Hollywood Applauds The Destruction Of The Public Domain... Even As Hollywood Exists Thanks To The Public Domain

from the strong-copyright-isn't-what-got-you-here dept

With the Supreme Court hearing the rather important Golan case this week, concerning the ability of the federal government to take works out of the public domain and put them under copyright, there is actually some mainstream press discussion about the public domain. The NY Times is running a great op-ed piece by Peter Decherney, a film studies professor, talking first about how devastating it's been for filmmakers like him to have works they previous relied on in the public domain suddenly shift to being covered by copyright.

In my own field — film — the effects of the 1994 law have been palpable. Distributors of classic foreign films have seen their catalogs diminished. Students can no longer get copies of many films. Archivists have postponed the preservation of important films. And of course filmmakers have lost access to works of literature that they might have adapted and music that might have enhanced soundtracks.

But the key point is made towards the end of the opinion piece, in which he notes the blatant hypocrisy on the part of the MPAA, who filed an amicus brief in the case arguing that we need to pull works out of the public domain to show the world that the US is "a proponent of strong copyright protection throughout the world."

But, as Decherney points out, all of that is hogwash especially since the very same movie industry that's complaining about this has always relied on the public domain as a source for new works:

But history tells a different story. Filmmakers have consistently used public domain works to anchor artistic and technological innovation. In the 1930s, when Walt Disney decided to make one of the first feature-length animated films, he turned to the Brothers Grimm’s version of the tale of Snow White. When asked why he chose that story, Disney explained that “it was well known.” He understood that “Snow White” was a trusted property, and because he knew that at least the story and characters would be familiar to audiences, he could take an artistic risk with the form.

Disney is only the most famous example of a filmmaker who relied on the public domain to expand the art of film. Starting with Thomas Edison in 1910, filmmakers have adapted Lewis Carroll’s “Alice’s Adventures in Wonderland” in movies that have accompanied the transition to feature films, the establishment of the studios, the switch to sound, the introduction of color, the advent of television and the adoption of widescreen aspect ratios.

And yet, now, works that formerly were in the public domain -- and which some people made a business of selling -- have been removed from the public domain and placed back under copyright law that they don't need. This should be seen as a huge problem with the system and the industry.

Filed Under: copyright, culture, golan, public domain, supreme court
Companies: mpaa

Could The Supreme Court Invalidate Software Patents?

from the in-truth,-it-already-has... dept

Back when the Supreme Court ruled on the Bilski case, many people were upset that it so narrowly tailored the result, so that it didn't include any real statement on the patentability of business methods or software. Reading the tea leaves, it wasn't difficult to realize that Justice Scalia actually appeared to be the most skeptical of software patents. Tim Lee is now wondering if Scalia is the last best hope for invalidating software patents (and hopes that perhaps the recent This American Life episode on patent trolling will get people to realize how big a problem this is).

Some folks claimed in response that Lee was advocating "judicial activism," and Scalia's hands were tied by the law itself. However, as Lee correctly retorts, the law does not explicitly say software patents are okay. In fact, the Supreme Court has ruled against such patents in the past. It's just that those rulings were a long time ago, and the lower courts (mainly CAFC) have chipped away at that over the past couple decades. Lee points out that in 1972, when the Supreme Court first rejected software patents in Gottschalk v. Benson, it invited Congress to change patent law if Congress intended for software to be patentable. Congress did nothing.

Thus, it seems entirely reasonable that the Supreme Court could point to its earlier rulings (and there are others beyond Benson), and say that software is not patentable -- but that would likely entail greater awareness of why software patents are a massive problem. So... how do we get everyone on the Supreme Court to hear that TAL episode?

Filed Under: antonin scalia, software patents, supreme court

Supreme Court Will Weigh In On Warrantless GPS Tracking

from the finally dept

We've been covering for a while now the rather mixed results from courts concerning the legality of police sticking a GPS transmitter on a car without a warrant in order to track a suspect. While some state courts have said such tracking is illegal, most federal courts have gone the other direction, saying that it's fine. Last summer, we noted that the DC Circuit court made a somewhat surprising ruling, saying that when the GPS tracking was "long-term," it suddenly switched from being legal to illegal. This odd standard (how long the tracking goes on for) seemed somewhat arbitrary. But, more importantly, the fact that different federal circuits disagreed with the legality of such things set up what we felt was an inevitable Supreme Court case.

And now it's here. Earlier this week, the Supreme Court announced that it would hear the appeal on that DC circuit case, United States v. Jones. This means, of course, that the issue will be settled once and for all, assuming the Court gives a clear ruling (something it doesn't always do). I do worry that it will merely cement what the other appeals courts have said, and basically diminish the Fourth Amendment even further. The feds have made it clear that they'd like to ignore the Fourth Amendment in such cases, and it would be nice if the Court tells them they cannot do that.

Filed Under: 4th amendment, gps, privacy, supreme court, warrant

Supreme Court Says Anti-Violent Video Game Law Violates The First Amendment

from the okay,-is-this-settled-now? dept

Finally. For years now, various states have tried to put in place anti-violent video game laws. Every time they do so, the laws are challenged in court and every single time they're found to be First Amendment violations. None of these cases went to the Supreme Court, however, until last year, when (then) Governor Arnold Schwarzenegger (star of tons of violent movies) decided to waste a lot of money that California doesn't have, in order to appeal lower court rulings, at both the district and appeals court levels, that found California's anti-violent video game law unconstitutional.

So, finally, the Supreme Court has weighed in... and it has agreed with every other court on this matter and found such laws to be unconstitutional restrictions on expression and free speech (pdf). The ruling, written by Justice Scalia, is long, but notes that while the Court has allowed blocking of obscene speech, that's a limited category, and violence is not the same thing as obscenity. It also notes that children, contrary to the opinion of some, do enjoy First Amendment protections as well, and there aren't special rules for them. Quoting an earlier case (Erznoznik), Scalia notes: "Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them."

The majority clearly paid attention to the briefs in the case, concerning the long history of children being exposed to violence:

California's argument would fare better if there were a longstanding tradition in this country of specially restricting children's access to depictions of violence, but there is none. Certainly the books we give children to read--or read to them when they are younger--contain no shortage of gore. Grimm's Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers "till she fell dead on the floor, a sad example of envy and jealousy." The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella's evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.

High-school reading lists are full of similar fare. Homer's Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. The Odyssey of Homer, Book IX, p. 125 (S. Butcher & A. Lang transls.1909) ("Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame"). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. Canto XXI, pp.187–189 (A. Mandelbaum transl. Bantam Classic ed.1982). And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.

The court goes on to note violence in all sorts of other media that children experience. It then dismisses the claim that video games are somehow "different" because they're interactive, pointing to things like "choose-your-own-adventure" stories. Scalia also takes direct aim at Justice Alito (who concurs, but disagrees with the reasoning) for highlighting how "disgusting" some violent video games are, noting:

JUSTICE ALITO recounts all these disgusting video games in order to disgust us -- but disgust is not a valid basis for restricting expression.

Of course, all of this makes me wonder why obscenity gets a special exception to the First Amendment. Reading through the ruling, it seems to keep saying that obscenity is a special classification of speech, but refuses to explain why it's different. If anything, this ruling suggests that this court can't really answer that question if it came up today. Obscenity is just different because it is.

The court also rejects the (widely disputed) evidence by anti-violent video game professor Craig Anderson, by noting (as many of us have) that the research does not show what many of Anderson's supporters insist it does show. That is, nowhere in the research is it proven that violent video games cause kids to act more aggressively. At best, the research shows a correlation, and other evidence suggests that other factors may be leading to the aggression, rather than the video games. Thankfully, it looks like Anderson's totally ridiculous claim that because the researchers who signed his brief in this case had more papers published, it meant their research was more credible, gets completely ignored by the court.

The other opinions are interesting, if not particularly compelling. Justice Alito, as noted, agrees with the final ruling, but does seem really worried that violent video games just might be evil. Justice Thomas dissented, and his basic argument is that parents can restrict the free speech rights of minors. That's true, to some extent... but that power is not universal, and that has nothing to do with the government restricting such rights, whether or not parents wish it to be restricted. Also, the opinion reads rather... old-fashioned, with him calling back to Puritanical days when fathers had "absolute powers" and children were considered "innately sinful." He admits that we've gotten past that, but that doesn't mean laws that view the world in that manner shouldn't be allowed. Justice Breyer also dissents, and seems to also be persuaded that violent video games are evil, and thus says that the law is permissible in an effort to "protect the children."

All in all, though, another strong First Amendment ruling from the Supreme Court. It still strikes me that this court struggles with the idea that obscenity has a special exception to the First Amendment, which also makes me wonder how it will deal with the next round of copyright/First Amendment cases that it will be facing, starting with Golan. I fear, given the court's past discussions on copyright, that while it seems to have a strong First Amendment view towards most things, that it will ignore the First Amendment when it comes to copyright issues. Hopefully not, but it does feel like there's significant cognitive dissonance going on when it comes to the intersection of copyright law and the First Amendment.

Filed Under: california, first amendment, free speech, supreme court, violent video games

Winklevii Finally Realize That Appealing To The Supreme Court Is A Lost Cause; Will Have To Live With 'Just' $160 Million

from the poor-winklevii dept

When the Winklevoss twins lost at the appeals court for the second time, I had hoped that someone would sit them down and explain to them that there was simply no freaking way the Supreme Court would bother to hear an appeal on their case, in which they complain about how they settled for "only" $160 million for building a company that wasn't Facebook and wasn't very popular. And yet, they still insisted that they would appeal. I'm not sure who did it, but it appears that someone finally sat them down and explained to them how the Supreme Court works, what kinds of cases it takes, and how it would almost certainly react to a petition to hear their case... and it's finally dawned on them that this would be a good time to take the money (which is probably worth even more now thanks to Facebook's continued growth) and say, "thank you." Yes, it's true, the Winklevii have finally realized what the rest of the world realized a while ago: the case is done and there will be no appeal to the Supreme Court. I guess that storyline is now out of the running for the sequel movie to The Social Network. Thankfully, we've still got Paul Ceglia running around, and his story is a lot more entertaining anyway.

Filed Under: appeal, ideas, supreme court, winklevoss
Companies: facebook

Score One For The Trolls: Supreme Court Says Congress Intended It To Be Very Difficult To Invalidate Patents

from the canada-celebrates dept

This isn't a huge surprise, but in the Microsoft v. i4i case over what the standard for invalidating a patent should be (either the super high bar of "clear and convincing evidence" or the slightly lower bar of "the preponderance of the evidence,") the Supreme Court has now decided that the higher bar is what Congress intended (pdf). This means that it's that much more difficult to invalidate bad patents. The Court's ruling is basically that the common law presumption of validity mostly (but not entirely) used this standard, and when Congress passed the 1952 Patent Act (really written by patent lawyers), it simply meant to codify what the common law had said on that issue. It was an 8-0 ruling (with Chief Justice Roberts not taking part due to Microsoft investments, I believe), though Justice Thomas had some reservations about the thinking, but not the final judgment. The opinion was written by Justice Sotomayor, who got a bit snarky at points:

"Squint as we may, we fail to see the qualifications that Microsoft purports to identify in our cases."

I recognize the general reasoning of the Court in the case. Basically, it looks like, historically, a higher standard was frequently used, and since Congress didn't specify a different standard, it seems to suggest they were fine with the standard. But I think to some extent that ignores reality. First of all, the 1952 Act was written by patent lawyers and it's not clear Congress even understood all of it, so it seems a bit rich to suggest that it purposely was trying to codify that standard. On top of that, the use of the patent system has changed dramatically over the past few decades, and the entire presumption of validity is increasingly in question given the massive number of ridiculously bad patents approved by the Patent Office. As it currently stands, USPTO examiners rush through applications, spending an average of about 18 hours on each application. To grant patents with so little review and then presume they're valid with a ridiculously high barrier to challenging that presumption seems economically stupid.

In what world does it make sense to grant innovation-limiting monopolies for nearly two decades based on 18 hours of review?

But, in the end, this is really Congress' problem to fix -- which means they won't. Congress could fix this quite easily by clarifying a lower standard to invalidate patents. This makes tremendous sense. The only patents it would impact are bad patents. And no one -- even patent supporters -- should want bad patents. But you know who does like bad patents? Those who have them and those who profit from them -- and those people are really loud in their support of not messing with the system that gives them so much in monopoly rents. So it seems highly unlikely that Congress will even bother to look at making this simple change to the patent system.

Filed Under: patents, standard, supreme court, validity
Companies: i4i, microsoft

4th Amendment? What 4th Amendment? Supremes Say Police Can Create Conditions To Enter Home Without A Warrant

from the did-they-really-say-that? dept

We've been discussing various ways that our government and the courts have been slowly chipping away at the 4th Amendment, what with warrantless wiretaps, searching laptops, TSA agents groping people, etc. And the Supreme Court just took a huge chunk out of the 4th Amendment in saying that police can raid homes without a warrant if there are "exigent circumstances" -- even if those "exigent circumstances" are created by the police themselves.

The law, to date, had been that police cannot enter a home without a warrant unless they had both (a) probable cause and (b) "exigent circumstances" in which getting a warrant would not make sense. In this case, police were searching for a drug dealer who had gone into an apartment complex. Outside of one apartment, they smelled marijuana -- which created probable cause. At this point, they should have obtained a warrant. Instead, they banged on the door and shouted police. At which point they heard a scramble inside, and busted in the door, claiming that they believed the scramble was the possible destruction of the drugs. The argument then was that this noise -- even though it was entirely created due to police action -- represented exigent circumstances that allowed them to bust in the door without a warrant. The Kentucky Supreme Court said that while the noise might be exigent circumstances, since it was illegally created by the police, it could not be used.

Tragically, the Supreme Court -- by an 8-to-1 vote -- has now disagreed, saying that this is perfectly consistent with the 4th Amendment. With all due respect to the 8 Justices and the Court, I can't see how that's reasonable at all. This sets up a dreadful situation which will be abused regularly by law enforcement. It lets them create yet another situation where they may avoid oversight, by creating their own exigent circumstances, and then using that as an excuse for avoiding a warrant and any required oversight or limitations. I believe that Justice Ginsburg's dissent is much more compelling. Her dissent points out that exigent circumstances are only supposed to be used in very rare circumstances when getting a warrant is not possible or practical. Yet, in this case, the police easily could have secured a warrant quickly upon smelling marijuana.

That heavy burden has not been carried here. There was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate’s authorization. As the Court recognizes, "[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police." ... Nothing in the record shows that, prior to the knock at the apartment door, the occupants were apprehensive about police proximity.

In fact, she notes that "Home intrusions, the Court has said, are indeed 'the chief evil against which . . .the Fourth Amendment is directed.'" So it seems positively ridiculous to claim that such a home invasion is acceptable under the 4th Amendment. This is a tragically bad ruling by the Supreme Court that will have massive and dangerous consequences. We already have law enforcement pushing the boundaries of individual privacy rights, and now they have even more tools to take that further.

Filed Under: 4th amendment, home searches, police, supreme court, warrants

Winklevii Promise To Appeal To Supreme Court

from the and-the-court-will-laugh dept

Well, that didn't take long at all. We noted that the tone deaf Winklevoss twins would probably appeal their latest legal "loss," which "only" entitles them to the $160 million or so from their original settlement with Facebook and Mark Zuckerberg. Even while I said I expected them to appeal since they'd already gone this far, there was still a little voice in the back of my head saying they couldn't possibly think that the Supreme Court could see a Constitutional issue to consider in their case. And yet... hours later, the Winklevii lawyer has announced plans to appeal to the Supreme Court. And I will announce plans to not laugh out loud when the Supreme Court turns them down.

Filed Under: appeal, ideas, supreme court, winklevoss
Companies: connectu, facebook

Supreme Court Says Business Favorable Arbitration Clauses Can Block Class Action Lawsuits

from the which-is-more-evil? dept

Back when I was in college, one of my favorite classes was a class on arbitration. It was really fascinating to dive deep into how arbitration works, and it's a process I've remained fascinated with for years. Conceptually, it sounds like such a good idea. Have an arbitrator help work out a dispute, rather than going through a fully adversarial court process. And, when it's done right, it can be very effective. And, yet, many people are realizing that the system today is broken. According to various reports (pdf), businesses prevail 96.8% of the time in business-initiated contract arbitration cases handled by the National Arbitration Forum (and business-initiated cases are the vast, vast, vast majority of the cases). If that number seems unnaturally high, you've spotted the problem. The main issues is that, usually, the business gets to choose the arbitrator (or at least gets approval). Unlike the court system, the arbitrator is being paid for by the parties, and if that arbitrator wants to get more business, he or she is going to view the party likely to hire him or her in the future more favorably. This isn't to say there's outright corruption. I'm sure many arbitrators believe they're being fair. But the results are pretty damning.

At the same time, an equally broken process is the class action system. We've seen over and over again that class action lawsuits are used more as a way to enrich lawyers, rather than to help any particular class. The lawyers get the bulk of any settlement, and anyone in the class gets a couple dollars over an issue they didn't really care about in the first place. Or, in some cases, it's even more ridiculous where the "settlement" actually pushes people in the class to buy products from the company being sued.

So, I have to admit that I was somewhat conflicted about the Supreme Court case concerning the legality of arbitration clauses in California and their ability to block consumer class action lawsuits. In the end, the Supreme Court has ruled that the lower court rulings (in both the district and appeals courts), which upheld the right to a class action lawsuit against AT&T, were wrong. The lower courts found that the arbitration clause was an "unconscionable contract," but the Supreme Court felt otherwise, with a ruling that seemed to buy into all of the myths of arbitration, rather than what the data actually says.

The background story on the case is that a couple, Vincent and Liza Concepcion, sued AT&T in a class action lawsuit, saying that there were advertisements for free mobile phones, but sales tax was still applied on the full retail price meaning the phones weren't really free. Frankly, this seems like a somewhat silly class action claim to make and it fits with my feelings towards class action lawsuits. But, that shouldn't get in the way of the larger question, of whether or not such class actions (legitimate or not) can be blocked entirely by an arbitration clause. AT&T, of course, claimed that the arbitration clause in its contract blocked the class action lawsuit and meant it had to go through arbitration (and not as a class, but on an individual basis). And from there, we got the lower courts' decisions rejecting the clause and the Supreme Court now accepting it.

As much as I'm troubled by bogus class action lawsuits, this ruling bothers me much more. I do think that both the class action process and the arbitration process are regularly abused, but that the class action process is both more likely to be fixed and less likely to result in completely unfair results. If this involved a situation where two parties had a full and fair negotiation and then agreed to an arbitration clause, I wouldn't have much of a problem with it. But when it's a "click through" sort of agreement, where the consumer has no way to bargain or negotiate the contract -- and, in fact, isn't really expected to have read the contract -- I have serious problems with the idea that people can be forced to give up their basic rights to go to court over something that is designed for them not to read.

On top of that, this certainly opens the door to companies putting arbitration clauses everywhere to keep them out of court on all sorts of potential misdeeds. The unintended consequences of this sort of thing are certainly troubling. The proper response, at this point, would be for Congress to fix the law and to make it clear that you can't give up the right to go to court through such a non-negotiated contract... but the chances of that actually happening seem slim at best.

Filed Under: arbitration, california, class action, supreme court
Companies: at&t

A Succinct Description For Why Assuming Patent Validity Is A Problem

from the no-adversarial-process dept

Law professor Doug Lichtman has an op-ed in the NY Times, timed to the Supreme Court's hearing on the Microsoft/i4i case. As we've discussed, the focus is on what the standard should be for reviewing patents in the courts. We were disappointed that the US government supported keeping patents difficult to invalidate. Lichtman's op-ed does a nice job explaining why this makes no sense:

Patent examiners give most applications only a quick look, spending on average 16 hours to 17 hours per application — nowhere near the time needed to assess whether an invention is truly new and not obvious. Worse, those hours are typically spread over two to three years, and they are interspersed with work on hundreds of other open files.

These problems could in theory be fixed with more money. But resources aren’t the only issue. The extent and quality of Patent Office review is also limited by the fact that the process is not adversarial. Indeed, the only parties involved in Patent Office review are the applicant and the applicant’s lawyers — people with an obvious incentive to see the application move forward. Contrast that with litigation, where patent plaintiffs have to square off against very motivated patent defendants.

Those two issues cover exactly why it's a screwed up system where patents are automatically considered valid. The lack of time given to reviewing patents is often talked about, but the lack of an adversarial hearing is important as well. Obviously, defenders of the system today will point out that's what the court system is for. They argue that it's better for the courts to sort it out than to burden the Patent Office even further. But, if that's the case, then we should make it so the court system actually can invalidate bad patents more easily. Instead, the system works on an assumption of validity, with a very high bar ("clear and convincing," rather than the lower "preponderance of the evidence."). I still can't figure out how anyone defends this aspect of the current system. Moving the bar lower will only serve to get rid of bad patents. So the only argument I can see for defending the current system is that these people somehow believe that bad patents are important as well. And I'm left scratching my head as to who, outside of those who hold or profit from bad patents, could think that.

Anyway, the Supreme Court has, thankfully, released the transcript (pdf and embedded below) of today's hearing, and in typical Supreme Court fashion, it doesn't give away too much, but is still interesting. It seems like most of the Justices are pretty focused on the procedural issues and the specifics of Congress' intent, prior rulings, and whether or not the specific "preponderance of the evidence" standard is any more reasonable than "clear and convincing evidence." The one Justice who seems to grasp the deeper issues (again, not surprisingly if you're aware of his past), is Justice Breyer, who repeatedly brings up issues about bad patents and the harm they do. He seems to be fully aware of what's really at stake here, beyond a standard used by courts. Of course, none of that gives any indication how the case will eventually turn out. Also, Microsoft is at a bit of a disadvantage here, in that Chief Justice Roberts recused himself from this case, since he owns Microsoft stock. If the result comes out as a 4 to 4 tie, then i4i wins, and we're left with a bad standard, unless Congress finally makes its intent clear (unlikely).

Filed Under: patents, standard, supreme court, validity
Companies: i4i, microsoft