Wow. First, did anyone notice that Gray Zone _are not lawyers_? This C&D was sent by a paralegal. In some states, there is no licensure or education requirement to declare yourself a paralegal. In any event, in most states a paralegal must be supervised by a lawyer to do legal work (like sending out an ALLCAPS C&D). Problem one, then, is that Asylum hired an outfit that is performing poor legal work poorly.
Problem two: whatever else the C&D said, it also said: "IMMEDIATELY REMOVE ALL LINKS, REFERENCES, DOWNLOADS, VIDEOS, STREAMING AUDIO, AND MP3 FILES ASSOCIATED WITH GUCCI MANE." That has no place in a proper C&D, and goes well beyond what copyright demands (or even permits). Maybe a competent lawyer would have caught this.
In any event, the problem is not that Warner or Asylum did something stupid. They may not have - they hired an investigative company to investigate and handle the illegal distribution of pre-release music. The problem is that the DMCA eliminates an ISP's safe harbor against overreaching copyright suits if the ISP fails to promptly honor a take-down notice. The real villain here is Congress. The law is broken, not the behavior of the actors trying to obey it.
(Now if you want to carp about the role of the music industry in advocating for the DMCA or lobbying against the safeharbor provision, that is another story...)
There has been an argument (premised on the SAP of the copyright) that it is a violation of the derivative work right for a second author to base the second writing on the first, even if the second writing is a wholly new expression of the idea.
This is the source of the common infringement test that looks for substantial similarity plus access to the original work. If, as copyright theory dictates, the law concerned only expressions and not ideas, then "substantial similarity" would be irrelevant absent some actual copying.
Note, incidentally, that protecting SAP is necessary if you want to have modern copyright. This is one of many good arguments that we should not want to have modern copyright.
The trouble with this "patents ensure returns for innovators" argument is that it is empirically false. That is not what patents actually do. And, arguably, it is not even what they are for.
Patents create negative rights - the right to keep people out of the marketplace. They do not ensure profit for anyone, and often as not do not lead to profit for anyone. Worse, they can hamstring innovation both directly (patents are regularly obtained just to keep more innovative competitors out of the marketplace,) and indirectly (by locking up the predecessor technology, first movers can make it more difficult for competitors to innovate new solutions).
In any event, put aside the moral conviction (itself perhaps a creature of the cultural influence of IP,) and why should society accept an economic drag just to ensure that profits are distributed to the innovator, rather than the most effective market player? Why should innovation be the skill we make laws to reward? Arguably the larger contribution is made by the person who identifies the value of an existing technology and creates a healthy marketplace for it. Why not protect their ability to do so, even if it means interfering with an innovator's ROI?
While I do not disagree with the underlying premise (that patent reform is desparately needed,) this is an example of a very different problem - litigation is broken. This same thing happens with personal injury lawsuits, malpractice lawsuits, products liability lawsuits, and even contract lawsuits. Paying a ransom (the "nuisance value") to avoid the costs and vicissitudes of trial has become a way of life for habitual defendants, because unethical plaintiffs and their lawyers make it so.
Adopting the English rule in all cases would help a bit. Coupling it with a cost-bond requirement for plaintiffs would help some more. Add personal liability for counsel to really make it stick.
It is possible that the court system has some legit concerns. Going to CM/ECF and PACER is scary, in part because some documents get (appropriately) sealed or even stricken entirely _after_ filing. With paper, it was unlikely that a doc that should have been sealed would be released to broad distribution before that happened. With PACER, it is less unlikely. With RECAP, it is still less unlikely. This can be a huge concern in circuits, like the 9th, that are unforgiving about the loss of privilege in the face of inadvertent disclosure. Add to that the concern that a dumb or ill-informed lawyer could install a trojan RECAP.
A law partner I knew had a standing requirement that his secretary power on his computer before he got to the office every day. This was not just a show of power - he did not know where to find the button. And lawyers routinely violate their firms' software installation policies. The court system is right to be concerned that mere lawyers may not understand all of the implications of installing new software.
On the post: Music Reviewer's Blog Suspended For Promoting Music
Problem two: whatever else the C&D said, it also said: "IMMEDIATELY REMOVE ALL LINKS, REFERENCES, DOWNLOADS, VIDEOS, STREAMING AUDIO, AND MP3 FILES ASSOCIATED WITH GUCCI MANE." That has no place in a proper C&D, and goes well beyond what copyright demands (or even permits). Maybe a competent lawyer would have caught this.
In any event, the problem is not that Warner or Asylum did something stupid. They may not have - they hired an investigative company to investigate and handle the illegal distribution of pre-release music. The problem is that the DMCA eliminates an ISP's safe harbor against overreaching copyright suits if the ISP fails to promptly honor a take-down notice. The real villain here is Congress. The law is broken, not the behavior of the actors trying to obey it.
(Now if you want to carp about the role of the music industry in advocating for the DMCA or lobbying against the safeharbor provision, that is another story...)
On the post: Can You Plagiarize An Idea?
This is the source of the common infringement test that looks for substantial similarity plus access to the original work. If, as copyright theory dictates, the law concerned only expressions and not ideas, then "substantial similarity" would be irrelevant absent some actual copying.
Note, incidentally, that protecting SAP is necessary if you want to have modern copyright. This is one of many good arguments that we should not want to have modern copyright.
On the post: Why Just Copying Isn't Enough: Cargo Cult Science And Copycats
Patents create negative rights - the right to keep people out of the marketplace. They do not ensure profit for anyone, and often as not do not lead to profit for anyone. Worse, they can hamstring innovation both directly (patents are regularly obtained just to keep more innovative competitors out of the marketplace,) and indirectly (by locking up the predecessor technology, first movers can make it more difficult for competitors to innovate new solutions).
In any event, put aside the moral conviction (itself perhaps a creature of the cultural influence of IP,) and why should society accept an economic drag just to ensure that profits are distributed to the innovator, rather than the most effective market player? Why should innovation be the skill we make laws to reward? Arguably the larger contribution is made by the person who identifies the value of an existing technology and creates a healthy marketplace for it. Why not protect their ability to do so, even if it means interfering with an innovator's ROI?
On the post: Nintendo Pays Innovation Tax To Patent Holder
Adopting the English rule in all cases would help a bit. Coupling it with a cost-bond requirement for plaintiffs would help some more. Add personal liability for counsel to really make it stick.
On the post: Federal Courts Sound The Alarm Against RECAP; Worried About PACER Profits
Legitimate concerns?
A law partner I knew had a standing requirement that his secretary power on his computer before he got to the office every day. This was not just a show of power - he did not know where to find the button. And lawyers routinely violate their firms' software installation policies. The court system is right to be concerned that mere lawyers may not understand all of the implications of installing new software.
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