Wednesday, June 30, 2010

May a library lend e-book readers?; LibraryLaw Blog, 6/20/10

Peter Hirtle, LibraryLaw Blog; May a library lend e-book readers?:

"A recent post at the Citizen Media Law Project about one’s First Sale rights with e-books got me thinking about libraries. CMLP noted that with e-books, one has no first sale rights because they are usually governed by licenses instead. First sale, however, is fundamental to the business of libraries. It allows us to loan to others copies of printed books we have purchased without violating the copyright owner’s rights to distribute the work. Some libraries have started lending e-book readers to faculty and students, including the Lewis Music Library at MIT and the NCSU Library, which are both loaning iPads. Is this legal?...

I hope, therefore, that libraries that are experimenting with lending e-book readers have thoroughly vetted their program with an attorney. Mostly, I hope they are working with Apple, Amazon, etc. to create new library-friendly licenses. We need licenses that will allow libraries to purchase e-books that can then either be copied directly onto patron-owned devices or copied onto library devices that are then lent to patrons. If e-books become as important as people predict and libraries do not have the legal right to lend those e-books, the traditional role of the library as a free source of reading matter will fade away."

Geist: Developing world opposition mounts to anti-counterfeiting agreement; Toronto Star, 6/28/10

Michael Geist, Toronto Star; Geist: Developing world opposition mounts to anti-counterfeiting agreement:

"Just as the G8-G20 meetings conclude in Muskoka and Toronto, another round of negotiations on the controversial Anti-Counterfeiting Trade Agreement resumes in Switzerland.

In the aftermath of the last round of discussions, a draft version of the ACTA text was publicly released, temporarily quieting criticism about the lack of transparency associated with an agreement that currently touches on all forms of intellectual property, including patents, trademark and copyright.

While the transparency concerns are no longer in the spotlight, mounting opposition to the agreement from the developing world, particularly powerhouse economies such as India, China and Brazil, is attracting considerable attention. The public opposition from those countries – India has threatened to establish a coalition of countries against the treaty – dramatically raise the political stakes and place Canada between a proverbial rock and hard place, given its close ties to the U.S. and ambition to increase economic ties with India and China.

India and China formally raised their complaints earlier this month at the World Trade Organization, where they identified five concerns with the agreement..."

Canada's copyright laws show Britain's digital legislation is no exception; (London) Guardian, 6/29/10

Cory Doctorow, (London) Guardian; Canada's copyright laws show Britain's digital legislation is no exception: It's not just our government that can be bullied into voting against the public interest by big content's power-brokers:

"A few months ago, Britain's archivists, educators, independent artists and technologists were up in arms over the digital economy bill, a dreadful piece of legislation that ignored all the independent experts' views on how to improve Britain's digital economy; instead, it further rewarded the slow-moving entertainment companies that refused to adapt to the changing marketplace and diverted even more public enforcement resources to shoring up their business-models.

The bill was passed despite enormous public outcry, without real parliamentary debate, in a largely empty house, hours before parliament dissolved for the election. Despite reassuring promises to their constituents, huge numbers of MPs just didn't bother to show up for work that day, allowing the bill to slip through (my own MP, Meg Hillier, sent me a letter to tell me that she was "concerned" that the bill was up for a vote without debate, but she voted for it anyway).

Well, here's some good news for Britons: you're not the only country whose laws are for sale to oligarchs from the entertainment industry. In my native Canada, a farce worthy of the worst moments of the Digital Economy Act is playing out even as I type these words.

Some background: there have been two recent attempts to reform Canadian copyright law. Both failed, due in large part to an unwillingness on the part of lawmakers to conduct public review or consultation on their proposals (though they were happy to have closed-door meetings with lobbyists representing offshore entertainment giants). The minority Tory government is now fielding a third attempt, called Bill C32 (Canadian bills have much less interesting names than their UK counterparts; here, we'd probably call it The Enhancement of Digital Life Through Extreme Punishments for Naughty Pirates Bill of 2010).

C32 follows the widest-ever public consultation on Canadian copyright. More than 8,300 Canadians filed comments in the consultation, and they spoke with near unanimity: "We don't want a US-style copyright regime."

The US's copyright law was last reformed in 1998, with the Digital Millennium Copyright Act (DMCA), which provided for near-total protection for "digital locks" (also called "DRM," "TPM," "copy prevention," "copy protection" – this explosion of names being the legacy of two decades' worth of attempts to rebrand an unpopular idea in the hopes of making it stick). In the US version of the law, breaking a digital lock is itself a crime – even if you're breaking it for a perfectly legitimate reason.

For example, Apple uses digital locks to make sure that the only programs you can run on your iPad and iPhone come from its own App Store. The App Store has lots of conditions on it that are ripe for competitive challenge – it scoops a hefty 30% commission from software creators, and imposes prudish conditions on the presentation of "adult" content (previously, Apple has rejected an ebook reader because it could be used to call up the Kama Sutra, a dictionary because it contained "naughty" words, the Pulitzer-winning political cartoons of Mark Fiore because they "ridiculed public figures" and a comic book adaptation of Joyce's Ulysses because you could see the characters' willies – in each case, they reversed themselves after public outcry).

But breaking the digital locks on your iPad so that you can buy apps from someone other than Apple is against the law – even though there is no copyright infringement taking place. Quite the contrary: marketplaces where creators exchange their works for money is the kind of thing you'd expect copyright law to encourage, rather than prohibit.

Nearly all of the respondents to the Canadian copyright consultation said that they didn't want to repeat America's 12-year-old mistake. Yes, they said, let us have protection for digital locks, but only if you're breaking them in order to commit an act of actual copyright infringement. Protecting the locks themselves is bad policy.

I was one of those Canadians. As a Canadian author (my latest novel, For the Win, is presently on the Canadian bestseller lists), I believe that I should have the major say in the destiny of my copyrighted works.

If I want to authorise a reader to break a digital lock to move her copies of my books from a Kindle to a competing ebook reader, that should be my call. Certainly, the mere act of putting my works into a digital locker shouldn't give a company the right to usurp my copyright: copyright protects authorship, not assembling electronics in Pacific Rim sweatshops.

Only 46 of the 8,306 commenters thought otherwise. These 46 commenters advocated replicating America's failed experiment in Canada; everyone else thought the idea was daft. You'd think that with numbers like 46:8260, the government would go with the majority, right? Wrong.

When minister of industry Tony Clement, and minister of heritage James Moore, published the text of their long-awaited copyright bill, Canadians were floored to discover that the ministers had replicated the American approach to digital locks. Actually, they made it worse – the Americans conduct triennial hearings on proposed exemptions to the rule; Moore and Clement didn't bother with even this tiny safeguard.

The ministers have been incapable of explaining the discrepancy. When confronted on it, they inevitably point to the fact that their bill also establishes numerous "user rights" for everyday Canadians (for example, the right to record a TV show in order to watch it later), and suggest that this is the "balance" that Canadians asked for. When critics say, "Yes, you've created some user rights, but if a digital lock prevents their exercise, it's against the law to break the lock, right?" the ministers squirm and change the subject.

It's enough to leave you wondering whether the ministers understand their own bill. Indeed, Clement recently appeared on the public broadcaster TVOntario show Search Engine and promised that his law allows journalists to break a digital lock for the purposes of investigative reporting (according to lawyers, scholars and everyone else who's read the bill, he's wrong).

If they don't understand their bill, perhaps it's because they weren't really in charge of what went into it. According to the former head of staff for minister of foreign affairs Maxime Bernier: "The prime minister's office's position was, move quickly, satisfy the US; we don't care what you do, as long as the US is satisfied."

It's clear the US government has made a top priority out of ensuring other countries cut their throats just as stupidly as America did with the DMCA's digital locks rules. Last week, the Obama administration's newly minted IP enforcement czar, Victoria Espinel, reiterated America's priority to use its trade muscle to force countries into adopting US-style copyright rules.

American industry is pleased by this. A shadowy new Canadian "citizens' group", Balanced Copyright For Canada, looks to be the work of the big-four labels, with a membership composed of employees and executives of the labels' Canadian subsidiaries (the membership lists were taken offline hastily after this was publicised).

Moore seems to be cracking under the strain of supporting the unsupportable. He has publicly denounced opponents of his bill as "radical extremists" (these "extremists" include the Canadian Bookseller Association, the Retail Council of Canada, the Canadian Library Association, the Association of Universities and Colleges of Canada and MPs from all the other parties). He then denied having made the remarks, blocked voters from following him on Twitter when they asked him about it, and has remained silent on the subject since videos of him making the remarks surfaced.

So, Britain, rejoice. It's not just our government that can be bullied into voting against the public interest by big content's power-brokers – Canada's just as weak and pitiful."

Bad Times, Worse Times: Led Zeppelin Sued for Copyright Infringement; New York Times, 6/30/10

Dave Itzkoff, New York Times; Bad Times, Worse Times: Led Zeppelin Sued for Copyright Infringement:

"Led Zeppelin historians have chronicled the creation of that rock band’s early classic “Dazed and Confused” for so long it’s understandable if fans can no longer tell what’s true about its authorship. One thing is for certain: Jake Holmes, a folk singer who asserts he recorded a similar song, also called “Dazed and Confused,” in 1967, says that he is the song’s creator and has filed a copyright infringement lawsuit against Led Zeppelin and its guitarist, Jimmy Page, as well as the band’s record labels and Mr. Page’s publishing company.

According to court documents filed on Monday in United States District Court in California and reported by, lawyers for Mr. Holmes say his “Dazed and Confused” was first copyrighted in July 1967, and its copyright renewed in December 1995. The song was later covered by the Yardbirds, the blues-rock band in which Mr. Page performed before Led Zeppelin, and the Zeppelin song was recorded in 1968 and released on the band’s self-titled debut album in 1969. (The group broke up in 1980.)

Mr. Holmes’s suit says Mr. Page copied the song “without authorization or permission” and “knowingly and willfully” infringes on his copyrights. A management company listed for Mr. Page said it no longer represented him, and a press representative for Led Zeppelin at Atlantic Records did not immediately reply to a request for comment."

Playboy Sues Drake for Copyright Infringement; New York Times, 6/29/10

Joseph Plambeck, New York Times; Playboy Sues Drake for Copyright Infringement:

"The rapper Drake’s breakthrough single, “Best I Ever Had,” which went from a mixtape to a popular EP, didn’t get to be the best all on its own, according to a copyright infringement suit filed by Playboy Enterprises.

In the suit, which Playboy filed in a California federal court on June 25, the company says that Drake, whose real name is Aubrey Graham, used material from the 1975 song “Fallin’ in Love,” by Hamilton, Joe Frank & Reynolds. Playboy owns the rights to that song. Cash Money Records, Universal Music Group and Universal Music Group Distribution are also named as defendants in the suit. Representatives for Playboy Enterprises, Drake and Universal had no comment.

Drake’s single peaked at No. 2 on the Billboard Hot 100 and brought him a pair of 2010 Grammy nominations. The EP called “So Far Gone” that includes the single has sold almost 500,000 copies. Drake’s first full album, ”Thank Me Later” (Aspire/Young Money/Cash Money), sold 447,000 copies in its first week earlier this month."

ACTA Risks Long-Term Damage To Democratic Public Policymaking, NGOs Say; Intellectual Property Watch, 6/30/10

Kaitlin Mara and Monika Ermert; Intellectual Property Watch; ACTA Risks Long-Term Damage To Democratic Public Policymaking, NGOs Say:

"An international agreement on intellectual property rights enforcement now under negotiation in Lucerne, Switzerland runs the risk of ushering in a new and undemocratic precedent for international policymaking that could have long-term damaging effects on critical public policy issues, non-negotiating government representatives and civil society advocates said this week.

The Anti-Counterfeiting Trade Agreement, they said, could have a chilling effect on access to medications, including the potential to criminalise makers of active pharmaceutical ingredients who are critical to the generics industry, and could cause serious problems for internet freedom.

The 28 June event in Geneva was cosponsored by Knowledge Ecology International and IQsensato.

More worrying, they added, is that while currently an initiative of a few countries, its ultimate aim seems to be to become universal. The negotiating process seems to follow on the heels of the trend of countries shopping for easy fora through which to push the same increasing intellectual property enforcement agenda. Denied enforcement actions in places such as the World Intellectual Property Organization (WIPO), the World Trade Organization (WTO), the World Customs Organization and elsewhere, these countries are now creating their own forum under ACTA.

This platform can then be used to foist burdensome enforcement strategies on the rest of the world through bilateral and regional agreements. If such a strategy is allowed to succeed, they argue, it could have follow-on effects far outside the intellectual property sphere.

While it is probably too late to stop, the ACTA could be saved if its real targets act, said Michael Geist, a professor at the University of Ottawa and a staunch critic of the ACTA process to date.

At the “end of the day, ACTA is about Brazil, India” and other emerging economies, Geist said. If those countries “who are the targets [and] who have for too long sat on the sidelines and said they weren’t part of the process … are willing to stand up and be more aggressive,” then ACTA could be turned into something that would not risk upsetting a balanced IP regime.

ACTA’s ninth negotiating session is taking place in this week in Lucerne, Switzerland.

Negotiators in Lucerne on Monday met with nongovernmental organisations and later the Pirate Party. For one and a half hours the Berne Declaration and several other nongovernmental organisations presented their concerns to the delegations of Australia, Canada, European Union, Japan, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the United States who are negotiating the agreement."

ACTA A Sign Of Weakness In Multilateral System, WIPO Head Says; Intellectual Property Watch, 6/30/10

Catherine Saez, Intellectual Property Watch; ACTA A Sign Of Weakness In Multilateral System, WIPO Head Says:

"The plurilateral Anti-Counterfeiting Trade Agreement (ACTA) and other such regional negotiations are a “bad development” for multilateral agencies, the World Intellectual Property Organization director general has told Intellectual Property Watch.

Asked about this week’s ACTA negotiation in Lucerne, Switzerland (IPW, Enforcement, 26 June 2010), Gurry said it is an example of the difficulty of the United Nations and the rest of the multilateral system have providing swift answers to international problems.

WIPO Director General Francis Gurry told UN journalists on 29 June that the inability to provide answers could lead to member states taking matters into their own hands to seek solutions outside of the multilateral system to the detriment of inclusiveness of the present system.

There is an increasing number of issues that can only be addressed internationally, which is bringing a challenge to the whole UN system, highlighting its inability to address them, Gurry said. Despite that “surge for international agreements, we are not seeing international agreements flowing out very easily,” he said.

If “you look across the system, in all organisations, you are not seeing agreements being concluded on a daily basis,” even if the speed with which interconnection has intensified would suggest that agreements are needed, he said. But he did not offer clear ideas on how to solve the delays.

“A number of countries feel [there is] an important area of public policy they are not able to address in a multilateral forum, and so have gone outside the multilateral framework to satisfy their desire for creating some form of ‘international’ cooperation,” Gurry told Intellectual Property Watch in an interview last week. “That’s the challenge, for us. And whether it concerns enforcement, ACTA, or any other area, that, on the whole, is a bad development for a multilateral agency, that member states start to do things outside.”

“Either the machinery works, or it doesn’t,” he said. “That I think is the real significance of ACTA.

The frustration it has caused is a consequence of practical issues not being addressed, he said, citing recent difficult discussions in the Standing Committee on Copyrights and Related Rights on increased access for visually impaired persons. “Can anyone not subscribe to that principle, as a general rule?” he asked, with visually impaired readers only obtaining access to about five percent of all published work in reasonable time.

“Can anyone stand up and say that they should not have more [access], that we should not do something about it?” It is such an obvious question, he said “but we are not getting an agreement” although the last meeting showed genuine involvement of member countries.

“This is the frustration that we are all feeling,” he said, and it leads to other ways to reach solutions."

Stores See Google as Ally in E-Book Market; New York Times, 6/30/10

Brad Stone, New York Times; Stores See Google as Ally in E-Book Market:

"Independent bookstores were battered first by discount chains like Barnes & Noble, then by superefficient Web retailers like

Darin Sennett of Powell’s said a Google deal would make the store independent of the e-readers sold by the big booksellers.

Now the electronic book age is dawning. With this latest challenge, these stores will soon have a new ally: the search giant Google.

Later this summer, Google plans to introduce its long-awaited push into electronic books, called Google Editions. The company has revealed little about the venture thus far, describing it generally as an effort to sell digital books that will be readable within a Web browser and accessible from any Internet-connected computing device.

Now one element of Google Editions is coming into sharper focus. Google is on the verge of completing a deal with the American Booksellers Association, the trade group for independent bookstores, to make Google Editions the primary source of e-books on the Web sites of hundreds of independent booksellers around the country, according to representatives of Google and the association.

The partnership could help beloved bookstores like Powell’s Books in Portland, Ore.; Kepler’s Books in Menlo Park, Calif.; and St. Mark’s Bookshop in New York. To court the growing audience of people who prefer reading on screens rather than paper, these small stores have until now been forced to compete against the likes of Amazon, Apple and Sony.

The Google deal could give them a foothold in this fast-growing market and help them keep devoted customers from migrating elsewhere.

“Google has shown a real interest in our market,” said Len Vlahos, chief operating officer of the booksellers association, which has over 1,400 member bookstores. “For a lot of reasons, it’s a very good fit.”

Google will probably face an uphill battle in its effort to enter the already crowded e-books field. The company has little experience as a retailer. It also has far fewer consumer credit card numbers in its database than either Amazon or Apple, and its online payment system, Google Checkout, has not been widely adopted."

Court to Consider Breaking Up Mass BitTorrent Lawsuits;, 6/29/10

David Kravets,; Court to Consider Breaking Up Mass BitTorrent Lawsuits:

"If you’ve used BitTorrent to snag unauthorized copies of independent films you should be interested in the arguments unfolding in Wednesday in federal court in Washington, D.C.
At issue is a mass-litigation campaign, in which the fledgling US Copyright Group is suing about 15,000 users whose IP addresses were detected harvesting films like Steam Experiment, Far Cry, Uncross the Stars, Gray Man and Call of the Wild 3D.

Several digital rights groups will argue Wednesday on behalf of the account holders behind the IP addresses that each defendant should be sued individually in courts near where the defendants reside. Currently, they’ve all been lumped together in handful of lawsuits filed in the nation’s capital in March.

If U.S. District Judge Rosemary M. Collyer agrees with the Electronic Frontier Foundation, the American Civil Liberties Union and Public Citizen, the US Copyright Group could find its legal campaign almost impossible to continue on such a grand scale.

The issue is important if you live in California and have to answer to a lawsuit across the country. Copyright Act violations carry fines of up to $150,000.

A similar brouhaha came up during the Recording Industry Association of America’s lawsuit campaign against file sharers using Kazaa, Limewire and other networks. The association preferred suing hundreds of alleged downloaders at once, but in many instances were forced to drop the large-scale actions and sue each defendant separately.

In all, the RIAA sued thousands of individuals spread out over the past six years — and was backed by the deep pockets of the nation’s recording labels. If the US Copyright Group loses Wednesday’s courtroom showdown, it would be required to spend at least $350 per IP address to re-file an individual case against a sole defendant. Its lawyers likely would have to appear in courtrooms across the country, perhaps simultaneously.

The RIAA’s lawsuits against 20,000 alleged music pirates were focused on old-school file sharing systems like Kazaa and Limewire. BitTorrent file sharing is more complicated, with downloaders and uploaders collecting in transient swarms of so-called seeders and leechers. The US Copyright Group claims that, because of the swarming element of the BitTorrent protocol, the infringing activity of all the defendants likely had some nexus with the District of Columbia, even if a defendant’s computer was outside the district.

The indie filmmakers are taking a different tactic from their commercial counterparts. The Motion Picture Association of America, for the most part, has limited its lawsuits to BitTorrent sites themselves — like The Pirate Bay, TorrentSpy and Isohunt.

The allegedly offending IP address were sniffed out by Guardaley IT, a German peer-to-peer–surveillance firm."

If The Public Library Was Invented Today, Would The Gov't Call It Organized Crime And Shut It Down?;, 6/30/10

Mike Masnick,; If The Public Library Was Invented Today, Would The Gov't Call It Organized Crime And Shut It Down?:

"We've seen authors in the past complaining that libraries are engaged in book theft, which is an argument that is pretty laughable -- though, has, at times been suggested by various publishing groups. But, in general, most people recognize the public service a library does by helping to educate people. So when some folks in Bulgaria decided to try to set up a user-generated online library of sorts, you wouldn't think that the site would get raided by the police, be declared "damaging to culture," and have its organizers described as an organized crime syndicate. But, that's what happened.

The site, let anyone upload works for a Bulgarian audience -- so there definitely were some infringing works on the site. However, the site was quick to take down any material upon request. The effort was strictly non-commercial, with no ads appearing anywhere on the site. In fact, many authors uploaded their own works, as they realized what a great resource it was.

However, the Bulgarian Book Association flipped out, and once it flipped out, the Bulgarian government had its organized crime law enforcement group raid the site, and describe the organizers as a "gang." Users of the site also took issue with the claim that the site was in any way damaging. They said it was regularly used like a library, but since you could only read the books on a computer, it likely resulted in more sales (or visits to physical libraries)...

Either way, all of this makes you wonder: if traditional public libraries were just being founded today, how much effort do you think publishers would go through to shut them down by claiming they were illegal and violations of copyright law?"

Monday, June 28, 2010

Heedlessly Hijacking Content; New York Times, 6/28/10

David Carr, New York Times; Heedlessly Hijacking Content:

"Gen. Stanley A. McChrystal was not the only one who had a tough week at the office.

Last Monday, the word got out that Rolling Stone had a stunning piece about General McChrystal, in which he and his aides were critical of the White House. It’s the kind of scoop that thrills magazine editors, and no doubt they couldn’t wait to get their issue on the stands.

The problem was, nobody else could wait either. On Tuesday morning, a PDF of the piece the magazine had lovingly commissioned, edited, fact-checked, printed and distributed, was posted in its entirety on not one but two Web sites, for everyone to read without giving Rolling Stone a dime.

It was a clear violation of copyright and professional practice, and it amounted to taking money out of a competitor’s pocket. What crafty guerrilla site or bottom-feeder would do such a thing?
Turns out it was and Politico, both well-financed, reputable news media organizations, that blithely stepped over the line and took what was not theirs.

Both companies said that a frenzy involving a significant national issue was under way and that because Rolling Stone itself did not post the article on its site, they took matters into their own hands. Each said that when Rolling Stone protested, it was taken down, and that when the magazine put up the piece at 11 a.m. on Tuesday, their sites linked to that instead.

Content-makers had a rough week across the board. A federal judge granted summary judgment to Google, whose subsidiary, YouTube, had been sued by Viacom for $1 billion for copyright infringement. Judge Louis Stanton of United States District Court for the Southern District of New York ruled that even though thousands of clips of Viacom shows had been uploaded to the site, YouTube was shielded from damage claims because of “safe harbor” provisions in the Digital Millennium Copyright Act.

Google was busy elsewhere, filing an amicus brief in a New York case against an aggregator called, for its appropriation of proprietary bank research. Lawyers for Google, along with Twitter, asked a federal appeals court to reverse a decision upholding the so-called hot news doctrine, which gives the publishers of up-to-the-minute news the sole rights to that content. They called that doctrine obsolete.

News organizations, including The New York Times, The Associated Press, Gannett and others, filed a brief of their own in the case, suggesting that, “unless generalized free-riding on news originators’ efforts is restrained, originators will be unable to recover their costs of news gathering and publication, the incentive to engage in the news business will be threatened and the public will ultimately have fewer sources of original news.”

In the Rolling Stone case, it wasn’t tech companies arguing for the right to appropriate content, but content-makers themselves.

The magazine delivered an advance copy to The A.P. on Monday afternoon (many magazines try to promote coming articles that way) with some restrictions. When The A.P. article ran with some highlights and excerpts, other news outlets, including networks and major newspapers, asked for a copy. Politico and Time Inc. did not receive copies from Rolling Stone directly.

Some party, probably a news outlet seeking comment, gave copies to both the subject and the White House — a pretty naughty move in and of itself. And by some point on Tuesday morning, the Rolling Stone article by Michael Hastings had become a piece of electronic samizdat, passed around and, eventually, published.

Several commentators suggested that Rolling Stone brought this on itself by not immediately publishing the McChrystal article on its own site (the magazine had planned to publish online but on its own schedule).

“That’s like saying, ‘She had it coming,’ ” Eric Bates, executive editor of Rolling Stone, said in an interview on Thursday. “The decision about when to publish our material is ours and ours alone. It was completely inappropriate.”

Reached by e-mail on a plane, Jim VandeHei, executive editor and a founder of Politico, suggested that the imperatives of the news cycle superseded questions of custody. “Our reporters got the article from sources with no restrictions,” he wrote. “It was being circulated and widely discussed among insiders, and our team felt readers should see what insiders were reading and reacting to. Rolling Stone raised a reasonable objection once they posted the story, so we quickly agreed to link to their URL.”

Time Inc. is in the print magazine business, and Ann Moore, its chief executive, has been a vigorous public defender of copyright. Last year, in an interview with The Telegraph of London, she said, “Who started this rumor that all information should be free, and why didn’t we challenge this when it first came out?”

The folks running apparently missed the memo, but they are now in receipt of its message.

“ posted a PDF of the story to help separate rumor from fact at the moment this story of immense national interest was hitting fever pitch and the actual piece was not available,” a spokeswoman for Time wrote in an e-mail message. “We always had the intention of taking it down as soon as Rolling Stone made any element of the story publicly available, and we did. It was a mistake; if we had it do over again, we would only post a headline and an abstract.”

(A spokeswoman for Ms. Moore said Ms. Moore believed it was a mistake and that it would not happen again.)

Publishing a PDF of somebody else’s work is the exact opposite of fair use: these sites engaged in a replication of a static electronic document with no links to the publication that took the risk, commissioned the work and came up with a story that tilted the national conversation. The technical, legal term for what they did is, um, stealing.

Media organizations can file all the briefs they want about protecting their work product from free-riders and insurgent hordes of digital pilot fish, but once they break their own rules and start feeding on one another, the game is sort of over.

These were decisions made in the midst of a white-hot news cycle, and perhaps cooler heads will prevail the next time around. But if some of the biggest names in the business are not above cut-and-paste journalism when it suits their needs, how can they point a finger at others?

“This is not about our slow-footedness on the Web, but our right to publish on a schedule we chose. To me, this was really a transitional moment,” said Mr. Bates of Rolling Stone. “We’ve had fan sites that have published the text of some stories, but what these two big media organizations did was really off the charts. They took something that was in a prepublished form, sent out to other media organizations with specific restrictions, and just put it up.”

Saturday, June 26, 2010

ASCAP Assails Free-Culture, Digital-Rights Groups;, 6/25/10

David Kravets,; ASCAP Assails Free-Culture, Digital-Rights Groups:

"The association representing 380,000 composers, songwriters, lyricists and others associated with the music industry has begun a fund-raising campaign to stifle groups that support free culture and digital rights.

The American Society of Composers, Authors and Publishers is urging the membership to donate money to battle the Electronic Frontier Foundation, Public Knowledge and even Creative Commons.

In a letter sent to members this week, ASCAP said those groups and unnamed “technology companies” are “mobilizing to promote ‘Copyleft’ in order to undermine our ‘Copyright.’ ”

The letter continues, saying “the truth is these groups simply do not want to pay for the use of our music. Their mission is to spread the word that our music should be free.”

The fund-raising campaign came a day after Victoria Espinel, the nation’s copyright czar, outlined an intellectual-property enforcement plan that did not include a call to push internet service providers to adopt policies to cut service to repeat copyright scofflaws. Such a policy, referred to as “three strikes” or “graduated response,” was strongly backed by the motion picture and recording industries, and opposed by EFF and Public Knowledge.

Instead, Espinel said the nation’s “intellectual property-enforcement efforts should be focused on stopping those stealing the work of others, not those who are appropriately building upon it.”

The ASCAP, which also distributes royalties, said those groups are “influencing Congress against the interests of music creators. If their views are allowed to gain strength, music creators will find it harder and harder to make a living as traditional media shifts to online and wireless services. We all know what will happen next: the music will dry up, and the ultimate loser will be the music consumer.”

ASCAP did not return messages seeking comment.

ASCAP’s attack on EFF and Public Knowledge are farfetched. Those groups do not suggest music should be free, although they push for the liberalization of copyright law.

But the attack on Creative Commons is more laughable than ASCAP’s stance against EFF and Public Knowledge.

While lobby groups EFF and Public Knowledge advocate for liberal copyright laws, Creative Commons actually creates licenses to protect content creators.

The non-profit has issued various licenses to approximately 350 million pieces of content to writers, musicians, scholars and others. Flickr, for example, is filled with pictures licensed by Creative Commons.

The licenses allow the works in the public domain, with various rules regarding attribution, commercial use and remixing.

The group’s creative director, Eric Steuer, said nobody forces anybody to adopt the Creative Commons credo. “I think it’s false to claim that Creative Commons works to undermine copyright,” he said in a telephone interview. “It’s an opt-in system.”

Following Wednesday’s fund-raising letter from Paul Williams, ASCAP’s president, Steuer said several ASCAP members who also use Creative Commons licenses have donated money to Creative Commons.""

In Documentary, Wall of Sound Meets Wall of Law; New York Times, 6/27/10

John Anderson, New York Times; In Documentary, Wall of Sound Meets Wall of Law:

"BETWEEN recording sessions here in 1973, John Lennon called Phil Spector and told him to come back down to the studio. “Someone’s ripped you off, Phil,” Mr. Lennon said. When Mr. Spector arrived, a projector had been set up, a film began to roll, several familiar drumbeats were heard and then, the wail of the Ronettes.

The song was “Be My Baby,” the movie was “Mean Streets,” and no one had told Mr. Spector anything about it.

“I said, ‘Who is this guy Skeezy?’ ” Mr. Spector recalls during “The Agony and the Ecstasy of Phil Spector,” which opens Wednesday at the Film Forum in Manhattan. “I called my lawyers, I said, ‘Kill it!’ ” Martin Scorsese had used his music without permission, and “I never give permission for anything.”

Only Lennon’s intercession stopped Mr. Spector from seeking an injunction that could have pulled the movies out of theaters. They may not have known it at the time, but Mr. Scorsese, Robert De Niro and Harvey Keitel came close to having their careers derailed by Mr. Spector — the creator of rock’s fabled “Wall of Sound,” the Svengali of the ’60s girl groups and the producer of the Beatles“Let It Be.”

The anecdote is perhaps the most startling contained in “The Agony and the Ecstasy of Phil Spector,” a documentary by Vikram Jayanti, and not only because it’s being told by a man who, for 50 years, has avoided the news media like the plague. Built around interviews at Mr. Spector’s home during his first murder trial in 2007 — he was convicted in the shooting death of the actress Lana Clarkson after a second trial in 2009 — the film employs a greatest-hits collection of 21 Spector songs, played or performed in their entirety. And it does so without having obtained Mr. Spector’s written permission. Thus the film could become the latest flashpoint in the debate over what’s generally known as fair use, and copyright law. (Fair use refers to the right, under certain circumstances, like criticism, to use copyrighted material without permission. But the exact amount one can legally use remains a murky proposition.)

Mr. Jayanti, however, isn’t expecting any legal trouble, even though Mr. Spector twice sued his (former) friend and lawyer, Robert Shapiro, to reclaim a $1 million retainer and was appeased by Mr. Scorsese only when he promised to pay for future music use.

Phil wanted the film made, he wanted the music given freely, he was cooperative about making it,” said Mr. Jayanti, who sat with Mr. Spector during most of the 2007 trial in Los Angeles.

Through a spokeswoman, Mr. Spector’s wife, Rachelle, said she hadn’t seen the film and didn’t think her husband had either. (He is serving 19 years to life at the California Substance Abuse Treatment Facility and State Prison in Corcoran.) Mr. Jayanti disagrees. “Of course he’s seen the film,” he said. “We made sure he had a copy. We gave his lawyers copies of the film. And I don’t think if he looked at it in a rational state of mind, he’d have any problem with it. I think it does what he dreamed it would do.” Namely, to rewrite the lead of his obituary: from “convicted murderer” to “musical genius.”

Anthony Wall has produced the documentary program “Arena” for nearly 35 years, out of the BBC offices at Bush House, and it was Mr. Wall who asked Mr. Jayanti to direct the Spector film. They’d previously made “James Ellroy’s Feast of Death” together. Separately Mr. Jayanti has directed films like "Game Over: Kasparov and the Machine" and was an executive producer on “When We Were Kings.”

“Running a program like this, you have your particular heroes or favorites,” Mr. Wall said. “The Top 3 for me were always Dylan, the Beatles and Phil Spector. I thought it would be difficult to get any of them, but that we’d never get Phil, because he has so resolutely refused to even give a newspaper interview. He just doesn’t do it.” The weird thing, Mr. Wall said, was that he had so few expectations, adding, “When Vikram asked me one day whether I’d actually written to him to give him the chance to say no, I hadn’t.”

Mr. Jayanti overnighted a letter to Mr. Spector and got a positive response three days later. Mr. Wall and Mr. Jayanti went to the Spectors’ home in Alhambra, Calif. — where a sign outside reads “Phil Spector’s Pyrenees Castle” — and did two days of interviews. A planned five-day shoot was interrupted by Mr. Spector’s trial preparation; a subsequent gag order on Mr. Spector ended all communication between subject and director. But Mr. Jayanti decided he had everything he needed — except, perhaps, that signed release.

For safety’s sake BBC lawyers looked at a possible fair use defense and decided the film was defensible. “It was an exploratory process that we entered into quite innocently,” Mr. Wall said.
“But what we’re looking at, in terms of it possibly being a precedent, is the law bending to reflect what’s really going on,” he said, meaning the Internet, the global marketplace and disparate views of copyright. “What we need is a new rule book. What it’s about is control, whether the Internet can be controlled, and the way our lives are controlled. It’s been a long time, after all, since ‘Steamboat Willie
.’ ”

Mr. Wall’s reference to Walt Disney’s original Mickey Mouse cartoon points up a nettlesome issue in the realm of United States copyright law: Each time the 1928 “Willie” has been poised to enter public domain, Congress has extended copyright protection. But the larger point for rights activists is whether a culture can survive without being able to feed upon itself.

“Can you imagine the original guy who told the story of King Lear?” Mr. Jayanti asked. “What if he had been able to block Shakespeare, who picked up a story that was simply in the air? I’m not saying I’m Shakespeare, or that Phil Spector is doing what Shakespeare did with King Lear, but if we don’t have the ability to harvest and process and sample our own culture, then I think the culture dries up.”

The fair use issue is close to the heart of Patricia Aufderheide, director of the Center for Social Media at American University, which has developed the Code of Best Practices in Fair-Use, a documentary-industry standard. “One of the things that is not O.K. is to use music as soundtrack, for ambience or aesthetic,” Dr. Aufderheide said. But Mr. Jayanti’s argument — that Mr. Spector’s records cannot be appreciated or assessed except in their entirety — “is a nonaesthetic, nonsoundtrack reason,” and is quite plausible, she said.

There’s another side to the issue of course. “Filmmakers pay for actors, they pay for film stock, they pay for electricity,” said Robert Clarida, a partner with Cowan, Liebowitz, Latman, who is representing the recording industry in the continuing file-sharing case Arista Records et al. v. LimeWire. “Why shouldn’t they pay for music?”

Mr. Clarida conceded the merits of fair use in some instances, but said the use of an entire work, like a song, has rarely held up and cited two relatively recent and disparate decisions, one involving Elvis Presley and the other a 1947 performance by the singer Lily Pons, used on the cable program “Classic Arts Showcase.”

Mr. Jayanti said he hopes any discussion of copyright issues doesn’t overwhelm his motivations in making the movie in the first place, namely the celebration of what Mr. Spector achieved before calamity struck, and his directorly obsession with “geniuses under duress.”

“I’ve always wanted to do two documentaries that can’t be done: Napoleon on St. Helena and the trial of Oscar Wilde,” he said. “With Phil, I got to do both.”"

You can't beat the sports TV pirates, so join them; (London) Guardian, 6/25/10

Seth Freedman, (London) Guardian; You can't beat the sports TV pirates, so join them:

"As millions sat glued to their television screens watching the epic Isner-Mahut tennis battle this week, countless others took the opportunity to watch the match illegally over the internet. Thanks to the proliferation of illicit websites offering live streaming of every major sporting event, huge amounts of broadcast revenue are being siphoned out of the world of sports – threatening the industry in the same way that Napster and Limewire decimated the music business.

I watched the final three games of Isner-Mahut via one such feed, and in terms of quality and timing there was no difference whatsoever from watching the game via a conventional, legal TV broadcaster. Gone are the days when low-resolution, high-interruption feeds were the only way to watch pirated sports games: today's technology makes watching ripped-off streams virtually indistinguishable from the real thing.

Sport, like music and mainstream media beforehand, has a stark choice before its governing bodies. If they remain resolute in their determination to follow old-school methods of disseminating their product, they will quickly drown under the deluge of fraudsters and pirates all too eager to capitalise on their mistakes. On the other hand, if they realise that they have to adapt to financially survive, they need to move fast to prevent a potentially catastrophic loss of income.

In some quarters, sporting bodies are moving with the times. The Indian Premier League (IPL) cricket games are broadcast live and free via YouTube, effectively heading off at the pass any rogue broadcasters seeking to steal their feed for themselves. The IPL authorities have a guaranteed income from their YouTube deal and, with a dedicated millions-strong audience subscribing to their feed, advertisers know how many people they can reach via the stream and how much each commercial slot is worth.

Likewise, this year's Wimbledon can be watched via pay-per-view on the tournament's official website, although given that this requires significant payment from the consumer, pirate sites still have the upper hand over the organiser's package. The choice between paying $9.99 (£6.50) for a "day pass" to online Wimbledon or a simple Google search for live, free tennis-streaming is not a hard one for most casual viewers to make, given that they get the exact same product with either option.

The malignant symptoms present themselves even more prevalently in the realm of top-tier football. The English Premier League and the Spanish Primera Division are two of the most heavily pirated leagues in the world, and despite the best efforts of regulators the problem is only getting worse with every passing year. Match highlights have been all but lost to copyright infringement, with uploads made by the thousand on YouTube and its peers, and touted on dedicated, legal sites such as 101greatgoals. Live games are increasingly going the same way, thanks to the authorities' refusal to accept that they can't beat the free-view pirates and should therefore join them instead.

Gambling companies have been quick to realise the potential draw of live feeds on their sites, especially in the realm of horse and dog racing, but also in slower-paced, more popular sports such as football and tennis. Betfair and Bet365 offer live broadcasts to punters with active betting accounts, easily reaping back in gambling revenue the outlay made to buy broadcasting rights.

Yet with all the signs pointing to a brave new world of online broadcasting, the industry dinosaurs continue plodding along the road to extinction. Premier League enforcers boast of their success in shutting down a handful of illegal feeds, but most online sports piracy goes unpunished. With mobile phones providing yet another alternative to television in the race for audiences, there is even more pressure on rights owners to be proactive rather than simply shut the stable door behind the bolting horse.

On anecdotal evidence alone, it is clear that there is a serious problem at the heart of the sports industry's broadcasting policies. In Tel Aviv, my peers and I watch football in bars with illegal satellites or via pirated internet feeds on laptops hooked up to plasma screens. No one bothers paying for dedicated sports packages when the alternatives are so free and easy, just as huge amounts of people illegally download films and TV series rather than spend money on DVDs.

The route chosen by the dogged likes of Rupert Murdoch in demanding money for access to his newspapers and sports packages is doomed to fail as long as there are equally determined rogue operators prepared to keep coming up with illegal alternatives. On the strength of this week's illegal tennis feed, the pirates have the upper hand; if the industry is to emulate Isner rather than Mahut, their style of play needs to change fast to redress the balance."

Friday, June 25, 2010

New US IP Enforcement Plan May Have International Impact; Intellectual Property Watch, 6/23/10

Liza Porteus Viana, Intellectual Property Watch; New US IP Enforcement Plan May Have International Impact:

"The Obama administration’s release of its national intellectual property strategy yesterday was welcomed by many groups representing businesses and intellectual property holders who said it could serve as an example to other countries.

The strategy encompasses 33 enforcement strategy action items that fall within six categories of focus for the United States: (1) leading by example; (2) increasing transparency; (3) ensuring efficiency and coordination; (4) enforcing our rights internationally; (5) securing our supply chain; and (6) building a data-driven government.

“Combating counterfeiting and piracy requires a robust federal response,” says the introduction of the report, which was released by President Obama’s intellectual property enforcement coordinator (IPEC), Victoria Espinel, who was joined by US Trade Representative Ron Kirk, Attorney General Eric Holder, Vice President Joe Biden, Commerce Secretary Gary Locke and Homeland Security Secretary Janet Napolitano. “Our status as a global innovation leader is compromised by those countries who fail to enforce the rule of law or international agreements, or who adopt policies that disadvantage American industries.”

“I say to those who are suffering from infringement: ‘Help is on the way,’” Espinel said during a press conference releasing the report.

Watch a video of the press conference here.

Biden said a comprehensive approach thus far has been lacking in this country, further alluding to the fact that up until now, there has been no proper cracking down on piracy at the federal level.

“Piracy hurts. It hurts our economy,” as well as citizens’ health and safety, he added, taking a hardline position. “Whether we’re talking about fake drugs that hurt instead of help the patient or knockoff car tires that fall apart at 65 miles per hour that cause injury or death, counterfeits kill. Counterfeits kill. There’s a reason why they’re counterfeit – they don’t know how to do it in the first place. It also, to state the obvious, stifles creativity.”

He continued: “Piracy is theft – clean and simple. It’s smash and grab. … Intellectual property is no different.”

While acknowledging the need to control IP infringement, public interest groups, academics and some US trading partners have continually raised concern that overly strong or unbalanced protection measures can also stifle creativity and innovation as well by limiting access to ideas and knowledge...

Mark Esper, executive vice president of the US Chamber of Commerce’s Global Intellectual Property Center, said this strategy may cause others to ponder similar plans. The instalment of Espinel as the IPEC may also hammer home the idea that the United States is taking IP enforcement seriously, he added. As of January 2007, 23 countries and/or regions had intellectual property strategies included in WIPO’s IP and New Technologies Database.

“Those two go hand in glove,” Esper told Intellectual Property Watch. Other countries may conclude that “they, too, will need somebody at the top of their government focused solely on IP and creativity.” He said the European Union is pondering the idea of such an official.

The Chamber commended the administration, specifically, for acknowledging the increasingly sophisticated problem of internet piracy. Biden also called on the private sector to do more to combat this type of theft.

“I am encouraged to see they have taken on the issue area growing the most quickly, the one that will be the most difficult to get under control,” Esper added.

Biden also specifically applauded search engines like Yahoo, Google and Bing, which in recent weeks took steps to stop selling advertising to illegal internet pharmacies.

Applause and comments also came from other groups such as the Motion Picture Association of America, Copyright Alliance, Progress & Freedom Foundation, National Association of Manufacturers and American Apparel & Footwear Association, as well as lawmakers such as Sen. Patrick Leahy, the Vermont Democrat who was the lead author of the 2008 legislation creating Espinel’s post. Leahy said he will discuss the plan with Espinel at the Judiciary Committee’s IPEC oversight hearing today."

Feds won't get involved in "three strikes," website blocking;, 6/22/10

Matthew Lasar,; Feds won't get involved in "three strikes," website blocking:

"For months, we've been nervously awaiting new White House intellectual property "czar" Victoria A. Espinel's Joint Strategic Plan, and the White House published it (PDF) this morning. But the document turned out to be fairly innocuous; fair use even gets a few mentions. Rightsholders who hoped the federal government would start running "three strikes" Internet copyright tribunals or start ordering ISPs to block websites were disappointed."

US goes after movie pirates in Estonia, counterfeiters in Tanzania;, 6/24/10

Matthew Lasar,; US goes after movie pirates in Estonia, counterfeiters in Tanzania:

"As we've reported, the White House released its Joint Strategic Plan for intellectual property enforcement this week, courtesy of its new "IP Czar," Victoria Espinel. Vice President Joe Biden was at the press conference to grab the sound bite crown:

"Look, we used to avoid saying this in this town... Piracy is theft," Biden declared. "Clean and simple. It's nothing but theft."

But the report itself shuns the limelight—as well as recommendations like government-mandated website blocking and three strikes rules, we're happy to note. Instead it cautiously urges the government to avoid buying counterfeit items, and to be more transparent in its IP enforcement policies.

All this got us wondering, though: what's the government already doing about this stuff? Turns out the US was all over the world in the last year, spending tax dollars on IP enforcement in all sorts of ways."

Canadian copyright reform debate turns nasty; Hollywood Reporter, 6/24/10

Etan Vlessing, Hollywood Reporter; Canadian copyright reform debate turns nasty:

"Canadian federal politician James Moore has lashed out at opponents of his made-in-U.S.A. copyright reform package as "radical extremists."

"They will find any excuse to oppose this bill, to drum up fear, to mislead, to misdirect and to push people in the wrong direction and to undermine what has been a year-long comprehensive effort to get something right," Moore, the federal heritage minister in charge of copyright reform, told a G20 Chamber of Commerce gathering in Toronto.

Moore, who is looking to get Bill C-32 and its amendments to the federal Copyright Act into law, has come under attack from artist and consumer advocates for proposing to bar Canadians from picking a digital lock on music, film or any entertainment product protected from duplication

"There are those cited as experts by the media who are not in favor of copyright reform. They are in favor only in weakening legislation, and only gutting tools that would allow those who are investing in and creating jobs to continue to have those jobs," Moore insisted.

"When they speak up, we need to confront them," he added.

But Moore's call to arms met with an immediate barrage of complaints from opposition politicians and copyright reform critics.

Charlie Angus, a broadcast critic for the opposition NDP party, said Moore attacking artists and consumers posing legitimate questions about Bill C-32 was "ridiculous."

"Instead of understanding and appreciating the nuances of balanced copyright, the minister is appearing hyper-defensive and bombastic. I think he needs a time out," Angus said.

Michael Geist, an Internet and e-commerce law professor at the University of Ottawa, in a blog criticized Moore for looking to discredit and confront opponents of his proposed copyright reform package.

"To use his own words, it is an attempt to mislead, misdirect, and undermine what has been more than a year-long effort for Canadians to speak out on copyright," Geist said.

The Canadian mud fight over copyright reform comes as Ottawa looks to get back in Washington's good books after being placed by the U.S. Trade Representative on its "priority watch list" for piracy.

Moore's proposed copyright reforms include a first-time "notice-and-notice" regime where copyright holders can warn Internet service providers of suspected piracy, and the ISP will then be compelled to tell their customer they are breaking the law.

The long-awaited reforms to limit consumer protections will also narrow Canada's fair dealing provision, albeit with extensions for the recording of content for news reporting or parody, for example, if copyright infringement is not intended.

Bill C32 will now go to committee in Ottawa for likely amendments before the Canadian Parliament gets a chance to vote on the new legislation."

Canadian Heritage Minister Says That Those In Favor Of Balanced Copyright Are 'Radical Extremists';, 6/23/10

Mike Masnick,; Canadian Heritage Minister Says That Those In Favor Of Balanced Copyright Are 'Radical Extremists':

"Anshar alerts us to the news that the driving force behind Canada's new copyright bill, Heritage Minister James Moore, at a Chamber of Commerce event, apparently claimed that those who are opposed to Canada's attempt to put in place a version of the DMCA are just a group of "radical extremists." Really? So, people who just want to make sure that copyright law doesn't lock up culture and harm creativity are "radical extremists"? How does he figure that? Meanwhile, in response to this, Michael Geist has started putting together a list of these "radical extremists" who appear to be just about everywhere, including littered throughout all of the major political parties, and appears to include such "radicals" as the Canadian Library Association and the Canadian Bookseller Association (radicals! all of them!). I guess since Moore doesn't appear to want to have to actually defend the more worrisome parts of the legislation (mainly the "digital locks" anti-circumvention provisions) he figures the next best thing is to demonize people who actually care about consumer rights."

ASCAP Files 21 Copyright Suits Against Bars and Clubs; New York Times, 6/21/10

Joseph Plambeck, New York Times; ASCAP Files 21 Copyright Suits Against Bars and Clubs:

"The American Society of Composers, Authors and Publishers said on Monday that it had filed copyright suits against 21 bars, nightclubs and restaurants across the country, including Doug’s Burger Bar in Imperial, Mo., and The Vibe in Riverside, Calif.

The performing rights group, which represents more than 380,000 songwriters and publishers, said in a statement that each of the businesses did not have the required license to allow performers to play copyrighted songs or have failed to make the payments required by the license.

Any venue that hosts musicians who perform any of the 8.5 million copyrighted songs overseen by the performing rights group, which collects royalties for song writers, is supposed to pay an annual licensing fee.

“Having music in an establishment is an enhancement that draws many patrons to these venues. A music license is a basic cost of business recognized in hundreds of thousands of bars, restaurants and other venues across the U.S.,” Vincent Candilora, the group’s senior vice president of licensing, said in a statement. “The 21 cases filed today aim to heighten awareness among music users and the public that it is a federal offense to perform copyrighted music without permission.”"

Center Releases New Guide to Navigating Copyright Law; Chronicle of Higher Education, 6/23/10

Sophia Li, Chronicle of Higher Education; Center Releases New Guide to Navigating Copyright Law:

"Communications scholars often fret over the legal nuances of using copyrighted material in their research, says Pat Aufderheide, a professor of communication at American University and director of its Center for Social Media. Ms. Aufderheide and Peter A. Jaszi, a law professor at American, hope to help researchers rest easy with a new guide to using copyrighted work—like political cartoons or screenshots from online games—in their studies.

Because of the "fair use" provisions of copyright law, copyrighted work can be quoted if it is being used for a purpose different from its original intent, according to the report, which was vetted by a committee of lawyers.

The report, released today, gives communications scholars four types of research-related situations as examples: analyzing copyrighted material, quoting it to illustrate a point, using it to spark discussion, and storing it in a collection. The situations in the report were based on 387 responses to a survey of communications scholars conducted in collaboration with the International Communication Association.

The center's guides establish what's acceptable for a field and tell scholars how to apply the law to the cases they encounter, said Ms. Aufderheide.

The center plans to continue producing similar documents for other groups, like an association of research librarians, that want clearer guidelines on using copyrighted works, she added."

Wednesday, June 23, 2010

Google Wins Viacom Copyright Lawsuit;, 6/23/10

David Kravets,; Google Wins Viacom Copyright Lawsuit:

"Google-owned YouTube won a major victory Wednesday when a federal judge ruled the video-sharing site was protected under U.S. copyright law.

Viacom, which vowed an appeal, was seeking $1 billion in damages in a case testing the depths of copyright-infringement protection under the Digital Millennium Copyright Act of 1998.

The ruling, if it survives, is a boon for internet freedom, especially as it applies to search engines, video-hosting companies, picture-hosting services like Flickr, social-networking sites like Facebook and micro-blogging services such as Twitter. But it will make it all the more difficult for rights holders to protect their works.

In short, Wednesday’s decision says internet companies, even if they know they are hosting infringing material, are immune from copyright liability if they promptly remove works at a rights-holder’s request — under what is known as a takedown notice.

“Today’s decision isn’t just about YouTube,” said Center for Democracy & Technology lawyer David Sohn. “Without this decision, user generated content would dry up and the internet would cease to be a participatory medium.”

U.S. District Judge Louis L. Stanton of New York disagreed with Viacom’s claims that YouTube had lost the so-called “safe harbor” protection under the DMCA. Viacom, parent of Paramount Pictures and MTV, maintained Google did not qualify, because internal records showed Google was well aware its video-hosting site was riddled with infringing material posted by its users.
Stanton ruled that YouTube’s “mere knowledge” of infringing activity “is not enough.”

“To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA,” the judge wrote.

Stanton ruled that YouTube had no way of knowing whether a video was licensed by the owner, was a “fair use” of the material “or even whether its copyright owner or licensee objects to its posting.”

Stanton added, “Indeed, the present case shows that the DMCA notification regime works efficiently: When Viacom over a period of months accumulated some 100,000 videos and then sent one mass takedown notice on Feb. 2, 2007, by the next business day YouTube had removed virtually all of them.”

Jonathan Band, a copyright attorney who helped craft the DMCA, said “The argument Viacom was making would have neutered the DMCA. I think the judge understood that.”

The DMCA, which was heavily lobbied into existence by the Hollywood studios, has been a boon for internet freedom. But it has been a bust in other areas.

Among its provisions, it prohibits the circumvention of encryption technology. DVDs are encrypted with what is known as the Content Scramble System, and DVD players must secure a license to play discs. So a San Francisco federal judge ruled in March that RealNetworks breached the DMCA when it marketed a DVD-copying device, and precluded it from the market. Apple also claims the DMCA makes it unlawful to jailbreak iPhones.

The Motion Picture Association of America declined comment on Stanton’s decision.

What’s more, the DMCA’s “safe harbor” privilege comes with another price. The law demands intermediaries such as YouTube to take down content in response to a notice from rights holders, without evaluating the claim for reasonableness or accuracy, or considering the fair use rights of users. That has opened the door to many abuses of free expression, including Universal Music’s 2008 takedown notice to YouTube over a Pennsylvania woman’s 29-second video of her toddler dancing to Prince’s “Let’s Go Crazy.”

The YouTube-Viacom decision came nearly a year after a Los Angeles federal judge ruled similarly in a case against little-known, video-sharing site Veoh, which has gone bankrupt. The difference between Wednesday’s ruling and the Veoh outcome, Band said, is that YouTube is mainstream, used by millions daily and is owned by one of the world’s most popular and richest internet brands: Google.

Google, which purchased YouTube for $1.8 billion in 2006, hailed the decision, saying it was “an important victory not just for us, but also for the billions of people around the world who use the web to communicate and share experiences with each other.”

Viacom, which brought the case three years ago, said “We believe that this ruling by the lower court is fundamentally flawed and contrary to the language of the Digital Millennium Copyright Act.”

Judge Stanton ruled the Supreme Court’s 2005 decision against Grokster did not apply. He said Grokster distributed software that allowed computer-to-computer exchanges of infringing material, “with the expressed intent of succeeding to the business of the notoriously infringing Napster.”

Here is the case’s entire docket."

Google triumphant, beats back billion dollar Viacom lawsuit;, 6/23/10

Michael Lasar,; Google triumphant, beats back billion dollar Viacom lawsuit:

"It was a billion dollar lawsuit, and YouTube has won—for now. The United States District Court for the Southern District of New York has rejected Viacom's claim that Google's premier video site was guilty of massive copyright infringement. Instead, the court has granted Google's motion for summary judgment and asserted that YouTube fully qualifies for "safe harbor" protections under the Digital Millennium Copyright Act.

"This is an important victory not just for us, but also for the billions of people around the world who use the Web to communicate and share experiences with each other," Google just announced on its blog. "We’re excited about this decision and look forward to renewing our focus on supporting the incredible variety of ideas and expression that billions of people post and watch on YouTube every day around the world."

Viacom had contended that most of the "safe harbor" provisions in the DMCA did not protect Google from Viacom's infringement claims. Groups like the Electronic Frontier Foundation argued that if Viacom's arguments prevailed, they would severely compromise the viability of online content providers both huge and small, and would gut the DMCA's protections for sites that host or transmit other people's content. eBay, Facebook,, and Yahoo! similarly weighed in on the case.

"The present case shows that the DMCA notification regime works efficiently," the court noted, "when Viacom over a period of months accumulated some 100,000 videos and then sent one mass take-down notice on February 2, 2007. By the next business day YouTube had removed virtually all of them."

Viacom, it should be noted, doesn't agree with the sweeping judicial ruling (which was a relatively sparse 30-pager), as is evident from the press statement we just received. Viacom intends to appeal the case.

"We believe that this ruling by the lower court is fundamentally flawed and contrary to the language of the Digital Millennium Copyright Act, the intent of Congress, and the views of the Supreme Court as expressed in its most recent decisions," Viacom says.

Furthermore: "We intend to seek to have these issues before the US Court of Appeals for the Second Circuit as soon as possible. After years of delay, this decision gives us the opportunity to have the Appellate Court address these critical issues on an accelerated basis. We look forward to the next stage of the process."

But for now, YouTube and Google have won a tremendous victory."

Huge Victory: Court Rules For YouTube Against Viacom;, 6/23/10

Mike Masnick,; Huge Victory: Court Rules For YouTube Against Viacom:

"Well this is a pleasant surprise. Like many others, I had assumed that the court reviewing the Viacom/YouTube lawsuit would not accept either side's position for summary judgment and the case would go to a full trial. However, as Eric Goldman alerts us, the court has quickly ruled in favor of Google/YouTube, saying that it is, in fact, protected by the DMCA's safe harbors. Here's the ruling..."

Viacom Loses To YouTube In Landmark Copyright Case;, 6/23/10

Michael Liedtke, AP via; Viacom Loses To YouTube In Landmark Copyright Case:

"A federal judge handed Google Inc. a major victory Wednesday by rebuffing media company Viacom Inc.'s attempt to collect more than $1 billion in damages for the alleged copyright abuses of Google's popular YouTube service.

The ruling by U.S. District Judge Louis Stanton in New York embraces Google's interpretation of a 12-year-old law that shields Internet services from claims of copyright infringement as long as they promptly remove illegal content when notified of a violation.

That so-called "safe harbor" helped persuade Google to buy YouTube for $1.76 billion in 2006, even though some of the Internet search leader's own executives had earlier branded the video-sharing service as "a 'rogue enabler' of content theft," according to documents unearthed in the copyright infringement case.

Stanton "blessed the current state of play on the Internet," said Eric Goldman, a Santa Clara University associate professor who specializes in high-tech law. The affirmation was cheered by Internet service providers and free-speech groups who believe the Digital Millennium Copyright Act helps give more people an outlet to express themselves.

"Without this decision, user-generated content would dry up and the Internet would cease to be a participatory medium," said David Sohn, a lawyer for the Center for Democracy & Technology."

Viacom, the owner of popular cable channels such as MTV, Comedy Central and Nickelodeon, called Stanton's decision "fundamentally flawed" and vowed to appeal. That virtually ensures a legal brawl that already has dragged on for more than three years will spill into 2011 and perhaps beyond.

"Copyright protection is essential to the survival of creative industries," said Michael Fricklas, Viacom's general counsel. "It is and should be illegal for companies to build their businesses with creative material they have stolen from others."

The bitter battle revolves around Viacom's allegations that YouTube built itself into the Internet's most watched video site by milking unlicensed use of copyright-protected clips stolen from professionally produced show such as Viacom's "The Colbert Report" and "The Daily Show."

The pirated material came from the millions of people who have uploaded clips to YouTube since its 2005 inception. About 24 hours of new video is posted to YouTube every minute.

YouTube's whirlwind success led to the Google sale that generated huge windfalls for the video channel's founders, Chad Hurley, Steve Chen and Jawed Karim.

Citing e-mail exchanges among those founders, Viacom depicted the founders and other YouTube employees as video pirates who were more interested in getting rich quick than adhering to copyright laws.

But Stanton concluded YouTube's actions outweighed the words of the YouTube founders.

In dismissing the lawsuit before a trial, Stanton noted that Viacom had spent several months accumulating about 100,000 videos violating its copyright and then sent a mass takedown notice on Feb. 2, 2007. By the next business day, Stanton said, YouTube had removed virtually all of them.

Stanton said there's no dispute that "when YouTube was given the (takedown) notices, it removed the material."

Since it was sold to Google, YouTube has developed a system that helps flag copyright violations when videos are posted. Viacom argues those copyright detection tools prove YouTube could have done more to keep illegal content off its site.

Kent Walker, Google's general counsel, said the company is confident Stanton's decision will hold up. The 30-page ruling is "thoughtful, thorough and well-considered," Walker said in an interview. He also hailed the decision as "a victory for a new generation of creators and artists eager to showcase their work online," Walker said.

Facebook, eBay Inc. and Yahoo Inc. were among the Internet companies that had backed Google in its battle with Viacom.

The evidence that accumulated before Stanton reached his decision proved embarrassing for both sides.

An early e-mail exchange among Hurley, Chen and Karim showed at least one of them may have knowingly violated copyrights as they posted video clips during the service's early stages.

"Jawed, please stop putting stolen videos on the site," Chen wrote in the July 19, 2005, e-mail. "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."

Other documents showed Viacom had hoped to buy YouTube before getting trumped by Google, making it seem as if the media company's later claims of copyright abuse may have been a case of sour grapes.

A July 2006 e-mail from Fricklas, Viacom's top lawyer, even disputed that YouTube was engaged in rampant copyright infringement. "Mostly YouTube behaves," Fricklas wrote."

Tuesday, June 22, 2010

File-sharing has weakened copyright—and helped society; Ars Technica, 6/21/10

Nate Anderson, Ars Technica; File-sharing has weakened copyright—and helped society:

"Has file-sharing helped society? Looked at from the narrow perspective of existing record labels, the question must seem absurd; profits have dropped sharply in the years since tools like Napster first appeared. But a pair of well-known academics argue peer-to-peer file sharing has weakened copyright in the US... and managed to benefit all of us at the same time.

"Consumer welfare increased substantially due to new technology," write Felix Oberholzer-Gee of Harvard and Koleman Strumpf of the University of Kansas. "Weaker copyright protection, it seems, has benefited society.""

Monday, June 21, 2010

Court Reduces ‘Shocking’ File Sharing Award;, 1/22/10

David Kravets,; Court Reduces ‘Shocking’ File Sharing Award:

"A federal judge on Friday reduced a $1.92 million file sharing verdict to $54,000 after concluding the award for infringing 24 songs was “shocking.”

A federal jury in June found Jammie Thomas-Rasset liable in what at the time was the nation’s only Recording Industry Association of America file sharing case against an individual to go to trial. The Minnesota federal jury dinged her $1.92 million for infringing 24 songs. She asked the judge to set aside or reduce that $80,000 per song in damages.

U.S. District Judge Michael Davis agreed on Friday, and said the RIAA may have a retrial if it does not accept his ruling.

“The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music,” Davis wrote. “Moreover, although plaintiffs were not required to prove their actual damages, statutory damages must bear some relation to actual damages.”

The decision came days after the Obama administration supported $675,000 in damages a jury levied against a Boston file sharer in the nation’s second and only other file sharing case against an individual to go to trial. Among other things, the administration said the large July award would “deter the millions of users of new media from infringing copyrights in an environment where many violators believe they will go unnoticed.”

Davis added that $1.92 million in damages “for stealing 24 songs for personal use is simply shocking.”

The new damages amount to three times the minimum of $750 damages the Copyright Act allows. The maximum is $150,000 per infringement, at a judge or jury’s discretion.

Thomas-Rasset, now 32, said she doesn’t have the money to pay even that reduced judgment, and that her house in Brainerd, Minnesota is homesteaded and protected from a judgment. The mother of four said she is a “very low- to middle-income” earner who works for a local Native American tribe.

“It’s not like I have a money tree in the backyard,” she said during a brief telephone interview.

The RIAA said it was reviewing the decision and was not prepared to comment.

Here’s Thomas-Rasset’s original $1.92 million playlist.

The decision, if it survives, may not have much weight in the file sharing world.

More than a year ago, the record labels announced they were winding down their nearly 6-year-old litigation campaign against individuals and instead were lobbying internet service providers to adopt a program to disconnect music file sharers.

One case in Boston still on the books concerns Joel Tenenbaum, the nation’s only other individual to go to trial against the RIAA. Most of the 30,000 cases the RIAA brought against individuals were settled out of court for a few thousand dollars.

Among other things, he is urging the federal judge in his case to reduce the $675,000 July jury verdict to $22,500, the minimum of $750 for 30 tracks.

U.S. District Judge Nancy Gertner, who is presiding over Tenenbaum’s case, is not obligated to follow Judge Davis’ decision.""