Elaine Huguenin co-owns Elane Photography with her husband. The bulk of Elane’s work is done by Elaine, though she subcontracts some of the work some of the time. Elane refused to photograph Vanessa Willock’s same-sex commitment ceremonies, and just today the New Mexico Human Rights Commission held that this violated state antidiscrimination law. Elane has been ordered to pay over $6600 in attorney’s fees and costs.

I haven’t seen any written statement of reasons, but the order must implicitly rest on two interpretations of state law: (1) This sort of photography company constitutes a “public accommodation,” defined by state law “any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private.” (2) A refusal to photograph a same-sex commitment ceremony constitutes sexual orientation discrimination, which New Mexico law forbids. These may or may not be sensible interpretations of the statutory text. But the result seems to me to likely violate the First Amendment (though there’s no precedent precisely on point).

As Volokh points out, photography is an art form and the Human Rights Commission decision effectively says that the state can tell you what kind of art you can and cannot create. He goes on to point out, correctly I think, that several U.S. Supreme Court opinions make it clear that the state cannot compel you to endorse points of view that you disagee with and, arguably, by photographing a committment ceremony she finds personally offensive, this photographer would be endorsing something she does not choose to endorse.

More than that, though, this case points out the extent to which so-called “economic” rights, such as the right to decide who you do business with, have been eroded over the past 50 years. There is no reason that Ms. Huguenin should be forced to take on a job she doesn’t want to take. What if, instead of citing the same-sex nature of the ceremony, she has simply said she was too busy to take on the project ? Presumably, that would have been a legitimate reason to turn it down, and if that’s the case, then I see no reason why she should be forced to work for these people just because she doesn’t approve of their lifestyle.

Oct. 16 (Bloomberg) — Companies that operate fantasy sports leagues have a First Amendment right to use players’ names and statistics for free, a court ruled in a case filed against Major League Baseball.

The federal appeals court in St. Louis ruled today in favor of C.B.C. Distribution and Marketing Inc., a closely held operator of fantasy sports leagues.

The ruling is a victory for the fantasy sports business, which started with statistics-rich baseball in 1980 and spread to other sports. Today it is a $1.5 billion industry, according to the Fantasy Sports Trade Association.

“It’s vindication,” said Greg Ambrosius, a former president of the association who is now editor of Fantasy Sports Magazine. “We were a bunch of Mom-and-Pop shops who grew the industry from nothing to where it is today, and then when we got big, people started saying, `Hey, we own this.”’

At issue in the litigation was the right to names and statistics of pro athletes when the information is used by a business rather than a news organization.

“It would be strange law that a person would not have a First Amendment right to use information that is available to everyone,” a three-judge panel said, ruling the Constitution trumps the players’ ability to control their publicity.

Strange indeed. It would sort of be like Microsoft saying that it has an intellectual property right in the price of it’s stock.

Ternium SA, the only maker of flat- steel products in Venezuela, agreed to sell its goods at a discount in the South American country, warding off a threatened nationalization by President Hugo Chavez.

As part of the three-year agreement, Ternium’s Siderurgica del Orinoco SA unit will offer discounts ranging from 2 percent to 4 percent for certain programs and some businesses, Ternium said today in a statement. The company also agreed to transfer operations of a port on the Orinoco River to the government and invest $500 million in its Venezuelan facilities through 2012.

The deal comes three months after Chavez threatened to nationalize the unit, claiming that the company charged too much for steel while buying electricity and other resources at a discount. Luxembourg-based Ternium holds a 60 percent stake in Sidor, as the unit is known, while the government and workers at the steel mill each own 20 percent.

Now, I’m known for criticizing Chavez. And there should be no exception here. His threats of nationalization erode foreign investment, and will eventually destroy the country.

Yet I’m often criticized for focusing too much on Venezuela, and not enough here at home. So lest I be taken to task for considering the beam in Venezuela’s eye, I should bring up a mote in our own.

The District of Columbia was concerned about “excessive” drug prices… So they decided to threaten drug companies with arbitrary lawsuits based upon prices for drugs in other nations:

The controls, signed into law in October 2005, allow residents to sue a drug company if the wholesale price of a patented drug is 30 percent higher than the drug’s price in Canada, Germany, Australia or the United Kingdom.

…

“In the District’s judgment, patents enable pharmaceutical companies to wield too much market power, charging prices that are ‘excessive’ for patented drugs,” the panel wrote. “The Act is a clear attempt to restrain those excessive prices, in effect diminishing the reward to patentees in order to provide greater benefit to District drug consumers.”

Luckily for freedom’s sake, the law was just struck down in court. But that doesn’t make it’s biggest proponent, Council Member David Catania very happy. His comments suggest a quite different understanding of property than I might hold:

A three-judge appellate panel concluded that the D.C. Council and mayor might have had noble intentions with the pricing law but that it improperly usurps Congress’s power and interferes with the decisions it made in passing the federal patent law. That law allows drugmakers to maintain a monopoly — and a pricing advantage — for years after they patent a new drug.

…

“This may be a worthy undertaking on the part of the District government, but it is contrary to the goals established by Congress in the patent laws,” the judges continued. “The District has thus seen fit to change federal patent policy within its borders.”

Catania yesterday called the ruling “extreme in its scope” and said he will discuss appealing it with the D.C. attorney general.

“It implies that patents would ban any legislation that affects the ability of patent holders to charge whatever they please, which is absurd,” Catania said. “The Supreme Court has already upheld legislation that mandates price discounts to participate in Medicaid formularies. And no one has argued that states cannot enforce antitrust and other rules that limit monopoly prices of drugs indirectly — although the full logical thrust of the opinion would do just that.”

You see, to David Catania, drugs are not owned by pharmaceutical companies, and they have no right to decide what to charge. Drugs are owned by “the public”, and David Catania will set a “fair” price for those drugs.

Property rights are under assault from Caracas to DC. Those who believe property is communally owned, and who would rather give power to the government than the market to provide goods, are quick to reach for their sidearm in to force companies to bend to their will. They do this without an understanding of economics, or the incentives to produce, because the short-term incentive to gain power trumps the long-term goals of ensuring Venezuela has access to steel or that the world has access to newly-developed drugs.

I criticize Venezuela, because Chavez is a brash, unapologetic example of socialism in action. I often highlight Venezuela, because the changes we see in that country are a wonderful case study in what will happen if we allow socialism to further take hold here in the US. But the case in DC shows that we are facing the same pressures here, and never should our willingness to criticize Chavez allow us to forget that while we are using him as an example, the fight needs to be centered here at home.

Sometimes, Rebecca Charles wishes she were a little less influential.

She was, she asserts, the first chef in New York who took lobster rolls, fried clams and other sturdy utility players of New England seafood cookery and lifted them to all-star status on her menu. Since opening Pearl Oyster Bar in the West Village 10 years ago, she has ruefully watched the arrival of a string of restaurants she considers “knockoffs” of her own.

Yesterday she filed suit in Federal District Court in Manhattan against the latest and, she said, the most brazen of her imitators: Ed McFarland, chef and co-owner of Ed’s Lobster Bar in SoHo and her sous-chef at Pearl for six years.

The suit, which seeks unspecified financial damages from Mr. McFarland and the restaurant itself, charges that Ed’s Lobster Bar copies “each and every element” of Pearl Oyster Bar, including the white marble bar, the gray paint on the wainscoting, the chairs and bar stools with their wheat-straw backs, the packets of oyster crackers placed at each table setting and the dressing on the Caesar salad.

Mr. McFarland would not comment on the complaint, saying that he had not seen it yet. But he said that Ed’s Lobster Bar, which opened in March, was no imitator.

“I would say it’s a similar restaurant,” he said, “I would not say it’s a copy.”

Lawyers for Ms. Charles, 53, said that what Ed’s Lobster Bar had done amounted to theft of her intellectual property — the kind of claim more often seen in publishing and entertainment, or among giant restaurant chains protecting their brand.

That’s right. She’s asserting that someone who copied her ideas for a restaurant has violated her intellectual property rights.

As is typically the case with stories, like this, though, there is much more to the story. As it turns out, Ms. Charles’ ideas were not entirely original:

[Ms. Charles] acknowledged that Pearl was itself inspired by another narrow, unassuming place, Swan Oyster Depot in San Francisco.

Now, in the same spirit, couldn’t McFalrand argue that Ed’s Lobster Bar was “inspired” by Pearl ? After all, how many original ideas are there when it comes to restaurants. Doesn’t Ruth’s Chris take it’s inspiration from Morton’s ? And can anyone really tell me the difference between Chili’s and TGI Friday’s ? Or Romano’s Macaroni Grill and The Olive Garden ? It’s food people, there are only so many ways you can make it.

But the essence of the problem with Intellectual Property today comes in the story of a Caeser Salad:

[T]he detail that seems to gnaw at [Rebecca Charles] most is a $7 appetizer on Mr. McFarland’s menu: “Ed’s Caesar.”

She has never eaten it, but she and her lawyers claim it is made from her own Caesar salad recipe, which calls for a coddled egg and English muffin croutons.

She learned it from her mother, who extracted it decades ago from the chef at a long-gone Los Angeles restaurant. It became a kind of signature at Pearl. And although she taught Mr. McFarland how to make it, she said she had guarded the recipe more closely than some restaurateurs watch their wine cellars.

“When I taught him, I said, ‘You will never make this anywhere else,’ ” she insisted. According to lawyers for Ms. Charles, the Caesar salad recipe is a trade secret and Mr. McFarland had no more business taking it with him after he left than a Coca-Cola employee entrusted with the formula for Diet Coke.

Let’s just dissect this one for a second. Ms. Charles learns a Caeser Salad recipe from her mother, who in turn had “extracted” it from another chef decades ago. And now she claims that another chef has violated her intellectual property rights by duplicating it.

More to the point, though, is the fact that Caesar Salad (and, that, by the way, is the proper name, not Ceaser’s Salad),  is in itself an original idea that has been copied by, and modified by, countless chefs, professional and amateur, for the past 83 years. For Ms. Charles to claim that her “modifications” to an idea that has been around for almost a century constitute intellectual property worthy of protection is, quite honestly, absurd.

From a legal perspective, her IP claim is dubious at best. There is admittedly no originality in the recipe.

The only credible legal claim that Charles would have at this point is that McFarland, who was apparently a former employee of Ms. Charles, violated her trade secrets by copying the recipe.

But there are two problems here. First, the recipe itself was a copy from someone else. Second, there’s no evidence from the article that Charles took any steps to maintain the secrecy of the recipe. She shared it with McFarland and did not extract from him any explicit promise that he wouldn’t share it. And, quite frankly, she served the salad to the public on the daily basis. Anyone could’ve taken it home and figured out how she made it.

From a legal perspective, I can’t see how she has a case.

But that’s not purpose of this post.

The purpose of this post is to point out the absurdity of the current state of intellectual property laws. To say you can claim an enforceable right over a food recipe is, quite simply, absurd.

WHAT if, after you had paid the taxes on earnings with which you built a house, sales taxes on the materials, real estate taxes during your life, and inheritance taxes at your death, the government would eventually commandeer it entirely? This does not happen in our society … to houses. Or to businesses. Were you to have ushered through the many gates of taxation a flour mill, travel agency or newspaper, they would not suffer total confiscation.

Once the state has dipped its enormous beak into the stream of your wealth and possessions they are allowed to flow from one generation to the next. Though they may be divided and diminished by inflation, imperfect investment, a proliferation of descendants and the government taking its share, they are not simply expropriated.

That is, unless you own a copyright. Were I tomorrow to write the great American novel (again?), 70 years after my death the rights to it, though taxed at inheritance, would be stripped from my children and grandchildren. To the claim that this provision strikes malefactors of great wealth, one might ask, first, where the heirs of Sylvia Plath berth their 200-foot yachts. And, second, why, when such a stiff penalty is not applied to the owners of Rockefeller Center or Wal-Mart, it is brought to bear against legions of harmless drudges who, other than a handful of literary plutocrats (manufacturers, really), are destined by the nature of things to be no more financially secure than a seal in the Central Park Zoo.

The most fundamental difference, of course, is that copyrights, unlike property rights in land, are purely a creation of the Constitution, which gives Congress the power to:

[P]romote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Rather than recognizing that this provision constituted the Founders understanding that copyrights and patents, rather than merely being a recognizing of already existing property rights were, in reality, the granting of monopoly power by the state and, for that reason, their duration should be limited to a period of time deemed sufficient to reward the creators for the effort and innovation involved in their work.

Helprin ignores this however, and continues with yet another bizarre analogy:

It is, then, for the public good. But it might also be for the public good were Congress to allow the enslavement of foreign captives and their descendants (this was tried); the seizure of Bill Gates’s bankbook; or the ruthless suppression of Alec Baldwin. You can always make a case for the public interest if you are willing to exclude from common equity those whose rights you seek to abridge. But we don’t operate that way, mostly.

The problem with this analogy, of course, is that it ignores the distinction between individual rights (to life, liberty, property, and free speech in the case of the examples cited) and a government created monopoly grant. It is arguably the case, and certainly something that the Founders were concerned about, that grants of monopoly power such as copyrights and patents actually infringe on the liberties of others —- even if were to come up with an idea, or a song, or a poem, completely independently, I would be prevented from profiting from it by virtue of the fact that someone managed to beat me to the Patent and Trademark Office by a few hours.

More importantly, though, how can the government grant a perpetual monopoly over an idea ? Thomas Jefferson himself noted this about intellectual property:

[ideas are] “like fire, expansible over all space, without lessening their density at any point, and, like the air in which we breathe, move and have our physical being, incapable of confinement or exclusive appropriation.”

In other words, once it is in the public domain, whether protected by copyright or not, can anyone truly be said to “own” an idea ? Helprin tries to ignore this argument by making a distinction between ideas and “art”, but the point is the same.

Whether it’s the formula for Bayer Aspirin, though, or the text of To Kill A Mockingbird, there is no rational reason to extend copyright protection indefinitely.  And, more importantly, such a proposal would seem to violate the clear limitations placed on Congresses power to grant these monopolies by the Constitution.

The competition requires significant energy and emissions goals (most importantly, fuel economy) with at least 100 mpg or its equivalent. The guidelines are replacing the outdated MPG with this new standard, MPGe, which takes into account energy equivalents, no matter what the energy source.

Production capability is another important requirement: Vehicles will be judged on specific market production criteria detailed in key areas such as safety, cost, features and business plan. So this X Prize will only open to practicable cars capable of reaching the marketplace—no concept cars or science projects.

You may remember that I posted almost the exact same idea here in December 2006, but that was a cross-post of an August 2005 piece I wrote at The Unrepentant Individual.

Mine was structured slightly differently, but nonetheless it was an identical idea. And I didn’t even get mentioned in this news article. Jerks. Any lawyers want to represent me?

Viacom, the parent company of MTV, Nickelodeon and Comedy Central, filed a wide-ranging lawsuit against Google on Tuesday, accusing it of “massive copyright infringement.” Viacom said it was seeking more than $1 billion in damages and an injunction prohibiting Google and YouTube from committing further infringement.

Citing the $1.65 billion that Google paid for YouTube, the complaint said that “YouTube deliberately built up a library of infringing works to draw traffic to the YouTube site, enabling it to gain a commanding market share, earn significant revenues and increase its enterprise value.” The complaint was filed in United States District Court in New York.

Google said it was still reviewing the lawsuit but repeated past assertions that copyright law shields it from liability for clips posted by its users

I am not an intellectual property lawyer, but at a glance, but it seems pretty straightforward to me that if YouTube was knowingly allowing users to post clips from copyrighed material without the consent of the copyright owner, then there is clear liability on their part for the violation.

It is analagous to the Napster lawsuit from the early 90s; Napster was knowingly allowing its users to trade copyrighted music. Two Federal Courts found, correctly I think, that this violated the rights of the copyright holders in the music and ordered the service shut down. The YouTube situation is slightly differeent from Napster only that there is no evidence that YouTube has actively encouraged users to post copyrighted material. Nonetheless, the risks for Google seem pretty high:

Joseph M. Potenza, a partner at Banner & Witcoff in Washington, said Viacom had a case, judging from “the amount of material and the financial benefit that Google is getting.” Under copyright law, Google might have a defense if it was not told about the copyrighted material, or if it did not benefit financially from it. But neither defense applies in this case, Mr. Potenza said.

But the law is only half the equation here.

Viacom is mostly likely on the right side of the law, but much like the music companies that brought down Google Napster, they may end up being on the wrong side of public opinion. YouTube is immensely popular, and it seems clear that neither Viacom nor any other television network suffers any real financial harm if, say, a 3 minute clip from last week’s The Colbert Report is posted on YouTube. If anything, they get a promotional bonus from it.

Viacom and other media companies would be wise to look at the Napster case and the shattered reputation of the RIAA before they proceed with gusto against YouTube.

YOU, or someone you love, may die because of a gene patent that should never have been granted in the first place. Sound far-fetched? Unfortunately, it’s only too real.

Gene patents are now used to halt research, prevent medical testing and keep vital information from you and your doctor. Gene patents slow the pace of medical advance on deadly diseases. And they raise costs exorbitantly: a test for breast cancer that could be done for $1,000 now costs $3,000.

Why? Because the holder of the gene patent can charge whatever he wants, and does. Couldn’t somebody make a cheaper test? Sure, but the patent holder blocks any competitor’s test. He owns the gene. Nobody else can test for it. In fact, you can’t even donate your own breast cancer gene to another scientist without permission. The gene may exist in your body, but it’s now private property.

Patents exist solely as a creation of the state and are authorized by Article I, Section 8 of the Constitution, which authorizes Congress to:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

When you think about it for awhile, human genes really don’t seem to fall into the category of things that have traditionally been patentable. Yes, identifying the gene for, say, eye color, is a “discovery”, but so is finding the planet Neptune and nobody would seriously suggest that Neptune is patentable. It’s a fact, not an application of scientific fact. Nonetheless, the Patent and Trademark Office has issued patents for genes and, as Crichton argues, it just doesn’t make sense:

Humans share mostly the same genes. The same genes are found in other animals as well. Our genetic makeup represents the common heritage of all life on earth. You can’t patent snow, eagles or gravity, and you shouldn’t be able to patent genes, either. Yet by now one-fifth of the genes in your body are privately owned.

If this were merely an academic argument over the proper application of the patent power, it would be one thing. Unfortunately, by allowing people — mostly pharmaceutical companies — to hold patents in human genes, the PTO is putting lives at risk:

For example, Canavan disease is an inherited disorder that affects children starting at 3 months; they cannot crawl or walk, they suffer seizures and eventually become paralyzed and die by adolescence. Formerly there was no test to tell parents if they were at risk. Families enduring the heartbreak of caring for these children engaged a researcher to identify the gene and produce a test. Canavan families around the world donated tissue and money to help this cause.

When the gene was identified in 1993, the families got the commitment of a New York hospital to offer a free test to anyone who wanted it. But the researcher’s employer, Miami Children’s Hospital Research Institute, patented the gene and refused to allow any health care provider to offer the test without paying a royalty

Crichton asks precisely the right question:

[W]hy should people or companies own a disease in the first place? They didn’t invent it. Yet today, more than 20 human pathogens are privately owned, including haemophilus influenza and Hepatitis C. And we’ve already mentioned that tests for the BRCA genes for breast cancer cost $3,000. Oh, one more thing: if you undergo the test, the company that owns the patent on the gene can keep your tissue and do research on it without asking your permission. Don’t like it? Too bad.

Too bad for you, and too bad for freedom and innovation.

WASHINGTON, Feb. 6 — Hollywood has often been a whipping boy here, but with a new Congress in session, the heads of the major movie studios converged on the capital Tuesday to pitch their industry in the unaccustomed role of good guy: boon to the trade balance, engine of economic growth, polisher of the nation’s image and employer of a big, uncelebrated, middle-class work force.

Yes, that’s right. Right along side Youngstown, Ohio, the film-making capital of the world now considered itself a middle class community.

The conversation often turned to piracy, the existential issue that dominates the association’s agenda. [Taylor] Hackford [director of last year's acclaimed Ray], who spent more than a decade developing “Ray,” told of finding a bootleg DVD of the movie on the day of its theatrical release, and said 42 million illicit copies were sold within five months.

That meant millions of dollars in lost revenue — “and DVDs is how people get their money back,” he said of movie financiers. “If they don’t, will I be able to sell a hard-to-sell picture like ‘Ray’? No.”

Hackford calls himself middle class, but, of course, Ray earned more than $ 75 million dollars.

More importantly, though, his comments are an example of the typical tactics of the movie and music industries. They point to extreme examples, such as the obviously illegal bootlegging of a major motion picture within a week of it’s release, to justify laws like the Digital Millenium Copyright Act, and extension of Copyright protection well beyond it’s original 75 year period, to justif their demand for nearly unlimited control over their so-called intellectual property.

As Nick Gillespie points out at Hit & Run, in the end, it’s the little guy who will end up getting screwed.

The inventor of the “Electric Slide,” an iconic dance created in 1976, is fighting back against what he believes are copyright violations and, more importantly, examples of bad dancing.

Kyle Machulis, an engineer at San Francisco’s Linden Lab, said he received a Digital Millennium Copyright Act takedown notice about a video he had shot at a recent convention showing three people doing the Electric Slide.

“The creator of the Electric Slide claims to hold a copyright on the dance and is DMCAing every single video on YouTube” that references the dance, Machulis said. He’s also sent licensing demands to The Ellen DeGeneres Show, Machulis added.

Indeed, Richard Silver, who filed the copyright for the Electric Slide in 2004, said on one of his Web pages that the DeGeneres Show had been putting up a legal fight as he tried to get compensation for a segment that aired in February 2006 in which actress Teri Hatcher and other dancers performed the popular wedding shuffle.

Silver, it seems, is quite serious about protecting his supposed intellectual property right in the electric slide:

It appears Silver has for several years aggressively defended his copyright on the dance. In 2004, Silver apparently wrote an e-mail to Donna Woolard, an associate professor of exercise science at North Carolina’s Campbell University, demanding she remove a video of the dance from a Web site. He complained the dance wasn’t being done correctly on the video, and Woolard took down the video.

Silver wrote, according to e-mail correspondence posted by Woolard, that he had sued two Hollywood production companies for using the dance in several films and that he was now adding her as a co-defendant. It’s unclear what happened to the suit.

It’s stuff like this that makes me think that the entire idea of intellectual property is nonsense upon stilts.

H/T: Slashdot

Considering the amount of money that the game brings in, it’s not surprising that the NFL would be protective of it’s product. This, however, strikes me as an immensely inappropriate extension of the copyright law:

Churches in Indiana and across the country are scrapping traditional Super Bowl viewing parties in wake of the NFL’s stance that mass viewings of the game on big screen TV’s would violate copyright law.

The issue came to light Thursday when the Star reported that the NFL had told Fall Creek Baptist Church in Indianapolis that its plans for a Super Bowl watch party in front a big screen TV would be illegal.

NFL spokesman Greg Aiello said Thursday the league stands by its interpretation of copyright law and would look into any violators that comes to the league’s attention. The main concern for the league, Aiello said, is groups that charge admission to watch games and those that use a TV screen larger than 55 inches to show the game.

A story about Fall Creek’s plan to cancel its game viewing plans prompted dozens of calls and more than 500 email comments to the Star’s website Thursday. Aiello said media from around the country have been inquiring with the league as well.

In Indianapolis, home of the AFC Champion Colts, Indian Creek Christian Church and Castleton United Methodist Church are among those who have cancelled plans to watch the game in their churches.

And it’s not just the issue that seems to annoy the NFL, because they even object to mass-viewing parties where no admission is charged:

Aiello said the league has a longstanding policy against “mass out-of-home viewings” of the Super Bowl, even if the hosts don’t charge admission. The NFL makes an exception to that, however, for sports bars that show televised sports on a regular basis.

Why the NFL should care if I invite 60 of my closest friends over to watch the Super Bowl, at no charge, on my bigger-than-55-inch television (if I had one, that is) is entirely beyond me. And it’s yet another example of how state-protected copyrights are used to restrict individual choice.

H/T: Vivian Paige

A lawsuit in which record companies accuse XM Satellite Radio Holdings of cheating them by letting consumers store songs can proceed toward trial, a judge ruled yesterday after finding merit to the companies’ claims.

Judge Deborah A. Batts of United States District Court in New York made the finding in a case brought by the Atlantic Recording Corporation, BMG Music, Capitol Records and other music distribution companies against XM Satellite, the satellite radio broadcaster.

In a lawsuit last year, the companies said XM infringed on their exclusive distribution rights by letting consumers record songs onto special receivers marketed as “XM + MP3” players.

XM argued that it was protected from infringement lawsuits by the Audio Home Recording Act of 1992, which permits individuals to record music off the radio for private use. The judge said she did not believe that the company was protected in this instance by the act.

While this is an early stage of the proceedings, this doesn’t strike me as very good news, or anyone else who believes in freedom to innovate. Especially when you consider remarks like this:

The judge said XM operated like traditional radio broadcast providers who cannot offer an interactive service, publish programming schedules before broadcast and play songs from an artist more often than specified within a three-hour period. But by broadcasting and storing copyrighted music for later recording by the consumer, the judge said XM was both a broadcaster and a distributor, but was paying only to be a broadcaster.

“The record companies sufficiently allege that serving as a music distributor to XM + MP3 users gives XM added commercial benefit as a satellite radio broadcaster,” Judge Batts said.

And what’s so wrong with that ?

Related Posts:

Copyright Law And The Assault On Innovation

From Of Arms and the Law:

S.1 has been introduced in the Senate as “lobbying reform” — which in this case means “First Amendment infringements.” An amendment has been attached, which requires registration of bloggers with more than 500 readers, and who comment on policy issues. Violation would be a criminal offense.

I looked it up on the Library of Congress webpage (which is essentially unlinkable) and have attached section 220 in extended remarks, below. As the bill is reported, it appears to cover any “paid” grassroots lobbying, that reaches more than 500 people. But a blogger who receives contributions might be classed as a “paid” grassroots type. It looks like Congress wants to keep an eye on annoying people like Porkbusters. It may be significant that S.1 was introduced by Harry Reid, one of the Kings of Pork.

[UPDATE] We won this round. The Senate passed the Bennett Amendment, which eliminated the questionable language. Here is the roll call vote.

However, the Gregg Amendment, which would have established a line-item veto was blocked by the Harry Reid and Robert Byrd.

[ANOTHER UPDATE] Welcome to all Instapundit readers!

A federal judge in Texas has ruled that it is unlawful to provide a hyperlink to a Webcast if the copyright owner objects to it.

U.S. District Judge Sam Lindsay in the northern district of Texas granted a preliminary injunction against Robert Davis, who operated Supercrosslive.com and had been providing direct links to the live audiocasts of motorcycle racing events.

Lindsay ruled last week that “the link Davis provides on his Web site is not a ‘fair use’ of copyright material” and ordered him to cease linking directly to streaming audio files.

The audio Webcasts are copyrighted by SFX Motor Sports, a Texas company that is one of the largest producers of “Supercross” motorcycle racing events. SFX sued Davis in February, noting that fans who go to its own Web site will see the names and logos of sponsors including wireless company Amp’d Mobile. (Anyone who clicked on the link from Davis’ site, however, would not see the logos of companies that paid to be sponsors.)

Think for a second about what this means. You’re not posting copyright material yourself, you’re not even quoting from it. All you’re doing is linking to it. And yet, according to Judge Lindsey, this is a copyright violation. Of course, if he’s right, then the entire World Wide Web is nothing more than one big copyright violation, as John Dvorak points out:

A link is a link. Banning deep linking is a step towards banning all linking, and what does that do for the Google business model? Where are the Google attorneys helping out in this case? Are they helping out on the appeal? If not, then why not?

How do we even use the Internet if deep linking is illegal for some reason? We don’t, that’s how. Goodbye, Amazon. Hey Jeff, did you help out on this case?

Cases like this point out the problems I have with the entire concept of intellectual property law. How am I violating your rights if I post a link on my website to something you posted on yours ?

It’s not as if I took your content and appropriated it as my own. Heck, I haven’t even altered your content to make it appear original. Moreover, if you don’t want me deeplinking to your site, the you can take steps to make sure that won’t happen, but not doing so, you are implicitly saying it’s acceptable.

Of course, as the New York Times has discovered, hiding content behind a firewall seldom leads to success.

H/T: QandO

Satellite and Internet radio services would be required to restrict listeners’ ability to record and play back individual songs, under new legislation introduced this week in the U.S. Senate.

The rules are embedded in a copyright bill called the Platform Equality and Remedies for Rights Holders in Music Act, or Perform Act, which was reintroduced Thursday by Sens. Dianne Feinstein (D-Calif.), Lindsey Graham (R-S.C.), Joseph Biden (D-Del.) and Lamar Alexander (R-Tenn.). They have pitched the proposal, which first emerged in an earlier version last spring, as a means to level the playing field among “radio-like services” available via cable, satellite and the Internet.

By their description, that means requiring all such services to pay “fair market value” for the use of copyright music libraries. The bill’s sponsors argue the existing regime must change because it applies different royalty rates, depending on what medium transmits the music.

But the measure goes further, taking aim at portable satellite radio devices, such as XM Satellite Radio’s Inno player, that allow consumers to store copies of songs originally played on-air. The proposal says that all audio services–Webcasters included–would be obligated to implement “reasonably available and economically reasonable” copy-protection technology aimed at preventing “music theft” and restricting automatic recording.

“New radio services are allowing users to do more than simply listen to music,” Feinstein said in a statement. “What was once a passive listening experience has turned into a forum where users can record, manipulate, collect and create personalized music libraries.”

Excuse me, Senator Feinstein, but I’m pretty sure you were alive in the 1980s. Back then, we used cassette recorders to, effectively, accomplish the same thing that XM’s Inno player would — record songs off the radio so we could listen to them on our portable music players. What the heck is the difference today ?

Perhaps I’m being cynical, but I think the only difference is the amount of money the RIAA is contributing to political campaigns.