however, because even assuming that the German website ‘published’ plaintiff’s photographs, the Court holds that as a matter of U.S. statutory law the photographs were not published simultaneously in the United States.” Moberg v 33T LCC, US District Court Delaware

Communications Decency Act Issues Raised in Recent Facebook Suit

2009-10-02T19:11:00.000-07:00

Facebook is being sued for content it has posted according to an article in PC Mag.com.

http://www.pcmag.com/article2/0,2817,2353659,00.asp

A comprehensive discussion of issues around the Communications Decency Act of 1996, Section 230, is located here:

http://www.cdt.org/publications/policyposts/2008/4

An excerpt from this article by the Center for Democracy & Technology states:

"The four amicus briefs [filed by the CDT] essentially all argue for the same thing: a continued reading of §230 in the spirit that Congress intended and that a multitude of courts have so far followed. Any departure would otherwise stifle the provision's purpose and undermine industry strides towards responsible self-regulation. In those briefs, CDT argues that "intermediaries" - ISPs, websites, and online service providers that enable other people - Internet users - to post content onto the Internet should not be held liable for the content posted. To hold intermediaries liable would greatly chill their willingness to host online content created by others. To use a simple example, if the YouTube.com video sharing website had to be legally responsible for the content of the tens or hundreds of thousands of new videos posted to it each day, the site could not possibly continue to operate as an open forum for users' video expression."

The Citizens Media Law Project also provides a comprehensive overview:

http://www.citmedialaw.org/section-230

And, another excellent discussion on David Johnson's blog

http://www.digitalmedialawyerblog.com/2009/09/lessons_from_batzel_v_smith_no.html

High court approves injunction via Twitter

2009-10-02T18:41:00.000-07:00

In the guardian.co.uk http://www.guardian.co.uk/technology/2009/oct/01/twitter-injunction

Community College State Directors See Funding Issues Ahead

2009-09-24T15:30:00.000-07:00

According to an article in the chronicle, a recent survey conducted by the Education Policy Center at the University of Alabama, "In a period of all-time record enrollments, the directors predicted that state operating-budget support for community colleges will decline by 1 percent in this fiscal year." Tuition is expected to rise at the rate of twice of inflation during the coming year.

Read more: http://chronicle.com/article/State-Directors-of-Community/48586/?sid=at&utm_source=at&utm_medium=en

Additional DMCA Rulemaking Questions Received

2009-08-22T06:54:00.000-07:00

I have, along with other DMCA rulemaking-hearing participants, received a second question set from the U.S. Copyright Office. The questions are premised by: "For purposes of the question below, please assume that the Register has decided to recommend an exemption to the prohibition for proposed classes 4A through 4H, 11A and 11B, or some portion thereof, relating to motion pictures on CSS-protected DVDs" and ask:

“From your unique perspectives, is there a limitation, either in terms of duration or percentage (or both), which could be incorporated into the definition of an exempted class of works?”

Specifically, the copyright office suggests the following language could possibly be used in the context of finished products (remixes) for crafting the new exemption:

“… the portions of any single work used shall be, collectively, no greater than x minutes in duration and represent no greater than y percent of the duration of that work….”

The questions also acknowledge how creating a quantity limitation might be objectionable to some, but since this is not a redrafting of section 107, but is instead an administrative rulemaking proceeding, they are asking for suggestions from hearing participants nonetheless. They state:

“Again, we recognize that for purposes of fair use, what may be a reasonable duration in one case will not necessarily be a reasonable duration in another case, we are not proposing to codify the fair use doctrine in this rulemaking proceeding. However, this is a regulatory proceeding and for the purposes of promulgating a regulation governing exemptions from the prohibition on circumvention, we are inclined to believe that more specific limitations are advisable so that, at least for purposes of predicting liability under section 1201(a)(1), users will find sufficient guidance in the regulatory text.”

The questions were emailed to hearing participants Friday August 21, 2009 at 5:38 pm, EST. Responses are due September 8, 2009 by 5 pm.

EFF's von Lohmann provides analysis on DMCA-DVD jukebox cases

2009-08-14T18:19:00.000-07:00

Fred von Lohmann of EFF has provided a thoughtful analysis of the two recent DVD - DMCA-related cases that have been decided this week.

"Just one day after Judge Patel's ruling against RealDVD, a California appeals court has ruled against Kaleidescape, reversing the lower court and sending that case back for a fresh determination of whether Kaleidescape violated the terms of the DVD-CCA license."

http://www.eff.org/deeplinks/2009/08/judge-rules-against-realdvd

RealNetwork loses ruling in DMCA related case

2009-08-14T07:54:00.000-07:00

"The decision represents a major victory for the film studios, which had accused Real of violating the Digital Millennium Copyright Act (DMCA) and breach of contract in a lawsuit filed last fall."

http://news.cnet.com/8301-1023_3-10307921-93.html

White House's Acting Cybersecurity Czar Resigns

2009-08-07T17:33:00.000-07:00

From the Wall Street Journal: "The resignation highlights the difficulty the White House has had following through on its cybersecurity effort. President Barack Obama first outlined his cybersecurity plans in a high-profile speech May 29, announcing his intention to create a top White House cybersecurity post -- a position he has yet to fill."

The whole story: http://online.wsj.com/article/SB124932480886002237.html

Study explores "expert" legal writing

2009-06-30T19:04:00.000-07:00

Shelley M. Kierstead of Osgoode Hall Law School and Erika Abner of the Postgraduate Medical Education Office have just published a paper on SSRN explaining a study they completed: "A Preliminary Exploration of the Elements of Expert Performance in Legal Writing"

http://ssrn.com/abstract=1415369

The abstract reads:

"This paper describes results of focus group research conducted with senior advocacy lawyers in relation to the lawyers' characterization of expert legal writing. The results suggest an important interplay between product and process, and are consistent with general theoretical models of expertise that characterize the writing process as exploratory, recursive, reflective and responsive. The results may also be linked with existing studies of school to work transitions. The authors also describe how the research results tie into a longer term research project aimed at developing a description of increasingly sophisticated writing competencies that can be expected of lawyers as they progress through their careers."

The study they conducted is fascinating. Their citations include, of course, Flower & Hayes.

From the Washington Post "Guatemalan fears a tweet will make him a jailbird"

2009-06-30T13:37:00.000-07:00

"That message has now earned him a potential five-year prison sentence and the unfortunate distinction of becoming one of the first people in the world to be arrested for a tweet."

http://www.washingtonpost.com/wp-dyn/content/article/2009/06/27/AR2009062700773.html

Open Video Conference Looks at the Future of Online Video--

2009-06-25T05:42:00.000-07:00

The Intellectual Property Watch blog has a great overview of a recent Open Video Conference that took place last week. Video presentations from the conference will be posted on the website soon.

http://openvideoconference.org/

To quote from Kaitlin Mara's article on the IP Watch:

"Video is becoming an increasingly important communication tool on the web, but questions must be asked about its future, said speakers a recent conference. Will it be a medium of self-expression, available for all, or a translation of television to the internet, where content is provided by some and consumed by the rest? A gathering of technologists, academics, filmmakers and others in New York last week issued a call for a freer video culture."

For the full article--
http://www.ip-watch.org/weblog/2009/06/23/now-video-wants-to-be-free-and-open-too-ip-policy-considerations/

U.S. Copyright Office Submits Questions to DMCA Rulemaking Participants

2009-06-22T17:20:00.000-07:00

The hearings take place every three years in order that the U.S. Copyright Office might consider creating exemptions to the anti-circumvention provisions of Section 1201, Title 17 of the Copyright Act - known as the DMCA. Since I participated in the May 2009 hearings, I received two sets of questions, one for each panel I served on. (Answers due July 10, 2009)

The questions are below. One set of questions is about whether or not screen capturing software works with DVDs and whether or not screen capturing software circumvents the anti-circumvention technologies --CSS of DVDs. The other set of questions is about whether or not the exemption to 1201 could be fairly applied to documentary filmmakers (as a "class" under the statute) and if so how you'd define that class. (Currently the exemption for film studies professors is set to expire in October).

To give a brief context for these questions, the U.S. Copyright Office, during the hearings, was probing for a method for users to remix DVD content without circumventing, and without having to video record TV screens by setting up tripods in their living rooms. The MPAA would not say that screen capturing software was legal under 1201 even when asked directly about this topic during the hearings. I have blogged more about this in this blog if you are interested in details.

In the preface to its questions, the copyright office says that the questions themselves *should not* be interpreted as indicating a recommendation. The recommendation is due in October 2009 from the Copyright Office. See http://www.copyright.gov/1201/ .

Question Set #1 (Quote from Copyright Office Communication)

Introduction:

At the hearings, the MPAA introduced evidence that videotaping the output of a television screen was an alternative to circumvention for desired noninfringing uses by users. In addition to capturing the output of a television or computer screen with a video camera, screen capture software exists for a wide range of purposes. At the hearings, one particular software program was used to illustrate that software-based screen capture is capable of reproducing the output from a CSS-encrypted DVD. Examples of such capture software include: [here the copyright office listed three software producers - this information will be available on the DMCA website and also will be referenced in answer to the questions when those answers are posted on the DMCA U.S. gov website-and is also in the transcripts which are available now on the DMCA site-and likely FOIA-able http://www.copyright.gov/1201/]. The questions below relate to the capture of clips from CSS-protected motion pictures on DVDs.

Please explain whether the legal consequences of using capture software differ from the legal consequences of using a digital video camera (with particular reference to 17 U.S.C. § 1201).

Is it a violation of § 1201(a)(1) to use screen or video capture software (hereinafter "capture software") to reproduce clips from copyrighted motion pictures or audiovisual works?

Is there particular capture software that decrypts the Content Scrambling System on DVDs?

Is there particular capture software that does not decrypt the Content Scrambling System on DVDs?

To the best of your ability, please explain how screen capture software operates, e.g., does reproduction take place after the work is lawfully decrypted?, Does the capture software reproduce the digital output from the computer, or does the capture software reproduce the analog output from the computer? Does this analog/digital distinction matter for determining whether a violation of § 1201(a)(1) is taking place?

Is the output encrypted at the time of capture by the software or is the output decrypted at the time of capture?

Do different screen capture programs involve significantly different methods of capturing screen and/or audio output?

There was an example of screen capture software at the § 1201 hearings and some witnesses pointed out that the example presented revealed quality degradation, e.g., pixelation. Can capture software be adjusted in order to affect the quality of the reproduction of the video or audio captured? If so, how?

Can the computer on which the capture software resides be adjusted to affect the quality of the output, i.e., by adjusting the settings of the operating system, video card or sound card software rather than the settings within the capture software itself?

It was claimed that screen and video capture technology does not work with Microsoft Vista. Is this true, and if so, why?

Are there other operating systems on which screen capture software will not operate?

Question Set #2 (Quote from Copyright Office Communication)

The first two questions envision a scenario where a user intends to reproduce a small portion of a motion picture or audiovisual work on a CSS-encrypted DVD for a particular use, such as the use of a portion in a documentary film.

Can a portion of a motion picture on a DVD protected by CSS be decrypted, leaving the remainder of the motion picture encrypted by CSS?

Is it necessary to make a copy of the entire motion picture as a first step in order to make a copy of only a portion of the motion picture?

Documentary filmakers' proposed class of works limited the persons who would be eligible to invoke the exemption to a documentary filmmaker, who is a member ofan organization of filmmakers, or is enrolled in a film program or film production courseat a post-secondary educational institution. Is it appropriate to limit the persons who would be eligible to invoke the exemption? Why? If you believe it would be appropriate, what criteria could be used?

Are there any other appropriate ways to properly tailor the scope of the exemption?

Announcing New Journal: Rhetoric, Professional Communication, and Globalization

2009-06-22T17:06:00.000-07:00

Rhetoric, Professional Communication, and Globalization

Barry Thatcher (Founder/Editor in Chief), New Mexico State University

Kirk St. Amant (Assistant Editor in Chief), East Carolina University

This Journal publishes research articles on the theory, practice, and teaching of professional communication in critical global contexts such as business, manufacturing, law, health, education, technology, environment, and others. The Journal welcomes articles with diverse rhetorical styles and contexts of research, but articles are to be submitted in English and grounded in relevant theory and appropriate empirical research methods. The Journal is a global effort with the editorial board consisting of researchers and practitioners from over 20 countries. The Journal’s objectives are to:

Develop better theoretical models of global professional communication.
Develop a variety of valid and ethical research methodologies for global professional communications.
Improve the practice of global business and manufacturing through more effective communication.
Improve the professional communication in critical cross-cultural and international contexts such as the environment, immigration, health, energy, economics, and human rights.
Develop sets of issues and research agendas that address the most pressing issues and challenges for communicating in a context of globalization.
Develop better curricula and materials for teaching global professional communication, not only in the United States and Europe, but around the world. Special attention will be given to developing nations.

The journal will be free or “open access” using PKP open source software and housed at Eastern Carolina University. The first edition is planned for June 2010, and it will be published thereafter on a quarterly basis. We will start accepting manuscripts in late fall 2009. Watch for it online as www.rpcr.org. For more information on the journal, contact Barry Thatcher (bathatch@nmsu.edu) or Kirk St. Amant (kirk.stamant@gmail.com).

"Canadian Govt Set To Consult On Copyright Act"

2009-06-04T19:35:00.000-07:00

"The [Canadian] Copyright Act, which the entertainment industry says is outdated and does not provide adequate protection for music and movies in the Internet age, has been a highly contentious issue pitting reformers against those worried that Canada's law could follow the American Digital Millennium Copyright Act. "

http://www.billboard.biz/bbbiz/content_display/industry/e3i8ec34ef6f7ad9c74742744921b2e9250

Acting Sua Sponte, the Second Circuit Creates Copyright Controversy that the U.S.Supreme Court Will Now Consider

2009-05-30T11:34:00.000-07:00

“Sua Sponte”

http://en.wikipedia.org/wiki/Sua_sponte

Sua Sponte is acting independently, of one’s own accord. While the recently filed Elsevier et al. brief (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-103_Petitioner.pdf) characterizes the lower court’s behavior as sua sponte, after reading the opinion I’m not sure I agree. In fact, it appears the lower court, the second circuit court of appeals, was merely bringing forth arguments made by Elsevier et al. during settlement/mediation discussions. The lower court case was In Re: Literary Works in Electronic Databases Copyright Litigation, 509 F. 3d 116.

Now at the Supreme Court level, the case is named Reed Elsevier, Inc. v. Muchnick (but involves multiple parties on both sides of the issue). The case will be scheduled for oral argument in the October 2009 term of the Supreme Court. Currently, briefs are being filed in the case. The docket can be followed here:

http://origin.www.supremecourtus.gov/docket/08-103.htm

Question presented is:

Does 17 U.S.C. §411(a) restrict the subject matter jurisdiction of the federal courts

over copyright infringement actions?

411(a) is a section of title 17 that requires registration of copyrighted works in order to institute an action for copyright. The language reads as follows:

(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register's failure to become a party shall not deprive the court of jurisdiction to determine that issue.

http://www.copyright.gov/title17/92chap4.html#411

The docket shows recent events in the case are as follows:

Mar 2 2009 Petition GRANTED limited to the following Question: Does 17 U. S. C. Sec. 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?

Mar 12 2009 The time within which to file the joint appendix and petitioners' brief on the merits is extended to and including May 18, 2009.

Apr 2 2009 Deborah Jones Merritt, Esq., of Columbus, Ohio, is invited to brief and argue this case, as amicus curiae, in support of the judgment below.

Apr 6 2009 The time for respondent Muchnick, et al. within which to file their brief on the merits in support of reversal is extended to and including June 1, 2009.

Apr 6 2009 The time within which to file brief of amicus curiae in support of the judgment below is extended to and including July 31, 2009.

Apr 6 2009 Any amicus curiae briefs in support of reversal are to be filed on or before June 8, 2009.

Apr 6 2009 Any amicus briefs in support of the judgment below are to be filed on or before August 7, 2009.

May 18 2009 Brief of respondents Letty Cottin Pogrebin, et al. in support filed.

May 18 2009 Joint appendix filed.

May 18 2009 Brief of petitioners Reed Elsevier, Inc., et al. filed.

So far, briefs on the same side of the issue (the publishers’ side) have been filed by Letty Cotin Pogrebin et al. and Reed Elsevier et al. The stance espoused in these briefs is that the second circuit was wrong in its holding and that the court should in fact have jurisdiction in order to certify the class and subsequently approve the offered settlement although some or most of the class involved in the settlement have copyrighted works that have never been registered as required under 411(a). Amicus briefs in support of the judgment below, i.e. the second circuit holding that the court does not have jurisdiction to certify the class and approve the offered settlement, do not have to be filed until August 7, 2009. Therefore, this case will be one to watch develop over the summer.

Basically, what happened in this case is that a class action settlement was reached subsequent to an earlier case New York Times Co. v. Tasini, 533 U.S. 483 (2001) . As part of the settlement process, a class must be defined and certified. If you recall, Tasini involved a dispute between freelance authors and newspapers at a time when writing went digital so quickly that corporate interests had failed to anticipate. With respect to the current Supreme Court case:

“This case presents an issue of exceptional importance to the nation’s freelance authors, newspaper and magazine publishers, archival databases, and the researching public. Its resolution will decide whether, in connection with the nationwide class action spawned by the New York Times v. Tasini case, the parties may globally settle their differences by compensating and releasing the claims of freelance authors with respect to all their contributions to the databases. Tasini expressly contemplated that databases, publishers, and authors could reach a court enforceable global settlement. On that basis, the parties and publisher spent over four years of intensive negotiations to reach an industry-wide settlement that was approved” (Elsevier Brief, p. 2).

The second circuit had been considering an appeal from the (lower) district court’s certification of the class in a class action lawsuit. “The precise issue on appeal was whether the district court had jurisdiction to certify a class consisting of claims arising from the infringement of unregistered copyrights and to approve a settlement with respect to those claims. It did not” (In Re, p. 2).

Tasini held that that if freelance authors’ writings were to be distributed and/or archived in electronic databases and formats, publishers had to have express licenses from those authors.

The second circuit (Judges Winter and Straub, Judge Walker dissenting) characterized Tasini as follows: “The contracts did not grant the publishers the right to electronically reproduce those works or license them for electronic reproduction by others. But the publishers did so anyway” (In Re, p. 4).

While in the present case, Elsevier et al. characterizes Tasini a bit differently:

“Tasini effectively compelled electronic publishers to purge their databases of many hundreds of thousands of newspaper and magazine articles for which written licenses had not been obtained. Obtaining such licenses retrospectively would be an insuperable task, given the sheer number of authors and works involved and the practical difficulties associated with finding the authors and executing individual agreements with each of them . . . following the second circuit’s Tasini decision, more than a score of freelance authors, supported by national authors’ rights trade organizations, filed lawsuits against online databases and certain publishers” (Elsevier, p. 2)

Here’s a quote from the brief filed May 18, 2009 by Reed Elsevier et al. describing how the issue now before the Supreme Court had arisen in the lower court, the second circuit:

“Shortly before argument, the second circuit panel sua sponte requested briefing on ‘whether the district court had subject matter jurisdiction over claims concerning the infringement of unregistered copyrights’ . . . All parties, including the objectors, responded that the district court had jurisdiction to approve the settlement” (p. 7).

But from my view, in the second circuit opinion, rather than acting completely independently of the parties involved, the court invoked the defendants’ (the publishers) arguments in reaching its decision:

“Before the mediator, defendants contended that this litigation possessed scant settlement value because the District Court could never certify the vast majority of the claims for inclusion in any proposed class.” Citing 411(a), the Defendants stated: “That rule . . . whose language could hardly be clearer, precludes the certification of any class respecting works in which a copyright has not been registered . . . the District Court lacks jurisdiction . . . to certify a class covering any unregistered works” (In Re, p. 5). The second circuit also pointed out that defendants provided survey evidence showing that only 1% of journalists registered their work and subsequently 99% of the claims at issue in the class were covering unregistered work.

So briefs asserting arguments in support of the second circuit decision have yet to be filed. This is an interesting case because it pits two sets of publishing stakeholders against each other in a rather unique fashion. (Publishers on one side, and authors and author trade organizations on the other side).

The case presents a sort of irony to some of the arguments made in comp/rhet that information should be set free, or that corporate interests should not over-regulate our use of information. In this case, the large publishers are arguing against their usual position – that information should be locked up, and in this case are arguing how sad it is that databases have had to be purged because copyright holders cannot be located (along the lines of the interests in the Orphan Works Act). In this case, publishers want to have free reign over the works of authors who did not expressly license their materials to be published in perpetuity in digital formats – freelance authors who I’m guessing were not paid much and were not provided health insurance, retirement, job security, and so on, i.e., marginalized peoples, in some ways.

My idea here is supported in some of the discussion in the second circuit opinion at issue. The class that was formed as a basis for the settlement before the lower court included three classes, A, B, and C.

“Category A claimants receive a flat fee. Category B claimants receive the greater of either a flat fee or a percentage of the original price of the work. By and large, Category C claimants also receive the greater of either a flat fee or a percentage of the original price of the work. Importantly, if the cost of all claims (plus the cost of notice, administration, and attorney’s fees) exceeds $18 million, then the amount paid to Category C claimants is reduced – potentially to zero – before the claims of Category A and B claimants are affected. This feature is called the ‘C-reduction.’” (In Re, p. 2) Category C claimants were largely those whose works had not been registered, and so the justification for their lower status in the settlement, according to the second circuit, was posited by the defendants as fair treatment since C claimants’ claims were for the most part worthless since they had not registered their works. The plaintiffs, according to the second circuit, basically agree with this.

So, what this boils down to is that the case is not really about whether or not information should be set free, but whether or not the publishing industry will benefit to the detriment of freelance authors, from inadequately anticipating the implications of the digital age rather suddenly befalling us in 2001.

I will be interested in following this case, and I’m willing to see how the arguments unfold. I also will commit more time to re-read Tasini and surrounding documents. But my inclination is to favor the holding in the second circuit that the court has no jurisdiction to approve a settlement that involves copyright claims and authors who have never registered their works.

I see some logical problems in the briefs I’ve read so far. If the court accepts the settlement via acknowledging jurisdiction, it is in effect preempting a copyright owner’s right to register their work – this seems a strange result. What I mean is, if the court had approved the settlement, it means that an author could register a work and be granted an official copyright, which would be meaningless due to the settlement. So that seems like a bizarre result. The other problem I have is that I interpret 411(a) as presenting a bar to the more powerful party in a copyright action, the copyright holder wishing to institute an action to enforce his/her rights. But in the present case, it’s being requested that 411(a) be used, or rather ignored, to present a bar to the weaker party in the copyright action, the author who never registered his/her work. In this case, the weaker party is *not* instituting the action. So, if the court would assume jurisdiction and rule in favor of taking rights from a party who had never registered their work, 411(a) would be inverted from what seems to me to be its intended purpose.

Further, the second circuit argued that if it were to assume jurisdiction in this case: “defendants’ position calls for an exception vastly broader than is found in any case by asking us to rule that registration of one party’s copyright would somehow provide jurisdiction over claims stemming from the unregistered copyrights of many other parties. We decline to do so” (In Re, p. 8).

So this is very problematic to me, and would produce inequitable results if it were embraced by the Supreme Court. In general I will be one to favor the weaker party in the lawsuit when the stronger party is moving against it, and thus has the burden. This is especially true in this case because the weaker party is not even present in the case both because of lacking registered works, and because of the possibility of being “represented” in the class (but remaining invisible) if it is indeed certified. The fair thing for the Supreme Court to do in this case is to affirm the second circuit. This seems very clear after reading the second circuit opinion which is available for free on its website using a search for docket number 05-5943.

Stay tuned.

Additional Resources

http://www.oyez.org/cases/2000-2009/2008/2008_08_103

http://jolt.law.harvard.edu/digest/copyright/in-re-literary-works-in-electronic-databases-copyright-litigation

http://www.nacua.org/documents/LiteraryWorksSettlementAgreement.pdf

http://www.law.cornell.edu/supct/html/00-201.ZS.html (New York Times v Tasini)

Citation for Second Circuit Opinion Being Appealed: 509 F.3d 116; 2007 U.S. App. LEXIS 27558; 85 U.S.P.Q.2D (BNA) 1217; Copy. L. Rep. (CCH) P29,494

http://www.ca2.uscourts.gov/

Publishers Involved

Thomason Corporation

Dialog Corporation

Gale Group, Inc.

West Publishing

Dow Jones & Company, Inc.

Dow Jones Reuters Business Interaction, LLC

Knight Ridder, Inc.

Knight Ridder Digital

Mediastream, Inc.

News Bank, Inc.

Pro Quest Company

Reed Elsevier, Inc.

Union-Tribune Publishing Company

Times Company

Copley Press, Inc. EBSCA Industries, Inc.

Participating Publisher Tribune Company

Computers and Composition Special Issue

2009-05-30T07:27:00.000-07:00

Deadline for manuscripts: September 15, 2009 (response by November 15)
Deadline for final manuscripts: January 15, 2010

I am co-editing an Intellectual Property-focused special issue of Computers and Composition with Danielle Nicole DeVoss, John Logie, and Steve Westbrook. I've pasted the call below and it can also be accessed as a pdf file here:

https://www.msu.edu/~courantm/CFP_CC_copyright.pdf

CALL FOR MANUSCRIPTS

special issue of Computers and Composition, volume 27 issue 3, September 2010
Copyright, Culture, Creativity, and the Commons

In 1998, Computers and Composition and Kairos both published special issues related to intellectual property. Much has changed in the 11 years since those special issues, including new legislation, proposed legislation, and the rise and fall of file-sharing spaces like Napster and Kazaa. Further, issues not addressed in the earlier special issue require the attention of computers and writing scholars, including global and international issues related to intellectual property, feminist and ecofeminist research in intellectual property, and issues of cultural cannibalism and intellectual commons. This special issue will attend to these—and other—issues, with a particular focus on the cultural consequences of our expanded sense of what counts as “property” in digital spaces.

Questions we invite authors to consider and respond to include, but are not limited to:

* Where are the significant intersections between intellectual property and computers and composition? What intersections have thus far remained invisible or buried?

* What significant changes have occurred in U.S. copyright law in the past 15 years? In international copyright law, policies, and approaches?

* What global, international, or cross-cultural intellectual property issues should we be attentive to?

* How might our understandings of “the commons,” the concept of shared or “community-owned knowledge,” and the notion of “cultural appropriation” contribute to conversations on copyright and/or intellectual property?

* What are some of the ways in which feminist/ecofeminist scholarship in intellectual property, and understandings of sustainability can inform or extend our approaches to intellectual property?

* What are some of the ways in which cultural rhetorics scholarship in intellectual property can inform or extend our approaches to intellectual property? For example, is there a connection between racism and the commodification of culture via intellectual property regimes? A connection with sexism? Where are the intersections between discourses of race and/or gender and intellectual property-related discourse?

* Are there better vocabularies, terms, and theories for us to drawn upon to situate and study “intellectual property?” Is it possible to recognize and/or attribute “intellectual property” in places other than formal legal regimes?

* How have intellectual property issues become more immediate with regard to the continual growth of and use for digital writing spaces? New media texts?

* In what ways can our long history of analyzing authorship and ownership of texts, including our discussions on issues of plagiarism and attribution, contribute to how we approach intellectual property issues? In what was does this long history perhaps submerge issues we
might be discussing?

* In what ways can writing instructors and researchers enter into public discussions about intellectual property?

The special issue will consist of: 1) a special issue editors’ introduction, which will provide some historical, legal, and philosophical context; 2) approximately 6–7 articles addressing issues of intellectual property, focusing on those issues that have arisen since the 1998 special issues; and 3) a roundtable-style-discussion piece capturing the interactions of key figures in intellectual property scholarship within and beyond computers and writing (e.g., Jim Porter, Ty Herrington, Jessica Reyman, Jessica Litman, Kembrew McLeod, Siva Vaidhyanathan, Rebecca Moore Howard, Vandana Shiva, Johndan Johnson-Eilola, and Peter Yu).

Deadline for manuscripts: September 15, 2009 (response by November 15) Deadline for final manuscripts: January 15, 2010

Please direct questions and email manuscripts to the special issue editors:

Martine Courant Rife
Lansing Community College

Steve Westbrook
California State University, Fullerton

Dànielle Nicole DeVoss
Michigan State University

John Logie
University of Minnesota

University of Ottawa law Prof. Michael Geist is Successful in Having Canadian Conference Board Recall Copyright Reports

2009-05-29T20:08:00.000-07:00

Thanks to the diligent efforts of law professor Michael Geist, an expert on copyright law who also manages the BNA Internet Law News (a fantastic email resource), cbanews.ca has announced today that the reports in question, those that I've blogged about earlier this week, are being recalled for failure to meet appropriate research standards.

"In a notice posted on its website Thursday, the board said it was recalling Intellectual Property Rights in the Digital Economy; National Innovation Performance and Intellectual Property Rights: A Comparative Analysis; and Intellectual Property Rights-Creating Value and Stimulating Investment."

http://www.cbc.ca/technology/story/2009/05/28/conference-board-copyright-geist.html

EFF Launches Free, Creative Commons-licensed "Teaching Copyright" Curriculum and Website

2009-05-28T07:00:00.000-07:00

According to an announcement from the EFF (Electronic Frontier Foundation), "last week, the Copyright Alliance Education Foundation (a nonprofit mouth piece for the entertainment and software industries) unveiled plans to spread its protectionist ideas to the nation's schools and libraries through the distribution of a curriculum titled 'Think First,Copy Later.'"

The EFF states that the "Think First, Copy Later" curriculum is similar in nature to other intimidating educational materials produced by corporate interests such as the MPAA, RIAA, Business Software Alliance -- these types of educational materials are created, according to the EFF, to "scare students into believing that making copies is wrong."

But what students and teachers don't need, is more intimidation. Instead, the EFF recognizes that what is needed is "solid, accurate information that will help them make smart choices about how to use new technologies." In response to this, EFF has just launched a free, Creative Commons-licensed "Teaching Copyright" curriculum and website "to help educators explore copyright issues in their classrooms."

The materials appear to be very easy to navigate and understand, and will "encourage students to discover their legal rights and responsibilities — including how to make full and fair use of technology that is revolutionizing learning and the exchange of information."

The EFF teaching materials and curriculum can be accessed here:

http://www.teachingcopyright.org/

"File-sharing report that slammed Canada plagiarized"

2009-05-27T11:35:00.000-07:00

http://www.canada.com/Business/File%20sharing%20report%20that%20slammed%20Canada%20plagiarized%20Expert/1629172/story.html

"Michael Geist, a Canada Research Chair at the University of Ottawa, said the new study on the digital economy from the self-described 'independent' research organization is a 'deceptive, plagiarized report' that copied passages from the International Intellectual Property Alliance, including one instance without any attribution."

Conference Board of Canada Ignores Research

2009-05-27T11:16:00.000-07:00

The Conference Board of Canada, which apparently holds itself out to be non-partisan, non-lobbying, and independent, has ignored some research it commissioned, research that contradicts the findings in its recent report. The report sides with recent corporate interests and stances in the U.S. by stating:

"The Conference Board report calls Canada 'the file-swapping capital of the world' and calls for strict new copyright legislation as well as new power for border guards to deal with counterfeit and pirated goods."

So far the Board has been accused of plagiarism, and has been asked to withdraw its report.

However, the Board admits:

"According to the Conference Board, the report was funded by the Canadian Anti-Counterfeiting Network, the Canadian Intellectual Property Council, the Copyright Collective of Canada and the Ontario Ministry of Research and Innovation as well as other lobby groups who are pushing for stronger Canadian copyright legislation."

This is a really interesting area of the law developing in Canada - it appears to be one of those cases where the "researcher" ignores evidence that is against the researcher's own position. It seems to be that step-by-step U.S. corporate interests will have their way in Canada.

http://www.canada.com/Business/Independent+study+fuels+debate+copyright+report/1632787/story.html

Obama to Release US Cyber Security Report Friday

2009-05-27T11:10:00.000-07:00

"President Barack Obama is to release the results of a 60-day review of U.S. cyber security policy on Friday, White House spokesman Robert Gibbs said Tuesday."

http://www.canada.com/news/Obama+release+cyber+security+report+Friday/1632703/story.html

Study of Blogger's Ethical Beliefs and Practices Published in New Media & Society

2009-05-21T18:40:00.000-07:00

A study of 1224 bloggers' ethical beliefs and practices was just published in New Media & Society. This incredibly insightful and well written piece clearly lays out the methodology and findings. The study found that "personal bloggers valued attribution most, followed by minimizing harm, truth-telling and accountability respectively. Non-personal bloggers valued both attribution and truth-telling most, followed by minimizing harm, then accountability. For both groups, attribution was most valued, and accountability least valued." (p. 586). Attribution mattered most for the bloggers. (Supporting my study findings as well). Based on their research, the authors crafted ethical guidelines for bloggers, based on what the 1224 bloggers thought was important. In their piece, they also site Clancy Ratliff's "Attracting Readers: Sex and Audience in the Blogosphere."

http://www.barnard.edu/sfonline/blogs/ratliff_01.htm

US Congressional Caucus says Canada is a "Safe-Haven for Pirates"

2009-05-21T13:39:00.000-07:00

http://www.pcworld.com/article/165267/congress_to_monitor_canada_spain_for_copyright_violations.html

According to the Congressional International Anti-Piracy Caucus briefing paper: "Canada: The country does not have legislation or legal rulings that 'clearly provide an effective means for copyright holders to protect their works from online piracy. This legal void has made Canada an attractive location for illicit Web sites, and Canada has regrettably become known as a 'safe haven' for Internet pirates.'"

Canada Put On Another US "Watch" List

2009-05-20T16:26:00.000-07:00

In addition to being placed on the "301" list last week by the office of US trade representative, Michael Geist reports that a US Congressional Caucus has just placed Canada on another "list."

"Because one unfounded and unsupportable designation as a pirate nation is never enough, the U.S. Congressional International Anti-Piracy Caucus has placed Canada on a watch list alongside China, Mexico, Russia and Spain. This is a separate list from the USTR Special 301 list."
http://www.michaelgeist.ca/content/view/3990/196/

Just today I revised a chapter that I hadn't read in two years. It discusses Canada's amazing CCH opinion, an opinion that took the US fair use doctrine and broadened it. Copying (fair use) for research, private and commercial is legal in Canada. Downloading for private use is legal, and uploading is not illegal. Canada has taken a pretty clear stand on protecting user rights - the country probably has the broadest user protection of any country. And you can see the results. Obama's committed to enforcing IP rights and will appoint a Czar soon. The content industry will continue to exert pressure, lobbying pressure, on US politicians, and in turn, Canada will continue to be a focus of US attention in this area.

First Person is Convicted Under DMCA for Selling Circumvention Tool

2009-05-20T16:06:00.000-07:00

At the DMCA Rulemaking hearings, I recall, I think it was the attorney for the MPAA/RIAA, asserted that no one had ever been convicted under the DMCA for selling/trafficking circumvention tools. While it is not illegal under the DMCA to use these tools, it is illegal to sell them. An example might be a fake access key to access software or a tool to unscramble the CSS on a DVD.

Cnet News reports today that Adonis Gladney has been convicted of selling fake Microsoft product keys.

"Gladney, 24, is believed to be the first person convicted for DMCA violations dealing with the circumvention of security protections on software, according to Assistant U.S. Attorney Craig Missakian. Typically, product keys are used to activate software and are printed on Certificate of Authenticity labels that accompany legitimate products."

http://news.cnet.com/8301-1009_3-10242343-83.html

My opinion is that there's always a balance to be maintained between users/creators and corporate interests. It was clear at the rulemaking hearings that the DMCA's anti-circumvention provisions are completely useless and ineffective. Users are circumventing and creating all kinds of digital remixes. The corporate interests have no choice but to now go after those who sell these kinds of tools that permit hacking. This result also gives me hope though, because maybe the tides are turning for those who circumvent in order to make a fair use of existing materials. If the copyright office grants an exemption to the DMCA for educational users, it will probably be a matter of days before the corporate interests create licenses that permit users to circumvent, and then offer a cheap, legal tool for doing so.

White House Office of Administration is Deemed Not Subject to FOIA

2009-05-20T12:59:00.000-07:00

"The appeals court in Washington ruled that the White House Office of Administration isn't an agency subject to the Freedom of Information Act, allowing the White House to keep secret documents about an email system that has been plagued with problems."

http://online.wsj.com/article/SB124274567167334975.html

Fair Use and Online Video--Short Video Released by Center for Social Media

2009-05-19T04:09:00.000-07:00

http://centerforsocialmedia.org/resources/online_video

My Research Participants' Misunderstanding Was Also Obama's?

2009-05-15T16:42:00.001-07:00

One area of clear misunderstanding that arose in my copyright study, was that professional writers were not fully aware of the government exception to copyright protection. That is, items authored by the US government are not copyright protected, but are in the public domain. It appears that the Obama administration fell prey to this same misunderstanding but has now, thankfully, corrected itself.

http://www.citmedialaw.org/blog/2009/white-house-drops-license-restrictions-photos-flickr-stream-now-public-domain

"When the White House photos first appeared on Flickr in April, Fred Benenson of Creative Commons and others pointed out that the government couldn't grant a CC license on content to which it didn't own the copyright and hypothesized that the administration likely chose a CC Attribution license as the least restrictive option available to it because Flickr "doesn’t allow their photographers to choose Public Domain as an option to release their work to the world." (As Hugh D'Andrade of EFF pointed out, Flickr does have a public domain option (of sorts) on the "Commons" portion of its site, which acts as a repository for certain public photography collections. This "No known copyright restrictions" label, however, is only available to participating institutions like The Library of Congress and The Brooklyn Museum.) "

Nixon Library to Open New Materials in June

2009-05-15T04:17:00.000-07:00

On June 23, 2009, the Richard Nixon Presidential Library and Museum will make newly available 154 hours of Nixon White House tape recordings and textual materials among the Nixon Presidential Historical Materials.

"The tape recordings will be made available on the Web at http://www.nixonlibrary.gov beginning at 9 a.m. (EDT)/6 a.m. (PDT). The textual materials will be made available at the National Archives building at College Park, MD beginning at 11 a.m."

http://edocket.access.gpo.gov/2009/E9-11515.htm

University Owned Gene Patents Challenged on First Amendment Grounds

2009-05-14T17:39:00.000-07:00

"The American Civil Liberties Union and the Public Patent Foundation filed suit on Tuesday to challenge the constitutionality and validity of patents on two human genes linked to breast and ovarian cancer."

http://chronicle.com/news/article/6463/lawsuit-challenges-constitutionality-of-u-of-utahs-patents-on-breast-cancer-genes

"Judge Dismisses U. of Missouri's Lawsuit Against a Professor in Dispute Over Inventions"

2009-05-13T17:37:00.000-07:00

"A federal judge has dismissed a lawsuit that the University of Missouri system filed against one of its professors in an intellectual-property dispute." See the Chronicle News Blog

http://envoy.lcc.edu:2065/news/article/6471/judge-dismisses-u-of-missouris-lawsuit-against-a-professor-in-dispute-over-inventions

Posted on WIDE's Blog

2009-05-12T11:18:00.000-07:00

I posted a summary of the DMCA testimony on the WIDE blog; the title is "DMCA Testimony."

I will be creating an annotated archive and resource this summer.

http://www.wide.msu.edu/content/blog.php?postid=75

The brunt of my DMCA testimony

2009-05-12T06:46:00.000-07:00

Here's a high quality version of my testimony on May 6 before the copyright office supporting the educational exemption to 1201.

http://www.screencast.com/users/hotdog2/folders/DMCA%20Hearings%20May%206/media/0c25fd1a-14ed-408a-9af4-76138e5bbfe8

Lessig receives take down notice from Warner Music

2009-05-11T18:25:00.000-07:00

http://arstechnica.com/tech-policy/news/2009/04/lessig-presentation-on-youtube-hit-with-dmca-takedown-notice.ars

A New Study Shows Copyright Exception for Legalising File-Sharing is Feasible, as a Cease-Fire in the “War on Copying” Emerges

2009-05-11T16:15:00.000-07:00

From the Intellectual Property Watch

"A landmark study by the Institute of European Media Law (EML) found that a levy on internet usage legalising non-commercial online exchanges of creative works conforms with German and European copyright law, even though it requires changes in both. The German and European factions of the Green Party who had commissioned the study will make the “culture flat-rate,” as the model is being called in Germany, an issue in their policies. The global debate on a new social contract between creatives and society is getting more pronounced by the day. Two models are emerging: a free-market approach based on private blanket licences and voluntary subscriptions, and a legal licence approach based on exceptions in copyright law and mandatory levies, that now has been proven legally feasible and appropriate by the EML study."

http://www.ip-watch.org/weblog/2009/05/11/the-world-is-going-flat-rate/

Questions that arose during the DMCA 2009 rulemaking hearings

2009-05-10T16:25:00.000-07:00

Some issues arose during the 2009 DMCA rulemaking hearing that took place in the US Copyright Office. One of these issues was concerning the use of screen-capturing software such as snag-it, camtasia, and morae. Snag-it was the only application mentioned by name. These discussions took place both during the educational exemption panel (afternoon May 6), and the general exemption panel (the vidders, morning May 7).

No one in the room, either those representing the motion picture industry, the copyright office panelists, nor those testifying in favor of the use, could say whether or not such screen capturing software is accomplishing a "circumvention" of technological protection measures.

So that question was left open.

Another question that arose, was whether or not an exemption for copying is even needed, since the DMCA was never intended to prohibit circumvention for purposes of copying as opposed to circumvention for purposes of gaining access. The MPAA and those opposing the exemption, argue that since both the access and copying controls are folded into one, to circumvent for copying is the same as circumventing for gaining access. I asked the copyright office to address this in its recommendations. They discussed it in the April 3, 2006 transcript, but never made a determination on this issue. The legislative summary I quoted from during my testimony clearly states that it is not the intention of congress to stop people from circumventing in order to make copies.

Another interesting development, was that there was consensus from the other side of the aisle, those opposing the exemption, that the kind of use I showed, a student created montage done for an academic conference, a course seminar, and submitted towards degree completion, was certainly a "fair use" under section 107.

DMCA Rulemaking Hearings Resources and Links

2009-05-10T08:34:00.000-07:00

Mp3 files have been posted by the US Copyright Office (the agenda appears below the Mp3 files):

http://www.copyright.gov/1201/hearings/2009/

General info about the DMCA rulemaking hearings:

http://www.copyright.gov/1201

Audio files for the educational exemption hearing, created by the EFF (my testimony is an Mp3 file here).

http://www.screencast.com/users/hotdog2/folders/DMCA%20Hearings%20May%206

Mp3 of my testimony on the educational use exemption.

http://www.screencast.com/users/hotdog2/folders/DMCA%20Hearings%20May%206/media/9377d9d3-ce84-4936-b7bb-757c1d0dcae0

Rebecca Tushnet's blog

http://tushnet.blogspot.com/2009/05/copyright-office-dmca-hearings_7679.html

Boing Boing

http://www.boingboing.net/2009/05/07/mpaa-to-teachers-don.html

Center for Social Media Coverage

http://www.centerforsocialmedia.org/blogs/future_of_public_media/dmca_fair_use_and_educators/

I will add to this resource list as information becomes available.

Southeast Alaska Funerary Object to be Repatriated

2009-05-09T12:09:00.000-07:00

Notice appearing in the Federal Register, E9-10577:
http://edocket.access.gpo.gov/2009/E9-10577.htm

Quote:

In 1976, an object was removed from a cave in Port Malmesbury, Kuiu
Island in Southeast Alaska, by a Forest Service archeologist. The
object is a wooden artifact that is believed to be a funerary object
since the cave where it was removed from contained human remains and
associated funerary objects. The human remains and associated funerary
objects that were removed from Port Malmesbury, Kuiu Island were
repatriated to the Organized Village of Kake in 1998, and are described
in a Notice of Inventory Completion previously published in the Federal
Register (63 FR 18034-18035, April 13, 1998). Due to an administrative
oversight this funerary object was not included.
   Historical and ethnographic records, along with Tlingit oral
history, indicate that a smallpox epidemic in the 1800s decimated the
Tlingit communities on Kuiu Island and the survivors moved to Kake and
Klawock. The members of the Killerwhale clan in these villages are the
descendants of these survivors.
   Officials of the U.S. Department of Agriculture, Tongass National
Forest have determined that, pursuant to 25 U.S.C. 3001(3)(B), the one
object described above is reasonably believed to have been placed with
or near individual human remains at the time of death or later as part
of the death rite or ceremony and are believed, by a preponderance of
the evidence, to have been removed from a specific burial site of a
Native American individual. Officials of the U.S. Department of
Agriculture, Tongass National Forest also have determined that,
pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group
identity that can be reasonably traced between the unassociated
funerary object and the Klawock Cooperative Association and Organized
Village of Kake.

US Copyright Office Quickly Posts MP3s of Rulemaking Hearings

2009-05-08T16:58:00.000-07:00

http://www.copyright.gov/1201/hearings/2009/transcripts/index.html

What a great resource!

Canada put on 301 list

2009-05-02T18:55:00.000-07:00

http://www.ip-watch.org/weblog/2009/05/02/special-301-process-acclaimed-by-industry-assailed-by-public-interest-groups/

http://www.michaelgeist.ca/content/view/3911/125/

I cannot understand why the US ignores that fact that inserting its laws in other countries, is inserting its culture. Some of these cultures are incommensurable with the western IP paradigms . . .there are ways to accomplish goals of protecting IP, but not by ignorning the real problems of cultures with very conflicting paradigms about authorship, individuals, and ownership.

Marybeth Peters discusses copyright and the library of congress

2009-04-30T05:23:00.000-07:00

http://www.c-span.org/Watch/Media/2008/08/02/HP/A/9571/Marybeth+Peters+Library+of+Congress+US+Register+of+Copyrights.aspx

Obama will appoint Copyright Czar - Stakeholders make their arguments

2009-04-24T20:37:00.000-07:00

It's been reported widely that Obama is taking a more pro-industry stance than Bush did - which is alarming some groups.

A recent Cnet article states that: "Under a law approved by the U.S. Congress last October, Obama is required to appoint someone to coordinate the administration's IP enforcement efforts and prepare annual reports."

Here is a letter supporting a pro-copyright enforement czar:
http://www.copyrightalliance.org/files/ip_community_april_20_letter_to_president_obama.pdf

Here is a letter supporting a more balanced approach: "In selecting these officials, we ask you to consider that individuals who support overly broad IP protection might favor established distribution models at the expense of technological innovators, creative artists, writers, musicians, filmmakers, and an increasingly participatory public."
http://www.publicknowledge.org/pdf/ip-letter-20090402.pdf

MSU scholars to try to reform education in Pakistan

2009-04-24T19:40:00.000-07:00

From MSU today:
"A team of education experts from Michigan State University will play a key role in a $75 million, U.S.-funded effort to improve basic education in Pakistan by improving teachers’ training and skills over the next five years."

I recently submitted a journal article for review on the topic of the Axact v. SNR case. That case involves an international dispute between Pakistani-based Axact, and New Jersey-based SNR. Each company alleges the other sells student term papers, each company vehemently denies this. The evidence is very compelling against Axact - and the New Jersey District Court awarded over $300,000.00 in a default judgment against Axact and in favor of SNR. The cultural differences though between Pakistan and the US with respect to education, is worth further exploration (in the context of selling student papers).

The article states:
“It’s unfortunate, but in Pakistan teaching is one of the least-respected professions,” Mabokela said. “And so the level of training and the quality of students that enter the profession is considered to be on the lower end of the spectrum.”

And the article further states:

"Mabokela will lead two small teams of scholars and administrative staffers – one based at MSU and one in Islamabad, Pakistan. The first task is collecting data and determining the needs to create the curriculum for secondary-level teachers. Eventually Mabokela plans to tap College of Education faculty members in math, science and other subjects to help shape the curriculum. Mabokela and her team also will conduct research stemming from the initiative."

“It is challenging in that we are working in an environment that socially and culturally is not particularly hospitable to U.S. foreign policy,” Mabokela said. “But I think people, without being hysterical, are being very prudent in making sure the security details are being attended to.”

"Mabokela said Pakistan’s poor teacher training is reflected in the country’s literacy rates: Only 46 percent of the population is literate, while only 26 percent of females are literate, according to Pakistan’s Ministry of Education."

This will be a big job for the MSU scholars. The differences between these two countries go very deep, as evidenced in the Axact v. SNR case.

http://news.msu.edu/story/6215/

Internet2 argues that universities should give shape to national broadband strategy, and they want $$ to do it

2009-04-24T18:53:00.000-07:00

In an interesting turn of events, higher ed is making a play for some of the 4.7$ billion that will be paid out by the National Telecommunications and Information Administration (NTIA). This agency is under the Commerce Department, and the money is from a new grant program.

According to today's Chronicle of Higher Ed, the purpose of these grant funds are to provide broadband to all communities in the US. (I live in a rural area where there is no broadband available - so this idea is appealing, but I've heard it discussed for several years now with no apparent progress).

[begin quote] "Several higher-education information-technology groups are now working to influence the national broadband strategy through private conversations with agency officials and a white paper, "Unleashing Waves of Innovation: Transformative Broadband for America's Future," filed with the NTIA.

One of those groups is Internet2, a high-speed networking consortium with more than 200 universities as members. Its vice president for external relations, Gary R. Bachula, reminded The Chronicle this week that universities helped give birth to the Internet and were instrumental in its development. For those and other reasons, he said, "the right way to construct a national broadband strategy is to have higher ed lead it." [end quote]

I am very interested in how higher ed gets its ideas in the public agenda, and how higher ed finds ways to shape law and policy. Therefore, this story is interesting and one to follow.

http://chronicle.com/free/2009/04/16710n.htm?utm_source=at&utm_medium=en

I am going to DC . . .

2009-04-24T07:35:00.000-07:00

http://beyondwordsblog.com/2009/04/23/professional-writing-professor-to-testify-about-copyright/

Quote: "Obama Administration Lock(e)s And Loads Against Movie Piracy"

2009-04-24T07:30:00.000-07:00

http://www.ip-watch.org/weblog/2009/04/22/obama-administration-lockes-and-loads-against-movie-piracy/

From the Intellectual Property Watch:By Liza Porteus Viana for Intellectual Property Watch @ 12:41 am

[being quote]WASHINGTON, DC - The Obama administration will fight for the movie industry and work to aggressively enforce its intellectual property protections both at home and abroad, United States Commerce Secretary Gary Locke said here Tuesday.

Locke offered almost unabashed support for the industry, which, according to a report released Tuesday [pdf] by the Motion Picture Association of America (MPAA), created 2.5 million American jobs in 2007, paid an average production worker US$74,700 a year in salary, paid out $41.1 billion in salaries to American workers, paid $13 billion in income and sales tax and was responsible for $13.6 billion in trade surplus.[end quote]

I am really concerned about the one-sidedness of Locke's perspective. Where are the voices of the NCTE lobbyists? Do they even know what is at stake here?

Obama Puts Science on the Agenda

2009-04-23T04:42:00.000-07:00

"Today, more than ever before, science holds the key to our survival as a planet and our security and prosperity as a nation. It’s time we once again put science at the top of our agenda and worked to restore America’s place as the world leader in science and technology." - President Barack Obama

On the topic of integrity in science, the executive office is taking comments until May 13, 2009.

http://edocket.access.gpo.gov/2009/E9-9307.htm

Antidumping Activity

2009-04-19T17:05:00.000-07:00

Antidumping, not what you think.

What do circular welded carbon steel pipes and tube from Taiwan, hot-rolled carbon steel flat products from India, and wooden bedroom furniture from China all have in common? They were this week subject to antidumping evaluation by the US Department of Commerce, along with Vietnam frozen fish fillets (catfish) and honey from Argentina.

According to wikipedia, "dumping" can refer to any kind of predatory pricing. "However, the word is now generally used only in the context of international trade law, where dumping is defined as the act of a manufacturer in one country exporting a product to another country at a price which is either below the price it charges in its home market or is below its costs of production. The term has a negative connotation, but advocates of free markets see "dumping" as beneficial for consumers and believe that protectionism to prevent it would have net negative consequences. Advocates for workers and laborers however, believe that safeguarding businesses against predatory practices, such as dumping, help alleviate some of the harsher consequences of free trade between economies at different stages of development (see protectionism)."

Wikipedia goes on to state:

"A standard technical definition of dumping is the act of charging a lower price for a good in a foreign market than one charges for the same good in a domestic market. This is often referred to as selling at less than 'fair value.' Under the World Trade Organization (WTO) Agreement, dumping is condemned (but is not prohibited) if it causes or threatens to cause material injury to a domestic industry in the importing country."

Anyway, in the federal register, which I read somewhere is like the newspaper for the US government, they have been listing the results of several administrative reviews this week on the items aforementioned. Basically it appears that the purpose of these adminstrative evaluations is to determine tariff amounts, or assessments on producers of the iterms that could be "dumped" into the US economy.

Smart People Really Do Think Faster: I Don't Think So!

2009-04-18T05:28:00.000-07:00

http://www.npr.org/templates/story/story.php?storyId=102169531

Well this is an interesting story that just aired on NPR. It contains some beautiful visualizations of the brain. But, I have to say that my initial reaction is that speed alone is not what makes people smart, although I'm sure smart people do think faster.

Think about it. If you have just the tiniest bit of craziness in your brain, and you think faster, that has to exponentially increase your chances of being totally crazy. It cannot be speed that makes one intelligent, because speed would just create a mass of chaos in your head.

Instead, it has to be the right kind of speed with the right kind of information. There has to be the ability to sort information, slow some of it down, and stop some of it completely.

So now I'm wondering if, like, bi-polar individuals and/or schizophrenics are people whose brains have great speed without the ability to slow or stop or erase the information we need to in order to not have hallucinations and/or paranoia. I've read lots of stuff that says artistic and/or creative people have been known to also be a little bit crazy. (I mean crazy in a loving way, not a derogatory way).

Probably, the creative crazies are just really smart people, with fast brain speeds, who don't enjoin certain kinds of information from traveling throughout their heads.

It reminds me a lot of the Internet, because the Internet lets good stuff proliferate, but it also lets crazy, bad, insane, wrong, and illegal stuff proliferate too.

JK Rowling leads fight against free books site Scribd

2009-04-01T04:20:00.000-07:00

From guaridian.co.uk, "The publishers of bestselling authors JK Rowling, Aravind Adiga and Ken Follett have been shocked by the news that their authors' latest books are available to read for free on a US website. Internet users can not only read free copies of The Tales of Beedle the Bard, The White Tiger and World Without End at Scribd.com, but also download the text onto their computers to edit as they see fit."

http://www.guardian.co.uk/books/2009/mar/30/scribd-rowling-free-book-outrage

Library Organizations To File Amicus Brief in Google Book Search Settlement

2009-03-27T16:32:00.000-07:00

"The American Library Association (ALA), the Association of Research Libraries (ARL), and the Association of College and Research Libraries (ACRL) said this week they will file an amicus brief pertaining to the pending Google Book Search settlement. ARL associate executive director Prue Adler told the LJ Academic Newswire the brief would be written by attorney Jonathan Band, author of the Guide for the Perplexed: Libraries and the Google Library Project Settlement, and would amplify for the court concerns library leaders voiced at recent meeting in Washington, DC."

The full story: http://www.libraryjournal.com/article/CA6640461.html

Berkman Center Provides Info on How To Blog Anonymously

2009-03-27T13:57:00.000-07:00

While I don't encourage anonymity in digital writing because I'm strongly in favor of accountability, in some places you cannot say what you think about political events because if you do you could go to jail or even worse. So, for those who feel the need to blog anonymously, the Berkman Center has some advice.

http://blogs.law.harvard.edu/idblog/2009/03/25/how-to-blog-anonymously/

Notice of Inquiry and Request for Comments on the Topic of Facilitating Access to Copyrighted Works for the Blind or Persons With Other Disabilities

2009-03-26T05:14:00.000-07:00

From The Federal Register - verbatim:

Copyright Office

Notice of Inquiry and Request for Comments on the Topic of Facilitating Access to Copyrighted Works for the Blind or Persons With Other Disabilities; Notice of Public Meeting

AGENCY: United States Copyright Office, Library of Congress.

ACTION: Notice of inquiry and request for comments; notice of public meeting.

Public Meeting

The public meeting will be held in the Montpelier Room of the Library of Congress, James Madison Building, 6th Floor, 101
Independence Avenue, SE., Washington, DC 20559. the process for submitting requests to attend and observe or participate in the meeting, as well as the agenda, will be published on the Web site of the U.S. Copyright Office no later than April 8, 2009.

DATES: Initial comments on the Notice of Inquiry and Request for Comments are due on April 21, 2009. Reply comments are due on May 4, 2009. The public meeting will be held Monday, May 18, 2009, from 9:30 a.m. to 5:30 p.m.

http://edocket.access.gpo.gov/2009/E9-6637.htm

Statement of H. Thomas Wells Jr., President, American Bar Association Re: Anticipated Reinstatement of Pakistani Judges

2009-03-25T20:05:00.001-07:00

"CHICAGO, March 19, 2009 – The American Bar Association welcomes the anticipated reinstatement by Pakistan of judges formerly barred from their posts. For more than two years the ABA has urged the government of Pakistan to restore the judiciary to its rightful role in a fair and free society. This reinstatement is heartening to all who believe in the importance of the rule of law to the functioning of a nation. An independent judiciary is every nation's strongest protector of justice, and justice is the strongest root of effective government."

Student 4th Amendment Search Case to be Heard by the Supreme Court April 21

2009-03-25T19:33:00.000-07:00

Safford Unified School District v. Redding, Docket No. 08-479

Safford Unified School District v. Redding, Docket No. 08-479

Briefs can be read here:

http://www.abanet.org/publiced/preview/briefs/april09.shtml#071428

Amicus Curiae

2009-03-25T09:23:00.001-07:00

and, an excellent example of an Amicus Curiae Brief: http://www.citmedialaw.org/sites/citmedialaw.org/files/2009-03-24-Amicus%20Curiae%20Brief.pdf

--the brief contains an *excellent* review of literature, I mean case law, that illustrates first amendment rights in the U.S..

Citizen Media Law Project and Cyberlaw Clinic Lead Amicus Effort Promoting Rights of Anonymous Online Speakers in Illinois

2009-03-25T09:20:00.000-07:00

"Cambridge, MA - March 25, 2009 - In a case involving important First Amendment rights, the Citizen Media Law Project ("CMLP") joined a number of media and advocacy organizations, including Gannett Co., Inc., Hearst Corporation, Illinois Press Association, Online News Association, Public Citizen, Reporters Committee for Freedom of the Press, and Tribune Company, in asking an Illinois appellate court to protect the rights of anonymous speakers online by imposing procedural safeguards before requiring that their identities be disclosed."

http://cyber.law.harvard.edu/newsroom/CMLP_Maxon-v-Ottawa

YouTube Says China Blocks Site

2009-03-25T08:32:00.000-07:00

http://online.wsj.com/article/SB123791575627627223.html

From the Wall Street Journal:

According to writers Jessica Vascellaro and Geoffrey Fowler, "Access to GoogleInc.'s YouTube service was blocked by Chinese authorities, as the video-sharing site continues to wrestle with governments offended by some of its content."

[Today] The Wikipedia Revolution

2009-03-25T07:37:00.000-07:00

http://cyber.law.harvard.edu/events/webofideas/2009/03/wikipediarevolution

From the Berkman Center: "The Wikipedia Revolution is the first narrative account of the remarkable success story of the "encyclopedia anyone can edit." Andrew Lih, a Wikipedia editor/administrator, academic and journalist, tells how the Internet's free culture community inspired its creation in 2001, and how legions of volunteers have emerged to create over 10 million articles in over 50 languages. The book recounts colorful behind-the-scenes stories of how obsessive map editors, automated software robots and warring factions have come to shape a complex online community of knowledge gatherers. Learn about the historical underpinnings of Wikipedia, of how a Hawaiian vacation and a fringe piece software from Apple Computer inspired the wiki concept, and realized the original read-and-write capabilities of the Tim Berners-Lee's World Wide Web. While Wikipedia has become firmly planted at the top of Google's search results, what are the challenges as sum of all human knowledge becomes more complete, and its problem is not growth, but reliability? Should we be putting so much trust in a resource created by anonymous nobodies?"

Recovery Act - Tribal Crime Data Collection, Analysis and Estimation Project

2009-03-20T14:59:00.000-07:00

From grants.gov - and I can't help reading this rhetorically. Considering the various data mining and data recovery RFPs I've seen recently, I don't know if this particular one is a good thing or a bad thing:

"On February 17, 2009, President Obama signed into law the landmark American Recovery and Reinvestment Act of 2009 (the “Recovery Act”). As one of its many elements, the Recovery Act provides the U.S. Department of Justice (DOJ) with funding for grants to assist state, local, and tribal law enforcement (including support for hiring), to combat violence against women, to fight internet crimes against children, to improve the functioning of the criminal justice system, to assist victims of crime, and to support youth mentoring. DOJ is committed to working with our national, state, local, and tribal partnerships to ensure this funding invests in the American workforce."

http://www07.grants.gov/search/search.do?&mode=VIEW&flag2006=false&oppId=46159

Perelman's Theory of Argumentation and Natural Law

2009-03-20T14:09:00.000-07:00

Posted on SSRN by Francis Joseph Mootz III, William S. Boyd School of Law, UNLV

His abstract, quoted:
Abstract:
Chaim Perelman and Lucie Olbrechts-Tyteca published "The New Rhetoric" fifty years ago, renewing interest in the rhetorical tradition and generating a diverse body of scholarship. This article draws from a plenary talk delivered at the international conference, "The Promise of Reason," held at the University of Oregon to mark the publication anniversary. I argue that Perelman's insistence on the absence of certainties and the need for argumentation in matters relating to law and justice has interesting, even if surprising, connections to the natural law tradition. I contend that there are at least three points of convergence: (1) natural law claims are important, and perhaps unavoidable, commonplaces in legal practice; (2) natural law claims can be viewed as invoking Perelman's famous, and often misunderstood, idea of a universal audience; and (3) the natural law tradition can be reconceived by "naturalizing rhetoric," by which I mean recognizing that human nature is rhetorical. A naturalized rhetoric embraces the paradox that non-essentialism is essential to our being, and that we can find a foundation for reflection in anti-foundationalism. I conclude that Perelman's theory of argumentation provides a way to resuscitate natural law theorizing while moving beyond the false certainties that Perelman understood only impede our quest for justice.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1266139

Internet filter list of porn exposed

2009-03-20T10:35:00.000-07:00

In Austrailia: "THE Rudd Government's plans for a nationwide internet filter are in jeopardy after its top-secret blacklist of banned web pages was leaked."

The comments attached to this article are spectacular.

http://www.australianit.news.com.au/story/0,24897,25214571-15306,00.html

Iran blogger dies in Evin prison

2009-03-20T09:38:00.000-07:00

"Reports from Iran say Omid Mirsayafi, a blogger who had been jailed for insulting the country's ruling clerics, has died in Tehran's main prison."

http://news.bbc.co.uk/2/hi/middle_east/7953738.stm

U.K. to monitor, store all social-network traffic?

2009-03-20T09:34:00.000-07:00

"The U.K. government is considering the mass surveillance and retention of all user communications on social-networking sites, including Facebook, MySpace, and Bebo."

http://news.cnet.com/8301-1009_3-10199107-83.html

Swedes say no to copyright law: poll

2009-03-18T13:47:00.000-07:00

Support is weak among Swedes for the new IPRED copyright law designed to make it easier to investigate suspected cases of illegal file sharing, a new poll shows.

http://www.thelocal.se/18260/20090317/

Orphan Works Act

2009-03-17T05:00:00.000-07:00

http://www.copyright.gov/orphan/

Legislation is pending in Congress that would ease the “orphan works” problem - this is a nice summary.

WIPO saw a record 2,329 complaints filed in 2008, an 8 percent increase over the previous year.

2009-03-17T04:58:00.000-07:00

A record number of cybersquatting complaints were filed at the World Intellectual Property Organization in 2008, and the organisation is preparing for a potentially much larger set of concerns as the launch of an unknown number of new domains approaches.

http://www.ip-watch.org/weblog/2009/03/16/record-cybersquatting-cases-as-wipo-seeks-new-trademark-protections/

China’s complicated internet culture

2009-03-06T12:47:00.000-08:00

http://www.ethanzuckerman.com/blog/2009/03/03/chinas-complicated-internet-culture/

The beginning of the end for open access?

2009-02-28T18:38:00.000-08:00

http://www.diverseeducation.com/artman/publish/article_12320.shtml

Community Colleges May Soon Start Turning Students Away

Argumentation and Violence

2009-02-28T12:49:00.000-08:00

Another quote from Perelman and Olbrechts-Tyteca, 1971, which also reminds me of a lot of things contemporary:

"Any society prizing its own values is therefore bound to promote opportunities for epidictic speeches to be delivered at regular intervals: ceremonies commemorating past events of national concern, religion services, eulogies of the dead, and similar manifestations fostering a communion of minds. The more the leaders of the group seek to increase their hold over its members' thought, the more numerous will be the meetings of an educational character, and some will go as far as to use threats or compulsion to make recalcitrants expose themselves to speeches that will impregnate them with the values held by the community" (p. 55)

The authors also point out that argumentation can easily be viewed as a substitution for physical force, aiming at getting people to do something by compulsion. Viewed this way, the textual law itself is an argument, one replacing physical force, like public torture, as Foucault might point out.

Continuing on this line of argument, based on what I've previously said elsewhere, that if the law is a technology, and the law is an argument, it follows that argument is technology. This makes sense to me.

The Epidictic Genre: "After listening to the speaker, they merely applauded and went away"

2009-02-28T12:41:00.000-08:00

Here is a quote I found from Perelman & Olbrechts-Tyteca (1971) that is so apropos to my life at the present moment, and the lives of many others for that matter; I do not want to explain more:

"A single orator, who often did not even appear in public, but merely circulated his written composition, made a speech, which no one opposed, on topics which were apparently uncontroversial and without practical consequences. Whether it be a funeral eulogy, the eulogy of a city for the benefit of its inhabitants, or a speech on some subject devoid of current interest, such as the praise of a virtue or of a god, the audience, according to the theoreticians, merely played the part of spectators.

After listening to the speaker, they merely applauded and went away" (p. 48)

The Obama Hope Poster Case

2009-02-27T07:07:00.001-08:00

NPR has conducted a series of interviews with the interested parties. I include a link to the interview with law professor Greg Lastowka.

http://www.npr.org/templates/story/story.php?storyId=101187066

To clarify his discussion - the Campbell v. Acuff-Rose Music, Inc. (1994). 510 U.S. 569, 583-585 case never actually held 2 Live Crew's use was fair use, but instead suggested the use might be fair use, and sent it back down to the lower court for a determination. To quote: "Held: 2 Live Crew's commercial parody may be a fair use within the meaning of §107. Pp. 4-25. " Notice the word "may." http://www.law.cornell.edu/supct/html/92-1292.ZS.html

The four factors are not applied as willy nilly as might be suggested in the interview.

David Nimmer (2003), a leading intellectual property scholar, conducted a study on copyright cases decided between 1994 and 2002, and found 90% of the time, if three of the four factors are found in favor of fair use, fair use is affirmed. One cannot generalize his findings though, because he did not randomly select the 60 cases he examined, nor did he analyze all reported decisions. Overall, of the 60 cases he examined, 24 upheld fair use and 36 denied it (pp. 269-277). Nimmer also analyzed percentage correspondences between each of the four factors and a favorable determination with correspondences ranging from 42% correspondence to factor two, and 57% correspondence to factor four, in the context of overall favorable findings. He states across all four factors, there is a 51% correspondence to a favorable legal outcome.Nimmer, D. (2003). “Fairest of them all” and other fairy tales of fair use. Law & Contemp. Probs., 66, 263-287.

There's other copyright and non-copyright issues as well other than the "fair use" claim. (I have not read the case but according to NPR, the potential copyright infringer is the one who filed the case for some kind of declaratory relief - always problematic because whoever filed the case has the burden -- I always think of this as if you are going to start the problem, then you will have the burden of proving yourself correct).

If I were arguing against the AP, I’d assert that the Obama photograph is not original. Per copyright law, in order for an artifact to be copyright protected, it must be an “original work of authorship fixed in any tangible medium of expression.” http://www.copyright.gov/title17/92chap1.html#102

Also note that “fixed” means fixed with authorization. http://www.copyright.gov/title17/92chap1.html#102

Then there is right to publicity issues going against AP:
http://www.publaw.com/rightpriv.html

Then of course, I’d recommend the AP lawyers read chapter 7 of this book when it is published in 2 months.
http://www.sunypress.edu/details.asp?id=61789

:)

Native American Public Telecommunications (NAPT) unveils new website

2009-02-25T09:32:00.000-08:00

Earlier this year, Native American Public Telecommunications (NAPT) unveiled its new website

http://www.nativetelecom.org/index.php

Berkman Center for Internet & Society Launches Herdict

2009-02-25T07:07:00.000-08:00

http://www.youtube.com/watch?v=NggzBHSXdCo

Quoting from an email received from The Berkman Center:
Today, a special announcement from the Berkman Center for Internet & Society at Harvard University. We are pleased to announce the official launch of Herdict Web --

http://www.herdict.org

-- a tool that employs the distributed power of the Internet community to provide insight into what users around the world are experiencing in terms of web accessibility.

We invite everyone to explore http://www.herdict.org and participate by reporting websites that they cannot access, testing sites that others have reported, or downloading the browser add-on for reporting sites on the fly.

Herdict is a portmanteau of ‘herd’ and ‘verdict.’ Using Herdict Web, anyone anywhere can report websites as accessible or inaccessible. Herdict Web aggregates reports in real time, permitting participants to see if inaccessibility is a shared problem, giving them a better sense of potential reasons for why a site is inaccessible. Trends can be viewed over time, by site and by country.

The project’s mascot -- a sheep -- demonstrates “the verdict of the herd” in a short video at http://www.herdict.org (or http://www.youtube.com/watch?v=NggzBHSXdCo).

The brainchild of Professor Jonathan Zittrain (The Future of the Internet--And How to Stop It ), Herdict Web builds out from the OpenNet Initiative's research on global Internet filtering. The OpenNet Initiative tests Internet filtering through an academic methodology. Herdict Web takes a different approach, crowdsourcing reports to learn about and display a real-time picture of user experiences around the globe. For more information about the OpenNet Initiative and the book Access Denied: The Practice and Policy of Global Internet Filtering, visit http://opennet.net.

Bloggers can be nailed for views

2009-02-25T06:55:00.000-08:00

NEW DELHI: A 19-year-old blogger's case could forever change the ground rules of blogging. Bloggers may no longer express their uninhibited views on everything under the sun, for the Supreme Court said they may face libel and even prosecution for the blog content.

For the full story, see The Time of India: http://timesofindia.indiatimes.com/India/Bloggers-can-be-nailed-for-views/articleshow/4178823.cms

Chris Salzburg on Global Voices, and the challenges and potential of community translation

2008-12-19T16:56:00.001-08:00

http://www.ethanzuckerman.com/blog/2008/12/18/chris-salzburg-on-global-voices-and-the-challenges-and-potential-of-community-translation/

Iranian Bloggers Jailed

2008-12-19T16:41:00.000-08:00

Not only those in Iran, but those in other countries (including the US, I believe), have been jailed for blogging.

Global Voices Online has published a story on this issue. A researcher studying jailed bloggers across the globe estimates between 20 and 30 Iranians have been jailed because of their blogging activities.

http://globalvoicesonline.org/2008/12/18/iran-a-long-and-painful-story-of-jailed-bloggers/

NIJ FY 09 Electronic Crime and Digital Evidence Recovery

2008-12-16T05:07:00.000-08:00

This is an interesting funding opportunity sponsored by the Department of Justice:

http://www07.grants.gov/search/search.do?&mode=VIEW&flag2006=false&oppId=44330

By scrolling down, a pdf of the RFP is available.

On the pdf, I think the focus of the grant is interesting, especially under the "Digital Evidence Forensic Examination Tools," subheading, where the DOJ is particularly looking for those who can do "Research and development of Macintosh-compatible computer forensic tools for State and local law enforcement agency application." In their list of "Additional Requirements," I was glad to see that they also want to see intellectual property issues addressed by whoever is successful in obtaining these grant funds.

Pakistan Lawyers Blog

2008-12-14T14:54:00.000-08:00

A very helpful post appears on the Pakistan Lawyers Blog summarizing both sides of the Axact v SNR case.

http://pklawyers.wordpress.com/2008/11/19/case-study-1/

The Student Term Paper Websites Case Continues . . .

2008-12-14T14:06:00.000-08:00

http://blog.ericgoldman.org/archives/2008/11/student_paper_w.htm

This is a link to Eric Goldman's blog wherein he summarized the Axact v. SNR New Jersey case involving two companies, one in the US, and one in Karachi, Pakistan. This case has piqued my interest and it has a rich set of documents available for analysis. Thus, I've decided to propose an article on this case for a special issue of a journal in our field.

Today I have spent a few hours reading through the court pleadings and documents. The most interesting order was produced 12-12-08 involving google, inc.'s agreement to remove the student term paper websites associated in the court pleadings with Axact from its search engine.

The documents can all be accessed through justia.com.

Free Software Group Sues Cisco For Open Source Violations

2008-12-13T07:02:00.000-08:00

Reported by Information Week:

http://www.informationweek.com/news/software/open_source/showArticle.jhtml?articleID=212400491&subSection=Operating%20Systems

I've been wondering when we might get over the "wow" phase on open source -- perhaps as the lawsuits start piling up, a more critical view will be struck regarding the discourse of the commons and the concept of "open source." Open source does not mean a free for all, it's turning out.

Human Origins: A NSF RFP

2008-12-13T06:52:00.000-08:00

"Human Origins": A National Science Foundation Request for Proposals.

My interest in copyright law, in what it tries to accomplish, is linked to my broader interest in origins, and in discourses about origins, including human origins. Origins, as I've previously mentioned, is linked to the concept of "authorship." I've been following numerous publications that provide information on new RFPs -- funding opportunities. And so, I thought I'd collect this RFP on Human Origins from the NSF. The rest of this post is a direct quote from the RFP:

http://www.nsf.gov/publications/pub_summ.jsp?ods_key=nsf09521

This competition is directed towards increasing our knowledge of the complex biological, physical, and behavioral interrelationships that led to the development of our species and that are responsible for both the shared and variable features that characterize living human populations. It recognizes that understanding of the processes and pathways of human evolution requires input from a wide range of disciplines which examine our species from multiple perspectives and across both time and space. Accomplishing this goal requires a large scale initiative which allows research activities that go beyond the smaller, shorter duration, single investigator awards that disciplinary programs have been able to provide in the past. The Human Origins: Moving In New Directions (HOMINID) competition will support large scale, long term, integrative research and infrastructure projects through awards of up to $500,000 per year for up to five years. Contingent on the availability of funds, the program expects to make two awards in each fiscal year. It is intended that HOMINID awards will provide for transformative approaches to long-standing questions about the history of our species. Infrastructure development is also eligible for support either as a stand alone project or as part of a research award. One goal of the competition is to develop a portfolio of awards that reflects the multiple approaches to the understanding of human origins. It is expected that the combination of awards will complement each other and prove to be mutually informative as they progress.

Data on Global Internet Use/Access

2008-12-13T06:43:00.000-08:00

These links were recently posted in response to a query on the AOIR listserv.

http://www.internetworldstats.com/stats.htm

Links to the International Telecommunication Unit, the World Bank and the World Economic Forum, respectively:

http://www.itu.int/ITU-D/icteye/ (only with MS Internet Explorer)
http://www.worldbank.org/kam
http://www.insead.edu/v1/gitr/wef/main/analysis/

Another resource said to collect (and sometimes publish) data about Information and Communication Technologies:

http://ictlogy.net/wiki/index.php?title=Category:Data_ICT

Federal Appeals Court Examines Two MySpace Student Speech Cases

2008-12-13T06:39:00.000-08:00

http://www.citmedialaw.org/blog/2008/federal-appeals-court-examines-two-myspace-student-speech-cases

Followed by the Citizen Media Law Project

Apple uses copyright to silence both fans and critics

2008-12-12T11:26:00.001-08:00

A professor from a professional writing program in the US sent me a link to this cease and desist letter which appears to be sent by Apple. This type of activity is relevant for those teaching digital composing as I know those of us teaching technical writing often have students compose tutorials on using various applications. The fact that the copyright holder may disagree with the use of screen captures or images of its product should be integrated into the PW curriculum.

http://www.chillingeffects.org/copyright/notice.cgi?NoticeID=6222

Why Do We Continue to Use Letters of Recommendation?

2008-12-11T13:36:00.000-08:00

Letters of recommendation, as far as I know, have been around since the dawn of man.

Why?

Why do we use letters of recommendation?

Well, the answer is not simple, but the fact that we do use them provides empirical evidence in support of some of Latour's theory.

He states:

"Who will win in an agnostic encounter between two authors and between them and all the others they need to build up a statement S? Answer: the one able to muster on the spot the largest number of well aligned and faithful allies." (1986, Drawing things together, p. 23)

The letters do the work of bringing back things, your allies, and presenting them all in one place for your audience.

Latour states:

"If you wish to go out of your way and come back heavily equipped so as to force others to go out of their ways, the main problem to solve is that of mobilization. You have to go and to come back with the "things" if your moves are not to be wasted. But the "things" have to be able to withstand the return trip without withering away. Further requirements: the "things" you gathered and displaced have to be presentable all at once to those you want to convince and who did not go there. In sum you have to invent objects which have the properties of being mobile but also immutable, presentable, readable, and combinable with one another." (1986, p. 7, Visualization and Cognition).

Thus, I say, we have the letter of recommendation. A service like interfolio.com increases both the immutability and the mobility of these letters.

Here, letters of recommendation are symmetrical to the citations on a reference page. Those citations accomplish the same results, in that they bring the "thing" back to one location, and as they appear in the reference list, have the properties of being mobile but also immutable, presentable, readable, and combinable with one another.

WHO Renews Delicate Effort On Pandemic Influenza Virus-Shari

2008-12-09T18:26:00.001-08:00

In the field of Comp/Rhet, it's not that difficult to forget the very material, even physical implications of intellectual property law. Imagine a global pandemic, and the inability to administer vaccine due to patent protection. Efforts are being made to anticipate such a dilemma. Kaitlin Mara's article in the Intellectual Property Watch begins:

An avian influenza outbreak would be a public health disaster, but for the World Health Organization to adequately prepare for that risk, member states must come to a resolution on intellectual property issues related to virus and vaccine sharing.

http://www.ip-watch.org/weblog/index.php?p=1354

Implementation of the Small Grants Program for Afghan Women's Civil Society Organizations

2008-12-09T17:58:00.000-08:00

This is a grant that addresses an issue I discussed in my dissertation. The issue is whether or not a law has agency when inserted in a culture that has pre-existing practices already accomplishing the same ends that the law supposes to constitute -- does law make people do things?, is the real question.

The rest of this blog post is a quote from the grant:
http://www07.grants.gov/search/search.do?&mode=VIEW&flag2006=false&oppId=43401

Now living under a Constitution that codifies equal rights for women, Afghan women have an official framework to support their personal and professional development. With the exception of constitutionally mandated quotas for women’s representation in Parliament, however, all indicators of women’s status reveal that enforcement of constitutional rights lags far behind enactment. A combination of poverty and deprivation, ill health, illiteracy, discriminatory customary laws, harmful traditional practices, and physical and emotional abuse conspire to keep women at the bottom of society. To ensure they receive sufficient attention, women’s civil society organizations (CSOs) are needed to advocate on behalf of women and help mobilize resources, deliver essential services, and implement useful development activities. However, women’s CSOs cannot effectively undertake these tasks until they acquire a wide range of new skills—from assessing needs, designing responsive interventions, and implementing programs to managing operations, finances and people, building alliances and networks, planning strategically, and monitoring and evaluating performance—in addition to building capacity in the technical sectors in which they wish to work. The three-year $26.7 million “Afghan Women’s Empowerment through a Sub-grant Umbrella Mechanism” (AWE-SUM) program is designed to strengthen the capacity of women-led/focused CSOs to contribute to the social, economic, and political development of Afghan women through the provision of financial and technical assistance to support women-specific activities in the following areas: 1. Implementing activities that improve the status, safety and well being, human and legal rights, and livelihoods of Afghan women and girls; 2. Delivering services that directly address the social, political, and economic needs of Afghan women and girls; 3. Undertaking efforts to increase the participation of Afghan women in development as implementers, change agents and beneficiaries; and 4. Creating or strengthening mechanisms and channels by which Afghan women can access information, network, and take advantage of personal and professional development opportunities. Applicants will propose approaches to implementing the following Activity Components and indicate how those approaches will help accomplish the Activity Objectives: 1. Awarding sub-grants for technical and organizational capacity building of eligible organizations, including equipment, and for the activities of such organizations; 2. Assessing organizational and technical capacity needs of eligible organizations and developing responsive interventions; 3. Overseeing sub-grant implementation to ensure that in addition to successful implementation of activities, CSO institutional strengthening and technical capacity building within recipient organizations is achieved; and 4. To support the above components, developing and implementing a comprehensive communications plan and strategy to generate widespread interest in the sub-grant program among women’s CSOs and to develop and manage an information campaign about the program to inform other stakeholders. The following link will take prospective applicants who are interested in this high visibility program to the full solicitation. Click on #1, “Download Application Instructions.” http://apply07.grants.gov/apply/UpdateOffer?id=88

Internet, Mail, and Mixed-Mode Surveys: The Tailored Design Method

2008-12-09T17:25:00.000-08:00

This is a new book that looks very interesting - it can be viewed on amazon.com.

Internet, Mail, and Mixed-Mode Surveys: The Tailored Design Method (Hardcover)by Don A. Dillman (Author), Jolene D. Smyth (Author), Leah Melani Christian (Author)Hardcover: 500 pages Publisher: Wiley; 3 edition (October 12, 2008)

Colorado Man Charged With Criminal Libel For Comments on Craigslist

2008-12-03T14:02:00.000-08:00

From the Citizen Media Law Project blog:

The Loveland Connection is reporting that a Colorado man has been charged with two counts of criminal libel after allegedly posting comments about a former girlfriend and her lawyer on Craigslist.com's "Rants and Raves" section:

The case in Loveland began when a woman approached the Loveland Police Department in December 2007 about multiple postings made about her between November and December 2007. At least one post suggests that she traded sexual acts for legal services from her attorney, according to court records. There's also mention about a child services visit made because of an injury found on her child.

Police obtained search warrants for records from Craigslist.com and other Web sites and identified J.P. Weichel as the suspect, the former boyfriend of the woman, who shares a child with her. In August, detectives confronted Weichel at his workplace, where police said he admitted to the postings because he was "just venting," according to the court file.

The full story and a link to The Loveland Connection is located here: http://www.citmedialaw.org/blog/2008/colorado-man-charged-criminal-libel-comments-craigslist