J.R.McHale

“‘Least restrictive means’? One way that SOPA could die in court” by Matthew Lasar at ArsTechnica’s Law & Disorder. Lasar ponders whether SOPA/PIPA could meet the same legal challenges and fate as legislation such as the Child Online Protection Act (COPA), which was found not to be the “least restrictive means” of addressing the issue of access to online materials by minors. Is SOPA/PIPA the least restrictive means of addressing online privacy or, rather, as the Supreme Court declared in the COPA matter: “If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties.”

“Why Canadians Should Participate in the SOPA/PIPA Protest” by Michael Geist, law professor at the University of Ottawa. Professor Geist summarizes the reasons why SOPA/PIPA, including its extra-territorial effects, should concern individuals and businesses outside the U.S.

“The Google Anti-Stop-Online-Piracy-Act Statement, Corporate Speech, and the First Amendment” by UCLA law professor, Eugene Volokh, asking how those who oppose 1st Amendment rights for entities such as corporations square those beliefs with support of yesterday’s anti-SOPA protest actions by prominent technology companies.

“SOPA and Censorship Spillovers” by University of Chicago Law Professor, Randal C. Picker. Professor Picker (a former classmate of mine in law school at the University of Chicago) examines claims regarding how foreign governments that desire to engage in censorship will respond to U.S. efforts to implement DNS filtering to address copyright infringement.

“Why SOPA is Dangerous” a close look at the bill itself at Mashable.com, and “An Updated Analysis: Why SOPA & PIPA Are A Bad Idea, Dangerous & Unnecessary” a more general effort to summarize the ill effects of the bills at TechDirt.com.

“Forget SOPA, Hollywood Already Had a Field Day with the Justice System” by Fenwick & West attorney, Alan P. Bridges, arguing at PandoDaily.com that content owners already have a good deal under current law given the oversized nature of current statutory copyright penalties that may be applicable even if there is no commensurate actual economic damage to any particular content owner.

Clay Shirky: Why SOPA is a Bad Idea

The Khan Academy weighs in on SOPA/PIPA.

Will Round Two of Cariou v Prince Change Art Law Forever?


[T]his ‘anticorporate’ agenda of ramping up regulation is actually pro-corporate. Stringent regulations tend to protect incumbent firms from their greatest fear — innovative start-ups that could drive them out of business … [N]ursing firms tenderly is only one way to spur firms to invest. A better way is to threaten them. Not with antitrust actions or NLRB rulings, though — instead, by making them face their strongest and most feared competitors in open combat … [R]egulations are a moat that surrounds corporate America and protects its profits … Unleashing entrepreneurs will force rich and powerful incumbents to spend money on inventing new products and processes that will help them maintain their edge. Lounging timidly on a mountain of cash will no longer be an option when new firms show up to compete and siphon away hefty profits.

How to Fix Copyright: a three part series of posts by William Patry at The Volokh Conspiracy on the heels of the release, earlier this month, by Oxford University Press of Patry’s new book with the same title. Patry, currently Senior Copyright Counsel at Google, served as a copyright counsel to the U.S. House of Representatives in the early 1990s and is the author of a seven volume treatise on U.S. copyright law.

Part 1
Part 2
Part 3

When Paintings are Easily Reproduced: Hrag Vartanian writing at hyperallergic.com on the issues about to be unleashed in the art world by affordable, high quality 3D printers:

“So far, the debate about artistic copyright has been safely in the realm of design and photography … . but how will that conversation change when anything can be easily reproduced and presented without proof of origin or even the original artist’s touch? … . A copyright lawyer by day, Steiner bought a glob-erific clown painting by Allison Schulnk … He then proceeded to have a replica of the work fabricated on a ZPrinter 650 3D printer. The result is a quite good monochromatic reproduction of the painting that is full of the brushstrokes and textures that until recently we thought we couldn’t so easily reproduce. Looking at the potential in this art work, I realized it was only a matter of time (months?) before paintings with their grooves and quirks could be churned out at will.”

photo of artwork at Palm Springs Art Museum © 2012 j.r.mchale

newyorker:

Has James Joyce Been Set Free?

On New Year’s Eve, the Twitter feed of UbuWeb, an online archive of the avant garde, posted a link to an article in The Irish Times about the expiry of European copyright on the work of James Joyce. The link was accompanied by a curt message to Joyce’s grandson and sole living descendent: “Fuck you Stephen Joyce. EU copyright on James Joyce’s works ends at midnight.” While the language may have been unusually confrontational, the sentiment it expressed is widespread. The passage into public domain of Joyce’s major works has been talked up in certain quarters as though it were a bookish version of the destruction of the Death Star, with Stephen Joyce cast as a highbrow Darth Vader suddenly no longer in a position to breathe heavily down the necks of rebel Joyceans.

–Mark O’Connell on what the post-Stephen will bring: http://nyr.kr/xj2D9F

See also at TechDirt.com:

”Why Johnny Can’t Read Any New Public Domain Books in the US: Because Nothing New Entered the Public Domain”

“Jazz Pioneer ‘Jelly Roll’ Morton’s Music Finally Free For Re-use In Europe — A Hundred Years Too Late”.

“The copyright wars are just the beta version of a long coming war on computation … There will be programs that run on general-purpose computers, and peripherals, that will freak even me out. So I can believe that people who advocate for limiting general-purpose computers will find a receptive audience. But just as we saw with the copyright wars, banning certain instructions, protocols or messages will be wholly ineffective as a means of prevention and remedy. As we saw in the copyright wars, all attempts at controlling PCs will converge on rootkits, and all attempts at controlling the Internet will converge on surveillance and censorship. This stuff matters because we’ve spent the last decade sending our best players out to fight what we thought was the final boss at the end of the game, but it turns out it’s just been an end-level guardian. The stakes are only going to get higher.”

From “Lockdown: The Coming War on General-Purpose Computing” by Cory Doctorow at boingboing.net (based on his keynote speech to the Chaos Computer Congress in Berlin, December 2011; youtube video of the full speech).

Internet Access is not a Human Right

The practical effect of SOPA will be to create an architecture for censorship—both legal and technological—that will radically alter the costs of engaging in future censorship unrelated to piracy or counterfeiting … . [T]he portion of the bill laying out the specific types of criminal conduct that trigger this Rube Goldberg censorship machine occupy just a couple of paragraphs. With the legal framework in place, expanding it to cover other conduct—obscenity, defamation, “unfair competition,” patent infringement, publication of classified information, advocacy in support of terror groups —would be a matter of adding a few words to those paragraphs … . Any sane network operator is just going to build a filter that reads off the current list of banned domains from a government feed and automatically stops resolving them … . Once the up-front costs of implementing that filter mechanism are paid, the marginal cost of additional censorship is effectively zero for the providers.

Facebook Settles FTC Charges

“Antitrust and Social Networking” by Spencer Weber Waller, Loyola University Chicago School of Law forthcoming in the North Carolina Law Review (2012).

“Search Neutrality as an Antitrust Principle” by Daniel A. Crane, University of Michigan Law School.

“Cyber Attacks and the Laws of War” by Michael Gervais, Yale Law School.

“The Future of Cybertravel: Legal Implications of the Evasion of Geolocation” by Marketa Trimble, University of Nevada, Las Vegas, William S. Boyd School of Law, Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 22, 2012.

“Six Provocations for Big Data” by Kate Crawford, University of New South Wales, and Danah Boyd, Microsoft Research, New York University, University of New South Wales, and Harvard University (Berkman Center for Internet & Society).

Updated December 19, 2011

The text of the PROTECT IP Act

The text of the STOP ONLINE PIRACY ACT

Opposition Letters:
Internet Law and IP Law Professors; and
Venture Capitalists

Lemley, Levine and Post Op-Ed:
“Don’t Break the Internet”

TechDirt: “The Definitive Post On Why SOPA And Protect IP Are Bad, Bad Ideas”

The Atlantic: “Congress Weighs Taking the War-on-Drugs Approach to Fighting Internet Piracy”

Meanwhile, over in Europe: European high court rejects Internet traffic filtering as violation of fundamental rights (Ars Technica: Law & Disorder)

The judgment of the European Court of Justice on internet filtering (Court of Justice press release)

My favorite jazz tracks of 2011: Spotify playlist

More recent jazz links:

JazzTimes.com: The Top 50 Jazz Releases of 2011

TimeOut New York: The 25 essential New York City jazz icons

From The New Yorker’s archives (David Remnick: 2008): 100 Essential Jazz Albums

Updated November 25, 2011:

The AT&T/Verizon Wireless Duopoly

Law professor Susan Crawford on the mobile carrier duopoly that will remain even if the AT&T/T-Mobile acquisition is blocked.

More on the Proposed Merger:
Law professor Mark Lemley on the importance of fringe competition: “If AT&T Marries T-Mobile, All of Us Will Lose.”

Status update: AT&T and T-Mobile merger: Not dead yet (CNN: November 25, 2011)

PROTECT IP/SOPA Act Breaks the Internet

In Layman’s Terms: Spotify Technology: How Spotify Works (The Pansentient League)

In Technical Terms: “Spotify – Large Scale, Low Latency, P2P Music-on-Demand Streaming,” a paper by Gunnar Kreitz and Fredrik Niemelä, KTH – Royal Institute of Technology and Spotify Stockholm, Sweden (pdf: available here)

Account Deactivation and Content Removal: Guiding Principles and Practices for Companies and Users