I will be speaking about the ongoing  Aereo litigation tomorrow at the Northwestern Journal of Technology and Intellectual Property’s Annual Symposium.

On April 22nd the Supreme Court will hear arguments as to whether a company “publicly performs” a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet. My view is that this case should not be about public performance. The court in Cablevision got that one right, no other reading of the Copyright Act makes sense.

The Supreme Court should hold that a single aerial (or N aerials) that copy and transmit at an N:N ratio is not 1 performance to N people, it is N performances to N people and thus not “public”.

This does not mean Aereo is off the hook. Cablevision’s device is consistent with the Supreme Court’s Sony Betamax decision from 1984: copying made possible by a remote-dvr is  fair use. However, to the extent the Aereo system is designed to offer what is, in effect, live or almost live ‘rebroadcast’ beyond the authorized reception range of the original broadcast it may not be fair use. This is an open question, but the Supreme Court can’t decide it because it has not been briefed on the issue.

Whether a company “publicly performs” a copyrighted television program when it retransmits a broadcast is not the right question. Critics of Cablevision seem to think that if there is no public performance right for an R-DVR, then there is no tolling point at which creators get paid. But avoiding public performance does not avoid the initial broadcast or copying.

I have some slides that go into this in a bit more detail. Comments welcome.

Jason Schultz, Brian Love, Jim Bessen and Mike Meurer have put together an excellent “Brief of Amici Curiae Law, Business, and Economics Scholars” in Alice Corp. v. CLS Bank, a case about to be argued before the US Supreme Court.

I signed this brief because I believe that the experience of the last 20 years shows that extending patent protection to abstract ideas and software functions does far more to impede innovation than it does to encourage it.

The U.S. Court of Appeals for the Federal Circuit has expanded the scope of patentable subject matter for abstract ideas over the last 20 years (see, In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994) and State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998)). This expansion has lead to an explosion of software patenting and software patent litigation. Abstract patent claims award rights beyond the scope of actual invention, their boundaries are unclear, they don’t provide notice to third parties  and, for all these reasons, they invite opportunistic litigation.

(See U.S. Gov’t Accountability Office, GAO-13-465, Intellectual Property: Assessing Factors That Affect Patent Infringement Litigation Could Help Improve Patent Quality 13 (2013), available at http://1.usa.gov/1gatCRr)

The Supreme Court granted cert in this case to decide “Whether claims to computer-implemented inventions—including claims to systems and machines, processes, and items of manufacture—are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101.” I expect the court to rule computer software is patent eligible, but that patent examiners should reject over-broad software patent claims on the basis of lack of patentable subject matter. As the divisions in the Federal Circuit’s en band decision show, it won’t be easy to develop a standard to determine whether a computer-implemented invention is a patent-ineligible, abstract idea.

The Brief Amicus Curiae Of Intellectual Property Scholars in Dish Network L.L.C., v. American Broadcasting Companies, Inc., Et. Al has just been filed. The case is on appeal from the U.S. District Court for the Southern District of New York. Shubha Ghosh (U. Wisconsin Law School) wrote the brief and several IP academics signed it because we are concerned that

“ABC’s interpretation of copyright law would undermine longstanding fair use precedent. We urge the Court to reject ABC’s attempt to render Sony obsolete and re-litigate the public’s interest in making fair use copies with the aid of time-shifting technology.”

This case is  significant because it will affect the future of private noncommercial time-shifting of television programs – a fair use right expressly recognized by the Supreme Court in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). Our view, expressed in the brief is that the

“advancement of technology from the videotape recorder (“VTR”) to the videocassette recorder (“VCR”) considered in Sony, to today’s digital video recorder (“DVR”) and the technological enhancements of the DVR has not – nor should it – affect the scope of protection expressly recognized in Sony.”

Download the brief here: Paginated Brief Amicus Curiae of Intellectual Property Scholars filed 1_29_14 [D155]

When Matthew Jockers, Jason Shultz and I were writing the Digital Humanities Amicus Briefs relating to the Google Books and HathiTrust cases, we searched for an illustration that would concisely explain why data mining expressive works was (a)  socially valuable and (b)  no threat to the copyright interests of the authors of the underlying works. We came across a graph produced using the Google n-gram tool that perfectly fit the bill. The graph below was part of the Digital Humanities Amicus Brief in both the HathiTrust and Google Books cases.

I have noticed over the years that whenever someone puts together a bio page for me in relation to a talk or a conference presentation that they tend to grab just any old photo from the Internet. Quite frankly, some of these photographs a more flattering than others. Most of them are not as good as the selfy I took on my iPhone this morning.  Photos from 10 years ago might be considered too flattering in terms of hairline.

Perhaps with some strategic tagging and linking I can get this to the top of the Google search engine.

Photo of Prof. Matthew Sag 2013

I also have a full bio page at https://matthewsag.com/bio/ which contains all sorts of useful information.

Ivan was a large and brilliant man, the world feels like a smaller place without him. Ivan loved to drink, he loved to eat, he loved ideas, he loved his wife and he loved his friends. We loved him right back.

Ivan made significant contributions to the fields of syntax, semantics, pragmatics, and language processing. He wrote at least 10 books and over 100 articles. Ivan was the Sadie Dernham Patek Professor in Humanities, Professor of Linguistics, and Director of the Symbolic Systems Program at Stanford University. A fellow of the American Academy of Arts and Sciences and the Linguistic Society of America, in 2005 he received the LSA’s Fromkin Prize for distinguished contributions to the field of linguistics. All of which is to say that he was a brilliant wonderful man who I proudly call my uncle (even though he is in fact my first cousin, once removed). He will be missed.

A true scientist, Ivan was proud to live and die as an atheist.

I will be running my very first marathon in October this year in Chicago. In connection with the marathon, I am raising money for the American Cancer Society. Almost all of us know someone who has suffered from cancer. There are many fine charities to support. I choose to support the American Cancer Society because they fund a range of research, patient services, early detection, treatment and education programs and because they seem like good people.

If you donate $10 or more, I will add any song of your choosing to my Marathon playlist. So far the selected songs are:

• Jingle Bells;
• The Night Chicago Died by Paper Lace;
• Shout to the Top’ by Style Council;
• Dies Irae from Mozart’s Requiem;
• Waltzing Matilda;
• We Built This City” by Starship;
• “Born to Run” by Bruce Springsteen;
• “We are Never Getting Back Together” by Taylor Swift
• Give Up The Funk by Parliament
• …

The recent lawsuit in the UK where Ministry of Sound is suing Spotify for allowing users to recreate MOS compilations using spotify playlists makes me wonder whether I have any copyright in the playlist that results from my fundraising.

Actually, that was just a pretense to (a) blog about the fact that I am running the Marathon and (b) suggest that if you made it this far into the post, you should donate some money to help fight cancer.

IPSC 2013 (Matthew Sag)

Recent proposals to address library digitization through variations of compulsory licensing raise some important questions about the justification for compulsory licenses, the institutional design considerations that should go into any compulsory license regime and the relationship between fair use and compulsory licensing. For the most part, compulsory licenses are no substitute for fair use. Although fair use can be explained in terms of ‘market failure’ in the most abstract sense, in practice most fair uses are not simply the result of high cost of transacting, or if they are, these are not the kinds of transaction costs that can be resolved by a one-size-fits-all compulsory license. Compulsory licenses can be socially beneficial in theory, but they can be extremely problematic to administer in practice. A good compulsory license system may be an effective complement to fair use, but the case for crowding out fair use with compulsory licenses is weak.

In this presentation I explain six important institutional design considerations that must be addressed before anyone can seriously advocate establishing a copyright collective by legislative fiat.

Institutional Design Issues

• Rate-Setting {who decides? what decision standard? how does the decision-maker get reliable information?}
• Monopoly Pricing
• Principal-Agent Problems
• Mission Creep
• Stifling Innovation
• Overshadowing other policy imperatives

No one prints email anymore! Or, if they do it isn’t because they need ten additional lines of clutter giving them the same information over and over again.

I realized the other day that my email signature was taking up about ten lines of text. This is ugly and stupidly inefficient. I solved this problem by creating hyperlinks that tell people everything they need to know or point them where to find it out.

There is no reason why the link to my ssrn working papers has to say “http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=461043” it just needs to point there.
An easy way to do this is by creating the links in a draft email. 

Then cut and paste that into your email signature and format according to taste.

This Amicus Brief was filed in the United States Court of Appeal for the Second Circuit in the case of Authors Guild v. Hathitrust on June 4, 2013. The case is on Appeal from the United States District Court for the Southern District of New York, No. 11 CV 6351 (Baer, J.)

Download from SSRN.com (http://ssrn.com/abstract=2274832)

a brief summary

Amici are over 100 professors and scholars who teach, write, and research in computer science, the digital humanities, linguistics or law, and two associations that represent Digital Humanities scholars generally.

Mass digitization, especially by libraries, is a key enabler of socially valuable computational and statistical research (often called “data mining” or “text mining”). While the practice of data mining has been used for several decades in traditional scientific disciplines such as astrophysics and in social sciences like economics, it has only recently become technologically and economically feasible within the humanities. This has led to a revolution, dubbed “Digital Humanities,” ranging across subjects like literature and linguistics to history and philosophy. New scholarly endeavors enabled by Digital Humanities advancements are still in their infancy but have enormous potential to contribute to our collective understanding of the cultural, political, and economic relationships among various collections (or corpora) of works—including copyrighted works—and with society.

The Court’s ruling in this case on the legality of mass digitization could dramatically affect the future of work in the Digital Humanities. The Amici argue that the Court should affirm the decision of the district court below that library digitization for the purpose of text mining and similar non-expressive uses present no legally cognizable conflict with the statutory rights or interests of the copyright holders. Where, as here, the output of a database—i.e., the data it produces and displays—is noninfringing, this Court should find that the creation and operation of the database itself is likewise noninfringing. The copying required to convert paper library books into a searchable digital database is properly considered a “non-expressive use” because the works are copied for reasons unrelated to their protectable expressive qualities — the copies are intermediate and, as far as is relevant here, unread.

The mass digitization of books for text-mining purposes is a form of incidental or “intermediate” copying that enables ultimately non-expressive, non-infringing, and socially beneficial uses without unduly treading on any expressive—i.e., legally cognizable—uses of the works. The Court should find such copying to be fair use.