1. Apple v. Samsung: Some Perspective on One Beeill-yun Dollars!

    Dr. Evil Returns!

    Almost immediately after the jury in the Apple v. Samsung patent/trade-dress case returned its verdict, the twitterverse was buzzing with Dr. Evil jokes. Try as you might, but you couldn’t say, “$1 billion” without either cracking up, or doing Dr. Evil’s little pinky thing.* Try it. You just can’t.**

    * Huh, it looks like he actually says, “$100 billion.”

    ** As a means of counteracting the Dr. Evil thing, I tried doing it with a Carl Sagan impersonation—bill-yuns and bill-yuns of years ago—but it didn’t feel right.

    I did my best to ignore the case while the trial was going on—there’s only so much a guy can take—but when I heard last Friday that the jury was about to return its verdict, I couldn’t resist the siren call of The Verge’s liveblogging. At first, I didn’t think it was a big deal, until I realized my brain was reducing every monetary figure by a magnitude—a defense mechanism against insanity, I think. And when you totaled it all up, yup, it was Dr. Evil time.

    I’ve been asked about the verdict a lot at CoderFaire over the weekend, and Monday I was interviewed about it Read More»

  2. Copyright Protection of APIs after Oracle v. Google: Poppin a Whelan

    Part VI: Everything That’s Old Is New Again (but it’s Still Overruled)

    Last time, we examined Oracle’s strategy to overcome certain doom under the abstract-filter-compare test: pull back and look at the big picture. In other words, don’t focus on the line-by-line computer code, but look at the Java API as a whole—how the “methods” (individual programs that comprise the API) are organized and named.

    The problem was that, even with the change in perspective, Oracle had serious problems under the abstract-filter-compare test because one of the things you’re supposed to filter out is expression required for interoperability or compatibility. As it turns out, the way the Java API was organized had everything to do with interoperability and compatibility. If you grant copyright to the way the API is organized internally, you’d interfere with the ability of programmers to program in Java, or, really, for anyone to use Java.

    So Oracle needed a new test. And it turns out, if you go back far enough, you’ll find a test for determining infringement of copyright in software that is much friendlier to Oracle. It is from decision known as Whelan. But first, a short history lesson.

    Computer software has … Read More»

  3. ReDigi Finale: Comparing Apples to Amazons (Part 20 in Our Online Music Services Series)

    And Other Loose Ends.

    This is going to be (I hope) the last post about the ReDigi situation, at least for a while. I’ll admit I got distracted by the RIAA’s little missive to ReDigi. I want to sum up and wrap up. First, the summing:

    The Three Legal Obstacles to a Digital First-Sale Right

    Looking over the five (!) previous posts about ReDigi, we see three obstacles to its legality:

    1. Do the consumers who wish to sell their digital singles actually own, or merely license, the music files? That’s what Vernor helps us answer, as discussed here.
    2. Is the First-Sale Doctrine limited to the same physical item that was the subject of the “first sale”? I discuss this question here and here.
    3. By what right can ReDigi make the temporary, intermediate copies necessary to transfer the song file? I discuss this issue here and here.

    So. There. Now, let’s tie up a few loose ends.

    What About Amazon?

    When I first discussed whether ReDigi’s system could comply with Vernor (to answer the question of whether the potential sellers “own” the digital downloads), I focused exclusively on the iTunes Store license agreement. I did so … Read More»

  4. ReDigi: A Digital Secondary Market (Part 15 of Our Online Music Services Series)

    Can ReDigi Take Advantage of the First Sale Doctrine?

    When I first contemplated this Online Music Services Series, I decided not to discuss Apple’s iTunes Store service or similar services because (1) they weren’t new, and (2) the relevant law was pretty boring. While it’s true that the U.S. Supreme Court recently let stand a lower-court ruling that downloading songs from iTunes-like services does not constitute a “public performance,” hardly anyone was surprised by the result.* When you download a song from iTunes, Apple is making a copy of the song file and sending it to you–it’s your own copy, which you can play whenever you want. This is different from streaming services in which multiple users receive the streams of music derived from the same “single master” but which they don’t get to keep.

    * ASCAP sued because, although its case was a long-shot, the amount of money at stake made it worth the effort. ASCAP is charged with collecting royalties for public performances on behalf of songwriters, so if downloads were public performances… 

    ReDigi and the Creation of a Digital Secondary Market

    But, then along comes ReDigi, a twist on the iTunes Store model that … Read More»

  5. On the Death of Steve Jobs: A Visionary (Sort of) for Our Times

    Why I’ve Admired Steve Jobs Since 1980

    When Steve Jobs passed away last week, it felt almost (but not quite) like a death in the family. It’s a little hard to explain why. Sure, I’ve been using Apple products since around 1980 (I can’t remember the exact year my dad bought us an Apple II+). But I’ve been using Microsoft products for almost as long, and I doubt I’ll feel the same about Bill Gates’ death (I won’t feel *happy* either). And sure, Jobs was a kind of a rock star, but I’ve always been immune to that sort of charisma. And sure, he grew up, like me in a ranch-style house in a middle class neighborhood in Mountain View (or, in Jobs’ case, an unincorporated part of Santa Clara County that was, for all intents and purposes, Mountain View), but so did a lot of other people with whom I share no connection.

    Naturally, I tried to console myself by reading other people’s reactions to Jobs’ death, particularly in Twitter feeds. There were a few dominant themes: that he was an innovator, that he was a rebel, that he just designed good products–and a few … Read More»

  6. Help Us Spotify; You’re Our Only Hope! (Part 14 of our Online Music Services Series)

    The Planets Align for the Music Industry. Will it Be Enough?

    In our last post, we examined the overlapping music-licensing regimes to explain, in part, why it took Spotify two years to get licensed in the U.S. We also looked at the music industry’s unhappy history with the internet, which also helped explain Spotify’s licensing struggles.  We now look at what Spotify means to the music industry’s future. A lot might be riding on Spotify.

    For all the technology firms looking to make money from music, consider how few of them even get as far as Spotify in being able to present the music industry a comprehensive internet-based scheme. A couple spring to mind: Rhapsody in 2001, and Apple in 2003.* This means that, when Spotify came calling, the industry actually had little practical experience on which to base a very perilous decision: how much to charge for music. Since the royalty rate is by far the biggest cost incurred by online music service providers–Rhapsody is said to pay 60% of its revenues in royalties, Pandora 50%–the royalty rate demanded by the music industry pretty much dictates the price of the product. Set it too high, and the service … Read More»

  7. Spotify: A New Hope (Part 13 of our Online Music Services Series)

    Or, the Attractions (and Distractions) of Licensing

    Spotify has been available in the United States for a few months now. Until the recent kerfuffle involving its Facebook integration, the reviews have been positive. If you review the features list with which we started this Online Music Services Series, you’ll see that Spotify comes as closer to giving consumers what they want than any other service. In fact, it’s not even that close:

    • Portability: check: with Spotify Premium, you can listen to longs off-line and you gain access to Spotify’s mobile apps.
    • On-demand: check: you can listen to any song you want to in either your or Spotify’s catalog;
    • Music discovery: half-check: Spotify has a feature that allows others to share music with you, which should help you discover music you like, but nothing quite as robust as Pandora’s Music Genome.
    • Extensive catalog: check: Spotify’s catalog has about 15 million songs.
    • Low cost: half-check: Spotify Free has all of the features above except portability; for that, you need to shell out $9.99 a month, and you lose all access should your subscription expire.*

    * If I were starting this series over again, I might have Read More»

  8. Music-Locker Services: DMCA Protection and the “Single Master” (Part 9 of our Online Music Services Series)

    What We Did Learn (Sort of) from the MP3Tunes Decision

    In our last post, we looked at what the MP3Tunes decision didn’t tell us–that it didn’t put the music industry’s best argument to the test.  We looked at the contours of this “nuclear option,” including the elephant-in-the-room possibility that the music industry could once again go after individual consumers.  In this post, we’ll look at what the MP3Tunes decision did tell us–sort of–about the legality of music-locker services.

    DMCA Safe-Harbor Protection Redux

    As with Grooveshark, music-locker services have two ends.  In one end, the user uploads song files.*  Out the other end, the service “streams”** the song files to the user’s various devices.  Unlike Grooveshark, however,, the subscribers can enjoy only their own music (whereas Grooveshark users could enjoy everyone else’s music, too).  This might (or might not) make a big legal difference.

    Apple’s service will have a major difference.  With Apple’s “Match” service, if you purchased your music through Apple’s iTunes store, you won’t need to upload the song file at all–you can “stream” Apple’s own copy of the song file.  Apple has obtained licenses from the rights holders to do this.

    **  I put stream in Read More»

  9. Music-Locker Services: Is in the Cloud in the Cards? (Part 8 of Our Online Music Services Series)

    What the MP3Tunes Decision Tells Us About Music-Locker Services

    (I know I said that our next posts in our Online Music Service Series would be about Pandora and Turntable.fm, but the recent decision in the MP3Tunes case has inspired me to look at the Amazon, Google and Apple music-locker services, instead.  We’ll use the MP3Tunes decision as a spring-board for discussing music-locker services.  We’ll get to Pandora and Turntable.fm next week.)

    You might have heard about the decision handed down earlier this week in Capitol Records, Inc. v. MP3Tunes, LLC.  You might especially have heard that the decision is “good news” for “music-locker” services like Amazon’s and Google’s–and, by extension, that Apple was foolish to obtain licenses.  You might even have heard that “music-locker” services are now definitely 100% legal.

    The decision certainly wasn’t bad news for Amazon and Google.  We have additional confirmation that providers of music-locker services are not ineligible for DMCA safe-harbor protection.  Which we all figured was the case.  The most we can say is that Amazon has gone from about 90% certain, to about 92% certain, that the mere fact that its music lockers are likely to be host to infringing content won’t, … Read More»

  10. Overview of the New Online Music Services: Part 3 of Our Online Music Service Series

    Seven Different Ways to Get Your Recommended Daily Requirement of Music

    This is the third installment of our series on the legal aspects of online digital music services.  We turn now to the services themselves:  here are thumbnail sketches of the six major new online music services.  For those not in widespread public release, our information is derived from press reports, rumor, scuttlebutt and innuendo.  When we start examining the services in detail, we’ll add links from here to the associated blog posts.

    Pandora OK, calling this “new” is a bit of a stretch, but it really kicked off this new way of listening to music.  Because it has a track-record of success, it’s a good measuring stick to set against the newer services.  Pandora is free with advertisements.  It does not play music on demand, but it does a good job of playing music you’ll probably like.  It operates by “streaming” music over the internet (but we’re not sure what sort of streaming is used or any of the specifics).  Pandora does not obtain licenses for its music directly from copyright holders but operates under the statutory “webcaster” license.

    Spotify Free/Unlimited:  In America, this is the newest such … Read More»

Rick and Tara are experienced lawyers who have set out to serve clients in a new way. Rick's roots reach back to his Silicon Valley home, where he first developed his litigation-oriented practice before moving to Nashville in 2004. Tara got her start in the music publishing business in Nashville in 1998 and has used that experience to form the basis of her transactional law practice since graduating from law school in 2004.
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