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Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at dhowell@gmail.com.

Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.

Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at tmighell@swbell.net.

Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at marty@schwimmerlegal.com.

Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally, to seek enlightenment. Email Ernest at esvenson@gmail.com.
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« On the Subject of Podcasting . . . | Main | We Hold These Truths »

July 1, 2005

Apple's Uncanny Timing

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Posted by Denise Howell

  • Monday, June 27. Grokster decision issues from U.S. Supreme Court. Court concludes that "statements or actions directed to promoting infringement" should trump the safe harbor represented by the Sony-Betamax decision. Applies to secondary liability for user infringement in connection with all products "capable of both lawful and unlawful use." Fact of probable "staggering" scope of direct infringement by users, while not controlling, undeniably shades the analysis.
  • Tuesday, June 28. iTunes 4.9 debuts, now with podcasts. The good news: many podcasts are copyright friendly. The bad news: many, not so much.
  • Wednesday, June 29. The Wall Street Journal reports that "Apple will weed out podcasts that include full-length songs for which [sic] podcasters don't have permission to use," and that "Mr. Jobs says Apple has an agreement from music companies that allows podcasters to play 30-second song clips in their shows."
  • Thursday, June 30. Apple Podcast Subscriptions Top A Million.

Hmm. I begin to understand what Ernie Miller meant by "ironically." Like the business models of Grokster and StreamCast, the iPod business model hinges on users having worthwhile, perhaps frequently infringing, listening material. In podcasting then, Apple has the proverbial Tiger (no pun intended) by the tail. Will it behave, or not? (Playing with fire and bargaining with the devil are two other hackneyed but apropos expressions that come to mind.) Will podcasts strengthen Apple's ability to fend off secondary liability claims, or just multiply the number of direct user infringements being facilitated? It's tough to say, but I bet it's got legal in a tizzy.

Comments (5) + TrackBacks (0) | Category: Copyright | Podcasting | Provocations


COMMENTS

1. Joe windish on July 2, 2005 11:21 AM writes...

Sorry if I'm off topic, but I'm wondering about Google video in this context as well. Generally, I'm hopeful that Apple and Google offering new models of public access to production and distribution are letting the genie out of the bottle; it can't be corked again. Not everyone I know is as hopeful.

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2. jbelkin on July 2, 2005 10:30 PM writes...

Actually, Apple's itunes lets you also link to any podcast "manually" so if you want the "prestige" and traffic of being listed in Apple's directory - you have to be mostly above board - but if your listeners are willing to skirt the law with you - they can do so directly (as with any Apple software - it's very difficult - you select MANUAL and you type in the url you want to manually load ...)

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3. Mike Voice on July 3, 2005 2:41 PM writes...

While Apple would have more worries if it was still using the "Rip, Mix, Burn" slogan in its ads, the fact that they promote the iTunes MUsic Store as a legal alternative to illicit file-trading should give them a buffer against any claims they are "promoting infringement".

An iPod does not download illicit files from the net, it takes a computer - running certain software programs - to do that.

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4. Denise Howell on July 3, 2005 3:25 PM writes...

Hi Mike,

I agree Apple is in better shape without the old ad campaign, and with statements of intention like this one. However, remember Grokster applies to all products capable of lawful and unlawful use (i.e., it doesn't matter if iPods are network connected or not). And I think it remains an open issue under the decision what will suffice as far as putting one's money where one's mouth is when it comes to policing user infringement.

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5. Robert K. Foster on July 5, 2005 2:38 PM writes...

It seems to me that the key difference here is that podcasts, generally speaking, come directly from their creators and are mostly free to distribute without copyright infringement. Granted there are some podcasts which do/will include copyrighted material. It will be interesting to see what events transpire for podcasts which contain copyrighted material from other creators/owners. Right now everyone wants as many listeners as possible, thus free distribution. Once the meme phase of podcasting is over some producers of podcasts may start to "lockdown" their content. It'll be interesting to see how that plays out also.

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