Thoughts on Cert in Omega v. Costco

The recent decision by the Supreme Court to hear the case of Omega S.A. v. Costco Wholesale Corporation has raised some eyebrows in legal and library circles. At issue is the legality of “gray market” imports; goods that are manufactured outside the United States for foreign sale, often at a lower cost, that find their way back to the U.S. for sale at discount rates. Many observers had long thought that doing this with copyrighted goods was illegal, but the Court's decision to hear the case calls that into question.

The implications for libraries are uncertain, but could be severe. In order to lend books, libraries rely on two theories that arise out of copyright law. The first is fair use: a library has the right to lend books because of the type of institution they are and the character of their mission. The second theory that libraries use to lend books is the “first sale doctrine,” which states that copyright rights are limited after a good is first sold. Since some books in a library collection may be gray market books, and the origin of books can be hard to ascertain, a decision in this case could cause a good deal of uncertainty.

While it seems unlikely that the Supreme Court will so destabilize the law as we know it, their decision to hear this case is certainly interesting. However, given the closed nature of the Court's decision making process, observers will have to wait until the case is argued to get a sense of what they are thinking.

Perfect 10 v. Google on Remand

In a good, if not terribly surprising decision, the United States District Court for the Central District of California granted a partial victory to Google - this case is good news for web hosts and service providers which may include universities. It also bodes well for protections from liability provided for service providers in the Copyright Act where users of their systems engage in what might be infringing behavior (‘512 Safe Harbor’ provisions). This is not the first round between Google and P10, with Google having won several other victories against the notoriously litigious adult website. From the District Court’s summary of the case:

P10 creates and sells pictures of nude models through a now-defunct print magazine and through a password-protected subscription website. It alleges that Google—a search engine and provider of other internet services—infringes on its copyright by, among other things, linking to third-party websites that host images that infringe P10’s copyrights, caching portions of websites that host infringing images, and hosting infringing images on its own servers that have been uploaded by users of its “Blogger” service.”¹

A decent, if a bit confused, description of the conflict can be found here.

Why this is important: By applying mostly settled law, the court reaffirmed and expanded a few generally understood assumptions about the safe harbor provisions of the DMCA. In particular, the court raised the standard for a successful DMCA takedown notice (cutting down on frivolous claims of copyright infringement). Additionally, the court did not require Google to implement new methods to track “repeat infringers,” people who repeatedly post copyrighted content without permission. Furthermore, the court did reiterate that merely having infringing materials on their servers (and the capacity to delete content off those servers), was not sufficient under the DMCA to constitute “control” over that content.

1PERFECT 10, INC. v. GOOGLE, INC. CV 04-9484 AHM (SHx)

On watching the past

I'm not sure how much I like watching old classes as part of a learning experience. I have done it a few times, and overall, it seems a little problematic.

The first time I really got into watching old class footage was when I was a first year law student taking copyright law. It was an extremely tough class, and the professor made it clear that anything was fair game, since the entire class was recorded. I watched a good 6 or 7 hours of those lectures, at least. I would play them when I worked on other things, so I could listen in.

I did really well in that class, but just knowing that the resource was there made me feel like I HAD to take advantage of it, whether or not I wanted to. This was law school, so there is a competitiveness that isn't in every program, but I knew that is others were using the materials, i sure as hell had to.

Info and control is a little different, and I think it's because I'm not actually watching the classes I was in, I'm watching the classes that came before me. And I don't really like it for 2 reasons that ties into one another. I think that the professors are using it in an effort to not have to go over the material again; I can see why they would do this, but I don't like it because it presumes that the captured state of the previous discussion is the only one really worth addressing. I'm interested in what the class last year had to say about cybernetic systems. I'm not willing to accept that that's all there is to be said on the subject, or that it's not important to go over it again. Professors often say that they learn alongside the class; i take this statement with varying degrees of credulity based upon the person, but having us use a previous classes discussion to learn about the material seems to be pretty solid evidence that the professors think that they got that part nailed.

Now this can be a really GOOD thing. There's no reason to have to teach people alchemy so you can teach them physics and chemistry: sometimes precedents can be built off and then greater things can be accomplished. And I think that's what the professors are trying to do. However, I'm not sure that everyone is on the same page with this: I haven't watched every lecture, and I'm sure that everyone else hasn't , so it's not like we're building on a very solid foundation...

The Master's Tools, or, my first week in Info and Control

Chances are that if you've done any serious work on virtual worlds or in cyberlaw, you've come across Julian Dibble's article "A Rape in Cyberspace." There's a lot in that article, and while most of the comment's I've read have been directed at the nature of anonymous internet speech and the avatar/actor relationship, I've been fascinated with two things this time around: examining the way the rape was dealt with from a governance standpoint, and a t-shirt that one of the characters was wearing during the "trial" of Mr. Bungle, the attacker.

I won't get into the article itself, if you want to read it, you can find it at Julian Dibble's webpage. It's highly recommended reading if you have any interest in the interwebz, or virtual worlds, or cyberlaw; it's graphic, as the title might imply.

Anyway, back to the first point that interested me: the way that the crime was dealt with. Some time previously to the attacks, the programmers behind LambdaMOO, the word in which the crime was committed, had decided that they were no longer going to govern player activities. While formerly, the programmers, "wizards" as they were called, would take it upon themselves to adjudicate disputes, deal with disruptive players, and generally rule the virtual world. At some point, likely tired of the burden of command, they declared that the community would have to govern itself. In the words of the arch wizard Haakon, "LambdaMOO would just have to grow up and solve its problems on its own."

This was a controversial idea, but one which the community seemed willing to accept. And things seemed to be working. When Mr. Bungle was brought before the community to face sanctions for his actions, there was a spirited debate as to what his fate should be. When the community finally finished talking, it appeared that Mr. Bungle was going to be spared; whatever rage his actions has bred, it was spent, and he was spared exile.

That is, until one of the wizards decided to act unilaterally and zap him.

Now, toading, the name for removing a player from the world, was not an outrageous punishment for someone like Mr. Bungle. But it was outrageous from a governance standpoint. Toading Mr. B was like the government deciding to execute someone after a jury had found them not guilty. While it wasn't really that big of a deal, as nobody was killed, and the person behind Mr. B soon came back as another avatar, it does show how tricky governance can be when there are individuals with such a monopoly on power that they can do such a thing.

The second point of interest, which does, to some degree, relate to the first point, was this awesome shirt someone was wearing. It said, "Even if you can't tear down the master's house with the master's tools, it's a hell of a place to start." I want that shirt. I've been thinking about it for days now.