Archive for December, 2003

I have a title for my next article — so it is just about finished. The genius of courts is that they're not neutral or representative or anything else (or even more logical than other institutions), it's that they are not political — they're not institutionally ambitious — unlike the Mass Media Bureau of the FCC. So only courts can decide what the jurisdiction of an agency is.
We want certain decisions made by courts — like whether the FCC had jurisdiction to issue the broadcast flag rule. No court should defer to FCC's decision about its jurisdiction in this regard, particularly in the absence of any explicit statute, and particularly because FCC has said many times over the years that it has no jurisdiction over copyrights. The fact that FCC changed the title of its rule from “copy protection” to “content protection” at the very last moment speaks volumes. This is really about copyrights.
Just as in the FDA situation, courts need to be strong and hold their institutional own. More later.

I have aged. I have been listening to the last Names Council call. You can listen to it too, here. I can't seem to tear myself away. It seems as if Christopher Wilkinson saw my last post — he muttered something about hoping the casual comment he was about to make would not be “blogged all over the world.” Thomas Roessler pointed out that an mp3 recording of the call would be made available. But, rest assured, I am not blogging Mr. Wilkinson's remarks.
I am, however, troubled by the overall confusion that appears to reign at this moment with respect to what this PDP is designed to do.

If registries don't need to ask permission before acting to introduce something that isn't a registry service, and let's assume that the SiteFinder service was not a registry service, then how would this PDP apply to such introductions?

What's the relationship of all this to a consensus policy? If this is a consensus policy process, then if the registries resist the policy, it must mean that consensus will, in the end, not be documented. A mere vote of the GNSO won't do it. The objection of the registries, if they do object, will be eminently reasonable and not designed to harm anyone else — so it will block consensus. If anyone's an “impacted party,” they are. A statement during this call that no one constituency has any more “rights” than another has no application to the consensus process — which attempts to listen to particularly affected parties. If this isn't a consensus process, then why would registries adhere to the output?

What's the scope of the process that this PDP will guide? Who will decide what steps by registries have to enter into the stream of decisions to be made by ICANN?

I'm still listening. I'm getting older by the minute. I'm confused. If this is internet governance, we need some better governors.

The New York Times is reporting that the RIAA is starting another round of lawsuits this week. RIAA's president, Cary Sherman, told the Times that “People who engage in illegal file-sharing should be aware, whether or not they hear about it this month, that doesn't mean the enforcement program has been reduced in any way. If anything it will be increased.''
Here's my view about this. The RIAA is trying to be careful to sue only downloaders of significant numbers of songs. What these downloaders are doing is clearly illegal. And to the extent these suits alert more people to the existence of copyright law, that's a fine thing. These suits are well-founded and legitimate. The DMCA allows the subpoena process that the RIAA is using, and I don't see that process as a tremendous problem (I'm aware this is a heretical view). The RIAA is now warning people of its proposed actions, which helps.
On the other hand: there is still an enormous amount of resentment out there among the younger set about the expense of music. Its price doesn't seem to match what it's worth to millions of consumers, and the fact that expensive CDs will be copy-protected only adds to the upset. There's no particular reason not to have price competition as between major labels, and Universal's suggestion of a couple of months ago that it would lower its prices was very welcome. (Universal quickly ran into an MSRP issue with retailers, but we trust that will be straightened out eventually.)
The continued misfit between what the public wants and what the labels want seems significant to me. (Enormous exception: cheap sources of downloadable music that can be easily burned onto portable media.) Let's choose a product other than music — say, bicycles. If all bicycle manufacturers said all bicycle purchasers have to buy a particular form of bicycle, and that no bicycle can be loaned to a friend, we'd be upset — and some black-market bicycle makers would show up with cheaper goods that consumers liked. What's so special about songs? Why do they get such special treatment? It must be true that all law is becoming intellectual property law — it's like the growth of Chinatown. It's taking over. Little Italy, seen as a land of competition, choices, and value (take this leap of faith with me) is shrinking. We're left with shards of rights, compliant devices, and expensive tunes.
So: I'm all for the lawsuits, that's fine, but you can't build a marketplace through litigation. Just as you can't demand that you come from a happy family, and make that true by fiat, you can't create loyalty to a product or a service by suing some of your customers.

Judge Posner of the Seventh Circuit has issued a brief, plain decision here. I don't know him, but reading the opinion you can almost hear the irritation in his voice.
It appears that a database designer had municipalities plug in information about real estate properties into the designer's database. The compilation of data is likely copyrightable (because of the categories chosen by the designer), but the designer is trying to use that compilation copyright (and the contracts it has signed with the municipalities) to block anyone from gaining access to the admittedly public domain data contained in the database — data that wasn't even collected by the database designer. There's no other way to get this data.
Posner deftly (and very quickly indeed — pay attention, law reviews) dismisses each claim brought by the database designer:

From the standpoint of copyright law all that matters is that the process of extracting the raw data from the database does not involve copying Market Drive, or creating, as AT mysteriously asserts, a derivative work; all that is sought is raw data, data created not by AT but by the assessors, data that are in the public domain.

No infringement here. And even if the raw data were inextricably intertwined with the database design, or compilation of categories,

if the only way WIREdata could obtain public-domain data about properties in southeastern Wisconsin would be by copying the data in the municipalities’ databases as embedded in Market Drive, so that it would be copying the compilation and not just the compiled data only because the data and the format in which they were organized could not be disentangled, it would be privileged to make such a copy, and likewise the municipalities. For the only purpose of the copying would be to extract noncopyrighted material, and not to go into competition with AT by selling copies of Market Drive.

And, finally, a nice discussion of a not-frequently-used doctrine: copyright misuse. As Posner puts it, “To try by contract or otherwise to prevent the municipalities from revealing their own data, especially when, as we have seen, the complete data are unavailable anywhere else, might constitute copyright misuse.”

The argument for applying copyright misuse beyond the bounds of antitrust, besides the fact that confined to antitrust the doctrine would be redundant, is that for a copyright owner to use an infringement suit to obtain property protection, here in data, that copyright law clearly does not confer, hoping to force a settlement or even achieve an outright victory over an opponent that may lack the resources or the legal sophistication to resist effectively, is an abuse of process.

Posner doesn't even need to get to that claim (not that the somewhat hapless data seeker made it), because he's already gotten rid of the claims presented. He finishes off by pointing out that sui generis database protection isn't relevant (even if we had such a law), because the designer didn't gather the data, and there's no possible breach of contract claim — because the entity seeking access to the data isn't a party to any agreement with the designer.
A victory for rationality. And a warning to those who would use copyright claims to convert otherwise freely-available material into private property.

The Names Council met last week and will be meeting again next week to discuss a PDP for how ICANN should react to registry “proposals” (the new buzzword — an attempt to ensure that actions that do not necessarily add up to the introduction of a new “Registry Service” will nevertheless be subject to ICANN approval).
Midway through last week's call (here's a link for listening), at about 1:09, Christopher Wilkinson cleared his throat and balefully said the following (paraphrasing — listen to the call to get the exact text):

My main point is to encourage the GNSO Council to avoid ideological terminology. We are dealing with a situation currently where many governments need to know where regulatory authority over the Internet lies. Currently it lies in the ICANN/GAC public/private partnership. It is not productive to the present debate to deny that ICANN holds regulatory power. It has to be there somewhere. It’s through ICANN that the Council is acting. [A registry representative had said that ICANN is not a regulator.] . . . . It is not helpful to tell the world that ICANN has no regulatory authority. If that’s the message from the private sector, then many governments will say that the existing public/private partnership is not enough.

This is an important moment, and we should pay attention to Mr. Wilkinson's message. His point is that someone must be in charge. Someone must hold the reins; someone must be telling the registries what to do, even if their contracts with ICANN don't require any prior permission in order to act. Regulatory power has to be there somewhere, Mr. Wilkinson is saying. And if ICANN doesn't show that it has this power, governments will Have To Step In.
This is in the context of the assertion by ICANN staff (listen to the call carefully) that it is not appropriate to allow registries to act without permission.
What's remarkable about this moment is that the hot potato of DNS standard-setting is still up in the air. The US government didn't want to appear to be in charge, and wanted to convince European governments that it wasn't in charge, and so it created (or called for the creation of) ICANN. ICANN was designed to keep other governments at bay. ICANN has, however, no particular delegated power beyond that accorded to it by the contracts it has signed with registries and registrars. In fact, it can't have more power than that, because if it pretends to be a regulatory agency it should be complying with the APA — and if it pretends to be a regulator its private nature probably violates US law in a number of respects. Right now, though, it needs to pretend to be a regulator just enough to keep other governments happy (according to Mr. Wilkinson). But it's in a bind: it really isn't a regulator, and there's no reason for registries to agree to have their every “significant” (whatever that means) action approved by ICANN.
Mr. Wilkinson's sentiment — regulatory power must be there somewhere — also points to another sharp distinction that isn't being understood at the moment: At the moment, no one governs the Internet. ICANN isn't about Internet governance (whatever that means). ICANN worries about registries and number allocation. That's it. If the world wants to make rules about content and identity and intellectual property and cybercrime, the world will have to find another vessel. ICANN cannot bear that burden.