Lex Internet Blog

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Apple Escalates

From the New York Times, on Apple’s probably response to the FBI’s current attempt to gain access to an iPhone’s data:

WASHINGTON — Apple engineers have begun developing new security measures that would make it impossible for the government to break into a locked iPhone using methods similar to those now at the center of a court fight in California, according to people close to the company and security experts.

If Apple succeeds in upgrading its security — and experts say it almost surely will — the company will create a significant technical challenge for law enforcement agencies, even if the Obama administration wins its fight over access to data stored on an iPhone used by one of the killers in last year’s San Bernardino, Calif., rampage. If the Federal Bureau of Investigation wanted to get into a phone in the future, it would need a new way to do so. That would most likely prompt a new cycle of court fights and, yet again, more technical fixes by Apple.

See, Apple Is Said to Be Trying to Make It Harder to Hack iPhones.

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Apple (and Friends) Consider 5th Amendment Defense in Encryption Case

Over at Ars Technica, David Kravets writes that in addition to a First Amendment defense against the federal government’s efforts to gain access to the data on an encrypted iPhone, the tech company will use a Fifth Amendment defense.  See,  Forget the 1st Amendment, Apple to plead the 5th in iPhone crypto flap.

The First Amendment defense is straightforward:

Apple will also argue in its legal papers to be filed by Friday that computer code and its cryptographic autograph are protected speech under the First Amendment and that the government cannot compel speech by Apple. Bloomberg reported:

Apple is expected to argue in federal court that code should be protected as speech. The company is fighting a government order requiring it to write software to help the Federal Bureau of Investigation unlock an iPhone used by one of the San Bernardino shooters. Apple views that as a violation of its philosophy. Just as the government can’t make a journalist write a story on its behalf, according to this view, it can’t force Apple to write an operating system with weaker security.

Here’s a sketch of the Fifth Amendment claim:

….the Fifth Amendment goes beyond the well-known right against compelled self-incrimination. The relevant part for the Apple analysis is: “nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The idea here is that the government is conscripting Apple to build something that it doesn’t want to do. That allegedly is a breach of its “substantive due process.” The government is “conscripting a company’s employees to become agents for the government,” as one source familiar with Apple’s legal strategy told Ars. The doctrine of substantive due process, according to Cornell University School of Law, holds “that the 5th and 14th Amendments require all governmental intrusions into fundamental rights and liberties be fair and reasonable and in furtherance of a legitimate governmental interest.”

(One small nitpick, about my alma mater’s name: it’s the Cornell Law School (no one calls it anything else).

Kravets writes that the ACLU “is to file a friend-of-the-court brief in the dispute that cites the Fifth Amendment in Apple’s defense. “If this legal argument sounds novel, it’s because the government’s claim is unprecedented,” [ACLU staff attorney Alex] Abdo said in a telephone interview.”

The next court hearing is 3.22.16.

 

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Stephen Witt’s ‘How Music Got Free’

There’s really no American who hasn’t felt the effects of digital technology. The last generation has transformed media, and the law has been – and still is – racing to catch up.

What, however, do we remember accurately even of changes that have swept all around us?

Above, I’ve embedded a Reason.tv interview with Stephen Witt, author of How Music Got Free: The End of an Industry, the Turn of the Century, and the Patient Zero of Piracy.

His book is a recounting of a tale we may know only in part, and only imperfectly.

The interview is well worth watching, and Witt’s book well worth reading.

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Is Intellectual Property Really Property?

At the Cato Institute, there was a forum last week on the topic of whether intellectual property is property in a hard or soft sense:

Conservatives and libertarians are sometimes divided on the question of whether intellectual property is really property, and how much protection it deserves. On one hand, intellectual property is a product of mixing labor with material in the public domain, and it’s freely alienable, able to be bought, sold, licensed, or used as the owner sees fit. On this view, intellectual property is a bedrock natural right, central to economic and personal freedom, which the United States Constitution empowers Congress to protect. The contrary position, taken by some libertarians, views intellectual property as a government-conferred right that encourages political rent-seeking, restricts liberty, and thwarts innovation. Please join us as our panel of experts debates who has the better of the argument.

Here’s a recording of the forum:

Via Intellectual Property and First Principles @ Cato Institute’s Center for Constitutional Studies and the Federalist Society for Law & Public Policy Studies.

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Prosecuted for Sharing a Master’s Thesis?

The Electronic Frontier Foundation (of which I am a member) shares the case of Diego Gomez:

Today and tomorrow [2.1 and 2.2], there’s an oral hearing taking place for Diego Gomez, a Colombian student being prosecuted for sharing another student’s Master’s thesis with colleagues over the Internet—something that thousands of researchers do every day. Diego faces the possibility of years in prison, thanks to the steep penalties for copyright infringement that Colombia implemented as part of a 2012 trade agreement with the United States.

EFF has long held that extreme criminal copyright rules chill people’s rights, especially in countries where copyright law doesn’t protect users’ freedom of speech through robust fair use exceptions….

See, Stand with Diego. Support Open Access @ EFF.

I’ll update as news becomes available.  The EFF, by the way, describes fair use correctly: fair use provisions are exceptions to another’s copyright, not standalone rights, or rights at all.

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Entrepreneurial Bookseller Goes Back to the U.S. Supreme Court

Supap Kirtsaeng won a victory at the U.S. Supreme Court in 2013, and now he’s heading back to seek attorneys’ fees. Here’s the background:

Supap Kirtsaeng built himself a business on eBay buying textbooks in Asia and reselling them to students in the US. That practice made him the target of a copyright lawsuit by John Wiley & Sons, a large textbook company that didn’t like Kirtsaeng undercutting their US prices. Lawyers for Wiley said that they should control the right to import their copyrighted works.

Kirtsaeng won a resounding victory in 2013, when the Supreme Court said he was protected by the first-sale doctrine. He’d bought the books legally and could resell them, even if that involved moving the books across the border.

See, Supreme Court takes up copyright case over resold textbooks—again @ Ars Technica.

What’s the issue, now? Although copyright law allows Kirtsaeng to receive attorneys’ fees, it’s not mandatory that he receive them (and it’s uncommon, generally, to receive attorneys’ fees in America). The district court and the Second Circuit Court of Appeals both denied Kirtsaeng’s request for fees, but he argues that he would have received them had he filed suit in another federal circuit.

He’s consequently claiming a circuit split, and asking the U.S. Supreme court to close that split by applying a uniform standard for all America (and of course, a uniform standard that would award attorney’s fees in his case).

See, also, the petition of Supap Kirtsaeng and the brief in opposition of John Wiley & Sons (contending that there’s no circuit split at all), both documents by way of the ScotusBlog.

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Monkey Copyright Case Is About More Than A Monkey‘s Copyright

Still in the public domain.

At first blush, a case in which People For the Ethical Treatment intervened on a monkey’s behalf to secure a copyright in a photograph that the money took (and receive monetary damages from its infringement)  is about the possibility of a monkey holding a copyright.  That’s not a particularly hard question, as the Copyright Act as now written cannot reasonably be understood to apply to animal photographers:

SAN FRANCISCO—A federal judge on Wednesday said that a monkey that swiped a British nature photographer’s camera during an Indonesian jungle shoot and snapped selfies cannot own the intellectual property rights to those handful of pictures.

US District Judge William Orrick was tasked with hearing a lawsuit brought by the People For The Ethical Treatment of Animals (PETA). The Animal rights group was trying to represent the 6-year-old monkey, Naruto, in a case brought against the human photographer, David Slater, and his self-publishing platform, Blurb of San Francisco….

The judge said during a brief hearing that he would dismiss the suit in an upcoming order, and at one point said PETA’s argument was a “stretch.”

“I’m not the person to weigh into this,” Orrick said from the bench in San Francisco federal court. “This is an issue for Congress and the president. If they think animals should have the right of copyright they’re free, I think, under the Constitution, to do that.”

See, Judge says monkey cannot own copyright to famous selfies @ Ars Technica.  (At the bottom of this post, I have embedded Judge William Orrick’s order from 1.7.16.)

There’s more to this than a six-year-old primate, however: photographer David Slater, British photographer whose equipment Naruto used to snap a selfie, received a copyright in the photograph in Slater’s home country.

Although Slater’s copyright claim wasn’t at direct issue in this matter, it’s certainly another aspect of the episode.  Stater contends that it’s his copyright because of the work he did carrying his equipment, setting it up, etc.:

“The facts are that I was the intellect behind the photos, I set the whole thing up,” he said in an email. “A monkey only pressed a button of a camera set up on a tripod — a tripod I positioned and held throughout the shoot.”

That kind of copyright claim – one Slater contends is recognized in Britain – depends on both Slater’s human effort, and no subsequent legitimate effort that would supersede his own.

Over at Lexology, Nicholas O’Donnell observes that human effort (although not likely Slater’s efforts) might be enough to establish a copyright for a photographer.

So, for now, it’s no to the monkey, but maybe to the man.

Download (PDF, 109KB)

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Venezuelan Gov’t Tries U.S. Court to Silence Currency-Info Website

If you thought that simply publishing online the exchange rate between the American dollar and Venezuelan bolivares was an innocuous act, then you’re not a member of the (fumbling, stumbling) Venezuelan government:

In its bizarre and bombastic civil complaint, the US-based lawyer for the CBV [Central Bank of Venezuela] argued that the three Venezuelan-American men who run the site [DolarToday] are engaged in “cyber-terrorism” designed to create “the false impression that the Central Bank and the Republic are incapable of managing Venezuela’s economy.”

The CBV formally accuses DolarToday of violating a major anti-racketeering and criminal conspiracy statute (RICO Act), false advertising, unjust enrichment, and strangely, breaching a Venezuelan civil statute that refers to “causing harm.” (Obviously, an American federal court is unlikely to adjudicate claims made under Venezuelan law.)

To put it mildly, the Venezuelan economy has been in something of a tailspin in recent years. Its authoritarian president, Nicolas Maduro, the successor of strongman Hugo Chavez, has been unable to rein in skyrocketing inflation (now near 100 percent) and a massively depressed economy. Recent press reports have detailed that many people are unable to buy basic goods like diapers and cooking oil. This week, the Financial Times described the country as being on the “edge of a political crisis.”

Via As Venezuelan economy collapses further, gov’t targets US-based currency news site @ Ars Technica.

See, also, Plaintiff’s Complaint and Defendants’ Motion to Dismiss with Prejudice.

Reading the complaint from of the Banco Central de Venezuela, a Venezuelan government organization, counts as three separate readings, at least: of a federal civil complaint, of science fiction, and of low comedy.

Still, it’s a cautionary tale, too: that even the oddest claims, from the most unexpected quarters, may lead one into litigation.

Perhaps the maxim should be something along the lines of ‘expect the unexpected.’

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You Can Sing Now (More Safely)

It’s now (probably) legal to publicly sing the world’s most popular song, thanks to an opinion handed down yesterday by a federal judge in Los Angeles. After years of litigation, the court held that the lyrics1 of “Happy Birthday To You” are not restricted by Warner/Chappell’s copyright, handing a solid victory to a group of filmmakers producing a documentary about the song, not to mention the general public.

Via Happy Birthday To Everybody: Victory For The Public Domain (With An Asterisk) @ EFF.

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From the Annals of Copyright Improbabilities™ 

naruto-640x834

PETA filed suit Tuesday, asking the courts to declare Naruto the rightsholder and hence an owner of property: a copyright.

David Slater, the British nature photographer whose camera was swiped by the ape in the Indonesian jungle, said he has been granted copyright protection in the UK for the photos. He said he was “very saddened” over PETA’s lawsuit (PDF) in the United States.

This is the second time this year animal rights groups have asked the US courts to bestow onto monkeys the legal status that humans enjoy. Last month, a New York state court ruled against two chimpanzees represented by the Nonhuman Rights Project that claimed they were being deprived of their civil liberties while being housed at a university research facility.

The copyright case comes a year after regulators from the US Copyright Office agreed with Wikipedia’s conclusion that a monkey’s selfies cannot be copyrighted. The office said works “produced by nature, animals, or plants” cannot be granted that protection.

Via PETA wants court to grant copyright to ape that snapped famous selfie @ Ars Technica.

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