Back in December, WIRED magazine did a piece about Carl Malamud of Public.Resource.org and his mission to make federal court records freely available on line, rather than exclusively through the court system’s own proprietary PACER network.   For anyone who has used PACER, the idea of a free, easy-to-use alternative has great appeal. The PACER system is not word searchable, so the only way to find documents is by entering the docket number or case name, two pieces of information that many researchers do not have when approaching a general legal question.  Also, PACER charges eight cents a page for materials other than court decisions, which actually generates a surplus for the courts – reportedly $50 million in 2006.  And PACER is not available to all curious Web users with the click of a mouse, but requires a government-issued password and login number.  
 
Working with Mr. Malamud, a number of government-reform activists have begun copying large amounts of material from PACER and placing them online without restriction. The New York Times of February 13 reports that one such activist, Aaron Schwartz, downloaded over 19 million pages of documents through a free PACER connection at a public library, an amount of text representing about 20% of the content on PACER.  (The free public library access was suspended on September 29 because of a reported security breach; it is unclear whether the mass downloading by activists such as Mr. Schwartz was at issue.)  More...

After the news broke on January 12 that the Supreme Court had asked the Solicitor General for its views as to the CNN v. Cablevision case, which is now under review for certiorari,  I overheard two attorneys saying that the case could have a lot to say about the application of copyright law to user-generated content (“UGC”). That struck me as wrong, until I started thinking about it and realized that I had really never bothered to define that term very precisely. Roger Faxon, CEO of EMI Music Publishing, has been quoted as saying that UGC is “taking copyrighted content, whether that is a song or a recording, and the user is, without authorization, turning it into another product.”   That is precisely what’s going on in the Cablevision case: users are turning a time-bound television broadcast into a view-on-demand product.  Does the lack of “authorship” by the user change anything? Should it? 

If somebody uploading a copy of a sound recording onto YouTube gives rise to UGC, why not somebody telling Cablevision to record a movie for them on a digital video recorder (DVR)? Copyright consequences aside, does it matter that the YouTube content is visible to the world and the Cablevision DVR content is accessible only by a single subscriber? What follows is an attempt to think about these fundamental UGC questions without translating them into the language of copyright.  To paraphrase Benjamin Kaplan in his 1967 book, An Unhurried View of Copyright,  “I shall take you on a stroll over some of the [UGC] terrain and examine various knolls and gullies in a rather desultory, even naïve way; finally we shall climb to the top of a hill and see whether anything can be usefully said about the whole landscape.” More...

A recent dispute involving Amazon.com and some Dutch media students highlights the danger of overestimating the power of fair use to defend against claims of on-line infringement.  About two weeks ago, two students from the Piet Zwart Institute of the Willem de Kooning Academy  Hogeschool, located in Rotterdam, created a tool that allowed Amazon.com customers to download pirate copies of the books, movies and music they were seeking from the Amazon.com site. The tool was a Firefox plug-in that created an official-looking button next to Amazon’s listing for each item that said “Download 4 Free.”  Rather than making legitimate, authorized purchases from Amazon.com, however, the customers using the tool were instead directed by hyperlinks to the Pirate Bay, an unauthorized BitTorrent site, and a BitTorrent client would be started up to initiate the unlawful download. The students called their project “Pirates of the Amazon.” 

  
The students’ tool and corresponding website were taken down after Amazon.com filed a DMCA notice, and in most similar situations that would have been the end of the matter.   In this case, however, the students issued a ringing defense of their activities under the fair use doctrine, which is codified at 17 U.S.C. 107.  Fair use can provide a complete defense to a wide variety of unauthorized uses, and has been applied particularly expansively in connection with parody, as in Campbell v. Acuff-Rose, the well-known 1994 Supreme Court decision involving a rap parody of Roy Orbison’s “Oh Pretty Woman.”  Accordingly, the creators of “Pirates of  the Amazon” posted an explanation in which they claimed that the project was “an experiment in interface design, information access and currently debated issues in media culture.” In a follow-up e-mail reported by the New York Times (Dec. 8, 2008 at B6), the students posited that Amazon.com and the Pirate Bay “might look like opposites, but are actually quite similar in regards to the mainstream media content they provide . . . Our product demonstrated this practically.  So it’s a parody of any kind of media consumerism, whether corporate or subcultural.” More...

On November 11, Los Angeles federal prosecutor Craig Missakian confirmed that 27 year-old Kevin "Skwerl" Cogill had agreed to plead guilty to criminal copyright infringement in connection with his unauthorized posting of nine as-yet unreleased tracks from a forthcoming album by the rock band Guns N' Roses. Cogill's blog at www.antiquiet.com posted the tracks in June, and reportedly removed them when Cogill received correspondence from the copyright owners shortly thereafter. Nonetheless, Cogill was arrested at his home and questioned by F.B.I. personnel before negotiating the plea, which could result in a maximum prison term of one year for misdemeanor copyright infringement. This is significantly less than the five-year maximum sentence he could have faced under the original felony charge.
 
The criminal provisions of the Copyright Act are not often discussed, but there can be little doubt that Cogill's conduct violates the express terms of section 506(a)(1)(c). That section provides that willful copyright infringement may be punished under 18 U.S.C. 2319 when the infringement is committed "by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew of could have known that the work was intended for commercial distribution."  Section 506(a)(3)(A) then goes on to define "work being prepared for commercial distribution"  as "a computer program, a musical work, a motion picture or other audiovisul work, or a sound recording, if at the time of unauthorized distribution - (i) the copyright owner has a reasonable expectation of commercial distribution; and (ii) the copies or phonorecords of the work have not beencommercially distributed."

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In Vernor v. Autodesk, Inc., 87 USPQ2d 1501 (W.D.Wash. 2008), the Western District of Washington recently held that the unauthorized sale of used software packages on an internet auction site could be permissible under the first-sale doctrine.  The action was brought as a declaratory judgment claim by plaintiff Timothy Vernor, who sought a declaration that his sale of certain used Autodesk software on eBay would not infringe the copyright in the software.  As the court described the facts,  

In 2007, Mr. Vernor bought four authentic, used AutoCAD packages from an office sale at Cardwell/Thomas Associates (“CTA”), a Seattle architecture firm. Mr. Vernor sold three packages on eBay, but each time he put a package up for auction, an exchange of DMCA notices from Autodesk, suspension of the auction by eBay, counter-notices from Mr. Vernor, and reinstatement of the auction followed. When Mr. Vernor attempted to sell the fourth AutoCAD package, Autodesk filed another DMCA notice, and eBay responded by suspending Mr. Vernor's eBay account for one month for repeat infringement. . . .  More...