I received the IRB approval for the Fair Use Study yesterday. I have sent out requests to participate today. So far I have one meeting schedule in order to begin collecting data. More later.

http://linuxp2p.com/forums/viewtopic.php?t=374&highlight=stallman+interview

#2 probably goes on a case by case basis, as it depends on whether the other country will recognize a tribe separately from the US government. Many might not. The authority might be there, but realistically it might not be very effective. #1 I don't know the answer to. #3 I am referred to FLORIDA PREPAID POSTSECONDARY EDUCATION EXPENSE BOARD v. COLLEGE SAVINGS BANK et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No. 98—531. Argued April 20, 1999–Decided June 23, 1999
http://www.law.cornell.edu/supct/html/98-531.ZS.html
It’s my understanding that a federally recognized tribe (nation) would have sovereign immunity unless it consented to a suit. However, issues are raised if say a copyright/patent violation by the nation was elevated to the level where it is a taking of property without due process in violation of the 14th amendment. From Florida Prepaid: “’A patent for an invention is as much property as a patent for land’. As such, they are surely included within the ‘property’ of which no person may be deprived by a State without due process of law. And if the Due Process Clause protects patents, we know of no reason why Congress might not legislate against their deprivation without due process under §5 of the Fourteenth Amendment.”:(quote)

The Due Process Clause provides, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” U. S. Const., Amdt. 14, §1 (emphasis added). This Court has accordingly held that “[i]n procedural due process claims, the deprivation by state action of a constitutionally protected interest . . . is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v. Burch, 494 U. S. 113, 125 (1990) (emphasis deleted).

(end quote) The issue is, I think, does the Indian Nation provide some other remedy for a person whose property is taken -- otherwise I think the US courts might be able to intervene and hold the Nation responsible under US copyright law. Whether a Nation has some way to address the taking might go on a Nation by Nation basis. I don't know the answer to this, I'm just guessing at this point. There also might be an issue regarding whether or not an infringement was negligent or intentional, as in Florida Prepaid the court talked about negligent taking as not rising to the level to be a 14th amendment due process violation.

But Justice Stevens opinion is interesting. It calls up the Chew case where a woman who invented a way to test car emissions and patented her invention brought suit against the State of California when it infringed on her patent. The court dismissed her claim saying the CA was sovereignly immune and didn't seem concerned that she might have no other remedy.

"Marian Chew had invented a method for testing automobile engine exhaust emissions and secured a patent on her discovery. Her invention was primarily used by States and other governmental entities. In 1987, Chew, an Ohio resident, sued the State of California in federal court for infringing her patent. California filed a motion to dismiss on Eleventh Amendment grounds, which the District Court granted. The Federal Circuit affirmed, id., at 332, expressly stating that the question whether Chew had a remedy under California law “is a question not before us.” Nevertheless, it implied that its decision would have been the same even if Chew were left without any remedy. Id., at 336. During its hearing on the Patent Remedy Act, Congress heard testimony about the Chew case. Professor Merges stated that Chew might not have been able to draft her infringement suit as a tort claim. “This might be impossible, o[r] at least difficult, under California law. Consequently, relief under [state statutes] may be not be a true alternative avenue of recovery.” House Hearing 33.7"

OK so I had all of the materials in to MSU's IRB on January 9, 2006 and they are coming along with the review process. I received one request this week to do an extremely minor revision to the consent form. Now I am waiting to see what will happen next.

The Nevada district court held that Google's cache system is a Fair Use. According to EFF.org http://www.eff.org/deeplinks/archives/004344.php "Blake Field, an author and attorney, brought the copyright infringement lawsuit against Google after the search engine automatically copied and cached a story he posted on his website." The Nevada district court found that Blake's copyright claim was manufactured and granted summary judgment against Blake stating that"serving a webpage from the Google Cache does not constitute direct infringement, because it results from automated, non-volitional activity by Google servers . . . Field's conduct (failure to set a "no archive" metatag; posting "allow all" robot.txt header) indicated that he impliedly licensed search engines to archive his web page [apparently Blake knew all about robots and purposely set up his webpages so that they would be crawled by Google - the court's implied license discussion is interesting- Blake's conscious choice of action was important to the court] . . . The Google Cache qualifies for the DMCA's 512(b) caching "safe harbor" for online service providers." The use was therefore a Fair Use.
A pdf of the 25 page opinion can be downloaded here http://www.linuxelectrons.com/article.php/20060125192627938/print

CBD is the Convention on Biological Diversity. According to the article on http://www.ip-watch.org/weblog/index_test.php?p=210, “A draft version of international regulations on the use of genetic resources has been put forward by the chairwoman of a United Nations conference here.”
The article notes the pharmaceutical industry was well represented at the convention but was not too supportive of the draft. On the other hand, the draft was welcomed by developing countries.
I attended the Third Annual Intellectual Property and Communications Law Scholars Roundtable this last weekend at Michigan State University College of Law. One of the speakers was Prof. Peter Yu, Director of MSU’s Intellectual Law Program. The paper he presented argued that although pharmaceutical companies argue they need to protect prices in order to protect their ability to do research, what they are really trying to protect is double digit profit margin. I thought Yu’s argument was interesting because he said that non-IP related issues must be considered when countries are trying to negotiate international IP agreements. Developing countries have concerns that do not concern IP, in other words.

From the Daily Digest
January 29, 2006: After Grokster, Industry Seeks Legal P2P As Mobile Music Takes Over
By Monika Ermert for Intellectual Property Watch

CANNES - Napster went down, Grokster went down, yet as both digital music services drew millions of people to their sites, industry is eager to make them stay there as law-abiding music download-services. Now the question has become, what must a legal peer-to-peer (P2P) service look like, and is legal P2P possible after the recent Grokster decision of the US Supreme Court.
Link to the complete article: http://www.ip-watch.org/weblog/index_test.php?p=209

"Blogging as an alternative to law reviews -- and as a model for them" http://althouse.blogspot.com/2006/01/blogging-as-alternative-to-law-reviews.html

Quote from Free Expression Website:(December 2005) - The product of more than a year of research - including many firsthand stories from artists, scholars, bloggers, and others - Will Fair Use Survive? paints a striking picture of an intellectual property system that is perilously out of balance. ** The 70 page report can be downloaded free on the Free Expression website. The study suggests that Fair Use be strengthened so that people can continue to contribute to society and culture. The report found that "Artists, writers, historians, and filmmakers are burdened by a 'clearance culture' that ignores fair use and forces them to seek permission (which may be denied) and pay high license fees in order to use even small amounts of copyrighted or trademarked material." The report further found that the DMCA is being used in inappropriate and sometimes unjustified ways to pressure ISPs to take down materials.

BMG.pdf
Cecilia Gonzalez, who downloaded copyrighted music through the KaZaA filesharing network claimed her use was a Fair Use. The District Court found that the use was not fair and assessed damages again Cecilia in the amount of $22,500.00. She had downloaded 1370 songs, many of which she owned on CD. But 30 songs she never owned. Regardless, she had kept these files on her computer -- this fact was relevant since she argued that she was only trying the songs out before she bought them.
The court reiterated The Four Factor Fair Use Test (page 4): "Section 107 provides that when considering a defense of fair use the court must take into account '(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.'"
But determined that even though Gonzalez’s use was a private use, she “was not engaged in a nonprofit use; she downloaded (and kept) whole copyrighted songs (for which, as with poetry, copying of more than a couplet or two is deemed excessive); and she did this despite the fact that these works often are sold per song as well as per album.” The court found that her downloading of songs even when she had the CD’s negatively impacted the potential market for the copyright holder. According to the court, owning a CD does not mean that downloading a song on that CD from the internet is a Fair Use because the copyright holder has a right to determine how its works will enter new markets:
"All [Gonzalez’s use] undermined the means by which authors seek to profit. Gonzalez proceeds as if the authors’ only interest were in selling compact discs containing collections of works. Not so; there is also a market in ways to introduce potential consumers to music."
The court also distinguished sampling provided online byway of streaming content or iTunes-like services where she could have listened to the songs before buying, but allowed the copyright holder to receive royalties. The fact that such sampling is evanescent was important to the court as well.
The argument that try-it-before you buy it is good for copyright holders because it helps them sell more works was rejected by the court: “As file sharing has increased over the last four years, the sales of recorded music have dropped by approximately 30%.”
The court did say: “A ‘fair use’ of copyrighted material is not infringement.”

http://www.nyu.edu/classes/siva/archives/002732.html Siva V. did a search in Lexus-Nexus databases on how many articles with "Fair Use" appeared during the last few years. He requests explanation on why there was a spike in Fair Use articles during 2005.

What we come up with as plans is to group the questionnaire results into various buckets. But first I will need to score the questionnaires. Scores will be given for both knowledge of the law and certainty in that law. I should get 8 students with these scores. I can do the teachers later as we will treat them differently. At this point I have four teacher samples and 23 student samples.
Things to do in order to do this data analysis:
Get the Answers down and so the answer key.
First Cut 80% or above ::
A or B = high level
C,D,F is low knowledge
confidendence level
Break into categories::

high knowledge

low knowledge

high certaintly

certainty
Then isolate issues from the Four Factor. Looks at choices they made in their webpages and make up questions. Make up the questions based on the Four Factors.Then we might be able to theorize how to move a person from low certaintly and knowledge to high certainty and knowledge.

http://www.wide.msu.edu/projects/fair_use