Comic-Con Program; Comic Book Law School 202: Greed Is Good...Or Is It?:
"Noted attorney Michael Lovitz, author of the acclaimed The Trademark and Copyright Book comic book, is back ready to tackle a number of the more advanced issues facing authors, artists, and designers, particularly once they've "broken through" and started publishing and selling (and maybe merchandising too). This second Comic Book Law School session addresses some of the complicated issues surrounding marketing properties and creative ideas, including transfers and licensing of rights; production, merchandising, and distribution agreements; and the key things you should know when Hollywood comes knocking. This interactive seminar gives attendees the opportunity to participate in the discussions as Lovitz (with an assist by entertainment attorney Mona Metwalli) covers various means for profiting from creative works and explores the many important elements that form the foundation of every contract (and time permitting, maybe participate in a mock contract negotiation). With in-depth discussions about the options and opportunities for profit, as well as the problems and pitfalls that go hand in hand with each decision, you can't afford to miss this seminar. Note: The Comic Book Law School seminars are designed to provide relevant information and practice tips to practicing attorneys, as well as practical tips to creators and other professionals who may wish to attend. [This program is approved for 1.5 credits of California MCLE.]"
http://www.comic-con.org/cci/cci_search_results.php?strShow=27&chkCat%5B%5D=239
Sunday, July 25, 2010
Comic-Con Program: Recapturing Copyright for Gold and Silver Age Comic Book Creators, 7/22/10
Comic-Con Program; Recapturing Copyright for Gold and Silver Age Comic Book Creators:
"Copyright lawyer Marc Greenberg (Golden Gate University School of Law) covers key developments in the Superman case (Siegel v. DC) and explores the claims filed by the Jack Kirby estate to the rights to the major Marvel Comics characters he created or co-created."
http://www.comic-con.org/cci/cci_search_results.php?strShow=27&chkCat%5B%5D=239
"Copyright lawyer Marc Greenberg (Golden Gate University School of Law) covers key developments in the Superman case (Siegel v. DC) and explores the claims filed by the Jack Kirby estate to the rights to the major Marvel Comics characters he created or co-created."
http://www.comic-con.org/cci/cci_search_results.php?strShow=27&chkCat%5B%5D=239
Comic-Con Program: Comic Book Law School 101: Start Your (Creative) Engines!, 7/22/10
Comic-Con Program; Comic Book Law School 101: Start Your (Creative) Engines!:
"Any racer will tell you that the key to winning is preparation. The same is true for creative enterprises -- rushing a new property out the door without the proper IP protections in place could be costly. Luckily, help is close by, as the Comic Book Law School series returns to Comic-Con, brought to you by noted attorney Michael Lovitz, author of The Trademark and Copyright Book comic book. This interactive lecture series provides a basic foundation for understanding copyright and trademark law. Up first, the basics of protection and ownership of ideas, works of authorship, characters, and names from conception through publication and beyond. Attendees will participate in an interactive discussion about basic rights provided under U.S. copyright and trademark laws, as well as new decisions and changes in the law and how they could affect those rights. Along the way, there will be plenty to learn about the protections, and pitfalls, of the U.S. trademark and copyright systems. Note: The Comic Book Law School seminars are designed to provide relevant information and practice tips to practicing attorneys, as well as practical tips to creators and other professionals who may wish to attend. [This program is approved for 1.5 credits of California MCLE.]"
http://www.comic-con.org/cci/cci_search_results.php?strShow=27&chkCat%5B%5D=239
"Any racer will tell you that the key to winning is preparation. The same is true for creative enterprises -- rushing a new property out the door without the proper IP protections in place could be costly. Luckily, help is close by, as the Comic Book Law School series returns to Comic-Con, brought to you by noted attorney Michael Lovitz, author of The Trademark and Copyright Book comic book. This interactive lecture series provides a basic foundation for understanding copyright and trademark law. Up first, the basics of protection and ownership of ideas, works of authorship, characters, and names from conception through publication and beyond. Attendees will participate in an interactive discussion about basic rights provided under U.S. copyright and trademark laws, as well as new decisions and changes in the law and how they could affect those rights. Along the way, there will be plenty to learn about the protections, and pitfalls, of the U.S. trademark and copyright systems. Note: The Comic Book Law School seminars are designed to provide relevant information and practice tips to practicing attorneys, as well as practical tips to creators and other professionals who may wish to attend. [This program is approved for 1.5 credits of California MCLE.]"
http://www.comic-con.org/cci/cci_search_results.php?strShow=27&chkCat%5B%5D=239
Superheros [sic] Tangle in Copyright Battles; New York Times, 7/23/10
Michael Cieply, New York Times; Superheros [sic] Tangle in Copyright Battles:
"Lawyers on a Friday afternoon panel at Comic-Con were supposed to be talking about the legal challenges of social media and the battles over copyright, notably a case that involves the Walt Disney Company’s Marvel Entertainment and the heirs to the comic book artist Jack Kirby (Spider-Man among many others).
But David P. Branfman, a lawyer on the stage, first had a word of warning for anybody whose Web site carries stock photos that might belong to someone else: “Make 100 percent sure you’ve got a written license” to use the pictures, said Mr. Branfman.
Companies that own stock photos, he said, have been cracking down on sites that use their wares, demanding, in his experience, an average of $15,000 for each photo lifted from them.
That was certainly an attention-getter for the Web-friendly Comic-Con crowd. Many in the room had just raised their hands, to acknowledge having photos on sites of their own.
Moving on to the main event, Mr. Branfman and his fellow panelists said they were amazed at their ferocity on display in the disputes between Marvel and the Kirby heirs, and between Warner’s DC Comics unit and the heirs to a pair of Superman creators, Jerry Siegel and Joe Shuster, .
“You don’t see that too often,” Mr. Branfman said of a recent move by Warner to file suit personally against Marc Toberoff, the lawyer who has represented heirs in both the DC and the Marvel cases.
Michael Lovitz, a lawyer who moderated the panel, suggested that attempts by the Kirby and Siegel heirs to regain ownership of copyrights would open the floodgates to similar moves by a host of comic book creators. “This is something we’re going to see more and more of, these terminations,” he said.
To judge by the crush of attendees who afterward grabbed for a written rundown on copyright termination from Mr. Branfman — he called it “The Legal Undead” — Mr. Lovitz would appear to be right."
http://artsbeat.blogs.nytimes.com/2010/07/23/superheros-tangle-in-copyright-battles/?scp=1&sq=copyright&st=cse
"Lawyers on a Friday afternoon panel at Comic-Con were supposed to be talking about the legal challenges of social media and the battles over copyright, notably a case that involves the Walt Disney Company’s Marvel Entertainment and the heirs to the comic book artist Jack Kirby (Spider-Man among many others).
But David P. Branfman, a lawyer on the stage, first had a word of warning for anybody whose Web site carries stock photos that might belong to someone else: “Make 100 percent sure you’ve got a written license” to use the pictures, said Mr. Branfman.
Companies that own stock photos, he said, have been cracking down on sites that use their wares, demanding, in his experience, an average of $15,000 for each photo lifted from them.
That was certainly an attention-getter for the Web-friendly Comic-Con crowd. Many in the room had just raised their hands, to acknowledge having photos on sites of their own.
Moving on to the main event, Mr. Branfman and his fellow panelists said they were amazed at their ferocity on display in the disputes between Marvel and the Kirby heirs, and between Warner’s DC Comics unit and the heirs to a pair of Superman creators, Jerry Siegel and Joe Shuster, .
“You don’t see that too often,” Mr. Branfman said of a recent move by Warner to file suit personally against Marc Toberoff, the lawyer who has represented heirs in both the DC and the Marvel cases.
Michael Lovitz, a lawyer who moderated the panel, suggested that attempts by the Kirby and Siegel heirs to regain ownership of copyrights would open the floodgates to similar moves by a host of comic book creators. “This is something we’re going to see more and more of, these terminations,” he said.
To judge by the crush of attendees who afterward grabbed for a written rundown on copyright termination from Mr. Branfman — he called it “The Legal Undead” — Mr. Lovitz would appear to be right."
http://artsbeat.blogs.nytimes.com/2010/07/23/superheros-tangle-in-copyright-battles/?scp=1&sq=copyright&st=cse
Saturday, July 24, 2010
Crown Copyright Strikes Again: Documents Revealed Under Freedom Of Information Act Can Infringe On Copyright?; TechDirt.com, 7/23/10
Mike Masnick, TechDirt.com; Crown Copyright Strikes Again: Documents Revealed Under Freedom Of Information Act Can Infringe On Copyright?:
"Frankly, the concept of "Crown Copyright" has never made much sense at all. We've discussed it here a few times in the past, but it's the concept that some countries have for government documents being covered by copyright. Thankfully, this is one area where the US actually leads the way: it has no such thing. Documents produced by the federal government in the US are automatically considered public domain (state government documents aren't always public domain, but that's another discussion for another time). But in many other countries that's not true, and those documents are covered by "crown copyright." This makes little sense no matter how you think about it. If the purpose of copyright is to give incentives to create the content, it seems obvious that a government should not need copyright.
Instead, it seems to show how some now view copyright: as a tool to restrict information, rather than as an incentive to create information."
"Frankly, the concept of "Crown Copyright" has never made much sense at all. We've discussed it here a few times in the past, but it's the concept that some countries have for government documents being covered by copyright. Thankfully, this is one area where the US actually leads the way: it has no such thing. Documents produced by the federal government in the US are automatically considered public domain (state government documents aren't always public domain, but that's another discussion for another time). But in many other countries that's not true, and those documents are covered by "crown copyright." This makes little sense no matter how you think about it. If the purpose of copyright is to give incentives to create the content, it seems obvious that a government should not need copyright.
Instead, it seems to show how some now view copyright: as a tool to restrict information, rather than as an incentive to create information."
German court overturns injunction against RapidShare; ArsTechnica.com, 7/23/10
Jacqui Cheng, ArsTechnica.com; German court overturns injunction against RapidShare:
"File sharing service RapidShare doesn't have to employ a word filter to combat the sharing of copyrighted files, the Higher Regional Court of Düsseldorf has now confirmed. The court reversed a preliminary injunction against RapidShare it issued last year, handing the company another legal victory.
Movie distributor Capelight Pictures had won a preliminary injunction against RapidShare for hosting a number of its films, including Insomnia and The Fall, as well as Inside a Skinhead. The court initially ruled that RapidShare had not done enough to prevent the sharing of Capelight's films because it didn't use a word filter, but RapidShare managed to eke out an appeal victory in April by arguing that common English terms, such as "insomnia" and "fall" would cause too many wrong hits with a filter.
A similar argument worked for the most recent decision as well. When it came to Inside a Skinhead, RapidShare said that a filter would hinder people from saving private copies of the file as allowed by German law. The court also said that RapidShare did not have the obligation to stop the dissemination of download links, and reversed its previous injunction.
RapidShare lawyer Daniel Raimer described the ruling as another step in the right direction. "The previously common practice of copyright holders to sue RapidShare on the off-chance there might be something to be gained from it, misunderstanding the realities it is operating within and showing contempt for its business model, will no longer bear fruit. The newest court rulings in Germany and the USA indicate this very clearly."
Indeed, courts in both Germany and the US have recently been issuing favorable rulings for RapidShare. The Düsseldorf appeals court overturned another decision in May, saying that the service can't be held responsible for the actions of third parties and pointing out that various filtering schemes are impractical. In the same month, a US District Court in California denied adult entertainment company Perfect 10's request for an injunction against RapidShare, saying that there wasn't sufficient proof that RapidShare itself had infringed on Perfect 10's copyrights.
The latest rulings are a long way from the days when RapidShare was being told to proactively remove infringing content and found itself facing a possible shutdown. As RapidShare CEO Christian Schmid pointed out, copyright holders may want to reconsider whether it's worth their time to go after file sharing companies (and file sharers)—especially when they seem to be spending so much more on legal fees than what they're getting back in claim settlements."
http://arstechnica.com/tech-policy/news/2010/07/german-court-overturns-injunction-against-rapidshare.ars
"File sharing service RapidShare doesn't have to employ a word filter to combat the sharing of copyrighted files, the Higher Regional Court of Düsseldorf has now confirmed. The court reversed a preliminary injunction against RapidShare it issued last year, handing the company another legal victory.
Movie distributor Capelight Pictures had won a preliminary injunction against RapidShare for hosting a number of its films, including Insomnia and The Fall, as well as Inside a Skinhead. The court initially ruled that RapidShare had not done enough to prevent the sharing of Capelight's films because it didn't use a word filter, but RapidShare managed to eke out an appeal victory in April by arguing that common English terms, such as "insomnia" and "fall" would cause too many wrong hits with a filter.
A similar argument worked for the most recent decision as well. When it came to Inside a Skinhead, RapidShare said that a filter would hinder people from saving private copies of the file as allowed by German law. The court also said that RapidShare did not have the obligation to stop the dissemination of download links, and reversed its previous injunction.
RapidShare lawyer Daniel Raimer described the ruling as another step in the right direction. "The previously common practice of copyright holders to sue RapidShare on the off-chance there might be something to be gained from it, misunderstanding the realities it is operating within and showing contempt for its business model, will no longer bear fruit. The newest court rulings in Germany and the USA indicate this very clearly."
Indeed, courts in both Germany and the US have recently been issuing favorable rulings for RapidShare. The Düsseldorf appeals court overturned another decision in May, saying that the service can't be held responsible for the actions of third parties and pointing out that various filtering schemes are impractical. In the same month, a US District Court in California denied adult entertainment company Perfect 10's request for an injunction against RapidShare, saying that there wasn't sufficient proof that RapidShare itself had infringed on Perfect 10's copyrights.
The latest rulings are a long way from the days when RapidShare was being told to proactively remove infringing content and found itself facing a possible shutdown. As RapidShare CEO Christian Schmid pointed out, copyright holders may want to reconsider whether it's worth their time to go after file sharing companies (and file sharers)—especially when they seem to be spending so much more on legal fees than what they're getting back in claim settlements."
http://arstechnica.com/tech-policy/news/2010/07/german-court-overturns-injunction-against-rapidshare.ars
Only 0.3% of files on BitTorrent confirmed to be legal; ArsTechnica.com, 7/23/10
Jacqui Cheng, ArsTechnica.com; Only 0.3% of files on BitTorrent confirmed to be legal:
"The large majority of content found on BitTorrent is illegal, a new study out of the University of Ballarat in Australia has confirmed. Researchers from the university's Internet Commerce Security Laboratory scraped torrents from 23 trackers and looked up the content to determine whether the file was confirmed to be copyrighted. They found that 89 percent of the files they sampled were confirmed to be illegally shared, and most of the remaining ambiguous 11 percent was likely to be infringing.
The total sample consisted of 1,000 torrent files—a random selection from the most active seeded files on the trackers they used. Each file was manually checked to see whether it was being legally distributed. Only three cases—0.3 percent of the files—were determined to be definitely not infringing, while 890 files were confirmed to be illegal.
Additionally, 16 files were of ambiguous origin and 91 files were pornographic, which were unclear due to their oft-mislabeled nature. "[M]any files were tagged as amateur (suggesting no copyright infringement) but further inspection revealed that they were in fact infringing," wrote the researchers.
Basically, the 89 percent is a baseline number when it came to infringing files, and the three most shared categories were movies, music, and TV shows—among those categories, there were zero legal files being shared. Assuming all 16 files of ambiguous legality were in fact legal, the researchers said that there was an overall figure of 97.9 percent infringing content being distributed on BitTorrent.
This report echoes similar results out of Princeton that were published earlier this year. Though the top categories were slightly different—Princeton found that movies and TV were the most popular, while music fell behind games/software, pornography, and unclassifiable files—that study found that all of the movie, TV, and music content being shared was indeed infringing. Overall, Princeton said that 99 percent of the content on BitTorrent was illegal.
The University of Ballarat said that just four percent of torrents were responsible for 80 percent of the seed population. And, according to the list of the top 10 most seeded files, they were all Hollywood films (save for Lady Gaga's album, The Fame Monster, at number 7)—it's clear that Linux distros weren't exactly dominating the charts here. Copyright holders have one consolation, however: P2P users seem to buy more content than the average person, so there's still some chance of earning those users' money after all."
http://arstechnica.com/tech-policy/news/2010/07/only-03-of-files-on-bit-torrent-confirmed-to-be-legal.ars
"The large majority of content found on BitTorrent is illegal, a new study out of the University of Ballarat in Australia has confirmed. Researchers from the university's Internet Commerce Security Laboratory scraped torrents from 23 trackers and looked up the content to determine whether the file was confirmed to be copyrighted. They found that 89 percent of the files they sampled were confirmed to be illegally shared, and most of the remaining ambiguous 11 percent was likely to be infringing.
The total sample consisted of 1,000 torrent files—a random selection from the most active seeded files on the trackers they used. Each file was manually checked to see whether it was being legally distributed. Only three cases—0.3 percent of the files—were determined to be definitely not infringing, while 890 files were confirmed to be illegal.
Additionally, 16 files were of ambiguous origin and 91 files were pornographic, which were unclear due to their oft-mislabeled nature. "[M]any files were tagged as amateur (suggesting no copyright infringement) but further inspection revealed that they were in fact infringing," wrote the researchers.
Basically, the 89 percent is a baseline number when it came to infringing files, and the three most shared categories were movies, music, and TV shows—among those categories, there were zero legal files being shared. Assuming all 16 files of ambiguous legality were in fact legal, the researchers said that there was an overall figure of 97.9 percent infringing content being distributed on BitTorrent.
This report echoes similar results out of Princeton that were published earlier this year. Though the top categories were slightly different—Princeton found that movies and TV were the most popular, while music fell behind games/software, pornography, and unclassifiable files—that study found that all of the movie, TV, and music content being shared was indeed infringing. Overall, Princeton said that 99 percent of the content on BitTorrent was illegal.
The University of Ballarat said that just four percent of torrents were responsible for 80 percent of the seed population. And, according to the list of the top 10 most seeded files, they were all Hollywood films (save for Lady Gaga's album, The Fame Monster, at number 7)—it's clear that Linux distros weren't exactly dominating the charts here. Copyright holders have one consolation, however: P2P users seem to buy more content than the average person, so there's still some chance of earning those users' money after all."
http://arstechnica.com/tech-policy/news/2010/07/only-03-of-files-on-bit-torrent-confirmed-to-be-legal.ars
Friday, July 23, 2010
Yeeeehaw! Naked Cowboy, Cowgirl in Federal Court Standoff; Wall Street Journal, 7/22/10
Clifford Marks, Wall Street Journal; Yeeeehaw! Naked Cowboy, Cowgirl in Federal Court Standoff:
"Our favorite naked, litigious cowboy is back at it.
When last we checked in, Robert Burck, better known as the Naked Cowboy, had filed suit against the Mars candy company for broadcasting an ad of an M&M dressed in revealing cowboy apparel. (The suit settled for undisclosed terms at the end of 2008.)
Now, the Times Square street performer famous for his skimpy, Western outfit (just cowboy boots, a hat, and a pair of briefs) is suing someone a little closer to his line of work: the Naked Cowgirl. Her shtick is similar to that of Burck’s — strolling the streets of Times Square with her guitar, clad in an outfit that, well, leaves little to the imagination.
An attorney for Burck told the New York Daily News that the Naked Cowgirl (real name Sandra Brodsky) is creating confusion and destroying Burck’s brand. And not only that. The suit, filed Wednesday in Manhattan federal court, alleges that Brodsky is tarnishing the Naked Cowboy’s wholesome image:
“She has been observed using visual profanity (flipping the bird at the camera) when photographing with people in Times Square,” the lawsuit states. “This is inconsistent with the manner in which the Naked Cowboy conducts business.” Click here, also, for the NY Post article.
Oh, my. The New York Daily News couldn’t reach Brodsky for comment."
http://blogs.wsj.com/law/2010/07/22/yeeeehaw-naked-cowboy-cowgirl-in-federal-court-standoff/
"Our favorite naked, litigious cowboy is back at it.
When last we checked in, Robert Burck, better known as the Naked Cowboy, had filed suit against the Mars candy company for broadcasting an ad of an M&M dressed in revealing cowboy apparel. (The suit settled for undisclosed terms at the end of 2008.)
Now, the Times Square street performer famous for his skimpy, Western outfit (just cowboy boots, a hat, and a pair of briefs) is suing someone a little closer to his line of work: the Naked Cowgirl. Her shtick is similar to that of Burck’s — strolling the streets of Times Square with her guitar, clad in an outfit that, well, leaves little to the imagination.
An attorney for Burck told the New York Daily News that the Naked Cowgirl (real name Sandra Brodsky) is creating confusion and destroying Burck’s brand. And not only that. The suit, filed Wednesday in Manhattan federal court, alleges that Brodsky is tarnishing the Naked Cowboy’s wholesome image:
“She has been observed using visual profanity (flipping the bird at the camera) when photographing with people in Times Square,” the lawsuit states. “This is inconsistent with the manner in which the Naked Cowboy conducts business.” Click here, also, for the NY Post article.
Oh, my. The New York Daily News couldn’t reach Brodsky for comment."
http://blogs.wsj.com/law/2010/07/22/yeeeehaw-naked-cowboy-cowgirl-in-federal-court-standoff/
Bratz Dolls Breathe Again After Stunning Ninth Circuit Reversal; Wall Street Journal, 7/22/10
Ashby Jones, Wall Street Journal; Bratz Dolls Breathe Again After Stunning Ninth Circuit Reversal:
"Wowza.
It’s been a while since we heard anything on the Mattel/MGA front. But the Ninth Circuit on Thursday handed down a stunning ruling, essentially reversing much of the December 2008 ruling that gave Mattel the rights to much of MGA’s Bratz products. Click here for the AP story; here for the Bloomberg story; here for the opinion, written by Judge Alex Kozinski and joined by Judges Stephen Trott and Kim Wardlaw.
The ruling may force a retrial.
In 2008, Mattel won a lawsuit claiming MGA had infringed its copyright and breached a contract because the designer of Bratz dolls was still under contract to Mattel when he developed the Bratz concept for MGA.
In April 2009, a federal judge upheld the $100 million jury verdict that gave Mattel ownership of the Bratz brand.
But the appeals court suspended that order in December and reversed it Thursday.
“It is not equitable to transfer this billion-dollar brand, the value of which is overwhelmingly the result of MGA’s legitimate efforts, because it may have started with two misappropriated names,” the appellate panel said in its ruling today.
The appellate court said it was likely that a significant portion of the jury verdict and damages award would need to be vacated and that the entire case will probably be retried.
“This is a breathtaking opinion by a unanimous panel of the Ninth Circuit. The panel endorsed all of the arguments that MGA has been advancing throughout this protracted litigation,” said Thomas Nolan, a lawyer at Skadden. Nolan led the trial team on behalf of MGA. Orrick’s Josh Rosenkrantz argued the appeal for MGA.
John Quinn and other lawyers from Quinn Emanuel handled the trial for Mattel. Daniel Collins of Munger Tolles argued the appeal.
Spokespersons for each company were not immediately reached for comment by Bloomberg."
http://blogs.wsj.com/law/2010/07/22/bratz-dolls-breathe-again-after-stunning-ninth-circuit-reversal/
"Wowza.
It’s been a while since we heard anything on the Mattel/MGA front. But the Ninth Circuit on Thursday handed down a stunning ruling, essentially reversing much of the December 2008 ruling that gave Mattel the rights to much of MGA’s Bratz products. Click here for the AP story; here for the Bloomberg story; here for the opinion, written by Judge Alex Kozinski and joined by Judges Stephen Trott and Kim Wardlaw.
The ruling may force a retrial.
In 2008, Mattel won a lawsuit claiming MGA had infringed its copyright and breached a contract because the designer of Bratz dolls was still under contract to Mattel when he developed the Bratz concept for MGA.
In April 2009, a federal judge upheld the $100 million jury verdict that gave Mattel ownership of the Bratz brand.
But the appeals court suspended that order in December and reversed it Thursday.
“It is not equitable to transfer this billion-dollar brand, the value of which is overwhelmingly the result of MGA’s legitimate efforts, because it may have started with two misappropriated names,” the appellate panel said in its ruling today.
The appellate court said it was likely that a significant portion of the jury verdict and damages award would need to be vacated and that the entire case will probably be retried.
“This is a breathtaking opinion by a unanimous panel of the Ninth Circuit. The panel endorsed all of the arguments that MGA has been advancing throughout this protracted litigation,” said Thomas Nolan, a lawyer at Skadden. Nolan led the trial team on behalf of MGA. Orrick’s Josh Rosenkrantz argued the appeal for MGA.
John Quinn and other lawyers from Quinn Emanuel handled the trial for Mattel. Daniel Collins of Munger Tolles argued the appeal.
Spokespersons for each company were not immediately reached for comment by Bloomberg."
http://blogs.wsj.com/law/2010/07/22/bratz-dolls-breathe-again-after-stunning-ninth-circuit-reversal/
Bratz dolls maker wins appeal against Mattel; Los Angeles Times, 7/22/10
Carol Williams and Andrea Chang, Los Angeles Times; Bratz dolls maker wins appeal against Mattel: MGA Entertainment violated Mattel's copyrights to some degree but is entitled to 'sweat equity' because it developed the dolls into a successful brand, court says:
"Toy giant Mattel Inc. can't claim a monopoly over dolls with a bratty attitude, and the rival company that developed the Bratz line deserves its fair share of the dolls' success, a federal appeals court ruled Thursday.
The decision reversed the copyright victory scored two years ago in the battle over who owns the billion-dollar Bratz — Mattel, which employed the inventor while he did early development of the pouty plastic figures, or MGA Entertainment Inc., which later hired him and went on to produce the brand.
Mattel, whose Barbie dolls ruled the world's toy chests and play houses for half a century, had been awarded $100 million in damages ($10 million of it for copyright infringement) and ownership of the trademark rights to all Bratz dolls after a 2008 jury trial. The lower court had found that the inventor, Carter Bryant, had violated his contract with Mattel by taking the idea with him when he left the company.
MGA, based in Van Nuys, was ordered by a federal judge to transfer all products, proceeds and other assets to a trust created for Mattel. MGA appealed, leading to Thursday's decision by a three-judge panel of the U.S. 9th Circuit Court of Appeals.
While an employee of El Segundo-based Mattel, Barbie designer Bryant developed the Bratz dolls, worked up sketches and made at least one mockup of four flirty girls with hot clothes and heavy makeup. Bryant had called his line Bratz and named one of the first four dolls Jade — names that eventually made it to market on MGA products.
Although MGA violated Mattel's copyrights to some degree, MGA developed the dolls into a phenomenal success and is entitled to its "sweat equity," the appeals panel said.
"Mattel can't claim a monopoly over fashion dolls with a bratty look or attitude, or dolls sporting trendy clothing — these were all unprotectable ideas," the panel headed by 9th Circuit Chief Judge Alex Kozinski ruled.
The judges also sent the case back to federal district court to determine a more fair disposition of the Bratz property, saying "it was not equitable to transfer this billion-dollar brand — the value of which was overwhelmingly the result of MGA's legitimate efforts — because it might have started with two misappropriated names."
Each dollmaker said it expected to ultimately prevail in the ownership battle."
http://articles.latimes.com/2010/jul/22/business/la-fi-0723-bratz-court-20100722
"Toy giant Mattel Inc. can't claim a monopoly over dolls with a bratty attitude, and the rival company that developed the Bratz line deserves its fair share of the dolls' success, a federal appeals court ruled Thursday.
The decision reversed the copyright victory scored two years ago in the battle over who owns the billion-dollar Bratz — Mattel, which employed the inventor while he did early development of the pouty plastic figures, or MGA Entertainment Inc., which later hired him and went on to produce the brand.
Mattel, whose Barbie dolls ruled the world's toy chests and play houses for half a century, had been awarded $100 million in damages ($10 million of it for copyright infringement) and ownership of the trademark rights to all Bratz dolls after a 2008 jury trial. The lower court had found that the inventor, Carter Bryant, had violated his contract with Mattel by taking the idea with him when he left the company.
MGA, based in Van Nuys, was ordered by a federal judge to transfer all products, proceeds and other assets to a trust created for Mattel. MGA appealed, leading to Thursday's decision by a three-judge panel of the U.S. 9th Circuit Court of Appeals.
While an employee of El Segundo-based Mattel, Barbie designer Bryant developed the Bratz dolls, worked up sketches and made at least one mockup of four flirty girls with hot clothes and heavy makeup. Bryant had called his line Bratz and named one of the first four dolls Jade — names that eventually made it to market on MGA products.
Although MGA violated Mattel's copyrights to some degree, MGA developed the dolls into a phenomenal success and is entitled to its "sweat equity," the appeals panel said.
"Mattel can't claim a monopoly over fashion dolls with a bratty look or attitude, or dolls sporting trendy clothing — these were all unprotectable ideas," the panel headed by 9th Circuit Chief Judge Alex Kozinski ruled.
The judges also sent the case back to federal district court to determine a more fair disposition of the Bratz property, saying "it was not equitable to transfer this billion-dollar brand — the value of which was overwhelmingly the result of MGA's legitimate efforts — because it might have started with two misappropriated names."
Each dollmaker said it expected to ultimately prevail in the ownership battle."
http://articles.latimes.com/2010/jul/22/business/la-fi-0723-bratz-court-20100722
Thursday, July 22, 2010
Copright [sic] issue forces South Africa to ponder life after Bafana Bafana; (London) Guardian, 7/22/10
(London) Guardian; Copright [sic] issue forces South Africa to ponder life after Bafana Bafana:
"The South African national side might not be known as Bafana Bafana for much longer, with the country's football association apparently ready to give up the nickname and adopt a new one because of an ongoing copyright dispute.
A South African businessman acquired the rights to the phrase in 1994. While the South African Football Association has been allowed to use it on official literature, it is unable to print it on merchandise or make financial gain from it. In 1997 the SAFA started a legal battle to reclaim the name, but South Africa's Supreme Court of Appeal dismissed their case in 2002. The copyright owners are believed to have made a profit of £6.5m from it during the World Cup.
"I want to avoid saying we are very angry about it," the SAFA president, Kirsten Nematandani, said. "We are worried about it. We are concerned." Nematandani said the future of the nickname was being discussed "at a national level", and that despite Bafana Bafana being "a national asset" it might have to be changed.
"It clearly has to be done the right way, but we cannot go on in this way. It is not proper, it is not correct," he said. "The name of Bafana Bafana came from the public and we are throwing the ball back to the public."
Bafana Bafana means "the boys, the boys" in Zulu. It is thought to have been used in the early 1990s by journalists in Soweto to refer to the national team after it was readmitted into international football after apartheid. It was quickly picked up and is now the affectionate name by which South Africa football fans refer to their team.
The issue has reached South Africa's parliament in Cape Town. On Tuesday, the chairman of the influential parliamentary committee on sport said Bafana should be dropped if the copyright issue was not resolved."
http://www.guardian.co.uk/football/2010/jul/22/copyright-south-africa-bafana-bafana
"The South African national side might not be known as Bafana Bafana for much longer, with the country's football association apparently ready to give up the nickname and adopt a new one because of an ongoing copyright dispute.
A South African businessman acquired the rights to the phrase in 1994. While the South African Football Association has been allowed to use it on official literature, it is unable to print it on merchandise or make financial gain from it. In 1997 the SAFA started a legal battle to reclaim the name, but South Africa's Supreme Court of Appeal dismissed their case in 2002. The copyright owners are believed to have made a profit of £6.5m from it during the World Cup.
"I want to avoid saying we are very angry about it," the SAFA president, Kirsten Nematandani, said. "We are worried about it. We are concerned." Nematandani said the future of the nickname was being discussed "at a national level", and that despite Bafana Bafana being "a national asset" it might have to be changed.
"It clearly has to be done the right way, but we cannot go on in this way. It is not proper, it is not correct," he said. "The name of Bafana Bafana came from the public and we are throwing the ball back to the public."
Bafana Bafana means "the boys, the boys" in Zulu. It is thought to have been used in the early 1990s by journalists in Soweto to refer to the national team after it was readmitted into international football after apartheid. It was quickly picked up and is now the affectionate name by which South Africa football fans refer to their team.
The issue has reached South Africa's parliament in Cape Town. On Tuesday, the chairman of the influential parliamentary committee on sport said Bafana should be dropped if the copyright issue was not resolved."
http://www.guardian.co.uk/football/2010/jul/22/copyright-south-africa-bafana-bafana
Scanlation giant One Manga is shutting down; ComicBookResources.com, 7/22/10
Kevin Melrose, ComicBookResources.com; Scanlation giant One Manga is shutting down:
"One Manga, the largest scanlation aggregator and one of the world's most-visited websites, has announced it is essentially closing down next week following pressure from publishers. Although the forums will remain open, all manga scans will be removed from the site.
"It pains me to announce that this is the last week of manga reading on One Manga (!!)," One Manga administrator "Zabi" writes in a message on the site's main page. "Manga publishers have recently changed their stance on manga scanlations and made it clear that they no longer approve of it. We have decided to abide by their wishes, and remove all manga content (regardless of licensing status) from the site. The removal of content will happen gradually (so you can at least finish some of the outstanding reading you have), but we expect all content to be gone by early next week (RIP OM July '10)."
According to Google, One Manga is the 935th most-visited website in the world, with 4.2 million unique visitors each month.
In early June a coalition of Japanese and U.S. manga publishers announced it would take legal action against 30 sites that illegally post translated scans of their titles if the administrators didn't "immediately cease their activities." Within days, MangaHelpers began shutting down (while launching a platform for creators) and MangaFox started pulling licensed titles from its list. However, the closing of One Manga gives the coalition its biggest victory, by far, to date.
In the wake of the One Manga announcement, administrators set up a Facebook page, which already has almost 53,000 "Likes.""
http://robot6.comicbookresources.com/2010/07/breaking-scanlation-giant-one-manga-is-shutting-down/
"One Manga, the largest scanlation aggregator and one of the world's most-visited websites, has announced it is essentially closing down next week following pressure from publishers. Although the forums will remain open, all manga scans will be removed from the site.
"It pains me to announce that this is the last week of manga reading on One Manga (!!)," One Manga administrator "Zabi" writes in a message on the site's main page. "Manga publishers have recently changed their stance on manga scanlations and made it clear that they no longer approve of it. We have decided to abide by their wishes, and remove all manga content (regardless of licensing status) from the site. The removal of content will happen gradually (so you can at least finish some of the outstanding reading you have), but we expect all content to be gone by early next week (RIP OM July '10)."
According to Google, One Manga is the 935th most-visited website in the world, with 4.2 million unique visitors each month.
In early June a coalition of Japanese and U.S. manga publishers announced it would take legal action against 30 sites that illegally post translated scans of their titles if the administrators didn't "immediately cease their activities." Within days, MangaHelpers began shutting down (while launching a platform for creators) and MangaFox started pulling licensed titles from its list. However, the closing of One Manga gives the coalition its biggest victory, by far, to date.
In the wake of the One Manga announcement, administrators set up a Facebook page, which already has almost 53,000 "Likes.""
http://robot6.comicbookresources.com/2010/07/breaking-scanlation-giant-one-manga-is-shutting-down/
Tuesday, July 20, 2010
Alleged New ACTA Draft Text Leaked; Intellectual Property Watch, 7/14/10
Intellectual Property Watch; Alleged New ACTA Draft Text Leaked:
"The latest text of the Anti-Counterfeiting Trade Agreement (ACTA) reflecting the late June – early July negotiations in Lucerne, Switzerland has allegedly been leaked, just after being placed in a secret reading room for the European Parliament (IPW, IP Burble, 14 July 2010). Nongovernmental group La Quadrature du Net announced today (Bastille Day) that it has released the latest text, available here.
European Union negotiators had lamented to Intellectual Property Watch after Lucerne (IPW, Bilateral/Regional Negotiations, 2 July 2010) that the latest text was kept secret despite an earlier version having been released in April, this time supposedly withheld by one of the 11 negotiating delegations on the grounds that there were few significant changes. This draft appears to show the latest changes and the delegations associated with them.
Related Articles:
Leaked ACTA Text Shows Possible Contradictions With National Laws
Official ACTA Text Released
ACTA Internet Document Leaked, New EU Transparency Call"
http://www.ip-watch.org/weblog/2010/07/14/alleged-new-acta-draft-leaked/
"The latest text of the Anti-Counterfeiting Trade Agreement (ACTA) reflecting the late June – early July negotiations in Lucerne, Switzerland has allegedly been leaked, just after being placed in a secret reading room for the European Parliament (IPW, IP Burble, 14 July 2010). Nongovernmental group La Quadrature du Net announced today (Bastille Day) that it has released the latest text, available here.
European Union negotiators had lamented to Intellectual Property Watch after Lucerne (IPW, Bilateral/Regional Negotiations, 2 July 2010) that the latest text was kept secret despite an earlier version having been released in April, this time supposedly withheld by one of the 11 negotiating delegations on the grounds that there were few significant changes. This draft appears to show the latest changes and the delegations associated with them.
Related Articles:
Leaked ACTA Text Shows Possible Contradictions With National Laws
Official ACTA Text Released
ACTA Internet Document Leaked, New EU Transparency Call"
http://www.ip-watch.org/weblog/2010/07/14/alleged-new-acta-draft-leaked/
Next wave of Far Cry torrent lawsuits incoming; ArsTechnica.com, 7/19/10
Matthew Lasar, ArsTechnica.com; Next wave of Far Cry torrent lawsuits incoming:
"Looks like that small battalion of attorneys who've agreed to represent accused file sharers of Hurt Locker, Far Cry, other movies had better gird their loins. The Hollywood Reporter says that the law office spearheading these lawsuits has recruited over a dozen smaller firms around the United States to get the actions underway. They'll answer to the US Copyright Group as they go after defendants who decline to settle.
"Beginning the first week of August, expect an explosion of lawsuits around the nation," The Reporter warns."
http://arstechnica.com/media/news/2010/07/next-wave-of-far-cry-torrent-lawsuits-incoming.ars
"Looks like that small battalion of attorneys who've agreed to represent accused file sharers of Hurt Locker, Far Cry, other movies had better gird their loins. The Hollywood Reporter says that the law office spearheading these lawsuits has recruited over a dozen smaller firms around the United States to get the actions underway. They'll answer to the US Copyright Group as they go after defendants who decline to settle.
"Beginning the first week of August, expect an explosion of lawsuits around the nation," The Reporter warns."
http://arstechnica.com/media/news/2010/07/next-wave-of-far-cry-torrent-lawsuits-incoming.ars
File sharers targeted with legal action over music downloads; (London) Guardian, 7/17/10
Miles Brignall, (London) Guardian; File sharers targeted with legal action over music downloads: Lawyers for Ministry of Sound and other music labels are seeking compensation, threatening court action unless file sharers pay:
"Solicitors for dance music label Ministry of Sound have sent letters to thousands of internet users it believes have illegally downloaded music and says it is determined to take them to court – and extract substantial damages – unless they immediately pay compensation, typically around £350.
Ministry of Sound's move marks an intensification of the legal battle against file sharers, which is seeing more and more lawyers send out what critics call speculative invoicing of downloaders suspected of pirating anything from music tracks to films and games.
Soho firm Gallant Macmillan last week completed a mailout to 2,000 individuals it claims infringed Ministry of Sound's copyright after downloading and sharing music. It follows in the steps of ACS:Law, which has sent many thousands of letters demanding compensation from alleged file sharers, sometimes billing in excess of £1,000. Luke Bellamy, above, contacted Money this week after receiving a £295 demand from ACS:Law, which alleged he downloaded and shared a track from dance music group Cascada.
Some recipients of the letters, concerned about forking out huge damages, have paid up. Others have been mystified – they claim never to have downloaded the tracks. Meanwhile, some legal specialists say the threats are largely unenforceable. Unless a user confesses to illegally downloading a file, or a court order is obtained to seize a computer and the file is then located on its hard drive, consumer groups say, it's hard to see how such an action will succeed.
Even the body that represents the UK recorded music industry, the BPI, which is keen to stamp out illegal filesharing, says it does not condone the mass-mailing of alleged internet pirates. "Our view is that legal action is best reserved for the most persistent or serious offenders, rather than widely used as a first response," it says.
Most recipients of the letters have binned them and, to date, avoided any further action. But Gallant Macmillan says it is taking a different approach to the other legal firms that pioneered this business, and that its sole client, Ministry of Sound, is serious when it threatens legal action. Until now, none of these cases have ended up in UK courts. A Ministry of Sound spokesman says that actions have been won in German courts, and it is confident that it can do the same in the UK.
Bellamy, 23, a lifeguard from Dudley, West Midlands, lives with his parents, but pays for the O2 broadband connection into the family home. The letter sent to him by ACS:Law claims his internet account was used to download Evacuate the Dancefloor by Cascada, from the filesharing website uTorrent.
The letter, which runs to nine pages, goes on to claim that this was in breach of ACS's clients' copyright, and offers to settle its potential claim if Bellamy pays nearly £300 in compensation.
"Getting a letter like this is extremely worrying. I have never downloaded anything from this website and yet I am being chased for this money. My parents have been worried by this, and frankly I've got better things to do with my time than deal with this."
And he is by no means alone. The internet is awash with similar complaints from anxious web users - many of whom who did download the files where they have been accused of infringing copyright, but also from plenty who insist they didn't. The letters demand anywhere between £300 and £1,200. The law firms sending the letters obtain the names and addresses of the downloaders from internet service providers (ISPs). To get access, they usually seek a high court order, and ISPs have no choice but to hand over the details.
In November 2008, Money first reported that solicitors were sending out threatening letters to net users. We featured a Hertfordshire couple sent a demand to pay £503 for "copyright infringement" or face a high court action. The 20-page "pre-settlement letter" from legal firm Davenport Lyons demanded money on behalf of German pornographers, who claimed the pair had illegally downloaded a porn film. The couple said they had no idea how to even download a film, even if they had the inclination, which they didn't.
Michael Coyle, solicitor advocate and MD of the Southampton-based law firm Lawdit, who has represented hundreds of people who have received these letters, says none of his cases have gone to court."
http://www.guardian.co.uk/money/2010/jul/17/file-sharers-legal-action-music-downloads
"Solicitors for dance music label Ministry of Sound have sent letters to thousands of internet users it believes have illegally downloaded music and says it is determined to take them to court – and extract substantial damages – unless they immediately pay compensation, typically around £350.
Ministry of Sound's move marks an intensification of the legal battle against file sharers, which is seeing more and more lawyers send out what critics call speculative invoicing of downloaders suspected of pirating anything from music tracks to films and games.
Soho firm Gallant Macmillan last week completed a mailout to 2,000 individuals it claims infringed Ministry of Sound's copyright after downloading and sharing music. It follows in the steps of ACS:Law, which has sent many thousands of letters demanding compensation from alleged file sharers, sometimes billing in excess of £1,000. Luke Bellamy, above, contacted Money this week after receiving a £295 demand from ACS:Law, which alleged he downloaded and shared a track from dance music group Cascada.
Some recipients of the letters, concerned about forking out huge damages, have paid up. Others have been mystified – they claim never to have downloaded the tracks. Meanwhile, some legal specialists say the threats are largely unenforceable. Unless a user confesses to illegally downloading a file, or a court order is obtained to seize a computer and the file is then located on its hard drive, consumer groups say, it's hard to see how such an action will succeed.
Even the body that represents the UK recorded music industry, the BPI, which is keen to stamp out illegal filesharing, says it does not condone the mass-mailing of alleged internet pirates. "Our view is that legal action is best reserved for the most persistent or serious offenders, rather than widely used as a first response," it says.
Most recipients of the letters have binned them and, to date, avoided any further action. But Gallant Macmillan says it is taking a different approach to the other legal firms that pioneered this business, and that its sole client, Ministry of Sound, is serious when it threatens legal action. Until now, none of these cases have ended up in UK courts. A Ministry of Sound spokesman says that actions have been won in German courts, and it is confident that it can do the same in the UK.
Bellamy, 23, a lifeguard from Dudley, West Midlands, lives with his parents, but pays for the O2 broadband connection into the family home. The letter sent to him by ACS:Law claims his internet account was used to download Evacuate the Dancefloor by Cascada, from the filesharing website uTorrent.
The letter, which runs to nine pages, goes on to claim that this was in breach of ACS's clients' copyright, and offers to settle its potential claim if Bellamy pays nearly £300 in compensation.
"Getting a letter like this is extremely worrying. I have never downloaded anything from this website and yet I am being chased for this money. My parents have been worried by this, and frankly I've got better things to do with my time than deal with this."
And he is by no means alone. The internet is awash with similar complaints from anxious web users - many of whom who did download the files where they have been accused of infringing copyright, but also from plenty who insist they didn't. The letters demand anywhere between £300 and £1,200. The law firms sending the letters obtain the names and addresses of the downloaders from internet service providers (ISPs). To get access, they usually seek a high court order, and ISPs have no choice but to hand over the details.
In November 2008, Money first reported that solicitors were sending out threatening letters to net users. We featured a Hertfordshire couple sent a demand to pay £503 for "copyright infringement" or face a high court action. The 20-page "pre-settlement letter" from legal firm Davenport Lyons demanded money on behalf of German pornographers, who claimed the pair had illegally downloaded a porn film. The couple said they had no idea how to even download a film, even if they had the inclination, which they didn't.
Michael Coyle, solicitor advocate and MD of the Southampton-based law firm Lawdit, who has represented hundreds of people who have received these letters, says none of his cases have gone to court."
http://www.guardian.co.uk/money/2010/jul/17/file-sharers-legal-action-music-downloads
E-Books Top Hardcovers at Amazon; New York Times, 7/20/10
Claire Cain Miller, New York Times; E-Books Top Hardcovers at Amazon:
"Monday was a day for the history books — if those will even exist in the future.
Amazon.com, one of the nation’s largest booksellers, announced Monday that for the last three months, sales of books for its e-reader, the Kindle, outnumbered sales of hardcover books.
In that time, Amazon said, it sold 143 Kindle books for every 100 hardcover books, including hardcovers for which there is no Kindle edition.
The pace of change is quickening, too, Amazon said. In the last four weeks sales rose to 180 digital books for every 100 hardcover copies. Amazon has 630,000 Kindle books, a small fraction of the millions of books sold on the site.
Book lovers mourning the demise of hardcover books with their heft and their musty smell need a reality check, said Mike Shatzkin, founder and chief executive of the Idea Logical Company, which advises book publishers on digital change. “This was a day that was going to come, a day that had to come,” he said. He predicts that within a decade, fewer than 25 percent of all books sold will be print versions.
The shift at Amazon is “astonishing when you consider that we’ve been selling hardcover books for 15 years, and Kindle books for 33 months,” the chief executive, Jeffrey P. Bezos, said in a statement.
Still, the hardcover book is far from extinct. Industrywide sales are up 22 percent this year, according to the American Publishers Association.
The figures do not include free Kindle books, of which there are 1.8 million originally published before 1923 (they are in the public domain because their copyright has expired). Amazon does not specify how paperback sales compare with e-book sales, but paperback sales are thought to still outnumber e-books.
The big surprise, Mr. Shatzkin said, was that the day came during the first period that the Kindle faced a serious competitive threat. The Apple iPad, which started sales in April, is marketed as a leisure device for reading, and it has its own e-book store. Yet sales of the Kindle also grew each month during the quarter, Amazon said.
Amazon is being helped by an explosion in e-book sales across the board. According to the Association of American Publishers, e-book sales have quadrupled this year through May.
Amazon said its sales exceeded that growth rate. One reason Kindle book sales have held their own is that owners of iPads and other mobile reading devices buy Kindle books, which they can read on computers, iPhones, iPads, BlackBerrys and Android phones. But, except for the free uncopyrighted books, Kindle owners must buy or download content via Amazon. “Every time they sell a Kindle, they lock up a customer,” Mr. Shatzkin said.
Some industry analysts say that many people do not consider the iPad to be a reading device the way the Kindle is, and see a need to own both. Amazon’s latest sales figures are “clearly an indication that the iPad is complementary to the Kindle, not a replacement,” said Youssef H. Squali, managing director at Jefferies & Company in charge of Internet and new media research.
The growth rate of Kindle sales tripled after Amazon lowered the price of the device in late June to $189 from $259, Amazon said. That was moments after Barnes & Noble dropped the price of its Nook e-reader to $199 from $259.
During roughly the same period, Apple sold three million iPads, it said.
Analysts said Amazon’s announcement could assuage investors’ concerns that the iPad threatens Kindle sales. Amazon’s stock price is down about 16 percent in the last three months, in part because of those fears.
“The sentiment’s turned a little more negative on the stock because of iPad issues and concern that Amazon would lose market share in the book segment,” said Aaron Kessler, director of Internet and digital media equity research at ThinkEquity."
http://www.nytimes.com/2010/07/20/technology/20kindle.html?_r=1&adxnnl=1&hpw=&adxnnlx=1279623612-kTcO1WU0wPQtYr6/bdpI6g
"Monday was a day for the history books — if those will even exist in the future.
Amazon.com, one of the nation’s largest booksellers, announced Monday that for the last three months, sales of books for its e-reader, the Kindle, outnumbered sales of hardcover books.
In that time, Amazon said, it sold 143 Kindle books for every 100 hardcover books, including hardcovers for which there is no Kindle edition.
The pace of change is quickening, too, Amazon said. In the last four weeks sales rose to 180 digital books for every 100 hardcover copies. Amazon has 630,000 Kindle books, a small fraction of the millions of books sold on the site.
Book lovers mourning the demise of hardcover books with their heft and their musty smell need a reality check, said Mike Shatzkin, founder and chief executive of the Idea Logical Company, which advises book publishers on digital change. “This was a day that was going to come, a day that had to come,” he said. He predicts that within a decade, fewer than 25 percent of all books sold will be print versions.
The shift at Amazon is “astonishing when you consider that we’ve been selling hardcover books for 15 years, and Kindle books for 33 months,” the chief executive, Jeffrey P. Bezos, said in a statement.
Still, the hardcover book is far from extinct. Industrywide sales are up 22 percent this year, according to the American Publishers Association.
The figures do not include free Kindle books, of which there are 1.8 million originally published before 1923 (they are in the public domain because their copyright has expired). Amazon does not specify how paperback sales compare with e-book sales, but paperback sales are thought to still outnumber e-books.
The big surprise, Mr. Shatzkin said, was that the day came during the first period that the Kindle faced a serious competitive threat. The Apple iPad, which started sales in April, is marketed as a leisure device for reading, and it has its own e-book store. Yet sales of the Kindle also grew each month during the quarter, Amazon said.
Amazon is being helped by an explosion in e-book sales across the board. According to the Association of American Publishers, e-book sales have quadrupled this year through May.
Amazon said its sales exceeded that growth rate. One reason Kindle book sales have held their own is that owners of iPads and other mobile reading devices buy Kindle books, which they can read on computers, iPhones, iPads, BlackBerrys and Android phones. But, except for the free uncopyrighted books, Kindle owners must buy or download content via Amazon. “Every time they sell a Kindle, they lock up a customer,” Mr. Shatzkin said.
Some industry analysts say that many people do not consider the iPad to be a reading device the way the Kindle is, and see a need to own both. Amazon’s latest sales figures are “clearly an indication that the iPad is complementary to the Kindle, not a replacement,” said Youssef H. Squali, managing director at Jefferies & Company in charge of Internet and new media research.
The growth rate of Kindle sales tripled after Amazon lowered the price of the device in late June to $189 from $259, Amazon said. That was moments after Barnes & Noble dropped the price of its Nook e-reader to $199 from $259.
During roughly the same period, Apple sold three million iPads, it said.
Analysts said Amazon’s announcement could assuage investors’ concerns that the iPad threatens Kindle sales. Amazon’s stock price is down about 16 percent in the last three months, in part because of those fears.
“The sentiment’s turned a little more negative on the stock because of iPad issues and concern that Amazon would lose market share in the book segment,” said Aaron Kessler, director of Internet and digital media equity research at ThinkEquity."
http://www.nytimes.com/2010/07/20/technology/20kindle.html?_r=1&adxnnl=1&hpw=&adxnnlx=1279623612-kTcO1WU0wPQtYr6/bdpI6g
Monday, July 19, 2010
[Podcast] Newspaper of the Future; NPR's On the Media, 7/16/10
[Podcast] NPR's On the Media; Newspaper of the Future:
"News existed before newsprint. Will it exist after? Of course, according to Yochai Benkler. What we confront, he argues, is a set of practical questions: what do we need in our news? What do we care about? The author of The Wealth of Networks describes our shift from the newspaper we get to the newspaper we seek."
http://www.onthemedia.org/transcripts/2010/07/16/06
"News existed before newsprint. Will it exist after? Of course, according to Yochai Benkler. What we confront, he argues, is a set of practical questions: what do we need in our news? What do we care about? The author of The Wealth of Networks describes our shift from the newspaper we get to the newspaper we seek."
http://www.onthemedia.org/transcripts/2010/07/16/06
[Podcast] Is Hyperlocal the Future of News?; NPR's On the Media, 7/16/10
[Podcast] NPR's On the Media; Is Hyperlocal the Future of News?:
"One school of thought says that news organizations are best equipped to cover small neighborhoods, so if you really want to attract readers go local. Last year, the New York Times began its own trial with so-called hyperlocal reporting, starting cautiously in just a handful of neighborhoods in the metro area. Deputy Metro editor Mary Ann Giordano talks about the experiment."
http://www.onthemedia.org/transcripts/2010/07/16/05
"One school of thought says that news organizations are best equipped to cover small neighborhoods, so if you really want to attract readers go local. Last year, the New York Times began its own trial with so-called hyperlocal reporting, starting cautiously in just a handful of neighborhoods in the metro area. Deputy Metro editor Mary Ann Giordano talks about the experiment."
http://www.onthemedia.org/transcripts/2010/07/16/05
[Podcast] Google's Quest to Save Newspapers; NPR's On the Media, 7/16/10
[Podcast] NPR's On the Media; Google's Quest to Save Newspapers:
"The Atlantic’s James Fallows wrote recently: “Everyone knows that Google is killing the news business. Few people know how hard Google is trying to bring it back to life.” Over the past year, Fallows spent lots of time with Google employees all working on one thing: saving the newspaper business. He explains how they plan to do it."
http://www.onthemedia.org/transcripts/2010/07/16/04
"The Atlantic’s James Fallows wrote recently: “Everyone knows that Google is killing the news business. Few people know how hard Google is trying to bring it back to life.” Over the past year, Fallows spent lots of time with Google employees all working on one thing: saving the newspaper business. He explains how they plan to do it."
http://www.onthemedia.org/transcripts/2010/07/16/04
[Podcast] Should Newspapers Charge for Content Online?; NPR's On the Media, 7/16/10
[Podcast] NPR's On the Media; Should Newspapers Charge for Content Online?:
"Should newspapers put up paywalls? Pro-paywallers, like Rupert Murdoch, say absolutely! Newspapers must charge for costly reporting in order to survive! Anti-paywallers argue that papers can't afford to shut out the open and free web. Alan Murray of the (paywall-ed) Wall Street Journal and Alan Rusbridger, editor of the (free) Guardian, discuss."
http://www.onthemedia.org/transcripts/2010/07/16/03
"Should newspapers put up paywalls? Pro-paywallers, like Rupert Murdoch, say absolutely! Newspapers must charge for costly reporting in order to survive! Anti-paywallers argue that papers can't afford to shut out the open and free web. Alan Murray of the (paywall-ed) Wall Street Journal and Alan Rusbridger, editor of the (free) Guardian, discuss."
http://www.onthemedia.org/transcripts/2010/07/16/03
A copyright ruling no one can like; CNetNews.com, 7/13/10
Greg Sandoval, CNetNews.com; A copyright ruling no one can like:
"Legal experts sympathetic to copyright owners as well as those known for supporting technology companies are criticizing a federal judge's decision to lower a jury award in a high-profile lawsuit about file sharing.
A year ago, a jury found college student Joel Tenenbaum liable for willful copyright infringement for sharing 30 songs, and later set a damages award of $675,000. On Friday, U.S. District Judge Nancy Gertner dramatically reduced the award to $67,500.
Gertner wrote in her decision that the original amount was too high and "unconstitutional." With regard to statutory damages in a copyright case, her decision is believed by some legal experts to be unprecedented. Not only are copyright owners attacking Gertner's reasoning, but so are some well-known lawyers from the pro-technology side.
Eric Goldman, a law professor at Santa Clara University who is often critical of entertainment companies in copyright litigation, predicted much of Gertner's ruling is vulnerable to appeal, which the RIAA will likely do, a high placed music industry source told CNET on Tuesday.
"This ruling is critically important," Goldman wrote on his blog on Monday. "It has the potential to [affect statutory damages for every copyright case that involves them]." Goldman said that despite feeling sympathy with the judge's aversion to the size of the award, brought on by what he called a "bad brew of an aggressive copyright lobby and pliable politicians," her arguments "did not completely convince me."
Statutory damages are a dollar range determined by Congress that sets limits on what juries can assess for copyright infringement. For willful infringement, a jury can assess damages as high as $150,000 per incident. Gertner's ruling is more proof that the damage amounts lawmakers have enabled the music industry to claim for copyright infringement are too high are the courts--as well as much of the public--to stomach. In major file-sharing cases, the Recording Industry Association of America, the trade group representing the four largest record companies, is 0-for-2 in seeing jury awards held up by the courts.
Last year, Jammie Thomas-Rasset, the accused music-pirating Minnesota woman, saw U.S. District Judge Michael Davis slash the jury-awarded damages from $1.9 million to $54,000.
"The damages range within the law are an important signal about the potential penalties for illegal conduct," the RIAA said in a statement. "A jury decides, after hearing all the facts, what is the appropriate penalty. If a judge can disregard those facts and simply impose his or her own personal views, that undermines an important deterrent message established by Congress."
Judge's authorityIn her ruling, Gertner gave consideration to the fact that there's no proof Tenenbaum shared music for commercial gain. But by reducing the award, Gertner overruled the jury as well as Congress.
"I don't think the law gives the judge the authority to lower the jury's award," said Ben Sheffner, an entertainment attorney and frequent blogger on copyright issues. "I don't think she should have altered it. I don't mean to say that I'm entirely comfortable with the amount as a matter of policy...but her decision seriously undermines the authority of Congress to set the range of statutory damages."
Not everybody sees it that way. Corynne McSherry, a staff attorney at the Electronic Frontier Foundation, an advocate group for tech and Internet users, on applauded Gertner decision.
"Gertner found there is quite a bit of evidence that Congress did not intend statutory provisions to be applied this way," McSherry said. "She concluded that the [original] damages award went far beyond what Congress intended or contemplated."
Gertner's decision will trigger all kinds of other problems, Goldman predicted.
"I expect more litigation battles over statutory damages," Goldman said. "Almost every copyright infringement defendant can advance a non-frivolous argument that statutory damages in their case would be unconstitutional. As a result, statutory damages cases will take more time and money."
Hurting 'Hurt Locker' For the music industry, this may not mean much. The top labels gave up on filing copyright complaints against individual file sharers in December 2008. Gertner's decision, however, could come into play for Voltage Pictures, producers of the Oscar-winning film "The Hurt Locker."
D.C.-area law firm Dunlap, Grubb, & Weaver has begun filing lawsuits against individual file sharers on behalf of independent production companies. Voltage is among about a dozen filmmakers that have signed up with Dunlap, which is reportedly intending to sue a total of 50,000 people for allegedly illegally sharing movie files.
In letters, Dunlap notifies the accused that they can settle the case quickly by paying $1,500 but that if they refuse, the company could eventually ask for $150,000 if they can prove the person is liable for willful infringement. That kind of claim coming after award reductions in both the Thomas-Rasset and Tenenbaum cases could ring hollow.
Gertner's decision will also make settling copyright much harder, Goldman said.
"Defendants will have increased confidence in their low case valuations (given the possibility that statutory damages will be Constitutionally capped at $2,250/work)," Goldman wrote, adding that "most copyright owners will not accept this discount. As a result, due to the doctrinal uncertainty, the litigants will have an even harder time reaching a compromise."
http://news.cnet.com/8301-31001_3-20010428-261.html
"Legal experts sympathetic to copyright owners as well as those known for supporting technology companies are criticizing a federal judge's decision to lower a jury award in a high-profile lawsuit about file sharing.
A year ago, a jury found college student Joel Tenenbaum liable for willful copyright infringement for sharing 30 songs, and later set a damages award of $675,000. On Friday, U.S. District Judge Nancy Gertner dramatically reduced the award to $67,500.
Gertner wrote in her decision that the original amount was too high and "unconstitutional." With regard to statutory damages in a copyright case, her decision is believed by some legal experts to be unprecedented. Not only are copyright owners attacking Gertner's reasoning, but so are some well-known lawyers from the pro-technology side.
Eric Goldman, a law professor at Santa Clara University who is often critical of entertainment companies in copyright litigation, predicted much of Gertner's ruling is vulnerable to appeal, which the RIAA will likely do, a high placed music industry source told CNET on Tuesday.
"This ruling is critically important," Goldman wrote on his blog on Monday. "It has the potential to [affect statutory damages for every copyright case that involves them]." Goldman said that despite feeling sympathy with the judge's aversion to the size of the award, brought on by what he called a "bad brew of an aggressive copyright lobby and pliable politicians," her arguments "did not completely convince me."
Statutory damages are a dollar range determined by Congress that sets limits on what juries can assess for copyright infringement. For willful infringement, a jury can assess damages as high as $150,000 per incident. Gertner's ruling is more proof that the damage amounts lawmakers have enabled the music industry to claim for copyright infringement are too high are the courts--as well as much of the public--to stomach. In major file-sharing cases, the Recording Industry Association of America, the trade group representing the four largest record companies, is 0-for-2 in seeing jury awards held up by the courts.
Last year, Jammie Thomas-Rasset, the accused music-pirating Minnesota woman, saw U.S. District Judge Michael Davis slash the jury-awarded damages from $1.9 million to $54,000.
"The damages range within the law are an important signal about the potential penalties for illegal conduct," the RIAA said in a statement. "A jury decides, after hearing all the facts, what is the appropriate penalty. If a judge can disregard those facts and simply impose his or her own personal views, that undermines an important deterrent message established by Congress."
Judge's authorityIn her ruling, Gertner gave consideration to the fact that there's no proof Tenenbaum shared music for commercial gain. But by reducing the award, Gertner overruled the jury as well as Congress.
"I don't think the law gives the judge the authority to lower the jury's award," said Ben Sheffner, an entertainment attorney and frequent blogger on copyright issues. "I don't think she should have altered it. I don't mean to say that I'm entirely comfortable with the amount as a matter of policy...but her decision seriously undermines the authority of Congress to set the range of statutory damages."
Not everybody sees it that way. Corynne McSherry, a staff attorney at the Electronic Frontier Foundation, an advocate group for tech and Internet users, on applauded Gertner decision.
"Gertner found there is quite a bit of evidence that Congress did not intend statutory provisions to be applied this way," McSherry said. "She concluded that the [original] damages award went far beyond what Congress intended or contemplated."
Gertner's decision will trigger all kinds of other problems, Goldman predicted.
"I expect more litigation battles over statutory damages," Goldman said. "Almost every copyright infringement defendant can advance a non-frivolous argument that statutory damages in their case would be unconstitutional. As a result, statutory damages cases will take more time and money."
Hurting 'Hurt Locker' For the music industry, this may not mean much. The top labels gave up on filing copyright complaints against individual file sharers in December 2008. Gertner's decision, however, could come into play for Voltage Pictures, producers of the Oscar-winning film "The Hurt Locker."
D.C.-area law firm Dunlap, Grubb, & Weaver has begun filing lawsuits against individual file sharers on behalf of independent production companies. Voltage is among about a dozen filmmakers that have signed up with Dunlap, which is reportedly intending to sue a total of 50,000 people for allegedly illegally sharing movie files.
In letters, Dunlap notifies the accused that they can settle the case quickly by paying $1,500 but that if they refuse, the company could eventually ask for $150,000 if they can prove the person is liable for willful infringement. That kind of claim coming after award reductions in both the Thomas-Rasset and Tenenbaum cases could ring hollow.
Gertner's decision will also make settling copyright much harder, Goldman said.
"Defendants will have increased confidence in their low case valuations (given the possibility that statutory damages will be Constitutionally capped at $2,250/work)," Goldman wrote, adding that "most copyright owners will not accept this discount. As a result, due to the doctrinal uncertainty, the litigants will have an even harder time reaching a compromise."
http://news.cnet.com/8301-31001_3-20010428-261.html
Friday, July 16, 2010
Panel: Copyright Needed In Music, But Should Benefit Musicians; Intellectual Property Watch, 7/12/10
Kaitlin Mara, Intellectual Property Watch; Panel: Copyright Needed In Music, But Should Benefit Musicians:
"Copyright is critical to the survival of the music industry and its creators, but lack of respect for copyright is not why artists are struggling to make ends meet, argued a recent panel of media lawyers and music industry experts. The blame for that lies squarely on the corporate-focus of the music industry, and how it has bent copyright law to serve companies rather than composers, said a panel at the University of Westminster.
File-sharing too is an issue, but innovative thinking may be required to find new ways to manage music sharing practices which have become outdated, panellists said.
The “biggest flaw in music is not copyright, it’s business practice,” said attorney and lecturer Ben Challis. Business practices that shift rights from the author or song writer to companies are the reason that artists do not get paid, he added. A fair regime would protect artists as well as the corporate side, he added.
Copyright has “shown itself for what it truly is,” said Kienda Hoji, an entertainment lawyer and senior lecturer at the University of Westminster. It is a system that benefits those who want to make money, not the creators who deserve to, he said.
They were speaking at an event called Talking Copyright: Reflecting On A 300 Year History & The Music Industry, held at the University of Westminster in London on 15 June. The event was organised by British Black Music, an online resource, and the Black Music Congress, a “forum for discussing issues around black music, networking, and a pathway to music industry education.”
It was intended to explore whether copyright laws are robust enough for the internet age, and if copyright awareness campaigns had lost the hearts and minds of young music consumers.
Many examples of copyright leaving the artist behind were cited by the event chair, Kwaku, founder of the Black Music Congress and one of the directors of British Black Music.
Composer Solomon Linda, a South African Zulu, composed a song called “Mbube” after the Zulu word for “lion.” The song later became famous as “The Lion Sleeps Tonight,” which was eventually licensed to Disney for its film the Lion King, but Linda died poor, having not seen a fraction of the money generated by his work, said Kwaku.
A settlement in 2006 finally acknowledged – more than 45 years after Linda’s death – the South African origin of the song, and guaranteed his heirs, until that time living in poverty, an income, according to the World Intellectual Property Organization magazine.
And Samuel Coleridge-Taylor, an English composer, had sold his wildly popular song Hiawatha to Novello for 15 guineas (British pounds) in the late 1800s and received no further royalties on it. Novello is still collecting on it, said Kwaku.
Two model laws should be more common if artists are to fully benefit from copyright laws, said David Stopps, the copyright & related rights director at the International Music Managers Forum.
These are: a German law in which the transfer of copyright can only be done by licence, which means that the rights rest fundamentally with artists; and a United States law that limits the transfer of copyright – after 35 years the creator has the right to get the copyright back. This could help prevent cases where music is still under copyright yet not available to the public: a worst-case scenario for the artist, who then cannot make money but cannot do anything with the music either, said Stopps.
The US law went into effect in 1978, meaning 2013 is the first opportunity for it to be used, said Stopps. Record companies are opposed, he added, so he predicted there will be legal cases.
And some aspects of copyright are outdated, said Challis, adding that his students were horrified that sampling from existing songs is illegal, as they see song creation from sampling as creating a new thing.
In a changing digital environment, however, new business models are needed as much as new artist savvy.
Pauline Henry, a singer and former member of Scottish band the Chimes asked why it was still possible for people to download music for free. The trick is to have music available online but without piracy, she said.
If more than half of the population is involved in file sharing – and if this constitutes over 90 percent of the digital market – said Challis, then this constitutes market failure and there must be better ways to manage it, perhaps through an “access to music charge” akin to the British television charge.
Stopps said that many artists now make more from rights to their image than to their music: singer Beyoncé, for example, owed more than half of her income to branding associated with her name.
But selling music is not necessarily a lost cause. “You can compete with free,” said Stopps, pointing to the success of bottled water. But part of it is understanding how people behave.
“Record companies shoot themselves in the foot with production times” that see songs released on radio but unavailable for purchase until eight weeks later, for example, said Stopps. The “public won’t wait,” and if music is only available on Pirate Bay then this just drives piracy, he said.
A member of the audience suggested getting in touch with young music fans, who are often willing to pay artists directly.
Related Articles:
Iceland Panel: French ‘3-Strike’ Rule Spreading But Not Best Option
Argentina Extends Music Copyright Term; Opposition Mounts
New Business Models Proposed In Debate On EU Culture And Copyright"
"Copyright is critical to the survival of the music industry and its creators, but lack of respect for copyright is not why artists are struggling to make ends meet, argued a recent panel of media lawyers and music industry experts. The blame for that lies squarely on the corporate-focus of the music industry, and how it has bent copyright law to serve companies rather than composers, said a panel at the University of Westminster.
File-sharing too is an issue, but innovative thinking may be required to find new ways to manage music sharing practices which have become outdated, panellists said.
The “biggest flaw in music is not copyright, it’s business practice,” said attorney and lecturer Ben Challis. Business practices that shift rights from the author or song writer to companies are the reason that artists do not get paid, he added. A fair regime would protect artists as well as the corporate side, he added.
Copyright has “shown itself for what it truly is,” said Kienda Hoji, an entertainment lawyer and senior lecturer at the University of Westminster. It is a system that benefits those who want to make money, not the creators who deserve to, he said.
They were speaking at an event called Talking Copyright: Reflecting On A 300 Year History & The Music Industry, held at the University of Westminster in London on 15 June. The event was organised by British Black Music, an online resource, and the Black Music Congress, a “forum for discussing issues around black music, networking, and a pathway to music industry education.”
It was intended to explore whether copyright laws are robust enough for the internet age, and if copyright awareness campaigns had lost the hearts and minds of young music consumers.
Many examples of copyright leaving the artist behind were cited by the event chair, Kwaku, founder of the Black Music Congress and one of the directors of British Black Music.
Composer Solomon Linda, a South African Zulu, composed a song called “Mbube” after the Zulu word for “lion.” The song later became famous as “The Lion Sleeps Tonight,” which was eventually licensed to Disney for its film the Lion King, but Linda died poor, having not seen a fraction of the money generated by his work, said Kwaku.
A settlement in 2006 finally acknowledged – more than 45 years after Linda’s death – the South African origin of the song, and guaranteed his heirs, until that time living in poverty, an income, according to the World Intellectual Property Organization magazine.
And Samuel Coleridge-Taylor, an English composer, had sold his wildly popular song Hiawatha to Novello for 15 guineas (British pounds) in the late 1800s and received no further royalties on it. Novello is still collecting on it, said Kwaku.
Two model laws should be more common if artists are to fully benefit from copyright laws, said David Stopps, the copyright & related rights director at the International Music Managers Forum.
These are: a German law in which the transfer of copyright can only be done by licence, which means that the rights rest fundamentally with artists; and a United States law that limits the transfer of copyright – after 35 years the creator has the right to get the copyright back. This could help prevent cases where music is still under copyright yet not available to the public: a worst-case scenario for the artist, who then cannot make money but cannot do anything with the music either, said Stopps.
The US law went into effect in 1978, meaning 2013 is the first opportunity for it to be used, said Stopps. Record companies are opposed, he added, so he predicted there will be legal cases.
And some aspects of copyright are outdated, said Challis, adding that his students were horrified that sampling from existing songs is illegal, as they see song creation from sampling as creating a new thing.
In a changing digital environment, however, new business models are needed as much as new artist savvy.
Pauline Henry, a singer and former member of Scottish band the Chimes asked why it was still possible for people to download music for free. The trick is to have music available online but without piracy, she said.
If more than half of the population is involved in file sharing – and if this constitutes over 90 percent of the digital market – said Challis, then this constitutes market failure and there must be better ways to manage it, perhaps through an “access to music charge” akin to the British television charge.
Stopps said that many artists now make more from rights to their image than to their music: singer Beyoncé, for example, owed more than half of her income to branding associated with her name.
But selling music is not necessarily a lost cause. “You can compete with free,” said Stopps, pointing to the success of bottled water. But part of it is understanding how people behave.
“Record companies shoot themselves in the foot with production times” that see songs released on radio but unavailable for purchase until eight weeks later, for example, said Stopps. The “public won’t wait,” and if music is only available on Pirate Bay then this just drives piracy, he said.
A member of the audience suggested getting in touch with young music fans, who are often willing to pay artists directly.
Related Articles:
Iceland Panel: French ‘3-Strike’ Rule Spreading But Not Best Option
Argentina Extends Music Copyright Term; Opposition Mounts
New Business Models Proposed In Debate On EU Culture And Copyright"
Librarians Go Gaga: 9 Of The Funniest Library Videos Ever; HuffingtonPost.com, 7/16/10
Caroline Eisenmann, HuffingtonPost.com; Librarians Go Gaga: 9 Of The Funniest Library Videos Ever:
"We all love our local library. Big shelves full of books and good air conditioning make them a summer go-to location.
Yet recently libraries have been in danger. In the face of government budget deficits, many have begun to see libraries as a cut-able expense.
Clearly, these critics don't see what we see. They must be missing something. Maybe just... a little Lady Gaga?
For your viewing pleasure, we have brought together the funniest library videos on the net. Dewey Decimal raps, line dances and impromptu musical numbers, these videos give just a few more reasons to head to the library.
Let us know which videos you love, and which are worse than overdue fines."
http://www.huffingtonpost.com/2010/07/16/librarians-go-gaga-9-of-t_n_648177.html
"We all love our local library. Big shelves full of books and good air conditioning make them a summer go-to location.
Yet recently libraries have been in danger. In the face of government budget deficits, many have begun to see libraries as a cut-able expense.
Clearly, these critics don't see what we see. They must be missing something. Maybe just... a little Lady Gaga?
For your viewing pleasure, we have brought together the funniest library videos on the net. Dewey Decimal raps, line dances and impromptu musical numbers, these videos give just a few more reasons to head to the library.
Let us know which videos you love, and which are worse than overdue fines."
http://www.huffingtonpost.com/2010/07/16/librarians-go-gaga-9-of-t_n_648177.html
Tuesday, July 13, 2010
How Big An Issue Are Orphan Works?; TechDirt.com, 7/12/10
Mike Masnick, TechDirt.com; How Big An Issue Are Orphan Works?:
"For a few years now, there's been an effort underway to pass "orphan works" legislation that would help deal with the massive number of works that are clearly covered by copyright, but for which no copyright holder can be found at all. Even the US Copyright Office, who normally only believes that copyright law should go in one direction (i.e., more), has come out in favor of orphan works legislation. Of course, as copyright experts like William Patry have long pointed out, the "problem" of orphan works is a self-created problem. Prior to taking away the requirement for registering to get a copyright, there really wasn't an orphan works problem, because (1) the copyright holders were registered and (2) most other works fell into the public domain, as they were either not registered, or the registration was not renewed. So, a better fix would be to go back to requiring such "formalities" (even if it goes against the sadly out of date Berne Convention rules).
In the meantime, though, since that doesn't seem likely, many are pushing for such orphan works laws. Unfortunately, there has been a lot of blatant misinformation spread around against orphan works legislation, who insist that it's really a way for companies to use works without paying for them. Of course, the various proposals for orphan works laws make it clear this is not the case. They all require the potential user to conduct a very real and very serious search for the copyright holder. You can't just declare the the copyright holder can't be found.
Of course, another complaint against orphan works legislation is that orphan works really aren't much of a problem, as they're somewhat "rare." How rare are they? Well, Michael Scott points us to a report trying to quantify the number of orphan works in Europe alone. The numbers are pretty impressive..."
"For a few years now, there's been an effort underway to pass "orphan works" legislation that would help deal with the massive number of works that are clearly covered by copyright, but for which no copyright holder can be found at all. Even the US Copyright Office, who normally only believes that copyright law should go in one direction (i.e., more), has come out in favor of orphan works legislation. Of course, as copyright experts like William Patry have long pointed out, the "problem" of orphan works is a self-created problem. Prior to taking away the requirement for registering to get a copyright, there really wasn't an orphan works problem, because (1) the copyright holders were registered and (2) most other works fell into the public domain, as they were either not registered, or the registration was not renewed. So, a better fix would be to go back to requiring such "formalities" (even if it goes against the sadly out of date Berne Convention rules).
In the meantime, though, since that doesn't seem likely, many are pushing for such orphan works laws. Unfortunately, there has been a lot of blatant misinformation spread around against orphan works legislation, who insist that it's really a way for companies to use works without paying for them. Of course, the various proposals for orphan works laws make it clear this is not the case. They all require the potential user to conduct a very real and very serious search for the copyright holder. You can't just declare the the copyright holder can't be found.
Of course, another complaint against orphan works legislation is that orphan works really aren't much of a problem, as they're somewhat "rare." How rare are they? Well, Michael Scott points us to a report trying to quantify the number of orphan works in Europe alone. The numbers are pretty impressive..."
Judge Reduces Student's File-Sharing Fine by 90 Percent; Chronicle of Higher Education Wired Campus, 7/12/10
Kelly Truong, Chronicle of Higher Education Wired Campus; Judge Reduces Student's File-Sharing Fine by 90 Percent:
"A federal judge has cut a Boston University student’s illegal file-sharing fine by 90 percent, declaring the original fee “unconstitutionally excessive.”
Last July, a jury decided on a fine of $675,000 against Joel Tenenbaum, a graduate student, for downloading and distributing 30 songs. He filed for a retrial, which resulted in the reduced penalty of $67,500, set by U.S. District Court Judge Nancy Gertner on Friday.
In her 62-page ruling, the judge called the original fine “unprecedented and oppressive” and said it violated the Fifth Amendment’s due-process clause. “There is no question that this reduced award is still severe, even harsh,” she judge.
The Recording Industry Association of America, representing the four major recording labels to which Mr. Tenenbaum owes payment, issued a statement declaring its intention to contest the new ruling: “With this decision, the court has substituted its judgment for that of 10 jurors as well as Congress,” the company wrote.
Mr. Tenenbaum told The Boston Globe that despite the reduction, he remains unable to afford the fee. “It’s basically equally unpayable to me,” he said.
According to JoelFightsBack.com, a Web site established by Mr. Tenenbaum’s lawyer to publicize the case, the student intends to continue pursuing legal action, on the grounds that he was denied a fair trial."
http://chronicle.com/blogPost/Judge-Reduces-Students/25459/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+chronicle%2Fwiredcampus+(The+Chronicle%3A+Wired+Campus)
"A federal judge has cut a Boston University student’s illegal file-sharing fine by 90 percent, declaring the original fee “unconstitutionally excessive.”
Last July, a jury decided on a fine of $675,000 against Joel Tenenbaum, a graduate student, for downloading and distributing 30 songs. He filed for a retrial, which resulted in the reduced penalty of $67,500, set by U.S. District Court Judge Nancy Gertner on Friday.
In her 62-page ruling, the judge called the original fine “unprecedented and oppressive” and said it violated the Fifth Amendment’s due-process clause. “There is no question that this reduced award is still severe, even harsh,” she judge.
The Recording Industry Association of America, representing the four major recording labels to which Mr. Tenenbaum owes payment, issued a statement declaring its intention to contest the new ruling: “With this decision, the court has substituted its judgment for that of 10 jurors as well as Congress,” the company wrote.
Mr. Tenenbaum told The Boston Globe that despite the reduction, he remains unable to afford the fee. “It’s basically equally unpayable to me,” he said.
According to JoelFightsBack.com, a Web site established by Mr. Tenenbaum’s lawyer to publicize the case, the student intends to continue pursuing legal action, on the grounds that he was denied a fair trial."
http://chronicle.com/blogPost/Judge-Reduces-Students/25459/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+chronicle%2Fwiredcampus+(The+Chronicle%3A+Wired+Campus)
Monday, July 12, 2010
Prince's war with iTunes plays into the hands of illegal filesharers; (London) Guardian,
Helienne Lindvall, (London) Guardian; Prince's war with iTunes plays into the hands of illegal filesharers: Prince is right to have issues with iTunes and YouTube. But making his album available only to Mirror readers goes against his philosophy of reaching as many listeners as possible:
"As a Prince fan, I bought the Mirror for the first time on Saturday to get a copy of his latest album, 20Ten. As a musician, I was puzzled by why he felt the need to give away his music with a UK tabloid that costs 65p. I was equally perplexed by his decision to snub iTunes because it doesn't pay advances. Why would he need an advance? He's Prince, for God's sake. Surely he should trust that people would buy his music anyway. Besides, many more fans would have access to iTunes than a newsagent on one day.
In an interview with the Mirror, Prince compared the internet to MTV, saying that its days are numbered. Is this the reason why, when I put his new CD into my computer, Gracenote, the music database used by iTunes, didn't recognise the titles? Is that why there were 66 five-second silent tracks before the bonus track?
It's a strange turnaround for someone who, a decade ago, described Napster as "exciting". "What might happen with young people exchanging music is that they might develop a real appreciation," the "purple Yoda from the heart of Minnesota" said. He also claimed that online distribution could enable musicians to end exploitation from record labels. Surprisingly, despite his dismay with the music industry, Prince later signed with Columbia Records and, in 2005, with Universal.
Since then, he seems to have had a change of heart. Prince has reportedly threatened YouTube with a lawsuit for copyright infringement, forcing it to take down live footage of him playing Radiohead's Creep at the Coachella festival in 2008. Now, I have issues with YouTube, and I fully support an artist's right to decide what happens to their music, but Prince's decision to make his new album available as an exclusive covermount goes against his philosophy of reaching as many listeners as possible.
The Entertainment Retailers Association (ERA), unsurprisingly, objected to Prince releasing his album as a covermount. Pointing out that his record sales have halved since the first Daily Mail covermount in 2007, it claims Prince's latest move "could kill his career". While there could be other explanations for the decrease in sales – illegal filesharing, for example – I agree that covermounts devalue music. It makes people question if a CD is really worth £8 when a major artist such as Prince can afford to give it away with a 65p paper.
I agree with independent record label Blancomusic that it's unfair that iTunes takes the same share of the retail price (30%) as the bricks-and-mortar shops, manufacturers and distributors – despite not taking the same risks when stocking product. I also agree that artists make little from other digital stores and streaming services. Yet, making their music available on legal digital outlets is something that they all have had to accept. That's what music fans want, and if they can't get it legally they'll get it illegally, without paying a penny.
ERA concluded its press release by saying: "Go away and make an album that people are prepared to pay for. We still have faith you [Prince] can do it." With 20Ten, I think he has. Unfortunately, most people will now only be able to get it illegally."
http://www.guardian.co.uk/music/musicblog/2010/jul/12/prince-itunes
"As a Prince fan, I bought the Mirror for the first time on Saturday to get a copy of his latest album, 20Ten. As a musician, I was puzzled by why he felt the need to give away his music with a UK tabloid that costs 65p. I was equally perplexed by his decision to snub iTunes because it doesn't pay advances. Why would he need an advance? He's Prince, for God's sake. Surely he should trust that people would buy his music anyway. Besides, many more fans would have access to iTunes than a newsagent on one day.
In an interview with the Mirror, Prince compared the internet to MTV, saying that its days are numbered. Is this the reason why, when I put his new CD into my computer, Gracenote, the music database used by iTunes, didn't recognise the titles? Is that why there were 66 five-second silent tracks before the bonus track?
It's a strange turnaround for someone who, a decade ago, described Napster as "exciting". "What might happen with young people exchanging music is that they might develop a real appreciation," the "purple Yoda from the heart of Minnesota" said. He also claimed that online distribution could enable musicians to end exploitation from record labels. Surprisingly, despite his dismay with the music industry, Prince later signed with Columbia Records and, in 2005, with Universal.
Since then, he seems to have had a change of heart. Prince has reportedly threatened YouTube with a lawsuit for copyright infringement, forcing it to take down live footage of him playing Radiohead's Creep at the Coachella festival in 2008. Now, I have issues with YouTube, and I fully support an artist's right to decide what happens to their music, but Prince's decision to make his new album available as an exclusive covermount goes against his philosophy of reaching as many listeners as possible.
The Entertainment Retailers Association (ERA), unsurprisingly, objected to Prince releasing his album as a covermount. Pointing out that his record sales have halved since the first Daily Mail covermount in 2007, it claims Prince's latest move "could kill his career". While there could be other explanations for the decrease in sales – illegal filesharing, for example – I agree that covermounts devalue music. It makes people question if a CD is really worth £8 when a major artist such as Prince can afford to give it away with a 65p paper.
I agree with independent record label Blancomusic that it's unfair that iTunes takes the same share of the retail price (30%) as the bricks-and-mortar shops, manufacturers and distributors – despite not taking the same risks when stocking product. I also agree that artists make little from other digital stores and streaming services. Yet, making their music available on legal digital outlets is something that they all have had to accept. That's what music fans want, and if they can't get it legally they'll get it illegally, without paying a penny.
ERA concluded its press release by saying: "Go away and make an album that people are prepared to pay for. We still have faith you [Prince] can do it." With 20Ten, I think he has. Unfortunately, most people will now only be able to get it illegally."
http://www.guardian.co.uk/music/musicblog/2010/jul/12/prince-itunes
Ebook deals 'not remotely fair' on authors; (London) Guardian, 7/12/10
Alison Flood, (London) Guardian; Ebook deals 'not remotely fair' on authors: Digital publishing deals locking writers in for the duration of copyright risk damaging industry, says Society of Authors chair:
"The chair of the Society of Authors, Tom Holland, has hit out at publishers' attempt to seize control over electronic rights, calling ebook deals that lock authors in for the duration of copyright "not remotely fair".
Speaking at the Romantic Novelists' Association's annual conference last week, Holland urged authors to push for ebook royalties that are "considerably higher" than the standard of around 25%. Although Holland said the market for ebooks is only about 1% of the total UK market, it is "growing fast" and the Society of Authors believes that, given publishers will eventually have much lower warehousing and distribution costs for ebooks, royalties should be divided 50/50.
"Most publishers are insisting they should control ebook rights and this will be written into standard contracts. I think it's an entirely reasonable position to take, so long as the royalties and returns on ebooks are fair and proper and reasonable. If they are not, I suspect we may well find very big-name authors, such as JK Rowling or Dan Brown, will go their own way," said Holland. "It's a danger publishers need to recognise and a danger for writers as well. If JK Rowling controls her own ebook rights [then] there's less money for her publisher to invest in new authors. We could face a situation of very big-name authors pulling the ladder up after them [and] we have a stake in seeing a healthy publishing industry."
Although publishers "are inclined to dismiss the argument that costs are reduced on ebooks", Holland said: "Once a system has been set up, publishers won't be paying for warehousing, distribution and printing, and we have to ask ourselves what are they spending the money on?"
http://www.guardian.co.uk/books/2010/jul/12/ebooks-publishing-deals-fair
"The chair of the Society of Authors, Tom Holland, has hit out at publishers' attempt to seize control over electronic rights, calling ebook deals that lock authors in for the duration of copyright "not remotely fair".
Speaking at the Romantic Novelists' Association's annual conference last week, Holland urged authors to push for ebook royalties that are "considerably higher" than the standard of around 25%. Although Holland said the market for ebooks is only about 1% of the total UK market, it is "growing fast" and the Society of Authors believes that, given publishers will eventually have much lower warehousing and distribution costs for ebooks, royalties should be divided 50/50.
"Most publishers are insisting they should control ebook rights and this will be written into standard contracts. I think it's an entirely reasonable position to take, so long as the royalties and returns on ebooks are fair and proper and reasonable. If they are not, I suspect we may well find very big-name authors, such as JK Rowling or Dan Brown, will go their own way," said Holland. "It's a danger publishers need to recognise and a danger for writers as well. If JK Rowling controls her own ebook rights [then] there's less money for her publisher to invest in new authors. We could face a situation of very big-name authors pulling the ladder up after them [and] we have a stake in seeing a healthy publishing industry."
Although publishers "are inclined to dismiss the argument that costs are reduced on ebooks", Holland said: "Once a system has been set up, publishers won't be paying for warehousing, distribution and printing, and we have to ask ourselves what are they spending the money on?"
http://www.guardian.co.uk/books/2010/jul/12/ebooks-publishing-deals-fair
Can you sell your imported gadgets? Court guts "First Sale", 7/12/10
Matthew Lasar, ArsTechnica.com; Can you sell your imported gadgets? Court guts "First Sale":
"Let's say a relative gave you an imported Omega watch over the holidays. It's a nice piece, but it's not exactly your style, so after agonizing over the issue for the appropriate number of months, you decide to sell it over eBay.
Not so fast. Thanks to a decision by the Ninth Circuit Court of Appeals, that might not be so easy. In fact, the store that sold it, Costco, shouldn't have sold it in the first place, the court recently ruled, because the doctrine of "First Sale" has limits. Section 109 of the Copyright Act says that a copyright owner of a product has the sole initial right to distribute it. Then the subsequent buyers have the right to "to sell or otherwise dispose of the possession of that copy"—in other words, sell it again.
But now the Ninth Circuit says this doesn't necessarily apply to items in which a company's copyrighted logo was inscribed on a product made abroad, as in this case. The Public Knowledge advocacy group calls this decision "a terrible idea," and has filed an amicus brief with the Supreme Court, which is reviewing the case.
"What happens to Netflix, Amazon and eBay," PK's Anjali Bhat worries, "if they have to find out where each item was made, whether it has a copyrighted logo made outside the US (if the item itself isn't a copyrighted work), and then buy licensing rights from the copyright owner if the item was made abroad? That's an enormous economic burden to put on businesses who follow that model."...
The implications of this decision are huge, creating potential liabilities for anyone who distributes anything en masse: libraries, booksellers, or your local DVD or video game rental store."
http://arstechnica.com/tech-policy/news/2010/07/if-you-buy-an-imported-watch-do-you-really-own-it.ars
"Let's say a relative gave you an imported Omega watch over the holidays. It's a nice piece, but it's not exactly your style, so after agonizing over the issue for the appropriate number of months, you decide to sell it over eBay.
Not so fast. Thanks to a decision by the Ninth Circuit Court of Appeals, that might not be so easy. In fact, the store that sold it, Costco, shouldn't have sold it in the first place, the court recently ruled, because the doctrine of "First Sale" has limits. Section 109 of the Copyright Act says that a copyright owner of a product has the sole initial right to distribute it. Then the subsequent buyers have the right to "to sell or otherwise dispose of the possession of that copy"—in other words, sell it again.
But now the Ninth Circuit says this doesn't necessarily apply to items in which a company's copyrighted logo was inscribed on a product made abroad, as in this case. The Public Knowledge advocacy group calls this decision "a terrible idea," and has filed an amicus brief with the Supreme Court, which is reviewing the case.
"What happens to Netflix, Amazon and eBay," PK's Anjali Bhat worries, "if they have to find out where each item was made, whether it has a copyrighted logo made outside the US (if the item itself isn't a copyrighted work), and then buy licensing rights from the copyright owner if the item was made abroad? That's an enormous economic burden to put on businesses who follow that model."...
The implications of this decision are huge, creating potential liabilities for anyone who distributes anything en masse: libraries, booksellers, or your local DVD or video game rental store."
http://arstechnica.com/tech-policy/news/2010/07/if-you-buy-an-imported-watch-do-you-really-own-it.ars
WSJ Opinion Highlights The Problems Of 'Permission Culture'; TechDirt.com, 7/12/10
Mike Masnick, TechDirt.com; WSJ Opinion Highlights The Problems Of 'Permission Culture':
"A bunch of folks have been sending in this Wall Street Journal opinion piece by author Tony Woodlief, where he aptly demonstrates the problems with the "permission culture" we've built up around copyright today. Often we'll discuss some of these things in posts, and defenders of the existing copyright regime will say "well, it's no problem, because you can just ask for permission" (here's an example of that kind of thinking). Of course, the reality is that it's not so easy at all. Woodlief points out that publishers are taking a very short-sighted view and demanding ridiculous amounts of money for tiny snippets of use, such that it makes no sense to use those works at all, and often the original content creators and society is worse off for it..."
http://www.techdirt.com/articles/20100712/01320410171.shtml
"A bunch of folks have been sending in this Wall Street Journal opinion piece by author Tony Woodlief, where he aptly demonstrates the problems with the "permission culture" we've built up around copyright today. Often we'll discuss some of these things in posts, and defenders of the existing copyright regime will say "well, it's no problem, because you can just ask for permission" (here's an example of that kind of thinking). Of course, the reality is that it's not so easy at all. Woodlief points out that publishers are taking a very short-sighted view and demanding ridiculous amounts of money for tiny snippets of use, such that it makes no sense to use those works at all, and often the original content creators and society is worse off for it..."
http://www.techdirt.com/articles/20100712/01320410171.shtml
Curse of the Greedy Copyright Holders, Wall Street Journal, 7/9/10
Tony Woodlief, Wall Street Journal; Curse of the Greedy Copyright Holders:
"'Immature poets imitate; mature poets steal," wrote T.S. Eliot. I am neither poet nor thief, so when I wanted poems at the start of each chapter in my recently published memoir, I sought permission. The poem that best describes my experience is "The Odyssey," navigating as I did between the Scylla of non-responsive copyright holders and the Charybdis of fee-seeking attorneys.
Modern copyright practices spur artists to unmoor our work from what has inspired us. Art—along with many artists supposedly protected by these laws—is arguably poorer for it.
The modern copyright battle is more interesting than its associated legalities. Advocates of copyright restrictions found a bête noire in curmudgeonly novelist Mark Helprin, who argued that Congress should extend "the term of copyright . . . as far as it can throw."
Opponents took this to mean perpetual copyright, which Mr. Helprin denies. In turn he accuses his vocal critic Lawrence Lessig, co-founder of Creative Commons—a nonprofit that encourages art sharing consistent with copyrights—of leading a movement to ravage Western civilization.
In reality, both sides agree with the premise embedded in the Constitution, which is that people ought not enjoy art without compensating the artist, any more than one can dine without paying the chef. They also recognize that while we want to give artists incentives, we don't want the costs to be so high that art appreciation—a difficult cultural attribute to re-establish once it is lost —declines.
Mr. Lessig appears to win on the economics. Mr. Helprin claims injustice in the fact that the family of a factory owner can inherit his property through generations, while the family of a writer loses rights to his creations in a relatively short time. Mr. Lessig observes, however, that copyright holders don't pay property taxes, which evens out financial returns over the course of a 95-year copyright.
But in dollar terms, some decisions by copyright holders, rather than optimize the artist's revenue and distribution, insure the opposite. When I asked to use a single line by songwriter Joe Henry, for example, his record label's parent company demanded $150 for every 7,500 copies of my book. Assuming I sell enough books to earn back my modest advance, this amounts to roughly 1.5% of my earnings, all for quoting eight words from one of Mr. Henry's songs.
I love Joe Henry, but the price was too high. I replaced him with Shakespeare, whose work (depending on which edition you use) is in the public domain. Mr. Henry's record label may differ, but it's not clear that his interests —or theirs—are being served here. Were they concerned that readers might have their thirst for Mr. Henry's music sated by that single lyric? Isn't it more likely that his lyric would have enticed customers who otherwise wouldn't have heard of him?
The copyright thicket is a growing frustration among writers and editors. One editor of a popular literary anthology (who asked to remain anonymous for fear of reprisals from publishers) confirmed that many publishers pursue illusory short-term profit at the expense of both profit and art. By demanding fees that most people won't pay, they forsake free advertising for the artists they claim to protect. If restaurants behaved that way, not only would they deny you the right to take home leftovers to your dog, they'd try to charge you for smelling their food when you pass by.
Further, this editor noted that one reason literary anthologies and college-course syllabi have replaced classics with less edifying sources like newspaper articles and diaries is simply that major artists in the American literary canon are too expensive to procure en masse, if not totally off limits. The estates of William Faulkner and Ernest Hemingway have historically restricted which stories can be used in anthologies, which means that students often have a narrow exposure to two of our country's finest writers.
For an idea of where this is all leading, note that the publishing world is being roiled by a controversy that erupted in the music industry several years ago, when musicians and record companies went after enterprises, like Napster, that facilitated music theft. It sounds noble enough, but it's not clear this actually benefited artists.
Economists Koleman Strumpf and Felix Oberholzer-Gee found that while illegal downloads deprive musicians of rightful compensation, they also advertise the artists' work to more people, many of whom subsequently go out and buy the music. The net result is revenue-neutral.
As a memoir author, I reached the height of frustration when I realized it was going to take heroic effort to use J.R.R. Tolkien's "Bath Song," which is controlled by a division of my own publisher's parent company. Between that, and fee demands or non-responses from other publishers, I turned to my poet friends.
"Will you," I asked them, "give me a poem in return for a book and dinner?" Now my book has some lovely poems by very fine poets most people don't yet know.
So perhaps I shouldn't complain. It's hard to borrow work by recognized artists, but when one door closes, as they say, another door opens.
Still, I can't help but wonder if major publishers might want to let economists, rather than copyright attorneys, govern their decisions in this area. If you agree, perhaps you might quote this essay to them. I'm sure we can work out a reasonable fee."
http://online.wsj.com/article/SB10001424052748704608104575220551906611796.html
"'Immature poets imitate; mature poets steal," wrote T.S. Eliot. I am neither poet nor thief, so when I wanted poems at the start of each chapter in my recently published memoir, I sought permission. The poem that best describes my experience is "The Odyssey," navigating as I did between the Scylla of non-responsive copyright holders and the Charybdis of fee-seeking attorneys.
Modern copyright practices spur artists to unmoor our work from what has inspired us. Art—along with many artists supposedly protected by these laws—is arguably poorer for it.
The modern copyright battle is more interesting than its associated legalities. Advocates of copyright restrictions found a bête noire in curmudgeonly novelist Mark Helprin, who argued that Congress should extend "the term of copyright . . . as far as it can throw."
Opponents took this to mean perpetual copyright, which Mr. Helprin denies. In turn he accuses his vocal critic Lawrence Lessig, co-founder of Creative Commons—a nonprofit that encourages art sharing consistent with copyrights—of leading a movement to ravage Western civilization.
In reality, both sides agree with the premise embedded in the Constitution, which is that people ought not enjoy art without compensating the artist, any more than one can dine without paying the chef. They also recognize that while we want to give artists incentives, we don't want the costs to be so high that art appreciation—a difficult cultural attribute to re-establish once it is lost —declines.
Mr. Lessig appears to win on the economics. Mr. Helprin claims injustice in the fact that the family of a factory owner can inherit his property through generations, while the family of a writer loses rights to his creations in a relatively short time. Mr. Lessig observes, however, that copyright holders don't pay property taxes, which evens out financial returns over the course of a 95-year copyright.
But in dollar terms, some decisions by copyright holders, rather than optimize the artist's revenue and distribution, insure the opposite. When I asked to use a single line by songwriter Joe Henry, for example, his record label's parent company demanded $150 for every 7,500 copies of my book. Assuming I sell enough books to earn back my modest advance, this amounts to roughly 1.5% of my earnings, all for quoting eight words from one of Mr. Henry's songs.
I love Joe Henry, but the price was too high. I replaced him with Shakespeare, whose work (depending on which edition you use) is in the public domain. Mr. Henry's record label may differ, but it's not clear that his interests —or theirs—are being served here. Were they concerned that readers might have their thirst for Mr. Henry's music sated by that single lyric? Isn't it more likely that his lyric would have enticed customers who otherwise wouldn't have heard of him?
The copyright thicket is a growing frustration among writers and editors. One editor of a popular literary anthology (who asked to remain anonymous for fear of reprisals from publishers) confirmed that many publishers pursue illusory short-term profit at the expense of both profit and art. By demanding fees that most people won't pay, they forsake free advertising for the artists they claim to protect. If restaurants behaved that way, not only would they deny you the right to take home leftovers to your dog, they'd try to charge you for smelling their food when you pass by.
Further, this editor noted that one reason literary anthologies and college-course syllabi have replaced classics with less edifying sources like newspaper articles and diaries is simply that major artists in the American literary canon are too expensive to procure en masse, if not totally off limits. The estates of William Faulkner and Ernest Hemingway have historically restricted which stories can be used in anthologies, which means that students often have a narrow exposure to two of our country's finest writers.
For an idea of where this is all leading, note that the publishing world is being roiled by a controversy that erupted in the music industry several years ago, when musicians and record companies went after enterprises, like Napster, that facilitated music theft. It sounds noble enough, but it's not clear this actually benefited artists.
Economists Koleman Strumpf and Felix Oberholzer-Gee found that while illegal downloads deprive musicians of rightful compensation, they also advertise the artists' work to more people, many of whom subsequently go out and buy the music. The net result is revenue-neutral.
As a memoir author, I reached the height of frustration when I realized it was going to take heroic effort to use J.R.R. Tolkien's "Bath Song," which is controlled by a division of my own publisher's parent company. Between that, and fee demands or non-responses from other publishers, I turned to my poet friends.
"Will you," I asked them, "give me a poem in return for a book and dinner?" Now my book has some lovely poems by very fine poets most people don't yet know.
So perhaps I shouldn't complain. It's hard to borrow work by recognized artists, but when one door closes, as they say, another door opens.
Still, I can't help but wonder if major publishers might want to let economists, rather than copyright attorneys, govern their decisions in this area. If you agree, perhaps you might quote this essay to them. I'm sure we can work out a reasonable fee."
http://online.wsj.com/article/SB10001424052748704608104575220551906611796.html
A Comics Clash in the East; New York Times, 7/11/10
Michael Cieply, New York Times; A Comics Clash in the East:
"It appears that New York, not Los Angeles, will be the battleground for a supersize legal contest between the Marvel Entertainment unit of the Walt Disney Company and heirs of the comic book genius Jack Kirby.
When last seen in these pages, the Kirby heirs and Marvel had squared off in the federal courts of both New York and Los Angeles. Marvel first filed suit in the Southern District of New York, asking the court to confirm Disney’s ownership of comic book characters like the Incredible Hulk and the X-Men, despite Mr. Kirby’s work on them. The Kirbys fired back in the Central District of California, asserting, among other things, the right to reclaim copyrights to many of those characters.
On Tuesday, however, the Kirbys filed notice of dismissal of their complaint, closing the California case. Marc Toberoff, a lawyer who represents the family, did not immediately respond to a query about the dismissal.
But the legal battle continues to rage in New York, where the Kirbys in April filed a 29-page response to Marvel, and a counterclaim that insists on their right to terminate the copyrights, on the return of some Kirby artwork said to be in Marvel’s possession and on damages yet to be determined.
Marvel and the Kirbys have since been slugging at each other with dueling declarations and motions in the New York court, portending a long, dark struggle for control of a comic book universe on which much of Hollywood has come to depend."
http://mediadecoder.blogs.nytimes.com/2010/07/11/a-comics-clash-in-the-east/?scp=1&sq=jack%20kirby&st=cse
"It appears that New York, not Los Angeles, will be the battleground for a supersize legal contest between the Marvel Entertainment unit of the Walt Disney Company and heirs of the comic book genius Jack Kirby.
When last seen in these pages, the Kirby heirs and Marvel had squared off in the federal courts of both New York and Los Angeles. Marvel first filed suit in the Southern District of New York, asking the court to confirm Disney’s ownership of comic book characters like the Incredible Hulk and the X-Men, despite Mr. Kirby’s work on them. The Kirbys fired back in the Central District of California, asserting, among other things, the right to reclaim copyrights to many of those characters.
On Tuesday, however, the Kirbys filed notice of dismissal of their complaint, closing the California case. Marc Toberoff, a lawyer who represents the family, did not immediately respond to a query about the dismissal.
But the legal battle continues to rage in New York, where the Kirbys in April filed a 29-page response to Marvel, and a counterclaim that insists on their right to terminate the copyrights, on the return of some Kirby artwork said to be in Marvel’s possession and on damages yet to be determined.
Marvel and the Kirbys have since been slugging at each other with dueling declarations and motions in the New York court, portending a long, dark struggle for control of a comic book universe on which much of Hollywood has come to depend."
http://mediadecoder.blogs.nytimes.com/2010/07/11/a-comics-clash-in-the-east/?scp=1&sq=jack%20kirby&st=cse
Movie’s Owners Want to Know if a Film Is Fit for Framing; New York Times, 7/11/10
Michael Cieply, New York Times; Movie’s Owners Want to Know if a Film Is Fit for Framing:
"Spun around politics, sexual identity and cinema, “Kiss of the Spider Woman,” nominated for four Oscars and the winner of one in 1986, is the consummate art film.
But is it a collectible work of art? Those who own it are trying to find out.
In an unusual twist even for a picture outside the norms — its Oscar-winning lead, William Hurt, paused his red-hot career to play a film-struck homosexual for almost no fee when that still seemed more suicidal than savvy — David Weisman, the movie’s producer, and David S. Phillips, who joined him later in acquiring its rights, are planning in coming weeks to offer “Kiss of the Spider Woman” for sale as an artwork.
By that, they mean an object of beauty. The film is now available in its entirety — its copyright, negatives, prints, digital video masters and more — along with a carefully preserved archive that includes 313 boxes of 35-millimeter outtakes, five drafts of the screenplay by Leonard Schrader and a stack of rejection letters from studio executives who were sure that the movie would never work.
“I’m not aware of its having been done before,” said Grey Smith, who specializes in film collectibles at the Heritage Auction Galleries in Dallas, and is not involved in the “Spider Woman” sale.
“I wish them the best,” Mr. Smith added. “This could open up avenues for people who own rights to other feature films.”
After their commercial release, feature films are typically held in clumps, like the 4,000-title library owned by Metro-Goldwyn-Mayer, or the smaller collection of about 700 movies and television shows at Miramax Films, which is now being sold by the Walt Disney Company.
But independent films sometimes fall out of the system, as agreements under which they were licensed for distribution expire, and the copyright remains with, or is acquired by, individual owners who are not aligned with any of the major film companies.
Such outlying works normally have little value for large distributors, which may buy them for a relatively small fee, based on future returns in the home video and television markets, but which remain far more interested in fresh films or mass transactions."
http://www.nytimes.com/2010/07/10/movies/10spider.html
"Spun around politics, sexual identity and cinema, “Kiss of the Spider Woman,” nominated for four Oscars and the winner of one in 1986, is the consummate art film.
But is it a collectible work of art? Those who own it are trying to find out.
In an unusual twist even for a picture outside the norms — its Oscar-winning lead, William Hurt, paused his red-hot career to play a film-struck homosexual for almost no fee when that still seemed more suicidal than savvy — David Weisman, the movie’s producer, and David S. Phillips, who joined him later in acquiring its rights, are planning in coming weeks to offer “Kiss of the Spider Woman” for sale as an artwork.
By that, they mean an object of beauty. The film is now available in its entirety — its copyright, negatives, prints, digital video masters and more — along with a carefully preserved archive that includes 313 boxes of 35-millimeter outtakes, five drafts of the screenplay by Leonard Schrader and a stack of rejection letters from studio executives who were sure that the movie would never work.
“I’m not aware of its having been done before,” said Grey Smith, who specializes in film collectibles at the Heritage Auction Galleries in Dallas, and is not involved in the “Spider Woman” sale.
“I wish them the best,” Mr. Smith added. “This could open up avenues for people who own rights to other feature films.”
After their commercial release, feature films are typically held in clumps, like the 4,000-title library owned by Metro-Goldwyn-Mayer, or the smaller collection of about 700 movies and television shows at Miramax Films, which is now being sold by the Walt Disney Company.
But independent films sometimes fall out of the system, as agreements under which they were licensed for distribution expire, and the copyright remains with, or is acquired by, individual owners who are not aligned with any of the major film companies.
Such outlying works normally have little value for large distributors, which may buy them for a relatively small fee, based on future returns in the home video and television markets, but which remain far more interested in fresh films or mass transactions."
http://www.nytimes.com/2010/07/10/movies/10spider.html
Friday, July 9, 2010
Lawsuit Over Use Of Creative Commons Content Raises Contract vs. Copyright Issue; TechDirt.com, 7/8/10
Mike Masnick, TechDirt.com; Lawsuit Over Use Of Creative Commons Content Raises Contract vs. Copyright Issue:
"One of the more interesting issues related to copyright law is how contract law meshes with copyright law. For example, there was the recent case (still going through the appeals process) over whether or not a copyright holder (a record label in this case) could effectively wipe out First Sale rights (allowing you to resell what you bought) via a contract. As of right now, the US courts have said no -- and that's important. If you could supercede copyright laws with contractual terms, it would make the limitations on copyright law effectively meaningless, because every product would quickly include some sort of licensing agreement that took away fair use, first sale and other exceptions (including, potentially, the idea that the copyrights might someday expire). This is not a US only issue, of course. Just recently we've seen blogs from elsewhere also start to discuss if contracts can increase limitations beyond copyrights.
However, there is a new lawsuit in the US that may be worth following on this topic. It involves GateHouse Media -- a company that has been ridiculously aggressive in trying to stop others from doing things as simple as copying a headline and a lede. In this case, the primary issue is a little (if only slightly) more reasonable, in that the lawsuit involves a company that sells nice looking plaques to people with a copy of a newspaper article about them or their company. GateHouse offers such a service itself, and clearly sees this competition as infringing.
Where the case gets interesting, however, is that GateHouse's content in this case (from the Rockford Register Star in Rockford Illinois), has its content covered by a Creative Commons "Attribtuion-NonCommercial-NoDerivs" license. The lawsuit covers a bunch of ground, but one interesting inclusion: claiming that the reprints are a contract violation, because they don't follow the Creative Commons license on the content.
For quite some time, Copycense has been banging the drum that setting up Creative Commons as a contractual layer to copyright takes it into dangerous territory that isn't good for copyright law itself or overall public policy. There haven't been too many cases that have tested this point, but it sounds like the GateHouse Media one has the potential to raise certain questions (who knows if we'll actually get answers) about how copyright and contracts relate to each other -- especially within the realm of Creative Commons.
This has been one of my concerns with Creative Commons. Many folks who support Creative Commons licenses are justifiably worried about what happens in cases like the one above concerning promo CDs where the First Sale doctrine gets written out of copyright law via contract. Yet, at the same time, the whole basis of many Creative Commons licenses is based on this same ability to bring contract law into copyright. As much as I like the concept of Creative Commons, this still leaves me worried. The lawsuit itself may not end up challenging this point, but sooner or later, someone's going to do so, and people who think they're on one side of the argument may quickly find themselves on the flip side."
http://www.techdirt.com/articles/20100707/04163310101.shtml
"One of the more interesting issues related to copyright law is how contract law meshes with copyright law. For example, there was the recent case (still going through the appeals process) over whether or not a copyright holder (a record label in this case) could effectively wipe out First Sale rights (allowing you to resell what you bought) via a contract. As of right now, the US courts have said no -- and that's important. If you could supercede copyright laws with contractual terms, it would make the limitations on copyright law effectively meaningless, because every product would quickly include some sort of licensing agreement that took away fair use, first sale and other exceptions (including, potentially, the idea that the copyrights might someday expire). This is not a US only issue, of course. Just recently we've seen blogs from elsewhere also start to discuss if contracts can increase limitations beyond copyrights.
However, there is a new lawsuit in the US that may be worth following on this topic. It involves GateHouse Media -- a company that has been ridiculously aggressive in trying to stop others from doing things as simple as copying a headline and a lede. In this case, the primary issue is a little (if only slightly) more reasonable, in that the lawsuit involves a company that sells nice looking plaques to people with a copy of a newspaper article about them or their company. GateHouse offers such a service itself, and clearly sees this competition as infringing.
Where the case gets interesting, however, is that GateHouse's content in this case (from the Rockford Register Star in Rockford Illinois), has its content covered by a Creative Commons "Attribtuion-NonCommercial-NoDerivs" license. The lawsuit covers a bunch of ground, but one interesting inclusion: claiming that the reprints are a contract violation, because they don't follow the Creative Commons license on the content.
For quite some time, Copycense has been banging the drum that setting up Creative Commons as a contractual layer to copyright takes it into dangerous territory that isn't good for copyright law itself or overall public policy. There haven't been too many cases that have tested this point, but it sounds like the GateHouse Media one has the potential to raise certain questions (who knows if we'll actually get answers) about how copyright and contracts relate to each other -- especially within the realm of Creative Commons.
This has been one of my concerns with Creative Commons. Many folks who support Creative Commons licenses are justifiably worried about what happens in cases like the one above concerning promo CDs where the First Sale doctrine gets written out of copyright law via contract. Yet, at the same time, the whole basis of many Creative Commons licenses is based on this same ability to bring contract law into copyright. As much as I like the concept of Creative Commons, this still leaves me worried. The lawsuit itself may not end up challenging this point, but sooner or later, someone's going to do so, and people who think they're on one side of the argument may quickly find themselves on the flip side."
http://www.techdirt.com/articles/20100707/04163310101.shtml
US could learn from Brazilian penalty for hindering fair use; ArsTechnica.com, 7/9/10
Nate Anderson, ArsTechnica.com; US could learn from Brazilian penalty for hindering fair use:
"Brazil has proposed a broad update to its copyright law (Portuguese) and it contains a surprising idea: penalize anyone who "hinders or impedes" fair use rights or obstructs the use of work that has already fallen into the public domain.
A huge win for consumers? Sure, but it gets better. A moment's thought reminds us that most DRM schemes will eventually run afoul the above provisions, since they apply in perpetuity. That DRMed music file will still be DRMed even after the song has fallen into the public domain.
So Brazil wants to ensure that DRM "has time-limited effects that correspond to the period of the economic rights over the work, performance, phonogram or broadcast." Once copyright has expired, DRM should, too.
As if that's not enough, Brazil says that DRM can be bypassed in order to make any "fair" use of the work or in cases where the copyright has expired but the DRM has not.
Contrast this with the US approach to copyright in the Digital Millennium Copyright Act (DMCA), which said nothing about time-limited DRM and made circumvention illegal in nearly all cases, even when the intended use of the material would be legal.
Brazil's proposal could be spun as something hostile to rightsholders, but it's not that simple. The law does provide protection for DRM; in general, it is illegal to remove, modify, bypass, or impair such anti-copying technology. It's just that rightsholders can't use DRM as a digital lock to give themselves more control over a work through technology than they have under the law.
Michael Geist, a Canadian law professor who highlighted the new proposal, sums it up as a properly balanced approach that doesn't buy into the "more is better" approach to copyright protections. "In other words, the Brazilian proposals recognizes what the Supreme Court of Canada stated several years ago," he writes, "over-protection is just as harmful as under-protection."
http://arstechnica.com/tech-policy/news/2010/07/us-could-learn-from-brazilian-penalty-for-hindering-fair-use.ars
"Brazil has proposed a broad update to its copyright law (Portuguese) and it contains a surprising idea: penalize anyone who "hinders or impedes" fair use rights or obstructs the use of work that has already fallen into the public domain.
A huge win for consumers? Sure, but it gets better. A moment's thought reminds us that most DRM schemes will eventually run afoul the above provisions, since they apply in perpetuity. That DRMed music file will still be DRMed even after the song has fallen into the public domain.
So Brazil wants to ensure that DRM "has time-limited effects that correspond to the period of the economic rights over the work, performance, phonogram or broadcast." Once copyright has expired, DRM should, too.
As if that's not enough, Brazil says that DRM can be bypassed in order to make any "fair" use of the work or in cases where the copyright has expired but the DRM has not.
Contrast this with the US approach to copyright in the Digital Millennium Copyright Act (DMCA), which said nothing about time-limited DRM and made circumvention illegal in nearly all cases, even when the intended use of the material would be legal.
Brazil's proposal could be spun as something hostile to rightsholders, but it's not that simple. The law does provide protection for DRM; in general, it is illegal to remove, modify, bypass, or impair such anti-copying technology. It's just that rightsholders can't use DRM as a digital lock to give themselves more control over a work through technology than they have under the law.
Michael Geist, a Canadian law professor who highlighted the new proposal, sums it up as a properly balanced approach that doesn't buy into the "more is better" approach to copyright protections. "In other words, the Brazilian proposals recognizes what the Supreme Court of Canada stated several years ago," he writes, "over-protection is just as harmful as under-protection."
http://arstechnica.com/tech-policy/news/2010/07/us-could-learn-from-brazilian-penalty-for-hindering-fair-use.ars
Judge slams, slashes "unconstitutional" $675,000 P2P award; ArsTechnica.com, 7/9/10
Nate Anderson, ArsTechnica.com; Judge slams, slashes "unconstitutional" $675,000 P2P award:
"Judge Nancy Gertner knows that Joel Tenenbaum did it. Tenenbaum, the second US target of the RIAA's five-year litigation campaign to complete a trial, eventually admitted his music-sharing liability on the stand—and Judge Gertner issued a directed verdict against him. But when the jury returned a $675,000 damage award, they went too far. Way too far.
In fact, according to Gertner, they trampled the Constitution's "Due Process" clause. In a ruling today, the judge slashed the $675,000 award by a factor of 10, to $67,500.
Two for two
If it sounds like a familiar result, it should. In Minnesota, Judge Michael Davis used a different legal approach called remittitur to lower Jammie Thomas-Rasset's liability from $1.9 million to $2,250 per song. That amount is three times higher than the $750 minimum for statutory damages, and Judge Gertner has accepted both Judge Davis' number and his reasoning when issuing her own opinion.
"Weighing all of these considerations, I conclude that the jury’s award of $675,000 in statutory damages for Tenenbaum’s infringement of thirty copyrighted works is unconstitutionally excessive," she wrote. "This award is far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement. In fact, it bears no meaningful relationship to these objectives. To borrow Chief Judge Michael J. Davis' characterization of a smaller statutory damages award in an analogous file-sharing case, the award here is simply 'unprecedented and oppressive.'"
And, just like Davis, Gertner made clear that she was deferring to Congress and to the jury by even allowing this amount to stand. "This amount is more than I might have awarded in my independent judgment," she said. "But the task of determining the appropriate damages award in this case fell to the jury, not the Court. I have merely reduced the award to the greatest amount that the Constitution will permit given the facts of this case."
When Judge Davis used remittitur—essentially an application of judicial discretion—to cut the Minnesota award, he set himself up for a third trial in the Thomas-Rasset case, one that will get underway in October. (Remittitur only works when the plaintiff accepts it; if not, the plaintiff has the right to a whole new trial.)
But Gertner doesn't want another trial, because she's concerned that she will face the same issue again in the future.
"The plaintiffs in this case [the music labels], however, made it abundantly clear that they were, to put it mildly, going for broke," she wrote. "They stated in open court that they likely would not accept a remitted award. And at a retrial on the issue of damages, I would again be presented with the very constitutional issues that the remittitur procedure was designed to avoid. I am thus obliged to deal with Tenenbaum’s constitutional challenge."
And in ruling on that challenge, Judge Gertner simply couldn't believe that Congress meant for "the Copyright Act’s broad statutory damages provision [to] be applied to college students like Tenenbaum who file-shared without any pecuniary gain."
Gertner points out that large companies have complained for years about "out of control" jury verdicts, and that courts had repeatedly sided with corporations against absurdly large damages on Constitutional grounds. Those protections apply to everyone.
"Reducing the jury’s $675,000 award, however, also sends another no less important message: The Due Process Clause does not merely protect large corporations, like BMW and State Farm, from grossly excessive punitive awards," she wrote. "It also protects ordinary people like Joel Tenenbaum."
"We will contest this ruling"
We checked in with the Recording Industry Association of America (RIAA), which was—as you might suspect—not pleased at having another federal judge reduce a P2P damage award.
"With this decision, the court has substituted its judgment for that of 10 jurors as well as Congress," it said in a statement. "The judge appropriately recognized the egregious conduct of the defendant, including lying to the court about his behavior, but then erroneously dismisses the profound economic and artistic harm caused when hundreds of songs are illegally distributed for free to millions of strangers on file-sharing networks. We disagree with court's reasoning and analysis, and we will contest this ruling."
Congress hasn't yet acted to bring some kind of sanity to the damage awards in these cases, so it looks as though federal judges are now making a concerted effort to establish precedent for reasonable damages. Both Davis and Gertner have settled on $2,250 a song—far lower than the $150,000 per-work maximum that was on the table in both cases.
In addition to irritating the RIAA, the ruling can't be good news for the US Copyright Group, which has filed 14,000 similar lawsuits in 2010 alone, targeting those who swap independent films online. The settlement letters in those cases make clear that, unless defendants cough up the cash, the US Copyright Group plans to seek the full $150,000 if the case goes to court. Judges appear to have other thoughts."
http://arstechnica.com/tech-policy/news/2010/07/judge-slams-slashes-unconstitutional-675000-p2p-award.ars
"Judge Nancy Gertner knows that Joel Tenenbaum did it. Tenenbaum, the second US target of the RIAA's five-year litigation campaign to complete a trial, eventually admitted his music-sharing liability on the stand—and Judge Gertner issued a directed verdict against him. But when the jury returned a $675,000 damage award, they went too far. Way too far.
In fact, according to Gertner, they trampled the Constitution's "Due Process" clause. In a ruling today, the judge slashed the $675,000 award by a factor of 10, to $67,500.
Two for two
If it sounds like a familiar result, it should. In Minnesota, Judge Michael Davis used a different legal approach called remittitur to lower Jammie Thomas-Rasset's liability from $1.9 million to $2,250 per song. That amount is three times higher than the $750 minimum for statutory damages, and Judge Gertner has accepted both Judge Davis' number and his reasoning when issuing her own opinion.
"Weighing all of these considerations, I conclude that the jury’s award of $675,000 in statutory damages for Tenenbaum’s infringement of thirty copyrighted works is unconstitutionally excessive," she wrote. "This award is far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement. In fact, it bears no meaningful relationship to these objectives. To borrow Chief Judge Michael J. Davis' characterization of a smaller statutory damages award in an analogous file-sharing case, the award here is simply 'unprecedented and oppressive.'"
And, just like Davis, Gertner made clear that she was deferring to Congress and to the jury by even allowing this amount to stand. "This amount is more than I might have awarded in my independent judgment," she said. "But the task of determining the appropriate damages award in this case fell to the jury, not the Court. I have merely reduced the award to the greatest amount that the Constitution will permit given the facts of this case."
When Judge Davis used remittitur—essentially an application of judicial discretion—to cut the Minnesota award, he set himself up for a third trial in the Thomas-Rasset case, one that will get underway in October. (Remittitur only works when the plaintiff accepts it; if not, the plaintiff has the right to a whole new trial.)
But Gertner doesn't want another trial, because she's concerned that she will face the same issue again in the future.
"The plaintiffs in this case [the music labels], however, made it abundantly clear that they were, to put it mildly, going for broke," she wrote. "They stated in open court that they likely would not accept a remitted award. And at a retrial on the issue of damages, I would again be presented with the very constitutional issues that the remittitur procedure was designed to avoid. I am thus obliged to deal with Tenenbaum’s constitutional challenge."
And in ruling on that challenge, Judge Gertner simply couldn't believe that Congress meant for "the Copyright Act’s broad statutory damages provision [to] be applied to college students like Tenenbaum who file-shared without any pecuniary gain."
Gertner points out that large companies have complained for years about "out of control" jury verdicts, and that courts had repeatedly sided with corporations against absurdly large damages on Constitutional grounds. Those protections apply to everyone.
"Reducing the jury’s $675,000 award, however, also sends another no less important message: The Due Process Clause does not merely protect large corporations, like BMW and State Farm, from grossly excessive punitive awards," she wrote. "It also protects ordinary people like Joel Tenenbaum."
"We will contest this ruling"
We checked in with the Recording Industry Association of America (RIAA), which was—as you might suspect—not pleased at having another federal judge reduce a P2P damage award.
"With this decision, the court has substituted its judgment for that of 10 jurors as well as Congress," it said in a statement. "The judge appropriately recognized the egregious conduct of the defendant, including lying to the court about his behavior, but then erroneously dismisses the profound economic and artistic harm caused when hundreds of songs are illegally distributed for free to millions of strangers on file-sharing networks. We disagree with court's reasoning and analysis, and we will contest this ruling."
Congress hasn't yet acted to bring some kind of sanity to the damage awards in these cases, so it looks as though federal judges are now making a concerted effort to establish precedent for reasonable damages. Both Davis and Gertner have settled on $2,250 a song—far lower than the $150,000 per-work maximum that was on the table in both cases.
In addition to irritating the RIAA, the ruling can't be good news for the US Copyright Group, which has filed 14,000 similar lawsuits in 2010 alone, targeting those who swap independent films online. The settlement letters in those cases make clear that, unless defendants cough up the cash, the US Copyright Group plans to seek the full $150,000 if the case goes to court. Judges appear to have other thoughts."
http://arstechnica.com/tech-policy/news/2010/07/judge-slams-slashes-unconstitutional-675000-p2p-award.ars
Men at Work flautist may sell house after copyright ruling; (London) Guardian, 7/9/10
Sean Michaels, (London) Guardian; Men at Work flautist may sell house after copyright ruling: Musician responsible for Down Under flute riff fears he may be forced to sell his home to pay legal costs and royalties:
"One of the most successful flautists in pop may have to sell his house. Greg Ham, the manwho [sic] helped Men at Work's Down Under to the top of the charts, fears this week's copyright ruling will force him literally out of house and home. According to an Australian judge, Men at Work must pay 5% of the song's royalties to the publishers of a classic children's song.
"At the end of the day, I'll end up selling my house," Ham explained to the Age newspaper. Thanks to his contentious flute riff, the Men at Work multi-instrumentalist currently receives a small percentage of the song's royalties; but not, he claims, for long. "We'll face massive legal costs ... I'll never see another cent out of [Down Under] again."
On Tuesday, 21 years after Down Under was recorded, judge Peter Jacobson ruled the distinctive flute part had been copied from the Girl Guides campfire tune Kookaburra Sits in the Old Gum Tree. They must now pay back royalties starting from 2002, when a statute of limitations begins.
Ham still denies that the campfire classic had any impact on his playing. "I was looking for something that sounded Australiana – that's what came out," he said. "It was never Kookaburra Sits in the Old Gum Tree ... no one detected [the resemblance] – I didn't detect it and I played the fucking thing."
"Music's always been about referring to what's already in our culture," he insisted. Not only has Kookaburra now milked one of the flautist's main cash cows, but Ham complained that it has taken over the legacy of Down Under. "It will be the way the song is remembered and I hate that," he said. "I'm terribly disappointed that it's the way I'm going to be remembered – for copying something."
http://www.guardian.co.uk/music/2010/jul/09/men-at-work-flautist
"One of the most successful flautists in pop may have to sell his house. Greg Ham, the manwho [sic] helped Men at Work's Down Under to the top of the charts, fears this week's copyright ruling will force him literally out of house and home. According to an Australian judge, Men at Work must pay 5% of the song's royalties to the publishers of a classic children's song.
"At the end of the day, I'll end up selling my house," Ham explained to the Age newspaper. Thanks to his contentious flute riff, the Men at Work multi-instrumentalist currently receives a small percentage of the song's royalties; but not, he claims, for long. "We'll face massive legal costs ... I'll never see another cent out of [Down Under] again."
On Tuesday, 21 years after Down Under was recorded, judge Peter Jacobson ruled the distinctive flute part had been copied from the Girl Guides campfire tune Kookaburra Sits in the Old Gum Tree. They must now pay back royalties starting from 2002, when a statute of limitations begins.
Ham still denies that the campfire classic had any impact on his playing. "I was looking for something that sounded Australiana – that's what came out," he said. "It was never Kookaburra Sits in the Old Gum Tree ... no one detected [the resemblance] – I didn't detect it and I played the fucking thing."
"Music's always been about referring to what's already in our culture," he insisted. Not only has Kookaburra now milked one of the flautist's main cash cows, but Ham complained that it has taken over the legacy of Down Under. "It will be the way the song is remembered and I hate that," he said. "I'm terribly disappointed that it's the way I'm going to be remembered – for copying something."
http://www.guardian.co.uk/music/2010/jul/09/men-at-work-flautist
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