Copyright Protects Your Creation - All across the Nation

Kudos to the Library of Congress for putting together a faux-manga kid-friendly “set of learning activities for students and teachers” complete with 70’s soundtrack.

Officer Cop E. Wright teaches a band, a painter, and a screenwriter that copyright has got their back (and ironically, is the monkey on other backs for life + 70).  My favorite parts are 1) the band and the artist that receive an Oscar-shaped award for their works (what, no Grammy-shaped clip-art?), and 2) the screenwriter’s laptop that features a banana logo with a bite taken out of it.  No, silly, it’s not an Apple laptop, it’s a Banana!

 

Does Randazza Need the Protection of a Public University?

After judging approx. 25 1L oral arguments(!) that debated the academic freedom doctrine, I have learned a lot about this issue in the last few weeks, and I don’t agree that academic freedom vests solely in the University.

There is a pretty sharp circuit split on the issue, and the courts seem to be divided on what pieces of the doctrine extend to the professor. While the doctrine was initially intended to prevent the Government from interfering with the four freedoms cited by Stephanie, more recent courts have applied it to professors in that they, too, have freedom to pursue their own ends. This has generally meant that professors (at least at a public university) should have the right to teach in the method and with the content of their choosing, all the while recognizing that they are public employees that do owe some duty to respect the policies of their employer. See Piarowski v. Ill. Cmty. Coll., Dist 515, 759 F.2d 625 (7th Cir. 1985); Hillis v. Stephen F. Austin State Univ., 665 F.2d 547 (5th Cir. 1982).

The tension has usually come in when the professor has sought to use the mantle of academic freedom to do something (i.e. refuse to adjust grades) that disturbs the University’s right to institute grading policies and other more “business oriented” concerns.

A professor’s method of dramatizing his lecture seems to be fairly attenuated from what I have learned is the true realm of the University’s academic freedom. The students have their own “rights” in the classroom, and they may evaluate and judge this professor as they see fit. To summarily fire him for the method of his lecturing seems to run counter to the very purpose of academic freedom, no matter in whom it ultimately vests.

However - this appears to be a private university, therefore a First Amendment claim under 42 U.S.C. 1983 might fail if a this private school is held to not be acting under color of state law.

Kevin Wimberly

 

Thoughts on Lewd Night

So, Lewd Night apparently went off without any obvious First Amendment smackdown.  Some of the artwork was disturbing, some of it was gross, and some of it was just kind of silly.  But - I don’t think any of it was so over-the-top as to be denied its expression.  While I didn’t venture into some of the other rooms throughout the venue, I did take in most of the art and listen to the bands and poets.  Highlights included meeting Prof. Randazza’s law partner (and finding out that he and my wife share an acquaintance), the crucified bunny (that my wife accidentally knocked off the cross), and the “WYR HNGR” license plate that had the tag-line “Abortion Tickles.”

I think we had a very large showing from both the class as well as people who came over from the Moot Court banquet that took place a block away at the Citrus Club.

A sincere thanks to Prof. Randazza and everyone else who made it such a fun time.

 

Shameless Plug

To relieve the stress of my wife’s day job, she has started making kewl dog collars inspired by punks, pirates, and the inked lifestyle.  Go to www.punkywoofster.com and have a look!

 

WWW Porn District Fails Again

As a follow up to my earlier post about the proposed .XXX domain for adult content, it appears that ICANN has rejected the proposal yet again. One of the main reasons for rejecting the domain was the concern that ICANN would get tangled up in the business of regulating content, when their official madate is to oversee the technical aspects of the domain name system.

The decision also mentioned the various incongruent international laws relating to adult content, and ICANN would be put in the position of further making decisions on what is appropriate for the .XXX domain. In addition to going against their technical mandate, it would place ICANN in a pseudo-law enforcement or judicial position.

 

New on the bookshelf:

I just got this book from Amazon.com. It’s called “The State of Play: Law, Games, and Virtual Worlds.” While I have never even been in Second Life or played a game like Warcraft, I find the legal issues fascinating. Especially appealing to me is the idea of intellectual property in a virtual world. As I blogged previously, law classes are being held in Second Life, political campaigns have official areas, Toyoya is selling virtual Scions, and, recently, Coldwell Banker is selling homes!!

Browsing the Table of Contents of this book, it looks like it will be a fascinating look at virtual crime, transferring online power to the offline world, dealing with IP conflicts in a virtual world, and many other topics that are only getting hotter.

Maybe I’ll bring the book in for show & tell tomorrow.

 

The Internet as a Gated Community

(word length exceeded with permission)

About the same time I was digging around the obscenitycrimes.org website, I also found out that the Governor of Utah is attempting to resurrect the Internet Community Ports Act by signing a resolution to send to Congress. Before explaining what that Act would do, consider the Morality in Media (hereinafter “MiM”) reaction to another recent proposal to combat obscenity on the Internet.

One of the news items on the obscenitycrimes.com site is an essay signed by many conservative groups that expressed displeasure at the proposed “.XXX” district on the Internet. The .xxx domain would be a voluntary domain that adult content providers could use to designate their content as “adult” such that end users (and other intermediaries) could better filter Internet content. For example, shanasswirlies.com could become shanasswirlies.xxx.  Thus, rather than trying to set existing filters to recognize that shanasswirlies.com contained filthy toilet bowl porn, the end user could simply choose to reject all .xxx domains. People on both sides of the debate have criticized this proposed system. The free speech advocates see it as an unnecessary regulation of the Internet, while groups such as MiM argue that it doesn’t go far enough to protect the citizenry from obscenity.

Specifically, an article on obscenitycrimes.org complains that the .XXX proposal has 4 problems. 1) The system would be voluntary. MiM is not happy with a voluntary system yet they recognize any Congressional requirement that adult content providers must use the .XXX domains would be met with Constitutional challenges. 2) The .XXX system would require parents to use filtering software, and MiM feels that parents are either too stupid or indifferent to use such software. MiM prefers to be the morality police for parents, yet this seems to me to encourage parents to further take a passive approach to rearing their children. 3) The .XXX proposal would not scrub the entire Internet clean. 4) MiM feels that prosecutors would become lax in searching for obscenity online. With no evidence to support such a statement, MiM says that once strip clubs and other adult businesses were zoned as “adult” business, enforcement of obscenity dropped off. From my recollection of local news both in Jacksonville and Orlando, the police seem to spend an inordinate amount of time and money buying lap dances at clubs as part of a campaign to enforce ordinances.

So, MiM doesn’t like the .XXX proposal because it’s voluntary, requires parental involvement, wouldn’t scrub the entire Internet, and would somehow result in prosecutors ignoring content on the .xxx level.

As mentioned, both sides of the debate found problems with the system. Recently, another proposal has resurfaced due to the governor of Utah’s signature on a proposal sent to Congress. The Internet Community Ports Act (ICPA) is even more troubling for free speech advocates than the .XXX proposal ever was.

A brief background on ports is necessary. Network traffic to and from a computer contains instructions on which “port” to use. This port number is contained in every data packet. Think of the back of your computer as a massive harbor with over 10,000 ports for ships to come in. Each port is designated for a specific type of ship (or protocol). The busiest port in your harbor is probably port 80 because that is where all http traffic goes. The web sites you visit are all transported via port 80. Other common ports are port 110 (POP mail), port 25 (SMTP mail), port 21 (FTP access), and port 53 (DNS lookups). Thousands of other ports are used for more specialized/proprietary traffic such as online games, network security tools, chat programs, and peer-to-peer file transfer software. Firewall software enables you to block certain ports.

The Internet Community Ports Act proposes to divide the Internet into communities, with that division accomplished by mandating that certain content be assigned to certain ports. CP80, the group developing this system, wants to create an Internet divided into “Open” ports (i.e. the porn ports) and “Community” ports (i.e. the clean ports [porn can’t have a community?]). Internet Service Providers would be required by law to implement technology that would enable them to turn on or off the “Open” ports. Note that ALL “pornography” would be relegated to these restricted ports. Who will make such a determination? According to the organization proposing the system, an administrative body would be put in place. Would web sites with artistic nude images be pushed out of the “Open” internet? Most likely. What process would that web operator have to go through to get on the Community ports? Will there be different ports for different types of porn? Will the courts be clogged with constitutional challenges from administrative agency decisions on what is not appropriate for the Community ports?

Additionally, one of the touted incentives for ISP’s to sign on to the system (aside from being mandated by the government) is the availability of tiered pricing. The proponents liken this to cable TV service in which premium and adult channels are offered for an additional fee. This would be devastating to the consumer and to legitimate adult businesses. The satellite radio industry faces this same economic crisis with the recent green flag to begin merging XM and Sirius. A la carte service will result in higher monthly fees. So, for the web site posting artistic nudes, they may suffer an economic loss or be forced out of business if they are forced to move to the “Open” district of the Internet that requires higher fees and liability. Would a law school be forced to pay higher fees to access the Open ports for research purposes? The consumer who wants to see “lite” adult content may not pay for access if the price is contingent on getting everything else. He currently has the choice – type the web address or not.

There are many, many more problems with both the .XXX approach and this new port-based approach, but the above essay gives a general overview of the bigger issues.

The problem that I see is that these organizations are trying to create an Internet that is completely devoid of expression that they disapprove of. Therefore, the methods they are proposing reflect an all-or-nothing approach. A post on the CP80 forums by a supporter of the proposal shows the complete lack of confidence in a parent’s ability to rear his/her own child:

Right, it is up to the parents. But the parents should be able to make a choice and enforce it. You can’t. And quite frankly, even if you were sitting next to your child. Even if you had a filter and a firewall with a white list, that still would not guarantee that pornography couldn’t slip through.

This is Morality Police in the highest form. Pornography (not obscene content) might “slip through” many places in life, but does that make it illegal? I encourage you to take a look at the cp80.org site and read the “CP80 Solution” section to form your own conclusion.

Kevin Wimberly

 

Cybersquatting post

The “Cybersquatting Double Standard” article that Shana posted was very interesting. If a celebrity such as Shakira registers shakirasucks.com as a preemptive strike against potential purchasers, shouldn’t that be cybersquatting? Obviously, she has a legitimate interest in the “Shakira” part of the domain, but how legitimate is the interest in preventing criticism of oneself? Should that be bad faith? If the criticism is libelous, then aren’t there other laws to handle such speech? Read some Section 230 commentary and you may decide that all web-based speech is immune.

The “sucks sites” seem to be an easier row to hoe, whereas sites that aren’t criticizing seem to be the trickier ones. For instance, famed cybersquatter Jeff Burgar has bought a plethora of celebrity domain names. Some are simply parked, and some are stagnant “fan sites.” One example is brucespringsteen.com. Burgar won that domain in a UDRP action. The decision said that even though the name is identical to Bruce Springsteen’s (and the “official” brucespringsteen.net), there was no likelihood of confusion, he did have a legitimate interest, and there was no bad faith (Burgar is no stranger to UDRP proceedings, and he knows how to avoid a finding of bad faith).

So, my theory is this – attempting to sell a domain name for higher than one’s out-of-pocket expenses should not be indicia of bad faith. It’s economics. If I buy brucespringsteen.com and don’t use it to deceive or redirect to a competitor, then why shouldn’t I be able to sell it for a profit? There is no inherent right to use one’s name in business. Why not let Bruce cough up some cash for “his” domain name?

Kevin Wimberly

 

USPTO brief re. scandalousness

This is Professor Randazza’s brief written for one of his clients.

It addresses the First Amendment/morality issues raised in class. It also provides a great overview of the issues surrounding scandalous marks.

 

The Gaming Life

It’s pretty ironic that Prof. Randazza posted the material re. multiplayer games today. Right before his post, I read THIS ARTICLE that discusses an upcoming series of films called “Whorecraft” in which the culture of “World of Warcraft” is turned into a porn flick. So, not only can you stay ass-planted in your chair 24/7 and stay emerged in your fantasy world of elves and swordsmith guilds, you can also watch some porn in the same genre. Nothing like consistency in one’s life.

But, on to the issues presented in Prof’s post. Regulating the Internets has been an issue ever since Al Gore first connected the series of tubes and started it up. One of the first books to discuss the issues in depth was “CODE” by Lawrence Lessig (I know, we’re all getting tired of that name). There was a chapter in CODE that addressed the very issue that Mr. Walters addresses. In the old days, a “MUD” was a text-based chat area where people could chat, play fantasy games, and generally never see the light of day. Someone in a MUD room engaged in a “virtual rape” and was chastised by the community. This story gave rise to the question of whether the Internet is susceptible to offline governance, or if the norms within Internet communities could self-regulate their members. In effect, this is a cyberlibertarian view of the Internet. Lessig has since updated his book, and “Code 2.0″ is available for free. HERE is a link to the section that discusses virtual communities and how the government can govern cyberspace by enacting legislation that affects the actual code (1’s and 0’s) of the Internet.

Is the Internet subject to exceptionalism? Is it its own entity apart from offline laws? Section 230 of the Communications Decency Act seems to suggest the answer in the affirmative, at least in part. If the New York Times posts defamatory content about you, you can sue them. If that same content is posted on the New York Times web site, then they are most likely immune. Why? Congress wanted to immunize “interactive service providers” from liability for content posted by its users. The statute has since been interpreted as a huge grant of immunity for bascially anyone who uses a computer. For a thorough explanation of the origins of Section 230, see me for a draft of an article Professor Holland is writing.

So, in the defamation context, the Internet seems to have its own rule apart from the typical offline publisher/distributor rules for liability.

Regarding virtual property in these online games, what would happen when conflict arises? Apparently there is one case seeking the answer. Also, eBay has recently addressed virtual property, in effect telling the “owners” of these virtual artifacts that they do not own them. As such, since the sellers of the virtual goods don’t own the rights to the virtual intellectual property, they are in violation of eBay’s terms of use. The EULA’s on these games say that all game IP belongs to the game manufacturer. In this case, it seems that the government may try to get a foot in the door. Certainly there is tax revenue to be had.

And then there are those affected socially by the addictive nature of the games. Even with the devestation it may cause families (akin to the porn-addicted father/husband?), should the government somehow regulate? Of course not. (I can’t help but notice that the article was written by a “Janelle Randazza” - we hope that the subject of the article was not Professor Randazza.) If anything, game addiction has created a niche market for psychologists and family therapists. Game addition also spawned the BEST SOUTH PARK EVER (no longer on YouTube).

Personally, I think regulating online communities is inevitible. Whether it is snuck in via taxation issues, child protection measures, or some other theory, I think it will happen. However, I think it’s dangerous to do so. If the regulation is done at the center of the Internet - the code that makes it up, then Congress can effectively control the entire network. They are already trying to do this with anti-net neutrality laws. Regulation should come at the ends of the network - via tools provided to end users for blocking or accepting content of their own choosing. While I don’t believe the Internet should have its own set of rules (thus I don’t consider myself a cyberlibertarian), I do think that our existing offline rules should/can be better adapted to the Internet. This can happen with better education for legislators and judges. Many tech-heavy statutes and judicial opinions turn out to be bad law because of ignorance of the underlying principles and consequences to the network as a whole.

UPDATE: After I originally posted this, I found this article. Toyota is selling virtual Scion cars in the game “Second Life.”  Second Life has become like MySpace in that retailers and other businesses are trying to establish a presence to cater to the “hip” crowd that lives a second life in Second Life.  There have been virtual law lectures by Judge Posner(!), and Harvard Law is offering a class partially inside of the Second Life virtual world!  The world is a hell of a lot bigger than it seems.  It’s overwhelming!