Category Archives: good code

A big victory: Golan v. Gonzales

The 10th Circuit decided our appeal in Golan v. Gonzales today. In a unanimous vote, the Court held that the “traditional contours of copyright protection” described in Eldred as the trigger for First Amendment review extend beyond the two “traditional First Amendment safeguards” mentioned by the Court in that case. It thus remanded the case to the District Court to evaluate section 514 of the Uruguay Round Agreements Act (“URAA”) under the First Amendment, which removed material from the public domain.
This is a very big victory. The government had argued in this case, and in related cases, that the only First Amendment review of a copyright act possible was if Congress changed either fair use or erased the idea/expression dichotomy. We, by contrast, have argued consistently that in addition to those two, Eldred requires First Amendment review when Congress changes the “traditional contours of copyright protection.” In Golan, the issue is a statute that removes work from the public domain. In a related case now on cert to the Supreme Court, Kahle v. Gonzales, the issue is Congress’s change from an opt-in system of copyright to an opt-out system of copyright. That too, we have argued, is a change in a “traditional contour of copyright protection.” Under the 10th Circuit’s rule, it should merit 1st Amendment review as well.
I suspect this decision will weigh heavily in the Supreme Court’s determination whether to grant review in the Kahle case. It also nicely demonstrates the wisdom in this part of the Eldred decision (don’t get me started on the Progress Clause part of the decision…) The rule of Eldred, as interpreted by the 10th Circuit (and by us) is that Congress gets a presumption of First Amendment constitutionality when it legislates consistent with its tradition. But when it changes that tradition, its changes must be scrutinized under the First Amendment. This is an interesting constitutional argument — echoing some of Justice Scalia’s jurisprudence, as we argue in the cert petition. And it also makes a great deal of sense: practices unchanged for 200 years are less likely to raise First Amendment problems (but see …); but whether or not immunity is justified for them, it is certainly not justified for practices that deviate from Congress’ tradition.
The opinion by Judge Henry is well worth the read. The argument was one the best I have seen. All three judges knew the case cold. It is a measure of how good courts can be that they took such care to review this case.
Thanks to everyone on our team that made this possible. First the clients — Lawrence Golan, the Richard Kapp Estate, S.A. Publishing, Symphony of the Canyons, Ron Hall and John McDonough (all of whom use and build upon material in the public domain; all of whom were negatively affected by Congress’s removal of material from the public domain). But also and especially to the gaggle of fantastic lawyers who supported us in the case — the Denver firm of Wheeler, Trigg, Kennedy, and Stanford CIS lawyers Chris Sprigman, Ed Lee, Jennifer Granick, David Olson, David Levine, Colette Vogel, Elizabeth Rader and Lauren Gelman (Tony Falzone came on afterwards). Continue reading

Posted in 1st A, Copyright, good code, Good news, heroes, Stanford CIS | 24 Comments

crossing languages with dotSub

I’ve been a fan of dotSub for sometime. The site enables collaborative subtitling of video. So far, the subtitling is just different languages. Very cool would be subtitling as commentary (think Pop-up video). Watch a CC video, or the infamous “my pirate kid” video from ARTE.de:


Continue reading

Posted in good code | Leave a comment

Sony’s YouTube competitor – CC licensed

Sony has launched its YouTube competitor – eyeVio. By default, uploads are licensed under a Creative Commons Attribution (CC-BY) license. You can read about it here. We in the CC community will be celebrating about it around the world tonight. Yesterday was IP Day (really, no joke). Today is Sony Day! Continue reading

Posted in good code | 5 Comments

Shloss v. Estate of James Joyce: Settlement

As reported at the Stanford Center for Internet and Society, Shloss v. Estate of James Joyce has settled. As you can read in the settlement agreement, we got everything we were asking for, and more (the rights to republish the book). This is an important victory for a very strong soul, Carol Shloss, and for others in her field. I am grateful to our team for their hard work. (Contrary to some news reports, while I was instrumental in bringing this case and in setting its strategy, the settlement was effected by Anthony Falzone and David Olson.) (Press Release).

But this is only the first in what I expect will be a series of cases defending the rights of academics against improperly aggressive copyright holders. I hope this is the last case against this particular defendant. But we’ve already seen others that may prove as egregious as this. One important part of the mission of the “Fair Use Project” is to defend the rights of scholars and academics, drawing more clearly and practically the boundary that “fair use” is intended to defend in theory. Stay tuned. Continue reading

Posted in good code | 20 Comments

Congressman Doyle on GirlTalk

Don’t miss Congressman Doyle’s comments about the artist, Girl Talk. Continue reading

Posted in good code | Leave a comment

Internet Law: 2.5 done (round II on Orphans)

I couldn’t resist a second round on Orphans. This one’s very short (about 8 minutes). It was inspired by the comments/debate about the first Orphans post.

You can download/stream it here.

Or watch it at Google Video below.

Continue reading

Posted in good code | 15 Comments

Internet Policy: Deregulating Spectrum

So these are taking longer than expected, and now I’ve added a topic I didn’t originally flag (though in 1984-fashion, I’ve hidden this fact by simply changing the original blog entry).

The subject here is spectrum policy. The argument is that we deregulate spectrum. “Deregulate” not in the sense that we auction spectrum. Auctions require a gov’t created property right; that’s a form of spectrum regulation. “Deregulate” in the sense that we set off large swaths of spectrum for unlicensed use. Congress has made this impossible in the short term for any significant chunk of spectrum. But we do have an important opportunity to set free “white space.”

The argument might be best introduced with the following hypothetical:

Imagine the government nationalized the hotdog market, and then sold to the highest bidder the “right to sell hotdogs” at in a particular place for a particular period of time. These rights — the right to sell hotdogs — could be structured to be a kind of property. The market would thus allocate them to the highest valued use. And the initial sale would raise lots of money for the federal treasury.

Are you in favor of that? And if not, then why are you in favor of spectrum auctions? “Because certain uses require regulation,” you say. But then why not push towards uses that don’t require regulation?

Download or stream the video here (27 minutes).

Watch it on Google video below:

My argument builds upon a point I made in a piece published in Cato’s Regulation. You can download that piece here. Continue reading

Posted in good code | 16 Comments

More data: the effect of p2p on record sales?

“Using detailed records of transfers of digital music files, we find that file sharing has had no statistically significant effect on purchases of the average album in our sample,” the study reports. “Even our most negative point estimate implies that a one-standard-deviation increase in file sharing reduces an album’s weekly sales by a mere 368 copies, an effect that is too small to be statistically distinguishable from zero.”

Study here.

(Thanks, M.David!) Continue reading

Posted in good code | 3 Comments

Web 2.0 explained

As reported on BoingBoing: This is extraordinary. Watch it. Share it.

(Thanks, Neil!) Continue reading

Posted in good code | 15 Comments

Fox News gets “fair use” religion

You’ll remember Roger Ailes’ view of Robert Greenwald’s film, Outfoxed. As reported in 2004, Ailes said:

Any news organization that doesn’t support our position on copyright is crazy. Next week, we could take a month’s worth of video from CNN International and do a documentary “Why does CNN hate America?” You wouldn’t even have to do the hatchet job Outfoxed was. You damn well could run it without editing. CNN International, Al-Jazeera and BBC are the same in how they report-mostly that America is wrong and bad. Everybody should stand up and say these people don’t have the right to take our product anymore. They don’t have a right to take a year’s worth of Dan Rather or Ted Koppel and edit it any way they want. It puts journalism at risk.

Well, it seems Fox has now gotten religion. According to this LA Times report, Sean Hannity will air excerpts that had been removed from ABC’s controversial “Path to 9/11.” The excerpts “depict then-national security advisor Samuel R. “Sandy” Berger refusing to approve a CIA request to attack Osama bin Laden” – an event Berger said never happened.

I can understand Fox’s “fair use” argument — though of course its tougher with work that’s not been published. But it’s really good to see that Fox now understands the importance of “fair use.” Continue reading

Posted in good code | 5 Comments