Have Your Snail-Mail E-mailed

Interesting business model:  Company will go to your house, grab the mail out of your mailbox, scan it, and make it available to you digitally.

http://www.cnn.com/2013/02/26/tech/innovation/outbox-mail-service/index.html?hpt=hp_t3

Copyright issues?  If the company is scanning copyrighted material, which it no doubt is, would all of the scanning qualify as fair use?  I think most of it would, but what about scanning a magazine or postcard artwork that the copyright owner also sells in a digital format?  For example, SPIN magazine comes in paper form as well as a great digital iOS app.  Would converting the paper form into digital format via this new service still be fair use?

This should be fair use, but major media companies have a near perfect track record of freaking-the-eff out over any new content delivery systems that they did not expressly authorize.

Six Strikes Plan Finally Set to Arrive?

I gave a CLE presentation to the Orange County Bar Association’s IP Committee earlier this week.  The topic included showing how the adult entertainment industry has been using techniques first used by the mainstream recording and movie industries to combat online copyright infringement.  You can see an edited version of that presentation HERE.  The first part of the presentation showed how the RIAA abandoned its litigation strategy of suing large volumes of “John Doe” defendants.  By the RIAA’s own admission, the technique was ineffective, and it resulted in negative press and public backlash.

As this 2008 Wall Street Journal article explained, the RIAA abandoned the mass-Doe litigation strategy in favor of partnering directly with ISP’s in a quid pro quo arrangement that essentially bypasses the Notice and Takedown protocol established by the DMCA.  The plan will allow copyright owners to interface directly with the participating ISP’s, who will then undertake the burden of issuing “strikes” or “copyright alerts” to customers.  The plan is based around a 6-strikes protocol wherein each strike against a customer will trigger increasingly more severe penalties.  There has already been a LOT written about the details of the plan, so I won’t repeat that commentary here.  The important thing to know is that the strikes start with “education” as the goal and then progressively move to “mitigation” measures, such as throttling a customer’s bandwidth or terminating their account with the ISP.  You can review the entire “Memorandum of Understanding” between the participating ISP’s and content owners here: Six Strikes-Memorandum of Understanding.

It’s now the end of 2012, and the plan may finally be implemented after long periods of delay.

There has been a lot of criticism over how the plan was devised – i.e. little public involvement and closed-door meetings with government officials.  There is also valid criticism regarding how the plan presumes guilt over innocence.  However, even with these valid concerns, the plan does not seem that bad.  In fact, the plan seems like a decent implementation of something the DMCA requires of service providers anyway; namely, that the service provider “has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.”  See 17 U.S.C. § 512(i).  This “repeat infringer policy” requirement is not well-defined in the DMCA.  The only guidance within the statute is the quote that I just pasted in from section 512(1).  Since this is a threshold requirement for a service provider to take advantage of the DMCA safe harbors, there are many cases wherein a court has had to determine whether or not the service provider has reasonably implemented a repeat infringer termination policy.  The cases show that this is a case- and fact-specific determination that depends on the technology used by the service provider and other factors that may not be uniform from case-to-case.

The Six Strikes plan seems to create some uniformity among the participating ISP’s in implementing (or creating) a repeat infringer policy.  While the plan does not mandate that a service provider terminate a user’s account after the 6th strike, I believe that is the unwritten goal.  But, frankly, presuming that the “strikes” or “copyright alerts” are based on good faith allegations infringement, then the plan is actually less oppressive than other repeat infringer policies that I have seen.  Maybe I’m being naive, but I just don’t see this as the evil scheme some media outlets are painting it to be.  It’s essentially “forcing” (by voluntary agreement) ISP’s to do what they already have to do if they want safe harbor under the DMCA.

Good recent article describing the plan and the upcoming roll-out: http://www.wired.com/threatlevel/2012/10/isp-file-sharing-monitoring/

UPDATE:  TorrentFreak just posted information regarding how AT&T will implement the plan.

Mass Doe and Intermediary Copyright Infringement Lawsuits: Shakedown or Swift Justice?

I gave this CLE presentation to the Orange County Bar Association’s IP Committee this week.  As with most of my PowerPoint presentations, you can’t get the full effect of the overall presentation from the slides alone – the slides generally just cue things that I talk about.

But, you might find it interesting:

Mass Doe and Intermediary Infringement-Fall2012-public

And here’s a link to the other material that I referenced and/or used during the presentation:

http://kevinwimberly.com/MassDoeCLE/clefilespub.html

Politicians and IP – Still Don’t Mix

Every election cycle some band gets mad that a politician with unwelcome views has used the band’s song during campaign events.  I even blogged about one such instance HERE.

Today’s story is even better.  The Republican Party of Florida (“RPOF”) apparently wanted a favorable front-page headline to promote Governor Scott.  RPOF either couldn’t find one or just thought making one up was easier:

The advertisement:

 

The problem is that, according to the Miami Herald, it never ran a “New Law Helps Put Floridians Back to Work” story.  In fact, RPOF’s ad agency replaced the true headline (“Murders highlight rise in crime in Guatemala”) and the lead photo from the March 5, 2007 edition of the newspaper.  While political speech is nothing less than sacred under the First Amendment, this is pure deception.

 

“Nanolaw” – a scary vision of the future

I’m breaking the “Florida” part of Florida IP Trends to post a link to this article.  Will the mass-Doe infringement suits be the genesis of this vision of society?

http://www.ftrain.com/nanolaw.html

A sample paragraph:

We had gone to a baseball game at the beginning of the season. They had played a song on the public address system, and she sang along without permission. They used to factor that into ticket price—they still do if you pay extra or have a season pass—but now other companies handled the followup. And here was the video from that day, one of many tens of thousands simultaneously recorded from gun scanners on the stadium roof. In the video my daughter wore a cap and a blue T-shirt. I sat beside her, my arm over her shoulder, grinning. Her voice was clear and high; the ambient roar of the audience beyond us filtered down to static.

Lawlessness Among the Outlaws

Many people think of Florida as a tropical paradise with palm trees, convertibles, and theme parks lining every street.  While that may be true for some parts, Florida also has a rich deep-fried-and-countrified history filled with the cliches most people associate with Georgia, Alabama, and South Carolina.  (TruckNutz?  You can thank Florida.)

Lynyrd Skynyrd, Molly Hatchet and 38 Special?  Jacksonville, Florida.  Tom Petty and the Heartbreakers? Gainesville, Florida.  Outlaws?  Tampa, Florida.  (Source)  (It’s the last band, Outlaws, that brings us to the current lawsuit)

Band lawsuits are nothing new.  They are typically filled with allegations of broken contracts, trademark and copyright infringement, and perhaps most importantly, hurt feelings.  Band agreements are the prenup agreements for polygamous relationships that must survive the hardships of touring, recording, and basic human maturation and evolution.  No band is immune.  Some take it out on each other physically (hello, Gallagher Brothers), and some spend their hard-earned royalties to hire attorneys.  The Beach Boys, Violent FemmesDead Kennedys (I know, not very Dead Kennedy-y of them), Wilco – all have had some dispute over the band’s intellectual property.

Notwithstanding the obvious irony, the corporate machine behind the Outlaws is now seeking some legal intervention over disputes with former members.

The lawsuit was filed in the United States District Court for the Middle District of Florida, Tampa Division, on January 6, 2010.

The first thing to note is that the complaint was signed and filed by an Illinois attorney who is apparently not admitted to the Florida Bar.  Also, there is no local counsel designated, so I would expect an application for a special appearance to be filed soon, or else the complaint might be kicked out.

Also, and this is even worse – if you’re a badass Southern Rock band, make sure your attorney spells “Lynyrd Skynyrd” correctly.  It’s spelled “Lynard Skynard” in the complaint, and that’s pretty much sacrilege around these parts.

Notwithstanding the Skynyrd faux pas, the complaint is a doozy.  It even has a table of contents.  There are many allegations (trademark infringement, conversion, cybersquatting, the works…), and the prayer for relief is especially brutal – calling for the destruction of CD’s.  I encourage you to read it yourself and observe a band’s internal self-destruction.

One thing to remember – no matter who the public thinks is the “soul” or “leader” of a band, it’s generally the paperwork that ultimately matters.   (See page 44.)

Complaint and Exhibits HERE.