Andy on the Road

20 May 2011

Recognizing Infringement as an Unprotected Category of Speech: A Response to Terry Hart’s “The Free Speech Critique of Copyright Mistake”

Filed under: feedback,followup,freeasinspeech — Andy @ 3:44 pm

Terry Hart over at the excellent blog Copyhype recently posted a critique of an argument I made in my recent paper on free speech and domain name forfeiture, wherein he wrote:

[S]ome critics of the law base their objection on the premise that copyright protection infringes on the freedom of speech. A few — certainly not all — of these criticisms are based on the following line of thought: copyright law regulates content, content-based regulations presumptively violate the First Amendment, therefore much of copyright law is unconstitutional.

One recent example is from a paper by Andrew Sellars, who wrote, “Copyright itself is a content-based form of regulation: it determines the legality or illegality of speech on the basis of how the speech is expressed.” (I don’t mean to single out Mr. Sellars, I only highlight this quote to provide an example of the argument.)

The Supreme Court, of course, rejected the classification of copyright as even a content-neutral regulation — which, in First Amendment parlance, still merits a higher standard of review than general laws. But, looking at the language being used, how can this be? How can copyright law restrict content yet not restrict content? [Footnotes and hyperlink omitted.]

I stand behind those words, but I certainly do not mean to suggest that copyright-regulates-content-and-is-therefore-unconstitutional. There are those that go that far; I’m not one of them. Hart’s critique, however, takes an impermissibly narrow view of content-based restriction under the First Amendment. Copyright is a content based restriction of speech as First Amendment law traditionally defines that term, but, I argue, should be viewed as one of the classic, time immemorial exceptions to the traditional prohibition of content-based restrictions. (Or, more to the point, traditional copyright infringement should be. Copyright is no talisman, as Eldred makes clear.) It is not the substantive unconstitutionality of copyright that concerns me. It is the lack of the procedural safeguards that are typically in place when adjudicating the illegality of speech based on the content thereof.


8 May 2011

Seized Sites: The In Rem Forfeiture of Copyright-Infringing Domain Names

Filed under: cyberlaw,intellectual property,soapbox — Andy @ 11:40 am

Building off of a post I wrote here in November, this past spring I wrote a (lenghty) paper examining the recent “Operation In Our Sites” and its implications for free speech, copyright policy, and practical enforcement of rights online. The paper now has its own SSRN page here. Hope you can all check it out and share thoughts. Thanks.

26 April 2011

Rethink Music: A Compulsory Sampling License

Filed under: Berkman,intellectual property,music — Andy @ 12:34 am

I’m spending the next couple of days back in Boston at the Rethink Music conference, with a humbling collection of music industry minds. I wanted to mark the occasion by bringing back a thesis about which I wrote extensively last year, following several discussions at the Future of Music Coalition Policy Summit in October 2009. In response to perceived market failures in the licensing market for sampling music, I proposed that Congress should develop a statutory license for sampling. The details of this proposal are below. The paper I drafted received a warm response from my peers (thank you), but needs substantial revision in light of Peter DiCola and Kembrew McLeod’s excellent new book, and my own Sisyphean push for excellence.  I wanted to share my thoughts here and take this time to solicit some feedback. So here they are. Conference attendees, non-conference attendees, friends, strangers: rip this apart.


11 December 2010

Wikileaks and the First Amendment

Filed under: Berkman,freeasinspeech,soapbox — Andy @ 5:31 pm

I’ve been meaning to write up a few thoughts on Wikileaks, but finals have kept me fairly busy.  I have a bit of a break before round two of finals, so I wanted to take a couple hours to put some thoughts up here.  I’m not especially interested in engaging on a broad-strokes merits argument of Julian Assange, the so-called “Cablegate” leak, Operation Payback, or the Interpol warrant.  Instead I want to focus on the question that seems to be coming up in the press all month but has not been answered cleanly: How exactly does the First Amendment play out here?

I’ve spent a great deal of time considering the First Amendment implications of leaking confidential sources on the Internet. A lot of this analysis comes from the two amicus briefs I worked on while at the Berkman Center’s Cyberlaw Clinic, both dealing with websites that disclosed confidential information.  (And to that end I owe thanks to the Clinic and the CMLP for helping me develop this analysis over two summers.)  There are three discrete sub-doctrines of First Amendment law that inform my conclusion here, but I believe that, at least under the facts as they are currently understood, Assange and Wikileaks could not be punished in the United States for their actions.


30 November 2010

Operation in Whose Sites?

Filed under: cyberlaw,deepthoughts,intellectual property — Andy @ 8:18 pm

(It is simply unfair that this week we’ve had some truly amazing things happening on the cyberlaw front, while I have to study up for finals. So this will have much shorter than it warrants.)

Sometime over the past few days the Department of Justice seized 82 websites under civil forfeiture statutes, citing violations of trademark and copyright law.  If you go to, say, “,” you will not see (here’s an capture from 2005). Instead, you see this:

The seizure, entitled “Operation in Our Sites II” (part I was a small-scale seizure over the summer), relied on power granted under civil forfeiture statutes: sections 981 and 2323 of Title 18 are cited, but really it’s all about 2323, with 981 providing the procedure.  Assuming they followed the letter of the law here, this means that someone in the Attorney General’s office filed what is tantamount to a criminal warrant, and then obtained custody and title of the goods in the name of the Attorney General and the United States.  This is shocking and surprising for a number of reasons.  This is exactly the concern raised by groups opposing the Combating Online Infringements and Counterfeits Act – that the government would be able to “blacklist” websites “dedicated to infringing activity,” and then take them off the Internet.  We also are asserting domain over the Internet itself, something which no other country has tried to do.  Big questions come up here, namely Can the United States do this as a matter of fact? Can they do this as a matter of authority?

To examine the U.S. authority in doing this would be far too much to take on right now with finals, so I’m going to focus more on the facts.  To do this requires a quick crash course on Internet architecture. Here goes:

The Internet is driven by numbers, IP addresses specifically.  If you type “” in your browser you will see the website for the blog Boing Boing.  This is Boing Boing’s web address.  Of course, we wouldn’t want to have an Internet where we needed to memorize IP addresses like phone numbers, so we developed a naming system to organize and label these addresses.  This is the Domain Name System, or DNS.  This system consists of a series of 13 “root servers,”  located throughout the globe, which tell all computers where to go to look up the addresses of sites ending in “.com,” “.net,” “.edu,” and so forth.  These root servers are redundant copies of each other, designed so that if one goes down the others can still direct traffic.  Each of these top level domains (“.net” in our example) contains another server (and backups thereof) which stores a list of every website that ends in that extension and its corresponding IP address.  This is of course a gross simplification, but when we type in “,” our computer looks to the root server to find the “.net” server, then goes to the “.net” server and asks where to go for “boingboing.”  That server responds “,” and the connection is made.

So what does it mean to “seize” a website?  I am hunting down the civil forfeiture warrants used in Operation in Our Sites II, but it seems to that once they convinced a judge that there was probable cause to issue this forfeiture order, the government went to the DNS servers involved in translating (“resolving” in the lingo of the industry) the websites at issue, and had them change their destination to the Justice Deparment’s website, (a website created 6 days ago, likely for this operation).  Now if you enter in “,” instead of resolving to whatever numerical address it had before, it resolves to “”  Of course, if you happen to know what the old number is for “” you can still type in that number and get the old website.  The Internet is deliberately decentralized in that way.  Short of actually taking the computers that host “” – computers that could be anywhere in the globe – the best the Justice Department can do is make it so that the DNS servers no longer point there when someone types in words instead of numbers.

And this has lead to one interesting hypothesis from ComputerWorld – what happens if people no longer trust the institutionalized DNS servers?  There’s nothing in the architecture of the Internet to stop anyone from creating a new DNS server that resolves names differently than the DNS system does now, telling people where, for example, the real “” is located.  If they were to do this outside the jurisdiction of the United States, I don’t see how civil forfeiture (or the proposed COICA bill) could stop it. And this would create all sorts of chaos for the Internet as a whole – imagine a world where typing in the same URL on two different computers would lead to pulling up two different websites.  I hope the Justice Department realizes what kind of special fire it is playing with right now by forcing DNS servers to resolve to places where sections of the public do not want them to resolve.  John Perry Barlow may have been more right than we realize: we may have a domain name mutiny if we are too reckless in enforcing the law this way.

One last thought.  The other big cyberlaw case of the day is, of course, Wikileaks and its dumps of classified government information.  One of the great ironies of our legal system is this: to stop the Wikileaks website would take a criminal prosecution establishing a violation of a state interest of the highest order, an order so strong the Supreme Court has never found it in any leak of classified information distributed by the press. (I think that’s a good thing, by the way.)  But if Julian Assange was trading in fake handbags instead of state secrets, his website could be down already though civil forfeiture.  Does that seem right to you?

Update 12/3 – apparently the copyright / First Amendment dichotomy I mentioned above was noticed by none other than Sarah Palin.

15 November 2010

Girl Talk goes Creative Commons (but caveat sampleor)

Filed under: copyleft,knowyourrights,music,Uncategorized — Andy @ 2:51 pm

Girl Talk has a new album out today that you can download for free here.  Copyright nerds like me will note that Gillis has licensed this one under a Creative Commons license, with the attribution and noncommercial restrictions.

I’m still confirming this, but I believe this is the first CC-licensed Girl Talk album.  Unstoppable, Secret Diary, Night Ripper, and Feed the Animals all are released under Radiohead-style pay-what-you-want schemes, but not under any more liberal a copyright license.  The difference is subtle, but important: you may be able to obtain a copy of Night Ripper for free, but to get it for free doesn’t mean that you get to copy your copy and send that to your friends, or make a music video with the tracks, or perform these songs publicly.  Your rights over the copy only go as far as your right to use it, and then (if you decide to) dispose of it.  The Creative Commons license used in All Day gives you some new rights that you don’t have over Girl Talk’s earlier works: the right to copy, distribute, transmit, and remix.  You can do this as long as you provide attribution to Girl Talk and you do not do this in a way that is primarily directed toward commercial advantage.  To the consumer it makes little difference, but to the remixer the difference is stark.

So, everyone go remix the Girl Talk album and post it on YouTube?  Well, not so fast.  All Day isn’t a lone, romantic album.  Inside of All Day are samples from Jay-Z, The Ramones, The Doors, Missy Elliot, Beck, Fugazi, Radiohead, DMX, Lady Gaga, Daft Punk, MGMT, 2 Live Crew, Arcade Fire, Fine Young Cannibals, John Lennon… the list goes on.  If Girl Talk is doing as he has done in the past, he didn’t get permission to use these sound recordings.  He releases his albums at his own legal peril; Girl Talk could easily be sued for appropriation of those songs.  (He hasn’t yet, probably because of the flood of copyright lawyers that would come out and make the case that what Girl Talk is doing is fair use, giving the music industry some very bad case law to fight off the next time a sample is before a court.)

The problem with using a Creative Commons license here is one of arithmetic.  Girl Talk can only license that which he has authority to license, and he doesn’t have authority to license all of the underlying sampled works.  The sampled recordings aren’t under the Creative Commons license.  To put this in practical terms, your YouTube music video for a song on All Day may not get you in trouble with Girl Talk, but DMX could come after you for sampling “Party Up” in your video, by and through Girl Talk’s sample of the song.  Your defense is about as strong as Girl Talk’s defense.  You’ve got a fairly strong argument for fair use, but it’s a largely untested argument, and you’d be the one paying for the litigation to make that argument.  (There’s no indemnity clause or warranty of title in Creative Commons licenses.)

Gillis going Creative Commons is a strong gesture towards those of us who advocate free culture.  But as a legal matter it’s little more than a gesture.  Perhaps his will encourage broader dissemination of the album, but it does not clear the muddied waters around the album’s legality.

Now, will record companies sue you for remixing All Day?  Probably not, only because it’s such a complicated case to make with little economic return.  But will they send a DMCA takedown notice to YouTube over your remix?  Quite possibly, and the Creative Commons license doesn’t make your counterclaim any easier.

26 October 2010

Billy Ruane, RIP

Filed under: boston — Andy @ 11:19 pm

The Phoenix is reporting this evening that one of the Boston scene’s most interesting characters, Billy Ruane, has passed away.

From Brett Milano’s The Sound of Our Town:

The rise of the Middle East was one key to the amount of action [the 1990s] saw. The initial credit goes to Billy Ruane, a beloved local character who never did anything quietly. Indeed, the sight of Ruane in full glory—shirt hanging open, feet flying in all directions, drinks toppling in his wake—was often more interesting than whatever band he was watching. In early 1988 he booked himself a birthday party at T.T. the Bear’s Place in Central Square, only to wind up with more bands than the club could fit. So he arranged a second stage at the family-run Middle East restaurant next door. Danny Mydlack, a performance artist who was known to shave his own chest while playing the accordion, was the first act to appear, followed by the Blake Babies; and a fine time was had by all.

Soon the downstairs bowling alley would be converted to a music venue, and the rest is history.

19 October 2010

Quote of the day

Filed under: huh. — Andy @ 11:41 am

Two hundred years after the framers ratified the Constitution, the Net has taught us what the First Amendment means.

In re J.J., No. D055603 (Cal. Super. Ct. Oct. 15, 2010) (quoting In re Stevens, 119 Cal .App. 4th 1228, 1235 (2004), quoting Lessig, Code and Other Laws of Cyberspace 10 (1999)).

See Eric Goldman’s blog for more.

6 October 2010

The Dido and the Astronaut

Filed under: knowyourrights,thecommonlaw — Andy @ 2:40 pm

When the Hollywood Reporter broke this story, they started their article with this:

Look closely at Dido’s album cover for “Safe Trip Home.” Spot the lawsuit?


The astronaut in that photograph is Captain Bruce McCandless II. This is him here:

(Image courtesy Wikimedia, and I’m going to go ahead and add that that Captain McCandless doesn’t endorse my blog.)

Capt. McCandless is a true hero of the NASA program, serving as CAPCOM during the Apollo 11 mission and logging more than 300 hours in space himself.  He is most famous for making the first untethered space flight in the NASA MMU.  NASA has a collection of photos from the flight, including this one:

(Courtesy NASA)

It doesn’t take too long to see how Dido took this shot and made the album cover above.  The thing is, Capt. McCandless feels as though he, the astronaut so portrayed in the photograph, is entitled to some form of remuneration (along with an injunction) by virtue of being portrayed therein.  And so, he sued.  Here’s the complaint (PDF).

It’s important to note that this is not a copyright claim.  NASA took the photograph, and under ordinary circumstances that’s enough to put the photograph in the public domain as a government work.  McCandless makes no claim to the contrary.  This is a question of personality rights.

I’m still learning about trademark and rights of publicity, so I don’t feel comfortable going into the legal weeds on this one, but I can’t help but think that all of the major personality rights cases – Waits v. Frito-Lay, Haelan Laboratories v. Topps Chewing Gum, Martin Luther King Jr. Center for Social Change v. American Heritage Products, even the often controversial Zacchini v. Scripps-Howard Broadcasting Co. – all dealt with portrayals of celebrities where you could actually tell who was being portrayed.  It was Tom Waits’s voice, the baseball players’ portraits, a sculpture of Dr. King, or a video of Zacchini, and in all of those cases it was easy to see or hear who it was.  There was no mistake about it. Until I started writing this article, I had no idea that who the astronaut was in the photograph there.  It’s just an astronaut.

And even if I did know that this is a picture from the first MMU flight, and that McCandless was the person portrayed, how can I tell that it’s him?  He’s a speck on that photograph. (I think that’s why that photograph is so powerful.)  When we talk about personality rights, we talk in reference to using someone’s name or likeness without their permission.  On Safe Trip Home you don’t know the astronauts name and you can’t see the astronaut’s face.  It is technically him, but the only way you know who this is would be if you are schooled enough to know the background significance of the picture.  I don’t even think the question fairly debatable – at best it’s a very serious uphill battle to prove it.

The complaint sees it differently:

29. The EVAtion Photograph [the photo used on Dido’s album] includes the images of McCandless, and McCandless is further identified in part by distinctive red stripes on his pressure suit, as well as a mission patch on the chest of his life support system. NASA used such markings to visually distinguish McCandless from other crew members.

30. In the EVAtion Photograph, McCandless is further identified by and pictured with a distinctive over-the-shoulder Nikon camera, which has not been used on any other shuttle missions.

With all due respect to the drafters of the complaint: really?  You really think you can see all of these things in this photograph?  Can you make out the mission patch on the chest of Capt. McCandless’s life support system?  Even if you saw it close up, would your mind go to Capt. McCandless when you saw that patch?

The complaint also notes that the photograph appeared in news media, including this piece in Time magazine, identifying Capt. McCandless.  But again, unfair use of publicity rights more or less presumes that a consumer will see the celebrity portrayed and believe the celebrity to have supported, endorsed, or otherwise lent their goodwill to the product.  To put it in the words of the California Civil Code (under which McCandless makes one of his five claims) a photograph of a celebrity must be clearly depicted so that “one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.”  I don’t think this should be enough:

(McCandless, zoomed in as far as the original photo will allow.)

Now, the Complaint alleges that Dido did, in fact, mention in the liner notes that the photograph depicts McCandless.  In so doing they have used his name, and thus he at least gets in the door with a personality rights claim.  But that’s inside the liner notes of the album, and thus not used to sell or advertise the product.  In short, I don’t think that should count either.

I leave more analysis to those more suited, but I do want to note in closing that the complaint embraces what I consider a wholly separate action against Getty Images for publicity claims as well as some form of breach of contract claim for a personality license Getty entered into regarding this picture.  Why Getty is allegedly commercially licensing a public domain picture, and paying McCandless for the personality rights therein, remains a complete mystery to me.

27 September 2010

Wiretapping the Internet

Filed under: intellectual property,lawsandsausages — Andy @ 10:35 am

I find this depressing but wholly unsurprising.

I like the this passing quote in the article:

In their battle with Research in Motion, countries like Dubai have sought leverage by threatening to block BlackBerry data from their networks. But Ms. Caproni said the F.B.I. did not support filtering the Internet in the United States.

That is, of course, unless we’re filtering the Internet to protect someone’s copyright.  And all of this makes me wonder: if we are going to filter the Internet, and order companies to open up their communications for inspection, can we at least start to find some public forum rights in communication conveyed therein?

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