The University of Chicago Law School Faculty Blog

IP Update: eBay Decided/C&C in the NYT

Two quick items:

1. The Supreme Court decided the eBay case today, one of the key patent decisions before the Court this Term. The opinion is here; eBay wins; the syllabus is below the fold.

2. If you are into C&C—that would be content & carriage—the New York Times had three very interesting articles yesterday. Start with Kevin Kelly’s “Scan this Book.” The article is worth more attention in a subsequent post, but here is what I tag as the most interesting/controversial suggestion: “Copyrights must be counterbalanced by copyduties. In exchange for public protection of a work's copies (what we call copyright), a creator has an obligation to allow that work to be searched. No search, no copyright.” Then read Richard Siklos’s Media Frenzy column on the tricky issues in converging TVs and PCs. Finally, read Jacques Steinberg’s piece on the current state of moving TV content to the Internet and the difficulties that can arise from divided ownership.

More on Plagiarism and Fair Use

The New York Times’s Sports Section had another plagiarism story yesterday, this one relating to NBC’s broadcast of the Kentucky Derby. Apparently in the pre-race show, NBC ran through the challenges faced by a number of the participants, including Michael Matz, the trainer for eventual-winner Barbaro. Matz had been in a plane crash and rescued three kids. Sounds like genuine heroism.

 

NBC captured this by using language from the television show West Wing, which had its series finale Sunday night. The borrowing of West Wing dialogue took two forms. Tom Hammond, one of NBC’s announcers, stated that Matz “ran into the fire to save the lives of three children,” and then paused and repeated, “ran into the fire.”

 

For those of us who are West Wing watchers—my wife and I netflix it and just started season 6—that line immediately resonates. Fictional President Jed Bartlet, played by Martin Sheen, delivered that line in an end-of-episode speech, a line written by heartthrob speech-writer—this is fiction remember—Sam Seaborn, played by Rob Lowe. The NYT also quotes a second line read by Hammond and matches that with corresponding text from West Wing.

 

NBC has already conceded the plagiarism and has said that it will no longer accept work from the responsible freelance writer. Last week, I raised the question of the relationship between plagiarism and copyright’s fair use doctrine. What should we think of this situation?

 

Municipal Wireless: Philadelphia Freedom?

Philadelphia approved today its deal with EarthLink to turn Philadelphia into a giant Wi-Fi hotspot. Philadelphia is usually described as the first large city to head down this path, though many smaller cities have already done so. (MuniWireless.com has detailed information about many of these efforts.)

 

I recently gave a talk on Telecommunications Entry and Preemption at a conference on preemption at the American Enterprise Institute. The conference was organized by our Richard Epstein and Michael Greve of AEI. You can find the papers here (and my paper in particular here).

 

My paper addresses past efforts in choosing jurisdictional level for telecommunications entry—cable franchising, the Pole Attachments Act of 1978 and satellite television—and also looks at municipal wireless broadband and video franchising for IPTV (television over fiber from new video entrants such as AT&T and Verizon).

 

I also have slides and AEI has a webcast here (click on the video link in the upper-right corner). (The webcast audio is perfect but the video reveals the dangers of a peripatetic speaker.) I will do a second draft of the paper over the next month, so if you have comments here or via email, please let me know.

 

Cost of Iraq War Exceeds Cost of Kyoto Protocol

In today's Washington Post, I have an oped comparing the cost of the Iraq war with the cost of the Kyoto Protocol. Here are some excerpts, followed by a few additional comments:

"For the United States, the total cost of the Iraq war will soon exceed
the total anticipated cost of the Kyoto Protocol, the international
agreement designed to control greenhouse gases. For both, the cost is
somewhere in excess of $300 billion.

Stone: "The Commander in Chief"

The Law School was delighted to welcome back so many alumni this past weekend for our annual Reunion. Geoffrey Stone '71 (celebrating his own reunion) kicked off the weekend on Friday, May 5 with a standing-room-only talk entitled "The Commander in Chief." Despite his initial comment that he would be talking about Law School deanship, he settled into a spirited talk and discussion about the very hot issue of the scope of Presidential power. To listen to the talk and the Q&A, click here. Instructions for the uninitiated are, as always, here.

TiVo and Paying for Television

Randall Stross who writes the Digital Domain column for the New York Times has an interesting column today on the difficulties that digital video recorders pose for ad-supported television—free TV—and he also addresses how circumstances have changed since the Supreme Court’s decision in Sony in 1984 regarding home-taping—time-shifting—as fair use. Stross and I had a lively conversation last week about the issue.

If you would like to read more, I have a fairly extended treatment of this issue in my paper “The Digital Video Recorder: Unbundling Advertising and Content” (here as a pre-publication version and here, the 2004 published version if you have access to Hein Online).

Update: Copyright guru Bill Patry addresses this in a new post.

Prosecuting the Press

Never once in the history of the United States has the national government criminally prosecuted the press for publishing information the government would rather keep secret. In recent weeks, however, the Bush administration and its advocates, including Attorney General Alberto Gonzalez, have repeatedly threatened to prosecute the New York Times and the Washington Post for publishing their Pulitzer Prize-winning exposés of the administration’s secret prisons in Eastern Europe and secret NSA surveillance of American citizens.

All Copying is Shallow

One of the core tenets of the open-source movement is that “all bugs are shallow.” With enough eyes looking at the code, someone will figure out a lurking problem and will do so easily. Copyright should have its own version of this: all copying is shallow and all plagiarism is shallow. With enough readers, authors will learn if their work has been copied.

 

Kaavya Viswanathan’s novel “How Opal Mehta Got Kissed, Got Wild and Got a Life” was recalled last week after it appeared that Ms Viswanathan had copied a substantial number of passages from two other novels, “Sloppy Firsts” and “Second Helpings,” both by Megan McCafferty. Now, according to a report in this morning’s NYT, it appears that other passages in the book may have been copied from “Can You Keep a Secret?” by Sophie Kinsella. The remix culture—take pieces from many sources and recombine them in a new work—has come to text.