Preparing for the Post I.P. World
SFU SIAT Graduate Colloquium
12/5/12
Jon Festinger, Q.C.
Centre for Digital Media
Festinger Law & Strategy LLP
@gamebizlaw
jon_festinger@thecdm.ca
jon@fblawstrategy.com
Description
• “A whirlwind tour of the current state of
intellectual property law; an examination of
its inherent ethical conundrums; the
prevailing tensions between freedom &
creativity; and a few observations
regarding possible destinies.”
What Legal Principle Do I Need To
Know?
• THERE IS NO PROTECTION FOR AN IDEA IN THE
WESTERN CANNON
• ONLY FOR ITS EXPRESSION IN FIXED FORM
• THE “IDEA/EXPRESSION
DICHOTOMY”
Methodology
• Current “news” : WHY?
• Work back to principles.
• All made possible by another law; 2nd Law of
thermodynamics…..
• “The entropy of the universe always increases…”
• “Entropy is also a gauge of randomness or chaos within
a closed system. As usable energy is irretrievably lost,
disorganization, randomness and chaos increase.”
…..And a 2nd Law to know – but not a
Legal Principle…
Yes, we are now in the puddle…
Trying to make sense of the cube…
*
Personal Themes
• 1. Legal structure neither the problem…nor the solution.
• 2 (a). Creativity is (among) the most basic, most valuable and
most important human characteristics.
• 2 (b). Key ethical corollary – measuring stick ought to be
“cumulative creativity quotient” – ethics & rationality over
subjectivism {thank you Derek Parfit “On What Matters”}.
• 3.The “puddle” is healthy, evolutionary, more creative and
facilitates more creativity.
*Art by Avrel Zimmerman-Festinger Age 10
Index
• 1. Whirlwind tour of current IP legal issues
• 2. Examination of ethical conundrums & the tensions
between freedom and creativity
• 3. A few observations regarding possible destinies
1. The Whirlwind Tour
Core Change Examples
(AKA - Case Studies - Is The System Broken?)
• “Online dispatch software providing licensed professional
drivers the ability to receive and fulfill on-demand car
service reservations as your private driver.”
• New York Times “Bits” – Dec. 3, 2012 | “Daily Report:
Car-Service App Tangles With
Regulators”http://bits.blogs.nytimes.com/2012/12/03/dail
y-report-car-service-app-tangles-with-regulators/
• Uber wins unanimously in Washington, DC, which is now
rewriting its taxi laws (The Verge) Dec.
4,2012http://www.theverge.com/2012/12/4/3728850/was
hington-dc-taxi-uber-regulations
Also Check Out….
• Songza: Crowd sourced radio replacement through
playlists and free music.
• No controversy yet but considerable Canadian
broadcaster concerns over Netflix
Case to Watch 1
• “Court weighs broadcasters’ challenge to Diller’s Aereo”
(Reuters) Nov. 30,
2012http://www.reuters.com/article/2012/11/30/us-aereobroadcasters-appeal-idUSBRE8AT18I20121130
• Intricate system of miniature antennas each assigned to
a single subscriber which receive live TV signals and
stream them to you. See “Why Johnny can’t stream: How
video copyright went insane” by James Grimmelmann
Aug. 30, 2012http://arstechnica.com/techpolicy/2012/08/why-johnny-cant-stream-how-videocopyright-went-insane/
• Sly way to comply with copyright laws OR simply a
technology that allows individual consumers to decide
what to watch.
Case to Watch 2
• Capital Records/Universal Music action against MP3
resale website.
• Issue: Does the “First Sale Doctrine” that allows you to
resell physical CD’s also allow resale of digital
equivalents?
• ReDigi system erases original track – so no additional
copy.
• “ReDigi case reaches court” (CompleteMusicUpdate)
Oct. 8, 2012
http://www.thecmuwebsite.com/article/redigi-casereaches-court/
Two More Pieces of the Puzzle
• “DVR Use One Factor in Networks’ Low Ratings” (New
York Times, Dec. 2,
2012)http://www.nytimes.com/2012/12/03/business/medi
a/dvrs-and-weak-shows-explain-low-ratings-for-tvnetworks.html?_r=0
• “American Television Stations Call For Fair Canadian
Import Trade Practices” http://www.ustvcoalition.org/
…and Two More…
• “French broadcasting authority proposes cultural
exemption to net neutrality” (Hogan Lovells - Nov. 26,
2012)http://www.lexology.com/library/detail.aspx?g=5a01
5cc3-da1f-456d-90ee-7e2b233e7dca
• Researchers find Megaupload shutdown hurt box office
revenues, despite gains for blockbusters (TNW – Nov.
24,
2012)http://thenextweb.com/insider/2012/11/24/research
ers-find-megaupload-shutdown-had-a-negative-effect-onbox-office-revenues/
Paradigm Choice
System is Broken: Examples
• “Elon Musk: ‘If We Published Patents, It would be
Farcical’ (Nov. 9, 2012) – SpaceX &
China…http://www.businessinsider.com/elon-muskpatents-2012-11
• “Apple finally gets its patent on a rectangle with round
corners: But is it too broad to use?” (Nov. 7,
2012)http://www.theverge.com/2012/11/7/3614506/apple
-patents-rectangle-with-rounded-corners
• “Apple gets design patent on virtual page turning, but
doesn’t own the page turn” (Nov. 19,
2012)http://www.theverge.com/2012/11/19/3659382/appl
e-design-patent-on-virtual-page-turn
More Examples
• “The Patent Problem” by Steven Levy (Wired - Nov. 13,
2012) – about a document scanning patent holder/troll
who never able to build a working product but feels
practically website
infringes.http://www.wired.com/opinion/2012/11/ff-stevenlevy-the-patent-problem/all/
• “The Cost of Reading Privacy Policies” –
McDonald/Cranor – 2008 study posing the question: “if
website users were to read the privacy policy for each
site they visit just once a year, what would their time be
worth?” 2008 Answer: 244 hours (35 working days = 1
2/3 months). Just privacy policies, not EULA’s &
ToS’.http://lorrie.cranor.org/pubs/readingPolicyCostauthorDraft.pdf
Related Problem Trajectory # 1
Provider or Publisher?
• Providers generally have few free speech rights
or content liabilities (“takedown/safe harbor”).
• “Google loses Australian defamation case after court rules that
it is accountable as a publisher” (The Verge – Nov. 26,2012).
Search results linking French insurance company to words
“crook” and “con
man.”http://www.theverge.com/2012/11/26/3694908/googledefamation-australia-publisher
• “Verizon called hypocritical for equating net neutrality to
censorship: Telecom only claims responsibility for content
when it's convenient” (Ars Technica – Nov. 16,
2012).http://arstechnica.com/tech-policy/2012/11/verizoncalled-hypocritical-for-equating-net-neutrality-to-censorship/
What about “Merged Content”?
• Multiple screen within screen issues (main content +
additional supplier content + crowd-sourced content: text
+ audio + video + location ++++)
• Multiple input dilemma = split legal approach for split
screens? Which standard will a Court apply – lowest
common denominator/ to each its own?
• What standard applies? Expression rights/defamation
liabilities v. safe harbor/takedown – To edit or not to edit?
• Split regime – but why not both? One relates to
defamation/other to copyright.
Related Trajectories # 2 & # 3
Privacy (commercial) & Privacy
(gov’t/law enforcement) & Web
Jurisdiction
• ‘Mr. Ward’s “unreasonable” expectation of privacy
towards data held by his ISP’ (McCarthy Tetrault LLP)
Nov. 8, 2012 – expectation of ISP privacy unreasonable
in context of investigation for crimes of possession and
trafficking of child pornography (Canada)
• http://www.lexology.com/library/detail.aspx?g=0ef8a1c268de-46ed-8aa6-4ce8b7826ccf
• “Courts Divided Over Searches of Cellphones” (NY
Times) Nov. 25,2012 (U.S.)
• http://www.nytimes.com/2012/11/26/technology/legalityof-warrantless-cellphone-searches-goes-to-courts-andlegislatures.html?pagewanted=all
Related Trajectories # 2 & # 3 (con’d)
• “What Privacy is For” by Julie E. Cohen 126 Harv. L. Rev.
(forthcoming 2013 – draft Nov. 5, 2012)
• http://www.harvardlawreview.org/symposium/papers2012
/cohen.pdf
• LEADING TO >>>>>>>>>>
• “New World Order: is the UN about to take control of the
internet?” (The Verge) Nov. 29,2012
• http://www.theverge.com/2012/11/29/3706352/un-itutalks-dubai-guide
End of Whirlwind Tour
Index Reminder
• 1. Whirlwind tour of current IP legal issues
• 2. Examination of ethical conundrums & the tensions
between freedom and creativity
• 3. A few observations regarding possible destinies
2. Examination of Ethical Conundrums
& the Tensions Between Freedom and
Creativity
• All facets of the same “cube” >>>>
• Exemplified by Fair Use/Fair Dealing
Conundrums…
Three Examples of the Conundrums
• “Early-Morning Raid (in Finland) Sent To Confiscate 9-YearOld’s Winnie The Pooh Laptop For Downloading Music”
(Techdirt) Nov. 26,
2012http://www.techdirt.com/articles/20121122/02340221122/
early-morning-raid-sent-to-confiscate-9-year-olds-winniepooh-laptop-downloading-music.shtml
• “Tattoo Artist sues THQ Over Designs Appearing in UFC
Games” (GamePolitics) Nov. 20,
2012http://gamepolitics.com/2012/11/20/tattoo-artist-sues-thqover-designs-appearing-ufc-games#.UL7pupPjmOU
• How The Video Game Industry Was Launched 40 Years
Ago….Thanks To Infringement (Techdirt) Nov. 30,
2012http://www.techdirt.com/blog/innovation/articles/2012112
9/17592021179/how-video-game-industry-was-launched-40years-ago-thanks-to-infringement.shtml
The Core Conundrum
• Game Mods
• Machinima
• Remixing
• BECAUSE THEY IMPLICATE CREATIVITY
Some Questions ??
• Is there a “RIGHT To CREATe”?
• Is Copyright “property ” or “right ”?
• Are the problem “legal”? Or are we misunderstanding the
balances of the idea/expression dichotomy?
• Did Copyright grow of of free speech principles or
property ownership values? (See the Statute of Anne
1710 “An Act for the Encouragement of Learning…” &
Article 1 of the U.S. Constitution “To promote the
Progress of Science and useful arts..”)
• Does it mean anything that IP laws time limited?
• Is it odd that copyright constrains speech?
• Is it odd that IP Laws restrain mass creativity?
SCC Paradigm Shifts
• The August “Copyright Pentalogy” & previous cases
• Moving from fair dealing as an exception to copyright
infringement towards proactive “User Rights”
• Right to Link
• Right to longer iTunes previews
• Tech Neutrality
• Fair dealing is to be assessed from the point of view of
the purchaser/user
• “Research” need not be associated with traditional
intellectual pursuits
• See: “Reflections on the Supreme Court of Canada 2012
Copyright Decisions” (IP Osgoode) Nov.
29,2012http://www.iposgoode.ca/2012/11/ip-osgoodespeaker-series-the-honourable-mr-justice-marshallrothstein-%E2%80%93-reflections-on-the-supremecourt-of-canada-2012-copyright-decisions/
New Copyright Act
• Parody & Satire – new Fair Dealing exceptions to
infringement
• New “User-Generated Content Exception To
Infringement” – allows for creation and publication of
“mash-up” videos and other user-generated content
without infringement PROVIDED it is not used for a
commercial purpose.
• “What the New Copyright Law Means For You” by
Michael Geist Nov. 13, 2012
• http://www.michaelgeist.ca/content/view/6695/135/
Index Reminder
• 1. Whirlwind tour of current IP legal issues
• 2. Examination of ethical conundrums & the tensions
between freedom and creativity
• 3. A few observations regarding possible destinies
3. A Few Observations Regarding
Possible Destinies
• “Google’s ‘Defend Your Net’ Campaign Implies That All of The
Internet Is Fair Use” (TechCrunch) Nov.
27,2012http://techcrunch.com/2012/11/27/googles-defendyour-net-campaign-implies-that-all-of-the-internet-is-fair-use/
• “That Was Fast: Hollywood Already Browbeat The
Republicans Into Retracting Report on Copyright Reform”
(TechDirt) Nov.17,
2012http://www.phphosts.org/blog/2012/11/that-was-fasthollywood-already-browbeat-the-republicans-into-retractingreport-on-copyright-reform/
• Report examined “three myths”: 1. The purpose of copyright is
to compensate the creator of the content; 2. Copyright is free
market capitalism at work; & 3.The current copyright legal
regime leads to the greatest innovation and
productivity.http://www.hyperorg.com/misc/rsc_policy_brief_-_three_myths_about_copyright_law_and_where_to_start_to_fi
x_it_--_november_16_2012.pdf
Is the Puddle Looking Better Now?
Oh…..
•One More
Thing…..
Another Take on The Post IP World
• In todays world….In real
terms….It is possible that…
• IP has become
VIRTUALLY*
MEANINGLESS
mean·ing·less/ˈmēniNGlis/
Adjective:
Having no meaning or significance.
Having no purpose or reason.
Synonyms:
pointless - senseless - unmeaning - insignificant – inane
*no pun intended
IP Law Swept Away By?
• Privity of Contract; AKA Licensing Agreements (EULA’s, ToS
etc.)
• Privacy Agreements
• Broadcast &Telecom Regulation
• Anti – Trust Law
• Consumer Protection
Cliffhanger…for another day….
Another “One More Thing”…
• The best thought experiment about a “Post IP World”…
•
“Without copyright protection the world may never have
known Jar Jar” – “World without copyright?”
(WordsByNowak) Nov. 22,
2012http://wordsbynowak.com/2012/11/22/copyright-2/
Thank You for coming…
• Thanks also to Prof. John Bowes & Jake Freiberg for the
invitation…
• And to Prof. Richard Smith, Prof. Kim Voll, Rory Holland
and all the Faculty, Staff & Students at The CDM for their
support and encouragement….
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