First RIAA File Sharing Trial Morphs Into Groundhog Day; Wired.com, 6/21/1

David Kravets, Wired.com; First RIAA File Sharing Trial Morphs Into Groundhog Day:

"The nation’s first file sharing copyright infringement trial has morphed into a legal Groundhog Day.

In a bid two avoid a third trial — after two mistrials — the Minnesota federal judge presiding over the 4-year-old Jammie Thomas-Rasset case wants the Recording Industry Association of American and the defendant to negotiate a settlement.

But, as Thomas-Rasset’s attorney, Joe Sibley, said in a telephone interview Monday, a settlement is not likely to happen. The reason is both sides are a universe apart on what it would take to avoid a third trial.

That’s why there were two trials: neither party would budge during court-ordered negotiations: Under the latest failed negotiations, Thomas refused in January to pay anything. The RIAA wanted $25,000 for the 24 tracks two federal juries concluded she pilfered on Kazaa. That offer came after a second Minnesota jury had awarded $1.92 million, and the judge reduced it to $54,000 a year ago.

“There is nothing we have to offer they would be willing to accept,” Sibley said Monday. He added that Thomas-Rasset might agree to settle for the statutory minimum $750 a track.

“We’ve always hoped Ms. Thomas would accept responsibility and join us at the settlement table — especially after a judge and two different juries affirmed her clear liability. But her approach so far … does not make for productive settlement discussions,” RIAA spokeswoman Cara Duckworth said via an e-mail.

The Copyright Act allows a jury to award damages of up to $150,000 per purloined download. The Obama administration supported the nearly $2 million judgment.

U.S. District Judge Michael [Davis] [sic] declared the $1.92 million verdict “shocking” and said damage awards “must bear some relation to actual damages.”

Davis’ decision was the first time a judge has reduced the amount of damages in a Copyright Act case.

A third trial, scheduled for Oct. 4, would involve a jury assuming the woman’s liability and affixing a new damages figure.

Because of the posture of the case, the parties could not directly appeal the judge’s decision last year lowering the jury’s verdict. Assuming the judge reduces the damages again after the October trial, the appeals courts would be more inclined to take the case to avoid another day of legal ground hog, legal experts said.

Among the big bones of contention that would be addressed on appeal, Sibley claims damages under the Copyright Act are unconstitutionally excessive. The RIAA claims the judge did not have the power to lower a Copyright Act jury award.

Thomas-Rasset, of Brainerd, Minnesota, famously lost her first trial in 2007, resulting in a $222,000 judgment. But months after the four-day trial was over, Judge Davis declared a mistrial, saying he’d incorrectly instructed the jury that merely making copyrighted work available on a file sharing program constituted infringement, regardless of whether anybody downloaded the content.

He ordered both sides to the settlement table, where no deal was reached.

The only other file sharing case to have gone to trial resulted in a Boston jury in July awarding the RIAA $675,000 for 30 songs. A decision is pending on whether that award should be reduced.

Most of the thousands of RIAA file sharing cases against individuals settled out of court for a few thousand dollars."

http://www.wired.com/threatlevel/2010/06/filesharing-groundhog-day/#ixzz0rXbVpz00:

E-Reader Prices Are Slashed; New York Times, 6/22/10

Brad Stone, New York Times; E-Reader Prices Are Slashed:

"A price war is brewing in the growing market for electronic reading devices.

Barnes & Noble, the national bookseller, announced Monday that it was dropping the price of its six-month-old Nook e-reader to $199 from $259 and introducing a new version of the device, which connects to the Internet only over Wi-Fi networks, for $149.

Responding rapidly, Amazon.com then cut the price of its popular Kindle e-reader below the Nook, to $189 from $259.

The price cuts were made as manufacturers of e-readers faced a mounting threat from Apple’s iPad. Even though it is far more expensive than the e-readers, the iPad, which starts at $500, performs a range of functions with a versatile, colorful display that contrasts sharply with the static, monochrome screen of e-book readers. Apple said it sold more than two million iPads in the two months since the tablet’s introduction.

“It was obvious that the price of stand-alone e-readers had to come down,” said James McQuivey, an analyst at Forrester Research, citing the threat by Apple and other tablet makers. “We just never thought it was going to happen this rapidly.”

Analysts had expected the prices of e-readers would gradually fall because of the natural decline in component costs and the increased profitability of e-books themselves...

With recent software upgrades, Barnes & Noble has improved the Nook, which now has features to counter Amazon’s aggressiveness on e-book prices and the brand power of the Kindle. Barnes & Noble allows Nook owners to read entire e-books within stores and lend e-books to friends for up to two weeks. Now, with yet another software upgrade, Nook owners have free access to AT&T’s nationwide Wi-Fi network.

“I don’t see more than two, or maybe three dedicated reading companies in the market for selling e-books,” said William J. Lynch, chief executive of Barnes & Noble, in an interview. “I think you are starting to see a shake-out now.”

Mr. Lynch also predicted that within 12 months, e-reading devices “that people will actually want to buy” could be available for less than $100."

http://www.nytimes.com/2010/06/22/technology/22reader.html?hpw

Spider-Man Is Among the Most Wanted; New York Times, 6/17/10

Marc Lacey, New York Times; Spider-Man Is Among the Most Wanted:

"Spider-Man has successfully taken on the Green Goblin, Doctor Octopus and Venom, to name just a few of his foes over the years, but the web-spinning superhero was no match for Mexico’s federal police, who recently manhandled him and easily took him into custody.

Many piñata vendors duplicate popular children’s characters, but some companies want them to pay to do so.

In a crackdown on pirated piñatas some months ago, officials from the attorney general’s office and the federal police seized more than 100 of the papier-mâché party accessories, Spider-Man prime among them, and took into custody several real-life piñata vendors as well. The authorities said the raid was a response to a complaint filed by Marvel Entertainment, which owns the rights to the characters in question. Hulk, another Marvel character, was also overwhelmed by the men in black that day, as was Captain America.

But the story line got a twist when it turned out that the raid might have been as questionable as the piñatas that were seized. The attorney general’s office said it had no record of Marvel’s calling for such an operation, which existing law required before a raid could be conducted, and the company insists it had nothing to do with it. Federal officials later said that it was Televisa, a Mexican television conglomerate, that filed the complaint that led to the raid.

Whatever the raid’s provenance, the lawyer assisting the vendors, Fidel López García, said that it appeared to have been aimed primarily at extorting money from the vendors and commandeering their wares, not an uncommon event in Mexico. Mr. López and the vendors say that, after seizing thousands of piñatas, the police and the officials not only began selling them on the street but offered to sell them back to the vendors.

A spokeswoman for the Mexican federal prosecutors dismissed the vendors’ accusations about the raid, saying simply, “It wasn’t illegal.”

The piñata roundup created a stir in this city’s piñata-selling zones, where Spider-Man, who goes by the name Hombre Araña here, used to hang out on the sidewalk with Snow White, Mickey Mouse, SpongeBob SquarePants and Lightning McQueen, to name a few of the popular piñatas awaiting purchase.

After being forced to pay hefty fines of thousands of dollars to the attorney general’s office, some vendors have eliminated Spider-Man from their shops and others have relegated him to the back. It is not as though proprietary characters have disappeared altogether, though. On a recent afternoon, Darth Vader (Lucasfilm Ltd.) was hanging next to Ben 10 (Cartoon Network), and Princess Tiana (Disney) was in close proximity to Thomas the Tank Engine (Gullane (Thomas) Ltd.), Tigger (Disney) and Shrek (DreamWorks Animation).

Piñatas are one small corner of the counterfeiting business, which is flourishing in Mexico. “The statistics don’t lie, and we had to do something because 8 of every 10 people buy counterfeit products, and 54 percent of the products on the market are falsified,” said Arturo Zamora Jiménez, a lawmaker who advocated for a beefed-up antipiracy law that has since been adopted.

Besides depriving the government of tax revenue and siphoning profits from corporations, piracy helps to fuel organized crime, the authorities say. Mexican drug gangs have embraced the business, the government said, trafficking in such things as pirated movies, computer software and apparel.

Critics of the government maintain that only the poor will suffer from any crackdown on counterfeit goods. “Instead of creating jobs, this government pursues people who have made the decision not to join the criminal element and who look for honest work to bring bread to their homes,” said Gerardo Fernández Noraña, an opposition lawmaker.

Standing amid Dora the Explorers, Barneys and Tinker Bells, some piñata sellers said they saw nothing wrong with providing customers with what they wanted, even without permission from a foreign corporation.

“A piñata is Mexican,” said Eduardo Bejaramo, a vendor who had been detained in the raid. “It’s just newspaper with paint on it. We’re not copying music or films. We’re doing all this by hand. How can we copy if Marvel does not make piñatas?”

Down the street, another piñata vendor, who declined to be identified out of fear that his comments could prompt a follow-up raid, said he would have to go out of business if he had to pay companies to use their characters.

“Traditionally, Mexican piñatas were made in the shape of stars,” he said, meaning celestial bodies, not celebrities. “But with TV, children began wanting a piñata like what they saw on the screen.”"

http://www.nytimes.com/2010/06/17/world/americas/17pinata.html?scp=1&sq=pinatas%20spider-man%20mexico&st=cse

Dispute Over File Sharing's Harm to Music Sales Plays Again; Chronicle of Higher Education: Wired Campus, 6/17/10

David Glenn, Chronicle of Higher Education: Wired Campus; Dispute Over File Sharing's Harm to Music Sales Plays Again:

"Last week in Vienna, where Beethoven, Haydn, and Mahler once walked, scholars came together to argue about Radiohead, file sharing, and the economics of music.

At a conference known as Vienna Music Business Research Days, two American economists renewed their long-running dispute about whether or not peer-to-peer file sharing is responsible for the worldwide decline in CD sales.

The quarrel centers on a widely cited paper by Felix Oberholzer-Gee, a professor at the Harvard Business School, and Koleman Strumpf, who now teaches at the University of Kansas. Mr. Oberholzer-Gee and Mr. Strumpf argued that file sharing does not have a net negative effect on the recorded-music industry. They arrived at that conclusion by examining the relationships among American record sales, American file sharing, and school holidays in Germany during the last quarter of 2002. (If file sharing injures CD sales, the paper’s reasoning goes, then American CD sales should suffer especially during weeks when young Germans are home from school because Germany is a major source of files traded on peer-to-peer networks.)

From the time drafts of the paper first circulated in 2005, it has been attacked by Stan J. Liebowitz, a professor of economics at the University of Texas at Dallas. (Some of Mr. Liebowitz's work has been financially supported by a music-industry trade group.) In Vienna last week, Mr. Liebowitz reopened the argument with a new line of criticism.

In his Vienna paper, Mr. Liebowitz argued that Mr. Oberholzer-Gee and Mr. Strumpf’s central statistical model seems badly wrong in a way that he had not previously noticed. At one point their paper reports that a one-standard-deviation increase in the number of German students on vacation raised American file-sharing rates by half of their mean level.

But common sense suggests that the effect cannot possibly be so strong, Mr. Liebowitz’s Vienna paper says. If that were true, then “a power failure in a portion of Germany, or any event that caused German students to turn off their computers, would completely eliminate American file sharing. How realistic is that?” (Mr. Liebowitz and other skeptics have not been able to directly replicate Mr. Oberholzer-Gee and Mr. Strumpf’s central analysis, because it is based on a confidential and proprietary data set from a file-sharing company.)

Mr. Olberholzer-Gee did not reply to a request for comment from The Chronicle. But he and Mr. Liebowitz had some heated words during the conference panel, according to an account by John P. Palmer, of the University of Western Ontario.

Later in the conference, Mr. Oberholzer-Gee presented a recent paper by himself and Mr. Strumpf. The new paper makes arguments that are less controversial than the previous one's were. First, they point out that file sharing has generated huge new complementary industries for MP3 players and other products. Second, they note that the amount of new music does not seem to have declined–so there is no strong evidence that file sharing has destroyed muscians’ incentives to create.

But even though they seem to be de-emphasizing the idea that file sharing does not hurt sales, Mr. Liebowitz did not give his colleagues any peace. In his Vienna presentation, he said that their new paper seemed to mischaracterize at least two recent studies of file sharing by other scholars.

On Page 16 of their Vienna paper, for example, Mr. Oberholzer-Gee and Mr. Strumpf cite a 2007 paper in Management Science as one of several that found that “file sharing does not hurt sales at all.” But that phrase is badly misleading, Mr. Liebowitz said, because the paper actually concluded that file sharing reduces the amount of time that many albums spend on the music charts.

“It is not correct to say that our work shows file sharing is unrelated to changes in sales,” said the Management Science paper’s lead author, Sudip Bhattacharjee, in an e-mail message to The Chronicle.

The paper did not look directly at sales, only at chart longevity, also known as chart survival. And “we did report a decrease in survival over all,” said Mr. Bhattacharjee, who is an associate professor of operations and information management at the University of Connecticut."

http://chronicle.com/blogPost/Dispute-Over-File-Sharings/24881/

New Business Models Proposed In Debate On EU Culture And Copyright; Intellectual Property Watch, 6/9/10

David Cronin, Intellectual Property Watch; New Business Models Proposed In Debate On EU Culture And Copyright:

"Small fees for internet users could be used to pay musicians and other artists for the dissemination of copyright-protected work online, a Brussels conference has been told.

Following complaints that intellectual property rules are generally ill-suited to a world where digital downloading is becoming increasingly common, Green Party Members of the European Parliament (MEPs) hosted a discussion on 8 June about how easy public access to culture can be guaranteed in a way that ensures artists can make a decent living.

Philippe Aigrain, a founder of the French civil liberties group La Quadrature du Net, argued that the fundamental premise of any approach to charging for listening to music or watching films online should be that sharing files is a basic right. He took issue with major companies in the entertainment industry who have waged a long campaign against many forms of downloading. “Some big interest groups think the right to share is the root of all evil,” he said.

Aigrain recommended a new system whereby each internet subscriber would be charged a monthly fee of 5 to 7 euros and that this would generate a fund for paying artists whose work is shared on the internet. According to his calculations, such fees should yield between 1.2 billion and 1.7 billion euros each year in France alone – about one twentieth of the country’s “cultural economy”.

The income would then be distributed among artists based on surveys of a “huge panel” of individuals, who would anonymously give details of which files they had downloaded. For audiovisual work, one-third of the revenue generated would be used for remuneration and the remainder to support new productions. Yet the ratio should be reversed for music, considering that it is usually less expensive to record tunes than to make films, he added...

Maja Bogataj Jancic from the Institute of Intellectual Property in the Slovenian capital Ljubljana spoke of how “copyright is at war with technology.”

“Digital technology is the greatest threat to the copyright system but it is fair to say it is also the greatest opportunity for creation,” she said. The “Creative Commons” system – through which authors and artists can grant others permission to circulate their work on a non-commercial basis – has made the sharing of published material easier, she added. Some 350 million creative commons licenses had been issued worldwide by the end of last year.

“Creative Commons licenses are built on top of copyright law,” she explained. “They do not exist without copyright law.”

Austrian MEP Eva Lichtenberger contended that “culture and creative activity need to be supported in such a way that artists can have a dignified livelihood.”

She used colourful language to describe how the entertainment industry has kept a close watch on the European Union’s debates on intellectual property. “When we look at copyright and the reform of copyright so that it can be adapted to the twenty-first century, there is a veritable lobbying war going on. Lobbyists even follow you to the ladies’ room in order to continue discussions you have been having.”

Her French colleague Karima Delli noted that 1.6 billion people worldwide have the means to copy files. “This is the very basis for a shared culture; the internet should be the means by which we democratise culture,” she said. “There is no magic solution. We are going to have to try out new economic models to fight against the concentration of powers in many commercial systems applying to cinema and books, etcetera.”

http://www.ip-watch.org/weblog/2010/06/09/new-business-models-proposed-in-debate-on-eu-culture-and-copyright/

Recording Industry Says LimeWire on Hook for $1 Billion; Wired.com, 6/8/10

David Kravets, Wired.com; Recording Industry Says LimeWire on Hook for $1 Billion:

"The record labels have told a federal judge LimeWire is liable for possibly “over a billion dollars” — the latest sign that the industry is seeking to annihilate the New York-based file sharing company.

The Recording Industry Association of America’s court filing Monday comes a week after the labels asked U.S. District Judge Kimba M. Wood to shutter LimeWire (.pdf). Weeks before, the New York judge ruled LimeWire’s users commit a “substantial amount of copyright infringement” (.pdf) and that the Lime Group, the company behind the application, “has not taken meaningful steps to mitigate infringement.”

“The amount of statutory damages awarded in this case easily could be in the hundreds of millions of dollars (if not over a billion dollars),” the RIAA wrote to Wood, in seeking a court order to freeze LimeWire’s assets (.pdf). The Napster case eventually settled for more than $300 million.

The RIAA’s latest court filings underscore that the record labels are seeking to shutter and financially decimate the company. Two weeks ago, Zeeshan Zaidi, LimeWire’s chief operating officer, said he was hoping to work out a licensing deal with the labels to enable them to sell their music on LimeWire’s online store.

The Copyright Act allows fines of up to $150,000 per infringement."

http://www.wired.com/threatlevel/2010/06/limewire-owes-billion/#ixzz0r8P4iVmj:

LimeWire Begs Music Industry for Second Chance; Wired.com, 5/25/10

David Kravets, Wired.com; LimeWire Begs Music Industry for Second Chance:

"The company behind the file sharing software LimeWire is considering aggressively filtering out pirated content and is hoping to strike a deal with the music industry in which it would be permitted to live on as a for-pay music download service, a company executive said Monday.

“The biggest challenge right now is changing the behavior of a generation of internet users to get them to pay for music,” said Zeeshan Zaidi, LimeWire’s 35-year-old chief operating officer, in an interview two weeks after suffering a crushing defeat in a copyright lawsuit that threatens to leave the company insolvent.

On May 11, a federal judge ruled that LimeWire’s users commit a “substantial amount of copyright infringement” (.pdf) and that parent company Lime Group “has not taken meaningful steps to mitigate infringement.”

The ruling sets the stage for a potentially massive damage award against the company that could leave it insolvent. Attorneys for Lime Group and the Recording Industry Association of America are expected to return to court next month to haggle over the company’s fate.

Zaidi said in a telephone interview that the company wants to convert its 50 million monthly users into paying music customers, and become a player in the paid music-distribution business. For now, the bulk of LimeWire’s traffic consists of unauthorized copyright material — some 93 percent, according to RIAA estimates.

“One way to address what the court is talking about, short of shutting down the network, which I think is overreaching and drastic, is to filter the network of these files in question,” Zaidi said. “This is a way for us to move forward in the case.”

Zaidi’s plan could put LimeWire on roughly the same course followed by Napster after its 2002 courtroom defeat to the RIAA. Roxio purchased the Napster brand and domain name at a bankruptcy auction and attached it to a legitimate music download service, which exists today as an also-ran in a field dominated by Apple’s iTunes.

Similarly, Swedish entrepreneur Hans Pandeya had dreams of legitimizing the The Pirate Bay, the world’s leading BitTorrent search engine. His plan was to strike licensing deals with content providers and sell movies, music, games and software on the notorious site, but he never managed to pull off the acquisition of The Pirate Bay’s domain name.

To be sure, moving from the pirate model to the pay-to-play model has many built-in assumptions.

Foremost, converting copyright scofflaws into paying customers is a tough sell. And for LimeWire, it may prove to be a futile endeavor to get the major record labels — which just defeated LimeWire in court — to cut licensing deals.

“Suffice it to say, we’re talking to all of the major players in the industry to try to get the licenses we need to get this service off the ground,” Zaidi said.

Cara Duckworth, a spokeswoman for the RIAA, which represents Sony BMG, Universal Music, EMI and Warner Music, said “we intend to pursue damages.”

Mitch Bainwol, the RIAA’s chairman, said two weeks ago that, “Unlike other P2P services that negotiated licenses, imposed filters or otherwise chose to discontinue their illegal conduct following the Supreme Court’s decision in the Grokster case, LimeWire instead thumbed its nose at the law and creators.”

For now, LimeWire has about 5 million songs on its online retail store, none of them from the RIAA’s Big Four, Zaidi said. He declined to provide sales figures.

In its LimeWire lawsuit, the RIAA is seeking up to $150,000 per copyright violation, though the final damages have not been determined. It was the first case targeting a file sharing software maker following the 2005 Grokster decision, in which the U.S. Supreme Court cleared the way for lawsuits targeting companies that induced or encouraged file sharing piracy.

Zaidi said the recording industry should take the opportunity to partner with LimeWire, “to put the most amount of money into the pockets of artists and those who own their copyrights.”

The music industry, he said, “is in the driver’s seat. What happens next depends on what they choose to do."

http://www.wired.com/threatlevel/2010/05/limewire-filtering/#ixzz0r8O5w65F"

LimeWire Crushed in RIAA Infringement Lawsuit; Wired.com, 5/12/10

David Kravets, Wired.com; LimeWire Crushed in RIAA Infringement Lawsuit:

"LimeWire was found liable of copyright infringement Tuesday in a decision that threatens to financially devastate the New York company behind the file sharing application.

In a 4-year-old case brought by The Recording Industry Association of America, U.S. District Judge Kimba M. Wood ruled that LimeWire’s users commit a “substantial amount of copyright infringement” (.pdf) and that the Lime Group, the company behind the application, “has not taken meaningful steps to mitigate infringement.”

The RIAA was seeking up to $150,000 per copyright violation, though the final damages in the lawsuit have not yet been determined. The lawsuit claimed at least 93 percent of LimeWire’s file sharing traffic was unauthorized copyright material.

Limewire claims “50 million unique monthly users.” Its website says its “software is downloaded hundreds of thousands of times every day and boasts millions of active users at any given moment.”

It was the first case targeting a file sharing software maker following the 2005 Grokster decision, in which the U.S. Supreme Court cleared the way for lawsuits targeting companies that induced or encouraged file sharing piracy.

Before the RIAA filed suit, the record label’s trade group urged LimeWire to license its material or shut down.

“LimeWire is one of the largest remaining commercial peer-to-peer services,” Mitch Bainwol, the RIAA’s chairman, said in a statement. “Unlike other P2P services that negotiated licenses, imposed filters or otherwise chose to discontinue their illegal conduct following the Supreme Court’s decision in the Grokster case, LimeWire instead thumbed its nose at the law and creators.”

George Searle, LimeWire’s chief executive, said in a statement that the company “remains committed to developing innovative products and services for the end-user and to working with the entire music industry, including the major labels, to achieve this mission.”

Searle was not immediately available for comment.

Judge Wood scheduled a June 1 hearing to determine how to proceed.

http://www.wired.com/threatlevel/2010/05/limewire-crushed/#ixzz0r8Mg5a3p"

When Titans Clash: Comic-Book Creator Edition; New York Times, 6/16/10

Dave Itzkoff, New York Times; When Titans Clash: Comic-Book Creator Edition:

"Comic-book creators are generally better known for imagining and illustrating the larger-than-life conflicts of fearsome opponents, not for engaging in them themselves. So it was somewhat unusual to find Neil Gaiman, the best-selling fiction writer and comics author (“Sandman”), in a Wisconsin court on Monday, where he is suing his onetime colleague Todd McFarlane over royalties that Mr. Gaiman says he is owed from Mr. McFarlane’s Spawn comics series.

The Associated Press reported that both Mr. Gaiman and Mr. McFarlane gave testimony in a United States District Court in Madison, in the latest round of a dispute involving characters from Spawn, a series about a murdered C.I.A. agent who becomes a warrior for hell after selling his soul to a demon.

Mr. Gaiman said that a character called Dark Ages Spawn was essentially a copy of Medieval Spawn, which he had created for Spawn issue No. 9 in 1993, and that angel characters called Domina and Tiffany were copies of Angela, who also had first appeared in that issue.

Mr. Gaiman said, ”It looks like the same kind of thing,” after being shown an image from a Dark Ages Spawn comic book. ”It’s a knight-in-armory kind of Spawn.”

Mr. McFarlane said all the Spawn characters share certain features. The writer Brian Holguin, who was also involved with the creation of the Dark Ages Spawn character, testified that the similarities were unintentional.

”We were trying to sell comic books,” Mr. Holguin said, according to The A.P. ”We could have done Italian Renaissance Spawn, but I’m not sure it would have sold as well.”

A jury found in 2002 that Mr. Gaiman was a co-copyright holder for the Medieval Spawn and Angela characters, as well as a third named Cogliostro, and was owed royalties. They have yet to come to an agreement on payment. Lawyers for Mr. Gaiman said the author will donate any money from the case to charity."

http://artsbeat.blogs.nytimes.com/2010/06/15/when-titans-clash-comic-book-creator-edition/?scp=1&sq=gaiman%20spawn&st=cse

Razor-thin copyright line; Variety, 6/2/10

Melinda Newman, Variety; Razor-thin copyright line: Approximating temp music for trailers is tricky business:

"How close is too close for comfort?

That's the question many movie trailer composers are asking themselves. With increasing frequency, executives at studios and movie trailer houses are requesting they replicate the temp music in a trailer when the original tunes aren't available or are too expensive.

"As time goes along, they're more and more demanding that we get as close as possible without plagiarizing, and it's gotten dicey," says composer John Beal, who has written music for more than 2,000 trailers.

Scott Ogden, former creative director at trailer house Flyer Entertainment and the newly named producer at Herzog & Co., freely admits, "We bring in composers when we have a piece of music that everyone loves, but we can't license it. We ask them to do an interpretation of it."

Ogden calls it an "interpretation"; others call it "parallel music" -- the one thing no one wants to call it is copyright infringement, and composers worry that the line between imitation and duplication is getting razor thin.

"I have had instances where I've said (to the studio or trailer house), 'It's my advice to you that I think we've gone too close.' If it's gets into a situation that's very tricky, we hire a musicologist," says composer Veigar Margeirsson, who's written trailer music for such movies as "Iron Man," "Transformers" and "Hancock." "I never say we'll just knock it off and hope for the best."

Sometimes, a studio or trailer company pushes too hard. "Several years back, I was doing something orchestral for a trailer, and they decided, 'We love this song by a certain band.' It wasn't a very famous band, but it was a recognizable song," Margeirsson recalls. "They wanted to go so close, at a certain point, I said, 'I can't do this anymore.' They were literally asking me to duplicate note for note what I was supposed to do. I said I have to stop."

Adding to the composer's challenge is that he or she is usually tasked with creating music that has the same tempo as the temp score, although some musicians have found a way around that. "We had a trailer several years ago and everything was hard cut, I think to a Beastie Boys tune," says Jeff Eden Fair, who, with his wife, Starr Parodi, has scored such trailers as "United 93," "V for Vendetta" and "War of the Worlds." "We realized we could get that effect by using a different time signature and make it totally unique and still hit all the marks."

Composers say they frequently get trailers with as many as 20 different music snippets in the two-and-a-half-minute reel. It's their job to compose something new that manages to hit all the high points as the temp music or write the bridge between licensed tracks.

"The most I've ever seen is 30," Beal says. "They say, 'Here's what we feel works best for each of the cuts; we'd like for you to write original pieces of music.'?"

Beal, who has been scoring trailers since the '70s, says it wasn't always this way. He recalls a time when he was handed a trailer with no temp music and told to compose his own new score. That changed 10 or 15 years ago. "There was a shift in testing trailers, and there was more temp music being used during the focus group process," Beal says. "At that point, people became so concerned about the numbers they were getting from the focus group, they didn't want to take a risk on anything original. And when they couldn't license that music, we'd get calls to emulate that music."

Now, Beal says "100% of the time there is a temp score, and 90% of the time I'm asked to get close to it."

When trailer editors aren't hiring composers, they are more frequently turning to libraries, which offer pre-cleared music that is often cheaper than creating scores from scratch or licensing tracks. Most composers either own their own libraries or supply music to one.

Beal says that for smaller films, the scoring trailer budget may be 10% of what it was 20 years ago. On major studio films, fees are as little as half of what they once were, although for blockbusters, the budget still remains high, if not growing.

But there's another reason composers say studios and trailer editors are going more readily to libraries from the start: It's a sure-fire way to avoid what composers call "temp love." "Certain executive have told me they fully believe it's the route they should take," Fair says. "Not because it's creative, but so they don't have to sell music to the movie director twice.""

http://www.variety.com/article/VR1118020113.html?categoryid=4051&cs=1

Senators Losing Patience With U.S. Policy on China; New York Times, 6/11/10

Sewell Chan, New York Times; Senators Losing Patience With U.S. Policy on China:

"Leading senators frustrated by a lack of progress by the Obama administration signaled on Thursday that they were willing to consider retaliatory measures to address China’s policies on trade, currency and intellectual property.

At a Senate Finance Committee hearing, the members suggested that President Obama’s strategy of quiet diplomacy was producing limited results.

In testimony to the panel, Treasury Secretary Timothy F. Geithner could point to only a few accomplishments from the annual bilateral talks he attended in Beijing last month with Secretary of State Hillary Rodham Clinton.

As both economies struggle to recover from the recession, longstanding complaints have gotten louder that China gives unfair support to its export-oriented manufacturers, fails to abide by World Trade Organization agreements, permits the theft of American intellectual property and protects its domestic industries from competition from abroad...

“We do not have a strategic, coordinated United States economic policy, that I can determine, with respect to China,” Senator Max Baucus, Democrat of Montana and the chairman of the committee, told him.

Mr. Baucus said he was particularly concerned about failure to enforce intellectual property rules. With the goal of promoting “indigenous innovation,” China has set product standards and procurement preferences that are a disadvantage to American workers, companies and technology, many economists believe. Mr. Geithner said some progress on those areas had come out of the bilateral talks, known officially as the United States-China Strategic and Economic Dialogue."

http://www.nytimes.com/2010/06/11/business/11geithner.html?scp=1&sq=china%20geithner&st=cse

Stop The Music! Artists Demand GOPers Quit Playing Their Hits; TPM, 6/7/10

Eric Kleefeld, TPM; Stop The Music! Artists Demand GOPers Quit Playing Their Hits:

"If stereotypes held true, you would think that the Republicans would be the ones telling folks to turn that blasted music down. But this year -- and indeed in many past election cycles -- it's the GOP that has been attracting cease-and-desist letters for pilfering music against the artists' wishes. So let's take a look at some of the more notable GOP music fails from this cycle, and cycles past.

Senate candidate Chuck DeVore (R-CA) got burned for using for using altered-lyric version of Don Henley's "The Boys of Summer" and "All She Wants To Do Is Dance" for his campaign's Web ads. David Byrne is suing Gov. Charlie Crist (I-FL) for using "Road To Nowhere" in a Web ad during his previous Republican Senate primary fight, and of course, as we reported yesterday, Rush cut to the chase and told Senate nominee Rand Paul (R-KY) to stop playing "Tom Sawyer" and "The Spirit of Radio."

The Orleans song "Still The One" has a special place in politics as it has been used not once without the band's permission, but twice -- and the first instance contributed to its author's entrance into national politics. In 2004, the Bush campaign used the song at a rally. As the song's main author, John Hall, told MSNBC in 2008: "George Bush was busy campaigning on an 'ownership society,' yet never asked me, the band, or the publishers for permission." Hall and other stakeholders in the song quickly sent a cease-and-desist letter, and the Bush campaign dropped the song."

http://tpmdc.talkingpointsmemo.com/2010/06/stop-the-music-artists-demand-gopers-quit-playing-their-hits.php

Manga Publishers Targetting Scanlation Sites; ComicBookResources.com, 6/8/10

ComicBookResources.com; Manga Publishers Targetting Scanlation Sites:

"Today a coalition of Japanese and U.S. publishers announced a coordinated effort to combat a rampant and growing problem of internet piracy plaguing the manga industry. “Scanlation,” as this form of piracy has come to be known, refers to the unauthorized digital scanning and translation of manga material that is subsequently posted to the internet without the consent of copyright holders or their licensees. According to the coalition, the problem has reached a point where “scanlation aggregator” sites now host thousands of pirated titles, earning ad revenue and/or membership dues at creators’ expense while simultaneously undermining foreign licensing opportunities and unlawfully cannibalizing legitimate sales. Worse still, this pirated material is already making its way to smartphones and other wireless devices, like the iPhone and iPad, through apps that exist solely to link to and republish the content of scanlation sites.

Participants in the coalition include the 36 members of Japan’s Digital Comic Association, Square Enix, VIZ Media, TOKYOPOP, Vertical, Inc., the Tuttle-Mori Agency and Yen Press. Working together, the membership of the coalition will actively seek legal remedies to this intellectual property theft against those sites that fail to voluntarily cease their illegal appropriation of this material.

“It is unfortunate that this action has become necessary,” said a spokesperson for the group. “However, to protect the intellectual property rights of our creators and the overall health of our industry, we are left with no other alternative but to take aggressive action. It is our sincere hope that offending sites will take it upon themselves to immediately cease their activities. Where this is not the case, however, we will seek injunctive relief and statutory damages. We will also report offending sites to federal authorities, including the anti-piracy units of the Justice Department, local law enforcement agencies and FBI.”

The coalition stated that it has currently identified thirty sites targeted for action."

http://www.comicbookresources.com/?page=article&id=26596

EDUCAUSE Live! [June 14, 2010 1 PM EDT, FREE REGISTRATION AT WEBSITE] Checkpointing the ACTA Debate: Where Are We, and Where Do We Go From Here?

EDUCAUSE Live! [June 14, 2010 1 PM EDT, FREE REGISTRATION AT WEBSITE], Checkpointing the ACTA Debate: Where Are We, and Where Do We Go From Here?:

Michael Petricone
Senior Vice President for Government Affairs, Consumer Electronics Association

Jonathan Band
Counsel, Library Copyright Alliance

"Summary

ACTA, the Anti-Counterfeiting Trade Agreement, has been under negotiation since 2007 by representatives from the United States and several dozen other countries. Although nominally limited to counterfeiting, reports have suggested a much larger scope, with rumors hinting at border searches for infringing content on iPods, mandatory three-strikes policies for ISPs, and criminal penalties for Internet "piracy," all under the umbrella of an international policy regime. Public analysis and comment on ACTA have been constrained by the secrecy of the negotiations: Through most of the process, discussions have taken place in private.

An official draft of the agreement was revealed in October 2009, but distribution was limited to a handful of selected individuals and only under seal of nondisclosure. As of April, 2010, we have the first public version of the document and, according to ACTA proponents, the concerns are considered overblown and unfounded. ACTA leaves U. S. copyright law unchanged, they say, retaining fair use and other consumer protections, while providing a powerful tool to fight the high-stakes international organized crime that's deriving huge profits by misappropriating intellectual property. Others remain unconvinced. In this session we'll review the history, current status, and next steps for ACTA and examine the conflicting claims."

http://net.educause.edu/content.asp?SECTION_ID=521&bhcp=1

Ugg under copyright threat; Sydney Morning Herald, 6/2/10

Susanna Dunkerley, Sydney Morning Herald; Ugg under copyright threat:

"The commonly used name for Australia's iconic sheepskin boots, "uggs", could be under threat of another copyright claim.

American company Deckers tried to claim the name in 2003, but the national trademark regulator ruled the term was generic and could apply to any kind of sheepskin boot.

Deckers, which owns the name Ugg Australia in other countries, has reportedly made a second attempt with IP Australia to prevent local companies from using the name.

(IP Australia is the agency that grants rights in patents, trade marks, and designs.)

It has also threatened action against Australian companies selling ugg boots on internet sites such as eBay.

Labor MP Sharryn Jackson says the government should do what it can to prevent the company from acquiring the copyright in Australia.

"Ugg boots are an Aussie icon and it is a generic term used for sheepskin boots," she told parliament.

"It's wrong that an organisation like this is able to use its strength and size to try to force an Australian industry out of business.

"Or for them to have exclusive use of the word ugg in all countries except Australia."

Ugg boots started out as an icon of the Australian surfing culture in the late 1960s and has since developed into an international fashion footwear item."

http://news.smh.com.au/breaking-news-national/ugg-under-copyright-threat-20100602-wzw0.html

Librarians Do Gaga At The University Of Washington (VIDEO) ... Awkward Or Amazing?; Huffington Post, 6/4/10

Huffington Post; Librarians Do Gaga At The University Of Washington (VIDEO) ... Awkward Or Amazing?:

"A group of University of Washington librarians and library science students have made their own rendition of Lady Gaga's "Poker Face" -- library-style, of course."

http://www.huffingtonpost.com/2010/06/04/librarians-do-gaga-at-the_n_601161.html

Does Fashion Need Copyright Protection?; New York Times, 5/27/10

Catherine Rampell, New York Times; Does Fashion Need Copyright Protection?:

"Johanna Blakley, of the University of Southern California’s Norman Lear Center, recently gave a TED talk on the “culture of copying” in fashion, and why this industry (in addition to those for some other creative works, like food preparation) has been able to thrive even without copyright protection."

http://economix.blogs.nytimes.com/2010/05/27/does-fashion-need-copyright-protection/?scp=1&sq=copyright&st=cse

U.S. Attorney Moves to Confiscate HTMLComics.com; ComicBookResources.com, 6/2/10

Brigid Alverson, ComicBookResources,com; U.S. Attorney Moves to Confiscate HTMLComics.com:

"The U.S. Attorney for the Middle District of Florida has filed a civil complaint asking to confiscate the domains, including HTMLComics.com, that Gregory Steven Hart used to post copyrighted comics on the internet.

Hart posted scans of comics from Marvel, DC, and other publishers on his websites for the public to read for free, without registration or payment. He insisted that his actions were legal and that his site was the internet equivalent of a library. The FBI confiscated Hart's computers in April, and his sites have been down since then.

The complaint filed on May 26 lists six of Hart's domains, including HTMLComics.com, ComicBooksFree.com and PlayboyMonthly.com, as defendants and asks that they be forfeited to the United States of America. When asked if Hart himself was going to be charged, Steve Cole, the spokesman for the U.S. Attorneys office, said "There are no criminal charges or plans to arrest him."

Court papers obtained by CBR reveal that the FBI began investigating Hart in July 2009 because of complaints that he was posting comics on the internet without the permission of the copyright holders. Publishers had started sending Hart cease-and-desist letters in January 2009, asking him to take down the comics, but instead, he posted more. "Initially, the estimated number of issues available on the site exceeded 40,000," the complaint says, and by June 2009 the site claimed to host over 100,000 issues.

The complaint includes information from FBI Special Agent Lawrence Wolfenden, who investigates computer crimes for the Tampa Field Office of the FBI:

As recently as March 31, 2010, Agent Wolfenden has been able to view numerous comic books through the HTMLComics.com website, including various books of the following titles: Astonishing X-Men, X-Men: Divided We Stand, The Simpsons, Aliens vs Predator vs Terminator, Army of Darkness, Dilbert, Peanuts, Batman, Superman, Spiderman [sic], Watchmen, and Mad Magazine.

In January and February 2009, Bongo Entertainment, Inc., (holder of the copyright for "The Simpsons"), United Feature Syndicates (which owns "Peanuts" and "Dilbert"), Warner Brothers/DC Comics, and Marvel Comics Group all sent cease-and-desist letters to Hart. Warner Brothers and Marvel followed up with second letters in March and June 2009, respectively, yet Hart did not remove the comics.

In a November 2009 telephone conversation, Hart told Marvel's legal counsel that he had designed the HTMLComics.com website and maintains the files on its servers; that he did not own physical copies of the comics on the site but had received them as digital files from other people; and that he had not gotten permission from the publishers to display the comics. He also said that the site gets 400,000 to 500,000 hits, or about 8,000 unique visitors, per day. "Hart advised that if no company agreed to a revenue-sharing arrangement, he would continue to operate the site without charging users to view the comics," the complaint states.

On April 13, 2010, Agent Wolfenden was able to read four issues of the Marvel comic "The New Avengers," with cover dates ranging from May 2009 to August 2009, at HTMLComics.com.
On April 20, 2010, FBI agents served a warrant on Hart's home in Tampa, Florida, seizing papers and "numerous pieces of digital storage, such as hard drives, computers, and DVDs, on which are stored copyright-protected images." The papers included a cease-and-deist order from Thomas E. Niedrich, an attorney at the Washington, DC law firm Crowell & Moring, and records documenting Hart's ownership of the websites in question. During the search, Hart said that he was the owner and developer of HTMLComics.com and several associated sites, that the sites were hosted on computers at his house, and that the site PlayboyMonthly.com, which displays issues of "Playboy" and "Maxim" magazines, was also registered to him.

The complaint notes that that the cover price on the comics ranges from 25 cents to $3.00, and the cost of Marvel's digital subscription service is $10 per month, and concludes that Hart's site is harming the copyright holders. Given that the sites are "facilitating property" for Hart's violations of copyright law, the U.S. attorney has asked that they be forfeited "for disposition according to law.""

http://www.comicbookresources.com/?page=article&id=26494

Hurt Locker Producer Files Multimillion-Dollar Antipiracy Suit; SpinOff Online, 6/1/10

Kevin Melrose, SpinOff Online; Hurt Locker Producer Files Multimillion-Dollar Antipiracy Suit:

"The producer of The Hurt Locker pulled the trigger last week on a lawsuit against 5,000 unidentified people who allegedly pirated the Academy Award-winning film.

THR, Esq. reports that lawyers for Voltage Pictures will subpoena Internet service providers to identify individuals linked to IP addresses used to download the movie. Once those people have been identified, demand letters will be sent seeking $1,500 to release each alleged pirate from liability. Penalties will increase if there’s no response. If a case goes to trial, Voltage could seek damages of up to $150,000 per infringement, plus attorneys fees and costs.

Voltage is represented by the U.S. Copyright Group, a Washington, D.C.-based company that’s begun pursuing torrent downloaders on behalf of a coalition of independent movie producers.

The Hurt Locker leaked online some five months before its U.S. release, ultimately grossing only about $16 million in the domestic box office. It’s the lowest-grossing film to win the Oscar for Best Picture."

http://www.spinoffonline.com/2010/06/01/hurt-locker-producer-files-multimillion-dollar-antipiracy-suit/

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

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

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

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

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

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

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

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

http://www.spinoffonline.com/2010/05/30/what-would-happen-to-marvel-if-the-kirbys-won/

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

Peter Friedman, Forbes; China's Plagiarism Problem:

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

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

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

http://www.forbes.com/2010/05/26/china-cheating-innovation-markets-economy-plagiarism.html

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

http://www.ip-watch.org/weblog/2010/05/28/wipo-proposals-would-open-cross-border-access-for-print-disabled/

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

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

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

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

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

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

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

http://www.techdirt.com/articles/20100527/0347199599.shtml

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

http://www.guardian.co.uk/technology/2010/may/28/digital-economy-act-isps-data

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

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

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

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

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

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

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

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

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

http://www.guardian.co.uk/artanddesign/2010/apr/30/win-a-brand-new-nikon-d5000-camera

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

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

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

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

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

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

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

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

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

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

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

http://www.smh.com.au/entertainment/tourism-puts-copyright-in-the-picture-20100525-wawl.html

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

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

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

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

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

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

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

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

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

http://robot6.comicbookresources.com/2010/05/u-s-government-sues-operator-of-pirate-comics-website/

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

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

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

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

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

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

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

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

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

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

http://artsbeat.blogs.nytimes.com/2010/05/28/judge-urges-resolution-in-use-of-obama-photo/?scp=2&sq=fairey&st=cse

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

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

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

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

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

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

http://robot6.comicbookresources.com/2010/05/disney-joins-marvel-in-copyright-fight-with-kirby-family/

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

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

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

http://business.financialpost.com/2010/05/25/conference-explores-canadian-side-of-google-book-settlement/#ixzz0oziN7vev

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

http://dealbook.blogs.nytimes.com/2010/05/24/mark-gorton-man-behind-the-music-service/?scp=2&sq=limewire&st=cse