Anthony Falzone's blog

CIS Is Going Dark To Stop SOPA

A wave of opposition has crashed over the House's Stop Online Piracy Act (SOPA) and the Senate's Protect I.P. Act (PIPA) based on the tremendous threat they pose to free speech and innovation online. It appears the House may be poised to abandon SOPA after the White House issued a statement making clear it would not support the bill. But the Senate is still pressing ahead with PIPA's most dangerous provisions intact, including those that would force internet service providers to block access to entire sites through DNS blocking and other means that threaten both the universality and the security of the internet itself.

If this legislation passes -- in this version or another -- legitimate websites will be threatened. Some will disappear. Tomorrow, the CIS website will disappear (along with many others) to protest the misguided approaches SOPA and PIPA employ, and to demonstrate the threat they pose. We'll be back on Thursday. In the meantime, read up on the dangers these bills pose, and what you can do to make a difference.

If you want take your site down, here are some tools from CloudFlare and Webmonkey that make it easy.

Opposition To SOPA Continues To Grow

Representatives Anna Eshoo and Zoe Lofgren joined eight other members of Congress in urging the House Judiciary Committee to reject SOPA because it would cause "serious and long term damage to the technology industry" -- "one of the few bright spots in our economy."

Nine of the leading internet companies, including Google, Facebook, Twitter and Zynga also sent a letter to key member of the Committee explaining that SOPA would jeopardize protections that "have been a cornerstone of the U.S. Internet and technology industry’s growth and success."

Both letters are attached below, and you can find lots more information on the Protect Innovation homepage.

David Post: Occupy Hollywood (and stop SOPA)

Last July, I signed on to a letter from more than 100 law professors urging Congress to reject the PROTECT-IP Act. A new version of that bill -- referred to as both the E-PARASITE Act and SOPA -- was introduced in the House last week, and it is even more dangerous than its predecessors. See David Post's critique at the Volokh Conspiracy. Hear Mark Lemley's discussion on APM's Marketplace. Once you do, you'll probably ask "what can I do to stop this?" You can start by signing this petition at, and using this tool from EFF to write your Senator and Congressperson -- wherever you live.

Fair Use Project Teams Up With Andy Warhol Foundation To Urge Second Circuit To Provide Broader Fair Use Protection For Artists

Last March, a Manhattan district court issued an order declaring thirty paintings by the renowned artist Richard Prince unlawful, and issued an injunction that led to the seizure and potential destruction of his work. It did so because Prince’s paintings used images of Rastafarians that Prince found in Patrick Cariou’s book, Yes, Rasta. Yesterday, we filed an amicus brief on behalf of The Andy Warhol Foundation for the Visual Arts urging the Second Circuit to reverse that decision. (The Warhol Foundation's press release is here.)

Golan v. Holder Argument Recap

It was my great honor to argue for the petitioners in Golan v. Holder before the Supreme Court of the United States last week. SCOTUS blog has an excellent recap of the argument on its case page, and the Court has posted the transcript and audio recording.

Argument coverage from the New York Times, Wall Street Journal and Washington Post all point to Jimi Hendrix as the star of the show. Op / Ed pieces in the New York Times and the Huffington Post (here and here) do a nice job of explaining what's at stake.

Our synopsis of the case is here, along with all of the parties' briefs. We expect a decision by June.

UPDATED: Golan v. Holder Merits Brief Explains Why Congress Is Not Allowed To Privatize The Public Domain

UPDATE: The government's brief and our reply are now posted below. Oral argument is scheduled for October 5. Today we filed our opening brief in the U.S. Supreme Court challenging Congress's power to remove works from the public domain. For 200 years, the Copyright Act placed a huge array of works into the public domain through a combination of term limits and eligibility requirements. It created a vast reservoir of knowledge, learning and artistic creativity that millions of us use every day. Since creating the public domain in 1790, Congress amended the Copyright Act again and again to cover new types of works and lengthen copyright terms. But each time it did so, it left the public domain completely intact. It respected the fact that the public domain is public property, and cannot not be taken away. That changed in 1994, when Congress passed a law that removed a vast body of foreign works from the public domain. This body of works included symphonies by Sergei Prokofiev, Igor Stravinksy and Dmitri Shostakovich; books by C.S. Lewis, Virginia Woolf and H.G. Wells; films by Federico Fellini, Alfred Hitchcock and Jean Renoir; and artwork by M.C. Escher and Pablo Picasso. The Register of Copyrights estimated the works affected by this law "probably number in the millions." Congress took the rights in these works from the American public and handed them over to foreign authors and their heirs in the express hope that foreign countries would reciprocate by giving U.S. copyright owners new rights in works that were in the public domains of those foreign countries. In other words, Congress decided to give away the public's property -- and the important speech and expression rights that go with it -- in the hope this might put more money in the pocket of U.S. copyright owners. In the brief we filed today, we explain why the Constitution does not allow Congress to privatize the public domain and why doing so here violated the First Amendment rights of our clients and the American public. We expect the Court to hear the case this fall, with a decision to follow several months later.

(Updated) San Francisco's de Young Museum Bans Sketching In Special Exhibition, Thumbs Nose At Centuries Of Artistic Tradition

Details of the silliness are here. Best part of the story is the photograph of an artist setting up an easel and full array of paints in the Louvre. The French win again.

UPDATE: The Assistant Director of Communications from the de Young contacted me this morning, and explained that one of the reasons the museum adopted the no-sketch policy for this special exhibition is the volume of people who want to see it. Seems to me that implicates even more interesting questions: What is the point of the exhibition, and how important is it to provide an opportunity for a deeper and more lengthy interaction with the works on display?

Library of Congress: Fair Use Lets You Jailbreak Your iPhone

The Library of Congress dropped a bombshell today in the form of new exemptions from the DMCA's anti-circumvention provisions.

The biggest splash of all was for smartphones: The Library approved an exemption proposed by the Electronic Frontier Foundation that allows smartphone owners to modify the handset's software to run unauthorized applications.

10th Circuit Reverses Golan: URAA Passes First Amendment Test

Last year, we won an important victory for our clients when the District Court held the URAA violates the First Amendment insofar as it suppresses parties' rights to keep using works they exploited when those works were in the public domain. Yesterday, the Tenth Circuit Court of Appeals reversed that decision, holding the URAA does not violate our clients' First Amendment rights. (Full opinion is attached below.)

Second Circuit Adopts Stricter Standard For Copyright Injunctions

Last summer, a federal district court in New York issued a preliminary injunction banning the publication of 60 Years Later - Coming Through The Rye on the ground it represented a likely infringement of JD Salinger's copyrights in Catcher In The Rye. And that was the problem: Under the District Court's analysis, the injunction followed almost automatically from its finding of likely infringement.

Search Schizophrenia And The Doomsday Machine That Just Won't Start

Microsoft is mad because Google is trying to finalize a deal that would give it a monopoly over the right to make digital copies of orphan books. But Microsoft is apparently in talks with News Corp. to obtain a monopoly over the right to make digital copies of News Corp's websites. News Corp. is mad because its content isn't making as much money as Rupert Murdoch wants it to. So his plan is to charge money for something nobody pays for -- the right to search and index websites. Murdoch hopes Microsoft is mad enough at Google to write a giant check for something everyone gets for free.

So where does all the madness lead? Nowhere.

FUP Withdraws From Fairey Case; Hope Remains

As reported, we are no longer representing Shepard Fairey in his dispute with The Associated Press. The events that led to this have been well-publicized; they involve Shepard's deletion of electronic files relating to the question of which photograph he used to create the Obama Hope poster, and his creation of new documents designed to make it look as though he used a different photograph.

There are lots of reasons lawyers may not be able to continue representing a client. But it's important to make one thing clear: Our decision in that regard had nothing to do with the underlying merits of Shepard's case. We believe as strongly as ever in the fair use and free expression issues this case presents, and we believe Shepard will prevail on them. The question of which photo he used as a reference simply should not make a difference, much less overshadow the merits of this important case.

Shepard has a fantastic set of lawyers representing him now, so he is in good hands, as are the important rights at stake in this case. That fact makes us profoundly happy. We'll be watching and rooting for Shepard, albeit now from the sidelines.


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