Posted on August 21, 2008 in DMCA, EFF, Fair Use, IP by Brian RoweComments Off

Universal Music Corporation (“Universal”) had sent a takedown notice targeting a 29-second home movie of a toddler dancing in a kitchen to a Prince song, “Let’s Go Crazy.” The use of the song was obviously a fair use and, therefore, non-infringing, Lenz responded by suing Universal for misrepresentation under the DMCA. Universal tried to dismiss the case, claiming that it had no obligation to consider whether Lenz’s use was fair before sending its notice. The judge disagreed:

[A] fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright.

The court stated that consideration of fair use is necessary to ensure that content owners do not abuse the takedowns:

A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute. Requiring owners to consider fair use will help “ensure[] that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.”

Judge Rules That Content Owners Must Consider Fair Use Before Sending Takedowns – EFF

Post remixed from EFF’s post

Posted on July 25, 2008 in EFF, Fair Use by Brian RoweView Comments

EFF has won another important free speech case this is great news. EFF is quickly becoming the ACLU of the online world.

The rest is from LawGeek,

Several months ago, radio personality Michael Savage sued the Council on American-Islamic Relations (CAIR) for copyright infringement (plus some RICO charges) because they rebroadcast just over four minutes from his radio show on their website in order to point out his use of anti-Muslim messaging, encourage advertiser boycotts, and raise awareness and money for CAIR’s activities. CAIR (represented by EFF and Tom Burke of DWT) moved to dismiss claiming among other things that the use of the clip was a fair use.

Today, Judge Illston of the Northern District of California dismissed the suit, agreeing that the use of the material for commentary and criticism was a classic fair use.

Specifically, Illston held:

The complaint affirmatively asserts that the purpose and character of [CAIR's] use of the limited excerpts from the radio show was to criticize publicly the anti-Muslim message of those excerpts. To comment on [Savage's] statements without reference or citation to them would not only render [CAIR's] criticism less reliable, but be unfair to [Savage]. Further, it was not unreasonable for defendants to provide the actual audio excerpts, since they reaffirmed the authenticity of the criticized statements and provided the audience with the tone and manner in which plaintiff made the statements.

Check out the opinion here

Thanks EFF!

Previous posts on this case:

Copyright v. Free Speech: Savage v. CAIR (fair use analysis)

EFF and DWT defend CAIR against Michael Savage

Posted on May 7, 2008 in EFF, ESP, FSF, IP, patents, Pubpat by Brian RoweComments Off

Here are the top three organizations that are fighting bad patents. Take Action! More on the patents coming tomorrow as we hear oral arguments for in re Bilski.

An EFF Initiative To Protect Innovation and Free Expression

Tired of bogus software patents? So are we! To combat these annoying and often dangerous legal weapons, EFF has launched the Patent Busting Project to take down some of worst offenders.

We need your help! Take a look at the Top Ten Most Wanted culprits on our list, and let us know if you have any leads on technology that predates them (called “prior art”) that we can use to challenge their validity. Visit the patent busting project to take action.

FSF – End Software Patents

Software innovation happens without government intervention. Virtually all of the technologies you use now were developed before software was widely viewed as patentable. The Web, email, your word processor and spreadsheet program, instant messaging, or even more technical features like the psychoacoustic encoding and Huffman compression underlying the MP3 standard—all of it was originally developed by enthusiastic programmers, many of whom have formed successful business around such software, none of whom asked the government for a monopoly. So if software authors have a proven track-record of innovation without patents, why force them to use patents? What is the gain from billions of dollars in patent litigation?

PUBPAT is a not-for-profit legal services organization that represents the public interest against the harms caused by errors in the patent system, particularly the harms caused by undeserved patents and unsound patent policy. PUBPAT provides the general public and specific persons or entities otherwise deprived of access to the system governing patents with representation, advocacy and education. PUBPAT accomplishes its mission through two core activities.

First, PUBPAT protects the public domain from being recaptured in new patents. PUBPAT’s primary tool for protecting the public domain is filing requests for re-examination with the PTO. A request for re-examination is the formal administrative mechanism used to ask the PTO to revoke an issued patent on the grounds that the idea it claims is actually not new, but is instead nothing more than
a reformulation of information that was already in the public domain.

Second, PUBPAT advocates for improvements to the patent system and educates the public about the esoteric issues implicated by patents, specifically how they impact everyday life. PUBPAT advocates on behalf of sound patent policy before the courts, Congress, in the PTO and through participation in relevant conferences, while PUBPAT educates the public though presentations, one-on-one discussions and publications.

Posted on April 14, 2008 in EFF, FSF, patents, Pubpat by Brian RoweComments Off

totem350a.pngFreedom for IP will be at LinuxFest Northwest 2008. We will be staffing an education vendor table and talking about the need to fight Software and Method Patents. If you are attending stop by and talk to us.

Our primary reasons for attending are two fold:

First to educate and reach out to people on patent based issues that threaten the open sourse community, while also recruiting grass roots activist to help change the landscape of patents.

Second to promote other orginizations that are actively involved in the patent fight. For exapample:

Public Patent Foundation
EFF’s Patent Busting

NYU and PTO’s Peer to Patent

FSF End Software Patents campaign

Totem Graphic by Irvin Dorfman

Posted on April 9, 2008 in Chilling Effects, EFF, Fair Use, UGC, user generated content by Brian RoweComments Off

The DMCA take down process needs to involve a level of accountability for ridiculous takedowns. The following video is clearly fair use and possibly not even infringing due to a de minimis.

A DMCA takedown requests must include 5 things:

  • • The name, address, and electronic signature of the complaining party [512(c)(3)(A)(i)]
  • • The infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider is an “information location tool” such as a search engine, the reference or link to the infringing materials [512(d)(3)].
  • • Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)].
  • A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of [512(c)(3)(A)(v)].
  • • A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner [512(c)(3)(A)(vi)]. (emphasis added)

Quoted from a joint project of EFF and several law clinics. For clarities sake the exact wording for the DMCA section 512(c)(3)(A)(v) is:

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

Fair use is part of the law codified in Section 107 of the copyright act. Given the power a takedown to kill speech and the requirement that the owner must have a good faith belief that there is no legal basis for the use of the copyrighted work, a clear violation of 512(c)(3)(A)(v) should result in an equitable remedy such as forfeiture of rights to use the DMCA with the possibility of loss of copyright for multiple abuses.

TechCrunch Possibly the most Ridiculous DMCA Take Down Yet

Posted on March 18, 2008 in EFF, sunshine week by Sarah DaviesComments Off

Happy sunshine week, everyone!

Sunshine Week is about the public’s right to know what its government is doing, and why. Sunshine Week seeks to enlighten and empower people to play an active role in their government at all levels, and to give them access to information that makes their lives better and their communities stronger.

To celebrate, head over to EFF and read their new Blogger’s FAQ – Freedom of Information Act to find out how you can help shine some light on how government works.

Posted on March 16, 2008 in 08NTC, CC, copyright, creative commons, EFF, NTC, NTEN by Brian RoweComments Off

Check the slides out. These are the slides for my panel on copyright at the 2008 Nonprofit Technology Conference. The panel is Friday at 3:30 pm, but I am willing to talk about Fair Use, CC or Copyright at anytime during the conference.

Posted on January 31, 2008 in Cair, EFF, Michael Savage by Brian RoweView Comments

This week EFF and Davis Wright Tremaine acting as attorneys representing CAIR filed a motion for summary judgment, asking a U.S. District Court judge to throw out a copyright infringement suit brought by talk show host Michael Savage. Savage sued CAIR in December, alleging that CAIR infringed the copyright in his show when it posted on its web site brief excerpts from Savage’s radio program in order to criticize Savage’s remarks.

Savage’s copyright claims were a clear abuse of the copyright act in an effort to quell critical speech. I am thrilled to see EFF represent CAIR in this claim. This is another in a long list of examples where EFF has proven that they are the leaders in the fight for free speech online. Other examples include Swathmore Student v. Diebold.

Matt Zimmerman, the EFF attorney who wrote the Spocko Fair Use letter directed to ABC, was the principle attorney for EFF on the case. He does a great job of expanding the Fair Use claim in the Spocko letter to fit this case while directing the pleading to a 9th circuit court. The motion also contains some interesting information on RICO claims that are out side the IP scope of FFIP’s expertise but still an informative read.

Thanks for standing up for for our rights!

Related Links:
CAIR’s Motion for Judgment on the Pleadings
FFIP’s December Article: Free Speech v. Copyright, Michael Savage v. CAIR

Posted on January 4, 2008 in 2008, CC, EFF, FFIP, Michael Savage by Brian RoweComments Off

1. Increase our blogging – Last year we had 150 blog posts ranging from on site blogging at legal and technology conferences to issue statements on DRM and Fair Use. This has been one of our most successful outreach tools and will continue to grow over the next year. At the end of 2007 Riana Pfefferkorn a 2L at University of Washington Law and , has joined our blogging effort as a guest blogger. We hope to find more guest bloggers in 2008.

2. We would like to add a section on FFIP for videos while experimenting with a monthly video cast on current issue related to IP. My personal strength is public speaking, and I want to try capturing that for an online medium.

3. Move from Blogger to WordPress – Blogger has served us well but does not fit our mission. Open source community based tools represent the values of FFIP better. Both Sarah and Brian have transitioned to WordPress for our personal blogs and the process has been very positive.

4. Improve Case Law and Philosophy sections – We need to add cases like KSR International v. Teleflex, INS v. AP, and Michael Savage v. CAIR. We have decided not to internally host a case law database, but instead to link to outside resources like AltLaw and Wikipedia while adding our own comments and resources on the FFIP site. On the philosophy side we need to add Wealth of Networks, Infringement Nation and a pleathera of other writings on the topics to the list. We may even start a wiki to take suggestions for resources to add.

5. More Partnerships – Last year we worked with Defective By Design, CC and EFF with great success. Defective by Design runs the best protests while CC and EFF have been extremely useful for providing educational materials for teaching people about their rights and options to opt out of copyright. We will be reaching out to more organizations to help educate more people about the need to expand Fair Use and reform patents.

6. New logo – *holds head in hands* this is long over due. I fail at graphic design. I can give public speeches, code and even write Fair Use defense legal letters, but when it comes to artistic online skillz we need help. We need a new logo.

I should stop here before going making the list too long… These goals are manageable and can be accomplished with your help.

FFIP has been running for two and a half years now, I am grateful for all the help we have had from law professors, other orgs and volunteers. I look forward to another year bring the copyfight to the people who will fight for our rights in the digital age.