Can You Bug Your Own Cellphone?

This recent post over at Consumerist caught my eye: A person loses his cell phone. Before he lost it, he set it up to blind-copy him on all emails sent from the cell phone. Let’s assume for the sake of argument that he did this (as the post recommends) as a “pretty brilliant low-tech security solution for tracking down a lost/stolen phone or laptop.” Pretty soon, someone finds the cellphone and begins using it, evidently with no attempt to locate the owner. The readers of Consumerist are collectively able to track the finder down within 55 minutes and get him to promise to return the phone, which he actually did.

Naturally, I had the same reaction to this story that anyone else would: Is that a violation of the Wiretap Act?

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The Obama “Hope” Poster Case — A Copyright Catch-22?

(This is the third in a series of posts on Fairey v. Associated Press. See below for other posts in the series.)

Shepard Fairey has sued the Associated Press preemptively. Before the AP could sue him for infringement, he sued for a declaratory judgement under the Declaratory Judgment Act, 28 U.S.C. § 2201, that his poster does not infringe on any copyrights held by the AP, and in the alternative that his poster is a fair use. The advantage of bringing a declaratory judgement action, of course, is that the defendant, not the plaintiff, gets to pick the time and place of the suit.

But if the AP hasn’t yet registered the copyright in the photo, Fairey might be caught in what I’ve described previously as a “Copyright Catch-22“: unable to sue until the AP gets its registration, at which point they’ll promptly sue him rather than waiting around for his declaratory judgement action. In other words, the Declaratory Judgement Act may simply be unavailable, as a practical matter, for some copyright defendants. Assuming the AP hasn’t gotten a registration yet, is Fairey caught in this bind? Maybe, unless the Second Circuit decides to chart a new path on this issue.

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ABA Journal Story on YouTube and Copyright Infringement

I’m quoted in a story in this month’s ABA Journal on the interaction between copyright law and websites that host user-generated content, such as YouTube. YouTube is defending itself right now in a lawsuit pending in the Southern District of New York brought by the media company Viacom. I analyzed the Viacom complaint in a post over on Prawfsblawg shortly after it was filed—all the way back in March 2007. (I recently checked the docket, and the case appears to still be in discovery. The gears of litigation turn slowly.)

The quote in the article is from a later post looking at the implications of a recent Northern District of California decision—Io v. Veoh—for the YouTube case. While most observers saw the defense win in Io to be good news for YouTube, I saw elements of the reasoning that I thought could pose problems for YouTube. That’s because I’ve long argued that the key good fact for Viacom, and possibly the main reason it sued, was not simply the wide availability of Viacom content on YouTube, but this allegation, from Paragraph 7 of the complaint:

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