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

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

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

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

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

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

http://www.nytimes.com/2010/03/21/business/21marvel.html?scp=1&sq=copyright%20marvel&st=cse

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

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

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

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

http://arstechnica.com/tech-policy/news/2010/03/smoking-guns-dark-secrets-spilled-in-youtube-viacom-filings.ars

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

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

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

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

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

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

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

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

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

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

http://arstechnica.com/tech-policy/news/2010/03/your-life-will-some-day-end-acta-will-live-on.ars

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

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

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

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

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

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

http://www.ip-watch.org/2010/03/17/uk-ip-minister-lammy-backs-eu-release-of-acta-text/

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

http://www.nytimes.com/2010/03/19/technology/19youtube.html?hpw

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

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

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

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

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

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

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

Unfair Use

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

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

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

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

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

Complexities of Copyrights

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

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

http://chronicle.com/article/In-Court-a-University-and/64616/?key=Tz12clBqMCdEbCY2KCRCfndROXx9chlxPXoWMS4aYlBS

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

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

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

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

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

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

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

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

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

http://www.csmonitor.com/Books/chapter-and-verse/2010/0311/Why-Google-s-deal-with-Italy-is-a-good-thing-for-readers

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

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

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

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

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

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

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

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

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

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

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

http://robot6.comicbookresources.com/2010/03/kirby-heirs-sue-marvel-and-disney-for-stake-in-characters-profits/

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

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

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

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

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

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

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

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

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

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

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

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

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

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

http://www.nytimes.com/2010/03/15/technology/15iht-piracy15.html?scp=2&sq=piracy&st=cse

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

http://www.nytimes.com/2010/03/15/technology/15fedflix.html?hpw

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

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

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

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

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

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

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

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

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

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

http://www.guardian.co.uk/technology/2010/mar/12/piracy-internet

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

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

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

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

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

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

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

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

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

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

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

http://freakonomics.blogs.nytimes.com/2010/03/12/should-fashion-be-protected-by-copyright-laws-a-guest-post/?scp=1&sq=copyright&st=cse

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

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

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

http://www.umuc.edu/distance/odell/cip/symposium/2010.html

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

Andy Mulkerin, Pittsburgh City Paper; Facing the Music:

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

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

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

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

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

http://www.pittsburghcitypaper.ws/gyrobase/Content?oid=oid%3A76306

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

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

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

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

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

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

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

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

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

http://www.ala.org/ala/newspresscenter/news/pressreleases2010/march2010/diglicens_pub.cfm

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

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

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

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

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

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

http://www.mercurynews.com/breaking-news/ci_14521165

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

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

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

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

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

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

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

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

http://arstechnica.com/tech-policy/news/2010/03/european-parliament-unites-against-3-strikes-acta-secrecy.ars

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

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

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

http://techdirt.com/articles/20100305/1820068446.shtml

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

http://www.smh.com.au/opinion/society-and-culture/pesky-kookaburra-drops-one-on-the-debate-over-copyright-law-20100204-ng23.html

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

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

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

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

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

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

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

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

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

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

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

http://bits.blogs.nytimes.com/2010/03/04/british-online-copyright-laws-draw-debates/?scp=1&sq=copyright&st=cse

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

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

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

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

http://www.nybooks.com/articles/23683?email

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

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

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

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

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

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

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

This is backwards.

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

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

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

http://techdirt.com/articles/20100302/0354498358.shtml

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

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

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

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

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

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

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

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

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

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

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

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

http://chronicle.com/blogPost/UCLA-Will-Resume-Streaming/21594/

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

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

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

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

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

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

http://chronicle.com/blogPost/The-Google-Book-Search-Case-/21643/?sid=wc&utm_source=wc&utm_medium=en

Video Mad Libs With the Right Software; New York Times, 2/25/10

Paul Boutin, New York Times; Video Mad Libs With the Right Software:

"It is April 1945. In his underground bunker, Hitler huddles over a map with his top generals. The room is insufferably tense. Members of the German high command, sweating in their uniforms, wonder who will dare to break the terrible news to Der Führer.

“The iPad won’t support multitasking,” one general confesses. Hitler erupts in impotent rage, “I wanted to watch videos of lolcats while laying on the couch. But no, they won’t even give it Flash support.”

This four-minute video, available on YouTube, is one of hundreds of goofy edits to the English subtitles of a powerful scene from a 2004 German-language movie titled “Downfall” in the United States. In various home-subtitled remakes over the last few years, Hitler explodes when told that the McMansion he was trying to flip is in foreclosure, that the band Oasis has split up, that the Colts lost the Super Bowl or that people keep making more “Downfall” parodies. When Hitler learns Sarah Palin has resigned as governor of Alaska, he pounds his chest. “Every time she winked,” he moans, “I thought it was just for me.”

Making your own Hitler video turns out to be refreshingly easy, which is why so many of them can be found on YouTube. All you need is a PC and Microsoft’s Movie Maker, a program included with both Windows XP and Vista. (If you run the new Windows 7, you will need to download the old Movie Maker 2.6, rather than the new but less powerful Windows Live Movie Maker. If you’re a Mac user, Apple’s built-in iMovie application will handle the job.)...

A brief word about “fair use.” When you are playing with copyrighted material, you have to be aware that all your hard work can be for naught. While you may be well within your rights to use a portion of copyrighted material in a parody — the law is murky on how much material and in what fashion constitutes fair use — your parody might get squashed. Downfall’s copyright holder, Constantin Film, had a dozen remixes removed from YouTube earlier this year. But the company seems to have since yielded to the phenomenon. And YouTube recently removed the clip that began the 2007 fad of rickrolling, long after the meme had worn itself out."

http://www.nytimes.com/2010/02/25/technology/personaltech/25basics.html?scp=1&sq=madlibs&st=cse

Issue Brief on Streaming of Films for Educational Purposes; ACRL Insider, 2/22/10

Kara Malenfant, ACRL Insider; Issue Brief on Streaming of Films for Educational Purposes:

"Last Friday, the Library Copyright Alliance (LCA) released an issue brief that reviews the legal status of streaming entire films to students located outside of physical classrooms. The discussion was prompted by recent news of a disagreement between the University of California, Los Angeles (UCLA) and a media equipment trade association over the streaming of films to students as part of an online courseware system. Innovations in secure streaming and online courseware systems hold significant promise for institutions serving faculty and students who demand increased access to institutional and library holdings. Many questions have been raised concerning the use of these technologies and copyright law, and the LCA issue brief aims to dispel some of the mystery and uncertainty that surround this issue, and to foster a balanced discussion.

The LCA issue brief explains characteristics that could increase the likelihood that a particular use will be allowed as well as the arguments that could lead a court to find in favor of educational uses. It also explains how these statutory provisions interact, and, most importantly, how the scope of fair use is affected by the other provisions in the Act.

The Copyright Act includes several provisions that allow users to copy, perform, distribute, or display works without permission from a rightsholder. The LCA issue brief surveys three provisions of the Copyright Act—Sections 107, 110(1), and 110(2)—that could arguably support streaming entire films. The strongest argument is grounded in Section 107—the fair use provision. Fair use is a flexible, evolving doctrine that is often helpful to scholarly and educational users and users of new technology. Section 110(1) and (2) specifically address the issue of educational use of films, but they are less flexible. Whether these provisions will allow for a particular use will depend on the details of the use as well as how a court chooses to interpret certain key parts of the Act. View the full issue brief online.

****

The Library Copyright Alliance is a coalition of library associations made up of the Association of Research Libraries, the American Library Association, and the Association of College and Research Libraries. Read more about LCA."

http://www.acrl.ala.org/acrlinsider/2010/02/22/issue-brief-on-streaming-of-films-for-educational-purposes/

Textbook Publishers Win Court Ruling Against File-Sharing Web Site; Chronicle of Higher Education, 2/24/10

Jeffrey Young, Chronicle of Higher Education; Textbook Publishers Win Court Ruling Against File-Sharing Web Site:

"In a victory for textbook publishers, a German court has ruled that RapidShare, a file-trading Web site, must do more to stop the unauthorized swapping of some copyrighted books on its service.

The Landgericht in Hamburg, a district court, issued a preliminary ruling against RapidShare this month, prohibiting the company from making available certain copyrighted books on its site. The order took effect February 17.

Six major publishers brought the legal action against RapidShare, and they specified a list of 148 titles that are frequently pirated on the site. Those are the works covered under the court order, and many of them are textbooks.

Officials for RapidShare, which is based in Switzerland, could not be reached on Tuesday. In the past, the company has argued that it quickly takes down any copyrighted material that users post to the service once officials become aware of it, and that it follows all legal requirements regarding copyright.

The ruling said the company must go further: "It is not only necessary to promptly block access to the specific file, but rather to also take precautions going beyond this in order to prevent to the largest possible extent the occurrence of further similar infringements."

The court said it will issue fines of up to 250,000 euros (about $340,000) or jail time for company executives of up to two years per instance that a specified book is present on the file-sharing site.

On Tuesday afternoon, one of the books, Advanced 2D Game Development, by Jonathan S. Harbour, was still listed on the service, but an attempt to download it drew only the following error message: "Due to a violation of our terms of use, the file has been removed from the server."

Officials for the book publishers said they have been too busy writing a news release about the Hamburg court's decision to check whether all of the selected books have been removed from the site.

In an interview with The Chronicle, Tom Allen, chief executive of the Association of American Publishers, called the decision "a big deal," describing RapidShare as one of the largest provider of illegal books.

A recent study by Attributor Corporation, which helps companies search for pirated works, found that the vast majority of pirated books appear on just two sites, and RapidShare was one of them.

The publishers involved are among the largest in the world when it comes to textbooks: Bedford, Freeman & Worth; Cengage Learning; Elsevier; the McGraw-Hill Companies; Pearson; and John Wiley & Sons.

They brought the suit in Germany because courts there have been friendly to publishers in the past. "The German courts had dealt with this issue and did it in a way that respected copyright and did it quickly," said Mr. Allen, of the publishers' association."

http://chronicle.com/article/Textbook-Publishers-Win-Court/64342/?sid=at&utm_source=at&utm_medium=en

Google book scanning: Cultural theft or freedom of information?; CNN, 2/8/10

CNN; Google book scanning: Cultural theft or freedom of information?:

"A proposed partnership between the French government and Google is stoking fears in France that the country's literary treasures will fall under commercial control of a U.S. technology company.

Frederic Mitterand, the French minister of culture, has said that Google came to France with "the attitude of a conqueror" signing "unacceptable" and "one-sided" deals.

He told Le Monde newspaper that the deals involved "excessive confidentiality, impossible exclusivity and casual --even leonine --clauses on copyright."

For some, however, Mitterand's reaction is puzzling -- including one of the libraries concerned. Believing that access to their archives can promote French culture, the city of Lyon's library has signed an agreement with Google, hoping to scan as many as 500,000 books in 10 years.

The first text uploaded online was a rare 16th century collection of doomsday predictions from the French philosopher Nostradamus.

Under the Lyon Library contract, Google will scan its books and manuscripts for free. In exchange, the library gives Google the right to use the scanned documents commercially for the next 25 years.

"I find it normal and good that that book is scanned in Lyon where it was written. So I don't see the problem between using a method developed in the U.S. to promote heritage and culture in France or Europe. I don't understand the problem," Patrick Bazin, Director of the Lyon Library, told CNN.

The library's collection includes national literary treasures and collectibles, such as a 16th century bible, in 12 languages.

That means security is a top concern and Google is therefore keeping the location of its scanning secret.

"By putting them on the Internet, much larger circles of society, including non-specialists, can read these works and enjoy them and find them useful," Bazin added.

"They are works that touch upon all sorts of subjects of life, of the universe," he continued.

"They concern everyone and so they matter to everyone, and so they have to be made available to everyone by scanning them."

At the national level, officials like Mitterand have expressed a strong preference to keep the digitizing an internal affair, and even develop a rival to Google. So far the government has earmarked $1 billion dollars to boost its own online database, known as Gallica.

However, in January, an independent review for the French culture ministry criticized the lack of progress made by Gallica, and recommended a public-private partnership with Google.
Since starting in 1997, Gallica has scanned less than one million documents and about 145,000 books, according to the UK's Financial Times newspaper.

At the same time, the report concluded that deals between Google and libraries around Europe were disproportionately favorable for Google, and a better distribution would need to be brokered without the exclusivity clauses for France.

Philippe Colombet, the head of Google Books in France, has said in the past that exclusivity was needed to guarantee a return on the investment of scanning, but that he welcomes a partnership with the state.

In a statement emailed to CNN, Colombet reiterated "Google's commitment to work more than ever in partnership with publishers and other actors in the book industry to help create a virtuous ecosystem for books in the digital era."

Currently Google has seven library partners in Europe, including Lyon. It is only scanning out-of-copyright works in Europe.

While the final details remain to be hammered out, the pace of Google's process makes it hard to eschew.

Google has already scanned more than 12 million books into its global index since the Google Books project launched at the Frankfurt Book Fair in 2004."
http://edition.cnn.com/2010/WORLD/europe/02/08/google.livres.france/

Yo, Ho, Ho, and a Digital Scrum; Chronicle of Higher Education, 2/21/10

Jeffrey Young, Chronicle of Higher Education; Yo, Ho, Ho, and a Digital Scrum:

History shows that intellectual property is more complex than either its creators or copiers care to admit, says a Chicago scholar

"The history of publishing is swimming with pirates—far more than Adrian Johns expected when he started hunting through the archives for them. And he thinks their stories may hold keys to understanding the latest battles over digital publishing—and the future of the book.

Johns, a historian at the University of Chicago, has done much of his hunting from his office here, which is packed so high with books that the professor bought a rolling ladder to keep them in easy reach. He can rattle off a long list of noted pirates through the years:

Alexander Pope accused "pyrates" of publishing unauthorized copies of his work in the 18th century. At the beginning of the 19th century, a man known as the "king of the pirates" used the then-new technology of photolithography to spread cheap reprints of popular sheet music. In the 1950s, a pirate music label named Jolly Roger issued recordings by Louis Armstrong and other jazz greats from LP's that the major labels were no longer publishing. A similar label put out opera recordings smuggled from the Soviet bloc.

Along with the practice itself, "pirates" in publishing just keep resurfacing, and Johns argues that the label is no accident. He sees it as the pirates' attempt to evoke romantic notions of seafaring swashbucklers. Sure, the copying done by culture pirates may be technically illegal, but they have long claimed the moral high ground, arguing that they are not petty thieves, but principled heroes rightfully returning creative work to a public commons by making free or cheap copies available.

"There is an association with a certain kind of liberty—living perhaps alongside the law rather than in direct opposition to it," Johns says. "What the pirate community can represent is a kind of alternative that has its own virtues."

Johns has collected these and other pirate lessons in a new book, Piracy: The Intellectual Property Wars From Gutenberg to Gates (University of Chicago Press). The weighty work, more than 550 pages, covers hundreds of years of history of copyright and intellectual property in the West, focusing on the stories of those angling to disrupt prevailing practices.

The codified rules and laws allowing an author or publisher to claim exclusive rights to a literary work—what we now call "copyright"—did not develop until the 18th century, long after the printing press was invented. And since then the notion has been challenged again and again—sparking controversy long before the latest disputes over the pirating of music, movies, and other material over high-speed digital networks."

http://chronicle.com/article/Learning-From-Culture-Pirates/64294/

Who's afraid of digital book piracy?; (London) Guardian, 2/18/10

Alastair Harper, (London) Guardian; Who's afraid of digital book piracy?:

With the iPad and e-readers on the rise, will pirated books become as common as illegal music and films?:

"For years, we have been able to combine our taste for music and film with our desire to stick it to the man, and all from the safety of our PCs. Our literary habits, however, have perforce remained largely legal. The closest we could come to the same thrill is by wearing a deep-pocketed coat to WH Smiths – which is such an analogue approach to theft. Soon, however, even the bookish will be able to frustrate Lord Mandelson because, at long last, thanks to the iPad, digital book piracy is almost upon us.

The surest sign of this is that industry figures have started producing dubious statistics to show how endemic it is. In the US, it's just been announced that 10% of books read are now pirate texts. The same report claims that piracy has cost US publishers $3bn. But the source of the statistics was a company named Attributor, who provide online piracy protection for the publishing industry. Like a plumber tutting over the state of your pipes, they have a vested interest in finding problems.

A glance at the top seeded ebooks on Pirate Bay shows that Christopher Ricks isn't about to lose much sleep over the downloaders. Filling the top slots are Windows 7 Secrets, Adobe CS4 for Photographers and, shamelessly playing up to the stereotype of all geeks being lonely boys, the Jan/Feb edition of Playboy magazine. According to Freakbits, the only non-technical or sexual downloaded book in 2009 was the Twilight series – a choice that only goes to show how masturbation and Photoshopping mess with the mind.

More mainstream books are found on Scribd, a site you might well use – it's great for finding free books, citations and excerpts. It's also home to an awful lot of copyright infringements. You can find everything: Tintin in America, Martin Amis's Time's Arrow, Alastair Campbell's The Blair Years, Richard Brautigan. Heck, there's even a bunch of Guardian book bloggers, bundled together in a self-published book of literary quotations.

The interesting thing is just how openly available these books are from the site's servers. In fact, Scribd has a very old-school approach to piracy. It pitches itself as a document-sharing service, just as Napster pitched itself as a way of sharing sound files – a euphemism as transparent as a newspaper ad offering "escorts".

Publishers' lawyers will most likely eventually compel Scribd to close, or to turn it into a legal online shop (authors such as Stephen King already sell their digital copies through the site). Certain juicy targets for piracy, such as Stephanie Meyer or JK Rowling, have already had their legal battalions ensure no illicit Potters or vegetarian vampires appear online. That the rest of the industry hasn't yet bothered shows how small the impact of piracy has been on publishers thus far. Faber clearly don't see the need to police the Alan Bennett plays available on Scribd, since most of their audience still prefer physical copies.

The blog The Millions recently hosted an amazing interview with an American book pirate who provides e-copies of books because of his open-source, anti-copyright beliefs. Dutifully, he scans and proofs every book he uploads. The thought of all that repetitive effort, a kind of digital ironing, is quaintly charming – like a farmer tending to his patch with a sickle, his back squarely turned to the rolling Google combine harvester. It's such a lot of work and, outside textbooks, it makes so little impact that publishers haven't needed to pay the lawyers' fees to stop it.

But this is about to change. As e-readers become ubiquitous, publishers know they need to go digital. And being digital, no matter how much drm you shove in, means content will be pirated. Anyone will be able to get any new book you want if you know how to look for it.

But, despite the statistics, I don't believe book piracy will ever be as endemic as it has become with music and film. We've moved on from the pre-iTunes days when the only way of getting an MP3 of a song was to find it on Napster. Publishers were keen to get on board with the iPad straight from launch because they knew it was the safest way to protect and to disseminate their product. One editor at a big publisher told me just how desperate his company have been to woo Apple over the last 18 months.

More importantly, though, publishers have a headstart on the music and film industries and already have some experience of what happens when controlled content is made widely available for free. Victorian publishers were convinced public libraries would ruin them: they didn't. Lending libraries brought books off the estates and into the tenements, and publishers were suddenly selling a lot more books to a lot more people. This happened as the result of a system that, like Spotify, allowed readers to legally obtain books for free while the authors still received some money. If the publishing industry can remember its own history, digitisation should be a doddle."

http://www.guardian.co.uk/books/booksblog/2010/feb/18/digital-book-piracy-copyright