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Articolo: Rebecca Tushnet: "Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It"
by J.C. DE MARTIN Aug. 10, 2009

Aug. 10, 2009

http://www.yalelawjournal.org/114/3/535_rebecca_tushnet.html Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It [View as PDF] 114 Yale L.J. 535 (2004) Recent cases and scholarship have debated whether copyright law is consistent with the First Amendment. Much of the discussion has centered on copyright law's ability to suppress transformative, creative reuses of copyrighted works and on copyright's fair use doctrine as a mechanism to protect such transformative uses. This Essay argues that the increasing centrality of transformativeness to fair use has made it easier for copyright owners to control all instances of ordinary copying. Yet pure copying also serves valuable First Amendment purposes, both for audiences and, less obviously, for speakers, for whom copying often serves interests in self-expression, persuasion, and participation.

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Articolo: Fred von Lohmann: "Fair Use as Innovation Policy"
by J.C. DE MARTIN Aug. 10, 2009

Aug. 10, 2009

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1273385&rec=1&srcabs=114… *Fair Use as Innovation Policy * Fred Von Lohmann <http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=508235> /affiliation not provided to SSRN/ /Berkley Technology Law Journal, Vol. 23, No. 2, 2008 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1273385&rec=1&srcabs=114…>/ * Abstract: * American consumers increasingly take iPods, TiVos and similar private copying technologies for granted. Yet copyright law lacks a coherent account for this private, nontransformative copying. This article contends that copyright law's historical tolerance for such copying as a fair use has served as an important element of both copyright and innovation policy. This is because, to the extent it permits private copying, fair use creates incentives for technology companies to build innovative new products that enable such copying. Far from being an unfair "subsidy" from copyright owners to technology innovators, this aspect of fair use has yielded complementary technologies that enhance the value of copyrighted works. This fair use incentive to technology companies, moreover, is justified in light of a persistent market failure that would otherwise result in underproduction of certain kinds of socially-beneficial innovations. Finally, there are reasons to believe that technology innovators may not in many cases be able to appropriate to themselves the value of the fair uses that their technologies enable, because those uses will not be part of their marginal costs of production. To the extent that the value of these fair uses ends up being captured by the public, rather than technology innovators, this also furthers the purposes of copyright law. *Keywords:* copyright, fair use, innovation, private copying, market failure Accepted Paper Series Date posted: September 26, 2008 ; Last revised: September 26, 2008 Suggested Citation Von Lohmann, Fred,Fair Use as Innovation Policy(September, 24 2008). Berkley Technology Law Journal, Vol. 23, No. 2, 2008. Available at SSRN: http://ssrn.com/abstract=1273385

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[Fwd: [IRP] IRP meets chilling effects]
by J.C. DE MARTIN Aug. 8, 2009

Aug. 8, 2009

-------- Original Message -------- Subject: [IRP] IRP meets chilling effects Date: Fri, 7 Aug 2009 21:00:36 +0200 From: Max Senges <maxsenges(a)gmail.com> To: irp <Irp(a)lists.internetrightsandprinciples.org> CC: Wendy Seltzer <wendy(a)seltzer.com> hi everybody I just spoke to Wendy Seltzer (one of the key people behind Chilling Effects). As mentioned before http://www.chillingeffects.org/ is a very commendable effort to develop a clearing house for online rights cases (just like we/IRP envisioned in our mission). So far the vast majority of cases in the database are from the US and they are mostly cease and desist cases that's why Wendy and her colleagues would be interested to team up with IRP in order to broaden its contributors base to include non-US cases. Are IRPlers (besides me) interested in contributing cases to the Chilling Effects clearning house? Wendy is also interested in people (mostly lawyers i guess) who would help to make the content (e.g. the FAQs more international / relevant to non-US -- http://www.chillingeffects.org/faq.cgi) Ok I put the point on the agenda for our next monthly meeting (for which i'll send the invite in a sec) Yours Max _______________________________________________ IRP mailing list IRP(a)lists.internetrightsandprinciples.org http://lists.internetrightsandprinciples.org/listinfo.cgi/irp-internetright…

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n. 2 assegni di ricerca sul tema: "Internet, anonimato , privacy e innovazione"
by J.C. DE MARTIN Aug. 8, 2009

Aug. 8, 2009

Il Centro NEXA su Internet & Società del Politecnico di Torino (DAUIN) (http://nexa.polito.it) nell'ambito delle proprie attività di ricerca istituzionale, cerca ricercatori/ricercatrici motivati e brillanti interessati alla selezione per n. 2 assegni di ricerca (AR243/2009) di durata annuale sul tema: "Identificabilità delle persone sulla rete Internet: analisi tecnica, giuridica ed economica delle conseguenze sulla privacy, sulle libertà fondamentali, sull'innovazione e sui modelli di business". Il bando ufficiale è disponibile qui: http://www.swas.polito.it/services/concorsi/assric.asp?id_documento_padre=5… Scadenza per la presentazione delle domande: 30 settembre 2009 I requisiti nonche' le modalità esatte di presentazione delle domande sono descritti nel bando. Si prevede che la ricerca abbia inizio il 1 novembre 2009. English summary available here: http://nexa.polito.it/job-openings/anonymity-privacy-access Restando a disposizione per eventuali chiarimenti o integrazioni, porgo i piu' cordiali saluti, juan carlos de martin prof. juan carlos de martin co-director / nexa center for internet & society politecnico di torino http://nexa.polito.it tel: +39 011 564 7215 fax: +39 011 564 7216

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Slashdot: "Examining Software Liability In the Open Source Community"
by J.C. DE MARTIN Aug. 7, 2009

Aug. 7, 2009

http://news.slashdot.org/article.pl?sid=09/08/06/197253 Examining Software Liability In the Open Source Community Posted by timothy on Thursday August 06, @03:21PM from the three-letters-starting-f-u-d dept. snydeq writes "Guidelines from the American Law Institute that seek to hold vendors liable for 'knowingly' shipping buggy software could have dramatic impact on the open source community, as vague language around a 'free software' exemption could put open source developers at litigation risk. Meant to protect open source developers, the 'free software' exemption does not take into account the myriad ways in which vendors receive revenue from software products, according to a joint letter drafted by Microsoft and the Linux Foundation. As such, the guidelines — which, although not binding, are likely to prove influential on future lawsuits, according to attorneys on both sides of the issue — call into question the notion of liability in the open source community, where any number of coders may be responsible for any given defect." (See original URL, http://news.slashdot.org/article.pl?sid=09/08/06/197253, for links and related stories) jc

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la CRUI pubblica linee guida e raccomandazioni su Open Access
by J.C. DE MARTIN Aug. 5, 2009

Aug. 5, 2009

------------------------------------------------------------------------ *Da:* Segreteria Crui [mailto:segreteriacrui@crui.it] *Inviato:* martedì 4 agosto 2009 8.49 *Oggetto:* Documenti Open Access *Priorità:* Alta *_Ai Rettori delle Università Italiane ed ai Delegati rettorali per le biblioteche_* Si segnala che sul sito della CRUI, all'indirizzo http://www.crui.it/HomePage.aspx?ref=894 sono disponibili due documenti elaborati dal gruppo di lavoro Open access e approvati dalla Commissione biblioteche lo scorso 2 aprile: - Linee guida per gli archivi istituzionali - L'Open Access e la valutazione dei prodotti della ricerca scientifica -- Raccomandazioni Cordiali saluti Segreteria CRUI Conferenza dei Rettori delle Università Italiane Piazza Rondanini, 48 00186 Roma

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NY Times: "Hot Story to Has-Been: Tracking News via Cyberspace"
by J.C. DE MARTIN Aug. 5, 2009

Aug. 5, 2009

August 5, 2009 Hot Story to Has-Been: Tracking News via Cyberspace By PATRICIA COHEN Like a lot of new ideas, Media Cloud started with a long-running argument among friends. Ethan Zuckerman and a handful of his colleagues at the Berkman Center for Internet and Society at Harvard Law School found themselves in endless disputes about the mainstream media and newer digital variations. Who sets the agenda? How is public debate shaped? What topics are covered or ignored? Anecdotes favoring one side or another were as plentiful as pop-ups, but a comprehensive and reliable database that could track the daily rhythm of the news cycle over time and was available for public use didn’t exist. So Mr. Zuckerman and others at Berkman decided to create one. The result is Media Cloud, a system that tracks hundreds of newspapers and thousands of Web sites and blogs, and archives the information in a searchable form. The database, at mediacloud.org, will eventually enable researchers to search for key people, places and events — from Michael Jackson to the Iranian elections — and find out precisely when, where and how frequently they are covered, said Mr. Zuckerman, whose official title is senior researcher, though he acknowledges that a more accurate label would be computer geek and international development specialist. (At the moment only a small sample of Media Cloud’s tools are on the public Web site.) [...] http://www.nytimes.com/2009/08/05/arts/05cloud.html?_r=1 ciao, jc

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TechCrunch: "Why The FCC Wants To Smash Open The iPhone"
by J.C. DE MARTIN Aug. 2, 2009

Aug. 2, 2009

Why The FCC Wants To Smash Open The iPhone 203 Comments by Erick Schonfeld on August 1, 2009 Right about now, Apple probably wishes it had never rejected Google Voice and related apps from the iPhone. Or maybe it was AT&T who rejected the apps. Nobody really knows. But the FCC launched an investigation last night to find out, sending letters to all three companies (Apple, AT&T, and Google) asking them to explain exactly what happened. On its face, it might seem odd to some people that the FCC is investigating the rejection of a single iPhone app. After all, iPhone apps are rejected every day. But the Google Voice rejection caused an unusual amount of uproar, and there is nothing like a high-profile case to make an example out of in pursuit of pushing a bigger policy agenda. The FCC investigation is not just about the arbitrary rejection of a single app. It is the FCC’s way of putting a stake in the ground for making the wireless networks controlled by cell phone carriers as open as the Internet. [...] http://www.techcrunch.com/2009/08/01/why-the-fcc-wants-to-smash-open-the-ip…

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"Streaming and BitTorrent Sports Links Site Declared Legal"
by J.C. DE MARTIN Aug. 1, 2009

Aug. 1, 2009

Streaming and BitTorrent Sports Links Site Declared Legal Written by enigmax on July 24, 2009 A site which carries links to both live streaming sporting events and BitTorrent downloads has had the case against it kicked out by a judge. Rojadirecta.com was initially reported for copyright infringement by sports rights holder AudioVisual Sports back in 2007, but it’s been decided they have no case to answer. In 2007, Rojadirecta, which describes itself as one of the world’s major Internet sports broadcast indexes (linking to many soccer events plus NBA, MLB, NFL, NPB, IPL etc), was reported for copyright infringement by sports rights holder Audiovisual Sport. The company, a subsidiary of Spanish communications group PRISA (which owns Canal+, SportMania, various satellite channels, radio stations and newspapers), accused Rojadirecta of facilitating copyright infringement on various sports broadcasts by providing access to them via the Internet. [...] http://torrentfreak.com/streaming-and-bittorrent-sports-links-site-declared… ciao, juan carlos

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Joel Tenenbaum: RIAA wins $675,000, or $22,500 per song
by Irene Cassarino Aug. 1, 2009

Aug. 1, 2009

After a brief deliberation, a federal jury has ruled that PhD student Joel Tenenbaum willfully infringed on the record labels' copyrights, awarding them $675,000 in damages, $22,500 for each of the 30 songs in question. Ars reports with reaction from Tenenbaum and his attorney, Harvard Law professor Charles Nesson. http://arstechnica.com/tech-policy/news/2009/07/o-tenenbaum-riaa-wins-67500… A Boston federal jury has ordered Joel Tenenbaum to pay a total of $675,000—$22,500 per song—to the major record labels for willfully infringing 30 songs by downloading and distributing them over the KaZaA peer-to-peer network. The figure is closer to the $222,000 award in the first Jammie Thomas-Rasset trial than the $1.92 million figure from the second trial. The verdict came down at late Friday afternoon after less than three hours of deliberation. When asked about the size verdict, Tenenbaum's attorney and Harvard Law School professor Charles Nesson told Ars that "it's a bankrupting award." He also felt things might have been different had they been allowed to argue Fair Use. "We were not allowed to speak to fairness," he told Ars. "I thought we had pretty damn good arguments on Fair Use." "I'm disappointed, but not surprised, but I'm thankful that it wasn't much bigger, that it wasn't millions," Tenenbaum told Ars after the verdict was announced. We asked him if he regrets not settling earlier on in the process. "Ask me in a couple of months," Tenenbaum replied. He also told Ars that he doesn't have the ability to pay the judgment and said that he'd be filing for bankruptcy if the award stands. Although the jury found that he willfully infringed on the copyrights in question, Tenenbaum said he was "not displeased with the jury considering how the trial went." What about the fact that the damages could have been much worse, as high as $4.5 million? "That to me sends a message that [the jury] considered [my] side legitimately," he replied. He was also evasive when asked if he regrets downloading music for free. "That's really a loaded question," he replied. "There are so many things that could have been different." The RIAA was pleased with the verdict. "We are grateful for the jury’s service and their recognition of the impact of illegal downloading on the music community," the RIAA said in a statement. "We appreciate that Mr. Tenenbaum finally acknowledged that artists and music companies deserve to be paid for their work. From the beginning that’s what this case has been about. We only wish he had done so sooner rather than lie about his illegal behavior." The trial was an almost entirely one-sided affair. Plaintiffs built their case with forensic evidence collected by MediaSentry, which showed that he was sharing over 800 songs from his computer on August 10, 2004. A subsequent examination of his computer showed that Tenenbaum had used a variety of different peer-to-peer programs, from Napster to KaZaA to AudioGalaxy to iMesh, to obtain music for free, starting in 1999. And he continued to infringe, even after his father warned him in 2002 that he would get sued, even after he received a harshly-worded letter from the plaintiffs’ law firm in 2005, even after he was sued in 2007, and all the way through part of 2008. And when he took the stand on Thursday, Tenenbaum admitted it all<http://arstechnica.com/tech-policy/news/2009/07/tenenbaum-takes-the-stand-i…>, including the fact that he had “lied” in his written discovery responses and at his first deposition in September 2008. Tenenbaum’s admissions were so clear-cut, and so damning, that Judge Gertner—who had recruited Nesson to represent the formerly lawyer-less 25-year-old—took the basic issue of infringement away from the jury, determining that no reasonable jury could find for Tenenbaum on that issue. The jury of five men and five women, all white and all from the Boston suburbs, were left only to determine the issue of willfulness and damages. Tenenbaum is only the second of approximately 18,000 individuals targeted by the labels to have gone to trial, and the second to lose. In June of this year, a Minnesota jury ordered Jammie Thomas-Rasset to pay $80,000 for infringing each of 24 songs, totaling $1.92 million. Last December, the labels announced that they were no longer initiating new cases against individual peer-to-peer users. However, they said they would see through to the end those cases already in the litigation pipeline<http://arstechnica.com/tech-policy/news/2009/03/hypocrisy-or-necessity-riaa…>. According to the labels’ attorneys, there remain about 100 cases pending where the defendant has filed an answer, about a dozen of which are being actively litigated in the discovery stage. The Tenenbaum litigation was dominated by the larger-than-life personality of Tenenbaum’s counsel, Harvard Law School professor, who infuriated the plaintiffs, and at times Judge Nancy Gertner, with his unusual litigation tactics. These included making audio recordings of the attorneys and the court, and then posting the results to his blog, and publicizing internal discussions with potential expert witnesses about legal strategy. A sanctions motion against Nesson for his recording practices remains pending. Tenenbaum’s case was dismantled piece-by-piece by a series of adverse rulings over the past several months. Judge Gertner dismissed his abuse-of-process claims against the plaintiffs and the Recording Industry Association of America; excluded four of his proposed expert witnesses and limited the scope of a fifth; and, in a coup de grace delivered less than eight hours before the start of trial, barred him from arguing fair use<http://arstechnica.com/tech-policy/news/2009/07/judge-rejects-fair-use-defe…>to the jury. Judge Gertner previously announced that she will hold a post-trial proceeding to determine whether the size of the award violates the US Constitution’s guarantee of due process of the law. While no federal court has ever invalidated an award of copyright statutory damages as constitutionally excessive, the record labels’ litigation campaign has spurred arguments that the Supreme Court cases imposing limits on punitive damages should be extended to statutory damages, which may contain a punitive element. Tenenbaum filed a motion to dismiss the plaintiffs’ statutory damages claim on constitutional grounds, but Judge Gertner deferred ruling on the issue unless and until there was actually a damages award handed down by the jury.

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