Judge Alsup rejected all of Psystar’s arguments, including under the first sale doctrine, holding that the doctrine only applies to legal copies, not the unauthorized copies that Psystar had made.  Apple also won its claim under the DMCA, with the judge holding that Psystar had violated the DMCA by circumventing Apple’s protective measures to prevent it from being installed on non-Mac machines.  The case does provide a few practice tips for aspiring attorneys.  If you are going to rely on a fair use defense, you may want to actually run through the ubiquitous four factors, as apparently Psystar was too busy to do so in their own brief and got slapped down by the judge.

With victory in hand, Apple has now moved on to the remedy; seeking a permanent injunction, which would prohibit Psystar from selling any machine that is pre-loaded with Apple’s operating system.  Apple is also asking for $2.1 million in statutory damages.  While this case was a seemingly easy win for Apple based upon these facts, a harder case may be yet to come from those in “hackintosh” industry that simply offer software that enables legitimate buyers of Mac OS X to install it on their own non-Apple machine, rather than actually pre-installing and distributing non-Apple machines containing Apple software. Apple would heavily rely on its EULA which prohibits customers from installing its OS X operating system on non-Apple computers.

Enforcement issues aside, In re Application of Cellco Partnership (09 CIV. 7074) raises important policy questions regarding the scope of copyright.  Are copyright holders overly compensated for their creative efforts under the current regime or are more incentives needed to keep pace with the changes in technology that allow for massive infringement with the single click of a mouse?  Regardless of the policy viewpoint adopted, the public can (for now) take comfort in letting their cell phones ring at the park or the beach without worrying that doing so constitutes copyright infringement. 

At issue in Cellco was whether ringtones playing in public placed constituted a “performance” within the meaning of Section 106 of the Copyright Act, which provides that a copyright owner has the exclusive right “in the case of literary, musical, dramatic, and choreographed works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly.”  Section 101 specifies that to perform or display publically means to “transmit or otherwise communicate a performance … by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”  

The Court reasoned that because only subscribers receive the transmission or alleged performance, such transmission or performance is not available to the public (non-subscribers) and thus not covered by the Transmission Clause.  According to the Court, “there is no qualifying public performance under §106(4) when the customer uses the ringtone to alert her to an incoming call.  Thus, even [if] the downloading of a ringtone is considered as the first link in the chain of transmissions, it does not qualify as a public performance.”   Accordingly, ringtones played in public places did not qualify as public performances within the meaning of Section 106 of the Copyright Act and the Court held that Verizon could not be directly or secondarily liable. 

Verizon was found not to be directly liable because Verizon neither “performs” the music nor engaged in “conduct that can be said to cause a ringtone to be played in public.”  In applying Section 101 of the statute, the Court held “Verizon does not ‘recite, render, play, dance or act [the ringtone] either directly or by means of any device’ and thus does not ‘perform’ the music.”  The Court noted that “Verizon’s only role in the playing of a ringtone is the sending of a signal to alert a customer’s telephone to an incoming call.”

After looking to the exemption from §106(4) found in §110(4) for “those performances of a musical work that occur within the ‘normal circle of a family and its societal acquaintances,” the Court found that Verizon could not be secondarily liable.  The Court reasoned that the “expectation of profit is important to determining whether a performance fits within the §110(4) exemption,” but “Verizon customers are not playing ringtones for any ‘commercial advantage;’ they do not get paid any fee or compensation for these performances; and they do not charge admission.”  Thus, after finding that neither the customers nor Verizon were liable for copyright infringement, the Court granted Verizon’s motion for summary judgment (the Court also granted summary judgment in favor of AT&T “for substantially the same reasons”  in In Re Application of AT&T Mobility, (09 CIV. 7072)).  

Consequently, Verizon Wireless and AT&T do not need public performance licenses for the ringtones they sell to their customers. 

This decision seems to comport with the general policy underlying Copyright Law – to grant copyright holders exclusive rights to their works in order to “promote the Progress of Science and useful Arts.”  If indeed economic rewards to authors should be treated as secondary to the broad dissemination of works for the public benefit, then denying ASCAP’s request for additional royalties in order to give the public access to the works for which they have already paid rings true to me.

Publishers around the globe are suffering from consistent reductions in ad sales and revenue driven by decreased circulation.  The most common target of the publishers’ anger and frustration have been online aggregators.  In the U.S., aggregators have been party to a series of lawsuits, most of which have ended in undisclosed settlements.  The U.S. government has yet to take action to clarify how the copyright laws relate to the aggregation of content online.

A different story is unfolding in Germany where the government is proactively taking steps to create a new type of copyright designed to protect publishers against online news sites.  According to the The New York Times, the German government’s proposal would give publishers a “neighboring right,” similar to what music labels and movie houses already enjoy.  Details of the proposal have not been fully hashed out, but one suggestion is to require a license for any commercial use of published material online.  A new royalty collection agency would be created to gather and distribute the fees.  Private, noncommercial uses would remain unrestricted.

Opponents to the plan say extension of the copyright laws runs counter to the “spirit of openness” that characterizes the web.  They also argue that distinguishing between commercial and private noncommercial use would be extremely difficult.  Fair use is an additional concern, though fair use protection in Germany is nowhere near as strong as it is in the U.S.  It will be interesting to see whether the German proposal is adopted, and if it will have any influence on the extension of U.S. copyright laws in this area.

• Monster Problem for Rock Art – WCAX.com
• Timeline of Dispute – Beernews.org
• A True Monster Attacks Rock Art Brewery – Washingtoncitypaper.com

UPDATE: Monster and Rock Art came to an agreement that Rock Art may continue to use the name “Vermonster” as long as it stays out of the energy drink business.  LINK

Ms. Ringer also won a gender discrimination suit to become the first woman Register of Copyrights in 1973. She died on April 9th.

Even though iTunes clearly maintains the content advantage over Amazon MP3 (10 million songs versus only 6 million), I will continue to use Amazon MP3 exclusively, and recommend my friends do the same, both because of the universality of the mp3 format, and my general disdain for Apple products (don’t get me started on the pathetic quality of iTunes as a music player/manager).

More generally, this marks a business trend towards a new method of dissuading piracy: Give users the autonomy to view and use content in the way they please, and they will be more likely to legitimately purchase copyrighted material, and less likely to resort to illegal copying and dissemination.  This move by Apple, along with the free streaming video content offered by Hulu (a collaboration between NBC, Fox, MGM, Sony, Warner Bros. and more), and most other major networks making their shows available streaming for free on their websites, represents a win for end users, freed from arbitrary and cumbersome restrictions on the use and enjoyment of the growing variety of digital content becoming available on the web.

Yet what these people don’t understand, or at least won’t admit to understanding publicly, is that OiNK was a symbolic subcultural mirror of exactly everything they profess to hate about their vision of mainstream culture. You can’t deny that OiNK was itself a culture: it was private and elite, it had clearly elaborated and lengthy rules for membership that included an annoyingly audiophilic standard for musical “quality” and sanctions for not tithing as much as you took. It had forums where people discussed meta-level issues about its functionality. OiNK clearly had its own set of ideologies, and they were far from liberatory. While it’s only a symbolic gesture, I’m glad to see OiNK disappear for the same reasons I’m so glad to not be part of a music “scene” anymore; I don’t miss blue-blooded conservativism masquerading as originality and protest.

Also, included for free, support of the much-needed criticism of “Sasha Frere-Jones’ New Yorker article discussing race and indie rock.”

Fittingly, the most popular forms of “indie” music today—formerly accessible on OiNK by sorting in order of popularity—reflect its generic status as not one decided by instrumentation or miscegenation as much as social position. And, sad as it might be, that will probably (hopefully) be OiNK’s legacy 20 years from now: a cultural snapshot of music fandom and/of 00s indie rock as the express domain of the parochial and privileged.

Maybe places like this should take notice of the dangerousness of closed, elite communities.

This seems to be a message to the world to support the “hydra” model of seeding and leeching content: Use lots of little sites instead of gravitating to a couple of big ones. The beast should be a many-headed hydra, and when you cut off one head, two more grow to take its place.

brokep was the first to herald this idea:

“So public message to people – start up your own torrent sites, make the internet the hydra it is and needs to be. If there’s hundreds of sites, they can’t all be shut down. And well, if they shut down the few that are today, there will be hundreds of sites, I’m sure, but let’s start them before so we can spread the word of them easier.”

Here’s another write-up on the OiNK and brokep talking about the hydra concept.

What a fantastic, rich concept in such a fascinating application. Decentralize for stability. But also specialize to serve the market better. On top of it all—globalize to protect international civil rights.

So while in this current context, it’s just about sharing music, it points down to deeper core principles about how these types of movements need to operate.

Tim Wu argues that this is a failure in the political process: We have this law that doesn’t make sense and no one who can change it. Something has to change. Maybe the law *has* to change—but we, the people, don’t have the money or the political willpower to do that. In today’s society, we’d ideally want businesses to adjust their models, practices, and ultimately their ethics to suit their consumer base. But we know that’s not going to happen.

Our inability to act towards our own wants and desires in this sense is credited to our fear of the government watching us, catching us, and throwing us in the can. We get scared off from demonstrating to the government—or to the RIAA—what we think the law should really be.

In an upcoming article on privacy and e-mail, I wrote:

The panoptical society restricts individual autonomy by “unnecessarily constraining individual decision-making” through the constant threat of visibility leveraging the inherently unbalanced power dynamic favoring governmental actors.

(That’s academic-speak for saying the government, by watching us, scares us from making our own decisions about things.)

With the courts and Congress offering little protection for [our privacy concerns], and with the threat of a panoptical society on the horizon, individuals may be forced to adopt extralegal methods of protecting their perceived expectations of privacy. Fortunately, a number of technological innovations offer a variety of methods of prophylaxis from government intrusion.

And this is where things like OiNK come in. OiNK was an “extralegal” method of protecting our perceived rights. But it wasn’t secure enough. Now, to protect those perceived rights, people could then resort to better, more technologically savvy methods. Tighter, “more private” trackers. Tighter file-sharing communities. WASTE networks. Maybe even (gasp) BitTorrent over Tor.

And then hopefully Big Music and the government will see where this leads: They lose their ability to control the people when the people fritter away underground. Is this the type of arms race we want to be involved in? There’s obviously something wrong here—there’s this well-established disconnect between how music is consumed and how Big Music wants to distribute it. So someone’s got to give. And might it not be, in this case, the purpose of business to cede to consumers, and the government to cede to the people?

I suspect the MediaDefender debacle and this OiNK shut-down just hits the techie, hipster, and blogging communities closer to home than the everyman Napster and Kazaa controversies. This will soon blow over, and we’ll be back to the SNAFU we’ve be involved in for the last 20 odd years.