Lessig Blog Archives

Or so he is reported to have said here.

Note to General Ashcroft: We checked. You’re right. You don’t. Nor do you have a privacy attitude, a rule of law attitude, or a free speech attitiude.

So here’s the real question: How can you be Attorney General of the US, if you reject so much of the Constitution’s values? (Public Domain, Article I, 8, 8; Privacy, Amendment 4; Rule of Law: the Constitution, as interpreted by the Supreme Court, in, say, Rumsfeld v. Padilla; Free Speech: Amendment 1).

Stay tuned: Oral arguments in Kahle v. Ashcroft on the 29th. (Could there be a better case name?)

So I’m a big believer in the value that registration requirements create. Copyright law is the ONLY federal IP regulation that doesn’t have mandatory registration. But as EFF‘s Jason Schultz points out to me in an email, HR 4077 is about to make registration even less useful:

Don’t know if you saw this, but the MPAA/RIAA’s new copyright bills, HR 4077 (passed by the House, awaiting vote in the Senate) makes two significant changes to what little remains of copyright formalities in the US:

1) Section 602:

“A certificate of registration shall satisfy the requirements of this section and section 412 irrespective of any inaccurate information therein …”

— in order words, you don’t even have to have an accurate registration anymore in order to sue for infringement. Potentially, you could even make knowing misrepresentations in your form. So much for fair and public notice.

2) Section 603:

“Section 504(c)(1) of title 17, United States Code, is amended in the second sentence by inserting before the period ��, except that the court in its discretion may determine that such parts are separate works if the court concludes that they are distinct works having independent economic value��.

In other words, you can get statutory damages for separate works within a compilation work, even if you only register the compilation work. The twist is that there is very little requirement that a compilation registration list all distinct and separate works contained therein. Thus, you can now register and sue on works and get statutory damages without any real public notice. The main reason for this is that the RIAA was having problems suing for individual song downloads because they had registered the entire album as a single compilation work. As applied to software, this could allow someone like SCO to sue for the copying of a single file or .dll when the vendor had only registered the entire program or OS. So much for metes and bounds.

Here’s a blog devoted to popculture remix. CC licensed. But needs a RSS/Atom feed.

I missed a bunch of cuts here. Apparently, the true magic of Hatch’s strategy will happen today. It will be hard to follow, because it will all happen so quickly. But this is the plan:

The House has passed HR 2391, the CREATE Act, which modifies how collaboration affects patentability.

Apparently, Senator Hatch will substitute that bill today, and plug in:

(1) HR 3632, which regulates the trafficking in fraudulent labels (including watermarks?), as well as a sentencing enhancement for using a falsely registered domain name in the commission of your offense, as well as

(2) HR 4077, which, among other things, includes the following:

(a) the PIRATE Act, which increases copyright enforcement power
(b) the ART Act, which criminalizes camcording in a theater
(c) a sense of Congress that P2P is bad (really)
(d) a reduction of the criminal copyright liability standard, to make it easier to catch file-sharers (the new standard is in the extended entry below)
(e) the Family Movie Act, which codifies ClearPlay-like technology

So what’s the politics of all this: By my count, (1) lots for the content industry, (2) one bit for family values (ClearPlay), (3) zero for the pubic domain.

UPDATE: PublicKnowledge has an action center.

The new standard for criminal infringement will be:

by the offering for distribution to the public by electronic means, with reckless dis-regard of the risk of further infringement, during any 180-day period, of�
(A) 1,000 or more copies or phonorecords of 1 or more copyrighted works,
(B) 1 or more copies or phonorecords of 1 or more copyrighted works with a total retail value of more than $10,000, or
(C) 1 or more copies or phonorecords of 1 or more copyrighted pre-release works,

So there’s great excitement about the effective pause that’s been pressed on the INDUCE Act. Hatch has pulled back and is regrouping.

But has anyone been mapping the bigger strategy here? For the last year, Hatch and friends have been passing these single page copyright acts, getting them marked up and put into the hopper through expeditied procedures. All but one was directly awful; the one is indirectly awful. (This is the bill that explicitly authorizes technologies like ClearPlay, but which, indirectly implies, that other related technologies are not “fair use” (“why did you need a statute to permit ClearPlay if you have a ‘fair use’ right…”))

These thousand tiny cuts have now been united in a single bill, HR 4077, which is racing through Congress — while all our attention was focused on INDUCE.

Nice play by those lobbyists. I guess that’s why they get paid so much.