The firm's weblog is designed to link our clients and others with matters generally within areas of interest, including copyright, constitutional law, public records, and informational privacy. Any views expressed are solely the personal views of the authors and not necessarily the views of the firm nor any of its clients.
The Weblog
Supreme Court Cites MKM Amicus in Constitutional Privacy Case
In Nasa v. Nelson, MKM filed an amicus brief urging the Supreme Court to reverse a Ninth Circuit opinion finding that the constitution's right to informational privacy barred the government from asking open-ended questions during the course of conducting background checks on government contractors. In reversing the court of appeals, the Court noted the prevalence of background checks in the private sector, twice citing that brief on behalf of the Consumer Data Industry Association et al. The opinion is here. The brief is here.
US Supports Constitutionality of Statutory Damages
The Department of Justice has dropped its two cents into the Jamie Thomas-Rasset case in a brief <http://www.scribd.com/doc/18593475/DOJ-Brief-in-defense-of-ThomasRasset-Award?classic_ui=1> to the District Court of Minnesota. It argues that Ms. Thomas-Rasset’s challenge to the $1.92 million in damages against her for illegal file-sharing can be addressed without addressing any constitutional issues. If the constitutional question is raised, however, the government has taken the position that the award satisfies due process. The plaintiffs (Capitol Records and the RIAA) believe anything less than $1.92 million in damages would be selling short the multiplier effect of sharing each of the 24 songs over peer-to-peer systems such as KaZaA. Rolling Stone has reported <http://www.rollingstone.com/rockdaily/index.php/2009/08/17/justice-dept-defends-192-million-riaa-fine-against-minnesota-mom/> that the RIAA is still open to settlement with Thomas-Rasset, and does not expect her to be able to pay the fine.
Elizabeth Hasselbeck Sued
The well-known star of the View has been sued for copyright infringement. A copy of the complaint is here.
French Court Rules 3 Strikes Unconstitutional
Unlike the graduated response adopted voluntarily in the US, France enacted a law that required ISPs to terminate the connections of repeat offenders. A French court has suspended the operation of that statute.
Court to Take First Amendment Case on Legal Advice
The Supreme Court has agreed to hear a challenge to the bankruptcy revision that made it illegal for lawyers to advise their clients to take on more debt, even when taking on that debt may be in their client's best interest. A link to an article is here.
NJ Court Rules No Form Needed For Public Records Request
A New Jersey court of appeals has determined that no official form is necessary for a citizen to have lodged a proper public records request, provided that the request otherwise complies with the law.
Psystar II?
Despite Psystar's recent demise, a new company has decided to enter the Mac cloning business with a brick and mortar store.
EFF: Copyright Curriculum :: Safe Driving: ?
The EFF has launched a curriculum to counter what it believes is RIAA propaganda. A copy of that curriculum is here.
Harvard Professor Can Make Pigs Fly
If Professor Nesson can pull this off, then truly anything is possible. Success is especially unlikely given that he appears to have waived privilege surrounding communications between himself and other copyright professors who would not opine that peer to peer downloading is fair use. A critique of the substance of their position is here.
Copyright Office in the News
on something many practitioners probably know: that it takes a LONG time for applications to be processed. Query whether this news becoming generally known will influence the development of the law more generally, given the current split in authority over the language of section 411. Some courts have held that a plaintiff can invoke federal jurisdiction only after the Copyright Office either issues the registration or declines to do so. (From a practical standpoint, that would mean that a preliminary injunction could not issue for a year and a half.). Other courts have held that only proof of the filing of a registration application is needed.
3 Strikes and Adieu
France has passed a law that permits a state agency to terminate internet access if a person has been caught with illegal downloads three times.
From the Department of Unintended Consequences
Florida legislature inadvertently makes credit reports public records.
Wow, What a Layoff
There have been a lot of interesting developments in the past several months, and we have thought to update the blog more frequently. Recently, the firm filed an amicus in support of a petition for certiorari in a commercial speech case. That brief is here.
In another completely unrelated but extremely interesting development, NCAA players have sued EA Sports and related entities for unauthorized use of their likenesses. This is a huge issue for a variety of NCAA sports-related video games.
The End of an Era?
According to the Wall Street Journal, the recording industry has ended its campaign of lawsuits against individual infringers that "share" copyright protected songs on peer-to-peer networks. Instead of filing John Doe suits in federal court, the RIAA will begin a new partnership with the nation’s major internet service providers. The labels will feed the ISPs the IP numbers of users who have used their internet service for illegal activity, and the ISPs will in turn send the user a message warning them. The second option for the ISP will be to cut off that user’s internet service.
Not All is Rotten In the State of Denmark
One of the greatest challenges in combating internet piracy is the race to the bottom. Web sites that traffic primarily in pirated works or warez frequently relocate to jurisdictions that have weak or no copyright enforcement, either due to defects in the laws themselves, or because they do not require internet service providers to act as partners in shutting down illegal activity once that activity has been identified.
One such safe haven has just been shut down. Denmark’s highest court has required an ISP to deny access to The Pirate Bay. As Geek.com points out, The Pirate Bay has been viewed as a significant thorn in the side of the MPAA's enforcement efforts. Prior to this decision, the Pirate Bay benefitted from Danish copyright law, which was lax by western standards.