link to: 11:12 [GMT-6]

Which, disturbingly, also leads directly into the first sausage on the platter.

• This is why elected judiciaries are such a bad idea. Fortunately, in this instance, they're not dealing with an elected judiciary; but if it had been, say, the Illinois Supreme Court in question — after that last, awful campaign for judge from the Fifth District — and not the UK Court of Appeal, things would have been even dicier. And lurking in the background here in Illinois are the recent decision regarding George Ryan's pension (PDF), in which the dissenting justice gave a failing answer (on general principles, on statutory analysis, and on precedent), and any future decision regarding Rod Blagojevich's pension... those being just obvious examples.
• The last couple of days have been very big days regarding copyright piracy.
  • One of the most arrogant of the pirated-works repositories has been smacked hard by the German courts. Rapid$hare is (allegedly) a Swiss corporation with most operations (allegedly) based in Germany, but past investigation and experience demonstrates that... it's not. In any event, a group of publishers successfully obtained an injunction against pirated e-books... a number of which have no realistic market outside the US, although the purported Swiss/German nature of Rapid$hare allows it to claim with a straight face that it's not subject to the DMCA (which is a part of US copyright law, but not — yet — applicable to purely EU operations).

    What is most amusing about Rapid$hare's response to the injunction, quoted in part at the bottom of the linked article, is that it precisely parallels the losing defense offered in Grokster... and the underlying copyright law in Germany and EU is (or would be, but for Grokster itself) more open to indirect infringement, misleadingly mislabelled "inducing infringement" by Justice Souter's law clerks, claims than is the corresponding statutory framework in the US. Bluntly, I expect Rapid$hare to be trying desperately to negotiate behind the scenes so it can continue to be not just "'by far' the single biggest threat to higher education publishing as far pirating sites," but the biggest threat to pornographers making a living.¹

  • Meanwhile, in the less-bad-actors segment of filesharing, Scribd intends to optimize parts of its interface for mobile devices.² Yeah, I'm thoroughly convinced that this is not going to run into problems. For one thing, just like the GBS, it completely ignores file compatibility.
  • Sometimes, though, the bad actor may be a US-government-chartered corporation, like the Postal Service (PDF). Next up: The appeal to the Supreme Court that will argue that it's adequately transformative to constitute fair use... at which point somebody might just point out that § 107 does not use the term "transformative," or even any synonym or parallel construction, anywhere in the statutory text.
  • And sometimes ignorance isn't innocence. The Fifth Circuit has published its opinion in Maverick Record Co. v. Harper, No. 08–51194 (5th Cir. 25 Feb 2010) (PDF), rejecting a then-seventeen-year-old's "innocent infringement" defense for music files shared over the 'net. In an unusually coherent and cohesive opinion (particularly since the Fifth Circuit — Texas, Louisiana, and Mississippi — isn't exactly the top of the heap in copyright litigation), Judge Clement noted:

    These arguments are insufficient to defeat the interposition of the § 402(d) limitation on the innocent infringer defense. [The defendant's] reliance on her own understanding of copyright law—or lack thereof—is irrelevant in the context of § 402(d). The plain language of the statute shows that the infringer's knowledge or intent does not affect its application. Lack of legal sophistication cannot overcome a properly asserted § 402(d) limitation to the innocent infringer defense.

    (slip op. at 10; footnote omitted) I now await the gnashing, wailing, and rending of shirts from the 'net, as the IWTBF³ crowd (and those who despise the record companies, with some reason) try to explain that one simply must allow an "ignorant" teenager who installed "anonymizing" filesharing software after the Supreme Court decided Grokster to declare a lack of sophistication as a partial defense to a "crime" that does not require either intent or sophistication. I'll have a good time over the next few days reading the overblown rhetoric; but then, I'm a nerd... which leads to today's second snerched cartoon, this time from XKCD.

    

• From the Department of False Dilemmas (Cultural Unawareness Division), Will Self demonstrates that he doesn't understand the foundations of "art" by proposing that atheists should give up the arts for Lent and see how empty their lives would be if forced to "stride out into the world protected only by the flimsy raiment of your own reason, guided solely by the light of your own conscience, and warmed by your own imagination alone." Note that this assumes that the nonfaithful have no right or ability to draw inspiration from others, whether or not those others share reason, conscience, or imagination — instead, only Christians can do that. One word suffices in response: Gilgamesh.
• Randy Newman was so right: it's money that matters. Not just individually, but in the aggregate — and more, perhaps, than mere "poverty" itself. I've not yet read the book, but I suspect this still slightly misstates the problem (although it's closer); I don't see it the problem as "inequality" so much as "unfairly achieved/perpetuated inequality." Not too many "impoverished" activists resent Bill Gates as much as they do Paris Hilton; ok, so the activists don't know that much about Gates' own background, but he's perceived as having done something himself to become rich... not just inherit it.
• Many people don't like Maxine Waters. She's long been an "inconvenient woman of color": Imperfect, loud, critical, and unwilling to refer to bullshit as "cowpatties." Thus, it shouldn't have surprised Jeff Zucker (the top clown at NBC... at the moment) when Congresscreature Waters ripped Zucker a new asshole over the lack of diversity on NBC. Racism (conscious or not) in entertainment? Racism (conscious or not) from a French media conglomerate? I'm shocked. Now hand me my damned winnings!
• Zombies are protected from unreasonable search and seizure under the Fourth Amendment (PDF). <SARCASM> Maybe they'll extend those rights to "men driving expensive cars while being melaninically enhanced" or "women wearing hijabs," too. </SARCASM>

1. I long ago made a conscious decision that I would never turn away a client on "artistic merit" or "social value" grounds, and probably not even on "unlawful expression" grounds. And after my former career, my "ewwwwwww" factor is pretty darned high, so that doesn't enter into it either (right, Richard? remember that trademark consultation for one of your clients?).
2. n.b. Although I was not counsel of record in either suit, I was definitely heavily involved in two copyright infringement suits against Scribd... and in both instances, Scribd properly conceded when the smoking guns were waved in its face, and attempted to engage in not just retrospective, but proactive, means to resolve the disputes. Those efforts were nowhere near what I would have preferred, but the contrast with America Online (to name one bad actor I've smacked around on filesharing in the past) was so great that one would never know that — at the core — the complaints were virtually identical...
3. Information Wants to Be Free. Of course, entertainment is not congruent with, equivalent to, or even a subset of information.

Labels: arts, copyright, intellectual property, jurisprudence, mass media, miscellany, politics