Friday, March 26, 2010

About the Office of the U.S. Intellectual Propery Enforcement Coordinator (IPEC); Office of Management and Budget [No Date Provided]

[No Date Provided] Office of Management and Budget; About the Office of the U.S. Intellectual Propery Enforcement Coordinator (IPEC):

"Hi, I am Victoria Espinel, the U.S. Intellectual Property Enforcement Coordinator. I am honored to have been appointed by President Barack Obama and confirmed by the U.S. Senate to serve in this new position created by Congress in the Prioritizing Resources and Organization for Intellectual Property Act of 2008. Given the unique nature of this job, I’d like to describe what I’m doing in my office and how we want to engage the public to get input on what we, as a government, should be doing.

While talking about our global competitive advantage at a recent town hall meeting in Ohio, the President said, "One of the problems that we have had is insufficient protection for intellectual property rights"–and it is important that our ideas are protected. In December 2009, the Vice President, joined by Cabinet members and other senior government officials, held a roundtable discussion to emphasize the Administration’s commitment to enforcing laws against intellectual property theft.

Intellectual property are the ideas behind inventions, the artistry that goes into books and music, and the logos of companies whose brands we have come to trust. My job is to help protect the ideas and creativity of the American public. One of the reasons that I care about this is because I believe it is enormously important that the United States remain a global leader in these forms of innovation – and part of how we do that is by appropriately protecting our intellectual property. Our intellectual property represents the hard work, creativity, resourcefulness, investment and ingenuity of the American public. Infringement of intellectual property can hurt our economy and can undermine U.S. jobs. Infringement also reduces our markets overseas and hurts our ability to export our products. Counterfeit products can pose a significant threat to the health and safety of us all. Imagine learning that the toothpaste you and your family have used for years contains a dangerous chemical. U.S. Customs officials have seized several shipments of counterfeit toothpaste containing a dangerous amount of diethylene glycol, a chemical used in brake fluid, and that in sufficient doses is believed to cause kidney failure. All of these are reasons why your government has renewed its efforts to challenge this illegal activity.

My job is to help coordinate the work of the federal agencies that are involved with stopping this illegal behavior. We are going to work together to develop a strategy to reduce those risks to the public, the costs to our economy and to help protect the ingenuity and creativity of Americans. We want to be able to reduce the number of infringing goods in the United States and abroad. The examples are almost endless: counterfeit car parts, illegal software, pirated video games, knockoff consumer goods, dangerous counterfeit medicines, and many other types of products – including very sophisticated technology. Our goal is to better use taxpayer dollars and other government resources to be more effective in reducing any threat to our economy and our safety."

FSF Advocates Free Software for U.S. IPEC Joint Strategic Plan; Free Software Foundation, 3/25/10

Brett Smith, Free Software Foundation; FSF Advocates Free Software for U.S. IPEC Joint Strategic Plan:

"The Free Software Foundation (FSF) has responded to the United States executive Intellectual Property Enforcement Coordinator (IPEC) Joint Strategic Plan.

The FSF argues that the government should use free software to provide more freedom and transparency to its constituents and reduce the need to engage in costly copyright enforcement activities on behalf of proprietary software companies. The FSF states that "the most egregious harms to the public interest in the areas of copyright and patents come not from a lack of enforcement, but from extraordinarily excessive enforcement."

"For a government that's supposed to be accountable to its citizens, it's clear that using free software should be a natural choice," said Brett Smith, license compliance engineer at the FSF. "With free software, government can be sure their computers work on behalf of the people, instead of some proprietary software company. And it also offers an opportunity for unparalleled transparency: agencies can release the source code of software they use to help illustrate what they're doing."

The creation of IPEC and the Joint Strategic Plan are mandated by the "PRO-IP Act," which became law in 2008. The Joint Strategic Plan is intended to provide broad policy recommendations to increase enforcement of copyright, patent, trademark, and anti-counterfeiting laws both at home and abroad.

"Everything about the PRO-IP Act, from the confused way it lumps together various laws under the banner of 'intellectual property' in its name, to its corrupted purpose of being another government giveaway to the big incumbent copyright industries, is flawed" said Peter Brown, executive director of the FSF. "It's unfair for taxpayers to foot the bill for supporting the unethical business models of a handful of companies. Our comment shows there's another way: with relatively small steps, government can do the right thing and use free software, make a better investment in our society, and eliminate much of the need for enforcement of these laws."

The full text of the FSF's comment is available at"

CEA Calls For Fair Use Balance In IPEC Plan; Twice, 3/25/10

Greg Tarr, Twice; CEA Calls For Fair Use Balance In IPEC Plan:

"The Consumer Electronics Association (CEA) and the Home Recording Rights Coalition (HRRC) filed comments with the U.S. Intellectual Property Enforcement Coordinator (IPEC) Thursday in response to the Coordinator's request for public input into its draft strategic plan.

The statement urged the IPEC to ensure a balance between intellectual property rights and fair use.

In order to promote a balanced approach, CEA and HRRC urged that fair use and other public interest exceptions be included in international agreements that impact fair-use rights.

"These concerns are particularly poignant...when considering secondary liability for infringement," CEA and HRRC stated, noting that over the past 30 years the introduction of virtually every technology capable of consumer recording has been met with an actual or threatened secondary liability lawsuit.

The comments also point to the recent incident in which an Italian court imposed criminal liability on Google employees based on consumer uploaded content as exemplifying the need for third-party liability limitations in international IP agreements."

Wednesday, March 24, 2010

Colleges Automate Process of Responding to Copyright-Violation Notifications; Chronicle of Higher Education, Wired Campus, 3/23/10

Jeff Young, Chronicle of Higher Education, Wired Campus; Colleges Automate Process of Responding to Copyright-Violation Notifications:

"Some colleges get hundreds of e-mail messages a month from music, movie, and book publishers notifying them that a student or professor is illegally sharing copyrighted material over the campus network. Colleges are required to look into each alleged violation, and some are setting up automated systems to make the process cheaper and easier.

Doing so is trickier than it sounds, since many colleges assign users a new Internet address each time they log in, rather than give each network computer a fixed identity. That means colleges have to do some detective work to see which user was at the computer at the day and time of an alleged copyright infringement.

Colleges hoping to automate the process have built their own systems, and many say it's been easy. But today Audible Magic Corporation announced a product that it says is the first commercial system that can do the job. The system is called CopySense DMCA Service, referring to the Digital Millenium Copyright Act, which governs what network administrators must do to police copyright violations on their networks.

"At least two [colleges] have committed to testing the system and expressed a high degree of interest," said Vance Ikezoye, founder and CEO of Audible Magic, in an interview on Tuesday.

Some music, movie, and book publishers have already automated their end of the notification process, setting up systems that scan the Internet looking for anyone trading their works and zapping out messages to network administrators. That makes it easy for the companies to send out thousands of notices each month. As a result, more colleges are likely to enlist software robots, whether home-built or commercial, to respond."

Faculty Move Forward on Open Access Policy; Duke Today, 3/21/10

Duke Today; Faculty Move Forward on Open Access Policy:

"In a unanimous vote, the Academic Council approved a resolution supporting a new open access repository for faculty scholarly writings, but asked that organizers return for more discussion when they have details in place about how the repository would be serviced.

The policy would place the final draft manuscript of future scholarly articles in an open access repository that would be available for use by the public. Faculty members have a right to opt-out of the repository at any time, and the repository would respect any embargo requested by the author or journal. The policy would be reviewed in three years to determine its effectiveness.

Open access is in line with the university’s commitment to disseminate the knowledge of the faculty, and Duke follows in the wake of peer institutions such as Harvard and MIT that have established similar policies.

But supporting it in theory is one thing, and faculty members said they want to hear more about the details in the fall."

An essential newsletter for copyright and media law; American Libraries Direct, 3/23/10

American Libraries Direct; An essential newsletter for copyright and media law:

"ALA Editions, the publishing imprint of the American Library Association, is partnering with copyright and licensing expert Lesley Ellen Harris to offer The Copyright & New Media Law Newsletter, available both digitally and in print. This newsletter keeps readers informed and provides practical solutions for everyday copyright-related activities.

Copyright law is a difficult and constantly changing topic. Since 1997, The Copyright & New Media Law Newsletter has kept library professionals up-to-date with the latest developments related to new media and uses of content. Edited by Harris, author of “Licensing Digital Content,” this quarterly 12-page newsletter is geared toward those who work in libraries, archives, museums, corporations, educational institutions, governments and law firms. It features contributors from around the world, including the United States, Australia, Canada, Denmark, Germany, Hong Kong, The Netherlands, New Zealand, Norway, Singapore, Slovenia, South Africa, Sweden, Switzerland and the United Kingdom.

Harris is a copyright, licensing and digital property lawyer who consults on legal, business, policy and strategic issues in the publishing, entertainment, Internet and information industries. She has authored numerous articles and books and also created The Digital Licensing Online eCourse for ALA Editions. Since 1991 her practice has served a broad range of clients, and she frequently works with libraries, archives, museums and educational institutions. She often speaks at conferences and teaches in-person and online courses on copyright and licensing through and in conjunction with national and regional associations in Canada and the U.S.. From 1987 to 1991 she was senior copyright officer for the Canadian government, and helped revise the country’s copyright laws.

ALA Store purchases fund advocacy, awareness, and accreditation programs for library professionals worldwide.

ALA Editions develops resources for the library and information services community. Tens of thousands of librarians are helped and supported professionally each year by 30 or more new and revised titles, as well as periodicals and online products such as Library Technology Reports, Smart Libraries Newsletter, and the ALA TechSource blog. ALA writers are leaders across their fields, and their publications are distributed and valued worldwide."

Want to Use My Suit? Then Throw Me Something; New York Times, 3/24/10

Campbell Robertson, New York Times; Want to Use My Suit? Then Throw Me Something:

"Knowing that there are few legal protections for a person who is photographed in public — particularly one who stops and poses every few feet — some Mardi Gras Indians have begun filing for copyright protection for their suits, which account for thousands of dollars in glass beads, rhinestones, feathers and velvet, and hundreds of hours of late-night sewing."

Sunday, March 21, 2010

Texts Without Context; New York Times, 3/21/10

Michiko Kakutani, New York Times; Texts Without Context:

"In his deliberately provocative — and deeply nihilistic — new book, “Reality Hunger,” the onetime novelist David Shields asserts that fiction “has never seemed less central to the culture’s sense of itself.” He says he’s “bored by out-and-out fabrication, by myself and others; bored by invented plots and invented characters” and much more interested in confession and “reality-based art.” His own book can be taken as Exhibit A in what he calls “recombinant” or appropriation art.

Mr. Shields’s book consists of 618 fragments, including hundreds of quotations taken from other writers like Philip Roth, Joan Didion and Saul Bellow — quotations that Mr. Shields, 53, has taken out of context and in some cases, he says, “also revised, at least a little — for the sake of compression, consistency or whim.” He only acknowledges the source of these quotations in an appendix, which he says his publishers’ lawyers insisted he add.

Who owns the words?” Mr. Shields asks in a passage that is itself an unacknowledged reworking of remarks by the cyberpunk author William Gibson. “Who owns the music and the rest of our culture? We do — all of us — though not all of us know it yet. Reality cannot be copyrighted.”

Mr. Shields’s pasted-together book and defense of appropriation underscore the contentious issues of copyright, intellectual property and plagiarism that have become prominent in a world in which the Internet makes copying and recycling as simple as pressing a couple of buttons. In fact, the dynamics of the Web, as the artist and computer scientist Jaron Lanier observes in another new book, are encouraging “authors, journalists, musicians and artists” to “treat the fruits of their intellects and imaginations as fragments to be given without pay to the hive mind.”

It’s not just a question of how these “content producers” are supposed to make a living or finance their endeavors, however, or why they ought to allow other people to pick apart their work and filch choice excerpts. Nor is it simply a question of experts and professionals being challenged by an increasingly democratized marketplace. It’s also a question, as Mr. Lanier, 49, astutely points out in his new book, “You Are Not a Gadget,” of how online collectivism, social networking and popular software designs are changing the way people think and process information, a question of what becomes of originality and imagination in a world that prizes “metaness” and regards the mash-up as “more important than the sources who were mashed.”

Mr. Lanier’s book, which makes an impassioned case for “a digital humanism,” is only one of many recent volumes to take a hard but judicious look at some of the consequences of new technology and Web 2.0. Among them are several prescient books by Cass Sunstein, 55, which explore the effects of the Internet on public discourse; Farhad Manjoo’s “True Enough,” which examines how new technologies are promoting the cultural ascendancy of belief over fact; “The Cult of the Amateur,” by Andrew Keen, which argues that Web 2.0 is creating a “digital forest of mediocrity” and substituting ill-informed speculation for genuine expertise; and Nicholas Carr’s book “The Shallows” (coming in June), which suggests that increased Internet use is rewiring our brains, impairing our ability to think deeply and creatively even as it improves our ability to multitask.

Unlike “Digital Barbarism,” Mark Helprin’s shrill 2009 attack on copyright abolitionists, these books are not the work of Luddites or technophobes. Mr. Lanier is a Silicon Valley veteran and a pioneer in the development of virtual reality; Mr. Manjoo, 31, is Slate’s technology columnist; Mr. Keen is a technology entrepreneur; and Mr. Sunstein is a Harvard Law School professor who now heads the White House Office of Information and Regulatory Affairs. Rather, these authors’ books are nuanced ruminations on some of the unreckoned consequences of technological change — books that stand as insightful counterweights to early techno-utopian works like Esther Dyson’s “Release 2.0” and Nicholas Negroponte’s “Being Digital,” which took an almost Pollyannaish view of the Web and its capacity to empower users."

A Supersized Custody Battle Over Marvel Superheroes; New York Times, 3/21/10

Brooks Barnes and Michael Cieply, New York Times; A Supersized Custody Battle Over Marvel Superheroes:

"The dispute is also emblematic of a much larger conflict between intellectual property lawyers and media companies that, in Mr. Toberoff’s view, have made themselves vulnerable by building franchises atop old creations. So-called branded entertainment — anything based on superheroes, comic strips, TV cartoons or classic toys — may be easier to sell to audiences, but the intellectual property may also ultimately belong in full or in part to others.

“Any young lawyer starting out today could turn what he’s doing into a real profit center,” Paul Goldstein, who teaches intellectual-property law at Stanford’s law school, said of Mr. Toberoff’s specialty.

Mr. Goldstein said cases like the one involving Marvel are only the tip of an iceberg. A new wave of copyright termination actions is expected to affect the film, music and book industries as more works reach the 56-year threshold for ending older copyrights, or a shorter period for those created under a law that took effect in 1978.

Mr. Toberoff is tackling what could be one of the most significant rights cases in Hollywood history; it’s certainly the biggest involving a superhero franchise. Unlike his continuing fight with Warner Brothers over Superman, Mr. Toberoff’s rights-reclamation effort against Marvel involves dozens of stories and characters from about 240 comic books."

Saturday, March 20, 2010

Smoking guns, dark secrets aplenty in YouTube-Viacom filings; Ars Technica, 3/19/10

Nate Anderson, Ars Technica; Smoking guns, dark secrets aplenty in YouTube-Viacom filings:

"Court documents in the $1 billion lawsuit between Viacom and YouTube were unsealed today, finally shedding some light on key questions: did Viacom have "smoking gun" evidence that YouTube was deliberately profiting from 62,637 Viacom clips that were watched more than 507 million times on the site? Was Google aware of the copyright infringement problems when it purchased YouTube in 2006? Were YouTube's own founders involved in uploading unauthorized materials?

On all three counts, Viacom says yes—and it offers up a host of e-mails to prove it..."

Your life will some day end; ACTA will live on; Ars Technica, 3/19/10

Nate Anderson, Ars Technica; Your life will some day end; ACTA will live on:

"The Anti-Counterfeiting Trade Agreement (ACTA) isn't just another secret treaty—it's a way of life. If ACTA passes in anything like its current form, it will create an entirely new international secretariat to administer and extend the agreement.

Knowledge Ecology International got its hands on more of the leaked ACTA text this week, including a chapter on "Institutional Arrangements" that has not leaked before. The chapter makes clear that ACTA will be far more than a standard trade agreement; it appears to be nothing less than an attempt to make a new international institution that will handle some of the duties of groups like the WTO and WIPO.

Why bother? Well, from the perspective of countries like the US, the existing institutions have problems. For one, they feature a huge number of nations, some of whom have blocked some of the anti-counterfeiting provisions desired by the US and others. Call this the UN problem—getting much done with so many people in attendance can be tricky, and ACTA has become a "coalition of the willing" who have decided to go form their own club instead.

But WIPO, especially, has also opened up over the last decade, and now has robust rules for the participation of consumer groups and other non-governmental organizations. It also requires far more transparency, with the publication of proposals and draft texts throughout a negotiating process. As we have seen too clearly, ACTA has none of this.

Jamie Love of KEI claims that the US Trade Representative has already "told members of Congress it is their intention to marginalize the participation by consumer interest organizations in the new forum."

The new ACTA secretariat won't be a mere administrator. The leaked chapter makes clear that the new governing body will "make recommendations regarding the implementation of ACTA" and will itself "identify and monitor techniques of piracy and counterfeiting."

In other ACTA news, a separate chapter has also leaked, and in it the EU wants to make sure that criminal penalties exist for "cases of willful trademark counterfeiting and copyright or related rights piracy on a commercial scale." On a "commercial scale" doesn't mean that such infringement must be done for financial gain, however; it also includes "significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain."

Despite the public support of President Obama, ACTA is running into bad press throughout the world. The European Parliament last week even managed to pass a strong resolution of displeasure with the ACTA process, which passed 633-13."

UK IP Minister Lammy Backs EU Release Of ACTA Text; Intellectual Property Watch, 3/17/10

Intellectual Property Watch; UK IP Minister Lammy Backs EU Release Of ACTA Text:

"David Lammy, United Kingdom Minister for Intellectual Property, today said the UK supports the European Union’s position that the text of the Anti-Counterfeiting Trade Agreement (ACTA) should be made public.

“The UK has long been in favour of greater transparency in the ACTA negotiations, so I am very pleased that EU has now agreed that the draft ACTA text should be placed in the public domain as soon as possible,” Lammy said in a press statement. “This would allow much more open and informed engagement with citizens, society, and parliaments.”

Lammy said that the European Commission “will take this message” to the next negotiating round in New Zealand in April “and seek the agreement of all other negotiating partners.”

”This is a very important step forward, and I will continue to push for these negotiations to be conducted openly and transparently,” he said. The 18-month-old negotiations (IPW, Bilateral/Regional Negotiations, 24 October 2007) have been plagued by complaints about the lack of transparency and inclusiveness."

Friday, March 19, 2010

Viacom Says YouTube Ignored Copyrights; New York Times, 3/19/10

Miguel Helft, New York Times; Viacom Says YouTube Ignored Copyrights:

"Pointing to internal YouTube e-mail messages, Viacom said in a court filing that the video site’s founders turned a blind eye when users uploaded copyrighted clips so they could amass a big audience and sell the company quickly.

The charge was one of many made by Viacom in filings unsealed on Thursday in its three-year-old copyright lawsuit against YouTube and Google, which bought YouTube in 2006 for $1.65 billion.

Google fired back, saying Viacom was distorting the record by taking passages from e-mail messages out of context. It also said Viacom employees and agents “continuously and secretly” uploaded clips from the company’s television shows and movies to YouTube for promotional purposes, even as they were complaining about copyright violations.

“They are both tearing each other up, and both are scoring points,” said Eric Goldman, director of the High-Tech Law Institute at the Santa Clara University School of Law.

The lawsuit accused YouTube of profiting from thousands of clips from Viacom movies and shows that were uploaded to the site without permission.

It was filed at the height of tensions between Google and media companies over copyrights — tensions that have since eased substantially. YouTube, which is by far the Web’s largest video site, has set up an automated system to detect infringing videos and signed revenue-sharing agreements with more than a thousand media companies.

But more broadly, media companies remain wary of losing control as more of their products become digital, making them easier to copy.

As part of their motions for summary judgment in the case, both sides released hundreds of pages of documents and exhibits on Thursday, including internal documents obtained through the discovery process.

Among them were scores of e-mail messages from YouTube’s founders — Chad Hurley, Steve Chen and Jawed Karim — discussing what to do about clips uploaded to YouTube that clearly belonged to major studios or television networks.

In a 2005 e-mail message to Roelof Botha, a partner at Sequoia Capital, YouTube’s major outside investor, Mr. Chen described a system that the company had put in place for users to flag copyrighted and pornographic content: “That way, the perception is that we are concerned about this type of material and we’re actively monitoring it.”

Mr. Chen goes on to acknowledge that much of the infringing material will remain on the site, but that users won’t be able to easily stumble upon it.

Google countered that the message was truncated and taken out of context, and that it merely suggested that YouTube was serious about policing its site for copyrighted content.

One e-mail message revealed that even as YouTube’s founders were discussing how to deal with copyrighted clips, one of them was uploading such material.

In July 2005, Mr. Chen wrote: “Jawed, please stop putting stolen videos on the site. We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site because we didn’t put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it.” Google said that message referred to “viral videos,” not pirated media content.

In another e-mail message from January 2006, a Google executive refers to a conversation with Mr. Hurley and another YouTube executive about copyrights, and compares YouTube with the much less popular Google Video service.

“YouTube is at an advantage b/c they aren’t the target that we are with issues like this. They are aware of this (I spoke with them on Friday) and they plan on exploiting this in order to get more and more traffic.”"

Thursday, March 18, 2010

In Court, a University and Publishers Spar Over 'Fair Use' of Course Materials; Chronicle of Higher Education, 3/14/10

Jennifer Howard, Chronicle of Higher Education; In Court, a University and Publishers Spar Over 'Fair Use' of Course Materials:

"Maybe you're a professor who wants to use a chunk of copyrighted material in your course this spring. Or perhaps you're a librarian or an academic publisher. If so, the much-followed Google Book Search settlement is not the only legal case you need to be watching. A federal case involving publishers and a state-university system, Cambridge University Press et al. v. Patton et al., should produce a ruling soon, and its stakes are high.

First, a little history. In the spring of 2008, three academic publishers, Cambridge University Press, Oxford University Press, and SAGE Publications, brought a lawsuit against several top administrators at Georgia State University. The plaintiffs claimed that the university was encouraging the unauthorized digital copying and distribution of too much copyrighted material, particularly through its ERes and uLearn systems. ERes allows students to access digital copies of course material via a password-protected Web page; uLearn is a program professors can use to distribute syllabi and reading material.

The three publishers alleged that the unauthorized copying was "pervasive, flagrant, and ongoing." In February 2009, Georgia State put in place a revised copyright policy, including a checklist for faculty members to help them decide whether the amount of material they wanted to copy exceeded fair use.

Almost two years and many depositions later, both sides have filed briefs asking for a summary judgment in the case.

Legal briefs are a dry genre, but these tussle over some of the central questions of fair use in an academic context: How much is too much when it comes to copying rights-protected content without permission? To what extent is it the institution's job to shepherd its professors and students through the thorny complexities of copyright?

Unfair Use

The publishers' filing attacks what it calls the university's "blanket presumption of 'fair use'" in a higher-education context. The filing goes after the university's new fair-use checklist and copyright policy, saying that it "delegates the responsibility for ensuring copyright compliance entirely to faculty unschooled in copyright law."

The plaintiffs quote from the depositions of several Georgia State professors who acknowledge that they are not always clear on the copyright issues at stake. ("This is outside of my area of expertise," one is quoted as saying.) The publishers want the university to use the Copyright Clearance Center's licensing system or something like it for course materials.

The defendants take a strict we-didn't-do-it view. Their brief argues that "any alleged unlawful reproduction, distribution, or improper use was actually done by instructors, professors, students, or library employees."

Georgia State's filing also argues that the new copyright policy has drastically reduced the use of the plaintiffs' copyrighted material. It agrees with the plaintiffs that the defendants have no budget for permissions fees and that "faculty members would decline to use works like those at issue if there was an obligation to pay permissions fees."

So on one side you have a set of major academic publishers understandably eager to protect revenue, and on the other side you have a university that says it doesn't promote copyright infringement and doesn't have the money to pay a lot of permissions fees. One implication (threat?) one could draw is that if professors can't use what they need at no charge, they will probably use something else.

Complexities of Copyrights

I asked Kevin L. Smith, the scholarly-communications officer at Duke University, for his reaction. Mr. Smith helps scholars sort out copyright complexities—a function that is becoming ever more essential in university life, as this case makes very clear—and he has written about the GSU case on his blog, Scholarly Communications

For the moment, publishers appear unwilling to go after individual professors. "These faculty members are the same people who provide the content that university presses publish, so it would be really self-defeating," Duke's copyright maven, Mr. Smith, explained. "It would also be an endless game of 'whack-a-mole.' They would prefer a broad judgment against a university."
In any case, the Duke expert said, a fair-use case like this deserves more than a summary judgment. This case cuts to the heart of how many professors choose course material now and how students use it. Summary judgment or not, Duke's Mr. Smith said, "I think faculty and administrators should be very concerned.""

Wednesday, March 17, 2010

Why Google's deal with Italy is a good thing for readers; Christian Science Monitor, 3/11/10

Marjorie Kehe, Christian Science Monitor; Why Google's deal with Italy is a good thing for readers:

"Good news for Google and also for readers hoping to brush up on their Dante: The Italian government and the search-engine giant have agreed that Google will digitize up to 1 million books from the national libraries in Florence and Rome. The books to be digitized were all published before 1868 (which means that copyright laws do not apply) and will include antiquarian texts, including works by Dante, Machiavelli, and Galileo.

Although Google has struck similar deals with universities in England and Spain and a state museum in Germany, The Wall Street Journal notes that this is Google's "first publishing partnership with a national government."

It's a good deal for Google, which will be able to expand the offerings – and particularly the non-English-language offerings – of its Book Project, which currently lists about 12 million books. The deal also means a win in Europe where recent Google-related headlines have been unfortunate for the company. (A French court has ruled that Google committed copyright violation by scanning certain French-language titles, and an Italian court recently slapped Google officials with jail sentences in connection with an ugly abuse-related video made popular on YouTube.)

It's also a good deal for the Italian government. Google will bear all costs for the project just at a moment when budget cuts are making it harder for Italian libraries to preserve their valuable texts. The Italian libraries will also be able to share digitized copies of the scanned books with readers on other platforms, including Europeana, the online publishing project of the European Commission.

But most of all it's a good deal for readers. A million years ago (well, in the 1980s), when I was at grad school in New York studying Italian renaissance poetry, I went to the New York Public Library to consult an antiquarian text. Holding my credit card as collateral, they gave me a pair of gloves, ushered me into the Rare Book room, and let me handle (very carefully) a yellowing text printed in Naples several centuries earlier.

It was a thrill I will never forget. There is no substitute for laying your hands on a text like that.

However, for every bibliophile and/or Italophile who does not live in the shadow of a major cultural institution with the stature and holdings of the New York Public Library (and that now includes me), the Google deal is a very good thing."

Monday, March 15, 2010

Kirby heirs sue Marvel and Disney for stake in characters, profits;, 3/15/10

Kevin Melrose,; Kirby heirs sue Marvel and Disney for stake in characters, profits:

"The children of legendary artist Jack Kirby have sued Marvel and Disney to terminate copyrights to, and receive a share of profits from, characters created or co-created by their father.

The lawsuit, filed last week in U.S. District Court in Los Angeles, follows the 45 copyright-termination notices sent in September to Marvel, new owner Disney, Sony Pictures, Universal Pictures, 20th Century Fox and others who have made films and other forms of entertainment based on characters that Kirby co-created. Marvel responded in early January with a lawsuit asserting that Kirby's work for the company was "for hire," and asked that a judge invalidate the claims of the heirs.

In the Kirby lawsuit, attorney Marc Toberoff lays out the characters and comic books at the heart of the family's claims: properties created or co-created by Jack Kirby between 1958 and 1963, including the Fantastic Four, X-Men, Iron Man, Spider-Man, The Incredible Hulk, Thor, The Avengers, Nick Fury and Ant-Man. (The extent of Kirby's involvement in the creation of Spider-Man is the subject of much debate.)

Under U.S. copyright law, authors or their heirs and estates may file to regain copyrights, or partial copyrights, at a certain period of time after the original transfer of rights. However, if the property is determined to be "work made for hire," the copyright would belong to the company that commissioned it.

Marvel argues that the company's editors determined which titles Kirby and other creators worked on, "and always retained full editorial control."

However, the family's lawsuit asserts that Jack Kirby wasn't an employee but rather a free-lancer who "authored or co-authored" numerous stories that Marvel and its predecessors then purchased and published. That echoes the earlier response to Marvel's January lawsuit. The plaintiffs claim it wasn't until May 1972 that Kirby assigned his copyrights to the properties to Magazine Management Co., then the parent company of Marvel Comics, for "additional compensation."

Lisa Kirby, serving as trustee for the Rosalind Kirby Trust, also alleges that Marvel didn't return all of Jack Kirby's original artwork in its possession -- a bitter dispute that goes back decades -- despite its claims to the contrary. The company's alleged efforts to conceal the art are characterized as "willful, wanton, malicious, and oppressive, and justify the awarding of exemplary and punitive damages."

The plaintiffs also seek damages under the Lanham Act, claiming that Kirby wasn't properly identified as co-creator of the original works in the advertising and promotion of the movies The Incredible Hulk and X-Men Origins: Wolverine (the latter presumably because of the X-Men, Professor X, Scott Summers and the Blob, not Wolverine). The lawsuit contends the omissions amount to "false or misleading descriptions or representations of fact in interstate commerce," prohibited by the Lanham Act, and cause injury to the interests of the Kirby estate. The plaintiffs assert they're entitled to "up to three times the damages they sustained and will sustain" because of the omissions, but don't give an actual figure.

The Kirby lawsuit doesn't state how much money the family believes it's owed in total but, as The Hollywood Reporter's Eriq Gardner notes, "any termination of copyrights could be worth tens of millions of dollars, if not more.""

British Put Teeth in Anti-Piracy Proposal; New York Times, 3/15/10

Eric Pfanner, New York Times; British Put Teeth in Anti-Piracy Proposal:

"When asked how governments ought to deal with freeloaders who illegally copy music and movies on the Internet, James Murdoch, head of News Corp.’s European and Asian operations, does not mince his words: “Punish them.”

“There is no difference with going into a store and stealing Pringles or a handbag and taking this stuff,” he said last week at a media conference in Abu Dhabi. “We need enforcement mechanisms and we need governments to play ball.”

In Britain, where Mr. Murdoch is based, lawmakers have taken up the challenge — to the consternation of Internet companies and civil liberties groups, which are ratcheting up their own arguments against a tough anti-piracy bill that is nearing the make-or-break stage in Parliament.

The measure, championed by the business secretary, Peter Mandelson, would give the British authorities new tools to clamp down on piracy, including the right to cut off the Internet connections of persistent copyright cheats. Such a system has been approved, though not yet implemented, in France.

The British proposal, set to be taken up by the House of Commons on Monday, goes further. Under an amendment to the bill in the House of Lords this month, courts would be empowered to order Internet service providers to block access to Web sites that provide pirated movies, music and other media content.

Supporters of the amendment say it would finally give copyright holders the tools to tackle the piracy problem at the supply and demand levels, after more than a decade of largely futile efforts. But critics of the bill say it raises the specter of censorship on the Internet, and could undermine the development of Britain’s digital economy, currently among the most advanced in the world.

“Put simply, blocking access as envisaged by this clause would both widely disrupt the Internet in the U.K. and elsewhere, threatening freedom of speech and the open Internet, without reducing copyright infringement as intended,” opponents of the proposal wrote in a letter to The Financial Times. It was signed by Internet service providers, Internet companies like Google, Yahoo, eBay and Facebook, and other groups.

Britain is not the only country considering tougher measures to fight piracy. Along with France, South Korea also recently approved a system under which Internet pirates who ignore two warnings to stop illegal downloads face the loss of their Internet connections. Lawmakers in Spain have proposed a measure that, like the British proposal, could require Internet service providers to block access to certain sites.

The British government says a tougher approach on piracy could provide hundreds of millions of dollars for the “creative industries,” which already account for more than 6 percent of British economic output.

But critics say the proposals would be expensive to enforce and would generate very little new revenue.

Jim Killock, executive director of the Open Rights Group, which campaigns against restrictions on the Internet, said the bill contained unusually broad scope for abuse. Individuals or companies, he said, might try to use it to suppress any Web content they found objectionable, under the pretext of protecting their copyrights.

British libel laws, which put the burden of proof on the defendant, are already employed in this way by wealthy plaintiffs, critics say; rather than mount expensive defenses, bloggers and others accused of libel often back down and withdraw whatever statements drew offense."

Sunday, March 14, 2010

Duplicating Federal Videos for an Online Archive; New York Times, 3/14/10

Brian Stelter, New York Times; Duplicating Federal Videos for an Online Archive:

"Dust off a disc. Maybe it’s video of a Bob Hope Christmas show, or maybe it’s the Apollo 11 moon landing. Insert a blank disc. Duplicate.

Carl Malamud, who conceived the project, calls it an “experiment in crowd-sourced digitization.”

It sounds monotonous because it is. But every time Liz Pruszko presses the start button on a DVD machine, she knows she is helping to unlock the thousands of videos tucked away in the National Archives.

“It just seems like such a shame to not have this content out there,” Ms. Pruszko said.

When she says “out there,” she is talking about the Web, where it might seem that every conceivable video clip of federal importance is already stored, just waiting to be searched for. That is far from true. But she is nudging the government in that direction.

Ms. Pruszko is a volunteer for the International Amateur Scanning League, an invention of the longtime public information advocate Carl Malamud. The league plans to upload the archives’ collection of 3,000 DVDs in what Mr. Malamud calls an “experiment in crowd-sourced digitization.”

Armed with nothing but a DVD duplicator and a YouTube account, the volunteers have copied and uploaded, among other video clips, an address by John F. Kennedy; a silent film about the Communist “red scare”; a training video on farming; and a Disney film for World War II soldiers about how to avoid malaria, in Spanish. So far, nothing elusive has emerged — but the project is in its infancy.

“It’s a cornucopia of information,” said Justin Grimes, another league volunteer.

The league is a small demonstration that volunteers can sometimes achieve what bureaucracies can’t or won’t. The government’s 10-year broadband plan, to be submitted to Congress this week, will include a vision for, a proposed home for video from federal agencies. The proposal is sure to be cheered by people who want the government to put more materials online. But Mr. Malamud and his volunteers are not waiting.

Mr. Malamud, who spends most of his time pushing for broader access to legal documents online, had already uploaded 1,300 videos from other government sources, like the Federal Aviation Administration and National Technical Information Service. But “the motherlode is the archives,” he said.

To put those DVDs online, he needed volunteers, and he found them at CopyNight, a monthly gathering of copyright law enthusiasts that he visited at a restaurant near Union Station last December. (CopyNight members are generally supportive of relaxations to copyright laws.) Mr. Malamud raised the idea a month later.

Though it may seem to be an odd pursuit, especially for no pay, Ms. Pruszko, who is a project manager for a Web development company, took to the idea. Ms. Pruszko said she explained to her fiancé that “copying DVDs sounds boring, but it’s not the copying that counts — it’s what it represents and what it results in.” What it represents, she said, is access to information, a cornerstone of democracy.

Although the DVDs are all technically available to the public, they are hard to see unless a person visits the archive or pays for a copy via With the scanning project, they are a few mouse clicks away.

Ms. Pruszko started doing the copying last month, and returned to the archives building last Saturday to copy her 50th DVD.

At No. 50, “Carl promised me a poster,” she joked.

There are also laminated badges and “Public Domain Merit Badges,” all meant to convey a seriousness of purpose along with a sense of humor.

In red envelopes labeled “FedFlix,” his DVD-by-mail variation on Netflix, the volunteers mail the DVD copies to Mr. Malamud’s home in Northern California, where he uploads them to YouTube, the Internet Archive Web site and an independent server. Mr. Malamud said that the volunteer work hardly reduces the need for the government to increase its own digitization efforts.

“I try to get the government to change by showing them what’s possible,” he said.

David S. Ferriero, the archivist of the United States, said the archives were fully supportive of what the citizen group was doing.

“My goal is to make available electronically as much content as possible,” he said, adding that the FedFlix copies are sufficiently high-quality that the archives would not have to duplicate them once more.

The scanning league is starting with the 3,000 or so DVDs in the collection, because they are the easiest to duplicate. But there is much more to be done: the archives are said to house more than 200,000 videos.

“Knowing Carl, he has other things planned,” Ms. Pruszko said."

Peers 'set to offer digital economy bill concessions'; (London) Guardian, 3/12/10

Jason Deans, (London) Guardian; Peers 'set to offer digital economy bill concessions':

"Peers will reportedly offer concessions over controversial anti-piracy legislation that would lead to websites being blocked without due judicial process, following criticism from internet companies including Google, Facebook and Yahoo.

The Liberal Democrats are planning to publish changes to an earlier amendment to the digital economy bill, 120A, that seek to address concerns about the anti-piracy proposals raised by internet service providers and leading web companies, according to today's Financial Times.

Last week Lib Dem and Conservatives peers added amendment 120A to the bill giving a high court judge the right to issue an injunction against a website accused of hosting a "substantial" amount of copyright infringing material, potentially forcing the entire site offline. The amendment was passed in the House of Lords by 165 votes to 140.

Under three changes proposed by the Lib Dems, of which the FT reports the Conservatives are broadly supportive, a judge could order copyright owners to pay legal costs and other compensation for asking a service provider to block a site. Content owners must also inform owners of sites they accuse of infringing their copyright before asking that it be blocked, and list the works illegally hosted.

Website owners or "any person aggrieved" would be able to appeal against a block under the latest amendments.

The Lib Dems are expected to publish the amendment today and they will be voted on in the Lords on Monday as part of the third reading of the digital economy bill, according to the FT.

Earlier this week a group of internet and technology companies, along with consumer groups, co-signed a letter published in the FT criticising amendment 120A. They said it raised "myriad legal, technical and practical issues" that needed to be reconciled before it could be "considered a proportionate and necessary public policy option".

The letter was co-signed by the heads of the four largest UK internet service providers – BT, Orange, Virgin Media and TalkTalk – as well as Google, Facebook, eBay and Yahoo, along with consumer groups, academics and the technophile television host Stephen Fry."

Should Fashion be Protected by Copyright Laws? A Guest Post; Freakonomics Blog, New York Times, 3/12/10

Last week, Kal Raustiala and Chris Sprigman took us behind the scenes of fashion copycatting, and explained why the practice is actually good for the fashion industry. This week, they explore historical and current efforts to protect fashion from copycatters. Kal Raustiala, a Professor at UCLA Law School and the UCLA International Institute, and Chris Sprigman, a Professor at UVA Law School, are counterfeiting and intellectual property experts.

Is the Design Piracy Prohibition Act A Good Idea? By Kal Raustiala and Chris Sprigman

In our last post, we discussed the phenomenon of “red carpet copycats”: those firms that quickly issue copies of the often-striking—and strikingly expensive—dresses worn by the stars at the Oscars. Many apparel firms are very open about this practice, lauding it as a way to provide “bling on a budget.” And, as we explained, this practice is legal under American copyright law, which has never protected fashion in the way that other creative endeavors, such as music or film, are protected.

We also argued that the reason copying is permitted is in part that, in the fashion world, copying has hidden benefits. Styles, as we all know, rise and fall in a ceaseless cycle of trends. That is the nature of fashion. As copies of trendy or noteworthy garments are freely made, fashion-forward consumers recognize that it’s time to jump to the new new thing. The fashion cycle turns even faster.

The interesting effect of copying is to generate more demand for new designs, since the old designs—the ones that have been copied—are no longer special. The overall result is greater sales of apparel. We call this surprising effect the “piracy paradox.”

We think the piracy paradox explains why fashion has remained immune from the steady march toward ever stronger intellectual property rights. From boat hulls to buildings to books, copyright law has been dramatically expanded and strengthened by Congress over the last 50 years. That fashion remains an outlier reflects the unusual incentives of the industry.

Nonetheless, not everyone agrees that copying is beneficial. Indeed, if you are the designer being copied, you may feel otherwise, since you bear many of the costs of copying (such as foregone sales), while others reap the majority of the benefits. For that reason, there have been occasional calls to amend American copyright law to protect fashion designs. To date, none of these efforts have succeeded. But a closer look at them can give us further insight into the economics of fashion...

The DPPA is also unwise. Extend copyright to the fashion industry, and designers are going to start fighting over who started a trend. Ligitation of this sort is great for lawyers—and those firms who can afford good lawyers—but not great for small designers or start-ups, who can be easily cowed or crushed by a lawsuit. And in a field where many believe there is nothing new under the sun, creating monopolies in fashion designs is bound to lead to a lot of lawsuits.

There’s one last point to make here. Consumers benefit enormously from the fashion industry’s freedom to copy. Because of copying, the latest styles are not restricted to the wealthy – indeed, copying has played a major role in democratizing fashion.

The bottom line is that there is no shortage of innovation in the U.S. fashion industry. Right now, in studios in New York and Los Angeles, uncounted thousands of designers are busy churning out new designs. And they are also busy copying and “interpreting” one another. And that’s good."

2010 Center for Intellectual Property (CIP) Symposium, "Sustaining Culture in Copyright", Washington, DC, June 22-24

2010 Center for Intellectual Property (CIP) Symposium, "Sustaining Culture in Copyright", Washington, DC, June 22-24:

"Join scholars and experts to discuss today's copyright concerns. Culture flourishes through the creation of new music, videos, and textual works.The CIP symposium will explore better ways to balance the needs of cultural innovation with the rights of owners of creative works."

Saturday, March 13, 2010

Facing the Music; Pittsburgh City Paper, 3/11/10

Andy Mulkerin, Pittsburgh City Paper; Facing the Music:

"Last June 28 wasn't an especially noteworthy night at Howlers Coyote Café. It was the monthly Sunday Night Hayride -- a country show hosted by Howlers regulars The Beagle Brothers that typically features a guest band or two.

"The featured act was a band from West Virginia -- nobody really knew them," recalls Jo Albright, the Bloomfield club's booking manager. "They proceeded to do about two hours' worth of covers. And they did them badly."

Even worse, among the sparse crowd that night was an undercover representative of Broadcast Music, Inc. (BMI), a rights and licensing agency for songwriters. And although the music eventually stopped, for Albright and bar-owner Susan Coe, the headaches had just begun.

Later in the summer, BMI served Coe with a federal complaint alleging seven counts of copyright infringement. Among the songs the agent heard that night, seven apparently belonged to artists covered by BMI, who demanded the bar pay for the rights on that music.

That complaint was the culmination a seven-year dispute between BMI and the bar."

Thursday, March 11, 2010

New eCourse decodes the mysteries of digital licensing; American Libraries, 3/9/10

American Libraries; New eCourse decodes the mysteries of digital licensing:

"ALA Editions, the publishing imprint of the American Library Association, announces its first eCourse “Digital Licensing Online,” by Lesley Ellen Harris--an entirely self-directed, self-paced continuing education course that uses an online interface.

The digital revolution has resulted in an important, and sometimes daunting, change in the way libraries and other organizations procure, access and store information available for internal use and for use by researchers. Librarians have become negotiators and interpreters of legal agreements. To help them fulfill these important new roles, renowned copyright expert Lesley Ellen Harris has adapted her popular ALA Editions book “Licensing Digital Content: A Practical Guide for Librarians” into this eCourse, designed to teach librarians how to read and understand a contract as well as how to negotiate with vendors. Among the many topics addressed are

industry standards in licensing
determining when a licensing policy is necessary
key dimensions of licensing agreements
legal concepts in licensing agreements
step-by-step analysis of the main clauses in a digital licensing agreement

The course includes short quizzes at the end of each of the 27 modules. Each module is designed to take approximately 30 minutes to complete. Additional resources include sample agreements, an assortment of boiler plate clauses, and links to helpful Web sites.

Harris is a copyright, licensing, and digital property lawyer who consults on legal, business, policy, and strategic issues in the publishing, entertainment, Internet and information industries. Since 1991 her practice has served a broad range of clients, and she frequently works with libraries, archives, museums and educational institutions. She often speaks at conferences and teaches in-person and online courses on copyright and licensing. Harris began her career in copyright in 1984 working with a lobbying group interested in revising Canada’s copyright laws. From 1987 to 1991 she was senior copyright officer with the Canadian government, in which capacity she helped revise the country’s copyright laws. Harris is the author of the books “Digital Property: Currency of the 21st Century,” “Canadian Copyright Law,” “Licensing Digital Content: A Practical Guide for Librarians,” and numerous articles. Since 1997 she has been the editor of The Copyright and New Media Law Newsletter. She maintains the website and the blog Copyright Questions & Answers.

ALA Store purchases fund advocacy, awareness, and accreditation programs for library professionals worldwide.

ALA Editions develops resources for the library and information services community. Tens of thousands of librarians are helped and supported professionally each year by 30 or more new and revised titles. ALA authors are leaders across their fields, and their books are distributed and valued worldwide."

Wednesday, March 10, 2010

Google's digital library faces key hurdles; San Jose Mercury News, 3/7/10

Mike Swift, San Jose Mercury News; Google's digital library faces key hurdles:

"Sometime in the near future, a federal judge will decide whether Google can proceed with its plan to create a digital library and bookstore out of millions of old books scanned from libraries around the world.

Google Book Search has already spawned a class-action lawsuit, and now, a surge of opposition from scholars, consumer advocates and business competitors who claim the plan gives Google too much control over a priceless store of information. The legal issues are complex. But the impact and implications of the plan, which would create a copyright framework for old books that would persist into the 22nd century, could be huge, some say.

"It really is the most important copyright dispute we're currently facing," said James Grimmelmann, a professor at New York Law School and a former Microsoft programmer. "I would say this whole controversy has the potential to really affect how we access all kinds of media, not just old ones, but also new ones."

If Google is successful in rewriting a major area of copyright law through its proposed settlement of the lawsuit, someone else could try something similar for music or photographs. "It's a really interesting way to break a lot of logjams in copyright law," Grimmelmann said. "But are we opening a Pandora's box?""

European Parliament unites against 3 strikes, ACTA secrecy; Ars Technica, 3/9/10

Nate Anderson, Ars Technica; European Parliament unites against 3 strikes, ACTA secrecy:

"The European Parliament is fed up with the secrecy surrounding the Anti-Counterfeiting Trade Agreement (ACTA). Today, representatives from all the major parliamentary coalitions introduced a resolution demanding that the European Commission release all negotiating texts, inform Parliament about the negotiating process, and absolutely refuse to countenance any sort of "three strikes" Internet disconnection penalty for online copyright infringement.

The measure comes up for a vote tomorrow and looks set to pass—it has the support of all the important groups in Parliament, including the EPP, S&D, ALDE, and the Greens/EFA. One notable supporter: Christian Engström, the Pirate Party's lone MEP in Parliament, who aligns with the Greens/EFA group.

The resolution doesn't take long to get to the point. Parliament wishes to "express its concern over the lack of a transparent process in the conduct of the ACTA negotiations" and complains that "no parliamentary approval has been asked for the mandate [to negotiate the agreement]." Parliament wants immediate access to all documents and demands that it be "immediately and fully informed at all stages of the negotiations." If not, the resolution threatens legal action against the European Commission.

The resolution specifically demands that European negotiators not assent to "any so called 'three strikes' procedures" given the European Parliament's long dislike for such practices.

The resolution does not call for ACTA to scrapped, however. Instead, negotiations should center only on more effective "counterfeiting" enforcement. As Engström put it in a blog post on the new resolution, "If there is to be an ACTA agreement, the parliament wants it to be about combating goods counterfeiting (i.e., fake Rolexes and hand bags, fake Viagra on the net, fake cigarettes that are even more harmful that proper ones, etc.). It should not be about restricting our fundamental civil liberties on the net... Today is a day when it feels good to be a Pirate in the European Parliament."

Parliament has called for such information before; as long ago as March 2009 it asked the Commission to turn over all documents related to ACTA. Nothing happened. But the resolution claims that, thanks to the Treaty of Lisbon coming into force on December 1 2009, Parliament will have to approve ACTA before it comes into force. If the Commission refuses to involve Parliament, a "no" vote might be the eventual result of two years of negotiating work."

A Real Copyright Problem In The UK: The Difficulty Of Archiving Important Websites; TechDirt, 3/8/10

Mike Masnick, TechDirt; A Real Copyright Problem In The UK: The Difficulty Of Archiving Important Websites:

"While UK politicians are arguing over a ridiculous and unnecessary change to copyright law as part of the Digital Economy Bill, it appears there's a much bigger problem with UK copyright law that isn't getting very much attention at all. Slashdot points us to the news that due to the way copyright law currently works in the UK, archiving websites without permission is illegal. Yes, even for the British Library and other institutions who are designated by law to keep a copy of every printed publication. But when it comes to the web, the Library needs to get permission from every website that it wishes to archive. Obviously, that greatly limits the archival activity that the Library can be involved in -- and, as a result, the public suffers greatly. This is a clear case where fair use should cover the issues, but current law does not adequately handle this. Making fair use work better should be a priority -- but instead we have politicians trying to prop up Hollywood's business model by pushing copyright law in the other direction."

Tuesday, March 9, 2010

Pesky kookaburra drops one on the debate over copyright law; Sydney Morning Herald, 2/5/10

Richard Ackland, Sydney Morning Herald; Pesky kookaburra drops one on the debate over copyright law:

"In case you'd forgotten the words, I'll reproduce in its entirety this charming ditty so that we sing along together, preferably in rounds:

Kookaburra sits on an old gum tree
Merry merry king of the bush is he
Laugh kookaburra, laugh kookaburra
Gay your life must be.

Quite so. This iconic four-bar slice of Australiana was composed in 1934 by Miss Marion Sinclair, who entered Kookaburra in a competition conducted by the Girl Guides Association of Victoria. Much later, Larrikin Music Publishing came to acquire the copyright in Miss Sinclair's musical work.

Countless people throughout the world studiously missed elements of Miss Sinclair's tiny masterpiece that turned up in Men At Work's much more ''layered'' pop song Down Under. In fact, nobody seemed to recognise that there was a flute riff, or hook, in Down Under that bore some similarity to two bars of Miss Sinclair's music. This might suggest that the objective similarity between the two pieces of music was remote. The first public outing of the connection came on the ABC's musical quiz show Spicks And Specks in 2007.

Even then, the panel of experts had some trouble making up their mind as to whether the similarities were sufficiently strong.

Not so, said Justice Peter Jacobson in the Federal Court yesterday. The Larrikin Music people brought proceedings against EMI Songs Australia, which holds the copyright in Down Under, and the two composers of the music and words, the former members of Men At Work Colin Hay and Ron Strykert.

Even though there was evidence that the pitch, key, rhythm, melodic shape, harmony, musical sentences and context are different, Justice Jacobson found that there was nonetheless a reproduction of a substantial part of Kookaburra in Down Under. This is not to say that Kookaburra amounted to a substantial part of the pop song.

Musicologists of the utmost fame were called to give evidence. In one corner, for Larrikin, was Dr Andrew Ford, a leading musical voice on the ABC. In the other corner was Martin Armiger, the head of screen composition at the Australian Film Television and Radio School. It was all highly technical stuff, but in the end largely a matter of interpretation.

Both pieces of music evoke quintessential Australianness. On the one hand gum trees, kookaburras and gayness. On the other Vegemite, ''fried out'' Kombis, koalas and beer. All that seems to be missing are corks on Akubras.

The truth is that all creative endeavour involves a degree of borrowing, lifting, and plundering. The artistic process is a constant process of altering, refining and reinterpreting something that someone else did first.

Where did Miss Sinclair's idea come from? Were bits subconsciously snaffled from other poets? It seems odd to suggest that something can be utterly original. Certainly Men At Work acknowledged that they drew inspiration from Barry Humphries's character Barry McKenzie and his stereotypical Aussieness.

Fortunately, there is growing awareness of the downside of an overly protective view of intellectual property and its ''locking up'' of ''original'' ideas and research. It has the potential to stifle much scientific and creative endeavour.

While one judge was squeezing tight the copyright regime, another judge of the same court on the same day was letting it all hang out.

Justice Dennis Cowdroy rejected claims by a huge global clutch of film and television studios that Australia's third-biggest internet service provider, iiNet, was infringing their copyright by allowing its customers to download movies from the internet.

As the judgment stands, this is a significant decision. The movie industry was anxiously hanging on the outcome; now it's back to the drawing boards and no doubt an appeal.

So ISPs are not obliged to police their customers' copyright infringements. This is the case even where the ISP has been notified of customers' alleged infringement and doesn't disconnect them.

Maybe the applicants were suing the wrong entity. The open source file-sharing software that allows this downloading, which is called BitTorrent, came in for a lot of discussion in the proceedings and it's clear that without BitTorrent none of this private extraction of movie titles would be possible.

What the applicants, led by an outfit known as the Australian Federation Against Copyright Theft, contended was that this was a big setback for the 50,000 or so people employed in the Australian film industry.

That sounds like an understandable bit of special pleading, but what it does suggest is that the movie industry has its finger in a very leaky dyke as it clings to the traditional distribution model.

In its heyday the movie studios, the distributors and exhibitors formed one of the most ruthless enforcers of a cartel structure that the world of anti-competitive conduct has seen.

Things have moved on a little bit since then and they have a long way to move still.

The movie industry is in the same position that the music people were in before they got into bed with iTunes and Apple.

All the great media industries will have to find ways to work with the new modes of distribution. To work against them ultimately will spell ruin. This applies not only to movies, but to books, newspapers and magazines. It doesn't necessarily mean an end to 50,000 jobs at all. It could mean selling titles more cheaply to more people in different ways that expand employment.

Of course, the lawyers won't be out of a job. There is the smell of appeal in the air, with ultimately the High Court having to grapple with the new, new world."

British Online Copyright Laws Draw Debates; New York Times, 3/4/10

Nick Bilton, New York Times; British Online Copyright Laws Draw Debates:

"An article published on Thursday in, The Guardian, discusses a debate taking place in the British Parliament around a new “digital economy bill.”

One amendment in particular is stirring a lot of discussion about its impact on content online. The Guardian writes:

The new proposal – which was passed in the House of Lords by 165 votes to 140 – gives a high court judge the right to issue an injunction against a Web site accused of hosting a “substantial” amount of copyright infringing material, potentially forcing the entire site offline.

Critics say the major problem with this amendment is that a judge could shut down a Web site because of copyright infringement, even if the site’s manager didn’t put the content online.

What is left unanswered is how a company can be held accountable for every piece of content placed on its site. Many critics of this bill and others in Europe say it is most likely to result in the stifling of creativity, innovation and free speech. In the United States, the Digital Millennium Copyright Act offers some protection against liability to Internet service providers and Web sites that host copyrighted material uploaded by third parties.

There are similar tensions over Internet content and privacy elsewhere in Europe. Last week the Italian court held three of Google’s top executives accountable for a defamatory video placed on YouTube by teenagers. And the French parliament approved a recent bill that will crack down on Internet piracy by banning people from the Web if they are caught downloading copyrighted content more than three times.

When it comes to the Italian ruling in the YouTube case, Google has argued that it can’t possibly police every piece of content entering its Web site. Every minute on YouTube there are over 20 hours of video uploaded to the site, which ads up to nearly 30,000 hours of video a day. Google, it can be argued, might have the resources to hire thousands of people needed to view every video. But every other video, image, music and storage Web site would also have to monitor its content.

Monitoring that content is financially, and probably physically, impossible.

Some also argue that strict legal cases, including the latest British laws, would deter some companies from operating within these countries for fear that the potential legal costs could outweigh the returns."

Saturday, March 6, 2010

Publishing: The Revolutionary Future; New York Review of Books, 3/11/10

Jason Epstein, New York Review of Books; Publishing: The Revolutionary Future:

"The transition within the book publishing industry from physical inventory stored in a warehouse and trucked to retailers to digital files stored in cyberspace and delivered almost anywhere on earth as quickly and cheaply as e-mail is now underway and irreversible. This historic shift will radically transform worldwide book publishing, the cultures it affects and on which it depends. Meanwhile, for quite different reasons, the genteel book business that I joined more than a half-century ago is already on edge, suffering from a gambler's unbreakable addiction to risky, seasonal best sellers, many of which don't recoup their costs, and the simultaneous deterioration of backlist, the vital annuity on which book publishers had in better days relied for year-to-year stability through bad times and good. The crisis of confidence reflects these intersecting shocks, an overspecialized marketplace dominated by high-risk ephemera and a technological shift orders of magnitude greater than the momentous evolution from monkish scriptoria to movable type launched in Gutenberg's German city of Mainz six centuries ago.

Though Gutenberg's invention made possible our modern world with all its wonders and woes, no one, much less Gutenberg himself, could have foreseen that his press would have this effect. And no one today can foresee except in broad and sketchy outline the far greater impact that digitization will have on our own future. With the earth trembling beneath them, it is no wonder that publishers with one foot in the crumbling past and the other seeking solid ground in an uncertain future hesitate to seize the opportunity that digitization offers them to restore, expand, and promote their backlists to a decentralized, worldwide marketplace. New technologies, however, do not await permission. They are, to use Schumpeter's overused term, disruptive, as nonnegotiable as earthquakes."

Bogus Copyright Claim Silences Yet Another Larry Lessig YouTube Presentation; TechDirt, 3/2/10

Mike Masnick, TechDirt; Bogus Copyright Claim Silences Yet Another Larry Lessig YouTube Presentation:

"Nearly a year ago, we wrote about how a YouTube presentation done by well known law professor (and strong believer in fair use and fixing copyright law), Larry Lessig, had been taken down, because his video, in explaining copyright and fair use and other such things, used a snippet of a Warner Music song to demonstrate a point. There could be no clearer example of fair use -- but the video was still taken down. There was some dispute at the time as to whether or not this was an actual DMCA takedown, or merely YouTube's audio/video fingerprinting technology (which the entertainment industry insists can understand fair use and not block it). But, in the end, does it really make a difference? A takedown over copyright is a takedown over copyright.

Amazingly enough, it appears that almost the exact same thing has happened again. A video of one of Lessig's presentations, that he just posted -- a "chat" he had done for the OpenVideoAlliance a week or so ago, about open culture and fair use, has received notice that it has been silenced. It hasn't been taken down entirely -- but the entire audio track from the 42 minute video is completely gone. All of it. In the comments, some say there's a notification somewhere that the audio has been disabled because of "an audio track that has not been authorized by WMG" (Warner Music Group) -- which would be the same company whose copyright caused the issue a year ago -- but I haven't seen or heard that particular message anywhere.

However, Lessig is now required to fill out a counternotice challenging the takedown -- while silencing his video in the meantime:

While you can still see the video on YouTube, without the audio, it's pretty much worthless. Thankfully, the actual video is available elsewhere, where you can both hear and see it. But, really, the fact that Lessig has had two separate videos -- both of which clearly are fair use -- neutered due to bogus copyright infringement risks suggests a serious problem. I'm guessing that, once again, this video was likely caught by the fingerprinting, rather than a direct claim by Warner Music. In fact, the issue may be the identical one, as I believe the problem last year was the muppets theme, which very, very briefly appears in this video (again) as an example of fair use in action. But it was Warner Music and others like it that demanded Google put such a fingerprinting tool in place (and such companies are still talking about requiring such tools under the law). And yet, this seems to show just how problematic such rules are.

Even worse, this highlights just how amazingly problematic things get when you put secondary liability on companies like Google. Under such a regime, Google would of course disable such a video, to avoid its own liability. The idea that Google can easily tell what is infringing and what is not is proven ridiculous when something like this is pulled off-line (or just silenced). When a video about fair use itself is pulled down for a bogus copyright infringement, it proves the point. The unintended consequences of asking tool providers to judge what is and what is not copyright infringement lead to tremendous problems with companies shooting first and asking questions later. They are silencing speech, on the threat that it might infringe on copyright.

This is backwards.

We live in a country that is supposed to cherish free speech, not stifle it in case it harms the business model of a company. We live in a country that is supposed to encourage the free expression of ideas -- not lock it up and take it down because one company doesn't know how to adapt its business model. We should never be silencing videos because they might infringe on copyright.

Situations like this demonstrate the dangerous unintended consequences of secondary liability. At least with Lessig, you have someone who knows what happened, and knows how to file a counternotice -- though, who knows how long it will take for this situation to be corrected. But for many, many, many other people, they are simply silenced. Silenced because of industry efforts to turn copyright law into something it was never intended to be: a tool to silence the wider audience in favor of a few large companies.

The system is broken. When even the calls to fix the system are silenced by copyright claims, isn't it time that we fixed the system?"

UCLA Will Resume Streaming Video After Legal Dispute; Chronicle of Higher Education, 3/3/10

Jill Laster, Chronicle of Higher Education; UCLA Will Resume Streaming Video After Legal Dispute:

"The University of California at Los Angeles has restored its streaming video service about two months after temporarily suspending the service amid complaints from an educational-media trade group.

The Association for Information and Media Equipment told UCLA in the fall that the university had violated copyright laws by letting instructors use the videos, some of which were full-length productions. UCLA decided that beginning this semester it would suspend the password-protected video-streaming service, available only to students in specific classes.

UCLA announced Wednesday that it will restart streaming of instructional content. The university hopes material will be back up by the spring quarter, which begins March 29. L. Amy Blum, senior campus counsel for UCLA, says the university wants to take steps to ensure that faculty members explicitly say why they are using the copyrighted material.

Current copyright law allows exceptions for research and teaching, including permitting instructors to use audiovisual material in face-to-face courses. The university believes it is protected by those exceptions and the Teach Act, which allows limited use of copyrighted materials for online education.

The information association, or AIME, argues those exclusions do not apply. UCLA and the association had discussions to try to resolve the situation, but the university made the decision to begin using its video-streaming service again independently.

"The message that UCLA sent AIME and all its members is that they and literally every other university have every right to buy a single copy of a video and stream it to an unlimited number of students forever without permission or compensation to the creator," said the association's counsel, Arnold P. Lutzker, in a statement to The Chronicle. "Given that message, AIME members will retain their right to move against UCLA and others that we are investigating."

Mr. Lutzker declined further comment on other institutions the trade group might be investigating.

UCLA spends about $45,000 each year on instructional media and began converting faculty- requested titles to a streamable format in 2005.

Robin L. Garrell, a UCLA chemistry professor and chair of the Academic Senate, said it is too soon to tell if faculty members who use videos will change their syllabi to again include streaming videos. But she said the ability to use streaming videos has been beneficial for students, who might have trouble reaching the university's media lab at a specific time set to view materials.

"As you can imagine, in Los Angeles, a five-mile commute might be a one-hour commute. So this is really important for our students, so they can manage their time," Ms. Garrell said."

The Google Book Search Case: March Madness Edition; Chronicle of Higher Education, 3/5/10

Jennifer Howard, Chronicle of Higher Education; The Google Book Search Case: March Madness Edition:

"The February 18 fairness hearing on the revised settlement in the Google Books lawsuit has come and gone, and the world now waits for word from Denny Chin, the federal judge in charge of the case. It could be a long wait. At the Association of American Publishers meeting held in Washington this week, there was talk that we might not hear from the judge for a couple of months. (He could issue a ruling anytime, of course.)

One question on the minds of everyone following the settlement is : What happens after the judge rules? Jonathan Band, a specialist in technology law and policy, has created a nifty chart of possible paths the settlement might take, depending on what Judge Chin decides. Called "GBS March Madness: Paths Forward for the Google Books Settlement," the chart lays out a many-branched tree of appeals or litigation, all the way up to the Supreme Court.

In a note, Mr. Band points out that even a chart as complex as his does not lay out all the possible twists and turns the case could still take. "For example, it does not mention stays pending appeals nor whether litigation would proceed as a class action," he writes. And it doesn't talk about why Judge Chin might reject or accept the deal, or whether Congress might step in at some juncture.

"In short, the precise way forward is more difficult to predict than the NCAA tournament," Mr. Band observes."