June 12, 2008
UMG Loses Promo CD Sale Suit
A federal judge handed a loss to Universal Music Group yesterday over the issue of whether promotional items given out may be resold. Universal said they were licensed and the First Sale Doctrine does not apply. The judge said they were classic gifts and, yes, the doctrine did apply. Cue the Nelson ha-ha from the Simpsons.
UMG sued Troy Augustino for copyright violation because he sold promo copies of UMG CDs on eBay. Augustino, with the help of the Electronic Frontier Foundation, fought back. He claimed the so-called license text printed on the CD was not a license, that the distribution of the discs by UMG constituted a gift, or under the circumstances, UMG abandoned the subject CDs under California law. The court reviewed summary judgment motions and analyzed each of these points.
After careful analysis of how the transaction of distributing a promo CD is conducted, noting that UMG does not ask for the discs to be returned after a period, and examining prior precedents comparing licenses to gifts, the Court concludes that the distribution of promo CDs is a gift. The Court stated:
Looking to the economic realities of the transaction, UMG's distribution of Promo CDs provides the recipient with many critical rights of ownership, including the right to perpetual possession and the freedom from obligations to UMG. Accordingly, UMG's distribution of Promo CDs to the music industry insiders is properly characterized as a gift or sale, not a license, and title to the CDs transferred to the insiders. Augusto is thus protected by the first sale doctrine. (Slip Op. at 8)
The Court did not stop there. It reviewed the second argument that the CDs were gifts under federal law. The law only covers consumers. The Court rationalized that music insiders who received the promotional items were influential consumers, and this brought them in the ambit of the statute. Further analysis showed that music insiders treated the license as a gift by routinely disposing of CDs. Hence, title was transfered from UMG to music insiders and subject to the First Sale Doctrine.
The third claim that UMG abandoned the CDs under California law was rejected as Augustino could only show passivity on the part of UMG.
A copy of the ruling is at the EFF web site here.
June 11, 2008
Trade Association Lobbies Against Google
Why do corn growers care if Google hooks up with Yahoo! for an ad deal? Apparently "they" do. The puzzling details are at CNET.
Carbon Belch Day Coming Tomorrow
June 12 is the very politically uncorrect Carbon Belch Day. No, really. I plan to celebrate by using a lead pencil. Read about it in the Huffington Post and follow the links.
June 10, 2008
A New iPhone Is Revealed
An Apple 3G phone at $199? It must suck to be an early adopter, unless waving the thing in other people's faces was worth the money. How will it be special if more people can afford one? The unit's features are aimed to generate business adoption, something the first one lacked, and will be available for the breathless masses on July 11. Details on the new Apple iPhone announced on Monday are at Ars Technica, CNET, PC World, and Time. Will the new iPhone be the invention of the year? Or Century?
Oh yeah, there was some news on OS 10.6, code-named Snow Leopard.
Yahoo! and Icahn: Letters, We've Got Letters
Yahoo! and Carl Icahn keep sending nasty letters to each other. Icahn accuses the Yahoo!'s Board of mismanagement, especially in regard to the employee compensation plan that Icahn (and other commentators) characterize as a poison pill. No sense in recounting the charges and replies. The letters, as of today, are neatly organized at the Ars Technica site here. This will go on through August 1, when the proxy fight for the shareholders comes to a head at the next board meeting.
Mighty Mouse Suit Targets Apple Product
Here he comes to clog the courts. It's Mighty Mouse and he/it is part of a lawsuit involving Apple, CBS, and the company that brought the suit, Man & Machine. It seems as if CBS licensed the cartoon character name to Apple for rugged mice, even though Man & Machine sold similar products under the same name a year before Apple began selling. Man & Machine claims CBS didn't have the rights to license the name to computer products.
June 9, 2008
Sony Settles Blu-Ray Infringement Suit
Blu-Ray is safe again as Sony settles the lawsuit brought by Columbia Professor Gurtrude Rothschild. The suit involved underlying technology that makes blue lasers blue and able to read high density discs. Terms weren't disclosed, but Professor Rotschild is said to be very happy. I'm sure she got more that a Playstation 3.
Lessons in e-Discovery
Remember the scandal over text messages sent by Detroit Mayor Kwame Kilpatrick? Those were messages sent to a paramour, another city employee, via city-owned hand held. Aside from being personally dangerous to a career, the lessons were repeated recently at the Midwest Technology Leaders Conference at the MGM Grand Hotel in Detroit. Speakers at the conference used the incident to remind people that electronic evidence is quite discoverable under the Federal Rules. This includes data on all of the company hard drives, back-up systems, thumb drives, and everything else that can store official communications. Voicemail is increasingly stored in unified mailboxes, so committing something to a phone call doesn't always escape the discovery purview. The conclusion, destroy all material not necessary to be kept for business purposes, as long as it is not the subject of (potential) litigation.
More on this from the Detroit Free Press. See also this story on how inadvertent disclosure of electronic documents led to a waiver of attorney client privilege in another case. The same case is discussed in the ABA Journal. The subject opinion in the case of Victor Stanley, Inc. v. Creative Pipe, Inc., et al. (MJG-06-2662, District of Maryland) is here. There is this story in the Philadelphia Inquirer. Network World offers 10 tips for moving e-discovery into the enterprise, and another from the Wisconsin Technology Network on e-discovery as it relates to unified communications. Xerox Litigation Services ran a survey on corporate preparedness. For some, their internal systems are not ready for compliance.
AT&T Says BitTorrent Users Are Fine With Us
John Donovan, AT&T's chief technology officer, says the company does not block or slow down BitTorrent users or discriminate against any other applications. But he says that the company will be testing usage-based pricing this fall.
"I don't view any of our customers, under any circumstances, as pirates -- I view them as users. A heavy user is not a bad customer."
How about that, a morality lesson from AT&T to Comcast, Warner Cable, and others. Use whatever, pay for the bandwidth. We'll worry about the deep packet inspection and cooperation with the NSA in the other departments.
The whole interview is in Wired.