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The Virtual Whirl: Of villains and crusaders
This week, in The Virtual Whirl, we're taking a look at the vigilante side of intellectual property rights. For many, it seems like a good idea to mass-report or name-and-shame intellectual property rights violators whenever and wherever you see them ... but is it really?
Psystar to shut down 'immediately,' world shrugs
Has the saga finally come to an end? Dow Jones is reporting that Psystar will be firing its eight employees and then "shutting things down immediately," in the words of the company's attorney with the bad-ass name, Eugene Action. Besides, after the latest round of losses at the hands of Apple, this should come as a shock to nobody. Now that we've put all that behind us, can we concentrate on something of importance -- like Tweeting swears from the Zune HD Twitter app?
Psystar banned from copying any version of OS X, helping others install it
And it's all over, folks: The US District Court for the Northern District of California has just permanently forbidden wannbe Mac cloner Psystar from selling modified versions of OS X, providing any tools that enable users to bypass the OS X kernel encryption, and / or intentionally aiding anyone else from infringing Apple's OS X copyrights in any way. We knew this was coming following Apple's decisive victory against Psystar last month -- the only open questions were whether the court would include Snow Leopard and Psytar's Rebel EFI software in the ban, since the lawsuit was specifically about Leopard and Rebel EFI wasn't the subject of any proceedings. Both issues were predictably resolved in favor of Apple: the court specifically included Snow Leopard and any future versions of OS X in the scope of the injunction, and while Judge Alsup couldn't address Rebel EFI directly, he did expressly forbid Psystar from "manufacturing, importing, offering to the public, providing, or otherwise trafficking" in anything that circumvents Apple's OS X hardware locks -- which we'd say covers Rebel EFI's functionality pretty thoroughly. Psystar has until December 31 to comply, and the Judge Alsup isn't kidding around: "Defendant must immediately begin this process, and take the quickest path to compliance; thus, if compliance can be achieved within one hour after this order is filed, defendant shall reasonably see it done." Psystar can still appeal, obviously, but it's already got its own hefty legal bills and a $2.67m fine to pay to Apple, so we've got a feeling this one might have reached the end of the line. P.S.- Amusingly, Judge Alsup appears to be pretty sick of Apple's shenanigans as well: in the section discussing Snow Leopard, he says Apple first tried to block any discovery of Snow Leopard before the OS was released, and then pushed to include the software in the case after it launched. That's why the Florida case over Snow Leopard wasn't merged into this case -- Alsup thought it was a "slick tactic" that "smacked of trying to 'have it both ways,' and offended [his] sense of fair play." Ouch.
Property, Second Life, backups and you
When we're logged into Second Life and discussing various products, items, goods and clothing, we'll often refer to owning something that we've purchased. It's a very natural sort of metaphor. We're not, however, under any actual illusion that we own the items in question. We read the Second Life Terms of Service when we signed up, and we're well-aware that we haven't been given ownership of the virtual goods we paid for, nor has any purchase taken place in the legal sense.
How to email a Second Life DMCA notice
While Linden Lab allows you to submit a DMCA notice via post or fax, there is a third option that's valid while you're waiting for the promised new DMCA process to come along. While many service- and platform-providers insist that they do not accept emailed DMCA notices, if you submit them correctly, the provider is lawfully obligated to accept them. Interestingly, a proper DMCA notice by email can actually give the recipient more surety about the identity of the submitter than faxed or posted notices.
Second Life designers burned at Burning Life
Remember Kevin Alderman (known in Second Life as Stroker Serpentine), CEO of Eros LLC who is one of the plaintiffs who have filed a lawsuit against Linden Lab for negligence with respect to security and failing to act in accordance with their obligations under the DMCA? Well, it can't be a good week for either him or for the Lab. During Linden Lab's Burning Life event in Second Life this year (a sort of living pop-art showcase and party that draws many spectators) persons only presently known to the server logs left a cache of copied content, including at least one of Alderman's latest products, and a whole swag of other content belonging to other designers – free for the taking. It isn't really Burning Life's fault, but if you had to place the stuff somewhere where many people would take it, none-the-wiser that it was unlawful content, that would be the best place at this time of the year.
Psystar, Apple file motions for summary judgment
Apple and Psystar have been embroiled in litigation for quite a while now. At the core of the dispute: Psystar modifies Apple's operating system software so that it can run on its clone machines. It then sells its computers with Mac OS installed to, well, anybody who wants one. As you can imagine, this does not make Apple happy. Anybody familiar with The Great Clone Crackdown of 1997 will tell you that Apple likes to keep a very tight grip on any device that presumes to run its software. Apple points out that Windows machines are a mishmash of often conflicting hardware and suffer from quirks and errors and incompatibilities that such a set up can bring. So Apple's cadre of lawyers descended quickly on Psystar. In July of last year, the company sued Psystar for copyright and software licensing violations, quickly amending its lawsuit to additionally charge Psystar with violations of the Digital Millennium Copyright Act (DMCA). And there was much lawyering. More than a year later, now that discovery has been completed, the two parties have each filed for summary judgment, which, in effect, asks the judge to rule in favor of the filing party because enough evidence has been shown that either makes or breaks the lawsuit. Psystar's argument, and the one covered in its motion, somewhat relies on the "first sale doctrine" which says that any purchaser of a copyrighted product can then take that lawfully-made copy and sell it, so long as no additional copies can be made. For its part, Apple says that when one "purchases" its OS, you are only purchasing a license to use the product. Its Software Licensing Agreement (SLA) quite clearly states [PDF link to Snow Leopard SLA] that the user cannot modify the software to run on a non-Apple system. The idea that what you are purchasing is a license to use the product is pretty commonplace among software manufacturers, because, the argument runs, you can cut any software company's profits off at the knees if every purchaser became an owner with free rein to redistribute the software. Apple states that no software company in its right mind would put the money into research and development of any software product at all if that were the end result of bringing its product to market. Groklaw suggests this could have ramifications for FOSS and and the GPL.
Second Life content creator reports infringement, gets suspended [updated]
With the lawsuit pending against Linden Lab, you'd think now would be a pretty poor time for them to mess up on handling IP rights infringement. You'd think that, wouldn't you? Second Life user and content-creator, RobbyRacoon Olmstead, recently discovered one of his items had apparently been duplicated in infringement of his creator-rights. He obtained one of the copies, verified the matter to his satisfaction, and reported the matter to Linden Lab who suspended Olmstead's account the following day. Seriously, how much worse could the Lab have mucked that one up?
Eros LLC, Shannon Grei form class action against Linden Lab for infringement
Eros LLC, and graphic designer Shannon Grei (Munchflower Zaius) have filed a class-action lawsuit against Linden Research Inc, more commonly known as Linden Lab, developers and operators of popular virtual environment Second Life, on behalf of themselves and of copyright/trademark holders and Second Life content creators. Filed in the Court of the Northern District of California yesterday, the complaint defines four groups of class action and alleges: four counts of trademark infringement (two direct, one contributory, and one vicarious), four counts of copyright infringement (two direct, one contributory, and one vicarious), a breach of California Business Professional Codes §§ 17200 and 17500, one of Intentional Interference with Economic Relations, and one of Negligent Interference with Economic Relations.
CEPro breaks down Real and Kaleidescape cases, uncovers more questions
It's been a rough week for DVD copying services from Real and Kaleidescape, and public understanding of the whole DVD copying mess hasn't been spared. People like to watch DVDs and lawyers like to get paid, however, so we're willing to bet there's more to come. CEPro has put together a breakdown of the issues at hand, which not only makes for some good reading but also shows just how far from any real clarity we are. Whether it's legal to make bit-for-bit copies, but illegal to view them; legal to use copying tools, but illegal to produce them; or just plain mean to do something Hollywood doesn't want you to, consumers are going to push for media convenience. We're still hoping Blu-ray's Managed Copy gives us enough wiggle room on our HD digital handcuffs, but sadly, it seems like DVD fans can pick between taking up residence in legal limbo while the courts struggle to catch up with tech or just strip the CSS from discs and get on with their lives.
Kaleidescape gets in line behind RealDVD for rough treatment
When it rains it pours -- right on the heels of the punishing blow dealt to RealDVD, the money-laden Kaleidescape crowd suffered its own setback at the hands of the law. You just know that the DVD CCA (Copy Control Association) appealed the 2007 ruling that allowed Kaleidescape owners to rip DVDs to their media servers, and yesterday a California Appeals Court overturned that ruling. Next stop -- the Santa Clara Superior Court, which could place an injunction on Kaleidescape if the appeal is upheld. It's not over yet, but we're prepping the soundboard with ominous music, boos and noisy hand-wringing. Whatever (and whenever) the outcome, we can only hope that Blu-ray's Managed Copy comes to the scene sooner rather than later and settles this issue for our beloved HD content
Court injunction puts sales of RealDVD on ice, hopes and dreams in purgatory
Something tells us Kaleidescape has a man (or woman, to be fair) on the inside, else United States District Court Judge Marilyn Patel is just downright trifilin'. In every visible way, RealNetworks' proposed RealDVD player was exactly what Kaleidescape was, but for people with annual salaries far less than $9,854,392,220. Regardless of our opinion, a preliminary injunction has just been passed down from The Almighty in the robe, which blocks the sale of the RealDVD software here in the US. The six major movie studies filed the suit last September, alleging that it "illegally violated their right to restrict the use of their movies in digital form." Evidently those that matter agree. A RealNetworks spokesperson took the time to vent their feelings on the whole ordeal, and since we know you're curious, we've pasted it below for your convenience.We are disappointed that a preliminary injunction has been placed on the sale of RealDVD. We have just received the Judge's detailed ruling and are reviewing it. After we have done so fully, we'll determine our course of action and will have more to say at that time.[Via Electronista]
Psystar bankruptcy dismissed, stays against Apple blocked
Over the weekend, The Mac Observer posted a detailed analysis of the latest chapter in the Psystar saga. It's taken me a few days to come down from vacation and try to wrap my brain around the legalese, but here's the condensed version of what happened. Psystar was granted its motion to dismiss its Chapter 11 bankruptcy filing in the State of Florida. The judge in the case must feel that Psystar will either try to file for Chapter 7 (liquidation) bankruptcy or try to delay Apple's case in California against the clone maker (now scheduled to start on January 11, 2010) with another Chapter 11 filing. Why? The judge has stipulated that Psystar will not be granted an automatic stay in the case if they file for Chapter 7 bankruptcy, and has blocked Psystar against filing Chapter 11 again for another six months. Translation: "Hey, Psystar! You can't use bankruptcy to weasel out of Apple's case against you." We don't know if Psystar has been selling a lot of Mac clones or if there is a secret admirer with deep pockets lurking in the wings, but by removing Chapter 11 protection, creditors who are owed money can now file suit for financial relief. Those creditors include Psystar's previous law firm, Carr & Farrell, which is owed about $88,000. One of the other companies that may line up for compensation could be Apple, which may very well be owed payment for shrink-wrapped copies of Mac OS X that were purchased by Psystar. More legal moves will undoubtedly unfold in the months leading up to the January court date, so keep your browser pointed to Court TV TUAW for updates about this seemingly never-ending battle.
A Second Life roadmap: Content-management/Intellectual-property
Linden Lab yesterday published a "Content Management Roadmap" for Second Life, which outlines directions that they'll be taking towards Intellectual Property in future. Why then, you might wonder, is it not called an "Intellectual Property Roadmap"? We think that's because – to the Lab – Intellectual property issues all resolve down to content-management, at the platform level. The roadmap covers five main sections, three of which basically comprise methods of helping honest folks stay honest, one which recognizes and rewards top-sellers, and one which allows more expeditious property violation notices. We're not really sure how much of a roadmap this really is, as it purports to cover less than six months, and describes projects already near completion. Nevertheless, it's interesting reading.
Console hacker arrested, faces up to ten years in jail
Just when you thought it was safe to get out your soldering irons, Immigration and Customs Enforcement wants you to know that its agents are still out there, on the lookout for for even more mod chip-wielding nogoodniks and their non-DMCA compliant consoles. According to the AP, a 27-year-old CSU student named Matthew Crippen was recently arrested for "modifying Xbox, PlayStation and Wii consoles in violation of the Digital Millennium Copyright Act" and released Monday on $5,000 bond. The dime was dropped on this perp by the Entertainment Software Association, and the raid conducted by Customs agents sometime in May. He will be arraigned on August 10th, and if convicted, he faces up to 10 years in prison. Let this be a lesson to you: while the ICE may have its hands full with human slavery, drug trafficking, transnational gangs, and stolen artifacts, there is always time to make an example out of a man that knows his way around the inside of a Playstation.
RIAA says consumers shouldn't expect DRM servers to run forever
Man, these Copyright Office triennial DMCA hearings seem to be some kind of competition for media-industry lawyers to present ridiculous arguments -- just a couple months after the MPAA tried to convince us that videotaping DVDs was an acceptable alternative to ripping, the RIAA's claiming that consumers shouldn't expect their DRM servers to stay online and allow them to play their music to play forever. No joke. The argument comes as the Copyright Office decides whether or not to allow a DMCA exemption for breaking DRM, and RIAA lawyer Steven Metalitz's position is that copyright owners shouldn't be required to "provide consumers with perpetual access to creative works," since "no other product or service providers are held to such lofty standards." Of course, that's only partially true, since properly maintained physical media and DRM-free content theoretically can be played forever, but why acknowledge reality when you can jack up your legal bills making completely absurd arguments that make your porcine, slowly-decaying clients seem even more doomed than before?
Apple: Jailbreaking encourages cell tower terrorism, "catastrophic results"
If trashing your push messaging wasn't enough to steer you clear of using your iPhone in unauthorized ways, this next bit of news might have you back on the straight and narrow. According to Wired, Apple's latest salvo in the fight over jailbreaking is a claim that pernicious, iPhone wielding techno-hackers at home or abroad could modify the baseband and use it to attack cellphone towers, "rendering the tower entirely inoperable to process calls or transmit data." Of course, the idea that this would become more likely if the legal status of jailbreaking changes is totally absurd, but why let that stand in the way of a legal argument?In a related note, one of our editors (whose jailbroken iPhone shall remain nameless) got a strange baseband pop-up error this morning -- the very same morning that AT&T is suffering a "massive connectivity outage" throughout the northeast and midwest. Coincidence? Yeah, probably.Read - iPhone Jailbreaking Could Crash Cellphone Towers, Apple ClaimsRead - Anyone Experience the AT&T Outage?
MPAA suggests teachers videotape TVs instead of ripping DVDs. Seriously.
So the Copyright Office is currently in the middle reviewing proposed exceptions to the DMCA, and one of the proposals on the table would allow teachers and students to rip DVDs and edit them for use in the classroom. Open and shut, right? Not if you're the MPAA and gearing up to litigate the legality of ripping -- it's trying to convince the rulemaking committee that videotaping a flatscreen is an acceptable alternative. Seriously. It's hard to say if we've ever seen an organization make a more tone-deaf, flailing argument than this. Take a good look, kids. This is what an industry looks like right before it dies. Video after the break.[Via BoingBoing]
RealDVD ripping software heads to court, fair use advocates on pins and needles
Let's face it -- quite a lot is resting on the outcome of this case. For months now, RealNetworks has been unable to legally sell its RealDVD movie ripping software after a court issued a temporary restraining order that remains valid until it's decided if the application violates the DMCA (Digital Millennium Copyright Act). Now, the software is finally having its day in court, and the outcome could shape the future of the DVD player (for better or worse). You see, Real has already assembled a prototype Facet device that hums along on Linux; essentially, this DVD playing machine would sell for around $300 and could store up to 70 movies internally. On the surface, this sounds entirely like a poor man's Kaleidescape, but only time will tell if The Man agrees. Cross your fingers folks, we get the feeling fair use advocates are going to need the luck.
Taser International vs Linden Lab: Crack Den crackdown
Taser International Inc have filed a lawsuit against Linden Lab (and others, including some present and some departed) staff. We got a hold of the April 17 complaint yesterday, and have been going through it since then. We've got a summary of the complaint and issues for you, but we won't be linking to the complaint due to the presence of what may be considered to be pornographic images in Exhibit 2. The "crack den" reference in the headline is a recurring phrase in the legal complaint. You'll see why. If you want the one-sentence summary, Taser seem to have failed to do their homework and basic research, but their case doesn't seem to be entirely without merit either.
