Saturday, July 31, 2010

Tata to sue Greenpeace over turtle game; (London) Guardian, 7/26/10

Adam Vaughan, (London) Guardian; Tata to sue Greenpeace over turtle game: Indian manufacturing giant is suing for use of its logo in a spoof computer game highlighting port's threat to local wildlife:

"The Indian manufacturing giant Tata is suing Greenpeace India over a computer game it has created to publicise the alleged impact on turtles from the company's development of a new port.

The Pac-Man-style game is defamatory and an abuse of copyright, Tata Sons, Tata companies' bulk shareholder, said on Friday at the New Delhi high court. The court has served notice to Greenpeace, which has until 12 August to respond in writing to the lawsuit.

Greenpeace India launched the game at the start of June, the latest step in its seven-year campaign against Dhamra port, which is due to open this summer at Bhadrak in Orissa, a state on India's eastern coast. The environmental group alleges that the development will endanger local turtles. Turtle Vs. Tata, which is still live online and has been played by nearly 25,000 people, places a turtle in the role of Pac-Man battling against Tata logos in the place of ghosts."

Judge rules Dark Ages Spawn, Domina and Tiffany are derivative characters;, 7/31/10

Kevin Melrose,; Judge rules Dark Ages Spawn, Domina and Tiffany are derivative characters:

"A federal judge has dealt another blow to Todd McFarlane in his long-running copyright dispute with Neil Gaiman, ruling that the characters Dark Ages Spawn, Domina and Tiffany are mere derivatives of their earlier creations.

In a decision filed Friday, U.S. District Judge Barbara Crabb declared that the three characters are simply variations of Medieval Spawn and Angela, co-created by Gaiman in 1993 for McFarlane's Spawn series. Therefore, McFarlane has until Sept. 1 to provide Gaiman with an accounting of money earned from Dark Ages Spawn, Domina and Tiffany. As co-owner of the copyrights, Gaiman is entitled to one-half of the profits."

Watch Out For the Omega Copyright Windup; Wall Street Journal, 7/30/10

Eric Felten, Wall Street Journal; Watch Out For the Omega Copyright Windup: A case about pricing timepieces could crimp library lending:

"Katharine Hepburn couldn't understand why Jimmy Stewart didn't devote himself to his art. Their characters in the 1939 movie, "The Philadelphia Story," are walking back from the local library, where Hepburn has acquired a copy of Stewart's collection of short stories: "When you can do a thing like that book, how can you possibly do anything else?" she asks (knowing that he has sunk to the rank of gossip reporter).

"You may not believe this, but there are people that must earn their living," he answers.

"Of course," she says, "but people buy books, don't they?"

"Not as long as there's a library around."

Stewart's hard-scrabble scribbler would be pleased to learn that a Supreme Court case scheduled to be argued in the coming term could put the kibosh on library lending, at least of those books published or printed outside the U.S. In a friend-of-the-court brief, the American Library Association and other library groups argue that a recent Ninth U.S. Circuit Court of Appeals decision "threatens the ability of libraries to continue to lend materials in their collections."

The librarians fear they are going to suffer collateral damage from a curious copyright case that has nothing to do with books. It's Costco Wholesale Corporation v. Omega, S.A.—a battle over whether the storied Swiss watch brand can control where and at what price its chronometers are sold in the U.S...

No doubt Omega was smart to turn to copyright law, given what an increasingly powerful tool it is. The number of years copyright lasts has been repeatedly lengthened, and juries have been known to hand down fines in the millions for illegally downloading a few dozen songs.

The strange and logically contradictory thing, though, is that copyright has been gaining in power at the very same time it has been rendered impotent. Some critics, such as Harvard law professor Lawrence Lessig, argue that copyright has become an oppressive behemoth; others, such as novelist Mark Helprin, lament that the old circle-c is being turned into a dead letter.

They are both right. In response to rampant violation of copyright, the entertainment industry, publishers and other such businesses have gotten Congress to beef up intellectual property protections. But "the worldwide copying machine called the Internet," as Suffolk University professor of law Stephen Michael McJohn puts it, continues to hum along, undeterred. The result, says Mr. McJohn, is a bizarre legal disconnect: "Almost everything is copyrightable, and almost everything is used without regard for copyright.""

Copy Fight; Reason, 7/27/10

Greg Beato, Reason; Copy Fight: A new front opens in the battle over online copyright infringement:

"Since 2003, Clayton Cramer, an author and historian who has written numerous books on the right to keep and bear arms and the evolution of America’s gun culture, has edited a website that is currently called The Armed Citizen. With the help of another contributor, David Burnett, Cramer uses the site as a repository for newspaper articles that document instances where firearms owners use their weapons in self-defense. Over the years, the pair had posted excerpts and complete text of approximately 4,700 articles, and in doing so, they created a unique and useful archive for researchers, activists, and people who simply enjoy feel-good tales of homeowners protecting themselves and their property from intruders and assailants by any means necessary.

In all that time, they say, they’d never received a single request from a copyright owner to remove an article. Last week, however, Cramer and Burnett were caught off-guard by a figure who aims to establish himself as the new sheriff in the lawless wilds of cyberspace. He was packing a .36 caliber copyright infringement lawsuit and he didn’t bother with a warning shot. Instead, Cramer and Burnett only learned they were being sued after a reporter from the Las Vegas Sun contacted them about the case.

The man who brought the suit against The Armed Citizen is named Steve Gibson. He’s the founder of a company called Righthaven. Righthaven’s business model involves acquiring the copyrights for specific articles originally published by the Las Vegas Review-Journal, then filing lawsuits against website owners who have posted those articles without permission. In March, it filed its first lawsuit against a New Jersey company called MoneyReign."

Tuesday, July 27, 2010

The Day of the Jackal; Economist, Prospero Blog, 7/27/10

Economist, Prospero Blog; The Day of the Jackal:

"ANDREW WYLIE is a famously shrewd literary agent, having acquired his nickname, “The Jackal”, as a result of his ability to negotiate unusually large advances from publishers for the authors he represents. Not surprisingly, this has helped him build up a roster of clients that includes many leading writers (he represents, among others, Salman Rushdie, Philip Roth, the estate of John Updike and several Economist writers, including the editor). So Mr Wylie’s announcement last week of a deal with Amazon to publish electronic versions of books by several of his authors has understandably been viewed by the traditional publishers that he will bypass as a declaration of war.

Mr Wylie is starting by publishing electronic versions of some classics, such as Mr Roth’s “Portnoy’s Complaint” and Updike’s “Rabbit” novels. Some publishers argue that they own the electronic rights to such classics, under contracts signed before anyone thought there would be electronic books—an ownership claim that authors and their agents vigorously dispute. Random House, one of the giants of book publishing, reacted to Mr Wylie’s move by announcing that it now regards the Wylie Agency as a competitor, and that “Random House on a worldwide basis will not be entering into any new English-language business agreements with the Wylie Agency until this situation is resolved.” Random House’s move was backed by HarperCollins UK, a book-publishing division of News Corp.

Not surprisingly, authors are rallying behind Mr Wylie. On July 26th the Authors Guild issued a statement arguing that “to a large extent, publishers have brought this on themselves.” In particular, in contracts for works produced since agents started discussing royalties for electronic books, publishers have at most been willing to offer authors 25% of net revenues on e-books, compared with the typical 50% split for printed books.

The Authors Guild predicts that low e-book royalties will not last, and publishers are simply playing for time, taking their extra margin while they can. But with Amazon revealing last week that it sold more e-books than hardbacks in its latest quarter, authors will care increasingly about their cut from e-books than from print—and their market power will surely prevail. Marjorie Scardino, the boss of Pearson, a firm which owns several book publishers, including Penguin (and is also part-owner of The Economist), said on July 26th that eventually “we will see a rise in royalty rates.”

Still, Mr Wylie’s move may also give authors some grounds for disquiet, as an agent publishing works by those authors he represents gives rise to obvious potential conflicts of interest. As the Authors Guild points out, “a major agency starting a publishing company is weird, no matter how you look at it. This sort of weirdness will only multiply, however, as long as authors don't share fairly in the rewards of electronic publishing. Publishers seeking to manage this transition well should cut authors in appropriately.”

Publishing houses tempted to keep dragging their feet should consider the possibility that they risk losing more than just having to give up a further 25% of net revenues: e-books are fast coming to represent a big share of writers' income (on July 27th Amazon said Stieg Larsson, author of the bestselling "Millennium Trilogy" had become the first writer to sell 1m copies on its Kindle e-reader), and if dealing directly with big e-book sellers like Amazon proves successful, many writers may start to ask themselves whether they still need to sign up with traditional publishers at all."

Monday, July 26, 2010

Apple loses big in DRM ruling: jailbreaks are "fair use";, 7/26/10

Nate Anderson,; Apple loses big in DRM ruling: jailbreaks are "fair use":

"Every three years, the Library of Congress has the thankless task of listening to people complain about the Digital Millennium Copyright Act. The DMCA forbade most attempts to bypass the digital locks on things like DVDs, music, and computer software, but it also gave the Library the ability to wave its magical copyright wand and make certain DRM cracks legal for three years at a time.

This time, the Library went (comparatively) nuts, allowing widespread bypassing of the CSS encryption on DVDs, declaring iPhone jailbreaking to be "fair use," and letting consumers crack their legally purchased e-books in order to have them read aloud by computers."\

iPhone 'Jailbreaking' Legal Under New Government Rules; Huffington Post, 7/26/10

Joelle Tessler, Huffington Post; iPhone 'Jailbreaking' Legal Under New Government Rules:

"Owners of the iPhone will be able to legally unlock their devices so they can run software applications that haven't been approved by Apple Inc., according to new government rules announced Monday.

The decision to allow the practice commonly known as "jailbreaking" is one of a handful of new exemptions from a 1998 federal law that prohibits people from bypassing technical measures that companies put on their products to prevent unauthorized use of copyright-protected material. The Library of Congress, which oversees the Copyright Office, reviews and authorizes exemptions every three years to ensure that the law does not prevent certain non-infringing uses of copyright-protected works.

For iPhone jailbreakers, the new rules effectively legitimize a practice that has been operating in a legal gray area by exempting it from liability. Apple claims that jailbreaking is an unauthorized modification of its software.

Mario Ciabarra, founder of Rock Your Phone, which calls itself an "independent iPhone application store," said the rules mark the first step toward opening the iPhone app market to competition and removing the "handcuffs" that Apple imposes on developers that want to reach users of the wildly popular device.

Unless users unlock their handsets, they can only download apps from Apple's iTunes store. Software developers must get such apps pre-approved by Apple, which sometimes demands changes or rejects programs for what developers say are vague reasons.

Ciabarra noted that Google Inc. has taken a different approach with its Android operating system, which is emerging as the biggest competitor to the iPhone. Google allows users of Android phones to download applications from outside the Android Market.

Although Apple has never prosecuted anyone for jailbreaking, it does use software upgrades to disable jailbroken phones, and the new government rules won't put a stop to that. That means owners of such phones might not be able to take advantage of software improvements, and they still run the risk of voiding their warranty.

Apple spokesman Natalie Kerris said Monday that the company is concerned about jailbreaking because the practice can make an iPhone unstable and unreliable.

"Apple's goal has always been to ensure that our customers have a great experience with their iPhone, and we know that jailbreaking can severely degrade the experience," she said.

In addition to jailbreaking, other exemptions announced Monday would:

_ allow owners of used cell phones to break access controls on their phones in order to switch wireless carriers.

_ allow people to break technical protections on video games to investigate or correct security flaws.

_ allow college professors, film students, documentary filmmakers and producers of noncommercial videos to break copy-protection measures on DVDs so they can embed clips for educational purposes, criticism or commentary.

_ allow computer owners to bypass the need for external security devices called dongles if the dongle no longer works and cannot be replaced.

_ allow blind people to break locks on electronic books so that they can use them with read-aloud software and similar aides.

Although the jailbreaking exemption is new, all the others are similar to the last set of exemptions, which were announced in November 2006. The new rules take effect Tuesday and are expected to last a few years.

The exceptions are a big victory for the Electronic Frontier Foundation, which had urged the Library of Congress to legalize several of them, including the two regarding cell phones.

Jennifer Stisa Granick, EFF's civil liberties director, said the rules are based on an important principle: Consumers should be allowed to use and modify the devices that they purchase the way they want. "If you bought it, you own it," she said."

Surprising New DMCA Exceptions: Jailbreaking Smartphones, Noncommercial Videos Somewhat Allowed;, 7/26/10

Mike Masnick,; Surprising New DMCA Exceptions: Jailbreaking Smartphones, Noncommercial Videos Somewhat Allowed:

"Well here's a surprise. The US Copyright Office finally used its obligated DMCA exemption rulemaking process to support exemptions that protect consumers. As you may recall, every few years the US Copyright Office is obligated, by law, to listen to requests for specific classes of work that should be exempted from the DMCA's anti-circumvention clause and then recommend that the Library of Congress adopt certain exemptions (if it so chooses). Usually the exemptions are extremely limited and do little to protect consumers. In fact, in the past, the EFF has argued it wasn't even worth requesting exemptions for consumer issues, saying the process was "simply too broken." This year, however, they did participate, and actually got some things through."...

Online Course Construction Gets a 'Do-It-Yourself' Web Site; Chronicle of Higher Education, 7/23/10

Sophia Li, Chronicle of Higher Education; Online Course Construction Gets a 'Do-It-Yourself' Web Site:

"A new player entered the field of open online education last week: Nixty, a Web site that allows any user to take and create courses for free.

The new learning platform started up with over 200 course offerings culled from open-source content already available online, such as courses from the Khan Academy and the Massachusetts Institute of Technology's OpenCourseWare Project. Nixty's users have begun developing about 120 new courses since its launch, said Glen Moriarty, the company's chief executive.

Nixty comes with all the trappings of most course-management systems: a grade book, testing, discussion boards. Mr. Moriarty used to head and is still in the leadership team at Scholar360, which develops course-management software. But right now, Nixty is meant to help make educational content free, open, and easy to access.

Other sites exist that put together the open-source educational materials available, said David Wiley, an associate professor of instructional psychology and technology at Brigham Young University. (Mr. Wiley, who founded Utah's Open High School, has been a guest blogger on Wired Campus.) Nixty is unique, though, in also offering ways for students and instructors to connect with one another, he said.

Students can ask other users questions, and instructors can collaborate to improve their teaching materials, Mr. Moriarty said.

But Nixty's current features are only the beginning of what its creators have planned, according to Mr. Moriarty.

In the next month, the five-person team behind Nixty plans to roll out a payment system for courses, Mr. Moriarty said. Instructors will be able to charge students who want to enroll in their courses, but Nixty will charge instructors $4.99 a month for three such courses and a commission of 20 percent of the money instructors take in.

Mr. Moriarty hopes to establish partnerships with several online institutions, including Excelsior College and Western Governors University, and he thinks Nixty will be a way for institutions to offer continuing-education courses online, he said. He also envisions Nixty helping students to earn course credit through the College-Level Examination Program.

So far, public activity on the site is minimal. According to Mr. Moriarty, none of the 120-odd courses users are developing on Nixty have gone public yet. In Nixty's nascent stages, it's hard to say if it will live up to its founders' dreams—but that's not to say their hopes aren't lofty.

"Google is the default search engine," Mr. Moriarty said. "We want Nixty to be the default educational engine.""

Sunday, July 25, 2010

Wylie's Amazon deal brings the end of the publishing world nigh; (London) Guardian, 7/23/10

Richard Lea, (London) Guardian; Wylie's Amazon deal brings the end of the publishing world nigh: News that power-broking agent Andrew Wylie has bypassed conventional publishers to sell his clients' ebooks direct to Amazon has created panic. Is it curtains for conventional publishing?:

"Publishers came face to face with their own vision of apocalypse yesterday, as Andrew Wylie announced that he and his authors would be cutting publishing houses out of the future and teaming up with Amazon to sell their own electronic editions.

Grinning down from the saddle beside him in the first wave of horsemen is a fearsome collection of riders, including Philip Roth, Salman Rushdie, Martin Amis and John Updike. "As the market for ebooks grows, it will be important for readers to have access in ebook format to the best contemporary literature the world has to offer," the agent popularly known as "the Jackal" said, cackling diabolically (I imagine). "This publishing programme is designed to address that need, and to help ebook readers build a digital library of classic contemporary literature."

Odyssey Editions may be launching with just 20 titles, but publishers are hitting back as if their eternal souls depended on it, and you can see why. Slice off the biggest names, the most valuable backlist items from any publisher's list and the business model is up in flames.

This may be nothing but an Armageddon-style negotiating ploy, as Wylie delivers on a warning he gave publishers late last year when Random House claimed existing contracts already gave them control over authors' electronic rights. But if Wylie and his lawyers can make this a success – and you only need to glance at his client list to imagine how – then others are sure to follow. Random House, which publishes Roth, Rushdie and Amis in the UK, has written to Amazon already "disputing their rights to legally sell these titles". It declared Wylie a "direct competitor" and ruled out "entering into any new English-language business agreements with the Wylie Agency until this situation is resolved".

It's the latest battle in a multi-dimensional war over the future of literature as authors, agents and publishers face a horde of technology companies, retailers and libraries, not to mention the pirates, with constantly shifting alliances. As electronic reading devices – the Kindles, the Readers, the iPads, your phone – finally begin to take off, all the old certainties are in flux. Do authors need publishers to take on the might of the retailers, or are publishers part of the problem? Should writers keep their copyrights safely under lock and key, or will that rob them of the chance to take wing?

Once upon a time publishers were the only ones who could find authors, edit manuscripts, print books and distribute them, but new technology from desktop computers to the internet has thrown the doors wide open. As marketing departments have gained the ascendancy over editorial, agents have moved centre stage, filtering submissions and polishing manuscripts. With the messy business of ink and trees and Transit vans receding, Wylie's latest move is simply the logical next step. None of this will worry those publishers who have made a business out of finding the voices others haven't spotted, but in the week when Amazon claimed that ebook sales passed those of hardbacks the questions are unavoidable: who needs big publishers? Are the interests of writers and readers best served by big publishers, or the Jackal?"

Celebrated authors bypass publishing houses to sell ebooks via Amazon; (London) Guardian, 7/22/10

Alison Flood, (London) Guardian; Celebrated authors bypass publishing houses to sell ebooks via Amazon: Discontent over digital royalties prompts Roth, Amis and other leading names to enter into exclusive deal with Odyssey Editions:

"An eye-wateringly stellar list of authors, from Philip Roth to Orhan Pamuk, Martin Amis and John Updike, is bypassing publishers to sell digital editions of books directly to readers, via Amazon.

The brainchild of uber-agent Andrew "The Jackal" Wylie, Odyssey Editions launches today. It offers 20 modern literary classics as ebooks for the first time, exclusively via's Kindle store. The books, all priced at Amazon's usual ebook rate of $9.99, range from Amis's London Fields, Rushdie's Midnight's Children, Roth's Portnoy's Complaint and VS Naipaul's The Enigma of Arrival to titles from the estates of dead authors such as John Updike, William S Burroughs, Saul Bellow and Hunter S Thompson.

The authors all share Wylie as their agent, and the move makes good on his threat last month that, dissatisfied with the terms publishers have been offering for ebooks, he would remove them from the equation.

"We will take our 700 clients, see what rights are not allocated to publishers, and establish a company on their behalf to license those ebook rights directly to someone like Google,, or Apple. It would be another business, set up on parallel tracks to the frontlist book business," he told Harvard Magazine in June.

The exclusive deal with Amazon, which will last for two years, effectively removes other booksellers from the equation as well: modern classics including Vladimir Nabokov's Lolita and Hunter S Thompson's Fear and Loathing in Las Vegas will only be sold through the internet retailer.

"As the market for ebooks grows, it will be important for readers to have access in ebook format to the best contemporary literature the world has to offer," said Wylie, who worked with the UK company Enhanced Editions on the digital project. "This publishing programme is designed to address that need, and to help ebook readers build a digital library of classic contemporary literature."

The move is likely to concern publishers. In December, Random House wrote to agents informing them of its belief that it holds exclusive rights to digital editions of the "vast majority" of its backlist titles, even those acquired before electronic rights were specifically included in contracts. That letter enraged authors, and the Authors Guild issued a statement saying that "publishers acquire only the rights that they bargain for; authors retain rights they have not expressly granted to publishers. E-book rights, under older book contracts, were retained by the authors."

The guild also pointed to a 2001 court ruling, which dismissed Random House's claim that its copyright had been breached when ebook publisher Rosetta Books acquired digital rights in eight novels by the American writers Kurt Vonnegut and William Styron.

But Random House – which publishes physical editions of some of the Odyssey titles – looks set to challenge the new venture. Spokesman Stuart Applebaum said in a statement that the publisher was "disappointed by Mr Wylie's actions".

He continued: "Last night, we sent a letter to Amazon disputing their rights to legally sell these titles, which are subject to active Random House publishing agreements. Upon assessing our business options, we will be taking appropriate action."

Eleven of the Odyssey titles will be available globally, according to The tension between publishers and authors over ebook rights has also been growing in the UK: earlier this month historian and novelist Tom Holland, chair of the Society of Authors, said that the deals authors were being asked to sign up to for ebooks were "not remotely fair".

The current standard royalty for ebooks in the UK is 25%, but authors believe it should be 50%, as digital editions have lower warehousing and distribution costs.

American literary agent Robert Gottlieb, chairman of the Trident Media Group, said agents were also pushing for better royalty rates in the US. "As of this time, publishers are doing their hardest to hold to the 25%. My view is this is a moving target and, as time goes by and the market place becomes more competitive, publishers will have to negotiate ebook royalties on a case-by-case basis," he said.

Although Gottlieb wished Andrew well in his new venture, he felt that an agent becoming, in effect, a publisher contained "the potential for a conflict of interest with authors and/or estates", and is not contemplating a similar move himself.

Wylie's initiative is not the first time authors have looked to bypass publishers. In December, bestselling business author Stephen Covey announced that he had sold exclusive digital rights in two of his bestselling titles to Amazon, cutting out his traditional publisher Simon & Schuster.

The deal was made via Rosetta Books, which also struck a similar deal in the US for a collection of titles by Ian McEwan. And with offering authors a royalty of 70% for ebooks sold via its Kindle store, the trend only looks set to continue.

Full list of titles published by Odyssey Editions and available on the Kindle:

London Fields by Martin Amis
The Adventures of Augie March by Saul Bellow
Ficciones (Spanish edition) by Jorge Luis Borges
Junky by William Burroughs
The Stories of John Cheever by John Cheever
Invisible Man by Ralph Ellison
Love Medicine by Louise Erdrich
The Naked and the Dead by Norman Mailer
Lolita by Vladimir Nabokov
The Enigma of Arrival by VS Naipaul
The White Castle by Orhan Pamuk
Portnoy's Complaint by Philip Roth
Midnight's Children by Salman Rushdie
The Man Who Mistook His Wife for a Hat by Oliver Sacks
Fear and Loathing in Las Vegas by Hunter S Thompson
Rabbit Run by John Updike
Rabbit Redux by John Updike
Rabbit is Rich by John Updike
Rabbit at Rest by John Updike
Brideshead Revisited by Evelyn Waugh"

Comic-Con Program; Comics and Digital Piracy, 7/25/10

Comic-Con Program; Comics and Digital Piracy:

"Just about every comic book is now available online within hours of its release in stores -- whether or not its publisher is selling it in digital form.'s Douglas Wolk moderates a discussion of what's happening in the online-comics Wild West with David Steinberger (comiXology), Erik Larsen (Savage Dragon), Deb Aoki (Guide to Manga) and manga editor Jake Forbes."

Comic-Con Program; Comic Book Law School 303: Oh, And Another Thing, 7/24/10

Comic-Con Program; Comic Book Law School 303: Oh, And Another Thing:

"Noted attorney Michael Lovitz, author of the sold-out The Trademark and Copyright Book comic book, returns to deal with the more advanced (and often complicated) issues facing the creative community, particularly in light of the ever-expanding worlds of new media. Creators aren't the only ones facing potential problems and issues -- publishers, distributors, retailers, and even the ultimate consumers can find themselves facing legal issues they never expected. Infringements, misuse, tarnishment, dilution, knockoffs, lawsuits, satires, parodies, fair use, blogs, podcasts, tweets, and cybersquatters are just some of the many potential problems that may arise once creative works and products become accessible to others. This session explores how copyright and trademark rights are enforced, how one's legal muscles may be flexed, and what to do when finding yourself in a legal minefield. Plus, time permitting, discussion about recent legal decisions and pending cases that are likely to affect the field of popular culture and how they might play an important role in your creative and business plans. Note: The Comic Book Law School seminars are designed to provide relevant information and practice tips to practicing attorneys, as well as practical tips to creators and other professionals who may wish to attend. [This program is approved for 1.5 credits of California MCLE.]"

Comic-Con Program; Comic Book Law School: Hot Topics, 7/23/10

Comic-Con Program; Comic Book Law School: Hot Topics:

"Another year, another round of (legal) Hot Topics as a panel of knowledgeable (and entertaining) attorneys discuss and debate today's most interesting and cutting-edge legal issues faced by the creative and business communities. Attorneys David Branfman, David Lizerbram and Alexander Harwin, along with moderator Michael Lovitz, share their knowledge and insights, and discuss how these real-world issues affect individual creators and companies alike. Topics will include the benefits and perils of Facebook, Twitter, YouTube, and other forms of digital content distribution, and termination of copyright grants, including updates on the Kirby and Superman termination cases. Note: The Comic Book Law School seminars are designed to provide relevant information and practice tips to practicing attorneys, as well as practical tips to creators and other professionals who may wish to attend. [This program is approved for 1.0 credits of California MCLE.]"

Comic-Con Program: Comic Book Law School 202: Greed Is Good...Or Is It?, 7/23/10

Comic-Con Program; Comic Book Law School 202: Greed Is Good...Or Is It?:

"Noted attorney Michael Lovitz, author of the acclaimed The Trademark and Copyright Book comic book, is back ready to tackle a number of the more advanced issues facing authors, artists, and designers, particularly once they've "broken through" and started publishing and selling (and maybe merchandising too). This second Comic Book Law School session addresses some of the complicated issues surrounding marketing properties and creative ideas, including transfers and licensing of rights; production, merchandising, and distribution agreements; and the key things you should know when Hollywood comes knocking. This interactive seminar gives attendees the opportunity to participate in the discussions as Lovitz (with an assist by entertainment attorney Mona Metwalli) covers various means for profiting from creative works and explores the many important elements that form the foundation of every contract (and time permitting, maybe participate in a mock contract negotiation). With in-depth discussions about the options and opportunities for profit, as well as the problems and pitfalls that go hand in hand with each decision, you can't afford to miss this seminar. Note: The Comic Book Law School seminars are designed to provide relevant information and practice tips to practicing attorneys, as well as practical tips to creators and other professionals who may wish to attend. [This program is approved for 1.5 credits of California MCLE.]"

Comic-Con Program: Recapturing Copyright for Gold and Silver Age Comic Book Creators, 7/22/10

Comic-Con Program; Recapturing Copyright for Gold and Silver Age Comic Book Creators:

"Copyright lawyer Marc Greenberg (Golden Gate University School of Law) covers key developments in the Superman case (Siegel v. DC) and explores the claims filed by the Jack Kirby estate to the rights to the major Marvel Comics characters he created or co-created."

Comic-Con Program: Comic Book Law School 101: Start Your (Creative) Engines!, 7/22/10

Comic-Con Program; Comic Book Law School 101: Start Your (Creative) Engines!:

"Any racer will tell you that the key to winning is preparation. The same is true for creative enterprises -- rushing a new property out the door without the proper IP protections in place could be costly. Luckily, help is close by, as the Comic Book Law School series returns to Comic-Con, brought to you by noted attorney Michael Lovitz, author of The Trademark and Copyright Book comic book. This interactive lecture series provides a basic foundation for understanding copyright and trademark law. Up first, the basics of protection and ownership of ideas, works of authorship, characters, and names from conception through publication and beyond. Attendees will participate in an interactive discussion about basic rights provided under U.S. copyright and trademark laws, as well as new decisions and changes in the law and how they could affect those rights. Along the way, there will be plenty to learn about the protections, and pitfalls, of the U.S. trademark and copyright systems. Note: The Comic Book Law School seminars are designed to provide relevant information and practice tips to practicing attorneys, as well as practical tips to creators and other professionals who may wish to attend. [This program is approved for 1.5 credits of California MCLE.]"

Superheros [sic] Tangle in Copyright Battles; New York Times, 7/23/10

Michael Cieply, New York Times; Superheros [sic] Tangle in Copyright Battles:

"Lawyers on a Friday afternoon panel at Comic-Con were supposed to be talking about the legal challenges of social media and the battles over copyright, notably a case that involves the Walt Disney Company’s Marvel Entertainment and the heirs to the comic book artist Jack Kirby (Spider-Man among many others).

But David P. Branfman, a lawyer on the stage, first had a word of warning for anybody whose Web site carries stock photos that might belong to someone else: “Make 100 percent sure you’ve got a written license” to use the pictures, said Mr. Branfman.

Companies that own stock photos, he said, have been cracking down on sites that use their wares, demanding, in his experience, an average of $15,000 for each photo lifted from them.

That was certainly an attention-getter for the Web-friendly Comic-Con crowd. Many in the room had just raised their hands, to acknowledge having photos on sites of their own.

Moving on to the main event, Mr. Branfman and his fellow panelists said they were amazed at their ferocity on display in the disputes between Marvel and the Kirby heirs, and between Warner’s DC Comics unit and the heirs to a pair of Superman creators, Jerry Siegel and Joe Shuster, .

“You don’t see that too often,” Mr. Branfman said of a recent move by Warner to file suit personally against Marc Toberoff, the lawyer who has represented heirs in both the DC and the Marvel cases.

Michael Lovitz, a lawyer who moderated the panel, suggested that attempts by the Kirby and Siegel heirs to regain ownership of copyrights would open the floodgates to similar moves by a host of comic book creators. “This is something we’re going to see more and more of, these terminations,” he said.

To judge by the crush of attendees who afterward grabbed for a written rundown on copyright termination from Mr. Branfman — he called it “The Legal Undead” — Mr. Lovitz would appear to be right."

Saturday, July 24, 2010

Crown Copyright Strikes Again: Documents Revealed Under Freedom Of Information Act Can Infringe On Copyright?;, 7/23/10

Mike Masnick,; Crown Copyright Strikes Again: Documents Revealed Under Freedom Of Information Act Can Infringe On Copyright?:

"Frankly, the concept of "Crown Copyright" has never made much sense at all. We've discussed it here a few times in the past, but it's the concept that some countries have for government documents being covered by copyright. Thankfully, this is one area where the US actually leads the way: it has no such thing. Documents produced by the federal government in the US are automatically considered public domain (state government documents aren't always public domain, but that's another discussion for another time). But in many other countries that's not true, and those documents are covered by "crown copyright." This makes little sense no matter how you think about it. If the purpose of copyright is to give incentives to create the content, it seems obvious that a government should not need copyright.

Instead, it seems to show how some now view copyright: as a tool to restrict information, rather than as an incentive to create information."

German court overturns injunction against RapidShare;, 7/23/10

Jacqui Cheng,; German court overturns injunction against RapidShare:

"File sharing service RapidShare doesn't have to employ a word filter to combat the sharing of copyrighted files, the Higher Regional Court of Düsseldorf has now confirmed. The court reversed a preliminary injunction against RapidShare it issued last year, handing the company another legal victory.

Movie distributor Capelight Pictures had won a preliminary injunction against RapidShare for hosting a number of its films, including Insomnia and The Fall, as well as Inside a Skinhead. The court initially ruled that RapidShare had not done enough to prevent the sharing of Capelight's films because it didn't use a word filter, but RapidShare managed to eke out an appeal victory in April by arguing that common English terms, such as "insomnia" and "fall" would cause too many wrong hits with a filter.

A similar argument worked for the most recent decision as well. When it came to Inside a Skinhead, RapidShare said that a filter would hinder people from saving private copies of the file as allowed by German law. The court also said that RapidShare did not have the obligation to stop the dissemination of download links, and reversed its previous injunction.

RapidShare lawyer Daniel Raimer described the ruling as another step in the right direction. "The previously common practice of copyright holders to sue RapidShare on the off-chance there might be something to be gained from it, misunderstanding the realities it is operating within and showing contempt for its business model, will no longer bear fruit. The newest court rulings in Germany and the USA indicate this very clearly."

Indeed, courts in both Germany and the US have recently been issuing favorable rulings for RapidShare. The Düsseldorf appeals court overturned another decision in May, saying that the service can't be held responsible for the actions of third parties and pointing out that various filtering schemes are impractical. In the same month, a US District Court in California denied adult entertainment company Perfect 10's request for an injunction against RapidShare, saying that there wasn't sufficient proof that RapidShare itself had infringed on Perfect 10's copyrights.

The latest rulings are a long way from the days when RapidShare was being told to proactively remove infringing content and found itself facing a possible shutdown. As RapidShare CEO Christian Schmid pointed out, copyright holders may want to reconsider whether it's worth their time to go after file sharing companies (and file sharers)—especially when they seem to be spending so much more on legal fees than what they're getting back in claim settlements."

Only 0.3% of files on BitTorrent confirmed to be legal;, 7/23/10

Jacqui Cheng,; Only 0.3% of files on BitTorrent confirmed to be legal:

"The large majority of content found on BitTorrent is illegal, a new study out of the University of Ballarat in Australia has confirmed. Researchers from the university's Internet Commerce Security Laboratory scraped torrents from 23 trackers and looked up the content to determine whether the file was confirmed to be copyrighted. They found that 89 percent of the files they sampled were confirmed to be illegally shared, and most of the remaining ambiguous 11 percent was likely to be infringing.

The total sample consisted of 1,000 torrent files—a random selection from the most active seeded files on the trackers they used. Each file was manually checked to see whether it was being legally distributed. Only three cases—0.3 percent of the files—were determined to be definitely not infringing, while 890 files were confirmed to be illegal.

Additionally, 16 files were of ambiguous origin and 91 files were pornographic, which were unclear due to their oft-mislabeled nature. "[M]any files were tagged as amateur (suggesting no copyright infringement) but further inspection revealed that they were in fact infringing," wrote the researchers.

Basically, the 89 percent is a baseline number when it came to infringing files, and the three most shared categories were movies, music, and TV shows—among those categories, there were zero legal files being shared. Assuming all 16 files of ambiguous legality were in fact legal, the researchers said that there was an overall figure of 97.9 percent infringing content being distributed on BitTorrent.

This report echoes similar results out of Princeton that were published earlier this year. Though the top categories were slightly different—Princeton found that movies and TV were the most popular, while music fell behind games/software, pornography, and unclassifiable files—that study found that all of the movie, TV, and music content being shared was indeed infringing. Overall, Princeton said that 99 percent of the content on BitTorrent was illegal.

The University of Ballarat said that just four percent of torrents were responsible for 80 percent of the seed population. And, according to the list of the top 10 most seeded files, they were all Hollywood films (save for Lady Gaga's album, The Fame Monster, at number 7)—it's clear that Linux distros weren't exactly dominating the charts here. Copyright holders have one consolation, however: P2P users seem to buy more content than the average person, so there's still some chance of earning those users' money after all."

Friday, July 23, 2010

Yeeeehaw! Naked Cowboy, Cowgirl in Federal Court Standoff; Wall Street Journal, 7/22/10

Clifford Marks, Wall Street Journal; Yeeeehaw! Naked Cowboy, Cowgirl in Federal Court Standoff:

"Our favorite naked, litigious cowboy is back at it.

When last we checked in, Robert Burck, better known as the Naked Cowboy, had filed suit against the Mars candy company for broadcasting an ad of an M&M dressed in revealing cowboy apparel. (The suit settled for undisclosed terms at the end of 2008.)

Now, the Times Square street performer famous for his skimpy, Western outfit (just cowboy boots, a hat, and a pair of briefs) is suing someone a little closer to his line of work: the Naked Cowgirl. Her shtick is similar to that of Burck’s — strolling the streets of Times Square with her guitar, clad in an outfit that, well, leaves little to the imagination.

An attorney for Burck told the New York Daily News that the Naked Cowgirl (real name Sandra Brodsky) is creating confusion and destroying Burck’s brand. And not only that. The suit, filed Wednesday in Manhattan federal court, alleges that Brodsky is tarnishing the Naked Cowboy’s wholesome image:

“She has been observed using visual profanity (flipping the bird at the camera) when photographing with people in Times Square,” the lawsuit states. “This is inconsistent with the manner in which the Naked Cowboy conducts business.” Click here, also, for the NY Post article.

Oh, my. The New York Daily News couldn’t reach Brodsky for comment."

Bratz Dolls Breathe Again After Stunning Ninth Circuit Reversal; Wall Street Journal, 7/22/10

Ashby Jones, Wall Street Journal; Bratz Dolls Breathe Again After Stunning Ninth Circuit Reversal:


It’s been a while since we heard anything on the Mattel/MGA front. But the Ninth Circuit on Thursday handed down a stunning ruling, essentially reversing much of the December 2008 ruling that gave Mattel the rights to much of MGA’s Bratz products. Click here for the AP story; here for the Bloomberg story; here for the opinion, written by Judge Alex Kozinski and joined by Judges Stephen Trott and Kim Wardlaw.

The ruling may force a retrial.

In 2008, Mattel won a lawsuit claiming MGA had infringed its copyright and breached a contract because the designer of Bratz dolls was still under contract to Mattel when he developed the Bratz concept for MGA.

In April 2009, a federal judge upheld the $100 million jury verdict that gave Mattel ownership of the Bratz brand.

But the appeals court suspended that order in December and reversed it Thursday.

“It is not equitable to transfer this billion-dollar brand, the value of which is overwhelmingly the result of MGA’s legitimate efforts, because it may have started with two misappropriated names,” the appellate panel said in its ruling today.

The appellate court said it was likely that a significant portion of the jury verdict and damages award would need to be vacated and that the entire case will probably be retried.

“This is a breathtaking opinion by a unanimous panel of the Ninth Circuit. The panel endorsed all of the arguments that MGA has been advancing throughout this protracted litigation,” said Thomas Nolan, a lawyer at Skadden. Nolan led the trial team on behalf of MGA. Orrick’s Josh Rosenkrantz argued the appeal for MGA.

John Quinn and other lawyers from Quinn Emanuel handled the trial for Mattel. Daniel Collins of Munger Tolles argued the appeal.

Spokespersons for each company were not immediately reached for comment by Bloomberg."

Bratz dolls maker wins appeal against Mattel; Los Angeles Times, 7/22/10

Carol Williams and Andrea Chang, Los Angeles Times; Bratz dolls maker wins appeal against Mattel: MGA Entertainment violated Mattel's copyrights to some degree but is entitled to 'sweat equity' because it developed the dolls into a successful brand, court says:

"Toy giant Mattel Inc. can't claim a monopoly over dolls with a bratty attitude, and the rival company that developed the Bratz line deserves its fair share of the dolls' success, a federal appeals court ruled Thursday.

The decision reversed the copyright victory scored two years ago in the battle over who owns the billion-dollar Bratz — Mattel, which employed the inventor while he did early development of the pouty plastic figures, or MGA Entertainment Inc., which later hired him and went on to produce the brand.

Mattel, whose Barbie dolls ruled the world's toy chests and play houses for half a century, had been awarded $100 million in damages ($10 million of it for copyright infringement) and ownership of the trademark rights to all Bratz dolls after a 2008 jury trial. The lower court had found that the inventor, Carter Bryant, had violated his contract with Mattel by taking the idea with him when he left the company.

MGA, based in Van Nuys, was ordered by a federal judge to transfer all products, proceeds and other assets to a trust created for Mattel. MGA appealed, leading to Thursday's decision by a three-judge panel of the U.S. 9th Circuit Court of Appeals.

While an employee of El Segundo-based Mattel, Barbie designer Bryant developed the Bratz dolls, worked up sketches and made at least one mockup of four flirty girls with hot clothes and heavy makeup. Bryant had called his line Bratz and named one of the first four dolls Jade — names that eventually made it to market on MGA products.

Although MGA violated Mattel's copyrights to some degree, MGA developed the dolls into a phenomenal success and is entitled to its "sweat equity," the appeals panel said.

"Mattel can't claim a monopoly over fashion dolls with a bratty look or attitude, or dolls sporting trendy clothing — these were all unprotectable ideas," the panel headed by 9th Circuit Chief Judge Alex Kozinski ruled.

The judges also sent the case back to federal district court to determine a more fair disposition of the Bratz property, saying "it was not equitable to transfer this billion-dollar brand — the value of which was overwhelmingly the result of MGA's legitimate efforts — because it might have started with two misappropriated names."

Each dollmaker said it expected to ultimately prevail in the ownership battle."

Thursday, July 22, 2010

Copright [sic] issue forces South Africa to ponder life after Bafana Bafana; (London) Guardian, 7/22/10

(London) Guardian; Copright [sic] issue forces South Africa to ponder life after Bafana Bafana:

"The South African national side might not be known as Bafana Bafana for much longer, with the country's football association apparently ready to give up the nickname and adopt a new one because of an ongoing copyright dispute.

A South African businessman acquired the rights to the phrase in 1994. While the South African Football Association has been allowed to use it on official literature, it is unable to print it on merchandise or make financial gain from it. In 1997 the SAFA started a legal battle to reclaim the name, but South Africa's Supreme Court of Appeal dismissed their case in 2002. The copyright owners are believed to have made a profit of £6.5m from it during the World Cup.

"I want to avoid saying we are very angry about it," the SAFA president, Kirsten Nematandani, said. "We are worried about it. We are concerned." Nematandani said the future of the nickname was being discussed "at a national level", and that despite Bafana Bafana being "a national asset" it might have to be changed.

"It clearly has to be done the right way, but we cannot go on in this way. It is not proper, it is not correct," he said. "The name of Bafana Bafana came from the public and we are throwing the ball back to the public."

Bafana Bafana means "the boys, the boys" in Zulu. It is thought to have been used in the early 1990s by journalists in Soweto to refer to the national team after it was readmitted into international football after apartheid. It was quickly picked up and is now the affectionate name by which South Africa football fans refer to their team.

The issue has reached South Africa's parliament in Cape Town. On Tuesday, the chairman of the influential parliamentary committee on sport said Bafana should be dropped if the copyright issue was not resolved."

Scanlation giant One Manga is shutting down;, 7/22/10

Kevin Melrose,; Scanlation giant One Manga is shutting down:

"One Manga, the largest scanlation aggregator and one of the world's most-visited websites, has announced it is essentially closing down next week following pressure from publishers. Although the forums will remain open, all manga scans will be removed from the site.

"It pains me to announce that this is the last week of manga reading on One Manga (!!)," One Manga administrator "Zabi" writes in a message on the site's main page. "Manga publishers have recently changed their stance on manga scanlations and made it clear that they no longer approve of it. We have decided to abide by their wishes, and remove all manga content (regardless of licensing status) from the site. The removal of content will happen gradually (so you can at least finish some of the outstanding reading you have), but we expect all content to be gone by early next week (RIP OM July '10)."

According to Google, One Manga is the 935th most-visited website in the world, with 4.2 million unique visitors each month.

In early June a coalition of Japanese and U.S. manga publishers announced it would take legal action against 30 sites that illegally post translated scans of their titles if the administrators didn't "immediately cease their activities." Within days, MangaHelpers began shutting down (while launching a platform for creators) and MangaFox started pulling licensed titles from its list. However, the closing of One Manga gives the coalition its biggest victory, by far, to date.

In the wake of the One Manga announcement, administrators set up a Facebook page, which already has almost 53,000 "Likes.""

Tuesday, July 20, 2010

Alleged New ACTA Draft Text Leaked; Intellectual Property Watch, 7/14/10

Intellectual Property Watch; Alleged New ACTA Draft Text Leaked:

"The latest text of the Anti-Counterfeiting Trade Agreement (ACTA) reflecting the late June – early July negotiations in Lucerne, Switzerland has allegedly been leaked, just after being placed in a secret reading room for the European Parliament (IPW, IP Burble, 14 July 2010). Nongovernmental group La Quadrature du Net announced today (Bastille Day) that it has released the latest text, available here.

European Union negotiators had lamented to Intellectual Property Watch after Lucerne (IPW, Bilateral/Regional Negotiations, 2 July 2010) that the latest text was kept secret despite an earlier version having been released in April, this time supposedly withheld by one of the 11 negotiating delegations on the grounds that there were few significant changes. This draft appears to show the latest changes and the delegations associated with them.

Related Articles:

Leaked ACTA Text Shows Possible Contradictions With National Laws
Official ACTA Text Released
ACTA Internet Document Leaked, New EU Transparency Call"

Next wave of Far Cry torrent lawsuits incoming;, 7/19/10

Matthew Lasar,; Next wave of Far Cry torrent lawsuits incoming:

"Looks like that small battalion of attorneys who've agreed to represent accused file sharers of Hurt Locker, Far Cry, other movies had better gird their loins. The Hollywood Reporter says that the law office spearheading these lawsuits has recruited over a dozen smaller firms around the United States to get the actions underway. They'll answer to the US Copyright Group as they go after defendants who decline to settle.

"Beginning the first week of August, expect an explosion of lawsuits around the nation," The Reporter warns."

File sharers targeted with legal action over music downloads; (London) Guardian, 7/17/10

Miles Brignall, (London) Guardian; File sharers targeted with legal action over music downloads: Lawyers for Ministry of Sound and other music labels are seeking compensation, threatening court action unless file sharers pay:

"Solicitors for dance music label Ministry of Sound have sent letters to thousands of internet users it believes have illegally downloaded music and says it is determined to take them to court – and extract substantial damages – unless they immediately pay compensation, typically around £350.

Ministry of Sound's move marks an intensification of the legal battle against file sharers, which is seeing more and more lawyers send out what critics call speculative invoicing of downloaders suspected of pirating anything from music tracks to films and games.

Soho firm Gallant Macmillan last week completed a mailout to 2,000 individuals it claims infringed Ministry of Sound's copyright after downloading and sharing music. It follows in the steps of ACS:Law, which has sent many thousands of letters demanding compensation from alleged file sharers, sometimes billing in excess of £1,000. Luke Bellamy, above, contacted Money this week after receiving a £295 demand from ACS:Law, which alleged he downloaded and shared a track from dance music group Cascada.

Some recipients of the letters, concerned about forking out huge damages, have paid up. Others have been mystified – they claim never to have downloaded the tracks. Meanwhile, some legal specialists say the threats are largely unenforceable. Unless a user confesses to illegally downloading a file, or a court order is obtained to seize a computer and the file is then located on its hard drive, consumer groups say, it's hard to see how such an action will succeed.

Even the body that represents the UK recorded music industry, the BPI, which is keen to stamp out illegal filesharing, says it does not condone the mass-mailing of alleged internet pirates. "Our view is that legal action is best reserved for the most persistent or serious offenders, rather than widely used as a first response," it says.

Most recipients of the letters have binned them and, to date, avoided any further action. But Gallant Macmillan says it is taking a different approach to the other legal firms that pioneered this business, and that its sole client, Ministry of Sound, is serious when it threatens legal action. Until now, none of these cases have ended up in UK courts. A Ministry of Sound spokesman says that actions have been won in German courts, and it is confident that it can do the same in the UK.

Bellamy, 23, a lifeguard from Dudley, West Midlands, lives with his parents, but pays for the O2 broadband connection into the family home. The letter sent to him by ACS:Law claims his internet account was used to download Evacuate the Dancefloor by Cascada, from the filesharing website uTorrent.

The letter, which runs to nine pages, goes on to claim that this was in breach of ACS's clients' copyright, and offers to settle its potential claim if Bellamy pays nearly £300 in compensation.
"Getting a letter like this is extremely worrying. I have never downloaded anything from this website and yet I am being chased for this money. My parents have been worried by this, and frankly I've got better things to do with my time than deal with this."

And he is by no means alone. The internet is awash with similar complaints from anxious web users - many of whom who did download the files where they have been accused of infringing copyright, but also from plenty who insist they didn't. The letters demand anywhere between £300 and £1,200. The law firms sending the letters obtain the names and addresses of the downloaders from internet service providers (ISPs). To get access, they usually seek a high court order, and ISPs have no choice but to hand over the details.

In November 2008, Money first reported that solicitors were sending out threatening letters to net users. We featured a Hertfordshire couple sent a demand to pay £503 for "copyright infringement" or face a high court action. The 20-page "pre-settlement letter" from legal firm Davenport Lyons demanded money on behalf of German pornographers, who claimed the pair had illegally downloaded a porn film. The couple said they had no idea how to even download a film, even if they had the inclination, which they didn't.

Michael Coyle, solicitor advocate and MD of the Southampton-based law firm Lawdit, who has represented hundreds of people who have received these letters, says none of his cases have gone to court."

E-Books Top Hardcovers at Amazon; New York Times, 7/20/10

Claire Cain Miller, New York Times; E-Books Top Hardcovers at Amazon:

"Monday was a day for the history books — if those will even exist in the future., one of the nation’s largest booksellers, announced Monday that for the last three months, sales of books for its e-reader, the Kindle, outnumbered sales of hardcover books.
In that time, Amazon said, it sold 143 Kindle books for every 100 hardcover books, including hardcovers for which there is no Kindle edition.

The pace of change is quickening, too, Amazon said. In the last four weeks sales rose to 180 digital books for every 100 hardcover copies. Amazon has 630,000 Kindle books, a small fraction of the millions of books sold on the site.

Book lovers mourning the demise of hardcover books with their heft and their musty smell need a reality check, said Mike Shatzkin, founder and chief executive of the Idea Logical Company, which advises book publishers on digital change. “This was a day that was going to come, a day that had to come,” he said. He predicts that within a decade, fewer than 25 percent of all books sold will be print versions.

The shift at Amazon is “astonishing when you consider that we’ve been selling hardcover books for 15 years, and Kindle books for 33 months,” the chief executive, Jeffrey P. Bezos, said in a statement.

Still, the hardcover book is far from extinct. Industrywide sales are up 22 percent this year, according to the American Publishers Association.

The figures do not include free Kindle books, of which there are 1.8 million originally published before 1923 (they are in the public domain because their copyright has expired). Amazon does not specify how paperback sales compare with e-book sales, but paperback sales are thought to still outnumber e-books.

The big surprise, Mr. Shatzkin said, was that the day came during the first period that the Kindle faced a serious competitive threat. The Apple iPad, which started sales in April, is marketed as a leisure device for reading, and it has its own e-book store. Yet sales of the Kindle also grew each month during the quarter, Amazon said.

Amazon is being helped by an explosion in e-book sales across the board. According to the Association of American Publishers, e-book sales have quadrupled this year through May.
Amazon said its sales exceeded that growth rate. One reason Kindle book sales have held their own is that owners of iPads and other mobile reading devices buy Kindle books, which they can read on computers, iPhones, iPads, BlackBerrys and Android phones. But, except for the free uncopyrighted books, Kindle owners must buy or download content via Amazon. “Every time they sell a Kindle, they lock up a customer,” Mr. Shatzkin said.

Some industry analysts say that many people do not consider the iPad to be a reading device the way the Kindle is, and see a need to own both. Amazon’s latest sales figures are “clearly an indication that the iPad is complementary to the Kindle, not a replacement,” said Youssef H. Squali, managing director at Jefferies & Company in charge of Internet and new media research.
The growth rate of Kindle sales tripled after Amazon lowered the price of the device in late June to $189 from $259, Amazon said. That was moments after Barnes & Noble dropped the price of its Nook e-reader to $199 from $259.

During roughly the same period, Apple sold three million iPads, it said.

Analysts said Amazon’s announcement could assuage investors’ concerns that the iPad threatens Kindle sales. Amazon’s stock price is down about 16 percent in the last three months, in part because of those fears.

“The sentiment’s turned a little more negative on the stock because of iPad issues and concern that Amazon would lose market share in the book segment,” said Aaron Kessler, director of Internet and digital media equity research at ThinkEquity."

Monday, July 19, 2010

[Podcast] Newspaper of the Future; NPR's On the Media, 7/16/10

[Podcast] NPR's On the Media; Newspaper of the Future:

"News existed before newsprint. Will it exist after? Of course, according to Yochai Benkler. What we confront, he argues, is a set of practical questions: what do we need in our news? What do we care about? The author of The Wealth of Networks describes our shift from the newspaper we get to the newspaper we seek."

[Podcast] Is Hyperlocal the Future of News?; NPR's On the Media, 7/16/10

[Podcast] NPR's On the Media; Is Hyperlocal the Future of News?:

"One school of thought says that news organizations are best equipped to cover small neighborhoods, so if you really want to attract readers go local. Last year, the New York Times began its own trial with so-called hyperlocal reporting, starting cautiously in just a handful of neighborhoods in the metro area. Deputy Metro editor Mary Ann Giordano talks about the experiment."

[Podcast] Google's Quest to Save Newspapers; NPR's On the Media, 7/16/10

[Podcast] NPR's On the Media; Google's Quest to Save Newspapers:

"The Atlantic’s James Fallows wrote recently: “Everyone knows that Google is killing the news business. Few people know how hard Google is trying to bring it back to life.” Over the past year, Fallows spent lots of time with Google employees all working on one thing: saving the newspaper business. He explains how they plan to do it."

[Podcast] Should Newspapers Charge for Content Online?; NPR's On the Media, 7/16/10

[Podcast] NPR's On the Media; Should Newspapers Charge for Content Online?:

"Should newspapers put up paywalls? Pro-paywallers, like Rupert Murdoch, say absolutely! Newspapers must charge for costly reporting in order to survive! Anti-paywallers argue that papers can't afford to shut out the open and free web. Alan Murray of the (paywall-ed) Wall Street Journal and Alan Rusbridger, editor of the (free) Guardian, discuss."

A copyright ruling no one can like;, 7/13/10

Greg Sandoval,; A copyright ruling no one can like:

"Legal experts sympathetic to copyright owners as well as those known for supporting technology companies are criticizing a federal judge's decision to lower a jury award in a high-profile lawsuit about file sharing.

A year ago, a jury found college student Joel Tenenbaum liable for willful copyright infringement for sharing 30 songs, and later set a damages award of $675,000. On Friday, U.S. District Judge Nancy Gertner dramatically reduced the award to $67,500.

Gertner wrote in her decision that the original amount was too high and "unconstitutional." With regard to statutory damages in a copyright case, her decision is believed by some legal experts to be unprecedented. Not only are copyright owners attacking Gertner's reasoning, but so are some well-known lawyers from the pro-technology side.

Eric Goldman, a law professor at Santa Clara University who is often critical of entertainment companies in copyright litigation, predicted much of Gertner's ruling is vulnerable to appeal, which the RIAA will likely do, a high placed music industry source told CNET on Tuesday.

"This ruling is critically important," Goldman wrote on his blog on Monday. "It has the potential to [affect statutory damages for every copyright case that involves them]." Goldman said that despite feeling sympathy with the judge's aversion to the size of the award, brought on by what he called a "bad brew of an aggressive copyright lobby and pliable politicians," her arguments "did not completely convince me."

Statutory damages are a dollar range determined by Congress that sets limits on what juries can assess for copyright infringement. For willful infringement, a jury can assess damages as high as $150,000 per incident. Gertner's ruling is more proof that the damage amounts lawmakers have enabled the music industry to claim for copyright infringement are too high are the courts--as well as much of the public--to stomach. In major file-sharing cases, the Recording Industry Association of America, the trade group representing the four largest record companies, is 0-for-2 in seeing jury awards held up by the courts.

Last year, Jammie Thomas-Rasset, the accused music-pirating Minnesota woman, saw U.S. District Judge Michael Davis slash the jury-awarded damages from $1.9 million to $54,000.

"The damages range within the law are an important signal about the potential penalties for illegal conduct," the RIAA said in a statement. "A jury decides, after hearing all the facts, what is the appropriate penalty. If a judge can disregard those facts and simply impose his or her own personal views, that undermines an important deterrent message established by Congress."
Judge's authorityIn her ruling, Gertner gave consideration to the fact that there's no proof Tenenbaum shared music for commercial gain. But by reducing the award, Gertner overruled the jury as well as Congress.

"I don't think the law gives the judge the authority to lower the jury's award," said Ben Sheffner, an entertainment attorney and frequent blogger on copyright issues. "I don't think she should have altered it. I don't mean to say that I'm entirely comfortable with the amount as a matter of policy...but her decision seriously undermines the authority of Congress to set the range of statutory damages."

Not everybody sees it that way. Corynne McSherry, a staff attorney at the Electronic Frontier Foundation, an advocate group for tech and Internet users, on applauded Gertner decision.
"Gertner found there is quite a bit of evidence that Congress did not intend statutory provisions to be applied this way," McSherry said. "She concluded that the [original] damages award went far beyond what Congress intended or contemplated."

Gertner's decision will trigger all kinds of other problems, Goldman predicted.

"I expect more litigation battles over statutory damages," Goldman said. "Almost every copyright infringement defendant can advance a non-frivolous argument that statutory damages in their case would be unconstitutional. As a result, statutory damages cases will take more time and money."

Hurting 'Hurt Locker' For the music industry, this may not mean much. The top labels gave up on filing copyright complaints against individual file sharers in December 2008. Gertner's decision, however, could come into play for Voltage Pictures, producers of the Oscar-winning film "The Hurt Locker."

D.C.-area law firm Dunlap, Grubb, & Weaver has begun filing lawsuits against individual file sharers on behalf of independent production companies. Voltage is among about a dozen filmmakers that have signed up with Dunlap, which is reportedly intending to sue a total of 50,000 people for allegedly illegally sharing movie files.

In letters, Dunlap notifies the accused that they can settle the case quickly by paying $1,500 but that if they refuse, the company could eventually ask for $150,000 if they can prove the person is liable for willful infringement. That kind of claim coming after award reductions in both the Thomas-Rasset and Tenenbaum cases could ring hollow.

Gertner's decision will also make settling copyright much harder, Goldman said.

"Defendants will have increased confidence in their low case valuations (given the possibility that statutory damages will be Constitutionally capped at $2,250/work)," Goldman wrote, adding that "most copyright owners will not accept this discount. As a result, due to the doctrinal uncertainty, the litigants will have an even harder time reaching a compromise."

Friday, July 16, 2010

Panel: Copyright Needed In Music, But Should Benefit Musicians; Intellectual Property Watch, 7/12/10

Kaitlin Mara, Intellectual Property Watch; Panel: Copyright Needed In Music, But Should Benefit Musicians:

"Copyright is critical to the survival of the music industry and its creators, but lack of respect for copyright is not why artists are struggling to make ends meet, argued a recent panel of media lawyers and music industry experts. The blame for that lies squarely on the corporate-focus of the music industry, and how it has bent copyright law to serve companies rather than composers, said a panel at the University of Westminster.

File-sharing too is an issue, but innovative thinking may be required to find new ways to manage music sharing practices which have become outdated, panellists said.

The “biggest flaw in music is not copyright, it’s business practice,” said attorney and lecturer Ben Challis. Business practices that shift rights from the author or song writer to companies are the reason that artists do not get paid, he added. A fair regime would protect artists as well as the corporate side, he added.

Copyright has “shown itself for what it truly is,” said Kienda Hoji, an entertainment lawyer and senior lecturer at the University of Westminster. It is a system that benefits those who want to make money, not the creators who deserve to, he said.

They were speaking at an event called Talking Copyright: Reflecting On A 300 Year History & The Music Industry, held at the University of Westminster in London on 15 June. The event was organised by British Black Music, an online resource, and the Black Music Congress, a “forum for discussing issues around black music, networking, and a pathway to music industry education.”

It was intended to explore whether copyright laws are robust enough for the internet age, and if copyright awareness campaigns had lost the hearts and minds of young music consumers.

Many examples of copyright leaving the artist behind were cited by the event chair, Kwaku, founder of the Black Music Congress and one of the directors of British Black Music.

Composer Solomon Linda, a South African Zulu, composed a song called “Mbube” after the Zulu word for “lion.” The song later became famous as “The Lion Sleeps Tonight,” which was eventually licensed to Disney for its film the Lion King, but Linda died poor, having not seen a fraction of the money generated by his work, said Kwaku.

A settlement in 2006 finally acknowledged – more than 45 years after Linda’s death – the South African origin of the song, and guaranteed his heirs, until that time living in poverty, an income, according to the World Intellectual Property Organization magazine.

And Samuel Coleridge-Taylor, an English composer, had sold his wildly popular song Hiawatha to Novello for 15 guineas (British pounds) in the late 1800s and received no further royalties on it. Novello is still collecting on it, said Kwaku.

Two model laws should be more common if artists are to fully benefit from copyright laws, said David Stopps, the copyright & related rights director at the International Music Managers Forum.

These are: a German law in which the transfer of copyright can only be done by licence, which means that the rights rest fundamentally with artists; and a United States law that limits the transfer of copyright – after 35 years the creator has the right to get the copyright back. This could help prevent cases where music is still under copyright yet not available to the public: a worst-case scenario for the artist, who then cannot make money but cannot do anything with the music either, said Stopps.

The US law went into effect in 1978, meaning 2013 is the first opportunity for it to be used, said Stopps. Record companies are opposed, he added, so he predicted there will be legal cases.
And some aspects of copyright are outdated, said Challis, adding that his students were horrified that sampling from existing songs is illegal, as they see song creation from sampling as creating a new thing.

In a changing digital environment, however, new business models are needed as much as new artist savvy.

Pauline Henry, a singer and former member of Scottish band the Chimes asked why it was still possible for people to download music for free. The trick is to have music available online but without piracy, she said.

If more than half of the population is involved in file sharing – and if this constitutes over 90 percent of the digital market – said Challis, then this constitutes market failure and there must be better ways to manage it, perhaps through an “access to music charge” akin to the British television charge.

Stopps said that many artists now make more from rights to their image than to their music: singer Beyoncé, for example, owed more than half of her income to branding associated with her name.

But selling music is not necessarily a lost cause. “You can compete with free,” said Stopps, pointing to the success of bottled water. But part of it is understanding how people behave.

“Record companies shoot themselves in the foot with production times” that see songs released on radio but unavailable for purchase until eight weeks later, for example, said Stopps. The “public won’t wait,” and if music is only available on Pirate Bay then this just drives piracy, he said.

A member of the audience suggested getting in touch with young music fans, who are often willing to pay artists directly.

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Librarians Go Gaga: 9 Of The Funniest Library Videos Ever;, 7/16/10

Caroline Eisenmann,; Librarians Go Gaga: 9 Of The Funniest Library Videos Ever:

"We all love our local library. Big shelves full of books and good air conditioning make them a summer go-to location.

Yet recently libraries have been in danger. In the face of government budget deficits, many have begun to see libraries as a cut-able expense.

Clearly, these critics don't see what we see. They must be missing something. Maybe just... a little Lady Gaga?

For your viewing pleasure, we have brought together the funniest library videos on the net. Dewey Decimal raps, line dances and impromptu musical numbers, these videos give just a few more reasons to head to the library.

Let us know which videos you love, and which are worse than overdue fines."