“This is what happens every day in our industry … You know, people are made to look like they have much more authorship in the situation than they actually do.”
“YODA would simply state that if you want to sell, lease, or give away your device, the software that enables it to work is transferred along with it, and that any right you have to security and bug fixing of that software is transferred as well.”

Representative Farenthold Introduces YODA | U.S. House of Representatives

I don’t know what’s better, the acronym or the substance of the bill. The headline of the press release leads me to imagine Rep. Farenthold saying, “Heeeeeeeeeeeeeeeeeeeeeeeere’s Yoda!”

Sorry for Transforming

Yesterday morning I woke up to an intriguing alert from the Sunlight Foundation’s amazingly-useful Scout service. In a decision issued Monday, 7th Circuit Judge Easterbrook had found that photoshopping an image of a prominent politician to create mocking t-shirts was fair use. That’s not surprising; it’s pretty classic transformative stuff, with a clear First Amendment hook. I would have taken that case in a minute.

What caught my attention was Judge Easterbrook’s angry swipe at the legitimacy of “transformative use” as that concept is deployed in fair use opinions in other judicial circuits (both the tech-heavy 9th and the publishing-heavy 2nd have made extensive use of it). While he came to the “right” outcome (in my view), his antagonism to transformative use is quite troubling. A quick glance at his preferred method of reasoning (a version of market analysis which is no more or less statutory than transformative use) gave me chills. It’s as if the Campbell v. Acuff-Rose never happened.

So, I shot a little note to a list serve with IP professors, and within hours two of my favorite copyright scholars had fired off critiques of Easterbrook that I want to co-sign. Check them out here:



“The track sounds like seventeen different bands averaged out in Yelp and turned into an Active Rock Smoothie.”

Sascha Frere-Jones does not like the new U2 record.

U2’s Forgettable Fire - The New Yorker

Great retro/cheeky PSA from Tumblr advocating for Title II reclassification.


Today’s the day. The day you help save the internet from being ruined.


Yes, you are, and we’re ready to help you.

(Long story short: The FCC is about to make a critical decision as to whether or not internet service providers have to treat all traffic equally. If they choose wrong, then the internet where anyone could start a website for any reason at all, the internet that’s been so momentous, funny, weird, and surprising—that internet could cease to exist. Here’s your chance to preserve a beautiful thing.)

“Common Cause and more than 50 other advocacy groups this week called on Google to end its affiliation with the American Legislative Exchange Council (ALEC), a group that has pushed state laws limiting the rights of cities and towns to create community-owned broadband networks. ALEC also opposes network neutrality rules that Google used to be a staunch supporter of and last month urged the FCC to quickly approve Comcast’s purchase of Time Warner Cable without imposing any regulatory conditions on the merger.”

Google silent on support for group opposing net neutrality and muni broadband

ALEC is so profoundly evil, and so profoundly anti-consumer, it’s so disappointing that Google supports the organization. What ever happened to Don’t Be Evil?

(via wilwheaton)

(via mostlysignssomeportents)

Inventio and our modern word “invention” share a Latin root, roughly meaning “to find.” So the task was not—and is not—to “invent” an argument or work in isolation, but to draw on the inventory of skills and materials that have been collected and organized.”

Nice little decision re the film Lovelace, a biopic about the actress of the same name, which included recreations of scenes from the infamous pornographic film Deep Throat. An easy transformative fair use decision on the pleadings—no infringement to recreate the scenes given they were recast to reveal Lovelace’s naiveté, awkwardness on set, etc., rather than to titillate. No attorneys’ fees, alas, but still nice to see the court holding the line. And, as with Cariou, the court wasn’t fazed by evidence of alleged literal market harm—in this case a licensed competitor who never went to market due (allegedly) to preemption by the unlicensed defendant. Transformation über alles.

And, yeah, maybe the court confuses 106 and 107 here and there, but po-tay-toe, po-tah-toe. Fair use really is the rule, and copyright the exception, after all.