I keep meaning to add John Battelle's Searchblog to the blogroll. I also keep meaning to sneak some sleep. (As Heather Armstrong put it, "I think they should call postpartum depression what it really is, and that is going certifiably insane from sleep deprivation." Heather's posts, one handed and otherwise, about new mommyhood, are wondrously fine.) So by way of compromise, I'm leaving John here at the top while I go offline for a few days. See you soon.

While Doc blogs by answering email in public, I'm a big fan of forwarding. For example, from what little of my mail I made it through today I learned:

• SecretJustice.org is a site devoted to supporting the adoption of proposed Federal Rule of Appellate Procedure 32.1 — a rule that would permit citation of all judicial dispositions, contrary to rules in many jurisdictions barring citation of unpublished dispositions in briefs or otherwise. The site is useful regardless of how you feel about citation of unpublished dispositions (assuming of course you have an opinion, or even know what the heck I'm talking about), in light of its comprehensive collection of public comments for and against the amendment. (I see Steve Minor has weighed in [PDF]; he's "pro.") Also, the current issue of the Journal of Appellate Practice and Process (Vol. 5, No.2, Fall 2003) has a pertinent article by Boalt Hall's Stephen Barnett: "No-Citation Rules Under Siege: A Battlefield Report and Analysis."
• Thinking of nominating yourself or someone else for a 2004-05 Presidential Appointment to an American Bar Association standing committee, special committee, or commission? (Sounds very official, doesn't it?) Okay. You have until March 1. (And oh yeah, the nominee has to be an ABA member. I'm not sure, but I think that means however much you might want to nominate Gary Turner to the Law and National Security Committee, it's probably a lost cause.)

My first contribution to the IP Memes newsletter went out yesterday, featuring current developments on the file sharing front. It is reproduced below. This and many other email newsletters are available free from TechnoLawyer. IP Memes is published each Monday, with Dennis Kennedy, Kevin Grierson, Gail Standish, Kurt Calia and I taking turns at the oar.

I. Ninth Circuit To Decide Legality Of P2P Networks

Lawyers for Grokster and StreamCast squared off against the RIAA and MPAA on February 3, 2004, in a case that may extend to P2P networks the sort of protection from copyright lawsuits enjoyed by VCRs. In MGM v. Grokster (Ninth Circuit Case Nos. 03-55894 and 03-56236), the Ninth U.S. Circuit Court of Appeals will decide whether U.S. District Court Judge Stephen Wilson was correct in concluding last April that file sharing software provided by Grokster and Morpheus does not violate copyright law.

While it is impossible to predict the outcome of a federal appellate case from oral argument proceedings, the Ninth Circuit reserved its toughest questions, and its most evident skepticism, for the appellants MGM, et. al. As did Judge Wilson's decision below, the Ninth Circuit's determination will turn on whether, under Sony v. Universal City Studios case (the Supreme Court's 1984 "Betamax" decision), the software underlying P2P networks has "substantial noninfringing uses" that should be preserved as a matter of policy, even though there is no question the technology also may be used to infringe copyrights. Along these lines, questions at oral argument suggested the Court may think the considerable amount of authorized or public domain materials being traded on the networks — perhaps 750,000 files, according to the record before the Court — comprises a substantial noninfringing use. The Court also seemed to reject the argument that the Sony case requires a "primary" legal use for the technology, and did not appear to agree its own Napster precedent dictates that infringement assisting technologies must be shut down if the infringement is preventable. Fred von Lohmann, Senior Staff Attorney for the Electronic Frontier Foundation and counsel on appeal for StreamCast, has observed that "[t]he legal doctrine tested in this case is the same one that protects companies like Hewlett-Packard and Microsoft from being held liable when someone uses HP CD burners or Internet Explorer to commit copyright infringement." Questions at oral argument about whether Xerox should be liable when a student makes infringing copies on a campus photocopier demonstrated the Court's understanding of the broad ramifications of a reversal.

More reading:

EFF document library, including links to oral argument audio
File-sharing issue lands in court again
P-to-P Appeal Calls on History
Lawyers call for filters in P2P piracy case
Grokster, Morpheus face MPAA in appeals court
Court to Hear Landmark P2P Case

II. If You Can't Beat 'Em...

As the Ninth Circuit is poised to perhaps endorse the legality of P2P networks, several recent developments illustrate their potential business value to copyright holders:

Artemis Records will make its works available for purchase on Kazaa, Grokster, and two other P2P networks. Artemis Records to license songs to file sharing network

Lightweight DRM (digital rights management) promises ease of personal copying yet protection from widespread distribution. Is the mood changing towards the legitimate use of P2P networks?

i2 Telecom will use Morpheus to sell its VOIP service. I2 Telecom to sell through Morpheus; Morpheus maker to launch Net phone service

Trevor George Hunsberger Bechtel credits file sharing as the cause of the belated success of a Gary Jules single from the Donnie Darko soundtrack, currently on the "most played" lists of many U.S. alternative rock stations. Mad World; KROQ most played list; Donnie Darko (Score)

III. If You Don't Join 'Em...

It used to be the complexity or expense of creating back-ups of encrypted DVDs or video games would limit the copying of these media. Such barriers are rapidly disappearing. Dark Tip: Free DVD Backup; Dark Tip: Back Up Your Games

The latest version of the Morpheus P2P client allows users to connect to all the major P2P networks — e.g., Kazaa, iMesh, eDonkey, Overnet, Grokster, Gnutella, LimeWire, G2 (read: greater decentralization, less ability to monitor or control users) — and offers enhanced user privacy (read: enhanced protection against lawsuits). Morpheus upgrade goes multi-network

The latest version of the Blubster P2P client promises privacy protection in the form of full network encryption and file disassembly/reassembly techniques. Morpheus Crosses P2P Boundaries, Blubster Boosts Privacy

Bill Scannell just let me know about PapersPlease.org, Nevada cowboy Dudley Hiibel's site devoted to his case before the U.S. Supreme Court to be argued on March 22. In Mr. Hiibel's case, the Court will determine whether the Nevada Supreme Court erred when it found Mr. Hiibel, who was apparently just minding his own business at the time, could be arrested for refusing to show I.D. to a police officer on demand. The Washington Times has this editorial.

Frank Field has all the scoop on the injunction ordered last Friday by District Judge Susan Illston in the 321 Studios case. Unsurprisingly, 321 says it will appeal the injunction and seek a stay of its enforcement. For more, see the company's News Page (gotta love a company that links to scores of articles about its bad days in court) and Legal Timeline (which needs updating).

This is pretty much right on:

YOU ARE RULE 15!

You're a very helpful rule! You allow the attorney
to amend their complaint once as a matter of
course at any time before the answer is filed,
and also allow amendments in other cases. If a
claim relates back to the original transaction
or occurrence outlined in the complaint, you
can amend the complaint, even though the
statute of limitations has run. Like a good
friend, you're always there to help out in a
bind.
Which Federal Rule of Civil Procedure Are You?
brought to you by Quizilla

Thanks JCA and TPB.