Copyfascism Watch

From The Sydney Morning Herald:

Babies with a severe form of epilepsy risk having their diagnosis delayed and their treatment compromised because of a company's patent on a key gene.

It is the first evidence that private intellectual property rights over human DNA are adversely affecting medical care.

Deepak Gill, head of neurology at the Children's Hospital at Westmead, said he would test at least 50 per cent more infants for the SCN1A gene - which would diagnose the disabling Dravet syndrome - if the hospital could conduct the test in-house.

But rights to the gene are controlled by the Melbourne-based Genetic Technologies, which has already threatened to stop public hospitals testing for breast cancer gene mutations, and the hospital will not risk a similar problem.

Specialists are sending blood samples to Scotland, and only babies whose seizure patterns closely resemble Dravet syndrome are tested. This means children with slightly different symptoms may be treated with the wrong medicines for months, potentially retarding their development.

"It's frustrating that we can't get the test done readily," Dr Gill said. "If we could include it as part of the work-up, we could identify them early."

LINK TO THE NEWS ARTICLE >>

Government-mandated monopolies abridge many rights, whether it be our private property rights, our free speech rights, and others. However, this case is particularly odious, for the government has granted monopoly to a corporation on key genetic code that exists in some people. And these corporations, utilizing the government's capacity for violent coercion, is enforcing that monopoly and abridging on the very ownership of people's bodies. The Australian government has decided, through its decision to grant private entities patents on genetic code, that Australians only have co-ownership of their bodies.

A collection of links related to copyright, copyfight, and copyfascism.

On Reddit:

• Release the Orphan Works! | Electronic Frontier Foundation
• Brief Trademark Ponders
• EFF Patent Busting Project
• Air Force cracks software, carpet bombs DMCA
• Intellectual Property Protection Act to make attemped infringement illegal

On Delicious:

• Apple Confuses Speech with a DMCA Violation | Electronic Frontier Foundation
• RIAA v. Joel Tenenbaum: The Fleet is in Motion
• Flickr: Discussing [reopened] heinekenmusic.ie - leeching photos from flickr in FlickrCentral
• Cablevision wins on appeal: remote DVR lawful after all
• Air Force cracks software, carpet bombs DMCA

Thirty-four of the biggest names in the entertainment industry has declared war on Australia's third-largest internet service provider (ISP) iiNet in a suit that claims that the broadband provider is partly responsible for its users' breach of copyright laws:

Australia's biggest film and television companies have ignited a long-simmering war with the internet sector, lodging a lawsuit against Perth-based broadband provider iiNet seeking damages that could run into millions of dollars.

The group, which includes Warner Brother, Sony Pictures, Disney and the Seven Network, has also left open its options of taking further legal action against the counttry's big two broadband players, Telstra and Optus.

The broad aim of the action is to stop internet users from using high-speed connections to swap digital versions of Hollywood films like American Gangster and Mama Mia! as well as and popular television shows such as Heroes and Two and a Half Men. These actions breach copyright regulations.

Operating under the banner of Australian Federation Against Copyright Theft (AFACT), this consortium of various entertainment heavy-weights are not ruling out taking action against Telstra and Optus, Australia's first and second largest ISPs. Considered a test case by many, the suit is but part of a series of actions taken by AFACT against smaller ISPs. Several small internet carriers have reported receiving aggressive cease-and-desist letters.

"It is unfortunate that the rights holders are targeting an ISP because under Australian law, internet service providers may generally be considered conduits which provide carriage services, and as such are not responsible for copyright infringements carried out by customers using their internet service," a spokesperson for Optus said.

AFACT and its members are expecting the ISPs to carry out its copyright enforcement and are now utilizing the state apparatus to coerce the companies into complying.

In what is shaping up to be the most significant copyfight case in years, the Berkman Center for Internet & Society and Professor Charles Nesson of the Harvard Law School in mounting a challenge against a federal copyright law that is the heart of the Recording Industry Association of America's (RIAA) copyfascist strategy of extorting payments from music fans who share songs online.

Nesson has come to the defense of Joel Tenenbaum, a Boston University graduate student that was targeted by RIAA's many lawsuits.

Nesson argues that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is unconstitutional because it effectively lets a private group — the Recording Industry Association of America, or RIAA — carry out civil enforcement of a criminal law. He also says the music industry group abused the legal process by brandishing the prospects of lengthy and costly lawsuits in an effort to intimidate people into settling cases out of court.

Nesson, the founder of Harvard's Berkman Center for Internet and Society, said in an interview that his goal is to "turn the courts away from allowing themselves to be used like a low-grade collection agency."

LINK TO NEWS ARTICLE >>

The constitutionality of the excessive fines that results from these lawsuits has been raised before:

This large punitive component is not troublesome when statutory damages are awarded for one or a few instances of illegal file-sharing. The punitive component serves as an incentive to sue, and punishment for breaking the law is quite normal. However, when a given punishment is massively aggregated across many similar instances of misconduct, the resulting penalty can become so large that it becomes grossly excessive in relation to any legitimate interest in punishment and deterrence. As with the large punitive damage awards that the Court has held unconstitutional in the past decade, such a tremendous punishment violates substantive due process guarantees.

LINK TO THE PAPER >>

There are quite a few legal precedents that the courts uses to determine whether such fines violates due process, among them BMW v. Gore and TXO Production v. Alliance Resources. In BMW v. Gore, the Supreme Court ruled that the punitive damages awarded to Gore violated the Due Process Clause of the Constitution and sought to limit what the Alabama Supreme Court can reward Gore:

In our federal system, States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case. Most States that authorize exemplary damages afford the jury similar latitude, requiring only that the damages awarded be reasonably necessary to vindicate the State's legitimate interests in punishment and deterrence. Only when an award can fairly be categorized as “grossly excessive” in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment. For that reason, the federal excessiveness inquiry appropriately begins with an identification of the state interests that a punitive award is designed to serve.

LINK TO THE OPINION >>

The RIAA has been conspicuously avoiding targetting students from Harvard, due in large part to the presence of Berkman Center for Internet & Society. Alan Wexelbat of Corante's Copyfight explains:

Despite its widespread and very public campaign of suing its under-25 customer demographic, the RIAA seemed unwilling - some would say scared - to take on Harvard. Bangeman, along with others, noted that the Cartel's attack dogs seemed to be taking on easy targets.

Bloggers attributed this "oversight" on the RIAA's part to the presence at Harvard of the Berkman Center for Internet & Society, an organization noted for its outspoken opposition to the Cartel's jihad1. Harvard also hosts a world-class law school, whose students have taken on a number of high profile causes on a pro bono basis over the decades. If your strategy is to deploy enough high-paid legal muscle that your opponents are intimidated into instant surrender then it makes sense to avoid a place with resources like these.

The RIAA has long abused the court system to prop up its failing business model. In true copyfascist fashion, they extort payments from their own customers through intimidation and the threat of state coercion. Private property rights are abridged when the RIAA enforces its copyright.

Related links: http://blogs.law.harvard.edu/cyberone/riaa/

Last August, the Ohio Republican Party released a campaign commercial in support of Senator John McCain's campaign for the presidency. One of the music used in the campaign commercial in a thirty-second snippet is Jackson Browne's song Running on Empty. According to Browne, a supporter of President-Elect Barrack Obama, it gave an impression that he has endorsed Senator McCain. In a lawsuit filed by Browne, Senator McCain and the Ohio Republican Party has infringed on his copyright and gave the false impression that he has endorsed the senator.

In an interview with Wired.com, Browne's attorney Larry Iser said, "Copyright derives directly from the Constitution… Someone who is running for president needs to set a good example in adherence to the laws."

The McCain campaign responded, "Given the political, non-commercial, public interest and transformative nature of the use of a long-ago published song, the miniscule amount used and the lack of any effect on the market for the song (other than perhaps to increase sales of the song), these claims are barred by the fair use doctrine."

Not only are creativity and innovation threatened by spurious copyright-driven lawsuits like Browne's, but as we can see political speech as well. Limitations to copyright are codified in Title 17, Section 107 of the US Code, also known as the Fair Use Doctrine, allows people to create deritatives of copyrighted works without the copyright holder's consent. In a similar case, Keep Thomson Governor Comm. v. Citizens for Gallen Comm., the courts has ruled that the opposition group's use of fifteen seconds of another group's campaign music is fair usage and therefore non-infringing. Thousands of campaign videos have been produced by supporters of President-Elect Obama and Senator McCain using copyrighted music for great effect and then published on YouTube; all under fair use protections.

Browne's lawsuit will have a chilling effect on future political speech, especially his claim that Senator McCain's campaign misrepresented his views. Must fair users now take into account an artist's political beliefs when creating derivatives of their work? How reasonable is it to expect fair users to divine an artists' political belief?

The delicious irony of this is that Senator McCain has voted for increase copyright protections to detriment of fair use, the same fair use he is now invoking to defend himself against Browne's infringement claims.

Unsurprisingly, the Union Square Partnership (USP) utilized the egregious violation of basic rights that is the Digital Millennium Copyright Act (DMCA) to shut down a website parodying its own official website. Savitri Durkee, an activist concerned about preserving the character of Union Square and Union Square Park, created a website that parodied USP's redevelopment efforts in the area. In response, USP sent a DMCA takedown notice to her internet service provider claiming that her free speech infringed their copyright. Additionally, not only did they filed a copyright lawsuit against Durkee, they seek to gain control of her domain name through a claim filed with the World Intellectual Property Organization (WIPO).

In her battle to protect her abridged rights, the Electronic Frontier Foundation (EFF) has stepped in to represent Durkee against USP's baseless litigation. From the EFF:

EFF today filed a response to USP's complaint on Durkee's behalf, pointing out that Durkee's parody is protected under the First Amendment and fair use doctrine. The response includes counterclaims asking the court to declare that her site does not infringe USP's trademarks and to prevent USP from taking control of Durkee's domain name, as well as to find that USP's complaint was intended to stifle legitimate political speech. Durkee is also seeking compensation for the abridgement of her speech.

"Union Square is where the U.S. labor movement was born and where abolitionists, suffragettes, civil right activists and many others have fought for and exercised their First Amendment rights," said Durkee. "It's ironic that USP is now trying to keep me from using my parody website to speak out about the future of Union Square."

LINK TO PRESS RELEASE >>

Baseless copyright infringement claims under the DMCA is all too common as evidenced by the EFF in their comprehensive white paper, Unintended Consequences: Ten Years under the DMCA. Too often, the DMCA is used by those wishing to silence their critics. Internet service providers and content aggregators are usually quick to comply to infringement notices lest they be forced to pay excessive statutory damages to claimants. But particularly odious is USP's attempt to wrest control of Durkee's electronic property in their claim filed with the WIPO. This is copyfascism at its very abominable.

Durkee, however, is in luck. The Constitution and several landmark cases are on her side. One of the most recent case, as well as being an EFF victory, is Frankel v. Lyons. In that case, the federal courts asserted than Stuart Frankel's website parodying Barney was non-infringing speech.

Related Links:
http://www.eff.org/cases/usp-v-durkee