Sunday, May 30, 2010

What Would Happen To Marvel If The Kirbys Won?; SpinOff Online, 5/30/10

Graeme McMillan, SpinOff Online; What Would Happen To Marvel If The Kirbys Won?:

"Disney’s legal memo supporting Marvel’s position against the heirs of Jack Kirby this week got me thinking. Not, necessarily, about the legal positions adopted by all parties involved, but more along “What If” lines (Somewhat fittingly). Namely, what if Kirby’s heirs won?

For those coming in late, the heirs of comic creator Jack Kirby are suing Marvel and Disney to terminate the copyrights of Fantastic Four, Iron Man, Ant-Man, the X-Men, The Incredible Hulk, The Avengers, Thor, Nick Fury, Spider-Man, Rawhide Kid and material created between 1958 and 1963 for Journey Into Mystery, Strange Tales, Tales of Suspense, Amazing Adventures and Tales To Astonish, a suggestion that both Marvel and Disney, unsurprisingly, take issue with. But what if, somehow, they got what they wanted?

Marvel, of course, would be in trouble, not only losing the ability to publish a large percentage of their line (Even assuming that non-Kirby characters and series spun out from the Kirby series – X-Factor, War Machine, and so on – would remain with Marvel) but also having to surrender the rights to almost every active movie project at multiple studios (No surprise, perhaps, that Marvel is moving forward with a movie based on Brian K. Vaughan’s Runaways, which will not be affected by any ongoing lawsuits coming from the Kirby heirs’ demands), effectively – if, presumably, only temporarily – wiping them out as a multimedia power altogether.

Perhaps more worryingly, what would Disney do with a Marvel devoid of the reasons it bought the company in the first place? It wouldn’t just be that the big name characters would be gone, but a large chunk of the mythology responsible for the remaining characters would be missing as well (Remove the Avengers, FF and X-Men from the Marvel Universe, and what are you really left with?) – Would Disney really care about a company whose flagship characters are Luke Cage and Captain Marvel, or care enough to not think about offloading the stripped publisher to someone else?

All of this assumes, of course, that – were they to gain the rights to all of the characters and concepts they’re asking for – the Kirbys wouldn’t just license them back to Disney/Marvel for some likely-to-be-undisclosed sum, which is admittedly a massive assumption; no matter how bitter the legal arguments may get, it would be within both parties’ best interests to not completely burn bridges or destroy the possibility of working together at a later date. I mean, aside from DC/Warners, who else would have the ability (read: money) to offer the Kirbys as good an offer as Marvel/Disney, and from Marvel’s point of view, they get to keep old material in print and not require a Crisis-style continuity reboot or some similarly inventive workaround. It’s these two last points that makes me think that it’s unlikely that this subject will get resolved in any way other than a generous settlement before it ends up in court – It’s in both parties’ ultimate best interests, after all – as much as the vulture in me longs for a long and bloody legal battle full of disclosures and stunning revelations.

But, just imagine – What do you think would happen if Marvel didn’t have the Kirby creations to play with?"

China's Plagiarism Problem; Forbes, 5/26/10

Peter Friedman, Forbes; China's Plagiarism Problem:

"Plagiarism and the lack of academic integrity it engenders are intricately connected to the larger debate about intellectual property rights (IPR) in China and the government's promoted idea of a harmonious society to support stability. Western countries, either unilaterally or through the WTO, continually threaten to impose sanctions against China for piracy of products ranging from movies and computer software to semiconductors. IPR are hard to enforce from without, and only gain traction when there is an indigenous respect for such rights.

Running counter to IPR enforcement is the idea of community, which is very strong in China. Harmony is a historically important value in Chinese society, vigorously marketed by the Communist government to encourage stability. A strong sense of community promotes both stability and harmony, but subsumes the individual. The powerful force of community that envelopes the individual begets the idea that all parts of the community can be used by the members of that community any way that they see fit, including ideas. In this paradigm it would be absurd for an individual to lay claim to an idea and receive credit from other individuals for that idea when the community is supposed to be paramount to the individual. IPR cut across the idea of community and the ownership of ideas because they create a competitive marketplace of individual ideas, which could ultimately undermine the stability and harmony of the community.

This explanation may seem abstract, but taking this explanation and applying it to a university classroom illuminates why plagiarism will remain a serious problem for China."

Saturday, May 29, 2010

WIPO Proposals Would Open Cross-Border Access To Materials For Print Disabled; Intellectual Property Watch, 5/28/10

Kaitlin Mara, Intellectual Property Watch; WIPO Proposals Would Open Cross-Border Access To Materials For Print Disabled:

"Negotiators trying to find a solution for the world’s print disabled, who have said copyright law is limiting their access to an already meagre supply of reading material in usable formats, began discussing a possible UN recommendation this week. But the print disabled and their strongest supporters have said such a recommendation – which would not be legally binding – would fall short of meeting their needs.

The critical issue is the ability to trade accessibly formatted books across country borders, which is currently restricted by copyright law. The World Blind Union drafted a treaty text, which was submitted a year ago to the World Intellectual Property Organization by Brazil, Ecuador and Paraguay.

The United States this week submitted draft proposal for a consensus instrument [pdf] to WIPO, where these discussions are being held. This instrument has a list of recommendations for governments on national laws to aid the import and export of accessible books.

The US delegation told Intellectual Property Watch that their consensus instrument was intended to be a “faster” solution, and is not mutually exclusive with – and indeed could be a step towards – the treaty that has been called for.

At the last meeting of the WIPO Standing Committee on Copyright and Related Rights in December 2009, some delegations – notably the European Union – refused to discuss a possible treaty, saying more facts were needed (IPW, WIPO, 22 December 2009).

At the December meeting, it was decided to hold an open consultation on the issues – the 27 May meeting – before the next SCCR meeting, scheduled for 21-24 June. Also, on 28 May, WIPO is discussing aspects of a proposed treaty to protect audiovisual performances.

But the governments behind the treaty proposal and civil society representatives of the print-disabled community expressed their doubts about the US’s intermediary solution.

“Our initial reaction… is that [the US proposal] falls short of our objectives, at least in a vital element – the format – for it is not a legally binding instrument,” Brazil, on behalf of these countries, said in a statement, available hereStatement Brazil VIP [doc]. They added they needed more time to fully analyse it.

The US proposal fails in several ways, Brazil said. Among them: it does not create a legal obligation for countries to make exceptions, meaning if either an exporting or importing country lacks an exception, the transfer cannot be made; it discriminates against different kinds of media and does not seem to cover works shared online, it does not address the potential need to circumvent technological protection measures or contractual restrictions on needed exceptions, and doesn’t express the specific needs of developing countries.

“This is far from what we need,” Chris Friend, chair of the World Blind Union Global Right to Read Campaign told Intellectual Property Watch, saying it would just lead to “more procrastination” rather than more speed.

Brazil, Ecuador, Mexico and Paraguay also submitted this week a proposed timetable, available here[pdf], for the adoption of a treaty for the visually-impaired that would see its completion in the spring of 2012.

If speed is desired, members might support this timetable proposal, said Dan Pescod, vice chair of the Right to Read Campaign.

Voluntary processes are unacceptable, said Jace Nair, the National Executive Director of the South African National Council for the Blind. “We have been depending on a voluntary process from rights holders for decades… it hasn’t helped.”

Pescod added that the World Blind Union respects the needs of rights holders and the copyright system, but added a “similar level of seriousness” is needed “to address this issue.” If rights holder’s needs are immediately moved to a treaty, why when it comes to disabled people’s needs are we not able to talk about the same thing, he asked. There is not an ACTA-style [Anti-Counterfeiting Trade Agreement] recommendation; it is a treaty, he said."

ABA Journal Highlights How The Music Industry Is Thriving And How Copyright Might Not Be That Important; TechDirt, 5/28/10

Mike Masnick, TechDirt; ABA Journal Highlights How The Music Industry Is Thriving And How Copyright Might Not Be That Important:

"Michael Scott points us to one of the best summaries I've seen of the state of the music business today -- published in the ABA Journal. It's an incredibly balanced piece, that really does carefully present both sides of the story on a variety of issues, and presents actual evidence, which suggests the RIAA is blowing smoke on a lot of its claims. The piece kicks off by highlighting that the music industry appears to be thriving, and then noting that it's not the same as the recording industry, which has been struggling.

Much of the piece does present the RIAA's viewpoint on things, such as the idea that the legal strategy the labels have taken has been a "success." However, it follows it up by questioning what kind of success it has been when more people are file sharing and more services are available for those who want to file share. From there it segues into a discussion on "three strikes" and ACTA, which includes the jaw-dropping claim from an RIAA general counsel that "three strikes" was "never even put on the table."

I've heard from numerous ISP folks who say that's not true at all. However, the article does a good job (gently) ripping apart the RIAA's claims, with evidence to the contrary, and does a beautiful job digging deep into ACTA to show how the text might not explicitly require three strikes, but is worded in such a way as to make it hard to qualify for safe harbors without implementing three strikes.

The latter part of the article then focuses on how the music industry really is booming, and how more people are making music, and there are lots of opportunities for musicians to do well these days, even without relying on copyright law. The arguments made (and the people and studies quoted) won't be new to regular Techdirt readers, but it really is a very strong piece, targeted at lawyers (many of whom may not have realized some of these details). For example:

If the ultimate goal is to promote the creation of new works, then perhaps it isn't really necessary to take stronger legal actions against illegal file-sharing because the evidence does not suggest that it is hindering the creation of new works by musicians I certainly don't agree with everything in the article, and there are a few statements from the RIAA folks that could have been challenged more directly. But, on the whole, it's definitely one of the better articles I've seen looking at the music industry from the perspective of the legal profession that doesn't automatically drop into the "but we must protect copyrights!" argument from the outset."

Digital Economy Act: ISPs told to start collecting filesharers' data next year; (London) Guardian, 5/28/10

Richard Wray, (London) Guardian; Digital Economy Act: ISPs told to start collecting filesharers' data next year: Ofcom releases draft code on regime of warnings to illegal filesharers, labelled 'bureaucratic dog's breakfast' by TalkTalk:

"The UK's largest internet service providers will start collecting the details of customers who unlawfully download films, music and TV programmes early next year, in order to send them warning letters under a code of practice proposed today by the media regulator Ofcom.

The draft Ofcom code was immediately denounced by the UK's second largest ISP as a "bureaucratic dog's breakfast".

Any internet user who receives three letters in the space of 12 months faces having their personal details handed over to the owner of the copyrighted material so they can be sued.
The draft code of practice, which Ofcom was ordered to draw up by the controversial Digital Economy Act, was immediately attacked by TalkTalk, the UK's second largest ISP.

"Ofcom's draft code of practice is a valiant attempt to implement the Digital Economy Act's proposals, but we think it has the potential to turn into a bureaucratic dog's breakfast," said a TalkTalk spokesman. "As the code stands, millions of customers would be at risk of being falsely accused of copyright infringement, being falsely put on to an 'offenders' register' and so potentially taken to court. There is little in the draft code about protecting customers from receiving misleading or bullying letters."

TalkTalk is also worried about the lack of consideration of data protection issues and there is little in the draft code about how the regulator will ensure customers can access fair and just appeals. "The draft code exempts smaller ISPs and mobile operators, which seems arbitrary and could lead to market distortion," the spokesman added. "Finally, the way Ofcom has designed the rules may kill off public Wi-Fi networks."

Consumer and citizens' rights groups, meanwhile, called for the fair treatment of customers accused of copyright infringement using filesharing networks.

"Consumers face considerable confusion while Ofcom tries to work out how to implement new laws under the Digital Economy Act," said Robert Hammond, head of post and digital communications at Consumer Focus. "The aim should be to encourage suspected copyright infringers to use legal alternatives and achieving this rests on the process of notification being seen by consumers as fair and helpful."

Jim Killock, executive director of the Open Rights Group warned that "letters being sent out could cause a lot of worry and fear". "People may feel they are under surveillance," Killock said.

"This is another extremely rushed process, forced by the Digital Economy Act's absurd timetables. There are huge unanswered questions, not least whether innocent people will have to pay to appeal," he added.

The code of practice applies to ISPs with over 400,000 customers, meaning that it will initially apply to BT, TalkTalk, Virgin Media, Sky, Orange, O2 and the Post Office, who together control 96% of the market. Ofcom, however, will review unlawful filesharing activity on a quarterly basis and can extend the code to cover smaller ISPs and the mobile phone companies if it spreads.

Those quarterly reports will also be used to see whether the letter writing campaign is leading to a reduction in illegal filesharing. If after a year it does not appear that the code is having any effect on the use of such services as peer-to-peer networks, the culture secretary, Jeremy Hunt, can demand the introduction of so-called technical measures including severing the broadband connections of persistent offenders.

Sending letters to warn persistent unlawful file-sharers that they face the threat of court action has been tested in the UK before, but the code is designed to automate and standardize the process across all the major ISPs.

The code, contained in a 74-page consultation document, sets out the evidence which the music and film companies must collect about individual infringements of their copyright when making a copyright infringement report to an ISP. Content companies must make their requests to ISPs within 10 working days of them gathering the information about a breach of copyright. It then covers how the ISP must then use that information to identify the specific customer involved and send them a letter warning them that their activities have been noticed and they are laying themselves open to court action. The letter will also name the copyright owner and give details of how they can appeal against the ruling that they have infringed copyright.

The code allows for three notification letters – each at least a month apart – to be sent to a user, before their details are placed on a copyright infringement list. All three letters must be sent with a 12 month period, as ISPs are required to delete any notifications after a year.

The copyright infringement list, which has anonymous details of individual users, can then be requested by the copyright owner and used to launch a court action to get the user's name and address in order to sue them. The three letters can be generated by copyright infringement reports from three different copyright owners. All three can then request access to the copyright infringement list held on that user, to be received within five days – though they will only see details of how that individual infringed their copyright.

The draft code, which Ofcom is consulting on until 30 July, is one of three consultations the regulator is launching as a result of the Digital Economy Act. In July it will look at how the code will be enforced before looking at how the costs of the scheme will be shared in September.

The regulator also has to set up an independent appeals body and decide how the costs of appeals should be apportioned. In its consultation document Ofcom said a successful appellant may get compensation and costs. It added "the costs of the appeals body, and the possibility that a subscriber may have to pay a fee, was raised in the government's consultation on the cost sharing arrangements" but then makes no suggestion that subscribers should pay if their appeal fails.

On the issue of costs, TalkTalk said that "copyright owners are the only ones that will benefit from this system, so unless the government decides that these companies should fully reimburse ISPs' costs, broadband customers will in effect be forced to subsidise the profits of large music and film companies".

Ofcom hopes to have the code, which needs European Commission clearance, in place by 8 January and is accepting responses to this consultation until 30 July.

In response to the draft code, the Communications Consumer Panel, Consumer Focus, Which?, Citizens Advice and the Open Rights Group have banded together to produce a set of principles they believe will ensure that the new rules on online copyright infringement properly protect consumers.

Their principles include that there should be sound evidence of wrongdoing before any action is taken against a consumer; that comprehensive and consistent information needs to be provided to all suspected repeat infringers and this should be written in plain English; that consumers must have the right to defend themselves; and that there is an independent and transparent appeals process is essential, at no cost to the customer."

Win a brand new Nikon D5000 camera worth over £400; (London) Guardian, 5/28/10

(London) Guardian; Win a brand new Nikon D5000 camera worth over £400: Each month, Camera club gives a Guardian photographer – and you – a monthly assignment to complete. We want you to pick your favourite image from your assignment shoot and email it to us. The best of the bunch will win a Nikon D5000 DSLR:

"7. The closing date and time of the Competition is 11.59pm on Thursday 24 June 2010. Entries received after that date and time will not be considered.

8. You own the copyright to your Competition entry as its author.

9. By submitting an entry to the Competition, You give GNM:

a. permission for your entry to be published on and grant GNM a non-exclusive, royalty-free, worldwide licence to republish your Competition entry in electronic format and hard copy for purposes connected with the Competition; and

b. the right to use your name and town or city of residence for the sole purpose of identifying You as the author of your entry and/or as a winner of the Competition.

GNM will use reasonable efforts to assert the entrant's moral rights in the photograph. However GNM may cut, edit, crop or arrange the entry as it sees fit.

10. Your entry must be your own work, must not be copied, must not contain any third-party materials and/or content that you do not have permission to use and must not otherwise be obscene, defamatory or in breach of any applicable legislation or regulations. If we have reason to believe your entry is not your own work or otherwise breaches this paragraph 10, then we may not consider it. You warrant and undertake that photos submitted will not infringe intellectual property, privacy or any other rights of any third party. You must ensure that any person or persons whose image is used in an entry has given valid consent for the use of their image or has waived any rights they may have in the image submitted. Where such person is under 16, the consent of that person's parent or guardian must be obtained. Failure to adequately demonstrate such consent to the satisfaction of GNM may result in the entrant's disqualification and forfeiture of any prize."

Tourism puts copyright in the picture; Sydney Morning Herald, 5/26/10

Michelle Griffin, Sydney Morning Herald; Tourism puts copyright in the picture:

"ARTS law organisations are campaigning against the terms of Tourism Australia's campaign, ''Nothing Like Australia'', claiming the fine print lets the government agency license and sell photographs without paying, crediting or informing creators.

''This is the worst example of any kind of arts competition practice that we've seen,'' says the Arts Law Centre's chief executive, Robyn Ayres.

Tourism Australia originally claimed copyright over all 30,000 personal snaps submitted to its international campaign. The winners (to be announced on June 30) will get travel vouchers ($25,000 and $5000).

After complaints from the Arts Law Centre, the National Association for the Visual Arts and the Australian Copyright Council, conditions were amended to allow entrants to make (and perhaps to sell) copies of their own images.

But in a letter sent to the three arts organisations last week, Tourism Australia said it still required perpetual rights to use and license the images to ''approved co-operative partners such as state tourism organisations and industry partners''.

It also retained a clause requiring entrants to waive moral rights, such as attribution, arguing it wouldn't be ''feasible'' to guarantee photo credits.

Tourism Australia declined to comment, but has said it won't use the photos as an image database.

Entrant Cathy Raeburn, of Jamieson, Victoria, is unhappy that her photo of two girls cuddling wombats at her wildlife refuge might be sold.

''I don't think I'd like that, if they were selling it,'' she said. ''I only put the photo in to show we've got more animals than just kangaroos. I didn't think to look at the copyright when I entered.''"

U.S. government sues operator of pirate comics website;, 5/29/10

Kevin Melrose,; U.S. government sues operator of pirate comics website:

"The U.S. Department of Justice on Thursday filed a lawsuit against Gregory Steven Hart, who operated HTMLcomics and five similar pirate websites.

The complaint asks for a federal judge to order Hart to forfeit the domain names of the sites -- among them,, and -- which the government says were used to commit criminal copyright infringement.

HTMLcomics hosted more than 100,000 copyrighted titles, from Batman and The Amazing Spider-Man to Hellboy and Dilbert. Hart had asserted that because the comics couldn't be downloaded, the website was legal and "like a lending library." He reportedly told his attorney the site received up to 500,000 hits a day.

In April the FBI searched Hart's home in Tampa, Florida, seizing records, hard drives, computers and DVDs containing copyrighted images. The raid followed an investigation spurred by a consortium of publishers and copyright owners, including Marvel, DC Comics, Dark Horse, Bongo Comics, Archie Comics, Conan Properties International, Mirage Studios and United Media.

Hart claimed as recently as December that he had spoken with Marvel representatives, and "all is good." "Our approach is not distribution," he wrote on a comics forum, "hence the reason we've been around for over a year, and will be around for a long time to come. Google is using our site as a reference of how to create an online library, and not violate copyright laws."

However, according to the lawsuit, Marvel and other companies sent letters to Hart demanding that he remove their publications from the site. Curiously, Hart reportedly said that if no publisher agreed to a revenue-sharing arrangement, he would continue to operate the site without charging users.

At the time of the HTMLcomics shutdown, Hart had more than 6 million pages from some 5,700 separate series."

Judge Urges Resolution in Use of Obama Photo; New York Times, 5/28/10

Dave Itzkoff, New York Times; Judge Urges Resolution in Use of Obama Photo:

"A federal judge on Friday encouraged the parties involved in a dispute over Shepard Fairey’s “Hope” poster of Barack Obama, which is based on an Associated Press photograph, to come to a resolution, suggesting that The A.P. was likely to prevail in court.

Mr. Fairey filed suit against The A.P. last year seeking a judge’s declaration that his poster was protected from copyright infringement claims. The A.P. then filed an infringement suit against Mr. Fairey, who has acknowledged the poster was based on a photograph of Mr. Obama taken in 2006 by Mannie Garcia, a freelance photographer.

On Friday, Judge Alvin K. Hellerstein of the United States District Court for the Southern District of New York said in a hearing that “whether it’s sooner or later, The Associated Press is going to win” the case.

Though Mr. Garcia has said that he was not working for The A.P. when he took the photograph, lawyers for The A.P. presented evidence at the hearing, including human resources forms and other documents, that Mr. Garcia was employed by the news service at that time and that the photograph was a work for hire.

Mr. Fairey admitted last year that he lied about which photograph from The Associated Press he used to create his poster, and covered up evidence to substantiate his lie.

On Friday, Geoffrey S. Stewart, a lawyer for Mr. Fairey, said, “Mr. Fairey would of course be happy to resolve his differences on an amicable basis with The A.P., but it does not appear The A.P. is interested in it.”

Dale Cendali, a lawyer for The A.P., said, “The A.P. was very encouraged by the hearing today and remains committed to vindicating the rights of photojournalists everywhere.”

George Carpinello, a lawyer for Mr. Garcia, had asked at the hearing to be removed from representing the photographer, but said in a phone interview that he would stay on and hoped to meet with The A.P. next week."

Thursday, May 27, 2010

Disney joins Marvel in copyright fight with Kirby family;, 5/27/10

Kevin Melrose,; Disney joins Marvel in copyright fight with Kirby family:

"The Walt Disney Co. has waded into the legal battle over many of Marvel's best-known characters, filing a memo in support of the publisher's efforts to dismiss copyright claims by the heirs of Jack Kirby.

Marvel sued the Kirby children in January, seeking to invalidate notices sent almost four months earlier to terminate copyrights to such characters as the Avengers, the Fantastic Four, Thor, the Incredible Hulk, the X-Men, Iron Man and Spider-Man. The Kirby family responded in March by suing Marvel and its new parent company Disney.

In the Disney memo, filed on Monday, the media giant asks the court to delay to delay ordering an accounting of profits from the properties Kirby created or co-created, arguing that the copyright claims of his heirs haven't been validated. Disney also seeks to dismiss the Kirby family's claims about unreturned original artwork and lack of credit in The Incredible Hulk and X-Men Origins: Wolverine films.

You can read the full complaint at THR, Esq."

Tuesday, May 25, 2010

Conference explores Canadian side of Google book settlement; Financial Post, 5/25/10

Julius Melnitzer, Financial Post; Conference explores Canadian side of Google book settlement:

"The Google book settlement has been controversial, but so far most of the debate has focused on the US. The Centre for Innovation Law and Policy hopes to start correcting this with a one-day conference on Friday, May 28 that will explore the implications of the settlement for Canada. The conference is free but registration is required."

Monday, May 24, 2010

Mark Gorton, Man Behind the Music Service; New York Times, 5/24/10

New York Times; Mark Gorton, Man Behind the Music Service:

"Mark Gorton is a confident guy. He’s confident about his ideas. He’s confident about his enthusiasms. And he’s confident that his successes — like making money on Wall Street and promoting alternative transportation in New York — provide a record that backs him up.

But that confidence faces a new test, Joseph Plambeck writes in The New York Times. Two weeks ago, a federal judge ruled that he and the popular file-sharing service he created, LimeWire, were liable for copyright infringement and could be forced to pay up to $450 million in damages.

Mr. Gorton, 43, says he did not think it would come to this point. He thought that the record industry, sometime since the lawsuit was filed in 2006, would come to appreciate his vision for the future of LimeWire — a paid subscription service providing unlimited downloads of licensed songs — and want to join forces instead of continuing litigation...

The Recording Industry Association of America, the industry group that managed the lawsuit on behalf of 13 record companies, said it thought he had willfully skirted the law, motivated by the money generated by the millions of users of LimeWire. Total revenue increased to an estimated $20 million in 2006 from $6 million two years earlier, according to the court ruling, much of it from a paid service that allowed for faster downloads.

“He thought with his cleverness that he could get away with it,” Mitch Bainwol, the association’s chief executive, said. “He’s the Bernie Madoff of Internet crime. He was thumbing his nose at the rule of law to profiteer enormously.”...

“People have a short memory, and they’ve gotten caught up in the mythology of P2P’s being run by ne’er-do-wells and eye-patch pirates,” said Fred von Lohmann, a senior staff lawyer at the Electronic Frontier Foundation who has represented some of the file-sharing services in copyright cases. (Mr. Lohmann was named in the ruling as having given legal advice to the company about how to protect itself from liability.)

“LimeWire was not a fly-by-night operation,” he said...

Mr. Gorton says he has tried to take that same strategy to the record labels to explain the new service he is proposing.

“I tell them to think of Woodstock,” he said. “The first one was free, but it ended up making the industry a lot of money and was a huge success. The second and third ones were very expensive for fans and were failures.”

But before he can hope to make any progress with the labels on his paid service, he will need to get the lawsuit behind him. And given the heated rhetoric from Mr. Bainwol and the record association, the coming negotiations may not be easy.

At a minimum, the record association says, LimeWire needs to shut the current service and Mr. Gorton needs to pay for damages out of his own pocket. A status conference with Judge Wood is scheduled for June 7.

Mr. Gorton says he knows that the music industry needs to alter the behavior of a generation of people who have grown accustomed to getting their music free.

Still, he says that LimeWire has a relationship with that generation that can help make the change. And he says he remains optimistic that, in the end, his idea will triumph.

“I don’t want to be on my deathbed thinking that I kept a bunch of musicians from making money,” Mr. Gorton said. “I have a lot of work to do to get my karma scores up.”"

Talking Head Sues Charlie Crist; New York Times, 5/24/10

Ben Sisario, New York Times; Talking Head Sues Charlie Crist:

"The singer and former Talking Heads frontman David Byrne has sued Gov. Charlie Crist of Florida, saying that he used the Talking Heads’ song “Road to Nowhere” in a Senate campaign ad without permission. The song was used in an online video posted in January that attacked Marco Rubio, a Republican who is Governor Crist’s opponent for the seat that will be vacated this year by Mel Martinez. The governor, a longtime Republican, is now running as an independent.

The suit, which was filed on Monday in United States District Court in Tampa, and first reported by Billboard, accused Gov. Crist of copyright infringement and false endorsement, and seeks $1 million in damages. Mr. Byrne’s lawyer, Lawrence Iser, represented Jackson Browne in his suit against John McCain for using the song “Running on Empty” in a presidential campaign ad in Ohio in 2008; as part of a settlement, the Republican National Committee apologized to Mr. Browne and promised to seek artists’ approval when using their music in commercials.

“As an attorney and the former attorney general of Florida, Gov. Crist knows better,” Mr. Iser said in a statement. “A political candidate may not incorporate the artistry of musicians and a songwriter into a campaign commercial without getting a license.”

A spokeswoman for Governor Crist said he had no comment."

Thursday, May 20, 2010

[Documentary] When Copyright Goes Bad; YouTube via, 4/21/10

Cory Doctorow, YouTube via; [Documentary] When Copyright Goes Bad:

"Ben Cato Clough and Luke Upchurch's "When Copyright Goes Bad" (from Consumers International) is a great, 15-minute mini-documentary on what copyright can do, what it is doing, and what it needs to stop doing. Appearances by Fred Von Lohmann - Electronic Frontier Foundation; Michael Geist - University of Ottawa Law School; Jim Killock - Open Rights Group; and Hank Shocklee - Co-founder of Public Enemy."

Obama Reiterates Support For ACTA, As More People Point Out How Far ACTA Is From The Purpose Of Copyright; TechDirt, 5/20/10

Mike Masnick, TechDirt; Obama Reiterates Support For ACTA, As More People Point Out How Far ACTA Is From The Purpose Of Copyright:

"A few months back, President Obama publicly stood behind ACTA despite tons of concerns about it from the public. It's disappointing that as more and more concerns and problems with ACTA have been highlighted, Obama has not reconsidered. He still seems to be taking the position that "more copyright must be good, and ACTA therefore is good." That's a naive position. The group Open ACTA points us to a statement made by Obama in Mexico, concerning better trade relations with Mexico, where he again insists that ACTA is a key part of better trade relations:

Innovation and investment in technology and human capital are keys to sustained economic growth and competitiveness in both Mexico and the United States. The protection of intellectual property rights is essential to promote such innovation and investment. With this in mind, the Presidents charged their administrations to work together to formalize and expand the efforts of the existing bilateral Intellectual Property Rights Working Group. These efforts will include industry training (including of small and medium size enterprises); work between Mexican Institute of Industrial Property (IMPI) and the United States Patent and Trademark Office (PTO) to streamline patent reviews; and collaboration, training and increased intelligence sharing among law enforcement agencies to enforce intellectual property rights more effectively. The Presidents also reaffirmed their commitment to the negotiation of the Anti-Counterfeiting Trade Agreement and charged their administrations to conclude these negotiations soon.

But, this blind assertion that stricter copyright enforcement without key exceptions and consumer protections that actually contribute more value to the economy than copyright restrictions, isn't just wrong, it goes against the very purpose of copyright law.

Hephaestus points us to a submission to the Australian government, by the Australian Digital Alliance, that does a great job highlighting the negative impact of ACTA (pdf) and how it goes against basic copyright law:

"The text of ACTA does not reflect one of the most important objectives of copyright -- to ensure access to information for the benefit of society. Protecting creators to encourage continued innovation is only one half of the copyright equation, ACTA fails to recognise the dual purpose of copyright." The whole submission is worth reading, as it highlights all sorts of serious issues with ACTA and the impact it would have:

ACTA might have a negative impact on individuals as Internet citizens and as consumers of digital technologies because some of its requirements go beyond Australian law. ACTA will facilitate excessive damages payouts by mandating the controversial 'lost sale analysis' for the assessment of damages and encouraging punitive style statutory damages that set arbitrary amounts for infringement. ACTA will also broaden the scope of commercial scale infringement to criminalise purely private acts that occur in the homes of some Australians....

ACTA might have a negative impact on intermediaries that will damage Australia's digital economy by diminishing Internet innovation, the free flow of information and legitimate commerce. ACTA provides for the unqualified award of injunctions against intermediaries, which creates new rights with significant potential for abuse and cost implications for ISPs. ACTA defines where third party liability will be imposed, which is a highly controversial issue that requires the flexibility of being dealt with at a domestic level. ACTA will burden intermediaries with more onerous requirements for safe harbour protection that may encourage three strikes.

What's most frustrating about all of this is that it really does appear that many ACTA supporters are simply going by the boilerplate myth that "stronger copyright protection" is "good for society," without ever once bothering to understand the details and why such a statement isn't just wrong, but dangerous."

Axis of P2P Evil? Congress, RIAA call out six worst websites in the world; Ars Technica, 5/19/10

Nate Anderson, Ars Technica; Axis of P2P Evil? Congress, RIAA call out six worst websites in the world:

"This morning, the Congressional International Anti-Piracy Caucus held a press conference along with RIAA CEO Mitch Bainwol to call out the six worst websites in the world. Think of them as an "Axis of P2P Evil."

Who made the cut? The Pirate Bay, naturally. Canada's IsoHunt was no surprise. One-click download service RapidShare was less expected, as a German court ruled only two weeks ago that the site was not responsible for infringement by its users and that it had no duty to preemptively censor uploaded content.

More surprising were the last three sites: Ukraine's MP3fiesta, which operates like the now-shuttered; Luxembourg's, which bills itself as "the biggest community for black music in world!"; and Baidu, the Chinese search engine so popular, Google couldn't even make a dent in its ratings.

The IAPC is a bipartisan group of 11 senators and a huge number of representatives, and they are concerned that America's copyright industries are suffering at the hands of "lax or nonexistent enforcement by many foreign governments." That's why, they wrote in a recent letter (PDF), the Anti-Counterfeiting Trade Agreement (ACTA) is so important.

But look at that list of websites and services for a moment. What's missing? Grokster, Demonoid, Oink, Allofmp3, LimeWire, Napster, Newzbin, Mininova...

That's because the copyright industries have in fact been remarkably successful in court within the existing legal frameworks of both the US and foreign countries over the last few years.

Newzbin announced its own closure this week after a long legal fight, while LimeWire lost in a US federal court last week. Even the Pirate Bay's ISP had to stop hosting the site this week, and a Swedish court has already ruled against The Pirate Bay's administrators.

Hold your children close

Still, even with such tremendous victories behind it, the RIAA can't resist a spot of over-the-top rhetoric.

"The global challenge in the years to come will be to win the battle for a civilized Internet that respects property, privacy and security," said Bainwol. "An Internet of chaos may meet a utopian vision but surely undermines the societal values of safe and secure families and job and revenue-creating commerce. Shining the spotlight on these websites sends a vital message to users, advertisers, payment processors and governments around the world."

Yes, that's right: a Ukrainian website called "mp3fiesta" is threatening the safety and security of your family. And a good chunk of Congress wants to do something about it."

China and Canada among top on US piracy watch list; Sydney Morning Herald, 5/20/10

Chris Lefkow, Sydney Morning Herald; China and Canada among top on US piracy watch list:

"US legislators have accused Canada, China, Mexico, Russia and Spain of "robbing Americans" by failing to crack down on piracy of movies, music, videogames and other copyrighted works.

Theft of intellectual property in the five nations was at "alarming levels," the Congressional International Anti-Piracy Caucus said Wednesday, placing them at the top of the "2010 International Piracy Watch List" for the second year in a row.

The caucus, made up of 70 members of the US House of Representatives and Senate, said it was "greatly disappointed by their failure to make meaningful progress during the last year" in protecting copyrighted works.

"We are losing billions and billions of US dollars because of the lack of intellectual property protections," said Senator Orrin Hatch, a Republican from Utah. "These five countries have been robbing Americans."

"Unfortunately, the United States is on the wrong end of the greatest theft of intellectual property in the history of humankind," said Senator Sheldon Whitehouse, a Democrat from Rhode Island. "This must be stopped, and soon."

The bipartisan caucus, citing industry estimates, said global piracy costs US firms over 25 billion US dollars in lost sales annually.

The US legislators also released for the first time what they called a "list of notorious offenders" -- websites making available unauthorized copies of the works of US creators.

The websites singled out were China's Baidu, Canada's isoHunt, Ukraine's MP3fiesta, Sweden's Pirate Bay, Germany's Rapidshare and Luxembourg's RMX4U.

The caucus called on US trading partners to "take action against websites based within their borders whose business models are premised on delivering infringing content."

Mitch Bainwol, chairman and chief executive of the Recording Industry Association of America, which represents major record companies, said the "websites facilitate massive theft" and "undermine legitimate commerce."

"The question for us globally is 'Can we create a world in which the Internet becomes a place of order rather than a place of chaos?" he asked.

Representative Adam Schiff, a Democrat from California, said pressure needs to be brought to bear on US banks and credit card companies whose services are being used to pay for pirated material on "rogue websites."

"We not only have to put pressure on these countries that are tolerating piracy or encouraging piracy but we also have to put some pressure on companies here at home that are helping facilitate piracy," Schiff said. "We need to dry up that revenue stream as part of the attack on those sites."

"This includes companies like Visa and Mastercard that facilitate financial transactions on these sites," he said.

The caucus said Canada is a "leading host" of illegal file-sharing sites and its "enforcement record continues to fall short of what should be expected of our neighbour and largest trading partner."
"At one point in 2009, five of the world's top 10 illegitimate 'bit torrent' sites were registered, located, or operated out of Canada," it said.

In China, "copyright theft is viewed in some sectors of the economy as a legitimate strategy for Chinese competitiveness," the caucus said. "This must end."

Microsoft cited piracy as a major reason that the US technology giant's software revenue per personal computer purchase is 15 times greater in the United States than it is in China.

"We have a particular problem in China in our business, which is that piracy is sky high," Microsoft boss Steve Ballmer told a gathering of corporate chief executives on Wednesday.

Mexico is a leading source for illegal camcorder copies of US films, the caucus said, and "piracy of hard goods and unauthorized use of software also remain severe problems."

The caucus said Russia has made "inadequate progress in addressing Internet piracy" and needs to adopt "updated and uniform procedures for investigation and prosecution of copyright infringement."

As for Spain, the caucus said it hopes the Spanish government will move quickly to tackle peer-to-peer piracy. "Greater accountability and deterrence must be established in Spanish law," it said."

Drew Barrymore to direct another Wizard of Oz film; (London) Guardian, 5/19/10

Ben Child, (London) Guardian; Drew Barrymore to direct another Wizard of Oz film:

"Another day, another Wizard of Oz reimagining. Drew Barrymore looks set to become the latest member of the Hollywood glitterati to travel down the yellow brick road after signing on to direct Surrender Dorothy, pitched as a loose sequel to the 1939 musical...

At least five films based on the Wizard of Oz have been reported in recent weeks...

Though all 14 of Baum's Oz books are now out of copyright, and therefore freely available for anyone to plunder, it seems unlikely that all of the above will make it into cinemas: often in these cases, one or more of the films will fall at the wayside at the development stage. If not, there are going to be more wizards in multiplexes over the next few years than at a Harry Potter convention."

Copyright: time to change the laws?; BBC News, 5/17/10

Stephen Evans, BBC News; Copyright: time to change the laws?:

"The issue of copyright has to strike a delicate balance between protecting the creators of music, words or photographs and the dissemination of such material to a wider public.

On the one hand, you want to ensure that the creators get paid for what they create. On the other, if copyright protection is too tight, then dissemination of material becomes too restricted.
In the 18th century the spread of knowledge was dependent on reprinting.

A book produced in London or Paris would be reprinted in Geneva, Edinburgh or Dublin.

"That led to arguments among publishers and authors about whether reprinting was immoral or illegal," says Adrian Johns at the University of Chicago.

Blurred boundaries

The concept of intellectual property was based around the distinction between mechanical invention, and literary or cultural creation.

That idea is now less appropriate to the ways in which creativity is carried out - software development, biotechnology and gene science all conflict between the mechanical and the intellectual.

The advent of the internet has changed the way copyright works.

Under the previous technology, going into a shop and stealing a music CD was theft, and yet down-loading tracks from the internet seems un-theft-like.

This attitude, that if it is on the web then it is free, is even more pronounced with photographic images. When pictures were printed on paper it was easy to control, but new technology makes those old laws out-dated or at least difficult to enforce...

Future solutions

A few companies in Silicon Valley are working on ways for copyright information to be an integral part of the image which cannot be removed.

William Fisher at Harvard University thinks copyright protection is too strict, so, for example, works of art derived from photographs are blocked.

"There needs to be more creative freedom," he believes.

"The current system is over-protective. It extends copyright protection to too every snapshot, every digital image - billions are being created every minute all around the world and they are all protected by copyright law."

He acknowledges that a system is needed that affords protection to photographers who wish to have control over their work.

"But too much copyright protection impedes cultural conversations and cultural usage," he says.
He says there should be a change of bias when protecting work.

"It would be better if the photographer registered any image be wanted to protect with an online registration system," he says, "and that any other work was in the public domain.""

Wednesday, May 19, 2010

Copyright Law Could Get Ugly If ACTA Is Adopted as Is; IT Business Edge, 5/17/10

Lori Bentley, IT Business Edge; Copyright Law Could Get Ugly If ACTA Is Adopted as Is: Lora Bentley spoke to Jim Burger, an intellectual property attorney in the Washington, D.C., offices of Dow Lohnes, about the proposed Anti Counterfeiting Trade Agreement and the impact it would have on the tech industry:

"Bentley: I've read that Internet service providers are concerned about the ACTA treaty, but I'm unclear what in particular they don't like about it. Is it the secondary liability provision?

Burger: Device manufacturers are more concerned about secondary liability than ISPs. The ISPs are primarily concerned about secondary liability where the search engines are concerned. The ISPs are primarily concerned about the safe harbor issue - the section 512 issue.

Generally in their space, the Digital Millennium Copyright Act, which was a very carefully negotiated piece of legislation, gives them a safe harbor for users posting [copyrighted] material on their websites. So their concern, on a macro level, is that the DMCA was a very hard-fought battle. Almost every word mattered. In the ACTA treaty, they have a Reader's Digest version of [the safe harbor provision]. It gives them great concern because liability is huge.

Couple that with a provision in the enforcement section that says, essentially, countries will have predetermined damages. In the United States, it's potentially $150,000 maximum per infringing title, which is significant. For example, in the Viacom YouTube case, Viacom is alleging 100,000 titles. Multiply 100,000 by $150,000 and that's real money even for Google. So that's the problem the ISPs have in a nutshell."

Princeton Demands Website Remove Elena Kagan's Thesis; Claiming Copyright Infringement;, 5/17/10

Mike Masnick,; Princeton Demands Website Remove Elena Kagan's Thesis; Claiming Copyright Infringement:

"Obviously, there's been lots of talk about Supreme Court nominee Elena Kagan in numerous areas. There have been various reports concerning Kagan's supposed views on copyright, but those seem pretty blown out of proportion from what I've seen and in talking to folks who know Kagan. She was a big supporter of the Berkman Center at Harvard, but that was part of her job. Other than her recommendation in the Cablevision case, there doesn't seem to be much to go on. In fact, I'm considerably more concerned with the idea that one of the leading contenders for Kagan's current job of Solicitor General is one of the entertainment industry's favorite legal attack dogs who led the industry's case in Grokster and was a major player in the Jammie Thomas trial before being appointed to the Justice Department (where he didn't last very long before moving over to the White House as associate White House counsel). Still, if Kagan really is a big supporter of fair use, you have to wonder what she thinks of the following situation.

With everyone digging deeper and deeper to find out more about Kagan, the website Red State apparently dug up her undergraduate thesis and posted it to their website... leading Princeton to demand that the thesis be taken down -- not, of course, for political reasons, but copyright ones. The University is selling copies of her thesis, and apparently the commercial value just shot up:

It has been brought to my attention that you have posted Elena Kagan's senior thesis online.... Copies provided by the Princeton University Archives are governed by U.S. Copyright Law and are for private individual use only. Any electronic distribution is prohibited, as noted on the first page of the copy that is on your website. Therefore I request that you remove it immediately before further action is taken.

Of course, ordering that the document be pulled down pretty much guarantees that it will get spread more widely -- and there's definitely a journalistic reporting defense for posting the document (though, I'm not particularly convinced that anything anyone wrote in college has much meaning once they've spent a few decades outside of college). And, of course, in trying to get the document taken down, it's just going to lead conspiracy-minded folks to think there's more to the document than there is (in actuality, it's a rather bland historical analysis, but you wouldn't know that from what some sites are claiming about it). But from a journalistic standpoint, it seems you could make a decent argument for fair use in distributing the document. In fact, publications like Newsweek are already sharing parts of the thesis as well (mostly to debunk the hysteria around it). It's difficult to see what Princeton gained in issuing the takedown notice, other than to rile up people."

Sunday, May 16, 2010

Growers, Jessica in boat copyright flap; Sydney Morning Herald, 5/6/10

Lisa Martin, Sydney Morning Herald; Growers, Jessica in boat copyright flap:

"A fruit-growing corporation which warned Jessica Watson her boat name, Ella's Pink Lady, breached international copyright wants to make the teenage sailor a poster girl for apples.

Ella's Pink Lady has a similar heart logo to the Pink Lady apple trademark.

Pink Lady Australia spokesman John Durham told AAP the company wrote to Watson's management in October last year advising them of its registered trademarks on the Pink Lady name and flowing heart symbol in more than 70 countries world-wide.

"Given that this was a global sailing attempt and given that our registrations were global, we just wanted them to be aware of that," Mr Durham said.

"We just requested ... that no person associated with Jessica Watson's solo around the world sailing attempt to take any action or make any statements which could cause damage or bring into disrepute APAL's (Apple & Pear Australia Ltd) Pink Lady flowing heart trademark.

"We never imagined that she would (damage the trademark), the letter was just to make her management aware."

Mr Durham said the organisation had extended its best wishes to the 16-year-old Queenslander.

"Personally I think she is a fantastic young lady and very much admire her courage, fortitude and pluck sailing around the world," he said.

He said Pink Lady Australia would talk to Jessica Watson's people about a potential deal."

Real Copyright Law And File Sharing Copyright Law;, 5/14/10

Mike Masnick,; Real Copyright Law And File Sharing Copyright Law:

"We already wrote about the Limewire decision, which didn't seem particularly surprising at all, given that LimeWire was basically doing the exact same things as Grokster. However, some people are noticing a few problematic parts to the ruling. While these parts alone certainly won't change the ruling, it's still worth noting what the judge said and questioning whether or not they're proper. As Eric Goldman notes, he tells his students that when it comes to copyright law there's normal copyright law, and then there's "P2P file sharing" copyright law "and it's a mistake to think those two legal doctrines are closely related."

Judges don't like file sharing systems, and even if they have to twist the law to reach the conclusion they want, they'll do so to shut such sites down. It's happened over and over and over again."

Can we have fair use without fair use technology?; Ars Technica, 5/14/10

Matthew Lasar, Ars Technica; Can we have fair use without fair use technology?:

"Back in February of 2007, the Ars team was a bit miffed at what it saw as the half-hearted efforts of Rep. Rick Boucher (D-VA) to bolster fair use protections for consumers. Boucher had just introduced his Fair Use Act to the House, a bill that would provide additional protection for consumers following the Supreme Court's 2005 pile drive of the Grokster file-sharing service.

Boucher's legislation, cosponsored by John Doolittle (R-CA), offered a variety of new fair use exemptions to the Digital Millennium Copyright Act. These included making "a compilation of audiovisual works" for classroom use, transmitting files over a home network, and accessing various works "of substantial public interest solely for purposes of criticism, comment, news, reporting, scholarship, or research."

Unlike previous iterations of his proposed law, however, Boucher's latest version did not offer protections to the developers of tools designed to facilitate these salubrious activities.

"So if Boucher's legislation passed," Tim Lee lamented in a post published a day after the law's announcement, "a film studies professor would be permitted to use software such as Handbrake to circumvent the copy protection on DVDs and create an audiovisual presentation featuring scenes from various movies. However, developing or distributing Handbrake in the United States would still be a crime."

Now, three years later, the Public Knowledge advocacy group has a set of proposals that would address this strange shortcoming.

Substantial noninfringing use

PK has been especially busy with these matters of late, unveiling its proposed Copyright Reform Act in stages. Stage one urges an expansion of fair use concepts to the DMCA, including the incidental capture of images ("for example, capturing music playing over radio when filming a family moment") and "personal and noncommercial uses" that would have "little chance of harming copyright holders" (e.g., making a CD of your favorite cardio-pop tunes for the fitness center).

Now Public Knowledge's stage two addresses the "anticircumvention" trap embedded in Section 1201 of the DMCA, the first words of which read as so: "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

PK would add a codicil to this text:

"It shall not be a violation of this section to circumvent a technological measure in connection with access to, or the use of, a work if such circumvention is for the purpose of engaging in noninfringing use of a work."

Then the group's reforms address Section 1201 language forbidding anyone to make, offer or traffic any technology, product, or service that "is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title" and "has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title."

To these sentences PK would append the following:

"It shall not be a violation of this section to manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof capable of enabling substantial noninfringing use of a work protected under this title."

This, of course, lands us deep in the muck which is Supreme Court's Grokster decision, which ruled that the file-sharing service could find no safe harbor in the high court's 1984 Betamax standard. Betamax allowed that devices "capable of substantial noninfringing uses" could not be legally blamed for the infringing shenanigans of their users. But Grokster found that device distributors who sold services and technologies with the object of promoting their uses to infringe copyright were indeed liable for the consequences.

What we have in Public Knowledge's proposals, then, is a legislative attempt to address both the DMCA and Grokster's overreach, empowering devices capable of "enabling substantial noninfringing use of a work," while retaining the ruling's oversight over bad intent.

Teachers, regional DVDs, backups, time shares

Why does PK think that consumers need these reforms? Lots of reasons.

High on the group's first aid list are teachers who want to show films to their classes. They're hobbled by the law if they want to make film compilations from DVD media, a task that sometimes requires encryption circumvention technology. Thus, classroom instructors "must both worry about liability for the act of circumvention and manage in spite of the prohibition on tools that would allow them to circumvent," PK warns.

In other words, they have to navigate through a DVD's scene index, creating long and awkward breaks in their lectures. In 2006 the US Copyright Office granted a limited exemption on these restrictions for film and media studies professors, leaving historians, sociologists, anthropologists, ethnographers, and everybody else to fend for themselves.

Next, there are the roadblocks set up by the regional coding mechanisms stamped into many DVDs. On top of CSS used by most DVD makers, regional playback control is added, making their media usable only in a specific geographical area.

"Consumers' ability to make private use of legitimately purchased foreign DVDs on their DVD players in the United States is thus challenged regardless of whether they lawfully imported foreign DVDs themselves or legally purchased them from an overseas vendor," PK notes, "though both methods of acquisition are 'plainly legal' under copyright law."

Then there are the backup technologies that have been pummeled under the DMCA, such as RealDVD, a system that allowed consumers to store DVD content on their hard drives.

Eventually RealNetworks settled its fight with Hollywood, agreeing to fork over $4.5 million make the Motion Picture Association of America's infringement lawsuit go away.

But RealNetworks isn't always the defendant. Don't forget the time/format sharing Streambox VCR, which allowed users to record and play RealAudio streams. Real Networks sued Streambox for DMCA copyright infringement. Eventually the two companies settled.

Enacting these reforms "would remedy the unintended consequences caused by §1201's overbroad prohibitions while continuing to offer copyright owners extra protections for digital works guarded by TPMs [technology protection measures]," Public Knowledge's brief concludes.

Unfortunately, these suggestions are unlikely to ever darken the doors of Congress. Even Boucher's milquetoast fair use law didn't get very far; it was referred to the House Judiciary Committee, and then to the Subcommittee on Courts, the Internet, and Intellectual Property back in 2007. That was the last anyone heard of it."

Warner Brothers Sues "Superman" Lawyer;, 5/14/10

Kiel Phegley,; Warner Brothers Sues "Superman" Lawyer:

"Not long after they created the character in the late 1930s, Jerry Siegel and Joe Shuster started to push back against National Periodical Publications for a bigger share in the rights to Superman. Over 70 years later, that battle is still being played out in a much more complex and unexpected way than almost any other intellectual property rights fight in history.

Today, Warner Brothers (owner of DC Comics and by extension Superman) fled suit against attorney Mark Toberoff who has represented the families of Siegel and Shuster in their attempt to gain back a percentage of rights and profits on the character. Deadline Hollywood reports that the suit focuses on the money Toberoff would supposedly gain if the Siegel and Shuster families earn the full rights to Superman back in 2013. If successful, the Warner Brothers suit may force Toberoff to step back from representing the families, giving the studio a better chance of winning future rights battles.

In the suit, the studio appeals to the court with the fact that Siegel and Shuster chose to work with DC on settling the rights dispute while they were alive as well as the fact that years of comics, TV and movie materials produced by DC and Warners would be stripped from the company in terms of its profits if they lost all the rights."

[OpEd] Getting the last word on Holden Caulfield; LA Times, 5/7/10

[OpEd] Jon Healey, LA Times; Getting the last word on Holden Caulfield:

"I've been so distracted by the Greek debt crisis that I missed a ruling last week by the U.S. 2nd Circuit Court of Appeals that has potentially enormous implications for publishers, movie studios and other copyright holders. The appeals panel overturned a federal judge's ruling that J.D. Salinger (and now, his heirs) was entitled to a preliminary injunction barring the U.S. publication of an unauthorized sequel to "Catcher in the Rye."

Citing the Supreme Court's ruling in EBay vs. MercExchange, a case involving patent infringement, the appeals panel ruled that courts should not grant injunctions automatically to stop the publication or distribution of works that infringe copyrights. Instead, copyright holders will have to demonstrate that the harm they would suffer if the injunction were not issued could not be remedied through other means, such as monetary damages. The courts must also consider the "balance of hardships" that an injunction (or lack thereof) would inflict on either side, and whether an injunction would serve the public interest.

The ruling may not make a practical difference to the unauthorized "Catcher" sequel, a novel titled "60 Years Later: Coming Through the Rye." The 2nd Circuit left the injunction in place temporarily, giving the lower court time to put new restraints in place. It also stacked the deck in favor of another injunction. In addition to upholding the lower court's finding that the book's main character, "Mr. C," violated Salinger's copyright over the character Holden Caulfield, the appeals panel rejected the argument by the author, the publisher and some allies of "60 Years Later" that the book was a fair use of Salinger's work.

Jack Lerner, a copyright expert and law professor who leads the USC Intellectual Property and Technology Law Clinic, said he was disappointed that the courts didn't find the new book to be a fair use. The author didn't simply do another book about Holden Caulfield; the novel used Caulfield as a way to comment on the relationship between Salinger and his creation. Still, by making it harder for copyright holders to get injunctions, Lerner said, the ruling should make them more willing to strike licensing deals for their content.

Jennifer Urban, director of the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley, said that the ruling "removed the possibility of the plaintiffs having so much power at the beginning that the licensing negotiations are heavily tilted toward the plaintiffs." That's been the result with patents since the MercExchange decision, she said, especially in cases involving patent holders whose business is to collect royalties rather than make products.

Let me put that another, less charitable way. The MercExchange decision made life harder for patent trolls to stop manufacturers from bringing innovative products to market, and that's a good thing.

Urban added that injunctions may have the effect in copyright cases of diminishing speech, which raises public policy concerns. Granted, there can be 1st Amendment issues on both sides; Salinger, for example, asserted a constitutional right not to be forced to speak. But if authors accused of infringement are making fair use of copyrighted works, that's protected speech, and society has an interest in hearing it."

Google attorney slams ACTA copyright treaty; CNet News, 5/7/10

Declan McCullagh, CNet News; Google attorney slams ACTA copyright treaty:

"An attorney for Google slammed a controversial intellectual property treaty on Friday, saying it has "metastasized" from a proposal to address border security and counterfeit goods to an international legal framework sweeping in copyright and the Internet.

The Anti-Counterfeiting Trade Agreement, or ACTA, is "something that has grown in the shadows, Gollum-like," without public scrutiny, Daphne Keller, a senior policy counsel in Mountain View, Calif., said at a conference at Stanford University.

Both the Obama administration and the Bush administration had rejected requests from civil libertarians and technologists for the text of ACTA, with the White House last year even indicating that disclosure would do "damage to the national security." After pressure from the European Parliament, however, negotiators released the draft text two weeks ago.

The international adoption of ACTA could increase the liability for Internet intermediaries--such, perhaps, as search engines--Keller said. "You don't want to play Russian roulette with very high statutory damages."

One section of ACTA says that Internet providers "disabling access" to pirated material and adopting a policy dealing with unauthorized "transmission of materials protected by copyright" would be immune from lawsuits. If they choose not to do so, they could face legal liability. Fair use rights are not guaranteed.

"It looks a lot like cultural imperialism," Keller said at the Legal Frontiers in Digital Media conference. "It's something that really snuck up on a lot of people."

Jamie Love of the Knowledge Ecology International advocacy group, which has criticized the ACTA process, reported last year that Keller had signed a nondisclosure agreement that provided her with access to the early draft text. Other organizations whose representatives signed the confidentiality agreement, according to Love's Freedom of Information Act request, include Verizon, eBay, Public Knowledge, Intel, News Corp., and the Consumer Electronics Association.

Sherwin Siy of Public Knowledge, who signed the nondisclosure agreement, wrote at the time that it didn't provide much access: "We were allowed to view a draft of one proposed section as we sat in a (government office) with some of its negotiators and counsel. We were not allowed to take any copies of the text with us when we left the meeting about an hour later."

The U.S. Trade Representative said in a statement last month that recent ACTA negotiations in New Zealand were "constructive." The Motion Picture Association of America called ACTA an "important step forward" that deserves to be adopted.

The next ACTA meeting is in Switzerland in June."

Why Hollywood Should Be Nervous About Court Pick;

Eriq Gardner,; Why Hollywood Should Be Nervous About Court Pick:

"Hollywood may have some reason to be nervous about President Obama's nomination of Elena Kagan to be the next U.S. Supreme Court justice.

Not a whole lot is known about Kagan's judicial philosophy, which in some ways, makes her the perfect pick to win confirmation by the Senate. Her record on issues the industry cares about, though, isn't entirely opaque.

Hollywood's biggest worry about Kagan might be her philosophy on intellectual property matters. As dean of Harvard Law School from 2003 to 2009, she was instrumental in beefing up the school's Berkman Center for Internet & Society by recruiting Lawrence Lessig and others who take a strongly liberal position on "fair use" in copyright disputes.

Most notably, during those years, Professor Charles Nesson at the Berkman Center represented accused file-sharer Joel Tenenbaum in the defense of a lawsuit by the Recording Industry Association of America, the trade group representing the major U.S. record labels. Professor Nesson led his cyberlaw class in alleging that "the RIAA is abusing law and the civil process" with excessive damage claims in piracy cases. It was Kagan herself who wrote a personal letter to the U.S. District Court to help certify the students.

Paradoxically, the Obama administration later weighed in on the side of the RIAA in the case. But that was before Kagan was fully confirmed as U.S. Solicitor General. At the time, Professor Nesson expressed some doubts about whether Kagan would back the government's amicus brief and also called her "enlightened" on these issues.

Kagan got her biggest opportunity to showcase her feelings on IP when the U.S. Supreme Court asked her, as U.S. Solicitor General, to weigh in on the big Cablevision case.

Hollywood was upset when Cablevision announced its intention to allow subscribers to store TV programs on the cable operator's computer servers instead of a hard-top box. The introduction of remote-storage DVR kicked off furious litigation, and the 2nd Circuit overturned a lower court ruling by saying that the technology wouldn't violate copyright holder's rights. The studios appealed to the Supreme Court."

'Hurt Locker' producers about to sue an army of pirates; Hollywood Reporter, 5/11/10

Eriq Gardner, Hollywood Reporter; 'Hurt Locker' producers about to sue an army of pirates:

"EXCLUSIVE: The war against movie piracy is getting downright explosive. We've learned that the producers of the Oscar-winning "The Hurt Locker" are preparing a massive lawsuit against thousands of individuals who pirated the film online. The case could be filed as soon as tomorrow.

Voltage Pictures, the banner behind the best picture winner, has signed up with the U.S. Copyright Group, the Washington D.C.-based venture that, as we first reported in March, has begun a litigation campaign targeting tens of thousands of BitTorrent users.

According to Thomas Dunlap, a lawyer at the firm, the multi-million dollar copyright infringement lawsuit should be filed this week. He declines to say exactly how many individuals will be targeted, but expect the number to be in the tens of thousands, if not more. "Locker" first leaked onto the web more than five months before its U.S. release and was a hot item in P2P circles after it won six Oscars in March. Despite the accolades, the film grossed only about $16 million in the U.S.

The U.S. Copyright Group has already filed lawsuits over about 10 other films, including Uwe Boll's "Far Cry," "Call of the Wild 3D" and "Uncross the Stars." Reports of those suits raised alarms in some circles, whereas others joked that the movie industry was merely suing those with poor taste.

"You can guess that relative to the films we've pursued already, the order of magnitude is much higher" with "Hurt Locker," says Dunlap, adding that the lawsuit will also cover other Voltage pictures such as "Personal Effects," starring Ashton Kutcher.

If the addition of "Locker" to this litigation campaign could shake things up, so too could news about cooperation by ISPs in this escalating fight.

After filing the lawsuits, the plaintiffs must subpoena ISP records in an effort to match IP addresses with illicit behavior on BitTorrent.

According to lawyers at Dunlap's firm, 75 percent of ISPs have cooperated fully. Those that have resisted are mostly doing so, they say, because of the amount of work involved in handing over thousands of names. But the clock may be ticking. For example, in the lawsuit over "Far Cry," Comcast has until next Wednesday to file motions to quash subpoenas. (Here's the stipulation by the parties.) By the end of next week, thousands of Comcast subscribers could be turned over.

Of the some 50,000 individuals who have been sued thus far, only three have tried to quash the subpoena. In one instance, a Georgia man tried to invoke the state's shield law protecting journalists from having to disclose their sources. The judge denied the motion. In another instance, a woman successfully got a court to throw out the subpoena because her IP address wasn't listed in the original complaint. Unfortunately for her, the complaint was then amended.

After unmasking individuals who have illegally downloaded films, the U.S. Copyright Group then sends a settlement offer.

Lawyers at the firm are seeing some returns on the first two lawsuits filed back in January. About 40 percent have settled, according to the U.S. Copyright Group. Those who haven't settled will be sent another round of settlement offers, and the group promises to eventually serve lawsuits on these individuals.

Since we first broke news about the litigation campaign, Dunlap says he's been besieged by e-mails from 20 to 30 independent film groups that have expressed frustration about rampant piracy and interest in joining up. The firm plans to send people to this month's Festival de Cannes, where they've already arranged meetings with a number of other film producers to discuss further lawsuits."

Open Book Alliance tosses brick at Google; backs Amazon, Microsoft Corp., AT&T; Baltimore Examiner, 5/11/10

Peter Kelton, Baltimore Examiner; Open Book Alliance tosses brick at Google; backs Amazon, Microsoft Corp., AT&T:

"The Open Book Alliance (OBA) has tossed another brick at the Google Books Settlement now pending a supposedly final decision in federal court. Many believe the decision may shape the future of book publishing. Most assume the decision will be appealed.

OBA released an analysis it bought from a law firm that finds “numerous provisions of the proposed Google Books settlement would, if approved, violate the treaty obligations of the U.S. If the settlement is approved, it may give rise to legal action against the U.S. before an international tribunal and will certainly expose the U.S. to diplomatic stress.”

Open Book Alliance includes the following members: Amazon, American Society of Journalists and Authors, Council of Literary Magazines and Presses, Internet Archive, Presidio of San Francisco, Microsoft, National Writers Union, New York Library Association, Science Fiction and Fantasy Writers of America, Small Press Distribution, and Yahoo!

The 18-page analysis is available from (OBA).

The Justice Department had recommended that folks keep negotiating the ultimate terms of settling the $125 million lawsuit against Google."