Drew (tentatively) acquitted in MySpace suicide case

A federal judge today tentatively acquitted Lori Drew, the Missouri woman convicted for her involvement in the MySpace “cyberbullying” hoax that allegedly resulted in a young girl’s suicide.  If it sticks, the acquittal will help reverse the momentous change in online liability that Drew’s earlier guilty verdict threatened to set in motion.

Last November, a jury convicted Drew of three misdemeanor violations of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, which is essentially an anti-hacking law.  Commentors widely criticized the convictions, as the case’s logic seemed to criminalize any violation of a website’s Terms of Service (see Marc’s Satyricon post, CMLP, Threat Level, and numerous links therein).

As Judge George Wu pointed out in announcing his tenative decision, such a result is probably unconstitutional.  Terms of Service include an infinite variety of provisions — most of which have little bearing on criminal acts — and few web users ever read them.

Stripped of the emotionally charged facts regarding the fraud and suicide, Drew’s crime was nothing other than failing to submit “truthful and accurate” registration information when creating a MySpace profile.  She would have been no less liable for misstating her height.

Note that the acquittal will not take effect until Judge Wu issues a written decision.  Until then, keep an eye out for the flood of commentary that will no doubt arise regarding the issue.

Copyright Office hearings at Stanford will consider DVD clipping

The US Copyright Office will hold hearings at Stanford University this Friday, May 1, to consider possible exemptions to the DMCA’s prohibition on circumventing technological protection measures.  One exemption, proposed by the EFF, would allow artists to copy snippets of DVDs to make new works that would qualify for fair use.

For the uninitiated, the DMCA is a US copyright law that focuses on digital technology.  Among other things, the DMCA prevents individuals from finding ways to get around copyright protection technology — for instance, the technological measures built into DVDs that prevent users from copying them.

It’d be nice if the Copyright Office gave the issue serious consideration.  The movie industry takes the position that ripping DVDs is copyright infringement no matter the purpose.  This can’t be a correct interpretation of copyright law, because if so the DMCA would allow copyright owners to effectively excise fair use by installing strong anti-copying protection.

If there is no legal means of copying copyrighted works then no one can use them to create new works.  As the EFF notes, that would have serious implications for the thriving “remix culture” evidenced by the sheer volume and popularity of works appearing on YouTube and social media sites.

Battle over DVD backup copies

The law hasn’t decided yet whether consumers have a right to make backup copies of DVDs, even though the right to make backup copies of CDs is well established.  That could start to change today, as trial is set to begin in a District of Northern California case involving RealNetworks’ DVD backup software “RealDVD.”

One would think that RealNetworks has a good shot at winning the right to distribute its backup software.  CD owners have long been able to make noncommercial copies of their music for backup purposes.  The CD-copying right comes to some extent from statute — Audio Home Recording Act — but it has survived numerous challenges by the recording industry seeking to supercede the statutory protections.  This is partly because making single backup copies arguably counts as fair use and therefore does not qualify as copyright infringement.

Theoretically the public policy argument in favor of allowing backup copies is the same for both mediums: consumers have a right to protect their investment in movies, just as their have a right to protect their investment in music.  DVDs, like CDs, can be ruined in an instant with no fault from the owner, and the consumer has a right to access the content they paid for.

The other side of the argument is that legal DVD-copying software promotes piracy.  Another is that consumers don’t have a right to protect their investment in DVDs — if they break it they have to buy another one, like they do with most products.

The difference-maker here could be that RealNetworks’ software contains significant anti-piracy protections.  It allows a user to make only one backup copy of a DVD and prevents the user from sharing the copy with others.  Movie companies won’t be satisfied with those protections, given the ease with which they can be circumvented by computer experts, but they could be enough to win the legal battle.

Whatever happened to playing fair?

Matthew C. Sanchez

By Matthew Sanchez

A few recent intellectual property disputes have highlighted the fact that the decision to pursue legal action is both a legal and a moral choice.  While concepts such as “fair use” help to ensure protection of both intellectual property rights while promoting creative expression, they can’t replace a simple concept we all learned in kindergarten:  “treat others the way you’d like them to treat you.”

A couple of days ago, New York TV news station CW 11 convinced YouTube to take down a video from prank group Improv Everywhere that copied part of a CW 11 newscast.  The twist as that the CW 11 newscast itself copied an earlier Improv video to unintentionally hilarious effect.

In the original Improv video, the troupe hijacked a staged funeral as an April Fools Day prank on viewers and passers-by.  CW 11 reported the hijacking as a real prank on real funeral-goers that might have gone too far.  The newscasters missed the fact that the prank wasn’t on the fake funeral-goers but, instead, on those who believed the video was real.

Judged solely on the legal merits, CW 11 might have the (slight) upper hand on the competing questions of infringement.  CW 11 used only snippets of the Improv video and added news commentary, while Improv seems to have simply lifted a portion of CW 11 broadcast and uploaded it as is.  Its arguable whether Improv has a fair use argument:  the group does have in its favor that the use was noncommercial and it put the clip in wildly different context — that is, exposing CW 11’s blunder.

Regardless of the legal merits, there is no reason for copyright law to be involved here.  CW 11 borrowed from Improv, and Improv then borrowed from CW 11.  Both created expression that would not have been possible otherwise.  If not for this needless legal dispute, we would all win.

A even more disappointing recent example comes from “fair use” darling Shepard Fairey.  For those who haven’t been following along, he’s the defendant in the Associated Press’ big copyright flap over the Obama “HOPE” poster.

Last month, Fairey’s company Obey Giant Art Inc. alleged trademark violations in a cease-and-desist letter to Larkin Werner, a Pittsburgh Steelers fan who created a character that plays off of Fairey’s “Obey” images.  Dubbed “Steelerbaby,” Werner’s character is a baby doll in a knit Steelers uniform who appears in images and merchandise, typically accompanied by an admonishment to “Obey” or “Obey Steelerbaby.”

Fairey has built a career and no small amount of celebrity by creating new art from existing material.  The Obama poster, based upon a photo allegedly owned by AP, is a notable example.  Werner’s Steelerbaby, which is more Internet meme than profitmaking venture, is no different.  Like CW 11, Fairey might have the better end of the legal argument, but a little dose of common good sense shows that he (or his company) doesn’t have it “right.”

It’s my humble opinion that our IP system can only function alongside free creative expression if IP-holders — and IP-holder’s lawyers — first ask not whether they can win, but whether they should draw the line in the sandbox at all.

Short Url: http://bit.ly/Tr5IT

---

Technorati :  copyright, fair use, trademark