A new bill introduced to congress today, called “The Unlocking Technology Act,” seeks to make unlocking, jailbreaking, and otherwise modifying phones, tablets, and other mobile devices completely legal. It’ll legalize DVD ripping as well. For more information, read this and contact your representative and show your support if this is something you want to pass. Read more…
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A new bill introduced to congress today, called “The Unlocking Technology Act,” seeks to make unlock
A Second Circuit Appeals Court judge has handed down a landmark fair use decision in Cariou v. Prince . Prince, a collagist, remixed some of Cariou’s photos and sold them for large sums. Cariou argued that the new works were not fair because Prince did not create his collages as a comment on the original (one of the factors judges can consider in fair use cases is whether the new work is a commentary or parody). The lower court agreed, and ordered destruction of the show catalogs and a ban on hanging the new works. But the appeals court overturned, and held that a use can be fair even when it doesn’t comment on the original. “We conclude that the district court applied the incorrect standard to determine whether Prince’s artworks make fair use of Cariou’s copyrighted photographs,” writes Judge B.D. Parker in the decision, which was released this morning. “We further conclude that all but five of Prince’s works do make fair use of Cariou’s copyrighted photographs. With regard to the remaining five Prince artworks, we remand the case to the district court to consider, in the first instance, whether Prince is entitled to a fair use defense.” “This decision absolutely clarifies that the law does not require that a new work of art comment on any of its source material to qualify as fair use,” attorney Virginia Rutledge told A.i.A. by phone this morning after a preliminary survey of the decision. “This is a major win for Prince on at least two counts,” NYU art law professor Amy Adler told A.i.A. via e-mail. (She consulted on the case but was speaking for herself.) “The court decided that artwork does not need to comment on previous work to qualify as fair use, and that Prince’s testimony is not the dispositive question in determining whether a work is transformative. Rather the issue is how the work may reasonably be perceived. This is the right standard because it takes into account the underlying public purpose of copyright law, which should not be beholden to statements of individual intent but instead consider the value that all of us gain from the creation of new work.” Richard Prince Wins Major Victory in Landmark Copyright Suit [Brian Boucher/Art in America] ( Thanks, Tim ! )
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Fair use decision: remixing is legal even when there is no intent to comment or parody original work
Robbo sez, “The Independent Filmmaker Project has a great post examining the nonsense which continues to surround Sir Arthur Conan Doyle’s most loved character, Sherlock Holmes (now 125 years old) , and whether he resides not just at 221B Baker Street – but also in the public domain.” According to the lawsuit all the Sherlock Holmes stories entered the public domain under the laws of the United Kingdom and Canada in 1980. However, with the passage of the U. S. Copyright Act of 1976 the author of a work that had passed into the public domain in the United States, or his heirs, were entitled to restore the work to copyright in the United States under certain conditions. In 1981, Dame Jean Conan Doyle, the last surviving child of Sir Arthur Conan Doyle, applied for registration of the copyright to “The Case-Book of Sherlock Holmes,” a collection of stories. This work is comprised of 12 stories that were first published in various periodicals between 1921 and 1927, and the collection was first published as a book in the United States in 1927. The complaint asserts that the Doyle estate sent a letter to Pegasus Books threatening to prevent publication of “In the Company of Sherlock Holmes” unless it was paid a license fee. Kingler’s prior publisher, Random House, had reluctantly paid $5,000 fee for an earlier Klinger collection he edited titled “A Study in Sherlock,” even though Klinger believed he was not legally required to do so. The suit asks the court to make a declaratory judgment, establishing that the basic “Sherlock Holmes story elements” are in the public domain under U.S copyright law. Klinger claims that the stories in his new collection avoided drawing on copyrighted elements introduced in any of the Holmes stories published after January 1, 1923. In a 2004 decision, a U.S District court judge Naomi Reice Buchwald determined that of Doyle’s 60 Sherlock Holmes stories, nine might still be under copyright.[2]Although the character of Sherlock Holmes is in the public domain, various storylines, dialogue and characters that first appeared in these nine stories could be protected under U.S. copyright law. A copyright for a derivative work based on a prior work does not create copyright protection retroactively for the underlying work but can protect new material that has been added. Attentive readers will remember last month’s post about the scholar who is suing the Holmes estate over this question. Sherlock Holmes and the Case of the Public Domain [Mark Litwak/IFP] ( Thanks, Robbo ! )
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Sherlock Holmes copyrights are an insane hairball
An en banc (all the judges together) decision from the 9th Circuit has affirmed that you have the right to expect that your laptop and other devices will not be forensically examined without suspicion at the US border. It’s the first time that a US court has upheld electronic privacy rights at the border, and the court also said that using an encrypted device that can’t be casually searched is not grounds for suspicion. The judges also note that the prevalence of cloud computing means that searching at the border gives cops access to servers located all over the world. At TechDirt, Mike Masnick has some great analysis of this welcome turn of events: The ruling is pretty careful to strike the right balance on the issues. It notes that a cursory review at the border is reasonable: Officer Alvarado turned on the devices and opened and viewed image files while the Cottermans waited to enter the country. It was, in principle, akin to the search in Seljan, where we concluded that a suspicionless cursory scan of a package in international transit was not unreasonable. But going deeper raises more questions. Looking stuff over, no problem. Performing a forensic analysis? That goes too far and triggers the 4th Amendment. They note that the location of the search is meaningless to this analysis (the actual search happened 170 miles inside the country after the laptop was sent by border agents to somewhere else for analysis). So it’s still a border search, but that border search requires a 4th Amendment analysis, according to the court. It is the comprehensive and intrusive nature of a forensic examination—not the location of the examination—that is the key factor triggering the requirement of reasonable suspicion here…. Notwithstanding a traveler’s diminished expectation of privacy at the border, the search is still measured against the Fourth Amendment’s reasonableness requirement, which considers the nature and scope of the search. Significantly, the Supreme Court has recognized that the “dignity and privacy interests of the person being searched” at the border will on occasion demand “some level of suspicion in the case of highly intrusive searches of the person.” Flores-Montano, 541 U.S. at 152. Likewise, the Court has explained that “some searches of property are so destructive,” “particularly offensive,” or overly intrusive in the manner in which they are carried out as to require particularized suspicion. Id. at 152, 154 n.2, 155–56; Montoya de Hernandez, 473 U.S. at 541. The Court has never defined the precise dimensions of a reasonable border search, instead pointing to the necessity of a case-by-case analysis…. The court is led by Chief Judge Alex Kozinski, who is a fan of my book Little Brother (which features a scene where DHS officials force a suspect to decrypt his devices, on the grounds that his encryption itself is suspicious), and was kind enough to write me a blurb for the new edition of the book. I’m not saying that Little Brother inspired Kozinski to issue this decision, but I’m delighted to discover that something I’ve been pushing through fiction since 2008 has made it into law in 2013. 9th Circuit Appeals Court: 4th Amendment Applies At The Border; Also: Password Protected Files Shouldn’t Arouse Suspicion
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US Ninth Circuit says forensic laptop searches at the border without suspicion are unconstitional
Generally, Facebook is making money of you (or at least trying) by collecting all your info and then parceling it all out for ads. But now the tables have turned, maybe kinda sorta. Thanks to an ongoing class action lawsuit, you may be entitled to up to 10 whole dollars from the social networking giant. Take that, Zuck! More »
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Does Facebook Owe You Money?