Archive for March 2009

New Zealand rethinks “3 strikes” copyright law

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New Zealand copyright protesters

New Zealand copyright protesters

New Zealand’s government announced this week that their proposed “three strikes”/”graduated response” copyright law would not go into effect, and would be rewritten from the ground up.The law, which would have required ISPs to cut off internet access to users who had been accused of copyright infringement three or more times, had already been delayed from its initial effective date in February after stalled implementation negotiations and public protests caused lawmakers some concern.

Of particular note to those interested in U.S. copyright issues, Google submitted comments arguing that Internet disconnection is a disproportionate response to unproven allegations of copyright infringement. New Zealand recording industry groups had argued that the evidence of infringement they provide to ISPs is highly reliable, but Google’s comments cite to a 2006 report (summary here) that showed up to 30% of takedown notices Google received “presented an obvious question for a court”, and over half of requests to remove links appeared to be from businesses targeting competitors. Obviously, many of the takedown requests that Google fields are not from official industry groups, but given that U.S.  industry group representatives have likened innocent infringers to dolphins inevitably caught in fishing drift-nets, New Zealand ISPs and consumers had good reason to be concerned.

Image credit – “Dare not write, dare not speak, dare not feel” CC by-nc Fertala

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March 25th, 2009 at 12:21 am

Are Subpoena Standards Substantive, Procedural, or Constitutional Law?

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As courts [PDF] have established standards for subpoenas to ISPs in online defamation lawsuits, they have raised new questions.

Professor Wasserman has raised the question whether these standards are a part of state substantive defamation law that federal courts would apply in diversity actions under Erie or are instead mere procedural rules. My article from JTLP, Who’s Exposing John Doe? Distinguishing Between Public and Private Figure Plaintiffs in Subpoenas, argues that the constitutional distinction between public and private figures in defamation law should apply to certain procedural issues also. My proposal would appear to be a substantive distinction that federal courts would apply under Erie. The court opinions [PDF] fashioning standards also discuss substantive and constitutional issues in developing the procedural rules.

What do you think?

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March 22nd, 2009 at 9:37 am

Cook County Sheriff Files Suit Against craigslist for Facilitation of Prostitution


On March 5th, Cook County sheriff Tom Dart sued craiglist, Inc. in U.S. District Court for “knowingly promoting and facilitating prostitution” through its “Exotic Services” section. Dart does not seem fixated on the crime of prostitution per se, but that “missing children, runaways, abused women and women trafficked in from foreign countries are routinely forced to have sex with strangers because they’re being pimped on craigslist.” He asks for an injunction to shut down the “Erotic Services” section of the site, as well as damages of ~$100,000 to reimburse the police department in tax dollars expended in investigating prostitution claims on craiglist.

CEO of craiglist Jim Buckmaster said misuse of the site is extremely rare, and is not tolerated. In the past, Buckmaster has defended this section of the web site as striking a balance between allowing free speech and preventing exploitation. The craiglist blog lists 18 separate measures that the site takes to prevent illegal activity on the site.

This is not the first time the “Exotic Services” section of the site has been criticized. A year ago, the Attorney General of Connecticut Richard Blumenthal threatened a suit against the site for allowing nude pictures to be posted. In November 2008, Craiglist was able to come to an agreement with 40 states, which terms including a posting fee for advertisers to the “exotic services” section that required a valid credit card and working phone number (the idea being that law enforcement could access this information by subpoena). The website also agreed to sue 14 companies and individuals who allegedly used the site to facilitate human trafficking, child exploitation, and prostitution.

While craiglist claims that all revenue earned from the fee will be donated to charity, Dart has chided these efforts at goodwill as “dirty money”, and that the efforts have had “little practical effect”. Craiglist has countered this by showing the enormous reduction in postings to this section of the website since this November agreement, and continues to emphasize its continuing cooperation with law enforcement all around the country.

While it is perhaps too soon to see how the case will turn out, the Sheriff will face a tough battle. §230 of the Communications Decency Act provides immunity for ISPs and other service providers against actions perpetrated by 3rd party users, and craiglist will surely advance this as their defense. However, §230 is not so broad as to exclude federal criminal liability, and Dart is claiming that craiglist is more than a passive website operator, but actually an accomplice to the multiple federal crimes.

The Cook County Sheriff, Tom Dart, speaks about the suit at a press conference on March 5:

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March 15th, 2009 at 5:58 am

Should Traditional Radio Stations Pay Music Royalties?

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Congressional hearings this week focused on whether or not traditional radio stations should have to pay royalties for the music they play. Billy Corgan of The Smashing Pumpkins, was among those who testified in support of H.R. 848, The Performance Royalties Act. Radio stations argue that the value of promotion they give artists outweighs the costs of any royalties due. That’s an argument that sounds familiar, and may explain some of the impetus for copyright holders to come forward now to reject such a rationale.

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March 12th, 2009 at 5:21 pm

Posted in Quick Links

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Federal Stem Cell funding approved – which states to benefit?

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Monday, President Obama signed an executive order intended to foster stem-cell research, reversing the policies of the previous administration that limited research to existing stem-cell lines. Further Congressional action will be necessary to remove all federal restrictions on embryonic stem cell research, and recent scientific developments have made research on other types of stem cells more productive. Nevertheless, many commentators see this development as an indicator of a sea-change in scientific-political attitudes in the Executive branch, and expect that U.S. embryonic stem cell research is about to expand significantly.

One area of significant speculation seems to be the effect changes in federal funding policies will have on individual states. As Hilary Libka discussed in a recent MTTLR Blog post, some states have developed their own funding regimes for human embryonic stem cell research. Commentators seem to think that states with existing infrastructure may be particularly well-situated to put federal funds to good use. Although Michigan is not one of the states with an independent funding regime, Michigan voters relaxed state restrictions on embryonic stem cell research via a Constitutional referendum in November, and the state may be posed to take a leadership role in future developments. Researchers at the University of Michigan and Wayne State University announced Monday that they have research projects ready to get under way.

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March 10th, 2009 at 6:33 pm

Posted in Technology

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Supreme Court to consider federal jurisdiction over unregistered copyrights

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The Supreme Court has granted cert in Reed Elsevier v. Muchnick, a case arising from settlement negotiations following New York Times v. Tasini. In Tasini (full decision), the court determined that freelancers who had not explicitly licensed electronic publication rights to their works were due compensation for those electronic uses. A settlement was reached in 2005, but in 2007, the 2d Circuit Court of Appeals voided the settlement for lack of jurisdiction over the many unregistered copyrights at issue in the negotiations.

The Supreme Court has been considering the Reed Elsevier case for some time. They granted review yesterday of the limited question, whether 17 USC § 411-a restricts the subject matter jurisdiction of the federal courts over copyright infringement actions? The case will be argued in the fall.

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March 3rd, 2009 at 6:22 pm

Posted in Cases

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