Campus Copyright

Sample from ACRLBLOG.org

Lessig’s Uncompromising Position

November 8th, 2005 by Barbara Fister

Lawrence Lessig makes some interesting points in his Wired piece on the Google suits. A 1909 law that gave copyright holders (and the publishers with whom they make agreements) “the exclusive right to control copies of their works” didn’t anticipate that the only way to index digital material (or, in fact, to read it) is by copying. He urges Google to stay the course.

A rich and rational (and publicly traded) company may be tempted to compromise - to pay for the “right” that it and others should get for free, just to avoid the insane cost of defending that right. Such a company is driven to do what’s best for its shareholders. But if Google gives in, the loss to the Internet will be far more than the amount it will pay publishers. It will be a bad compromise for everyone working to make the Internet more useful - and for everyone who will ultimately use it.

This truly is a tipping point because the implications - all of them - are enormous.

Elite Alito

By Declan McCullagh
http://news.com.com/Nominees+past+rulings+give+hint+of+tech+views/2100-1028_3-5927003.html As a federal judge at the 3rd U.S. Circuit Court of Appeals in Philadelphia, Samuel Alito has accumulated a lengthy record of written decisions that hint at how he would rule in technology-related cases that come before the Supreme Court.

President Bush nominated Alito for the court on Monday, to succeed retiring Justice Sandra Day O'Connor, widely viewed as a swing vote. Democratic politicians have already promised stiff opposition, with at least one senator saying that a filibuster to block debate is possible.

Alito's confirmation hearings are certain to focus on hot-button constitutional issues such as his views on abortion, affirmative action and gun rights. But a few cases show that the broadly conservative philosophy of Alito, 55, means he takes a limited view of copyright, which could bode well for tech companies, as well as a permissive approach toward electronic surveillance by police.

The Supreme Court has been delving into an increasing number of technology-related cases, with the Grokster file-swapping ruling and a cable-modem case both decided in June. For the term that begins this fall, the court is scheduled to decide whether to hear the eBay v. MercExchange patent-infringement lawsuit and another case dealing with printer components and antitrust charges.

Alito was called a "highly qualified, outstanding jurist" by Attorney General Alberto Gonzales on Monday. House Minority Leader Nancy Pelosi, on the other hand, accused Bush of bowing to pressure from the "radical" wing of the Republican Party.

Alito's tech credentials

A 2002 case before the 3rd Circuit Court dealt with a police search of a suspect's home computer for traces of illegal pornography. Alito's dissent shows that he has a better-than-average understanding of how operating systems work. An excerpt follows:

"Since the clip had been shown repeatedly on the computer, it is probable--not certain, but probable--that it had been downloaded to the computer's hard drive. In that event, it was probable--again, not certain, but probable--that either the clip or traces of it remained, even if the defendant had attempted to delete it. Whether a search of the computer's hard drive for this clip would have necessarily resulted in the discovery of any of the computer-related items of evidence that the government intended to introduce at the defendant's trial is not disclosed by the record, as far as I am aware."

Technology companies are likely to find Alito an appealing nominee because for the most part he's "business-friendly," said David Bernstein, a law professor at George Mason University. "He's generally skeptical of open-ended liability, and seems to be inclined to strictly construe contracts, including contracts that dictate where and under what law a dispute will be resolved," Bernstein said in an e-mail interview.

Alito's strict view on the kinds of inventions that merit copyright protection should also be a comfort to high-tech businesses, said William Patry, a partner at Thelen Reid & Priest and author of The Patry Copyright Blog. Alito demonstrated this strict approach in 2004 when he denied Southco, a manufacturer of screws and industrial fasteners, copyright protection for its part numbers. Alito said the part numbers, which Southco alleged that its rival Kanebridge copied, lacked the originality and creativity required for copyright protection.

"You probably want a judge that is more circumspect about who gets property rights," Patry said. "The technology industry is probably better served by someone more circumspect if you believe the industry thrives on innovation and not on monopolies."

Alito's judicial philosophy seems nuanced and not doctrinaire. In March 2002, he sided with Nextel and against a Pennsylvania township that tried to block the installation of a cell phone tower by denying a zoning variance. That violated federal law, Alito said.

But in another case involving a Nextel affiliate and a second Pennsylvania township, Alito sided with the municipality. Nextel didn't follow proper procedures because it "never filed with the township a building permit application or any" similar request, Alito wrote.

Fair Use in Jeopardy?

"Automating the clearance process undoes the possibility of utilizing, and more importantly challenging, this slow disintegration of fair use. Even if the Blackboard mechanism allows instructors simply not to send their information to CCC for clearance (and it is unclear if it is, or eventually could become, a compulsory mechanism), the simple fact that clearance is becoming a technical default means that more and more instructors will default to it rather than invoking fair use."