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

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

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

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

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

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

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

http://www.huffingtonpost.com/2010/07/16/librarians-go-gaga-9-of-t_n_648177.html

How Big An Issue Are Orphan Works?; TechDirt.com, 7/12/10

Mike Masnick, TechDirt.com; How Big An Issue Are Orphan Works?:

"For a few years now, there's been an effort underway to pass "orphan works" legislation that would help deal with the massive number of works that are clearly covered by copyright, but for which no copyright holder can be found at all. Even the US Copyright Office, who normally only believes that copyright law should go in one direction (i.e., more), has come out in favor of orphan works legislation. Of course, as copyright experts like William Patry have long pointed out, the "problem" of orphan works is a self-created problem. Prior to taking away the requirement for registering to get a copyright, there really wasn't an orphan works problem, because (1) the copyright holders were registered and (2) most other works fell into the public domain, as they were either not registered, or the registration was not renewed. So, a better fix would be to go back to requiring such "formalities" (even if it goes against the sadly out of date Berne Convention rules).

In the meantime, though, since that doesn't seem likely, many are pushing for such orphan works laws. Unfortunately, there has been a lot of blatant misinformation spread around against orphan works legislation, who insist that it's really a way for companies to use works without paying for them. Of course, the various proposals for orphan works laws make it clear this is not the case. They all require the potential user to conduct a very real and very serious search for the copyright holder. You can't just declare the the copyright holder can't be found.

Of course, another complaint against orphan works legislation is that orphan works really aren't much of a problem, as they're somewhat "rare." How rare are they? Well, Michael Scott points us to a report trying to quantify the number of orphan works in Europe alone. The numbers are pretty impressive..."

Judge Reduces Student's File-Sharing Fine by 90 Percent; Chronicle of Higher Education Wired Campus, 7/12/10

Kelly Truong, Chronicle of Higher Education Wired Campus; Judge Reduces Student's File-Sharing Fine by 90 Percent:

"A federal judge has cut a Boston University student’s illegal file-sharing fine by 90 percent, declaring the original fee “unconstitutionally excessive.”

Last July, a jury decided on a fine of $675,000 against Joel Tenenbaum, a graduate student, for downloading and distributing 30 songs. He filed for a retrial, which resulted in the reduced penalty of $67,500, set by U.S. District Court Judge Nancy Gertner on Friday.

In her 62-page ruling, the judge called the original fine “unprecedented and oppressive” and said it violated the Fifth Amendment’s due-process clause. “There is no question that this reduced award is still severe, even harsh,” she judge.

The Recording Industry Association of America, representing the four major recording labels to which Mr. Tenenbaum owes payment, issued a statement declaring its intention to contest the new ruling: “With this decision, the court has substituted its judgment for that of 10 jurors as well as Congress,” the company wrote.

Mr. Tenenbaum told The Boston Globe that despite the reduction, he remains unable to afford the fee. “It’s basically equally unpayable to me,” he said.

According to JoelFightsBack.com, a Web site established by Mr. Tenenbaum’s lawyer to publicize the case, the student intends to continue pursuing legal action, on the grounds that he was denied a fair trial."

http://chronicle.com/blogPost/Judge-Reduces-Students/25459/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+chronicle%2Fwiredcampus+(The+Chronicle%3A+Wired+Campus)

Prince's war with iTunes plays into the hands of illegal filesharers; (London) Guardian,

Helienne Lindvall, (London) Guardian; Prince's war with iTunes plays into the hands of illegal filesharers: Prince is right to have issues with iTunes and YouTube. But making his album available only to Mirror readers goes against his philosophy of reaching as many listeners as possible:

"As a Prince fan, I bought the Mirror for the first time on Saturday to get a copy of his latest album, 20Ten. As a musician, I was puzzled by why he felt the need to give away his music with a UK tabloid that costs 65p. I was equally perplexed by his decision to snub iTunes because it doesn't pay advances. Why would he need an advance? He's Prince, for God's sake. Surely he should trust that people would buy his music anyway. Besides, many more fans would have access to iTunes than a newsagent on one day.

In an interview with the Mirror, Prince compared the internet to MTV, saying that its days are numbered. Is this the reason why, when I put his new CD into my computer, Gracenote, the music database used by iTunes, didn't recognise the titles? Is that why there were 66 five-second silent tracks before the bonus track?

It's a strange turnaround for someone who, a decade ago, described Napster as "exciting". "What might happen with young people exchanging music is that they might develop a real appreciation," the "purple Yoda from the heart of Minnesota" said. He also claimed that online distribution could enable musicians to end exploitation from record labels. Surprisingly, despite his dismay with the music industry, Prince later signed with Columbia Records and, in 2005, with Universal.

Since then, he seems to have had a change of heart. Prince has reportedly threatened YouTube with a lawsuit for copyright infringement, forcing it to take down live footage of him playing Radiohead's Creep at the Coachella festival in 2008. Now, I have issues with YouTube, and I fully support an artist's right to decide what happens to their music, but Prince's decision to make his new album available as an exclusive covermount goes against his philosophy of reaching as many listeners as possible.

The Entertainment Retailers Association (ERA), unsurprisingly, objected to Prince releasing his album as a covermount. Pointing out that his record sales have halved since the first Daily Mail covermount in 2007, it claims Prince's latest move "could kill his career". While there could be other explanations for the decrease in sales – illegal filesharing, for example – I agree that covermounts devalue music. It makes people question if a CD is really worth £8 when a major artist such as Prince can afford to give it away with a 65p paper.

I agree with independent record label Blancomusic that it's unfair that iTunes takes the same share of the retail price (30%) as the bricks-and-mortar shops, manufacturers and distributors – despite not taking the same risks when stocking product. I also agree that artists make little from other digital stores and streaming services. Yet, making their music available on legal digital outlets is something that they all have had to accept. That's what music fans want, and if they can't get it legally they'll get it illegally, without paying a penny.

ERA concluded its press release by saying: "Go away and make an album that people are prepared to pay for. We still have faith you [Prince] can do it." With 20Ten, I think he has. Unfortunately, most people will now only be able to get it illegally."

http://www.guardian.co.uk/music/musicblog/2010/jul/12/prince-itunes

Ebook deals 'not remotely fair' on authors; (London) Guardian, 7/12/10

Alison Flood, (London) Guardian; Ebook deals 'not remotely fair' on authors: Digital publishing deals locking writers in for the duration of copyright risk damaging industry, says Society of Authors chair:

"The chair of the Society of Authors, Tom Holland, has hit out at publishers' attempt to seize control over electronic rights, calling ebook deals that lock authors in for the duration of copyright "not remotely fair".

Speaking at the Romantic Novelists' Association's annual conference last week, Holland urged authors to push for ebook royalties that are "considerably higher" than the standard of around 25%. Although Holland said the market for ebooks is only about 1% of the total UK market, it is "growing fast" and the Society of Authors believes that, given publishers will eventually have much lower warehousing and distribution costs for ebooks, royalties should be divided 50/50.

"Most publishers are insisting they should control ebook rights and this will be written into standard contracts. I think it's an entirely reasonable position to take, so long as the royalties and returns on ebooks are fair and proper and reasonable. If they are not, I suspect we may well find very big-name authors, such as JK Rowling or Dan Brown, will go their own way," said Holland. "It's a danger publishers need to recognise and a danger for writers as well. If JK Rowling controls her own ebook rights [then] there's less money for her publisher to invest in new authors. We could face a situation of very big-name authors pulling the ladder up after them [and] we have a stake in seeing a healthy publishing industry."

Although publishers "are inclined to dismiss the argument that costs are reduced on ebooks", Holland said: "Once a system has been set up, publishers won't be paying for warehousing, distribution and printing, and we have to ask ourselves what are they spending the money on?"

http://www.guardian.co.uk/books/2010/jul/12/ebooks-publishing-deals-fair

Can you sell your imported gadgets? Court guts "First Sale", 7/12/10

Matthew Lasar, ArsTechnica.com; Can you sell your imported gadgets? Court guts "First Sale":

"Let's say a relative gave you an imported Omega watch over the holidays. It's a nice piece, but it's not exactly your style, so after agonizing over the issue for the appropriate number of months, you decide to sell it over eBay.

Not so fast. Thanks to a decision by the Ninth Circuit Court of Appeals, that might not be so easy. In fact, the store that sold it, Costco, shouldn't have sold it in the first place, the court recently ruled, because the doctrine of "First Sale" has limits. Section 109 of the Copyright Act says that a copyright owner of a product has the sole initial right to distribute it. Then the subsequent buyers have the right to "to sell or otherwise dispose of the possession of that copy"—in other words, sell it again.

But now the Ninth Circuit says this doesn't necessarily apply to items in which a company's copyrighted logo was inscribed on a product made abroad, as in this case. The Public Knowledge advocacy group calls this decision "a terrible idea," and has filed an amicus brief with the Supreme Court, which is reviewing the case.

"What happens to Netflix, Amazon and eBay," PK's Anjali Bhat worries, "if they have to find out where each item was made, whether it has a copyrighted logo made outside the US (if the item itself isn't a copyrighted work), and then buy licensing rights from the copyright owner if the item was made abroad? That's an enormous economic burden to put on businesses who follow that model."...

The implications of this decision are huge, creating potential liabilities for anyone who distributes anything en masse: libraries, booksellers, or your local DVD or video game rental store."

http://arstechnica.com/tech-policy/news/2010/07/if-you-buy-an-imported-watch-do-you-really-own-it.ars

WSJ Opinion Highlights The Problems Of 'Permission Culture'; TechDirt.com, 7/12/10

Mike Masnick, TechDirt.com; WSJ Opinion Highlights The Problems Of 'Permission Culture':

"A bunch of folks have been sending in this Wall Street Journal opinion piece by author Tony Woodlief, where he aptly demonstrates the problems with the "permission culture" we've built up around copyright today. Often we'll discuss some of these things in posts, and defenders of the existing copyright regime will say "well, it's no problem, because you can just ask for permission" (here's an example of that kind of thinking). Of course, the reality is that it's not so easy at all. Woodlief points out that publishers are taking a very short-sighted view and demanding ridiculous amounts of money for tiny snippets of use, such that it makes no sense to use those works at all, and often the original content creators and society is worse off for it..."

http://www.techdirt.com/articles/20100712/01320410171.shtml

Curse of the Greedy Copyright Holders, Wall Street Journal, 7/9/10

Tony Woodlief, Wall Street Journal; Curse of the Greedy Copyright Holders:

"'Immature poets imitate; mature poets steal," wrote T.S. Eliot. I am neither poet nor thief, so when I wanted poems at the start of each chapter in my recently published memoir, I sought permission. The poem that best describes my experience is "The Odyssey," navigating as I did between the Scylla of non-responsive copyright holders and the Charybdis of fee-seeking attorneys.

Modern copyright practices spur artists to unmoor our work from what has inspired us. Art—along with many artists supposedly protected by these laws—is arguably poorer for it.

The modern copyright battle is more interesting than its associated legalities. Advocates of copyright restrictions found a bête noire in curmudgeonly novelist Mark Helprin, who argued that Congress should extend "the term of copyright . . . as far as it can throw."

Opponents took this to mean perpetual copyright, which Mr. Helprin denies. In turn he accuses his vocal critic Lawrence Lessig, co-founder of Creative Commons—a nonprofit that encourages art sharing consistent with copyrights—of leading a movement to ravage Western civilization.

In reality, both sides agree with the premise embedded in the Constitution, which is that people ought not enjoy art without compensating the artist, any more than one can dine without paying the chef. They also recognize that while we want to give artists incentives, we don't want the costs to be so high that art appreciation—a difficult cultural attribute to re-establish once it is lost —declines.

Mr. Lessig appears to win on the economics. Mr. Helprin claims injustice in the fact that the family of a factory owner can inherit his property through generations, while the family of a writer loses rights to his creations in a relatively short time. Mr. Lessig observes, however, that copyright holders don't pay property taxes, which evens out financial returns over the course of a 95-year copyright.

But in dollar terms, some decisions by copyright holders, rather than optimize the artist's revenue and distribution, insure the opposite. When I asked to use a single line by songwriter Joe Henry, for example, his record label's parent company demanded $150 for every 7,500 copies of my book. Assuming I sell enough books to earn back my modest advance, this amounts to roughly 1.5% of my earnings, all for quoting eight words from one of Mr. Henry's songs.

I love Joe Henry, but the price was too high. I replaced him with Shakespeare, whose work (depending on which edition you use) is in the public domain. Mr. Henry's record label may differ, but it's not clear that his interests —or theirs—are being served here. Were they concerned that readers might have their thirst for Mr. Henry's music sated by that single lyric? Isn't it more likely that his lyric would have enticed customers who otherwise wouldn't have heard of him?

The copyright thicket is a growing frustration among writers and editors. One editor of a popular literary anthology (who asked to remain anonymous for fear of reprisals from publishers) confirmed that many publishers pursue illusory short-term profit at the expense of both profit and art. By demanding fees that most people won't pay, they forsake free advertising for the artists they claim to protect. If restaurants behaved that way, not only would they deny you the right to take home leftovers to your dog, they'd try to charge you for smelling their food when you pass by.

Further, this editor noted that one reason literary anthologies and college-course syllabi have replaced classics with less edifying sources like newspaper articles and diaries is simply that major artists in the American literary canon are too expensive to procure en masse, if not totally off limits. The estates of William Faulkner and Ernest Hemingway have historically restricted which stories can be used in anthologies, which means that students often have a narrow exposure to two of our country's finest writers.

For an idea of where this is all leading, note that the publishing world is being roiled by a controversy that erupted in the music industry several years ago, when musicians and record companies went after enterprises, like Napster, that facilitated music theft. It sounds noble enough, but it's not clear this actually benefited artists.

Economists Koleman Strumpf and Felix Oberholzer-Gee found that while illegal downloads deprive musicians of rightful compensation, they also advertise the artists' work to more people, many of whom subsequently go out and buy the music. The net result is revenue-neutral.

As a memoir author, I reached the height of frustration when I realized it was going to take heroic effort to use J.R.R. Tolkien's "Bath Song," which is controlled by a division of my own publisher's parent company. Between that, and fee demands or non-responses from other publishers, I turned to my poet friends.

"Will you," I asked them, "give me a poem in return for a book and dinner?" Now my book has some lovely poems by very fine poets most people don't yet know.

So perhaps I shouldn't complain. It's hard to borrow work by recognized artists, but when one door closes, as they say, another door opens.

Still, I can't help but wonder if major publishers might want to let economists, rather than copyright attorneys, govern their decisions in this area. If you agree, perhaps you might quote this essay to them. I'm sure we can work out a reasonable fee."

http://online.wsj.com/article/SB10001424052748704608104575220551906611796.html

A Comics Clash in the East; New York Times, 7/11/10

Michael Cieply, New York Times; A Comics Clash in the East:

"It appears that New York, not Los Angeles, will be the battleground for a supersize legal contest between the Marvel Entertainment unit of the Walt Disney Company and heirs of the comic book genius Jack Kirby.

When last seen in these pages, the Kirby heirs and Marvel had squared off in the federal courts of both New York and Los Angeles. Marvel first filed suit in the Southern District of New York, asking the court to confirm Disney’s ownership of comic book characters like the Incredible Hulk and the X-Men, despite Mr. Kirby’s work on them. The Kirbys fired back in the Central District of California, asserting, among other things, the right to reclaim copyrights to many of those characters.

On Tuesday, however, the Kirbys filed notice of dismissal of their complaint, closing the California case. Marc Toberoff, a lawyer who represents the family, did not immediately respond to a query about the dismissal.

But the legal battle continues to rage in New York, where the Kirbys in April filed a 29-page response to Marvel, and a counterclaim that insists on their right to terminate the copyrights, on the return of some Kirby artwork said to be in Marvel’s possession and on damages yet to be determined.

Marvel and the Kirbys have since been slugging at each other with dueling declarations and motions in the New York court, portending a long, dark struggle for control of a comic book universe on which much of Hollywood has come to depend."

http://mediadecoder.blogs.nytimes.com/2010/07/11/a-comics-clash-in-the-east/?scp=1&sq=jack%20kirby&st=cse

Movie’s Owners Want to Know if a Film Is Fit for Framing; New York Times, 7/11/10

Michael Cieply, New York Times; Movie’s Owners Want to Know if a Film Is Fit for Framing:

"Spun around politics, sexual identity and cinema, “Kiss of the Spider Woman,” nominated for four Oscars and the winner of one in 1986, is the consummate art film.

But is it a collectible work of art? Those who own it are trying to find out.

In an unusual twist even for a picture outside the norms — its Oscar-winning lead, William Hurt, paused his red-hot career to play a film-struck homosexual for almost no fee when that still seemed more suicidal than savvy — David Weisman, the movie’s producer, and David S. Phillips, who joined him later in acquiring its rights, are planning in coming weeks to offer “Kiss of the Spider Woman” for sale as an artwork.

By that, they mean an object of beauty. The film is now available in its entirety — its copyright, negatives, prints, digital video masters and more — along with a carefully preserved archive that includes 313 boxes of 35-millimeter outtakes, five drafts of the screenplay by Leonard Schrader and a stack of rejection letters from studio executives who were sure that the movie would never work.

“I’m not aware of its having been done before,” said Grey Smith, who specializes in film collectibles at the Heritage Auction Galleries in Dallas, and is not involved in the “Spider Woman” sale.

“I wish them the best,” Mr. Smith added. “This could open up avenues for people who own rights to other feature films.”

After their commercial release, feature films are typically held in clumps, like the 4,000-title library owned by Metro-Goldwyn-Mayer, or the smaller collection of about 700 movies and television shows at Miramax Films, which is now being sold by the Walt Disney Company.

But independent films sometimes fall out of the system, as agreements under which they were licensed for distribution expire, and the copyright remains with, or is acquired by, individual owners who are not aligned with any of the major film companies.

Such outlying works normally have little value for large distributors, which may buy them for a relatively small fee, based on future returns in the home video and television markets, but which remain far more interested in fresh films or mass transactions."

http://www.nytimes.com/2010/07/10/movies/10spider.html

Lawsuit Over Use Of Creative Commons Content Raises Contract vs. Copyright Issue; TechDirt.com, 7/8/10

Mike Masnick, TechDirt.com; Lawsuit Over Use Of Creative Commons Content Raises Contract vs. Copyright Issue:

"One of the more interesting issues related to copyright law is how contract law meshes with copyright law. For example, there was the recent case (still going through the appeals process) over whether or not a copyright holder (a record label in this case) could effectively wipe out First Sale rights (allowing you to resell what you bought) via a contract. As of right now, the US courts have said no -- and that's important. If you could supercede copyright laws with contractual terms, it would make the limitations on copyright law effectively meaningless, because every product would quickly include some sort of licensing agreement that took away fair use, first sale and other exceptions (including, potentially, the idea that the copyrights might someday expire). This is not a US only issue, of course. Just recently we've seen blogs from elsewhere also start to discuss if contracts can increase limitations beyond copyrights.

However, there is a new lawsuit in the US that may be worth following on this topic. It involves GateHouse Media -- a company that has been ridiculously aggressive in trying to stop others from doing things as simple as copying a headline and a lede. In this case, the primary issue is a little (if only slightly) more reasonable, in that the lawsuit involves a company that sells nice looking plaques to people with a copy of a newspaper article about them or their company. GateHouse offers such a service itself, and clearly sees this competition as infringing.

Where the case gets interesting, however, is that GateHouse's content in this case (from the Rockford Register Star in Rockford Illinois), has its content covered by a Creative Commons "Attribtuion-NonCommercial-NoDerivs" license. The lawsuit covers a bunch of ground, but one interesting inclusion: claiming that the reprints are a contract violation, because they don't follow the Creative Commons license on the content.

For quite some time, Copycense has been banging the drum that setting up Creative Commons as a contractual layer to copyright takes it into dangerous territory that isn't good for copyright law itself or overall public policy. There haven't been too many cases that have tested this point, but it sounds like the GateHouse Media one has the potential to raise certain questions (who knows if we'll actually get answers) about how copyright and contracts relate to each other -- especially within the realm of Creative Commons.

This has been one of my concerns with Creative Commons. Many folks who support Creative Commons licenses are justifiably worried about what happens in cases like the one above concerning promo CDs where the First Sale doctrine gets written out of copyright law via contract. Yet, at the same time, the whole basis of many Creative Commons licenses is based on this same ability to bring contract law into copyright. As much as I like the concept of Creative Commons, this still leaves me worried. The lawsuit itself may not end up challenging this point, but sooner or later, someone's going to do so, and people who think they're on one side of the argument may quickly find themselves on the flip side."

http://www.techdirt.com/articles/20100707/04163310101.shtml

US could learn from Brazilian penalty for hindering fair use; ArsTechnica.com, 7/9/10

Nate Anderson, ArsTechnica.com; US could learn from Brazilian penalty for hindering fair use:

"Brazil has proposed a broad update to its copyright law (Portuguese) and it contains a surprising idea: penalize anyone who "hinders or impedes" fair use rights or obstructs the use of work that has already fallen into the public domain.

A huge win for consumers? Sure, but it gets better. A moment's thought reminds us that most DRM schemes will eventually run afoul the above provisions, since they apply in perpetuity. That DRMed music file will still be DRMed even after the song has fallen into the public domain.
So Brazil wants to ensure that DRM "has time-limited effects that correspond to the period of the economic rights over the work, performance, phonogram or broadcast." Once copyright has expired, DRM should, too.

As if that's not enough, Brazil says that DRM can be bypassed in order to make any "fair" use of the work or in cases where the copyright has expired but the DRM has not.

Contrast this with the US approach to copyright in the Digital Millennium Copyright Act (DMCA), which said nothing about time-limited DRM and made circumvention illegal in nearly all cases, even when the intended use of the material would be legal.

Brazil's proposal could be spun as something hostile to rightsholders, but it's not that simple. The law does provide protection for DRM; in general, it is illegal to remove, modify, bypass, or impair such anti-copying technology. It's just that rightsholders can't use DRM as a digital lock to give themselves more control over a work through technology than they have under the law.

Michael Geist, a Canadian law professor who highlighted the new proposal, sums it up as a properly balanced approach that doesn't buy into the "more is better" approach to copyright protections. "In other words, the Brazilian proposals recognizes what the Supreme Court of Canada stated several years ago," he writes, "over-protection is just as harmful as under-protection."

http://arstechnica.com/tech-policy/news/2010/07/us-could-learn-from-brazilian-penalty-for-hindering-fair-use.ars

Judge slams, slashes "unconstitutional" $675,000 P2P award; ArsTechnica.com, 7/9/10

Nate Anderson, ArsTechnica.com; Judge slams, slashes "unconstitutional" $675,000 P2P award:

"Judge Nancy Gertner knows that Joel Tenenbaum did it. Tenenbaum, the second US target of the RIAA's five-year litigation campaign to complete a trial, eventually admitted his music-sharing liability on the stand—and Judge Gertner issued a directed verdict against him. But when the jury returned a $675,000 damage award, they went too far. Way too far.

In fact, according to Gertner, they trampled the Constitution's "Due Process" clause. In a ruling today, the judge slashed the $675,000 award by a factor of 10, to $67,500.

Two for two

If it sounds like a familiar result, it should. In Minnesota, Judge Michael Davis used a different legal approach called remittitur to lower Jammie Thomas-Rasset's liability from $1.9 million to $2,250 per song. That amount is three times higher than the $750 minimum for statutory damages, and Judge Gertner has accepted both Judge Davis' number and his reasoning when issuing her own opinion.

"Weighing all of these considerations, I conclude that the jury’s award of $675,000 in statutory damages for Tenenbaum’s infringement of thirty copyrighted works is unconstitutionally excessive," she wrote. "This award is far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement. In fact, it bears no meaningful relationship to these objectives. To borrow Chief Judge Michael J. Davis' characterization of a smaller statutory damages award in an analogous file-sharing case, the award here is simply 'unprecedented and oppressive.'"

And, just like Davis, Gertner made clear that she was deferring to Congress and to the jury by even allowing this amount to stand. "This amount is more than I might have awarded in my independent judgment," she said. "But the task of determining the appropriate damages award in this case fell to the jury, not the Court. I have merely reduced the award to the greatest amount that the Constitution will permit given the facts of this case."

When Judge Davis used remittitur—essentially an application of judicial discretion—to cut the Minnesota award, he set himself up for a third trial in the Thomas-Rasset case, one that will get underway in October. (Remittitur only works when the plaintiff accepts it; if not, the plaintiff has the right to a whole new trial.)

But Gertner doesn't want another trial, because she's concerned that she will face the same issue again in the future.

"The plaintiffs in this case [the music labels], however, made it abundantly clear that they were, to put it mildly, going for broke," she wrote. "They stated in open court that they likely would not accept a remitted award. And at a retrial on the issue of damages, I would again be presented with the very constitutional issues that the remittitur procedure was designed to avoid. I am thus obliged to deal with Tenenbaum’s constitutional challenge."

And in ruling on that challenge, Judge Gertner simply couldn't believe that Congress meant for "the Copyright Act’s broad statutory damages provision [to] be applied to college students like Tenenbaum who file-shared without any pecuniary gain."

Gertner points out that large companies have complained for years about "out of control" jury verdicts, and that courts had repeatedly sided with corporations against absurdly large damages on Constitutional grounds. Those protections apply to everyone.

"Reducing the jury’s $675,000 award, however, also sends another no less important message: The Due Process Clause does not merely protect large corporations, like BMW and State Farm, from grossly excessive punitive awards," she wrote. "It also protects ordinary people like Joel Tenenbaum."

"We will contest this ruling"

We checked in with the Recording Industry Association of America (RIAA), which was—as you might suspect—not pleased at having another federal judge reduce a P2P damage award.
"With this decision, the court has substituted its judgment for that of 10 jurors as well as Congress," it said in a statement. "The judge appropriately recognized the egregious conduct of the defendant, including lying to the court about his behavior, but then erroneously dismisses the profound economic and artistic harm caused when hundreds of songs are illegally distributed for free to millions of strangers on file-sharing networks. We disagree with court's reasoning and analysis, and we will contest this ruling."

Congress hasn't yet acted to bring some kind of sanity to the damage awards in these cases, so it looks as though federal judges are now making a concerted effort to establish precedent for reasonable damages. Both Davis and Gertner have settled on $2,250 a song—far lower than the $150,000 per-work maximum that was on the table in both cases.

In addition to irritating the RIAA, the ruling can't be good news for the US Copyright Group, which has filed 14,000 similar lawsuits in 2010 alone, targeting those who swap independent films online. The settlement letters in those cases make clear that, unless defendants cough up the cash, the US Copyright Group plans to seek the full $150,000 if the case goes to court. Judges appear to have other thoughts."

http://arstechnica.com/tech-policy/news/2010/07/judge-slams-slashes-unconstitutional-675000-p2p-award.ars

Men at Work flautist may sell house after copyright ruling; (London) Guardian, 7/9/10

Sean Michaels, (London) Guardian; Men at Work flautist may sell house after copyright ruling: Musician responsible for Down Under flute riff fears he may be forced to sell his home to pay legal costs and royalties:

"One of the most successful flautists in pop may have to sell his house. Greg Ham, the manwho [sic] helped Men at Work's Down Under to the top of the charts, fears this week's copyright ruling will force him literally out of house and home. According to an Australian judge, Men at Work must pay 5% of the song's royalties to the publishers of a classic children's song.

"At the end of the day, I'll end up selling my house," Ham explained to the Age newspaper. Thanks to his contentious flute riff, the Men at Work multi-instrumentalist currently receives a small percentage of the song's royalties; but not, he claims, for long. "We'll face massive legal costs ... I'll never see another cent out of [Down Under] again."

On Tuesday, 21 years after Down Under was recorded, judge Peter Jacobson ruled the distinctive flute part had been copied from the Girl Guides campfire tune Kookaburra Sits in the Old Gum Tree. They must now pay back royalties starting from 2002, when a statute of limitations begins.

Ham still denies that the campfire classic had any impact on his playing. "I was looking for something that sounded Australiana – that's what came out," he said. "It was never Kookaburra Sits in the Old Gum Tree ... no one detected [the resemblance] – I didn't detect it and I played the fucking thing."

"Music's always been about referring to what's already in our culture," he insisted. Not only has Kookaburra now milked one of the flautist's main cash cows, but Ham complained that it has taken over the legacy of Down Under. "It will be the way the song is remembered and I hate that," he said. "I'm terribly disappointed that it's the way I'm going to be remembered – for copying something."

http://www.guardian.co.uk/music/2010/jul/09/men-at-work-flautist

Judge Says Damages In Tenenbaum Case Were 'Unconstitutionally Excessive'; TechDirt.com, 7/9/10

Mike Masnick, TechDirt.com; Judge Says Damages In Tenenbaum Case Were 'Unconstitutionally Excessive':

"It seems like the Joel Tenenbaum case is simply an echo on the Jammie Thomas case. Both lawsuits involved very flawed defendants who probably shouldn't have gone through with their fights against the RIAA. In both cases, juries awarded huge statutory damages awards to the record labels. In Thomas' case it was $1.92 million or $80,000 per song. In the Tenenbaum case, it was $675,000 or $22,500 per song. Even though both cases were what I considered to be "bad" cases (too much evidence that both Thomas and Tenenbaum were actually heavily involved in file sharing), both have used the rulings to challenge the statutory damages awards as being unconstitutional.. and now the judges in both cases have agreed.

As you probably recall, the judge in the Thomas case reduced the $1.92 million award to $54,000 (or $2,250 per song) and today comes the news that Judge Gertner in the Tenenbaum case has declared the original damages award to be "unconstitutionally excessive" and slashed the total by 90% down to $67,500. In both cases, the judges actually set the per song damages award down to $2,250. There were lots of questions when Judge Davis did this in the Jammie Thomas case if a judge could actually do that, and that's still being fought to some extent. It seems likely that, as with the Thomas case, the RIAA will appeal this particular ruling because it most certainly does not want a precedent on the books that can lower the statutory damages rate for copyright.

This could start to get very interesting. Both judges are clearly taking a stand that the actual statutory rates set by Congress are ridiculously high and totally out of proportion with the actions done by the defendants. There is definitely some precedent for ridiculously high damages awards being thrown out as unconstitutionally excessive... but not when it comes to statutory rates, where the courts have generally said Congress has great leeway to determine what is and what is not excessive. However, with two judges pointing out that a number within the range provided by Congress is excessive, it's setting up a potentially very important legal battle about the statutory damages associated with copyright.

The industry has always pushed for higher and higher damages, somehow believing that will act as a disincentive for infringing. Yet, there doesn't appear to be any evidence at all that it's working. Instead, such high damages have actually done the opposite. They've convinced many, many people of just how ridiculously unfair and out of touch copyright laws are. The general public can recognize that sharing a single file shouldn't lead to a fine of tens of thousands of dollars. It's so out of proportion with reality that they begin to question the overall setup of copyright law itself. The industry's focus on higher and higher copyright damages has been a major strategic mistake that has backfired. These rulings -- which the industry will fight tooth and nail -- might actually be a blessing in disguise for the industry. If the actual damages weren't so ridiculous, people probably wouldn't be so up in arms over copyright issues."

http://www.techdirt.com/articles/20100709/11305410154.shtml

Prince Declares the Internet "Completely Over"; Rolling Stone, 7/6/10

Daniel Kreps, Rolling Stone; Prince Declares the Internet "Completely Over": Singer refuses to sell new album '20Ten' via digital outlets:

"Last week, Prince announced that he was going to release his latest album 20Ten as an add-on to European newspapers and an upcoming issue of German Rolling Stone. In an interview promoting the release with England's Daily Mirror , the iconic songwriter reveals his improbable motive for the choice: he hates the Internet. "The Internet's completely over," says Prince, who will not sell his new album via iTunes or Amazon. "I don't see why I should give my new music to iTunes or anyone else. They won't pay me an advance for it and then they get angry when they can't get it." Prince goes on to compare digital outlets to once-influential juggernauts like MTV. "At one time, MTV was hip and suddenly it became outdated," he says. "Anyway, all these computers and digital gadgets are no good. They just fill your head with numbers and that can't be good for you."

Prince is putting his money where his mouth is. He recently took down his relatively new Lotusflow3r site, which launched in January 2009 to accompany the release of his Lotusflow3r triple-disc album. The site, which he created to combat pirated material on the web, allowed fans to pay a membership fee in order to access Prince videos, music and photos. However, 18 months after its launch, the site simply prompts an error page. Ironically, a decade ago Prince was one of the artists openly endorsing the Internet in an age of Napster, releasing his remix album Rave In2 the Joy Fantastic exclusively to subscribers of his NPG Music Club, which also came to an abrupt end in 2006...

As Rolling Stone previously reported, 20Ten will arrive via England's Daily Mirror, Scotland's Daily Record and Belgium's Het Nieuwsblad on July 10th, while the German edition of Rolling Stone will feature copies of 20Ten in each of its July 22nd issues. Along with copies of 20Ten, each newspaper or magazine will come with a rare interview with the artist. Prince will also reportedly tour Europe later this year. So far, there are no plans for a U.S. release, though Prince has reportedly had meetings with Warner Music to distribute the album."

http://www.rollingstone.com/music/news/17386/152792

No Easy Answers in the Copyright Debate; New York Times,

David Pogue, New York Times; No Easy Answers in the Copyright Debate:

"You'd think it'd be pretty easy to live within the copyright laws, or at least to understand them: If you want something of value, you pay for it.

Different people have drastically different ideas about pirated sheet-music.

But two things happened this week that are enough to rattle anyone who thinks it's that simple.

First, I was alerted to a blog post by Jason Robert Brown. He's a songwriter and the composer of Broadway musicals like "13," "The Last Five Years" and "Parade." (I knew him when he was just starting out and I was still working on Broadway.) He became alarmed at how many pieces of sheet music to his songs were available for free, illegal download online. And after tolerating it for years, he finally tried an experiment.

He contacted each person on the download board like this: "Hey there! Can I get you to stop trading my stuff? It's totally not cool with me. Write me if you have any questions; I'm happy to talk to you about this."

You can read the full story here. But in short, one articulate young lady decided to push back, explaining her rationale for downloading his songs. What follows is a lengthy, sometimes testy back-and-forth-and an even lengthier, more passionate torrent of discussion in the comments for his post.

In the end, I side with Mr. Brown. One of his songs costs $4 in sheet-music form; that doesn't seem unreasonable. His teenaged challenger's argument is that her parents don't support her singing career -- but I don't see why it's Mr. Brown's obligation to sacrifice on her behalf.

I was pretty sure of myself -- until I heard from my friend Michael Hawley, formerly of the M.I.T. Media Lab, now a digital-media researcher, award-winning pianist and polymath. After reading Mr. Brown's account, he wrote to explain why he thinks sheet-music pirating is O.K., or even necessary.

Here's what he says:
=====
I play the piano. Over the years, I have collected 15,000 piano scores in PDF form, covering about 400 years of classical keyboard works.

It's like lint in the drier of the Internet. Much of it is not available anywhere for purchase, or even findable in libraries for circulation. Max Reger's arrangement for two pianos of Wagner's overture, for instance? Well, the Max Reger Institute in Karlsruhe, Germany has a copy...
The last classical sheet music store in New York, Patelson's, went out of business recently. The recession finished them off. It was THE place to go to buy piano music. When I was in high school, I used to go there for hard-to-find scores by Granados or Medtner, and then hit the Carnegie Deli for some pastrami. Amazing, isn't it? New York City doesn't have an independent store that sells classical music scores.

Fortunately, over the last ten or fifteen years, amateur pianists have been scanning the contents of their grandmother's piano benches, and... voilà. A million monkeys typing don't get you Shakespeare, but a million monkeys scanning -- that makes a dent. I began collecting this stuff as a hobby. One day, I looked at my pile of music score bits. In those days, 15 gigabytes was most of my hard drive. But it was all there. All of Bach. All of Scriabin. All of Rachmaninoff.

At the Van Cliburn piano competition, a couple years ago, I gave tiny thumb drives to some of the winners and said, "Enjoy." Each thumb drive was smaller than my pinky but contained was the whole 15 GB trove. It blew their minds. Basically, every significant piano piece is in the pile.

What happened is, the classical piano sheet music publishing world plotzed a long time ago. But thanks to the monkeys, a lot of DNA has been preserved and is more available now than ever before. The monkeys aren't as well organized as the Wikipedia minions, but someday they will be.

When the publishers, composers, music stores have long since gone out of business, when the libraries don't have the stuff, the internet quickly becomes the Sargasso sea for catching this stuff. Not saying that your songwriter friend's points aren't completely valid -- of course they are. As slippery as digital rights are, the fact is that digital publishing probably gives people more ways to make more money and reach far wider audiences than the paper-based music publishing racket ever did.

But copyright, like the people who originate the material and the industries that promulgate it, has a lifespan. I think the classical piano sheet music world gives a glimpse of the end state -- out of the ashes of the music business, comes the rebirth of the musician business (as John Perry Barlow once said). It also, more importantly, shows what happens when a society does a poor, random job of preserving their cultural heritage to nurture future generations.

Generally, I side with the teenagers.

====
I still think that if something is available for sale legitimately, you should pay for it (books, music, photos, movies, sheet music). A lot of the Bach, Scriabin and Rachmaninoff in Mr. Hawley's collection is certainly available, and handing it to friends on a flash drive is absolutely depriving the publishers of their revenue. True, the composers are long dead, but editing and publishing sheet music is still worth something.

It's those obscure, out-of-print, not-available-anywhere items in his collection that make a tougher case. How many hours are you obligated to research and dig just to find out if something is available for sale? In this case, the barriers to a legitimate purchase are ridiculously high. Isn't digital piracy justified in that case?

Let me know what you think in the Comments at nytimes.com/pogue."

http://www.nytimes.com/2010/07/08/technology/personaltech/08pogue-web.html?_r=1&emc=eta1

Stanford Ushers In The Age Of Bookless Libraries; NPR, 7/8/10

Laura Sydell, NPR; Stanford Ushers In The Age Of Bookless Libraries:

"The periodical shelves at Stanford University’s Engineering Library are nearly bare. Library chief Helen Josephine says that in the past five years, most engineering periodicals have been moved online, making their print versions pretty obsolete — and books aren't doing much better.

According to Josephine, students can now browse those periodicals from their laptops or mobile devices.

For years, students have had to search through volume after volume of books before finding the right formula — but no more. Josephine says that "with books being digitized and available through full text search capabilities, they can find that formula quite easily."

In 2005, when the university realized it was running out space for its growing collection of 80,000 engineering books, administrators decided to build a new library. But instead of creating more space for books, they chose to create less.

The new library is set to open in August with 10,000 engineering books on the shelves — a decrease of more than 85 percent from the old library. Stanford library director Michael Keller says the librarians determined which books to keep on the shelf by looking at how frequently a book was checked out. They found that the vast majority of the collection hadn't been taken off the shelf in five years.

Keller expects that, eventually, there won't be any books on the shelves at all.

"As the world turns more and more, the items that appeared in physical form in previous decades and centuries are appearing in digital form," he says.

Given the nature of engineering, that actually comes in handy. Engineering uses some basic formulas but is generally a rapidly changing field — particularly in specialties such as software and bioengineering. Traditional textbooks have rarely been able to keep up.

Jim Plummer, dean of Stanford's School of Engineering, says that's why his faculty is increasingly using e-books.

"It allows our faculty to change examples," he says," to put in new homework problems ... and lectures and things like that in almost a real-time way."

A New Trend In Libraries?

For the moment, the Engineering Library is the only Stanford library that's cutting back on books. But Keller says he can see what's coming down the road by simply looking at the current crop of Stanford students.

"They write their papers online, and they read articles online, and many, many, many of them read chapters and books online," he says. "I can see in this population of students behaviors that clearly indicate where this is all going."

And while it's still rare among American libraries to get rid of such a large amount of books, it's clear that many are starting to lay the groundwork for a different future. According to a survey by the Association of Research Libraries, American libraries are spending more of their money on electronic resources and less on books.

Cornell University's Engineering Library recently announced an initiative similar to Stanford's — but the move to electronic books is also meeting some resistance. An effort by Arizona State University to use Amazon's Kindle to distribute electronic textbooks was met with a lawsuit because the device wasn't fully accessible to the visually impaired.

Meanwhile, back at Stanford's new Engineering Library, librarians are looking forward to spending less time with books and more time with people.

"That's what we're so [excited about]," Josephine says, "the idea of actually offering more services, offering more workshops, offering more one-on-one time with students."

But some Stanford students express mixed feelings about the shift. Engineering student Sam Tsai is checking out some old-fashioned paper books.

"To read a book on the screen is kind of tiring for me," Tsai says, "so I sometimes like [the] paper form. But if I can access books online, it's much more convenient for me, so I would actually prefer that as well."

For now, at least, Tsai can have the option of both."

http://www.npr.org/templates/story/story.php?storyId=128361395&ps=cprs

To Stop Cheats, Colleges Learn Their Trickery; New York Times, 7/6/10

Trip Gabriel, New York Times; To Stop Cheats, Colleges Learn Their Trickery:

"Anti-plagiarism services requiring students to submit papers to be vetted for copying is a booming business. Fifty-five percent of colleges and universities now use such a service, according to the Campus Computing Survey.

The best-known service, Turnitin.com, is engaged in an endless cat-and-mouse game with technologically savvy students who try to outsmart it. “The Turnitin algorithms are updated on an on-going basis,” the company warned last month in a blog post titled “Can Students ‘Trick’ Turnitin?”

The extent of student cheating, difficult to measure precisely, appears widespread at colleges. In surveys of 14,000 undergraduates over the last four years, an average of 61 percent admitted to cheating on assignments and exams.

The figure declined somewhat from 65 percent earlier in the decade, but the researcher who conducted the surveys, Donald L. McCabe, a business professor at Rutgers, doubts there is less of it. Instead, he suspects students no longer regard certain acts as cheating at all, for instance, cutting and pasting a few sentences at a time from the Internet.

Andrew Daines, who graduated in May from Cornell, where he served on a board in the College of Arts and Sciences that hears cheating cases, said Internet plagiarism was so common that professors told him they had replaced written assignments with tests and in-class writing.

Mr. Daines, a philosophy major, contributed to pages that Cornell added last month to its student Web site to bring attention to academic integrity. They include a link to a voluntary tutorial on avoiding plagiarism and a strongly worded admonition that “other generations may not have had as many temptations to cheat or plagiarize as yours,” and urging students to view this as a character test.

Mr. Daines said he was especially disturbed by an epidemic of students’ copying homework. “The term ‘collaborative work’ has been taken to this unbelievable extreme where it means, because of the ease of e-mailing, one person looking at someone else who’s done the assignment,” he said.

At M.I.T., David E. Pritchard, a physics professor, was able to accurately measure homework copying with software he had developed for another purpose — to allow students to complete sets of physics problems online. Some answered the questions so fast, “at first I thought we had some geniuses here at M.I.T.,” Dr. Pritchard said. Then he realized they were completing problems in less time than it took to read them and were copying the answers — mostly, it turned out, from e-mail from friends who had already done the assignment.

About 20 percent copied one-third or more of their homework, according to a study Dr. Pritchard and colleagues published this year. Students who copy homework find answers at sites like Course Hero, which is a kind of Napster of homework sharing, where students from more than 3,500 institutions upload papers, class notes and past exams.

Another site, Cramster, specializes in solutions to textbook questions in science and engineering. It boasts answers from 77 physics textbooks — but not Dr. Pritchard’s popular “Mastering Physics,” an online tutorial, because his publisher, Pearson, searches the Web for solutions and requests they be taken down to protect its copyright.

“You can use technology as well for detecting as for committing” cheating, Dr. Pritchard said.

The most popular anti-cheating technology, Turnitin.com, says it is now used by 9,500 high schools and colleges. Students submit written assignments to be compared with billions of archived Web pages and millions of other student papers, before they are sent to instructors. The company says that schools using the service for several years experience a decline in plagiarism.

Cheaters trying to outfox Turnitin have tried many tricks, some described in blogs and videos. One is to replace every “e” in plagiarized text with a foreign letter that looks like it, such as a Cyrillic “e,” meant to fool Turnitin’s scanners. Another is to use the Macros tool in Microsoft Word to hide copied text. Turnitin says neither scheme works.

Some educators have rejected the service and other anti-cheating technologies on the grounds that they presume students are guilty, undermining the trust that instructors seek with students.

Washington & Lee University, for example, concluded several years ago that Turnitin was inconsistent with the school’s honor code, “which starts from a basis of trusting our students,” said Dawn Watkins, vice president for student affairs. “Services like Turnitin.com give the implication that we are anticipating our students will cheat.”

For similar reasons, some students at the University of Central Florida objected to the business school’s testing center with its eye-in-the-sky video in its early days, Dr. Ellis said.

But recently during final exams after a summer semester, almost no students voiced such concerns. Rose Calixte, a senior, was told during an exam to turn her cap backward, a rule meant to prevent students from writing notes under the brim. Ms. Calixte disapproved of the fashion statement but didn’t knock the reason: “This is college. There is the possibility for people to cheat.”

A first-year M.B.A. student, Ashley Haumann, said that when she was an undergraduate at the University of Florida, “everyone cheated” in her accounting class of 300 by comparing answers during quizzes. She preferred the highly monitored testing center because it “encourages you to be ready for the test because you can’t turn and ask, ‘What’d you get?’ ”

For educators uncomfortable in the role of anti-cheating enforcer, an online tutorial in plagiarism may prove an elegantly simple technological fix.

That was the finding of a study published by the National Bureau of Economic Research in January. Students at an unnamed selective college who completed a Web tutorial were shown to plagiarize two-thirds less than students who did not. (The study also found that plagiarism was concentrated among students with lower SAT scores.)

The tutorial “had an outsize impact,” said Thomas S. Dee, a co-author, who is now an economist at the University of Virginia.

“Many instructors don’t want to create this kind of adversarial environment with their students where there is a presumption of guilt,” Dr. Dee said. “Our results suggest a tutorial worked by educating students rather than by frightening them.”

Only a handful of colleges currently require students to complete such a tutorial, which typically illustrates how to cite a source or even someone else’s ideas, followed by a quiz.

The tutorial that Bowdoin uses was developed with its neighbor colleges Bates and Colby several years ago. Part of the reason it is required for enrollment, said Suzanne B. Lovett, a Bowdoin psychology professor whose specialty is cognitive development, is that Internet-age students see so many examples of text, music and images copied online without credit that they may not fully understand the idea of plagiarism.

As for Central Florida’s testing center, one of its most recent cheating cases had nothing to do with the Internet, cellphones or anything tech. A heavily tattooed student was found with notes written on his arm. He had blended them into his body art."

http://www.nytimes.com/2010/07/06/education/06cheat.html?pagewanted=2&_r=1&sq=turnitin&st=cse&scp=1

Men at Work flautist has heard the thunder; Sydney Morning Herald, 7/7/10

Patrick Donovan, Sydney Morning Herald; Men at Work flautist has heard the thunder:

"THE man at the centre of Men at Work's copyright dispute is shattered that the famous song and his reputation have been tarnished.

''It has destroyed so much of my song,'' flute player Greg Ham said.

His refrain in Down Under was found to have reproduced a ''substantial part'' of the Guides' campfire anthem Kookaburra Sits in the Old Gum Tree.

''It will be the way the song is remembered and I hate that,'' he said. ''I'm terribly disappointed that that's the way I'm going to be remembered - for copying something.''

Justice Peter Jacobsen yesterday ordered the song's composers, Colin Hay and Ron Strykert, and its publisher EMI to pay publisher Larrikin Music 5 per cent of Down Under's future profits, as well as royalties dating back to 2002.

Larrikin Music holds the copyright for the original Kookaburra melody, which was written more than 75 years ago by Toorak teacher Marion Sinclair.

The ruling is for substantially less than the 50 per cent royalty cut sought by Larrikin.

Mr Ham, who receives a small percentage of the song's royalties, said the decision ''could have been worse''.

''If it had been backdated to the '80s that would have been wrist slashing stuff,'' he said.

''I'll never see another cent out of that song again. We'll face massive legal costs.

''At the end of the day, I'll end up selling my house.''

He said he was still ''flabbergasted'' by the ruling of plagiarism.

''No one detected it - I didn't detect it and I played the f---ing thing.''

''I was looking for something that sounded Australiana - that's what came out - it was never Kookaburra Sits in the Old Gum Tree.

''Music's always been about referring to what's already in our culture.''

He attacked the case as a ''massive waste of money and energy'' and said publishers would now be less likely to take on young songwriters.

''This whole copyright issue needs to be dealt with.

''Musicians are unaware of their rights, and they need to be able to cover themselves.''"

http://www.smh.com.au/entertainment/music/men-at-work-flautist-has-heard-the-thunder-20100706-zyzu.html

Senate Candidate Angle Accuses Senator Reid Of Copyright Infringement For Displaying Angle's Website; TechDirt.com, 7/6/10

Mike Masnick, TechDirt.com; Senate Candidate Angle Accuses Senator Reid Of Copyright Infringement For Displaying Angle's Website:

"The internet never forgets, but apparently, someone involved in the Senate election campaign for Sharron Angle was unaware of this fact. It appears that Angle and her staff are also quite unaware of The Streisand Effect. As you may or may not know, Angle is running for US Senator in Nevada, where she's challenging current Senate Majority Leader Harry Reid. Reid, apparently, has been using images from Angle's primary campaign website against her. Angle apparently totally revamped her website after winning the primary, apparently to tone down some of the rhetoric on the website. So, she's not very pleased that Reid is showing off her old website -- which his staff apparently reposted at a new domain.

So, what does she do? She sends a cease-and-desist to Reid for publishing her own website claiming that it infringed on her copyright. No, seriously. You can read the cease & desist here and laugh along with it. Her lawyers claim that Reid only did this to capture email addresses under false pretenses, but it seems pretty clear that Reid's campaign just wanted to highlight some of Angle's more incendiary comments from the primary campaign, which she's now trying to back away from.

And, of course, because of all of this, Angle and her lawyers handed the Reid campaign a perfect peg to highlight exactly those statements."

http://www.techdirt.com/articles/20100706/03574110080.shtml

Reid Republishes Angle's Old Website, Defying Cease And Desist Order; HuffingtonPost.com, 7/6/10

Sam Stein, HuffingtonPost.com; Reid Republishes Angle's Old Website, Defying Cease And Desist Order:

"Less than 24 hours after removing a version of Sharron Angle's original unvarnished campaign website, Senate Majority Leader Harry Reid (D-Nev.) is defying a cease and desist order from his Tea Party opponent and republishing the site.

The Nevada Democrat's re-election campaign unveiled (for the second time) its website The Real Sharron Angle on Tuesday afternoon. The site is basically the same platform Angle used when running in the Nevada Republican primary, though Reid's staff tinkered with its presentation to ensure it could withstand a legal challenge from the Angle campaign.

The move is a show of defiance from the Majority Leader. Hours after launching her new website -- in which many of her more provocative positions have been scrubbed -- Angle filed a legal objection to Reid's publishing of her old campaign website material, claiming misuse of copyrighted materials. The Tea Party favorite was able to win temporary relief, with Reid agreeing to pull down the old site over the July 4th weekend. But the Senate Majority Leader's legal team clearly feels there is no standing for Angle's objections. At the very least, the advantages of highlighting Angle's now- former positions and statements outweighs the potential cost in legal fees from the back-and-forth sparring over copyright law.

"While we disagree with the assertions in Angle's "Cease and Desist" letter, we took the website down temporarily to make crystal clear the intent is solely to point out how far Sharron Angle is running from her own embarrassing record," read a statement from Brandon Hall, Reid's campaign manager. "We are not attempting to deceive anyone. Unfortunately, that point was lost on Angle's campaign, as evidenced by the threat of legal action to get her own website taken down. We made minor changes to address her frivolous concerns and now hope the new Sharron Angle will focus on explaining why the old Sharron Angle's views are so unacceptable."

Reid has made changes in his presentation of Angle's old website. The new version does not contain the sections soliciting donations and email addresses, in an effort to disabuse the claim that he is trying to steal the names of her supporters."

http://www.huffingtonpost.com/2010/07/06/reid-republishes-angles-o_n_637018.html

ACTA slouches on, will be final within 6 months; ArsTechnica.com, 7/2/10

Nate Anderson, ArsTechnica.com; ACTA slouches on, will be final within 6 months:

"The Anti-Counterfeiting Trade Agreement rolls on. Negotiators have just wrapped up another round of talks this week in Lucerne, Switzerland, and more than two years into the ACTA process, have actually started to meet with civil society groups to talk about the actual ACTA draft text. (Many governments have previously asked for comments on ACTA, but before releasing the full text.)

"On the first day of the negotiations, in the interest of transparency, the Swiss Government hosted meetings at which ACTA negotiators met with representatives of civil society who have expressed an interest in ACTA to exchange views," says the official announcement...

Stung by years of criticism over the lack of transparency and ACTA's clear emphasis on enforcement (without much interest in limits and exceptions), the negotiators stress that "ACTA is not intended to include new intellectual property rights or to enlarge or diminish existing intellectual property rights. ACTA will not interfere with a signatory’s ability to respect fundamental rights and liberties."

"ACTA will not oblige border authorities to search travelers' baggage or their personal electronic devices for infringing materials."

ACTA's negotiations next come to the US, in what is meant as one of the final rounds on the agreement. The goal is to wrap ACTA up in 2010."

http://arstechnica.com/tech-policy/news/2010/07/acta-slouches-on-will-be-final-within-6-months.ars

US media companies try to resurrect 'hot news' to protect content; (London) Guardian, 7/5/10

Jeff Jarvis, (London) Guardian; US media companies try to resurrect 'hot news' to protect content: Long-dormant legal notion used in court case involving theflyonthewall.com:

"Struggling news companies from the US to Europe have been floating a variety of creative ideas for government protection: direct subsidies, new tax status, restrictions on public-media competitors, antitrust exemptions enabling consolidation or price fixing, extensions of copyright, and restrictions on fair use.

In the US, the most creative and perhaps dangerous defence yet is an attempt to resurrect the doctrine of "hot news" to prevent rivals from repeating news until it has cooled. It began in 1918: after reporting on British war losses, Hearst's International News Service was barred from using Allied telegraph lines. So INS rewrote Associated Press news for west coast newspapers. AP sued and won.

Now the long-dormant legal notion is resurrected in the case of four Wall Street firms v theflyonthewall.com, a website that published ratings from the brokers' analysts. The brokers argue the ratings belong to them, at least for a few hours; the site argues it is merely reporting news of them. The site lost and on appeal, friend-of-the-court briefs have been filed on one side by Google and Twitter and on the other by 14 news giants, including the New York Times, the Washington Post, AP, and Agence France-Presse. The news companies are latching on to hot news in the hope of restricting aggregators.

But the idea of hot news is laughably antiquated. Tom Glocer, the head of Thomson Reuters, has said his news is hot for "milliseconds". The Google/Twitter brief says: "In a world of modern communications technology, where anyone with a cell phone may disseminate news throughout the world even as it is occurring, the notion that a single media outlet should have a monopoly on time-sensitive facts is not only contrary to law, it is, as a practical matter, futile."

In their brief, the legacy companies argue hot news is "necessary to protect the news industry's incentive to gather and report news … " They protest that "free riders" may repeat their news at lower cost. "One of the greatest concerns among news originators," they say, "is inexpensive technology that allows easy aggregation of news." The legacy companies nowhere acknowledge the economic value of links to their content.

The news companies complain of papers going bankrupt, not acknowledging that that was largely a result of debt and mismanagement. They say they are not objecting to use of each other's facts in occasional stories – as they all do it – but instead the "systematic" (read: Googley) gathering of their news. They do not make reference to the tools that enable them to block search engines and aggregators, as News Corp has done at the Times.

On the other side, Google and Twitter cite a 1991 case, Feist Publications v Rural Telephone, in which the court said: "The first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence."

The internet companies say the Feist court rejected "the notion that 'sweat of the brow' can itself create intellectual property rights. They add: "The primary objective of copyright is not to reward the labour of authors but to 'promote the progress of science and useful arts'."

Facts have never been subject to copyright; they cannot be owned. "Facts," Google and Twitter say, "must remain in the public domain, free from any restraint or encumbrance." And: "Allowing the first publisher to prevent others from copying such information would defeat the objectives of copyright by impeding rather than advancing the progress of knowledge." Isn't the progress of knowledge the business of news? On a practical level, Google and Twitter argue that the fear of litigation would "chill the lawful dissemination of important news by fostering uncertainty among news outlets as to how long they must 'sit' on a story before they are free of a potential 'hot news' claim".

It is nothing short of shocking that news organisations are endorsing a form of court-supervised prior restraint and that they would restrict fair use yet they all depend upon it. Google and Twitter say "the modern ubiquity of multiple news platforms renders 'hot news' misappropriation an anachronism, aimed at muzzling all but the most powerful media companies. In a world of citizen journalists and commentators, online news organisations, and broadcasters who compete 24 hours a day, news can no longer be contained for any meaningful amount of time."

That is what we mean when we say news wants to be free: Facts must remain free to comment on, build upon, and pass along."

http://www.guardian.co.uk/media/pda/2010/jul/05/hot-news-media-companies-legal

The Recording Industry, on the Ropes; New York Times, 7/4/10

Devin Leonard, New York Times; The Recording Industry, on the Ropes:

"WHEN I started covering the music industry for Fortune nearly a decade ago, I often heard people gleefully predict that the demise of the big record companies was just around the corner.

Thanks to the Internet, my label-hating sources predicted, bands would be able to bond directly with their fans online, bypassing greedy record labels intent on cheapening the product. Supposedly, the results would be less crassly commercial music from acts like New Kids on the Block and more wondrous sounds from bands like Radiohead.

Only those with ears of tin wouldn’t wish for that. And I have to admit that I heard this argument so often that I started to believe it.

Fast-forward to the present. The recording industry has indeed been decimated by the Internet, as Fred Goodman vividly describes in “Fortune’s Fool: Edgar Bronfman Jr., Warner Music, and an Industry in Crisis” (Simon & Schuster, 323 pages). “It is the first commercial medium to feel the gale force of cyberspace,” he writes. “The entire business, including the Warner Music Group, has been blown off its foundation.”

Is this a good thing? I have had numerous conversations with musicians — both famous and obscure, but all of them doing important work — who lament that they are making much less money now that the major labels are on the ropes. Even Lady Gaga, the most popular singer in the world today, is feeling the pain. Her album sales are a fraction of the numbers that Britney Spears posted in the late 1990s at the height of her career.

Mr. Goodman says the major labels have made their share of mistakes, like suing college students to stamp out illegal downloading and sometimes treating artists like chattel. But he worries that if companies like Warner Music can’t rejuvenate themselves in the digital age, we may never see another “Abbey Road.”

In “Fortune’s Fool,” Mr. Goodman uses Mr. Bronfman’s career to tell the story of the industry’s implosion and its uncertain future. A contributor to Rolling Stone and author of “The Mansion on the Hill: Dylan, Young, Geffen, Springsteen and the Head-On Collision of Rock and Commerce,” Mr. Goodman was able to gain extensive access to Mr. Bronfman and many other important industry executives. His book is full of colorful anecdotes and astonishing quotes from his subjects.

At times, I wish that Mr. Goodman would have delved more deeply into the cultural implications of Warner Music’s tribulations and spent less time on music industry politics. But for the most part, “Fortune’s Fool” is a great read.

Mr. Bronfman is a strangely sympathetic character. The grandson of Samuel Bronfman, who built his liquor empire by selling Canadian whisky to bootleggers during Prohibition, he was anointed by his family to run the Seagram conglomerate in 1995. He raised eyebrows by steering it into the entertainment business, acquiring a movie studio and a record company.

In 2000, Mr. Bronfman naïvely engineered the sale of Seagram to Vivendi in a $33 billion stock swap. Soon, Vivendi was embroiled in an accounting scandal. The price of the company’s shares plummeted, and the value of the Bronfman family’s holdings tumbled by $3 billion. And that, many people assumed, was the end of his business career.

Yet, six years ago, he orchestrated a comeback as breathtaking as Mariah Carey’s return to the top 10 after her “Glitter” debacle. He and a team of private equity investors bought Warner Music for $2.6 billion, and he became its C.E.O. And he showed that he had a knack for hiring the right executives.

His choice for the company’s North American recorded music unit was Lyor Cohen, a former rap music promoter, whom his former clients affectionately nicknamed “Lansky,” after the legendary gangster Meyer Lansky.

“Fortune’s Fool” truly takes off when Mr. Goodman brings Mr. Cohen onstage and describes how he clawed his way up from managing tours for emerging rap acts like the Beastie Boys to landing in the executive suite at Warner Music.

Together, Mr. Cohen and Mr. Bronfman set out to show that the music industry wasn’t dead yet. They have faced innumerable challenges — the implosion of Tower Records, a generation of young consumers who refuse to pay for digital music, and technology company executives intent on capitalizing on the music industry’s troubles. By the way, these were the same people who told me that music industry executives like Mr. Bronfman were Sith lords and that they themselves were the Jedi.

By the end of “Fortune’s Fool,” Warner Music has outperformed most of its peers. But Mr. Goodman fears that the company’s long-term survival remains in question.

This is not a hagiography. Mr. Goodman obviously likes Mr. Bronfman and Mr. Cohen, but he also chronicles their missteps and occasionally boorish behavior. Remember those lawsuits against college kids? Mr. Bronfman was a huge supporter of those efforts.

In a lengthy epilogue, Mr. Goodman assails members of the “technorati” who urge artists to give their music away online and make up the difference by selling more concert tickets and T-shirts. Fair enough, but I was waiting for a more impassioned defense of the record labels themselves. Sure, they have released mountains of Top 40 schlock. But it paid the bills and enabled them to put out less-profitable music with real cultural value, like jazz, opera and all sorts of esoteric rock ’n’ roll.

They can’t afford to do that anymore. Now it’s pretty much all Lady Gaga all the time. No offense to her ladyship, but is that really progress?"

http://www.nytimes.com/2010/07/04/business/media/04shelf.html?_r=1&scp=4&sq=devin&st=cse

U.S. shuts websites offering pirated movies; Pittsburgh Post-Gazette, 7/4/10

Richard Verrier, Los Angeles Times via Pittsburgh Post-Gazette; U.S. shuts websites offering pirated movies:

"Adding some swashbuckling to its tough talk on fighting piracy, the federal government last week seized several websites that had offered downloads of pirated movies such as "Toy Story 3" and "Iron Man 2" within hours of their release in theaters.

Federal authorities announced that they had seized domain names from nine websites engaged in the "criminal theft of American movies and television." The websites include TVShack.net, PlanetMoviez.com, ThePirateCity.org and Ninjavideo.net. Combined, the sites drew 6.7 million visitors a month, authorities said.

Officials also seized assets from 15 bank, investment and advertising accounts and executed residential search warrants in North Carolina, New York, New Jersey and Washington, according to a statement from the U.S. Immigration and Customs Enforcement, which coordinated its investigation with the U.S. attorney for the Southern District of New York, the Department of Homeland Security and other agencies.

The crackdown, which involved 100 agents working in 11 states and the Netherlands, was part of a renewed campaign dubbed Operation in Our Sites by federal authorities to curb Internet counterfeiting and piracy. The announcement came more than a week after the Obama administration unveiled a detailed plan on how to tackle global piracy, including targeting illegal websites.

ICE chief John Morton, speaking at a Walt Disney Studios sound stage where he was joined by movie studio executives and union representatives, trumpeted the bust as the beginning of a "long-term effort to turn the tables on these thieves." The targeted websites, he added, are "run by people who have no respect for creativity and innovation."

The studios say they lose hundreds of millions annually to piracy.

Preet Bharara, U.S. attorney for the Southern District of New York, said in a statement the actions were necessary to protect the jobs and livelihoods of "ordinary working people" and warned others engaged in similar websites.

"If your business model is piracy, your story will not have a happy ending," Mr. Bharara said."

http://www.post-gazette.com/pg/10185/1069785-60.stm#ixzz0skYnv7UI"

Court Orders US Copyright Group To Work With Time Warner, EFF To Craft More Informative Letter To Those Being Sued; TechDirt.com, 7/1/10

Mike Masnick, TechDirt.com; Court Orders US Copyright Group To Work With Time Warner, EFF To Craft More Informative Letter To Those Being Sued:

"The saga of US Copyright Group (really DC-based law firm Dunlap, Grubb & Weaver) continues. As you may recall, the firm is filing lawsuits against tens of thousands of people accused of file sharing certain movies, such as Uwe Boll's Far Cry and the Oscar-winning Hurt Locker. The lawsuits lump thousands of "John Does" into a single suit located conveniently (for Dunlap, Grubb & Weaver) in Washington, DC. Time Warner Cable has been resisting the demands to identify so many of its subscribers, and EFF, Public Citizen and the ACLU joined forces to point out that it isn't legal to lump together so many different totally unrelated defendants into a single case in an unrelated jurisdiction. US Copyright Group defended the lumping together by claiming that since BitTorrent worked by different people sharing little bits, perhaps all of the thousands of people shared together. The judge seemed skeptical.

However, rather than throw out the lawsuits against all but one of the defendants, the judge is asking the various parties -- US Copyright Group, Time Warner Cable, EFF, Public Citizen and the ACLU to all work together to craft a note that can be sent to individuals targeted in these lawsuits. The idea is that this note, unlike the one people get directly from USCG, will inform people of their rights, including the right to challenge the jurisdiction of the lawsuit (and, I assume, the fact that they're randomly lumped in with other people).

My guess is that the judge is still uncomfortable with all these lawsuits being lumped together, but realized that none of the parties in the court room are really the right ones to be challenging the specifics of the lawsuit. That needs to come from someone actually being sued. Thus, this agreed-upon letter could still lead to a lawsuit that says such joining of massive lawsuits into one is not allowed.

Still, given USCG's statements in the lawsuits to date, and the text of the current letters it sends, I'm guessing that there's going to be a lot of disagreement about what goes into this new mutually agreed-upon letter."

http://www.techdirt.com/articles/20100701/00293210033.shtml

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."

http://blog.librarylaw.com/librarylaw/2010/06/may-a-library-lend-e-book-readers.html

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..."

http://www.thestar.com/news/sciencetech/technology/lawbytes/article/828525--geist-developing-world-opposition-mounts-to-anti-counterfeiting-agreement