Archives for August 2015

Copyright Claims of Foreign Authors Violates the First Amendment

A number of press reports have given the impression that the Colorado District Court’s ruling in Golan v. Holder  means that that Federal laws reviving expired copyrights violate First Amendment protections on free speech. The actual ruling is far narrower.

In 1993, Congress enacted 17 U.S.C. Section 104A, to permit foreign authors whose copyrights had fallen into the public domain for technical reasons (such as by failing to renew the copyright with the U.S. Copyright Office) to restore their copyrights. Section 104A solely permitted “restoration” of copyright protection for works from “a nation other than the United States.”  Section 104A was added after the United States joined the Berne Convention for the Protection of Literary and Artistic Works — a treaty first enacted in 1886, but not joined by the U.S. until 1988. Article 18 of the Convention requires member nations to provide copyright protections to works by foreign authors so long as the term of protection in the country of origin has not expired as to the work.

The plaintiffs were U.S. artists who used works by foreign artists that had been in the public domain before 1994, such as Sergei Prokofiev’s “Peter and the Wolf.” The plaintiffs claimed that after Section 104A was enacted, they were subjected to higher performance fees, sheet music rentals and other royalties. In some cases, these costs were prohibitive.

The Golan case was the brainchild of Stanford Law professor, founder and co-director of the Center for Internet and Society and Director of the Fair Use Project, Lawrence Lessig. The original complaint claimed that Section 104A shrunk the public domain and thereby violated the limitations on congressional power inherent in the Copyright Clause, and violated First Amendment rights to free expression. The Colorado District Court originally rejected these claims. However, on appeal, the Tenth Circuit found that a legitimate First Amendment claim existed and remanded the case for First Amendment analysis.

The basis for the Tenth Circuit’s ruling was the U.S. Supreme Court ruling in Eldred v. Ashcroft , in which the Supreme Court stated that a Congressional act modifying copyright law might be subject to First Amendment scrutiny if it “altered the traditional contours of copyright protection.” While the Tenth Circuit could not find federal authority that explained the phrase “traditional contours”, it concluded that the traditional contours of copyright protection included the principle that “works in the public domain remain there.”  It based this on the notion that the general sequence is that copyrighted works has always progressed from “1) creation; 2) to copyright; 3) to the public domain” and that Section 104A changed this sequence.

The Manifesto of the Swedish Pirate Party: A Sweeping Rollback of Intellectual Property Rights

Sweden’s Pirate Party, which hoists a stylized version of the mast a pirate ship as its logo, surprised many by winning at least one, and possibly as many as two seats in the parliament of the European Union. The party, which came in third among Swedish parties, captured a stunning 12% of Swedish male voters, but only 4% of female voters. The Pirate Party was founded in Sweden as an advocacy group for what might loosely be called internet freedom, or the rights of consumers to freely engage in file-sharing. The party grew slowly until the Pirate Bay trial in April of this year, after which membership quadrupled, although there is evidence that it may be now leveling off.

What are the Pirate Party’s political goals? According to its “Declaration of Principles”, the Pirate Party wants nothing less than a sweeping rollback of the intellectual property rights currently held by the copyright and patent holders. Here are the major elements of the Party platform:

Curtail state and private powers to conduct surveillance on citizens:

According to the Declaration, “[e]ach citizen must be guaranteed the right to anonymity . . . and the right of the individual to control use of his or her personal data must be strengthened.” Consistent with this principle, the Party opposes “special legislation for terror-related crimes”, because these “nullify due process, and risk being used as a repressive tool against immigrants and dissidents.”

The Party also wants a “general communications secrets act.” According to the Declaration: “Just as it is prohibited to read someone else’s mail, it shall be forbidden to read or access e-mail, SMS or other forms of messages, regardless of the underlying technology or who the operator may be. . . . Employers shall only be allowed to access an employee’s messages if this is absolutely necessary to secure the[ir] technological functionality or in direct connection with the employee’s work-related duties. The government shall only be allowed access in the case of a firm suspicion of a crime being committed by said citizen . . .”

Reduce copyright protections

Citing the vast storehouses of orphaned copyrighted material held by media companies, the Declaration urges changes in laws to make such material available to the general public. However, the changes it proposes go far beyond what would be necessary to achieve this goal and would create laws that encourage consumer copying and use of “protected” materials. Suffers DDOS Attack, a series of image boards known for controversial content, has been shut down by a distributed denial of service attack.
I know what you’re thinking: What else is new? Hackers and others who can’t stand its messages have frequently targeted the image forums on But as a fan of 4Chan, it saddens me to see such a funny (though oftentimes off-color) collective go offline again – yet I know that this won’t be the last time it happens.

A DDOS attack occurs when one party targets a Web site and excessively floods the site’s server(s) to the point that regular and new visitors cannot access it.

The culprit, according to, is Joe Biaso, a 16-year-old hacker. Known as “pacifico,” Biaso posted a video that shows him taunting 4Channers to try and telephone him and e-mail him.

“Have your fun, haven’t gotten much lately,” Biaso said in the video.

Suspecting Biaso as the one responsible for the attacks, 4Chan members have posted personal information about Biaso on the Internet, including his address.

A blog run by 4Chan creator Christopher Poole announced that the mega-image site was down because of the DDOS attack. The 4Chan status blog noted that the DDOS attack was ongoing.

“Remember kids: DDOS is cruise control for cool,” the most recent blog post read.

The DDOS attack was first reported on Monday, July 21. As of today is still out of service.

4Chan has faced DDOS attacks in the past. In December 2007, the site suffered a DDOS attack on a smaller scale and returned online within a few hours.

4Chan has also made headlines through its members known as “Anonymous.” Early this year, members of Anonymous protested worldwide against the Church of Scientology, after learning that a video of Tom Cruise endorsing the church had been pulled from YouTube because of copyright issues.

Media outlet Fox News also reported on Anonymous’ activities, calling them “hackers on steroids.”

Established in October 2003, 4Chan is a collective of images posted by individuals from all over the world, sometimes establishing what are known as “memes.” Memes, also known as “Internet phenomena,” are sometimes catchy and outrageous phrases that are tagged to a photo (oftentimes edited via means like Photoshop).

Some memes include “Divide By Zero,” a calculation that would certainly bring about fantastic destruction and chaos. Another famous meme is the “O RLY” meme, which abbreviates the phrase “Oh, really?” and often tags a photo of a white owl.

The Spam Cases: New York and Texas Attorney General Actions Show the Effectiveness of States’ Retained Powers to Regulate Spam

The enactment of the Federal CAN-SPAM Act preempted many State laws that attempted to prohibit marketers from sending mass commercial emails. However, CAN-SPAM did leave one key area of enforcement open to the states. The State may still enforce laws restricting commercial emails to the extent that such laws prohibit “falsity or deception.” 15 U.S.C. § 7707(b)(1). However, this exception is proving about as narrow as the Grand Canyon.

The latest examples of State enforcement of spam are the actions by the New York and Texas Attorneys General against Tagged, Inc., which were both resolved in the past week. See Attorney General of New York, Internet Bureau, In the matter of: Tagged, Inc., Assurance of Discontinuance (Nov. 6, 2009), Texas v. Tagged, Inc., Travis County District Court, No. D-1-GV-09-002032, Agreed Final Judgment and Permanent Injunction (Nov 9, 2009).

Tagged, which was founded by serial Internet entrepreneur Greg Tseng, has been reported to be the third-largest social networking site in the world by Hitwise. While its market share traffic is still a fraction of that enjoyed by Facebook and MySpace, according to Hitwise, it is in a major growth phase, and has increased its share by 47% from September 2008 to September 2009. Id.

However, according to the statements made by the New York and Texas AG’s, much of this growth was due to Tagged’s deceptive marketing and spamming practices. These practices allegedly included the following:

• Tagged allegedly accessed the email address books of visitors, without clear and conspicuous disclosure that this was occurring, or obtaining permission. Tagged then used these contacts to initiate a campaign to sign up additional members.

• It sent invitation email messages to visitor contacts that falsely stated that a person who had signed up on Tagged had sent photos to the recipient that could be viewed on Tagged. According to the New York AG, “In reality . . . Tagged generated the email invitation automatically without regard to whether the person had ever uploaded photographs to or intended to share them with her contacts.”

• Even though the invitation emails were generated by Tagged, Tagged inputted the name and email address of the person who had registered at Tagged in the “from” field of each email. If the registrant had uploaded a photo, the invitation emails also included this photo.

• The invitation message body included a box for the recipient to click “yes” or “no” in response to whether she wanted to view the photos. The message also said “Please respond or [name] may think you said no :(” — despite the fact that the registrant had nothing to do with the sending of the invitation email. The purpose of this was to play on the emotions of the recipient, falsely suggesting that their friend’s feelings might be hurt if they did not visit the Tagged site and view the photos.