Jumping in with a few thoughts on the 9th Circuit's Roommates.com decision, which came out last week -- some viewpoints include Eric Goldman, Michael Erdman, and Evan Brown.

Roommates was sued for violating the fair housing laws, and it unsuccessfully argued that as an interactive computer service it was immune from liability for the content posted by its users, under Section 230 of the Communications Decency Act.

Under the statute, the immunity does not apply if the service provider also participated as an “information content provider”, by being “responsible, in whole or in part, for the creation or development of the offending content.”

The opinion says it adopts a “common-sense interpretation” of what “developing” is, for the purpose of liability. It says that “[C]lose cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged – or at least tacitly assented to – the illegality of third parties.”

Actually ducks are really nice animals (guess that's why we're talking 10,000 bites), so let’s leave them out of this. Chickens of course have sharp beaks, and geese can be rather aggressive, but ducks are generally quite genial, with rounded bills and just some serrated edges-- so ducks may find the reference offensive and should reserve their rights and remedies.  Duck image (c) Tomo.yun, (www.yunphoto.net/en/).

The decision focuses on the term “development” in assessing the site’s involvement in providing user drop-down menus for creating their housing profiles, and in providing search and email notifications relating to the user’s stated housing preferences. The decision found the “additional comments” portion of the site to be covered by the immunity, because it was a neutral tool for users to post their comments.

“The decision interprets the term “development” as “referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. [emphasis added]” 

“In other words, a web site helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially it to the alleged illegality of the conduct [emphasis added].”

It thus associates the CDA immunity analysis with the legally complex notions of contributory liability (and inducement liability), which are areas of some uncertainty in the copyright arena. 

The opinion says there’s more clarity now about the legal standard than there was before: “Our opinion extensively clarifies where that edge lies, and gives far more guidance than our previous cases”.  it does take pains to elaborate on what it means by "development", in seeking to avoid a pedantic interpretation, and there’s certainly a lot here to digest. 

Here’s a word cloud summary of some of the opinion’s lexicon.  These are snippets from the opinion, obviously taken out of context, but after the gestalt of the opinion.

“contributes materially to the alleged illegality of the conduct”

“encourage illegal content”

“designed to achieve illegal ends”

“design your website to require users to input illegal content”

“website directly participates in developing the alleged illegality”

“elicits the allegedly illegal content”

“makes aggressive use of it in conducting its business”

“directly related to the alleged illegality of the site”

“developing and enforcing a system that subjects subscribers to [illegal content]"

“inducing third parties to express illegal preferences”

“enhance, encourage, make easier” the posting of illegal content

“solicit” or “encourage” the harmful content”

“creating a website designed to solicit and enforce [illegal] preferences”

“direct encouragement to perform illegal searches or publish illegal content”

* * * * * * * *

“providing neutral tools”

“generic text”

“simple, generic prompt”

“weak encouragement”

 “development by inference”

“enhancement by implication”

“merely provide a framework”

 “generic search engines”

 “edits are unrelated to the illegality”

 “without prompting or help from the website operator”

“did nothing to encourage the posting of [illegal] content”

 “contrary to the website’s express policies”

“mere classifying user characteristics”

nothing “induces anyone” to engage in illegal conduct

“chat rooms for general use”

“generic message board”

“does not provide any specific guidance”

does not “urge subscribers” to engage in illegal conduct

Also if you're not overloaded you might want to subscribe to feeds or lists from the Library of Congress -- coverage includes Copyright Office information, digital preservation, poetry and other good stuff. 

In connection with the celebration, Science Commons announced a Protocol for Implementing Open Access Data,  to enable scientific databases to be legally integrated with each other.

I was asked to give a few words at the reception before the event about my involvement with Creative Commons.  For me what was most remarkable were two things -- how Creative Commons has helped enable participatory media, and how Creative Commons represents an unprecedented collaboration by lawyers worldwide.

My law firm has been at the center of innovation in Silicon Valley, having taken Apple, Netscape and Google public, for example.  I personally came back to Palo Alto fifteen years ago after practicing as an entertainment lawyer in Los Angeles.  Back then we talked about “multimedia” and the promise of media and technology convergence.

But it turned out the promise couldn’t be realized just by corporations pursuing a holy grail of sorts, for many reasons. Some entrenched interests saw this as a side show for “ancillary rights,” or as a legal rights-clearance minefield, or as a potential threat to their core business models.

What happened instead as everyone knows in breaking down the barriers to convergence was consumer empowerment through technology -- the end to consumer passivity. Consumers deciding when, where and how to experience content. Consumers deciding to publish and share their own content – video, music, photos, blogs. 

What was missing were tools for consumer empowerment, to enable the necessary legal licensing permissions.  As a lawyer, Larry Lessig and the other founders saw how the perfect storm of digital copyrights could be an impediment to participatory media. Creative Commons created a solution, a legal licensing toolkit, in the manner that the open source software licenses gave developers tools to share their code.

We wanted to be part of the solution, so we joined the pro bono legal team at the outset. We’ve helped with the core licenses, some of the variations, and various legal issues along the way, for general counsels, Glenn Otis Brown and Mia Garlick, and now Virginia Rutledge. 

In fact, the Creative Commons story involves a tremendous collaboration in the legal field. We worked as a team with other lawyers, including John Brockland – the goal was clarity so that creators and lawyers alike would have a usable document that people could actually understand and rely upon. The internationalization of the license on a country-by-country case is an unprecedented achievement, occasioned by the unique issues around content rights that vary by territory.  It’s like a legal wiki and we’re proud to be a part of all that teamwork. Stanford Lawyer did an article a few years ago about it, called "Some Rights Reserved," which is posted here in this issue with my partner Nicki Locker on the cover.

To bring the media convergence story current, in the Web 2.0 world of long-tail content and participatory media, plenty of business ventures that we work with ask us how can they use Creative Commons and make those licenses an option for individuals who are sharing content on their social networks or publishing platforms. 

To measure the reach of Creative Commons, I did a Google search yesterday and got 29 million results. To put it in perspective, that beats Elvis Presley at 21 million and American Idol’s 27 million. However Paris Hilton and Britney Spears are still way ahead at 42 and 62 million respectively, so there’s clearly still plenty of opportunity!

So here’s to 5 years of hard work by everyone and to the great success of Creative Commons, the incredible passion and energy of the dedicated people literally throughout the world who have made Creative Commons what it is today, and to its bright future!

The court affirmed the district court ruling, which held that the First Amendment trumps the player's publicity rights and thus permits usage without a license.  The court also confirmed that the "no-challenge" and "no-use" clauses of the prior license agreement were unenforceable, but not on public policy grounds (as the lower court found), but rather on a technical point about breach of warranty of title in the publicity rights by MLB.  See prior post about the lower court ruling.

My partner Glenn Colton filed an amicus brief in the case on behalf of the Fantasy Sports Trade Association.  Glenn also writes the Week That Was column  for Rotoworld.com about fantasy leagues.  He offered these thoughts on the victory:  

"Today's decision from the 8th Circuit Court of Appeals is a major victory for the fantasy sports industry, fantasy sports players, and most importantly, the protection of free speech and expression. Specifically, the Court ruled that the interests protected by the First Amendment to the United States Constitution outweigh any alleged harms to professional athletes from the use of their names in fantasy sports games.

"Notably, the Court went out of its way to point out how "handsomely" players are already rewarded for their performances and endorsements. In the final analysis, the decision drives another nail in the coffin of Major League Baseball and its players association's attempt to wrest control of the fantasy sports industry from the pioneers that worked long and hard to build and create the thriving national hobby millions enjoy today."

 Here are some interesting posts today on the case:

Staci Kramer on Paid Content

Neil Richards on Concurring Opinions

Mike Madison on Madisonian.net

I was looking on the Copyright Office web site for the text of Section 506, regarding criminal copyright infringement, for the "making available" language, as discussed in my prior post.   Didn't find it.  Puzzled, I looked on the Cornell web site, and there it was.  Then I went back to the Copyright Office web site and noticed that their posted version of the Copyright Act is from 2003.

Above the links to the copyright statute, they have a box with a list of the half dozen amendments to the law since 2003.  So technically it's all there, but it hasn't been integrated into a single version of the code.  Not very helpful, and potentially misleading, to someone if they don't know precisely what they're looking for or that they need to reconcile the statute with all the amendments.  And a time-waster for those who do. 

The page with the box says:

"The documents below will be updated soon to reflect these changes."

That was 2004 -- it's now almost 2008, so "soon" appears to be a relative term.   I think we can do better -- especially given how copyright law is increasingly relevant to the general public in regard to their digital activities -- and the site (logically) is the top result on web search for "copyright act".   

Lucky for the Copyright Office they're not in Palo Alto.  Recently folks here started giving our city government hell from the moment it launched a flawed web site redesign!

A few orthogonal thoughts on the subject:

The "make available" controversy has been around for a while -- the EFF has previously briefed the subject and Eric Goldman has a thorough discussion here.  

And "make available " language was added to criminal liability under Section 506 in 2005:

"by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution. by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution"

even though "make available" is not part of the enumerated statutory rights under Section 106.  

Also the U.S. has signed treaties with "make available" language, but since treaties are not self-executing, that doesn't mean the concept is part of U.S. law.  See prior posts on this here, here and here.

These complexities bring to mind the newly coined term "propagate" to supersede "distribute" and thereby cast a wider net of coverage in version 3 of the GPL:

To “propagate” a work means to do anything with it that, without permission, would make you directly or secondarily liable for infringement under applicable copyright law, except executing it on a computer or modifying a private copy. Propagation includes copying, distribution (with or without modification), making available to the public, and in some countries other activities as well.

 The FSF said it made this change because the term "distribute" alone wasn't getting the job done:

"The term “distribute” used in GPLv2 was borrowed from United States copyright law. Over the years, we learned that some jurisdictions used this same word in their own copyright laws, but gave it different meanings. We invented these new terms to make our intent as clear as possible no matter where the license is interpreted. They are not used in any copyright law in the world, and we provide their definitions directly in the license."

Bob Lefsetz takes his music industry to task, with rhetorical flourish:  "What the fuck are we gonna DO ABOUT IT?"

Dennis Crouch compares to "patent sharks" of the 19th century, and resulting patent reform.  Is there such a thing as a copyright troll?

Bill Patry gives us the detailed copyright analysis on the jury instructions -- quite interesting about liability for "making available" versus "downloading". 

Recall Mitch Bainwol's slide deck at NARM in 2005, about "building a brighter future" for the music industry, which cites success of user lawsuits and public approval for same -- "maintaining resolve" and "enhancing deterrence".    

Last there's the IFPI statement on the Thomas case:  "We have always made it clear we are reluctant litigators."   Don't see a press release on the RIAA site.

Then it all unfolded.    

http://www.mercextra.com/blogs/collegesports/2007/10/06/stanford-beats-usc-the-greatest-upset-in-college-football-history/

 http://yardbarker.com/college_football/articles/Stanford_defeats_2_USC/30055

As a kid growing up in Palo Alto, I will never forget the thrill of watching Plunkett and Vataha.   Back then my sister, in a cheerleader outfit, got to be on the sidelines with Prince Lightfoot, and the dollies gave us their used paper pom-poms to play with afterwards. 

Now my boys have Pritchard and Bradford.   New memories today  -- what a game!

It's a terrific resource about start-up company issues and has some tutorials on corporate and venture finance issues -- recent topics include first offer rights, lock-ups and registration rights -- also here, here,and here.

Yokum adds a new and seasoned voice to the terrific commentary we have over at Brad Feld's and Allen Morgan's blogs on these subjects for entrepreneurs.

Yokum and I work together on some media companies, as per Yokum's key credentials noted on his blog:  "I watch more television than most people I know and I am working on my Madden 2007 skills on the Playstation 3." 

We will have to have an office conference about the new mobile game recommendations over at GigaOM, which includes one that maybe I actually have a chance of beating my teenage son at, Phoenix Wright, Ace Attorney.

Since my last post was about a law school event at Yale, I guess it’s fitting to restart with a note about an upcoming event at Harvard. I am participating in the 2007 Law, Technology & IP Career Panel, hosted by the Harvard Journal of Law & Technology, and speaking on a panel about "Why Practice Technology and IP Law?"

I’m looking forward to the panel as it’s a great opportunity to reflect on why I love what I do and to meet others who are excited about this area of practice. My focus is on the media law side of technology, namely the on-going theme of digital convergence and the intersection points of technological innovation and artistic creativity. It’s about new uses of digital content and the evolving habits of the digital consumer, so what I deal with is always something novel, innovative, and intellectually interesting.

Here are the details:

Date: Tuesday, September 18
Location: John Chipman Gray room, Pound Hall (2nd Floor), Harvard Law School
Check-in: 6:30-7:00pm
Panels: 7:00-8:30pm
Reception: 8:30-10:00pm

Harvard is my undergraduate alma mater so I am looking forward to being in Cambridge. I’m going with my son, who plays Pop Warner football, so we’ll probably head over to Soldier’s Field too. Hope to bump into old or new friends while we’re there!

I am participating on a panel titled "Technology as Tool", which will "focus on the practical implications of the technology revolution for the lives and careers of women in the legal profession.  Panelists will discuss how women can harness technology to achieve their goals, including a special look at blogging as a mobilization and empowerment tool."  My fellow panelists include Ann Bartow and Katherine McDaniel. 

For this exceptional event I will gladly take some Lux with my Veritas.