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A billion-dollar judgment in a piracy lawsuit involving a major Internet service provider could force ISPs to terminate more customer accounts and "punish the innocent and guilty alike," advocacy groups have warned. Urging an appeals court to overturn the ruling, the groups wrote that "upholding this verdict would result in innocent and vulnerable users losing essential Internet access." //
"In going after Internet service providers for the actions of just a few of their users, Sony Music, other major record labels, and music publishing companies have found a way to cut people off of the Internet based on mere accusations of copyright infringement," the EFF wrote in a blog post announcing the filing. "When these music companies sued Cox Communications, an ISP, the court got the law wrong. It effectively decided that the only way for an ISP to avoid being liable for infringement by its users is to terminate a household or business's account after a small number of accusations—perhaps only two. The court also allowed a damages formula that can lead to nearly unlimited damages, with no relationship to any actual harm suffered. If not overturned, this decision will lead to an untold number of people losing vital Internet access as ISPs start to cut off more and more customers to avoid massive damages."
A jury ruled in December 2019 that Cox must pay $1 billion in damages to the major record labels. Sony, Universal, and Warner had sued the cable ISP in 2018 in US District Court for the Eastern District of Virginia. A district judge upheld the verdict in January 2021, approving the $1 billion judgment and paving the way for to Cox appeal to the 4th Circuit. //
Given this reality, the stakes of this case for Internet users are enormous. The district court's judgment and the jury's damage award in this case are founded on fundamental errors of law that, if affirmed, will force ISPs to terminate more subscribers with less justification or risk staggering liability. First, the judgment relies on unwarranted extensions of copyright's two "secondary liability" doctrines, which will encourage ISPs to terminate subscribers when more proportionate means of addressing infringement exist. Second, the staggering and poorly justified $1,000,000,000 award of statutory damages against Cox thwarts basic principles of due process and the public interest. //
Previous court decisions set important limits that were disregarded by the district court in the Cox case, the group argued:
First, vicarious liability requires proof of direct financial benefit to the defendant from another's copyright infringement. But since all subscribers (including infringers) pay a monthly fee for Internet access, courts have agreed that an ISP's receipt of such fees is not sufficient to meet this burden. Instead, the plaintiff must show in addition that the customer was "drawn" to use the defendant's Internet service (as opposed to any other Internet service) because of the availability of infringing copies of the plaintiff's works.
Second, because infringement occurs on all Internet networks, this Court, in BMG [see BMG Rights Management v. Cox Communications], refused to impose contributory liability on an ISP simply because it had generalized knowledge that some customers will use the ISP's Internet service to infringe. Instead, contributory liability can be imposed only where an ISP knows of (or willfully blinds itself to) specific acts of infringement by particular subscribers and also knows "that infringement is substantially certain to result from [its] continued provision of Internet access to particular subscribers."
The district court disregarded these critical limitations, sustaining vicarious liability even though there was no proof that infringers were specifically "drawn" to the Cox service, and finding on summary judgment that as a matter of law, Cox had the knowledge necessary to contributory liability solely from receiving the plaintiffs' DMCA notices. It refused to submit the knowledge issue to the jury despite Cox's showing evidence that some of [the] DMCA notices were false and that Cox could not be substantially certain of future infringement by subscribers named in the notices.
For years, the GCC and the FSF were connected at the hip, but after Richard M. Stallman's return to the FSF board, the GCC steering committee had enough.
A U.K. company behind digital addressing system What3Words has sent a legal threat to a security researcher for offering to share an open-source software project with other researchers, which What3Words claims violate its copyright.
Apple is facing two class-action lawsuits over the meaning of the words “rent” and “buy.”
In the first suit, lead plaintiff David Andino argues that Apple’s definition of the two words is deceptive since the company can terminate people’s Apple IDs and, along with them, access to content they purchased using the “buy” button. Thus, Andino is arguing that Apple allows consumers to rent content rather than purchase it outright. If he had known that his access could be cut off at any time, he says he would have not spent as much on iTunes content.
Just like Best Buy cannot come into a person’s home to repossess the movie DVD that such person purchased from it, [Apple] should not be able to remove digital content from its customers’ Purchased folders,” the suit says.
Apple countered by arguing that “no reasonable consumer would believe” that content purchased through iTunes would be available on the platform indefinitely. But US District Court Judge John Mendez wasn’t buying it, as first noticed by the Hollywood Reporter. He rejected a motion filed by Apple that sought to dismiss the suit. That means the suit can move forward with its claims of false advertising and unfair competition, though it could still be settled before going to trial.
Apple is also up against a second class-action suit related to terminating Apple IDs. In this one, lead plaintiff Matthew Price claims he lost $24,590.05 in iTunes, the App Store, and in-app purchases, along with $7.63 in account credit, which became inaccessible when Apple terminated his account. Price’s lawsuit was filed on Tuesday.
Price’s $25,000 worth of purchases is perhaps an extreme example of what many consumers may encounter when they buy content on digital platforms, only to find it unavailable when their accounts are suspended or terminated. At issue is whether digital content available through various platforms is truly owned by individuals if the platform owner can prevent them from accessing it in the future.
Amazon is defending itself against a similar lawsuit filed last April by people who claim the company falsely advertised that they would have unlimited access to content purchased through Prime Video. They are concerned that Amazon “secretly reserves the right to terminate the consumers’ access and use of the Video Content at any time,” the suit claims.
Quote:
Apple countered by arguing that “no reasonable consumer would believe” that content purchased through iTunes would be available on the platform indefinitely.
Amazing just how very many of us are unreasonable, isn't it?
If "no reasonable consumer would believe..." then shouldn't Apple be happy to have a jury verdict on it? Should be easy to have 12 "reasonable" jurists. //
I have friends who think I am silly to buy Bluray movies and rip them to my personal NAS that has redundancy. I just don't trust these companies to do right by me in the slightest. //
If this results in a digital version of the Doctrine of First Sale I will be dancing in the streets. This whole "you only license anything digital" thing has been a naked power grab from the start and the courts should never have gone along.
malor Ars Tribunus Angusticlavius et Subscriptor
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I think it's important to point out that this case covers only one kind of API, a direct programming API where you're incorporating libraries into your main program. Because of the rules of most computer languages, this means that the header files and user-written program files have to look almost exactly the same in the function definition and call location. If they don't, it won't work. If you're trying to call the C standard library printf(), and you call it as printg(), ain't nothing gonna happen.
Thus, any programmer providing a replacment printf(), if he or she wants it to work with existing code, must generate a printf() header in their library that will look pretty much exactly like every other printf() in every other C standard library. It doesn't mean they copied it, it means that there's only one possible way to express that idea. Thus, a reimplemented library of any kind will, by necessity, have a duplicate line for each function. If it doesn't, it won't work as a drop-in replacement.
However, many other APIs are network-based. It seems unlikely to me that copyright would ever apply there, because each provider of an API will be able to write their own code. There might be a few lines of identical source, but for the most part, the code base will be very different. Both Apache and nginx, for instance, support the http API, but there probably isn't much duplicate code between the two projects. Either can be used as a webserver, but it will be instantly apparent that each is a unique creation.
And then compare those with a hypothetical web server written in, say, Rust..... the new codebase would look absolutely nothing like its predecessors. Copyright protection would even more clearly not apply.
API is not a well-defined term, and I think the Supreme Court probably got this exactly right.... this type of API infringement is not covered under copyright, because it's functional. This is the only kind of API infringement where copyright is likely to apply, so a clear decision that it does not will probably put a stake in the whole idea. Almost any other kind of API 'infringement' would obviously not be a copyright matter.
Google did not infringe Oracle’s copyright when it used that company’s programming code in the Android cellphone operating system, the Supreme Court ruled this morning overturning a lower court ruling that favored Oracle.
Oracle had been seeking an estimated $9 billion in damages in the decade-old litigation between the tech companies that could have changed the rules of the road for the software industry.
Justice Stephen Breyer wrote the 6-2 decision for the high court in Google LLC v. Oracle America Inc., court file 18-956. The case came to the court on appeal from the U.S. Court of Appeals for the Federal Circuit.
Justice Clarence Thomas filed a dissenting opinion that Justice Samuel Alito joined. Justice Amy Coney Barrett did not participate in the case. She was not yet a member of the court when the case was heard telephonically Oct. 7, 2020.
As we feared, the “Copyright Alternative in Small-Claims Enforcement Act”—the CASE Act—that we’ve been fighting in various forms for two years has been included in a "must-pass" spending bill. This new legislation means Internet users could face up to $30,000 in penalties for sharing a meme or making a video, with liability determined not by neutral judges but by biased bureaucrats.
This hodgepodge of product-specific exemptions is the result of a process that is biased against tech users. Having to go to the Copyright Office every three years, hat in hand, to ask for permission to simply fix our stuff is infuriating. Congress thinks so, too, and Rep. Zoe Lofgren (D-Calif.) has repeatedly introduced legislation that would grant a permanent exemption to Section 1201 for activities like repair that don’t otherwise violate copyright law. //
Microsoft and Sony are being irresponsible,” he told me. “It’s irresponsible that they make consoles with a part that could be easily replaced so difficult to [repair]. You could prevent all the waste once the drives go bad. We end up with all these boxes just recycled and trashed.”
On Wednesday, the Supreme Court will hear oral arguments in Oracle v. Google, a landmark case that considers whether application-programming interfaces can be protected by copyright. We first published this article about the case in early 2019, when Google asked the Supreme Court to consider the case. It has been edited to reflect the fact that oral arguments are this week.
When Oracle sued Google over Android, many assumed the database giant would target code Google lifted from the Apache Foundation's open source Java incarnation, Project Harmony. But Oracle just pinpointed six pages of Google code, claiming they were "directly copied" from copyrighted Oracle material, and according to Apache, this code is not part of Harmony.
"Recent reports on various blogs have attributed to the ASF a number of the source files identified by Oracle as ones that they believe infringe on their copyrights," the Foundation says in a Friday blog post. "Even though the code in question has an Apache license, it is not part of Harmony."
Lawyers defending Google (NSDQ: GOOG) against a patent and copyright lawsuit brought by Oracle are trying desperately to keep a particular engineer’s e-mail out of the public eye-but it looks like they’re unlikely to succeed.
The e-mail, from Google engineer Tim Lindholm to the head of Google’s Android division, Andy Rubin, recommends that Google negotiate for a license to Java rather than pick an alternative system.
The key portion of the email was read aloud from the bench by U.S. District Judge William Alsup during a July 21 hearing. The second paragraph of the email reads: “What we’ve actually been asked to do by Larry [Page] and Sergey [Brin] is to investigate what technical alternatives exist to Java for Android and Chrome. We’ve been over a bunch of these and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need.” //
Now Google is taking action to have that email, and Alsup’s reference to it in his order, thrown out of the public record. In a letter dated July 28, Van Nest wrote to Alsup, explaining that Google had handed over the email (which was actually a draft) inadvertently, and then later realized the email was subject to attorney-client privilege and never should have been disclosed. Oracle’s disclosure of the document was “improper,” argued Van Nest, and the email never should have been made public.
Universal Forfeit License (UFL)
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Online library asks publishers to “call off their costly assault.”
Google v. Oracle America:
“(A) current legal case within the United States related to the nature of computer code and copyright law.
“The dispute centers on the use of parts of the Java programming language’s application programming interfaces (APIs), which are owned by Oracle, within early versions of the Android operating system by Google.
“Google has admitted to using the APIs…but argues their original use of the APIs was within fair use.”
Welcome to the U.S. Copyright Office Fair Use Index. This Fair Use Index is a project undertaken by the Office of the Register in support of the 2013 Joint Strategic Plan on Intellectual Property Enforcement of the Office of the Intellectual Property Enforcement Coordinator (IPEC). Fair use is a longstanding and vital aspect of American copyright law. The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, internet/digitization, parody).
The Fair Use Index tracks a variety of judicial decisions to help both lawyers and non-lawyers better understand the types of uses courts have previously determined to be fair—or not fair. The decisions span multiple federal jurisdictions, including the U.S. Supreme Court, circuit courts of appeal, and district courts. Please note that while the Index incorporates a broad selection of cases, it does not include all judicial opinions on fair use. The Copyright Office will update and expand the Index periodically.
A videographer spent two decades documenting the salvage of the Queen Anne's Revenge, and when North Carolina put his work online without permission, he sued. //
Ruling unanimously in favor of states' rights on Monday, the U.S. Supreme Court said that a videographer who spent two decades documenting the salvaging of Blackbeard's ship cannot sue the state of North Carolina in federal court for using his videos without his permission. //
Writing for the Court, Justice Elena Kagan pointed to several precedents over the past 26 years in which the justices have barred such lawsuits. True, she said, Congress had explicitly and clearly enacted legislation allowing such federal lawsuits. But that legislation was enacted before the Supreme Court had begun reading the 11th Amendment to bar such suits.
Mainly, though, the court's opinion was couched in terms of deference to precedent--namely in this case, the precedents of the last 26 years. "To reverse a decision, we demand a special justification over and above the belief that the precedent was wrongly decided," Kagan wrote. "And Allen offers us nothing special at all." //
Although the decision was unanimous, there were two concurring opinions. Justice Clarence Thomas refused to join those sections dealing with deference to precedent. And Justice Stephen Breyer, joined by Ruth Bader Ginburg, joined "in the judgment." //
Breyer had a little fun at Kagan's expense, declaring that in his view, under the Constitution Congress may, as it did in this case, require states that "have pirated intellectual property...to pay for what they have plundered. "
Non-judgmental guidance on choosing a license for your open source project
Learn what open source licenses are, which one to choose, and why it matters.
It’s preparing to rewrite one of the internet’s central laws
On September 10, the House Judiciary Committee reported the Manager’s Amendment to the Small-Claims Enforcement (CASE) Act (H.R. 2426) favorably out of the Committee by a voice vote. In a press release issued following the markup, Rep. Hakeem Jeffries (D-NY) called the establishment of a Copyright Claims Board “critical for the creative middle class.” He stated that the CASE Act “will enable creators to enforce copyright protected content in a fair, timely and affordable manner,” and called the legislation a “strong step in the right direction.” Ranking Member Doug Collins (R-GA) said that the CASE Act is “common sense legislation” that would provide small creators with affordable legal resources to combat copyright theft and lauded the leadership of Rep. Jeffries in drafting this bill and achieving bipartisan support for it.