Just a couple of quick notes to catch up on the backlog as that bout with the 'flu tapers away:
This morning, the Supremes decided the (fourth or fifth iteration of) Lexmark Int'l, Inc. v. Static Control Components, Inc., No. 12–873 (PDF) (25 Mar 2014), yet again smacking down Lexmark's ethically unsustainable and probably unlawful tying attempts for printer cartridges. Basically, Lexmark put a chip into printer cartridges that has to be "renewed" at its factory — and its factory only — for a recycled or other aftermarket cartridge to work. This is roughly the equivalent of chipping the wheels on your car so that only genuine tires of the same brand as installed at the factory will work; not because they are superior tires, but because the car manufacturer gets more money that way by forcing you to use its brand. Static Control reverse engineered Lexmark's chip — so that the chip it sells to cartridge remanufacturers, which is not a literal copy of Lexmark's chip, produces equivalent signals so that the Lexmark printer will accept it — and thereby enables the remanufacturers to undercut Lexmark's price on printer cartridges. Substantially undercuts Lexmark's exhorbitant, consumer-gouging rent. Naturally, Lexmark sued Static Control. Previous decisions have rejected Lexmark's attempts to claim that the Static Control chip infringed patents, and/or Lexmark's copyrights. This decision, however, concerns whether Static Control could file a counterclaim against Lexmark for false advertising and similar violations of the Lanham Act arising from Lexmark's assertions that only Lexmark-branded cartridges would "work properly" (to quote a press release from a number of years ago), among other claims (both explicit and implicit).
The Supremes unanimously (Justice Kegan recused) ruled that Static Control did state a claim against Lexmark for false advertising and unfair competition under the Lanham Act. But this is all computer geekery, isn't it? It doesn't matter to authors and musicians and filmmakers, does it? Not so fast: Lexmark's system is merely DRM-embedded-in-a-useful-object. Indeed, one of the previous decisions rejected Lexmark's claim that its chip qualified as pure DRM and that Static Control therefore didn't just infringe Lexmark's copyright, but unlawfully defeated a DRM system protected by the misbegotten chapter 12 of the Copyright Act! It's one thing entirely for a DRM system to be hardware-agnostic — that is, so long as there's a lawfully acquired copy and lawfully operating decoder, it doesn't matter whether one is using a Samsung or an Apple or an ASUS tablet to read an e-book, listen to a music file, or watch a movie. So far, so good. That, however, is not what Apple in particular (and Amazon too, but less obviously) really wants. Apple wants brand lock-in; that's one reason that the Windows version of iTunes is so bug-infested (even if Apple's intentions were pure as the driven snow — they're not, but it's beside the point — there would be a substantial subconscious barrier to making things work on devices that Apple does not itself sell), especially regarding e-books. Seeing if Static Control actually succeeds with its claim against Lexmark on remand will be very interesting indeed...
But not quite as much fun as watching certain "archivists" (you know who you are) forced to eat their words by the Ninth Circuit. There's a meme going around among the "information wants to be free" folk who masquerade as "protectors/preservers of culture" — the ones who scan whole issues of magazines and claim that's fair use if there was any copyright protection anyway — that "copyrights on magazines never extend to freelancers' content, so if the freelancer doesn't register each story individually we can eat the carrion of their rights." Not so fast. In Alaska Stock, LLC v. Houghton Mifflin Harcourt Ltd., No. 10–36010 (PDF) (9th Cir. 18 Mar 2014), the Ninth Circuit seriously undercut that argument. Alaska Stock concerned not periodicals, but group registration of photographs. This case turnes on whether the group registration covered the individual freelance photographs, or just the group catalog as a whole. Following the regulations of the Copyright Office in effect at the time of the registration (and on advice from the Copyright Office), Alaska Stock had taken temporary ownership of the copyrights in the photographs for the sole purpose of registering them, then returned ownership of the copyrights to the various freelancers. The Ninth Circuit held that this satisfied the registration requirements as to the individual photos; the critical fact was that the registrant was the owner at the time of registration, consistent with the stated requirements for registration.
Those with only moderately long memories (and any real knowledge of publishing practices prior to 1978) should recognize this as being virtually identical to the way that periodicals used to work. Under the 1909 Act, copyright was "indivisible" — the entire copyright had to be owned to exploit any part of it; any restrictions on use were purely matters of contract, and not of copyright ownership. The 1976 Act (effective in 1978) allowed copyright to be divided, so that individual rights and privileges could simultaneously be owned by multiple parties. The key point is that periodical publication under the 1909 Act required ownership, however temporarily, of the copyright in each freelancer's contribution appearing in that periodical. That's the source of the language concerning "return of copyright 90 days after publication" found in so many periodical contracts from the 1930s on; that 90-day period matches up with the then-paramount requirement for prompt registration or forfeiture of the copyright. Indeed, if you look at reprint anthologies of material from the Pulp Era, you'll see nary an original copyright to Isaac Asimov or whomever; you'll see original copyrights credited to Street & Smith Publications... because Street & Smith owned the copyright at the time of registration.
Unfortunately, this still leaves a very tangled mess behind. Since Alaska Stock is (at least on its surface) dealing only with post-1964 photographs, it does not delve into who had the right to renew those original group registrations... or whether a renewal of the group registration by Alaska Stock would count for the freelancers, or even whether renewal would require ownership of the copyright (the better, but not compelling, view is that ownership is not required for renewal, because who may renew is specified in a different section of the 1909 Act and does not refer to ownership at all). Second, there remains the Morris conundrum (259 F.3d 65 (2d Cir. 2001), 283 F.3d 502 (2d Cir. 2002)), IMNSHO wrongly decided: That because freelancers under the 1976 Act need not transfer their copyrights to the publishers, the publisher's registration certificate for a periodical does not cover the freelance contributions. The Copyright Office agrees with Morris, but then it's to the financial advantage of the Copyright Office to do so: It would obtain registration fees (which greatly exceed the actual processing costs associated with registration) several times for each issue under the Morris rationale, one for each issue plus one for each freelancer's contribution. The rationale of Morris was seriously undercut by Muchnick in any event, albeit not explicitly rejected. Nonetheless, Alaska Stock does seriously undercut the "vulture archivist" argument that freelance contributions to pulp-era periodicals failed of initial registration.