Four Internet Fables:
- The internet will destroy big companies.
- On the internet nobody knows you’re a dog.
- The internet will eliminate middlemen.
- The Internet will make the world flat/spells the “death of distance”.
Four Internet Fables:
Copyright Lawsuits Filed in U.S. Federal Courts 2001 – 2014
This graphs is from my forthcoming article, Copyright Trolling, An Empirical Study. The graph illustrates the effect of two separate waves of John Doe litigation. The first wave was the recording industry’s battle with filesharing technology from 2004 through 2008. The second wave began in 2010 and continues through to the present and is dominated to a remarkable degree by lawsuits relating to pornography.
There is an article in the New Yorker Online today about this phenomenon with a a closeup view of one the major plaintiffs, Malibu Media, see THE BIGGEST FILER OF COPYRIGHT LAWSUITS? THIS EROTICA WEB SITE, BY GABE FRIEDMAN . Well worth a read.
In a post on Friday I mentioned that in 2012, businesses and individuals targeted by patent aggregators and patent holding companies accounted for fifty-six percent of all patent defendants. That number should actually be 37.8% of all patent defendants.
There are estimates of even higher numbers, see Colleen Chien, Patent Trolls by the Numbers reporting RPX’s estimate that PAEs initiated 62% of all patent litigation suits in 2012. However, it is not exactly clear how RPX determines who is and is not a patent troll. Also RPX is in the business of providing “patent risk management services”, so it is not exactly a disinterested bystander in the patent troll debate.
Christopher A. Cotropia, Jay P. Kesan & David L. Schwartz, Unpacking Patent Assertion Entities (PAEs) have provided some great data on this issue – but it still needs to be read carefully to understand what it means.
Figure 3 of that paper reports patent litigation numbers in terms of the number of individual defendants sued.
On this metric:
Cotropia, Kesan & Schwartz round out this picture by reporting the numbers for universities & colleges, individuals & family trusts, failed operating companies & failed start-ups, and technology development companies. Some of these suits may be troll litigation, but without case specific information it is hard to tell.
Due to the level of interest in Garcia v. Google, the Ninth Circuit has a dedicated page providing information and key court documents to the public.
I have listed the Amicus briefs along with very cursory descriptions below. The briefs are all quite short.
Internet Law Professors — addressing the implications of the Court’s decision for Section 230 of the Communications Decency Act. Section 230 is vital to the health of e-commerce and web 2.0 businesses, it provides the legal foundation for many of the most popular websites that enable users to communicate with each other or the world at large. The panel’s broad interpretation of copyright law undermines Section 230 immunity without even expressly considering it. * I am one of the Amici for this brief.
Professors of Intellectual Property Law — arguing that the Court’s opinion misinterprets the baseline requirements for copyrightability. ** This is the brief to read for students of copyright law.
Adobe Systems, et al. It is not surprising that eBay, Facebook, Gawker, Kickstarter, Pinterest, Tumblr, Twitter, and Yahoo! would feel strongly about this case. These amici argue that the Court’s decision and order places too much responsibility on service providers to monitor their services and denies the public’s interest in free expression and access to information. They also argue that the Court’s order is unworkable and that the ruling poses a serious threat to online service providers’ businesses.
Netflix, Inc. — arguing that that the ruling creates a new species of copyright and risks wreaking havoc with established copyright and business rules on which third party distributors, such as Netflix, depend.
International Documentary Ass’n — arguing that the Court’s opinion has created uncertainty as to several fundamental concepts that are essential to modern filmmaking.
Floor64 (publisher of Techdirt.com) & Organization for Transformative Works —arguing that the Court’s decision undermines Congress’s goal of fostering online speech by effectively stripping intermediaries of the statutory protection they depend on to deliver it — i.e. the safe harbors created by the § 230 of the Communications Decency Act and the Digital Millennium Copyright Act (17 U.S.C. § 512).)
California Broadcasters — arguing that a finding that individual performances within films and television programs may be entitled to copyright protection creates uncertainly for entertainment media creators and distributors.
News Organizations — arguing that the Court’s decision did not properly consider important First Amendment interests and that it poses serious risk to news organizations that extend far beyond the unique facts of the case at hand.
Electronic Frontier Foundation, et al. — framing the issues in Constitutional terms and addressing the standard for preliminary injunctions.
Public Citizen Litigation Group — focusing on the correct standard for issuing an injunction restraining speech.
This amicus brief was written by David Post and James Grimmelmann on behalf of 36 law professors in the pending case of ABC v Aereo, now before the Supreme Court (oral argument set for April 22, 2014).
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For more details see Copyright Trolling, An Empirical Study (this is still the version posted last week, a new version with additional data will be out soon).
American Broadcasting Companies, Inc. v. Aereo, Inc., is a case scheduled for oral argument before the Supreme Court next month. The case gives us an interesting opportunity to reassess the oft-stated aim that copyright law should be technologically neutral.
Aereo offers consumers the ability to watch live free-to-air broadcast television via the Internet with the ability to pause, rewind and fast-forward programming. Aereo provides this service by receiving free-to-air broadcast television on a vast array of micro-antennae, each antenna being dedicated to an individual subscriber. The signals so received are reduced to individual copies of individual programs. These copies are then transmitted to individual subscribers, either virtually live or at some later time. See WNET, THIRTEEN v. Aereo, Inc., 712 F. 3d 676, 680-683 (2d Cir. 2013).
If technological neutrality is a question of the effect of a given technology, then Aereo is, in effect, the same as retransmission system and thus a public performance. But if technologically neutrality is a question of function, then Aereo is a remote DVR + one-to-one performances. It is thus a copying system and not the originator of public performances.
Judge Chin’s dissenting opinion takes an effect-based perspective and argues that regardless of how the Aereo system actually works:
Aereo’s “technology platform” is, however, a sham. The system … is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.
The Copyright Act aims for neutrality in that the public performance right in 17 U.S.C. § 106(4) is defined to include the right “to transmit or otherwise communicate a performance… to the public, by means of any device or process.” Id. § 101. But the problem with Chin’s dissent is that the “by means of any device or process” language does not mean that non-public transmissions are rendered into public transmissions simply because they have the same effect as technology we recognize as implicating the public performance right.
An effect-based vision of technological neutrality flatly contradicts the basic structure of rights under the Copyright Act. The Copyright Act defines the rights of copyright owners with respect to six particular acts–thus, for example, reproducing a copyrighted novel without permission or justification is infringement, reading a copyrighted novel is not. 17 U.S.C. §106(1)-(6).
There are many reasons why we should not disregard the technical details of a system like Aereo’s, but perhaps the most important one is simply that transforming effects into functions is not necessary. Aereo has indeed designed its system to avoid making public performances, but it has done this by adding thousands of individual copies. We should not feel the need to label every performance from a copy as a public performance given that the copyright owner also has an exclusive right to reproduce the work in copies.
This post is a reaction to Brad Greenberg’s presentation on the issue of technological neutrality in copyright at the Fourth Internet Law Scholars Work-in-Progress Symposium.
The fourth annual work-in-progress symposium for internet law scholarship will be held at the Institute for Information Law and Policy at New York Law School on Saturday March 8, 2014 at .
The work-in-progress event was created for internet law scholars to receive feedback about their papers and projects from their academic peers. This year some of the nation’s leading internet law academics will convened at New York Law School to present serious papers under the following whimsical headings:
Dan Hunter (Distinguished Visiting Professor of Law, New York Law School and Professor of Intellectual Property and Innovation, QUT Law School, Australia) deserves all credit/blame for the above.