Who’s Afraid of ProCD?

It’s a prevalent meme in contemporary copyright scholarship that the public domain is being “enclosed” by expansions in copyright law. Scholars point to many examples of this alleged expansion, including term extension, anticircumvention laws, and court decisions rejecting certain attempts to claim fair use. But one widespread source of complaint among copyright scholars is the idea that contracts are somehow being used to expand copyright owners’ rights. And the chief villain in this story is the decision that allegedly started it all, the Seventh Circuit’s own ProCD v. Zeidenberg, authored by Judge Frank Easterbrook.

I should note right off the bat that I am not quite so enamored of form agreements as Judge Easterbrook is. That much I probably share with my fellow copyright specialists. But I’ve come to the tentative conclusion that the case for contracts somehow expanding copyright rights is vastly overstated, and perhaps illusory. ProCD–with the exception of one overlooked wrinkle–is not the threat everyone seems to think it is.

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Copyright Catch-22

With the closing of Bill Patry’s Copyright Blog, there’s a distinct absence of copyright wonkery on the web. So I will occasionally do my best to chip in. Today’s case raises the following possibility: Suppose you run a business heavily dependent on a certain software program. And suppose the owner of that program keeps writing you cease and desist letters, saying that your copy is infringing and that each passing day accumulates more actual damages, as well as your profits attributable to the infringement. You want to clear this cloud from your business, and heaven forfend, if you are found to be infringing, put a cap on the damages. But let’s suppose the owner hasn’t gotten around to actually registering the copyright yet. Can you sue for a declaratory judgement action?

In Weitzman v. Microcomputer Resources, the Eleventh Circuit said no. That intolerable situation can persist until the owner finally decides to sue you instead.

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Court Finds First Amendment Right to Forge E-Mail Headers

On Friday, the Virginia Supreme Court handed down its revised decision in Jaynes v. Commonwealth, an appeal of a criminal conviction under Virginia’s anti-spam statute. The defendant, Jeremy Jaynes, was at the time of his arrest one of the most prolific spammers in the world, sending at least 10 million e-mails a day using 16 high-speed data lines, according to prosecutors. He used his e-mails to sell dubious software products, raking in $400,000 to $750,000 per month.

Jaynes argued that Virginia’s anti-spam statute violated the First Amendment. The statute prohibits sending “unsolicited bulk electronic mail” after having intentionally falsified the e-mail header information, i.e., the information indicating the source of the e-mail. That’s a little different than your average spam statute, which typically prohibits only “unsolicited commercial e-mail.” According to the unanimous Virginia Supreme Court (four members of which switched their votes on rehearing), prohibiting non-commercial bulk e-mailers from forging the header information violates the First Amendment right to speak anonymously.

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