Tuesday, June 30, 2009

Supreme Court Allows Wider DVR Use; New York Times, 6/30/09

Stephanie Clifford via New York Times; Supreme Court Allows Wider DVR Use:

"The Supreme Court on Monday delivered a blow to the television networks when it declined to hear a case about a digital video recorder technology, opening the gate for wider use of DVR systems.

The case began in 2006 when Cablevision Systems, the New York-area cable operator, announced plans for what is called a network DVR system. With it, a customer would use a remote control to digitally record a program like “60 Minutes” but instead of storing the show in the customer’s at-home DVR box, the technology would store the show on a faraway Cablevision server.

The technology would let Cablevision convert set-top boxes into boxes with DVR capabilities without requiring an installation or new equipment.

“It opens up the possibility of offering a DVR experience to all of our digital cable customers,” Tom Rutledge, Cablevision’s chief operating officer, said in a statement. Programmers including Turner Broadcasting System’s Cartoon Network, CNN and television networks sued Cablevision, saying the system violated copyright law. In March 2007, a lower court agreed, ruling that Cablevision “would be engaging in unauthorized reproductions and transmissions of plaintiffs’ copyrighted programs.” The United States Court of Appeals for the Second Circuit in New York reversed that decision in August 2008. The plaintiffs asked the Supreme Court to hear the case, but the Supreme Court’s refusal essentially reinforced the Second Circuit’s decision.

Patrick Ross, the executive director of the Copyright Alliance, an industry group that includes the Motion Picture Association of America and Time Warner, said a recording stored in a network was different from one stored in a consumer’s set-top box.

This appears to be a very clever way for a licensee of creative works to develop new distribution methods that, it would argue, do not require licenses,” said Mr. Ross, whose group filed an amicus brief on behalf of the plaintiffs."


Software Firm Buys Swedish File-Sharing Site; New York Times, 6/30/09

AP via New York Times; Software Firm Buys Swedish File-Sharing Site:

"The Pirate Bay is one of the world’s largest file-sharing venues with more than 20 million users worldwide. In April, four men connected with the site were sentenced to one-year prison sentences for violations of copyright law.

A Swedish court found that the four had helped millions of people download copyright-protected material like films, music and computer games.

While the Pirate Bay doesn’t host copyright-protected material, it directs users to content such as films, music and computer games through so-called torrent files.

Global Gaming Factory X said it intended to start a new business model that will make it possible to compensate both content operators and copyright owners."


Monday, June 29, 2009

Play it again: Tenenbaum team tries to toss MediaSentry evidence; Ars Technica, 6/29/09

Nate Anderson via Ars Technica; Play it again: Tenenbaum team tries to toss MediaSentry evidence:

"The year's second major P2P trial kicks off in one month, and Harvard Law professor Charles Nesson wants to mount some of the same attacks that failed in the first case. Nesson argues that all of the RIAA's MediaSentry investigative evidence must be banned from trial, as the company violated wiretap law and private detective licensing law."


Google Book Search Bibliography; Charles W. Bailey, Jr., 6/29/09

Charles W. Bailey, Jr.; Google Book Search Bibliography [current through 6/29/09]:

"This bibliography presents selected English-language articles and other works that are useful in understanding Google Book Search. It primarily focuses on the evolution of Google Book Search and the legal, library, and social issues associated with it. Where possible, links are provided to works that are freely available on the Internet, including e-prints in disciplinary archives and institutional repositories. Note that e-prints and published articles may not be identical.

See the Google Book Search Library Partners page for a list of library participants.

An archive of prior versions of the bibliography is available."


Blount Says Orphan Works No Reason to Block Google Settlement; Benefits Touted; Publishers Weekly, 6/25/09

Jim Milliott via Publishers Weekly; Blount Says Orphan Works No Reason to Block Google Settlement; Benefits Touted:

"Wednesday afternoon, the publishers’ partner in the deal, the Authors Guild, posted a letter on its Web site from [Authors] Guild president Roy Blount Jr. talking about orphan works and the benefits the settlement will bring to authors, publishers and readers.

Blount played down concerns expressed by some over orphan works , writing, “ I can’t see any reason to dissent from the settlement over the matter of orphan books.” "


Should There Be A Penalty For Falsely Claiming Copyright Over Public Domain Material?; TechDirt, 6/26/09

Mike Masnick via TechDirt; Should There Be A Penalty For Falsely Claiming Copyright Over Public Domain Material?:

"Slashdot and The Register point us to a new paper by Jason Mazzone about "copyfraud" -- or the ability of someone to claim copyright on something that is in the public domain. The issue, Mazzone points out, is that there's no penalty for falsely claiming copyright on something, so there's plenty of incentive to claim something is still covered even if it's not."


Sunday, June 28, 2009

Is It Time for RealNetworks to Switch Gears?; New York Times, 6/28/09

Brad Stone via New York Times; Is It Time for RealNetworks to Switch Gears?:

"Now Real is waging a new war. Last fall, it introduced software called RealDVD that lets people overcome Hollywood’s anticopying software to make backups of the DVDs they own. Six major Hollywood studios and Real are now fighting over the technology in a federal court in Northern California. A preliminary decision from a judge is expected soon, but the case, and Real’s antitrust claims against the movie studios, could drag on for years.

Real’s cause — to let people make personal copies of movies they own — would appeal to average people, just like the company’s last crusade to sell music for the iPod. But is it a cause worth fighting for, particularly when there are more important challenges in Real’s core businesses? Many shareholders and pessimistic Wall Street analysts do not think so."


Saturday, June 27, 2009

Copyfraud: Poisoning the public domain; The Register, 6/26/09

Charles Eicher via The Register; Copyfraud: Poisoning the public domain: How web giants are stealing the future of knowledge:

"The public domain is the greatest resource in human history: eventually all knowledge will become part of it. Its riches serve all mankind, but it faces a new threat. Vast libraries of public domain works are being plundered by claims of "copyright". It's called copyfraud - and we'll discover how large corporations like Google, Yahoo, and Amazon have structured their businesses to assist it and profit from it."


Into the Fray; New York Times Book Review, 6/19/09

Book Review: Ross Douthat on Mark Helprin's Digital Barbarians: A Writer's Manifesto, via New York Times Book Review; Into the Fray:

"In 2007, [Mark Helprin] published an essay in the Op-Ed section of this newspaper arguing for the continuing extension of copyright, so that the rights to a novel or poem could be passed down not only to the author’s children, but to his children’s children’s children as well. Since a more latitudinarian copyright regime is a cause célèbre for a certain class of Internetista, his argument ignited a storm of criticism, and the comments appended to the online version of the article ran into the hundreds of thousands. And since this was, after all, the Internet, most of them were stupid.

Helprin could have ignored the barrage; he could have sifted it for arguments worth replying to. Instead, he decided to write a furious treatise against the comment-happy horde. The resulting book, “Digital Barbarism: A Writer’s Manifesto,” is a vindication of the aphorism about the perils of wrestling with a pig. (You get dirty; the pig likes it.) Helprin can be a wonderful wordsmith, and there are many admirable passages and strong arguments in this book. But the thread that binds the work together is hectoring, pompous and enormously tedious...

Here it’s worth contrasting “Digital Barbarism” with a book by one of the “crapulous professors” in question — Stanford’s Lawrence Lessig, whose “Free Culture,” a 2004 brief against the current state of copyright law, provides a touchstone for the movement Helprin hates. Lessig is not a tenth the writer that Helprin is, but he has other gifts — the ability to argue in a calm and ordered fashion; the capacity to at least pretend to give the other side its due; and the ability to avoid fevered prose and name-calling while making a controversial case. He may be a Mad Hatter, but he comes across as deeply sane, and it’s hard to imagine a reader new to this debate who wouldn’t find “Free Culture” more convincing than “Digital Barbarism.”

This doesn’t mean that Lessig is right and Helprin is not. On the broader question of Internet culture, Helprin’s pessimistic vision has a great deal to recommend it. Where the critics of copyright perceive the Internet age as a potential Renaissance being blocked by overconsolidated corporations, Helprin worries, plausibly, that the spirit of perpetual acceleration threatens to carry all before it, frenzying our politics, barbarizing our language and depriving us of the kind of artistic greatness that isn’t available on Twitter feeds. The fact that he gave in to the frenzy himself is regrettable, but it doesn’t make him wrong.

On the narrower question of how and whether copyright law should be adjusted, meanwhile — and it is a narrow question, the claims of both sides notwithstanding — there might actually be a middle ground. Helprin is persuasive when he argues that copyright’s disappearance would be a slow-motion disaster, and plausible when he argues that the direct costs of letting his descendants continue to profit from sales of “A Soldier of the Great War” are minor or even nonexistent. But Lessig and company are equally plausible when they suggest that the copyright laws that protect the Helprin family’s intellectual property can be misused, usually by lawyered-up corporations, to block the kind of creative borrowing and reworking that early generations of artists took for granted.

Why not, then, simultaneously extend copyright and narrow its scope? Let the Helprins continue to earn royalties into the distant future, but let adaptations, derivations, parodies and borrowing flower more quickly and completely than the current system allows. Leave the Tolkiens the rights to “The Hobbit”in perpetuity, but not the right to prevent two enterprising film companies from going forward with competing adaptations. Leave the Mitchells the rights to “Gone With the Wind,” but not the right to tie up a would-be parodist in court for years on end because they don’t like what she’s doing to their Scarlett. Leave the Lucas family the right to “Stars Wars,” but not the right to prevent me from writing my own competing version of Anakin Skywalker’s life story.

Maybe this sort of system would turn out to be impractical. But it’s only one of the many bridges one could imagine between a principled defense of artistic property rights and a principled defense of artistic freedom. It’s a shame that Helprin was too busy wrestling with the monkeys and mouth-breathing morons to try building it."


RIAA Claims Jammie Thomas Jury Is A Representative Sample Of Views On File Sharing; TechDirt, 6/25/09

Mike Masnick via TechDirt; RIAA Claims Jammie Thomas Jury Is A Representative Sample Of Views On File Sharing:

"That's when the RIAA tried to claim that the Jammie Thomas jury provides a representative sample of "music industry outsiders" whose verdict disproves the theories of certain "pundits" who believe the digital economy should be a "new wild west" where "the rule of law" is not obeyed.

Talk about misrepresenting.

First of all, I don't know of many "pundits" who think that the digital economy should be a new wild west at all. I think that many of them are actually just focused on preserving individual rights against a constant landgrab by an industry whose history has shown it to not be above removing right after right after right from people. The RIAA and its supporters have taken content out of the public domain, making a government go back on a bargain it struck with content creators, much to the detriment of society, but very much to the benefit of a few record label execs and their lobbyists and lawyers. That's stealing from the public. It's taking a bargain and changing the terms. People don't want a wild west. They want the culture we were promised, and they want their individual freedoms.

Furthermore, calling the very specific nature of the Jammie Thomas trial a referendum on file sharing is ridiculous. Her case had a very specific set of circumstances unlike many others -- and even we (a "reliable critic" according to the RIAA) felt that she never should have gone to trial, as the evidence against her seemed strong."


Thursday, June 25, 2009

Authors Guild defends Google Books settlement; L.A. Times, 6/25/09

L.A. Times; Authors Guild defends Google Books settlement:

"The Authors Guild, which hasn't said much since last fall after it settled its lawsuit with Google over the search company's book scanning project, today issued a statement defending the settlement against recent criticism.

Specifically, the letter by author and Guild President Roy Blount Jr. addresses the topic of orphan books, which are works that are out-of-print and unclaimed by any copyright holders. You can read the entire letter here."


Monday, June 22, 2009

What's next for Jammie Thomas-Rasset?; Ars Technica, 6/21/09

Nate Anderson via Ars Technica; What's next for Jammie Thomas-Rasset?:

"Jammie Thomas-Rasset has at least six options for moving forward after the massive $80,000 per song judgment handed down against her. We take a look at the possibility of paying the award, settling, declaring bankruptcy, reducing the award, appealing the case, and changing the law...

Judge [ Michael] Davis feels the same way and has already "implored" Congress to "amend the Copyright Act to address liability and damages in peer‐to-peer network cases such as the one currently before this Court."

University of California law professor Pam Samuelson, an expert on statutory damages and copyright law, also called for reform in a fascinating paper released in April 2009.

In reference to the first Thomas-Rasset judgment, Samuelson concluded, "Some jurors in the Thomas case wanted to award $750 per infringed song, while others argued for $150,000 per song; why they compromised on $9250 per song is a mystery. In today’s world where the average person in her day-to-day life interacts with many copyrighted works in a way that may implicate copyright law, the dangers posed by the lack of meaningful constraints on statutory damage awards are particularly acute."

One key suggestion for reform: allowing judges to revise damage awards to below the current $750 minimum threshold in such cases.

Had the amount been a "mere" $750 a song, for an $18,000 total fine, the Thomas-Rasset case would have offered little incentive to reform the law. But when the first of the RIAA's 30,000+ actions goes to trial and the plaintiffs emerge with a $1.92 million award... legislators may take notice."


How Good (or Not Evil) Is Google?; New York Times, 6/22/09

David Carr via New York Times; How Good (or Not Evil) Is Google?:

"Among other adventures, Google’s motives were called into question after it scanned in millions of books without permission, prompting the Authors Guild and publishers to file a class-action suit. The proposed $125 million settlement will lead to a book registry financed by Google and a huge online archive of mostly obscure books, searched and served up by Google.

So is that a big win for a culture that increasingly reads on screen — or a land grab of America’s most precious intellectual property?..

"Google is, broadly, the Wal-Mart of the Internet, a huge force that can set terms and price — in this case free — except Google is not selling hammers and CDs, it is operating at the vanguard of intellectual property...

But others, like the Justice Department and a number of state attorneys general, have taken an acute interest in the proposed book settlement that Google negotiated over its right to scan millions of books, many of them out of print. Revenue will be split with any known holders of the copyright, but it is the company’s dominion over so-called orphan works that has intellectual property rights advocates livid.

It’s disgusting,” said Peter Brantley, director of access for the Internet Archive, which has been scanning books as well. “We all share the general goal of getting more books online, but the class-action settlement gives them a release of any claims of infringement in using those works. For them to say that is not a barrier to entry for other people who might scan in those works is a crock.”

The scanned book project is certainly consistent with the company’s mission, which is “to organize the world’s information and make it universally accessible and useful.”

What I think is great about books is that people just don’t go to libraries that much, but they are in front of the computer all day,” Mr. [Eric] Schmidt [Google's chief executive] said. “And now they have access. If you are sitting and trying to finish a term paper at 2 in the morning, Google Books saved your rear end. That is a really oh-my-God kind of change.”

The government has not yet made this argument — filings are due in the case in September — but others have pointed out that Google has something of a monopoly because the company went ahead and scanned seven million books without permission.To be very precise, we did not require permission to make those copies,” Mr. Schmidt said, suggesting that by scanning and making just a portion of those works available, the company was well within the provisions of fair use.

In a later meeting, Mr. [Sergey] Brin [Google's co-founder] waved his hand when it was suggested that the company’s decision to scan books and then reach a settlement had created a barrier to entry for others. (Google also has a separate commercial initiative to work with publishers to sell more current works.)

“I didn’t see anyone lining up to scan books when we did it, or even now,” Mr. Brin said. “Some of them are motivated by near-term business disputes, and they don’t see this as an achievement for humanity.”"


Sunday, June 21, 2009

Universities Cope with New Anti-Piracy Requirement; Network World, 6/15/09

Joan Goodchild via Network World; Universities Cope with New Anti-Piracy Requirement:

"David Reis, director of IT security and policy at Thomas Jefferson University in Philadelphia, has been on what he calls a "nine-month journey" to figure out exactly how he's going to make sure his school doesn't break the law --even though they were never in trouble in the first place.

Reis' headaches began at the end of last summer, just after President Bush signed into law the Higher Education Opportunity Act, the first reauthorization of the Higher Education Act since 1998. The act included several new provisions, but the one that has Reis and others on college campuses concerned is a new requirement that schools ensure they are doing all they can to combat illegal file sharing among students. The new rules, according to the wording contained in the legislation, requires institutions to develop plans to "effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents." Schools must also "to the extent practicable, offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property." Any institute found to be non-compliant could lose federal funding.

The provision made its way through due to the heavy lobbying efforts of groups such as the Recording Industry Assocation of America and the Motion Picture Association of America. Until recently, the RIAA had been waging their fight to stop piracy among students by filing individual lawsuits against those accused of illegal file sharing. But recently the RIAA has said it has abandoned that strategy and will now focus efforts on working with Internet service providers to issue warnings to violators. They have also lauded this new provision in the HEOA.

But Reis said illegal file-sharing has never been a problem at Thomas Jefferson University and the requirement uses a broad brush to paint a picture that is inaccurate in many instances.

"We have not received one complaint about one student. Yet now we have to go out and incur the cost to solve a problem that we didn't really have," he said.

Reis estimates he will spend approximately $100,000 implementing new hardware and software in order to be in compliance with the regulation."


Universities Struggling To Deal With Law Requiring Them To Fight File Sharing; TechDirt, 6/19/09

Mike Masnick via TechDirt; Universities Struggling To Deal With Law Requiring Them To Fight File Sharing:

"Well, the MPAA put out a report claiming that 44% of "losses" from file sharing came from college campuses. Of course, the number (like so many out of entertainment industry lobbyists) was entirely made up. In fact, it was so ridiculous that even the MPAA came out and publicly admitted the numbers were bogus and apologized! "


Saturday, June 20, 2009

Federal Judge Mulls Copyright Status for Salinger's Holden Caulfield; Law.com, 6/18/09

Mark Hamblett via Law.com; Federal Judge Mulls Copyright Status for Salinger's Holden Caulfield:

"Marcia B. Paul of Davis Wright Tremaine, representing Salinger, won the first part of the hearing by convincing [Judge Deborah] Batts, who said she had read both books, that there was a "substantial similarity" between the two works.

Paul and the attorney for Colting and his publisher, Edward H. Rosenthal of Frankfurt Kurnit Klein & Selz, disagreed over the degree of copyright protection that can be afforded the characters within a book.

Rosenthal said there is case law protecting ubiquitous animated figures such as Superman, but that the 2nd U.S. Circuit Court of Appeals and other courts have not extended the law's protection to purely literary or "words on a page" characters.

Paul responded, "That's not the law. A sufficiently delineated character should be protected."...

"It is hard to separate Holden Caulfield from the book," [Judge Deborah Batts] said. "It would seem that Holden Caulfield is copyrightable."

The judge then turned to the question of whether "60 Years Later" is nonetheless protected by the fair use doctrine.

Here, the burden shifted to Rosenthal, who noted that the point of copyright protection is to "promote the progress of science and the arts ..."

"But not stealing," Batts interjected...

The argument that "60 Years Later" was a work of literary criticism was not helped by the fact that Colting, known as "John Doe" in the pleadings, had called the book "a sequel" before he had time to consult with lawyers for his U.S. publisher, SCB Distributors...

Paul also said fair use protection presumes good faith and fair dealing."


Music-Pirate Mom Shown No Love By Jury To Tune Of $1.9 M; NPR's Two Way Blog, 6/19/09

Frank James via NPR's Two Way Blog; Music-Pirate Mom Shown No Love By Jury To Tune Of $1.9 M:

""The only thing worse than losing a copyright-infringement lawsuit that ends with a $122,000 [sic; $222,000] judgment against you is getting a retrial only to end up with a eye-popping $1.9 million judgment against you...

The Associated Press gives us this paragraph explaining why we should care:

This case was the only one of more than 30,000 similar lawsuits to make it all the way to trial. The vast majority of people targeted by the music industry had settled for about $3,500 each. The recording industry has said it stopped filing such lawsuits last August and is instead now working with Internet service providers to fight the worst offenders."


Bankruptcy could protect Jammie Thomas; CNet News, 6/19/09

Greg Sandoval via CNet News; Bankruptcy could protect Jammie Thomas:

"[I]n the past, when someone was found liable of willful copyright infringement, the law prevented the defendant from discharging, or wiping out the debt in bankruptcy court. Last year, however, the Ninth Circuit Court of Appeals found in the case of Barboza vs. New Form, that "willful" meant one thing in civil court and something else in bankruptcy court.

In trademark or copyright cases, "willful" means that a defendant knew what they were doing. According to the Ninth Circuit, bankruptcy laws mandate that for a debt to be non-dischargeable, a plaintiff must prove a defendant was "willful and malicious," meaning the person's intent was to cause harm.

Even entertainment lawyers agree that the Ninth Circuit's decision in Barboza makes it tougher for copyright owners to collect damages. Kathryn Bartow, an attorney with Manatt, Phelps & Phillips, a Los Angeles-based law firm that does extensive work for the major movie studios, wrote in a February issue of her firm's newsletter:

(Barboza) serves as a warning to trademark and copyright owners as well as the counsel who represent them in willful infringement cases. When presenting evidence and crafting jury instructions, beware. In willful infringement cases, to prevent an individual defendant from having its debt discharged in bankruptcy, the plaintiff should consider introducing sufficient evidence and including additional jury instructions to satisfy the Bankruptcy Code's definitions of 'willful and malicious.'

If the jury had only found Thomas-Rasset guilty of copyright infringement instead of willful infringement, it would have been easier for her to get rid of the debt...

For the RIAA, the size of the damages stamps it with the bully label and backfires when it comes to public relations. That's the opinion of Ben Sheffner, a former entertainment lawyer and copyright proponent. He says the jury award also potentially hurts the RIAA if someone decides to challenge the damages on constitutional grounds.

"On the plus side, the decision sent a strong message," Sheffner said. Twenty-four "average Minnesotans with no ties to the entertainment industry have now said what she did was wrong and she deserves a strong punishment. On the other side, the size of the monetary damages could be used as serious ammo against the music industry.""


Big music file-sharing penalties getting tuned out; Pittsburgh Post-Gazette, 6/20/09

Michael Fuoco via Pittsburgh Post-Gazette; Big music file-sharing penalties getting tuned out:

"Moreover, it may soon be legal for P2P file-sharing. Major record labels are discussing the possibility of a new entity called Choruss in which blanket licenses would be granted to universities and someday residential ISPs for a fee that would authorize the music swapping.

As for now, the Recording Industry Association of America, the trade group that represents the U.S. recording industry, is dealing with commercial, residential and university ISPs, informing them when one of their users is illegally file sharing, said RIAA spokeswoman Cara Duckworth. The ISPs then inform the violators and take escalating action, which usually first involves cease-and-desist letters and can escalate to loss of service...

According to market research company NPD Group, legal downloading of digital music has now surpassed illegal file-sharing. Legal downloading has risen from 16 to 22 percent of Internet users while P2P downloading has decreased from 19 to 18 percent during that same period.

Fred von Lohmann, senior staff attorney with the Electronic Frontier Foundation, a San Francisco-based nonprofit group for consumer digital consumer rights, said RIAA may have lost more than it won in the trial when it comes to public relations.

"If you read between the lines, the recording industry is a little chagrined. They're not celebrating, saying this is what she deserved," he said. "They're sensitive this is an outrageous amount. Even people who are otherwise on their side wouldn't disagree. In some ways, this assists critics of the recording industry."

That's why something like Choruss is a much better approach than punishment in dealing reasonably with file sharing on the Internet, he said. Under the plan being discussed, universities would pay into a fund that would allow their students to "file share to their hearts content," Mr. von Lohmann said. "It's a future-looking piece. It takes policing out of this."

He said that in talking to college students, they all said they wouldn't mind paying $5 more a month in student activities fees for such a service.

"It's not that people won't pay but you can't create a system in which it is harder for them to pay than to do a free thing. At $5 a month, it will feel free to them."

Ms. Duckworth said Choruss is "an innovative way to deal with college online piracy, an interesting concept that is being shopped to different schools. All the major record labels are on board in discussing this, trying to figure out what works best."

She said the RIAA is realistic it will never completely stop illegal online sharing "because we know it's going to happen. We know there are going to be individuals who think music and content should be free.

"What we want to do is to deter casual file sharers, people who wouldn't do this all the time, and direct them to go in the right direction."


Friday, June 19, 2009

US publication of book delayed in Salinger dispute; Associated Press, 6/17/09

Larry Neumeister via Associated Press; US publication of book delayed in Salinger dispute:

"U.S. District Judge Deborah Batts temporarily blocked publication of the book, "60 Years Later: Coming Through the Rye," until she rules whether the book transforms Salinger's original creation enough that it qualifies to be published as a "fair use" of a copyrighted work.

A ruling was anticipated in the next 10 days. The book was scheduled for U.S. release on Sept. 15 but the court dispute was likely to delay that...

She said she read both novels and agreed with Salinger that the new book was substantially similar to his own, published in 1951. Although there was little legal precedent to find that a character in a book with no drawings or photographs of him could be copyrighted, Batts said she believed Caufield could be.

"It's a portrait by words," she said. "It is difficult in fact to separate Holden Caulfield from the book

The hearing featured spirited arguments over whether Salinger's most famous literary character, Holden Caufield, is himself entitled to copyright protection and whether stopping publication of what some publicity materials referred to as a sequel would amount to a book ban.

[Fredrik] Colting, who lives near Gothenburg, Sweden, said in a court document that he did not "slavishly copy" Salinger when he wrote "60 Years Later," his first novel, under the pseudonym J.D. California.

"I am not a pirate," he wrote. He said he wrote the book as a critical exploration of the relationship between Salinger and his famous fictional character.

He said he used his book to transform "the precocious and authentic Holden into a 76-year-old man fraught with indecision and insecurity." The character, identified as "Mr. C," escapes from a retirement home and experiences similar to those Caulfield went through decades earlier.

He said his dedication of the book to Salinger was ironic.

"While I greatly admire Salinger as a writer, he is not the God-Author the public has created," Colting wrote. He also said it was a mistake that early copies of the book released in Great Britain included words promoting it as a sequel to Salinger's book.

During arguments Wednesday, Salinger lawyer Marcia Beth Paul called Colting's book "pure commercialism." She said 94 percent of the book was told in Caufield's voice and only 6 percent in Salinger's voice.

"This is a book about Holden Caulfield," Paul said. "It's a sequel, plain and simple."

She said it was wrong of the defendants to claim that blocking publication of the book because it infringes copyrights would be the same as banning a book. Salinger's book has frequently turned up on book ban lists.

"Make no mistake about it," Rosenthal charged in response. "This is banning the book."
He added: "To enjoin the book before a full exploration of the book is a prior restraint that raises very serious First Amendment questions.""


Nelly Furtado, Timbaland facing copyright infringement lawsuit; Sify.com, 6/18/09

Sify.com; Nelly Furtado, Timbaland facing copyright infringement lawsuit:

"Canadian/Portuguese singer Nelly Furtado and producer Timbaland are facing a copyright infringement lawsuit from record label executives in Finland.

The two have been accused of borrowing segments of someone else's song to create the track Do It, which appeared on the singer's 2006 album Loose, and was a hit song in 2007....

And the record company bosses are planning to use Timbaland's own words against him by quoting him in their lawsuit. They claim the producer gave two radio interviews after the first accusations of plagiarism arose, and spoke about the allegations. He also attempted to explain his take on sampling a song and stealing it.

"Sample and stole is two different things. Stole is like I walked in your house, watched you make it... went to my house and told Nelly, 'Hey, I got a great song for you'," Contactmusic quoted him as reportedly telling one interviewer.

"Sample is like you heard it somewhere, and you just sampled. Maybe you didn't know who it was by because it don't have the credits listed (sic)," he had added."


Two losses and $1.9 million later, Thomas-Rasset remains defiant; Minneapolis Star Tribune, 6/19/09

Alex Ebert and Curt Brown via Minneapolis Star Tribune; Two losses and $1.9 million later, Thomas-Rasset remains defiant:

"Cara Duckworth, a spokeswoman for the Recording Industry Association of America, said Friday the verdict should remind those who share music illegally about the penalties in copyright law. “For the few existing cases, this verdict is a reminder of the clarity of the law,” she said...

Not that [Jammie Thomas-Rasset] minds being a scapegoat. She thinks her case was a factor in the music industry’s decision to halt mass litigation against individuals accused of sharing music.

“I take a little bit of pride in the fact that at least I threw a monkey wrench into their litigation campaign,” Thomas-Rasset said."


Salinger faces curse of creating a classic; Toronto Star, 6/14/09

Toronto Star; Salinger faces curse of creating a classic:

"The book, not yet published but listed for sale on Amazon.co.uk, follows Mr. C., a curmudgeonly 76-year-old who wanders away from his retirement home to revisit some of the Manhattan sites and people originally encountered by Caulfield in Salinger's seminal work. Although Colting and his company say they intended no infringement of Salinger's artistic rights – the novel is dedicated to him – the book has been described as a sequel, which is precisely where the ailing author's complaint draws its strength. Unlike a parody, which is considered fair use of an original work, a sequel is held to be within the original creator's domain. It may well be due to this distinction, and the issue of whether a character like Holden is copyrightable, that Salinger will win out."


As US government closes in, Google eyes revenue streams for Book Search; Christian Science Monitor, 6/18/09

Matthew Shaer via Christian Science Monitor; As US government closes in, Google eyes revenue streams for Book Search:

"Earlier today, Google unveiled a new version of its controversial Book Search tool, even as the US government continued its investigation into a deal reached last October between publishers and the Mountain View, Calif.-based tech company. The updated Book Search includes a swath of new features intended to mirror the way we read dead-tree books, from an expanded table of contents to a page-turn button, with accompanying animation...

Book Search currently makes available only public-domain books, or the titles that Google has negotiated the rights to publish. Still, the improvements to the tool will likely help “position Google Books as the library/book store of choice going forward,” David Weir notes over at BNET. There are “multiple potential revenue streams available — advertising, affiliate marketing, keyword search, direct sales, licensing fees, subscription fees, e-reader device sales, and on and on,” he wrote."


Thomas verdict: willful infringement, $1.92 million penalty; Ars Technica, 6/18/09

Nate Anderson via Ars Technica; Thomas verdict: willful infringement, $1.92 million penalty:

"A new lawyer, a new jury, and a new trial were not enough to save Jammie Thomas-Rasset. In a repeat of the verdict from her first federal trial, Thomas-Rasset was found liable for willfully infringing all 24 copyrights controlled by the four major record labels at issue in the case. The jury awarded the labels damages totaling a whopping $1.92 million. As the dollar amount was read in court, Thomas-Rasset gasped and her eyes widened...

[Defense Attorney Kiwi] Camara acknowledged the [record labels] settlement offer and said that his side would certainly investigate it, but he made clear that he intends to file numerous motions if Thomas-Rasset wants to continue the fight. Motions on the constitutionality of such massive damages and other issues can still be filed with the judge, and then there's the entire matter of an appeal.

Thomas-Rasset sounds inclined to fight on. The case was "one for the RIAA, not the end of the war," she said.

As for Camara, he intends to press ahead with his class-action lawsuit against the recording industry, in which he will take up the daunting task of trying to claw back all the money that the recording industry has collected in the course of its legal campaign to date.

A vigorous defense from Kiwi Camara and Joe Sibley was not enough to sway the jury, which had only to find that a preponderance of the evidence pointed to Thomas-Rasset. The evidence clearly pointed to her machine, even correctly identifying the MAC address of both her cable modem and her computer's Ethernet port. When combined with the facts about her hard drive replacement (and her failure to disclose those facts to the investigators), her "tereastarr" username, and the new theories that she offered yesterday for the first time in more than three years, jurors clearly remained unconvinced by her protestations of innocence.

Camara suspects that the jury thought Thomas-Rasset was a liar and were "angry about it," thus leading to the $80,000 per-song damages.

The case is a reminder that in civil trials, simply raising some doubt about liability is not enough; lawyers need to raise lots of doubt to win the case, and Camara and Sibley were unable to do so here.

The jury found Thomas-Rasset's conduct to be willful, which means that statutory damages under the Copyright Act can range from $750 per infringement up to $150,000. In his closing statement, defense lawyer Joe Sibley made clear that even the minimum award would run $18,000 (24 songs x $750 = $18,000), an amount that he said was unfair and crippling to Thomas-Rasset. The jury decided that the per-song penalty would be $80,000, for a total damage award of $1.92 million, over $1.7 million more than the award in her first trial."


Thomas testimony ends with tears, anger, Swedish death metal; Ars Technica, 6/17/09

Nate Anderson via Ars Technica; Thomas testimony ends with tears, anger, Swedish death metal:

"The Jammie Thomas-Rasset file-sharing retrial wrapped up today ahead of schedule after the defense called only a single witness—Jammie Thomas-Rasset—and the jury finally heard some alternative scenarios for the facts in the case.

The jury was also treated to an extraordinary display as Thomas-Rasset said that a distinguished computer science professor was brought in to give "false testimony" against her (there were gasps in the courtroom and an immediate objection from the record companies at this), then broke down crying, detailed the "complete nightmare" the case has made of her life, and claimed that the labels initially "tried to extort $5,000 from me."

Her testimony, which also featured such memorable phrases as "I never downloaded Morbid Angel's 'World of Shit'" and "I didn't even know there was a Swedish death metal genre," was certainly spellbinding. But did it sway the jury?"


Researchers conclude piracy not stifling content creation; Ars Technica, 6/18/09

John Timmer via Ars Technica; Researchers conclude piracy not stifling content creation:

"File-sharing, to the (very large) extent that it involves copyright infringement, has affected the music business. But, as a pair of academic researchers happily point out in a working paper they've posted online, copyright law was never meant to protect the music business in the first place—instead, it is intended to foster creative production in the arts, which happen to include music. As such, they argue it's worth analyzing the deeper question of whether file sharing is putting a damper on music creation. Their conclusion is that this is a much more complicated question, but the answer seems to be "probably not."

Some academic fields rely on the use of working papers—complete drafts of potential publications—to solicit feedback on the basic arguments and analyses used in the work-in-progress. These days, that simply involves posting it on the Internet for all to see; you can have a look at the document yourself. There are clearly a few places where the authors could polish up their arguments, but the paper makes a compelling case that the relationship between file-sharing and copyright law is a complex one.


File-Sharing and Copyright Working Paper; Felix Oberholzer-Gee & Koleman Strumpf, June 2009

Felix Oberholzer-Gee & Koleman Strumpf via Harvard Business School; File-Sharing and Copyright Working Paper:


Economists List File Sharing's Benefits; Information Week, 6/17/09

Thomas Claburn via Information Week; Economists List File Sharing's Benefits:

"In a newly published Harvard Business School paper, economists Felix Oberholzer-Gee and Koleman Strumpf argue that while file sharing has weakened copyright protection, weak copyright protection benefits society.

File sharing, the paper states, has not discouraged creative artists from producing new works...

The paper, however, acknowledges that content quality has not been considered. Its argument would be less compelling were it discovered that the increase in albums since 2000 consisted mainly of music cobbled together from Apple GarageBand loops.

Entertainment industry complaints about falling revenue, the paper suggests, don't tell the full story...

"While it is difficult to say how representative this sample is, there is no doubt that trade groups such as the Business Software Alliance vastly exaggerate the impact of file sharing on industry profitability when they treat every pirated copy as a lost sale," the paper states."


Music Labels Win $2 Million in Web Case; New York Times, 6/18/09

Bloomberg News via New York Times: Music Labels Win $2 Million in Web Case:

"The Universal Music Group, owned by Vivendi, and other record labels were awarded $1.92 million on Thursday in the retrial of a Minnesota woman accused of swapping music over the Kazaa Internet service.

The federal jury in Minneapolis said the woman, Jammie Thomas-Rasset, 32, of Brainerd, should pay $80,000 for each of the 24 songs that were posted on the site so others could download them.

The first time the case went to trial, in 2007, a jury awarded $9,250 a song, or $222,000."


Wednesday, June 17, 2009

J.D. Salinger's 'The Catcher in the Rye': Restraining order issued in copyright case; Entertainment Weekly, 6/17/09

Sean Smith via Entertainment Weekly; J.D. Salinger's 'The Catcher in the Rye': Restraining order issued in copyright case:

"According to Publishers Weekly, [Judge Deborah] Batts' ruling is the first time that the Second Circuit court has explicitly stated that a single character from a single work is protected by copyright."


Temporary Restraining Order Issued in Salinger Case; Publishers Weekly, 6/17/09

Andrew Albanese via Publishers Weekly; Temporary Restraining Order Issued in Salinger Case:

"In a precedent-setting ruling today, federal judge Deborah Batts ruled that J.D. Salinger’s most famous character, Holden Caulfield, is protected by copyright. She did not rule, however, on whether Swedish author Fredrik Colting’s use of Salinger’s iconic character in his book 60 Years Later: Coming Through the Rye was allowable under fair use, and issued a temporary restraining order blocking its publication...

Whatever Batts's ultimate ruling on the fair use aspect of the case, a final decision in the case will most likely come from the appellate court, since Batts's decision will be appealed by either losing side...

Salinger has a right, attorney Marcia Paul told the court, "to keep The Catcher in the Rye or Holden Caulfield frozen in time for the life of his copyright.""


Librarians Fighting Google's Book Deal; Time, 6/17/09

Janet Morrissey via Time; Librarians Fighting Google's Book Deal:

"Goliath Google facing off against a legion of librarians and, possibly, the U.S. Justice Department — now there's a fight...

In a complex settlement agreement, which took three years to hammer out and spans 135 pages excluding attachments, Google will be allowed to show up to 20% of the books' text online at no charge to Web surfers. But the part of the settlement that deals with so-called orphan books — which refers to out-of-print books whose authors and publishers are unknown — is what's ruffling the most feathers in the literary henhouse. The deal gives Google an exclusive license to publish and profit from these orphans, which means it won't face legal action if an author or owner comes forward later. This, critics contend, gives it a competitive edge over any rival that wants to set up a competing digital library. And without competition, opponents fear Google will start charging exorbitant fees to academic libraries and others who want full access to its digital library.

"It will make Google virtually invulnerable to competition," says Robert Darnton, head of the Harvard University library system.

Although competitors could scan orphans, they would not be protected from copyright suits as Google is under the agreement. "They'd face lawsuits all over the place," making the risk too big, said Darnton.

Without competition, pricing could go wild, critics claim. The registry, which oversees pricing, is comprised of authors and publishers who stand to benefit from high subscription fees. "There will be no incentive to keep prices moderate," Darnton says.

The library community recalls with horror the pricing fiasco that occurred when industry consolidation left academic journals in the hands of five publishing companies. The firms hiked subscription prices 227% over a 14-year period, between 1986 and 2002, forcing cash-strapped libraries to drop many subscriptions, according to Van Orsdel. "The chance of the price being driven up in a similar way (in the Google deal) is really very real," he says.


Bezos: We've got issues with Google Book Search; CNet News, 6/15/09

Caroline McCarthy via CNet News; Bezos: We've got issues with Google Book Search:

"Amazon CEO Jeff Bezos was coy about exactly why he isn't thrilled with Google's attempt to forge its way into the digital publishing business.

"We have strong opinions about that issue which I'm not going to share," Bezos said to interviewer Steven Levy at the Wired Business Conference. "But, clearly, that settlement in our opinion needs to be revisited and it is being revisited."

In a court battle rife with twists, turns, and delays, Google has been attempting to push forward its Book Search initiative, which could potentially give the Mountain View, Calif., tech giant exclusive access to digital editions of some out-of-print books. That could, as Levy pointed out, get in the way of Amazon's goal of offering every book ever printed in every language on the Kindle and its new, bigger Kindle DX sibling. And it sounds like that's where Amazon has some beef.

"There are many forces of work looking at that and saying it doesn't seem right that you should do something, kind of get a prize for violating a large series of copyrights," Bezos said."


Jammie Thomas takes the stand, admits to major misstep; Ars Technica, 6/16/09

Nate Anderson via Ars Technica; Jammie Thomas takes the stand, admits to major misstep:

"Did she do it? That's for the jury to decide. But the bigger question is whether the process itself—the threat of life-altering damage awards, the hundreds of thousands of dollars in legal fees, the time and exposure of a federal trial—is truly a proportional, equitable response to online copyright infringement?

Not even the judge who must preside over this case believes that the answer to that question is "yes." Writing an unusually pointed order granting Thomas-Rasset a new trial last year, Judge Michael Davis, Chief Justice of the Minnesota District Court, wrote these extraordinary words:

While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal downloading has far‐reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs—the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000—more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent...

The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer‐ to‐peer network cases such as the one currently before this Court. The Court begins its analysis by recognizing the unique nature of this case. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts... The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit...

Despite his opinion, Davis may well preside over another guilty verdict this week; if so, he won't be able to throw it out thanks to a "making available" jury instruction this time around—a fact that perhaps accounts for his perpetual grumpy frown during the trial."


Holden Caulfield, a Ripe 76, Heads to Court Again; New York Times, 6/17/09

A.G. Sulzberger via New York Times; Holden Caulfield, a Ripe 76, Heads to Court Again:

"The case is one of several in recent years exploring how much license the public has to draw on a classic work. In 2001 the estate of Margaret Mitchell, author of “Gone With the Wind,” sued unsuccessfully to prevent the release of “The Wind Done Gone,” which told the same story from the perspective of a slave. Last year J. K. Rowling, the author of the best-selling Harry Potter books, won a lawsuit over a guidebook to the series called The Harry Potter Lexicon.

This case is really interesting because it really is where copyright runs into First Amendment rights, and it shows the jagged line between them,” said Jennifer Jenkins, director of the Center for the Study of the Public Domain at Duke Law School, who also was part of the legal team that defended the publisher in “The Wind Done Gone” lawsuit.

In examining questions of fair use of copyrighted work, courts have looked at whether a new work transforms the original in a significant way, Ms. Jenkins said, citing a Supreme Court ruling that a legitimate work must add “something new, with a further purpose or different character, altering the first with new expression, meaning or message.”


Monday, June 15, 2009

Music cos. vow to show Minn. woman shared 24 songs; Associated Press, 6/15/09

Steve Karnowski via Associated Press; Music cos. vow to show Minn. woman shared 24 songs:

"This case remains the only one out of more than 30,000 similar lawsuits the industry has filed that has made it to trial. The vast majority of the other defendants settled for an average of about $3,500 rather than risk huge judgments and legal bills. [Jammie] Thomas-Rasset's first lawyer put in nearly $130,000 worth of time for which she couldn't pay. Her new lawyers, [Kiwi] Camara and Joe Sibley, of Houston, took the case for free.

Thomas-Rasset lost her first trial in 2007 when jurors awarded the companies $222,000. But U.S. District Judge Michael Davis later concluded he made a mistake in his jury instructions and ordered the retrial.

This time, Davis is expected to instruct the jurors the record companies need to prove that someone actually downloaded the music Thomas-Rasset allegedly made available over the Internet on the Kazaa file sharing service. Last time, he told the jury the plaintiffs didn't have to prove anyone downloaded the copyright-protected songs.

The companies suing are subsidiaries of all four major recording companies, Warner Music Group Corp., Vivendi SA's Universal Music Group, EMI Group PLC and Sony Corp.'s Sony Music Entertainment.

Thomas, a mother of four and employee of the Mille Lacs Band of Ojibwe tribal government, allegedly used Kazaa, a "peer-to-peer" file sharing service in which users make files on their own computers available for downloading by other users. Although the industry contends she made more than 1,700 songs available, for simplicity's sake it's trying to prove copyright violations on just a representative sample of only 24, including songs by Gloria Estefan, Sheryl Crow, Green Day and Journey."


Jury selected in Thomas retrial: shockingly law-abiding; Ars Technica, 6/15/09

Nate Anderson via Ars Technica; Jury selected in Thomas retrial: shockingly law-abiding:

"After tossing out four jurors (the ones who had the most experience with file-sharing friends), the court was left with a 12-person jury: five men and seven women, all white, ranging in age from college students to retirees...

[Judge Michael J. Davis] displayed a list of songs that Thomas-Rasset was alleged to have shared online, which was the morning's most unintentionally poignant moment. Thomas-Rasset had earlier been ordered to pay $222,000 for such aural splendors as "Pour Some Sugar on Me," "Now and Forever," "Hella Good," "Bills, Bills, Bills," and "Don't Stop Believin'"—which may have been the real crime in the first trial. (OK, "Don't Stop Believin'" may in fact have deserved the almost $10,000 in damages.)"


Obama Administration Reiterates Its Support Of Secretive, Industry Written ACTA; TechDirt, 6/15/09

Mike Masnick via TechDirt; Obama Administration Reiterates Its Support Of Secretive, Industry Written ACTA:

"We've been bothered by the incredibly secretive (except if you happen to be in the entertainment industry) ACTA Treaty negotiations for quite some time now. This is the industry-led effort to get a bunch of nations to agree to draconian and damaging new copyright laws by sneaking them through as a secretive "international treaty," such that countries are then compelled to change their copyright laws to "be in compliance with international agreements." It's a really sneaky trick that Hollywood has used for years. And then it acts all innocent when people accuse it of pushing draconian laws on consumers, claiming "it wasn't us... we needed to be in compliance with our international agreements." They just leave out the part where they're the ones who write those agreements for the various trade representatives. The early drafts of ACTA are no different. They were clearly written by industry lobbyists, and are now being pushed by various trade representatives, and then our elected officials will have "no choice" but to change copyright laws to be in compliance.

Perhaps the most troubling part of all of this is that the negotiations are happening in secret, and when consumers rights organizations ask to be given a seat at the table, they're denied. When those same consumer rights organizations ask to at least be told what's being negotiated, they're told it's forbidden because of "state secrets." However, for all that national security, the administration has absolutely no problem giving industry lobbyists access to the process. Funny how that works."


Thomas retrial begins Monday: what to expect; Ars Technica, 6/14/09

Nate Anderson via Ars Technica; Thomas retrial begins Monday: what to expect:

Monday morning, the federal file-sharing trial of Jammie Thomas-Rasset begins, and Ars will be there with gavel-to-gavel coverage. Here's what you need to know to keep up:

"Last time around, the case took three days to hear; this time, the lawyers estimate that it will take five. If the retrial is anything like the first go-round, we should get a verdict quickly, though whether a jury will award the RIAA nearly $10,000 in damages per song again remains to be seen.

Whatever the verdict, [defense attorney Kiwi] Camara has already announced his intent to take on the recording industry's entire legal campaign. Along with Harvard Law professor Charles Nesson, Camara tells Ars that he plans to file a class-action lawsuit against the recording industry later this summer."


Sunday, June 14, 2009

Senator Orrin Hatch... And The Lies The Copyright Industry Tells; TechDirt, 6/12/09

Mike Masnick via TechDirt; Senator Orrin Hatch... And The Lies The Copyright Industry Tells:

"Furthermore, and more importantly, if Senator Hatch believes that "commercially-viable products created out of one's own mental processes deserve the same protection under the law as any other tangible product or piece of real estate," then clearly the Senator believes in the right to resell such property once you bought it, at a reasonable price. So if I buy a copy of a song by Senator Hatch, clearly, by his own words, I should have the right to resell it to others or to make a copy of it -- just as I have the right to make a copy of a physical chair that I buy, or to resell the chair that I have bought.

Or did Senator Hatch not mean what he said? Did he really mean that only some property rights should be granted? That is, should we only grant property rights that favor big industries at the expense of both consumer and social welfare?

[Sen. Hatch]: Appallingly, many believe that if they find it on the Internet then it must be free. I have heard some estimates cite no less than 80 percent of all Internet traffic comprises copyright-infringing files on peer-to-peer networks.

Ah, a misleading demonization. Senator Hatch has "heard some estimates." Why not cite them so that they can be responded to accurately? Perhaps because Senator Hatch knows they do not hold up under scrutiny.

[Sen. Hatch]: That is why the Pirate Bay case is so important. While the decision does not solve the problem of piracy and unauthorized file sharing, it certainly is a legal victory and one that sends a strong message that such behavior will not be tolerated.

I'm sure the Senator is quite busy, so perhaps he missed the "strong message" that was actually sent: a biased judge sided against a search engine claiming it was responsible for the actions of its users. From that, thousands of people recognized that this was a patently ridiculous scenario, and signed up as members of a political party designed to protect consumer civil rights -- allowing them to win a surprise seat in the European Parliament. Quite a strong message. It seems to be the opposite of the one Senator Hatch thinks was given.

[Sen. Hatch]: I strongly believe that if we're going to be successful in this fast-paced digital age, a solid partnership between the copyright community and the Internet Service Providers is crucial. I am confident that such a partnership can break up the current viral spread of copyrighted works on the Net.

[Sen. Hatch]: Many countries have begun to take action by working closely with ISPs to curb online piracy. For example, France has adopted a three strikes law, which calls for ISPs to suspend a subscriber's service if they are accused three times of pirating copyrighted material. Across the globe, from Japan to the UK, from Australia to Brazil, there have been engaging discussions within the industry on how best to proceed on this front.

[Sen. Hatch]: In the United States, I am encouraged with the developments that have transpired between content owners and some ISPs. Obviously, we still have a ways to go, but we are seeing a promising level of participation within the industry. I believe a flexible and free-market solution is essential if we are to be successful in this endeavor. As more of these discussions turn into actions, it is vital that these principles remain front and center.

To be fair, Hatch's speech was given the day before France tossed out the three strikes law as unconstitutional -- but that should still be instructive. The EU Parliament has made clear that cutting users off from the internet connections, especially based solely on industry accusations of infringement, represents a serious breach of civil rights. That a US Senator would support such a "guilty without proof" setup is quite troubling, and raises serious questions about his understanding of our constitutional rights."


Rep. Wexler And The Lies Of The Copyright Industry; TechDirt, 6/12/09

Mike Masnick via TechDirt; Rep. Wexler And The Lies Of The Copyright Industry:

"Earlier this week, CISAC, a copyright collection society held its "World Copyright Summit," which was effectively a gathering of groups of collections societies and copyright holders who want to strengthen copyright at every turn, so that they can collect more cash -- without ever needing to actually give people a reason to buy. IP Watch has a good summary of the event, where you see it was basically a bunch of people trying to figure out how to have governments around the world force people to hand money over to them. As per usual, the only voice of reason appears to have been Gary Shapiro, who tried to tell the assembled folks that their strategy to date has been a disaster, and they need to understand the differences between "property" and "copyright." In response -- the audience groaned. It would appear his message did not get across.

That said, I wanted to respond to two of our elected officials who both spoke at the event and who said somethings that are quite questionable. Rep. Robert Wexler gave a troubling speech in which he claimed that those who look to protect consumer rights, and question the value of stronger copyright are "lying" and need to be dealt with. Senator Orrin Hatch -- who once suggested remotely destroying the computers of anyone suspected of copyright infringement -- gave another misguided and misinformed talk. Both deserve a response."


Copyright Holders Acknowledge Losing Battle For Public Consciousness At World Copyright Summit; IP Watch, 6/11/09

Liza Porteus Viana via IP Watch; Copyright Holders Acknowledge Losing Battle For Public Consciousness At World Copyright Summit:

""The enemies of copyright have really done a good job at creating the false premise that the interest of copyright holders and the interest of society as a whole are antagonistic, and they always talk about the need for balance,” said Fritz Attaway, executive vice president and senior policy adviser for the Motion Picture Association of America. “We have got to do a better job” at attempting approaches at copyright protection “in a way that we get paid but also that consumers can access our works,” he added.

He cited MPAA’s work with the technology industry in the introduction of the DVD. He also noted that via Hulu - a joint venture of NBC Universal and News Corp. that offers television shows for free, for now - almost all TV products can be legitimately available to consumers in the United States.

”We’ve got to do more of that. We live in an age where we cannot block access to our content,” he said. “People are going to get it one way or the other. We would like them to pay for it and we need to seek out ways where they can pay for it. But just saying ‘no’ isn’t the answer.”

Eduardo Bautista, president of the management board of Spanish collective management group, Sociedad General de Autores y Editores, agreed, saying, “We’ve done a lousy job. We should have been fired.”

That’s also the message one of those referenced “enemies” tried to relay. Gary Shapiro, president of the Consumer Electronics Association and president of the Home Recording Rights Coalition, said content creators cannot simply keep saying “no” - particularly with the next generation’s seemingly rebellious nature - because it will create more anti-copyright backlash.

"Recognise that kids today have been so turned off by the RIAA approach to litigation that they’re rejecting everything you say,” Shapiro said to National Association of Music Publishers President David Israelite.

Although Israelite made the comparison that if people were stealing computers from stores en masse, the technology industry would be up in arms, Shapiro argued that it is not the same, and that copyright and intellectual property rights are different than “real” property - a statement that received groans from the rights holder-friendly audience. “That’s hurting your case because you’re being rejected by anyone under 25 who is saying, ‘these guys are full of it,’” Shapiro continued.

One way to strengthen the creators’ case, particularly given the current state of the global economy, is to stress the economic value of their industry, particularly in developing countries, experts said. The World Intellectual Property Organization, for example, pointed out that the copyright industry is responsible for roughly 6 percent of a developing economy.

”When you bring those figures to the attention of the government of developing countries, they begin to see it differently,” said WIPO Deputy Director General Michael Keplinger. “There’s something in it for them … it’s not just something for America and the Europeans and the Japanese.”"


As US gov’t circles the wagons, Google’s brass stays cool; Christian Science Monitor, 6/11/09

Matthew Shaer via Christian Science Monitor; As US gov’t circles the wagons, Google’s brass stays cool:

"A day after Google acknowledged it was being investigated by the US Justice Department, two of the company’s lawyers said they saw no cause for concern.

“Most of these issues don’t deal with our core business,” said Dana Wagner, a competition lawyer for Google said yesterday, according to The Wall Street Journal. The newspaper also quoted Google’s chief legal officer David Drummond, who declined to comment on the specifics of the case.

“We hear people’s concerns and we want to address them,” Drummond said. He said he expected Google’s recent settlement on its Book Search project to be approved."


Saturday, June 13, 2009

Minn woman who lost music-share suit gets replay; YahooNews.com, 6/13/09

Steve Karnowski, AP Writer, via YahooNews.com; Minn woman who lost music-share suit gets replay:

"The Minnesota woman who became the nation's only music file-sharing defendant so far to go to trial is getting a replay two years after losing the case.

Jammie Thomas-Rasset, a 32-year-old mother of four and self-described "huge music fan," will be armed with aggressive new lawyers when her retrial begins in federal court here Monday.

The lawsuit is among the last vestiges of an anti-piracy campaign that the recording industry ultimately dropped amid widespread criticism. The Recording Industry Association of America said in December it had stopped filing lawsuits like these and would work instead with Internet service providers to cut access to those it deems illegal file-sharers. But the recording industry plans to proceed with cases that are already filed.

Thomas-Rasset is the rare defendant who has fought back.

Music companies have filed more than 30,000 similar copyright lawsuits in recent years against people they accused of illegally swapping songs through Internet file-sharing services such as Kazaa. None of the others has made it to trial yet.

Faced with huge legal bills, most settled for an average of about $3,500, even if they insisted they had done nothing wrong. Thomas-Rasset's new lawyer, K.A.D. Camara, notes the settlements add up to more than $100 million; the RIAA contends its legal costs exceeded the settlement money it brought in.

The lawsuits have turned into a public relations nightmare for the recording industry, putting music companies in the position of going after their most ardent fans...

Corryne McSherry, a staff attorney with the digital-rights group Electronic Frontier Foundation, said the new defense team is taking a creative approach. She said it would have been interesting to see how all the cases that settled might have turned out if those defendants had free lawyers who were willing to push as hard.

"This case could end up being the tail end of a frankly shameful and certainly failed campaign to go after users," McSherry said."


Simon & Schuster to Sell Digital Books on Scribd.com; New York Times, 6/12/09

Brad Stone via New York Times: Simon & Schuster to Sell Digital Books on Scribd.com:

"In another sign that book publishers are looking to embrace alternatives to Amazon.com’s Kindle e-book store, Simon & Schuster has agreed to sell digital copies of its books on Scribd.com, a popular document-sharing Web site.

Simon & Schuster, a division of CBS, plans to announce Friday that it will make digital editions of about 5,000 titles available for purchase on the site, including books from best-selling authors like Stephen King, Dan Brown and Mary Higgins Clark. It will also add thousands of other titles to Scribd’s search engine, allowing readers to sample 10 percent of the content of the books on the site and providing links to buy the print editions.

We are interested in getting our books in front of consumers in as many formats and distribution platforms as possible,” said Ellie Hirschhorn, chief digital officer of Simon & Schuster."...

The Scribd Web site is the most popular of several document-sharing sites that take a YouTube-like approach to text, letting people upload sample chapters of books, research reports, homework and recipes. About 60 million users a month read documents on the site, embed them in blogs and share links to texts over social networks and e-mail messages.

Scribd has been criticized by publishers in the past for allowing users to upload pirated copies of their works. In an effort to combat the practice, Scribd will use the digital files of Simon & Schuster’s books to find and remove unauthorized copies from its site."


Thursday, June 11, 2009

Probe of Google Book Deal Heats Up; Wall Street Journal, 6/10/09

Elizabeth Williamson, Jeffrey A. Trachtenberg, and Jessica E. Vascellero via Wall Street Journal; Probe of Google Book Deal Heats Up:

A New York publishing executive said the Justice Department is requesting documents about pricing, digital strategy and conversations with other publishers related to the Google settlement...

The Justice Department's escalation of its book search inquiry is the latest in a series of antitrust probes of Google's business launched by the department and the Federal Trade Commission, the government's two main antitrust regulators. Taken together, the inquiries represent a broad government examination of the dominant technology company of the decade.

People close to Google say the company considers the investigations part of a broader push by new antitrust regulators to step up scrutiny of the technology industry after a lull during the Bush administration.

In response, Google appears to be stepping up efforts to press its case with lawmakers and regulators. The company's chief legal officer, David Drummond, travels to Washington Wednesday to defend the book search deal in meetings with lawmakers and copyright advocates.

Google's effort to avoid anti-trust trouble could hinge on its willingness to strike concessions or scale back certain aspects of its plans to satisfy regulators' concerns. At the same time, Google is working to counter efforts by rivals -- including Microsoft Corp. -- to portray it as a threat to competition or consumer privacy."


Google Book Search Settlement: Foster Competition, Escrow the Scans; Electronic Frontier Foundation, 6/11/09

Peter Eckerlsely via Electronic Frontier Foundation; Google Book Search Settlement: Foster Competition, Escrow the Scans:

"One good compromise might be to require that anyone who takes a blanket license (whether under the Google Book Search settlement, or under any legislation that might expand the settlement to others) must deposit a copy of the raw scans that they create with the Library of Congress or with the entity that administers the blanket license (e.g., the Books Rights Registry). After a period of years, let's say 14, the term of the Founder's Copyright, those scans should be made available at no cost to any others who take the relevant copyright licenses...

This would not only encourage market entry and competition in the online digital books arena, but would also foster innovation in the field. There's nothing that encourages digital innovation quite like access to an enormous dataset. After all, before Larry Page and Sergey Brin founded Google, they were graduate students at Stanford. They were able to build a new search engine by downloading their own copy of the web, messing around with it, and figuring our a better algorithm for querying it. New start-ups working with digital books should have the same kind of opportunity."


Wednesday, June 10, 2009

U.S. Presses Antitrust Inquiry Into Google Book Settlement; New York Times, 6/10/09

Miguel Helft via New York Times; U.S. Presses Antitrust Inquiry Into Google Book Settlement:

"In a sign that the government has stepped up its antitrust investigation of a class-action settlement between Google and groups representing authors and publishers, the Justice Department has issued formal requests for information to several of the parties involved.

The Justice Department has sent the requests, called civil investigative demands, to various parties, including Google, the Association of American Publishers, the Authors Guild and individual publishers, said Michael J. Boni, a partner at Boni & Zack, who represented the Authors Guild in negotiations with Google.

“They are asking for a lot of information,” Mr. Boni said. “It signals that they are serious about the antitrust implications of the settlement.”


Saturday, June 6, 2009

Lemonheads' Dando sues GM over alleged song copy; Associated Press, 6/5/09

Via Associated Press; Lemonheads' Dando sues GM over alleged song copy:

"Lemonheads founder Evan Dando (DAN'-doh) is suing General Motors, saying the auto giant copied one of his songs for an ad.

Dando sued GM and advertising and licensing firms in federal court Thursday, claiming the automaker violated his copyright on The Lemonheads song "It's a Shame About Ray." The complaint alleges the song was re-recorded and included in a 2008 TV campaign for Chevrolets and Buicks."


Critics: Google Book Deal a Monopoly, Privacy Debacle; Wired.com, 6/2/09

Ryan Singel via Wired.com; Critics: Google Book Deal a Monopoly, Privacy Debacle:

"Google set out to digitize the world’s books in 2003, got sued for its trouble in 2005 by publishers and authors wanting to make money from the efforts, and in 2007 came to a proposed settlement that gives Google the rights to scan, index, display and even sell millions of books that are in copyright. So far its Google Book Search program has digitized around 10 million books from the some of the nation’s most prestigious university libraries, but only small portions of most in-copyright books are shown online currently.

(Learn more with Wired.com’s Google Book Search Settlement FAQ.)

Even the deal’s critics — such as New York University professor James Grimmelmann — admit that the deal sounds great: Books in copyright but out-of-print become available for viewing and purchase by the public, and researchers and students at universities will get access to the full technology.

But Grimmelmann, whose Google Book Search research has been funded by Microsoft, says that the Google deal gives it exclusive rights to books that are in copyright whose authors can’t be found — so-called orphan works — and that any competitor who wants to try the same project could get sued for huge sums of money.

That makes a monopoly, Grimmelmann told conference goers at the Computers, Freedom and Privacy conference in Washington, D.C. Tuesday."


Monday, June 1, 2009

Salinger sues over "Catcher in the Rye" sequel; Reuters, 6/1/09

Edith Honan via Reuters; Salinger sues over "Catcher in the Rye" sequel:

"J.D. Salinger on Monday sued the writer and publisher of a book billed as a sequel to his classic novel "The Catcher in the Rye," saying the work infringes on his copyright.

Salinger is asking a judge to block publication of "60 Years Later: Coming Through the Rye" written by an author identified as J.D. California.

According to online bookstore Amazon.com, the book will be published in September by Swedish publisher Nicotext.

"The sequel is not a parody and it does not comment upon or criticize the original. It is a rip-off pure and simple," said the lawsuit, filed in U.S. District Court in Manhattan...

Salinger holds a copyright to the 1951 novel, considered one of the great works of American literature, and its main character, Holden Caulfield.

The lawsuit describes Salinger as "fiercely protective of his intellectual property" and says he "would not approve of defendants' use of his intellectual property.""


Preparing to Sell E-Books, Google Takes on Amazon; New York Times, 6/1/09

Motoko Rich via New York Times; Preparing to Sell E-Books, Google Takes on Amazon:

"In discussions with publishers at the annual BookExpo convention in New York over the weekend, Google signaled its intent to introduce a program by [sic] that would enable publishers to sell digital versions of their newest books direct to consumers through Google. The move would pit Google against Amazon.com, which is seeking to control the e-book market with the versions it sells for its Kindle reading device.

Google’s move is likely to be welcomed by publishers who have expressed concerns about Amazon’s aggressive pricing strategy for e-books. Amazon offers Kindle editions of most new best sellers for $9.99, far less than the typical $26 at which publishers sell new hardcovers. In early discussions, Google has said it will allow publishers to set consumer prices."...

Google’s e-book retail program would be separate from the company’s settlement with authors and publishers over its book-scanning project, under which Google has scanned more than seven million volumes from several university libraries. A majority of those books are out of print.
The settlement, which is the focus of a Justice Department inquiry about the antitrust implications and is also subject to court review, provides for a way for Google to sell digital access to the scanned volumes.

And Google has already made its 1.5 million public-domain books available for reading on mobile phones as well as the Sony Reader, the Kindle’s largest competitor.

Under the new program, publishers give Google digital files of new and other in-print books. Already on Google, users can search up to about 20 percent of the content of those books and can follow links from Google to online retailers like Amazon.com and the Web site of Barnes & Noble to buy either paper or electronic versions of the books. But Google is now proposing to allow users to buy those digital editions direct from Google."