LAW OFFICES OF RICHARD KOMAN

Pirate Bay judge is member of Copyright Association

In Uncategorized on January 22, 2010 at 5:13 am

The Pirate Bay may have grounds for a retrial. It turns out that the judge in the case, Tomas Norstrom, might have a slight conflict of interest. He’s a member of the Swedish Copyright Association and sits on the board of Swedish Association for the Protection of Industrial Property.

Peter Althin, the lawyer for TPB cofounder Peter Sunde, said he’s asking the Swedish appeals court to consider ordering a retrial based on the judge’s possible bias, the BBC reports.

“In the autumn I received information that a lay judge could have similar connections. I sent these to the court and the judge was excluded in order to prevent a conflict of interest. It would have been reasonable to then review this situation as well,” Althin told Sveriges Radio.

BBC also offers perspective on Swedish law from former senior attorney Sven-Erik Alhem, who says it’s unlikely this will result in – a former senior attorney in Sweden – said the judge had made an error of judgement, but a retrial was unlikely.

The judge should have told the parties of his other engagements. Had he done that then they could make a decision on whether they wanted him as a judge in their case. I’m not sure the superior court could say that this was unfair, but had he been open then it wouldn’t have been an issue.

The legalities of Swedish judicial ethics aside, this seems to me to be very bad form for a case of such public interest and import. A judicial system needs to appear — and be — independent and unbiased. That’s exactly the image the court strove to present in its very matter-of-fact comments after the decision:

The court first tried whether there was any question of breach of copyright by the file-sharing application and that has been proved, that the offence was committed…

To then find out that a judge has very definite leanings towards one party really makes a mockery of the unbiased judiciary. As Rick Falkvinge, leader of the Swedish Pirate Party, told the BBC:

“The judge in one of Sweden’s most high profile case ever is also a member of an interest organisation for one side and associates with the prosecution trial lawyers in his free time? That is inexcusable corruption.

Again, no idea what the Swedish appeals court will do, but the moral authority of the decision has been critically weakened by this revelation.

Court: Open source licenses are copyright licenses

In Uncategorized on January 22, 2010 at 5:07 am

Originally posted 8/24/2008

By Richard Koman

Open source licenses create a condition on the scope of the license – and thus expose violators to injunctions under copyright law – the Court of Appeals for the Federal Circuit ruled yesterday. The decision in Jacobsen v. Katzer (PDF) reverses a District Court holding that the a violation of the license (most importantly, “removal of all of the original copyright notices to the original authors and the substitution of Katzen’s company’s name,” as Mark Radcliffe described last August) was a mere contractual violation not a copyright infringement.

(The case involved model train control software; the image above is from Katzer’s bogus patent app.)

The appellate court found that Katzen’s actions were copyright violations and thus Jacobsen could seek injunctive relief, not mere money damages.
Radcliffe explains:

The CAFC noted that the Artistic License imposed its obligations through the use of the words “provided that” which is generally viewed as imposing a condition. Although the reasoning is limited to the Artistic License and the interpretation of each open source license will depend on the wording of its provisions, this decision is a welcome change to the District Court decision. The case has been remanded for the District Court to determine if the other criteria for injunctive relief have been met, but the CAFC’s decision strongly suggests that they have been met.

Lessig perhaps makes the concept clearer:

In non-technical terms, the Court has held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you’re simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.

And from the decision itself:

Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition. Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief.

Students v iParadigm: Archiving papers in database is Fair Use

In Uncategorized on April 21, 2009 at 6:08 am

iParadigms’ TurnItIn.com is a service marketed to high schools and colleges in which student papers are entered into a database and then pattern-checked for signs of plagiarism. Several students in Northern Virginia came up with a clever attack on the service: a lawsuit claiming copyright infringement.

But iParadigms argued their use of the student papers was fair use and not a copyright infringement. The District Court agreed and granted summary judgment in iParadigms’ favor.

Last week, the Fourth Circuit Court of Appeals upheld the district court’s decision. The case adds some interesting perspective on fair use doctrine.

Read the decision here

By statute, courts must consider four factors in determining if there was fair use. Here’s a look at how the court addressed each of the factors.

1. Tranformation

Despite the Supreme Court’s warning that the fourth factor, the impact on the market for the original work, is the most important factor, I would argue that it is this idea of a transformative alteration of the work that is most important as it pervades all four of the factors.

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