Donna Wentworth
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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

a Typical Joe
Academic Copyright
Jack Balkin
John Perry Barlow
Blogbook IP
David Bollier
James Boyle
Robert Boynton
Brad Ideas
Ren Bucholz
Cabalamat: Digital Rights
Cinema Minima
Consensus @ Lawyerpoint
Copyfighter's Musings
Copyright Readings
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
Cruelty to Analog
Culture Cat
Deep Links
Derivative Work
Julian Dibbell
Digital Copyright Canada
Displacement of Concepts
Downhill Battle
Exploded Library
Bret Fausett
Edward Felten - Freedom to Tinker
Edward Felten - Dashlog
Frank Field
Seth Finkelstein
Brian Flemming
Frankston, Reed
Free Culture
Free Range Librarian
Michael Froomkin
Michael Geist
Michael Geist's BNA News
Dan Gillmor
Mike Godwin
Joe Gratz
James Grimmelmann
Groklaw News
Matt Haughey
Erik J. Heels
Induce Act blog
Inter Alia
IP & Social Justice
IPac blog
Joi Ito
Jon Johansen
JD Lasica
Legal Theory Blog
Lenz Blog
Larry Lessig
Jessica Litman
James Love
Alex Macgillivray
Madisonian Theory
Maison Bisson
Kevin Marks
Tim Marman
Matt Rolls a Hoover
Mary Minow
Declan McCullagh
Eben Moglen
Dan Moniz
Danny O'Brien
Open Access
Open Codex
John Palfrey
Chris Palmer
Promote the Progress
PK News
PVR Blog
Eric Raymond
Joseph Reagle
Recording Industry vs. the People
Lisa Rein
Thomas Roessler
Seth Schoen
Doc Searls
Seb's Open Research
Shifted Librarian
Doug Simpson
Stay Free! Daily
Sarah Stirland
Swarthmore Coalition
Tech Law Advisor
Technology Liberation Front
Siva Vaidhyanathan
Vertical Hold
Kim Weatherall
David Weinberger
Matthew Yglesias

Timothy Armstrong
Bag and Baggage
Charles Bailey
Beltway Blogroll
Between Lawyers
Blawg Channel
Chief Blogging Officer
Drew Clark
Chris Cohen
Crooked Timber
Daily Whirl
Dead Parrots Society
Delaware Law Office
J. Bradford DeLong
Betsy Devine
Ben Edelman
Ernie the Attorney
How Appealing
Industry Standard
IP Democracy
IP Watch
Dennis Kennedy
Rick Klau
Wendy Koslow
Elizabeth L. Lawley
Jerry Lawson
Legal Reader
Likelihood of Confusion
Chris Locke
Derek Lowe
MIT Tech Review
Paper Chase
Frank Paynter
Scott Rosenberg
Scrivener's Error
Jeneane Sessum
Silent Lucidity
Smart Mobs
Trademark Blog
Eugene Volokh
Kevin Werbach

Berkman @ Harvard
Chilling Effects
CIS @ Stanford
Copyright Reform
Creative Commons
Global Internet Proj.
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office

In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline


July 24, 2015

July 21, 2015

What If You Made a Record, But Nobody Knew?

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Posted by Alan Wexelblat

I mentioned some months ago that I backed the Kickstarter for The Wrecking Crew and this weekend I finally got to sit down and watch the film. If you're a music nut like me then this film is a must-see. It's frankly thrilling to see the bass that did the line we know from the Peter Gunn Theme and the horn from the Pink Panther theme.

Of most interest to Copyfight are the discussions of ownership and compensation. The Wrecking Crew were studio musicians. They were the sounds on all those Beach Boys records, Nancy (and Frank) Sinatra records, Sonny & Cher records, The Mamas & The Papas - the list goes on. Members of the Crew were heard on every Record of the Year for over two decades. But their names rarely appeared - the producers would pay the Crew union rates (or sometimes less) and the names on the cover would be the names of the band.

There was a big to-do when the public found out that The Monkees didn't play their own instruments on their first hit record, but few people know the degree to which this crew of studio musicians went from artist to artist, album to album, playing and oftentimes inventing sounds that would become iconic for a generation.

The Crew took these gigs because they were (in their own words) just the lucky ones whose phones rang and who could be available that day. There was a long line of musicians hungry for those studio gigs. Once established, though, studio musicians could find themselves with great steady work - one recounts years of making more money than the President of the US. So what if your name never appears on the album?

It's a struggle we see playing out over and over today - creators struggle to get noticed, but as long as the money's good and the work is steady, how much does it matter whose name is on the front? Today we have thousands upon thousands of creators (writers, photographers, musicians) who can self-publish or who have tremendous freedom to put their moniker on whatever they do, but who in turn struggle to get the kind of income that would let them go on creating great works.

Comments (1) + TrackBacks (0) | Category: Interesting People

July 20, 2015

July 13, 2015

At the End of this Hypothetical Day I Might Be Destroyed

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Posted by Alan Wexelblat

...or so opines Stan Muller in Crash Course - Copyright, Part 3. In his thought experiment he goes through a day of what we'd consider pretty normal activities - retweeting, taking and posting a video at a friend's birthday party - and a couple unusual activities like getting a tattoo made from his own sketch of a copyrighted work. (Long-time readers may recall we talked about copyright and tattoos back in 2011 and one of my predecessors here noted a case as early as 2005).

Stan points out that not only does this set of pretty mundane things put him on the hook for millions in statutory liability claims, it also puts him (or at least his tattoo) at risk of being impounded or destroyed. If that seems more than a bit silly to you then your'e in good company.

The episode deals with a number of exceptions and limitations to statutory copyright boundaries, including fair use and first sale, spending most of its time on Fair Use components, uses, and defenses.

I should also note that Crash Course in general is free and draws support from subscribers through Patreon.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

July 10, 2015

Belgian Court Acquits Pirate Bay Founders

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Posted by Alan Wexelblat

TorrentFreak is reporting that the four founders of The Pirate Bay have been acquitted of criminal charges in a Belgian court. This is not entirely surprising since the charges arose from the period 2011-2013, during which at least one of the four was already in jail and the site itself had been sold to another entity. In essence, this is the court saying that they believed the defendants' stories of non-involvement during that period. Other legal troubles are unaffected by this decision.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

June 29, 2015

Sometimes Saying Nothing is Saying Something

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Posted by Alan Wexelblat

The Supreme Court has denied a cert petition in the Oracle vs Google fight over Java. This is a victory for Oracle, as it won in the CAFC and that decision now stands. It is probably also a loss for everyone else and may well be a significant blow to Java as Oracle is now free to charge everyone for use of the (buggy, security-hole-ridden) language.

Google still has a fair use defense it can try but if there is not a team of engineers inside Google hard at work producing a Java-free version of Android I'll eat my hat. The decision to extend copyright protection to programming APIs is threatening to nearly everything that modern programming is about. Even Microsoft and Apple at their most monopolistic never tried to claim that they should be paid by people who wanted to interoperate with them.

All that said, I wouldn't read too much into this event. The denial of certatori happens a lot - some years well over 80% of petitions are denied - and there's rarely any explanation given. Court watchers love to speculate about these things - my personal theory is that SCOTUS didn't see a compelling reason to enlarge its ongoing fight with the CAFC - but all you can say for sure is that Google and its amici failed to make a case compelling enough that four justices agreed that it should go on the Court's docket. Who knows what they'll say the next time around.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

June 24, 2015

Europeans Make Really Stupid Copyright Decisions, Too

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Posted by Alan Wexelblat

The EFF has a nice piece up about "European Copyright Madness". At issue is a UK High Court decision that effectively says people aren't allowed to rip (mix, burn!) their own CDs. Uh, yeah. Guys, we fought this fight last century and the anti-ripping forces lost.

Jeremy Malcom, the column's author, points out that the root cause is the European Copyright Directive, which the High Court might have interpreted correctly but in so doing have revealed its broken-ness. Broken in the sense that it's detached from reality. It deals with hypotheticals, such as "hypothetically, you might buy a copy of the same CD to play in your car that you already own to play in your house." A quick glance around my personal household (two adults, two music-loving kids, two cars) says that this logic means we would buy six copies of every CD.

That is... an interesting conclusion. And I'm with Malcom in pointing out that if your process produces nonsense conclusions then there may be something wrong with the premises you're using at the start. In this case, it's the premise of economic harm and the idea that the value I'm paying for in buying music is somehow localized to one device that plays back that music.

Yeah, not so much.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

June 23, 2015

Dogs Now Fight in Slightly Cleaner Pit (Thanks, Amazon)

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Posted by Alan Wexelblat

Amazon is going to change the allocation formula for its KDP Select program.

I've talked about KDP Select before and I'm not impressed with it. Its fundamental problem is that it's a giant pile of authors competing for a fixed amount of money. Amazon decides how big that pile is and how many authors get to compete for it.

I'm tempted to make some Hunger Games reference here, because I think there's already a natural mechanism for pitting authors against each other - it's called "the marketplace." Whether it's a store shelf, a quick-hit rack in the airport, or an electronic catalog every author is already in competition with every other. Some wag once quipped that Isaac Asimov's biggest competitor was Isaac Asimov because he'd been so prolific and his books stayed in print. The result was several shelf-feet (back when that was a meaningful measure) of Asimov books. So be it - that's the system we like in this country.

But that existing marketplace doesn't place any caps on the size of the buying pool. If I want to splurge and spend $100 or hunt for a $10 bargain that's my choice. If I'm enticed to make more or bigger purchases then that expands the amount of money that can flow to authors. The intermediaries (booksellers, publishers, etc.) may take their cut but they don't impose arbitrary caps.

Enter Amazon, everyone else move over and give this gorilla some room. I've railed about Amazon's policies enough in the past - I'm not going to repeat that. This particular move has the effect of rewarding one kind of book-writing over all others and gods help us we do not need more worthless bloat in our literature. That itself would be reason enough to dislike this move.

Finally, I want to pull-quote the end of Peter Wayner's piece:

It’s easy for writers to feel powerless as the one dominant company shifts gears on short notice—and, ultimately, it seems like they are.

Nobody says you have to participate in KDP Select, but if you do you should understand the deal you're making with this particular devil

(ETA: as I was writing this, someone sent me a link to John Scalzi's blog entry on the topic and what he says mirrors a lot of what I planned to write. But I wrote my piece anyway because a blog entry that just says "What he said" is kind of dull.)

Comments (0) + TrackBacks (0) | Category: IP Markets and Monopolies

Future of Music Summit 2015 this October

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Posted by Alan Wexelblat

The Future of Music Coalition are holding their (15th!) annual shindig in October of this year in Washington DC, at Georgetown University - which, if you've never been, is a gorgeous campus.

This year's event will run over October 26-27 and you can register at that link. I haven't seen a speaker line-up yet - that usually comes out closer to event time - but they're promising the usual Copyfight-interesting sessions including talks on artist sustainability, copyright policy, and rights management.

If you happen to be a member of the media there are also media passes available. Sadly that requires a measurable audience, which tends to leave me out. ;)

Comments (0) + TrackBacks (0) | Category: Events

June 19, 2015

June 17, 2015

Avoiding the Simple Binary

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Posted by Alan Wexelblat

As promised some time before I fell into a personal black hole I'm starting to view Subbable's "Crash Course: Intellectual Property series. Here is episode 1, Introduction.

Subbable was bought by Patreon and like other such creative endeavors if you like this stuff and want to see more of it, you can pay what you think it's worth through their system. With that in mind, how's the intro?

Good, really. Like a lot of complex topics, Crash Course tackles intellectual property by breaking it into chunks - I'll review future episodes in other blog posts. This one is about ten minutes long and it starts off with the classically misquoted Stuart Brand epigram that information wants to be free, promising to avoid the simple binary of advancing technology versus encroaching legal regimes. Instead, they appear to want to promote a "both and" style, where we all agree that technology makes copying easier, understanding intellectual property harder, and at the same time gives us access to vast new worlds of creative output, whose creators need to be rewarded. Which is to say, paid.

The video notes that intellectual property in fact pervades modern first-world technological existence but like good design most of the time we're not aware of it. We become aware of it only when we're being told "no" and that's usually a rude awakening. It's irritating and often irrational; it's used to protect broken business models - all the things we've discussed here. But it also promises to avoid simply cataloging the brokenness and focus on what actually works with copyright, patents, and trademarks. We shall see.

Comments (0) + TrackBacks (0) | Category: Culture

June 10, 2015

Stupid Lawyer Tricks, Streisand Effect Edition

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Posted by Alan Wexelblat

In yesterday's update I pointed out that Apple and Samsung's lawyers are behaving badly at the behest of their employers. Sometimes, though, lawyers get to behave badly all on their own. (Seriously, if you don't already read Lowering the Bar you should.)

In this case patent lawyer Scott Horstemeyer appears to be demonstrating the Streisand Effect at his own behest by suing the EFF. Why? Because the EFF called one of Horstenmeyer's patents crap, awarding it their "Stupid Patent of the Month" award.

Well, yeah, but stupid patents are a dime a dozen and I - despite being an EFF supporter - hadn't heard about this until Horstenmeyer decided to call attention to it by filing suit. The EFF promptly put up a notice that it had been sued, and then created the "Scott A. Horstemeyer v. Electronic Frontier Foundation" page.

Horstenmeyer took a bit over a week to realize what direction this was likely headed and voluntarily dismissed his own lawsuit. The EFF wrote a final "...and by the way, you're wrong" letter that's pretty funny to read. Probably the end of this and one hopes a shining beacon of education to other lawyers tempted to call attention to their own failings.

Comments (0) + TrackBacks (0) | Category: Kudos

June 9, 2015

Find Me Nine Less-Qualified People

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Posted by Alan Wexelblat

I'm not sure this is a competition I want to get into, but I'm pretty sure I can take up Gene Quinn's challenge, as posted on ipwatchdog, to find nine people less qualified than SCOTUS to rule on patent matters.

To be fair, Quinn isn't proposing an actual competition. Instead, he's joining the chorus of people who've grown frustrated with the Supreme Court's confused, self-contradictory, and scientifically nonsensical rulings. This Court has issued several significant patent rulings in the past half-decade that threaten to upend completely our understanding of what is and what is not patentable. Quinn argues (well, rants really - it's a good rant) that the sum total of these rulings is akin to a prior Court's infamous definition of pornography - something that the Justices could know by seeing it, but couldn't write down a good definition for.

So what are inventors supposed to do? Guess? As Quinn says: "It defies logic to hold people accountable based on a standard that even those who judge cannot, or will not, define.". To make matters worse, the CAFC and SCOTUS are in the middle of a protracted struggle over the meanings and interpretations of the laws on patent eligibility.

The root of the problem, I think, is one that Quinn touches on but doesn't delve into for this blog entry: the law itself is bad. A fundamental problem with the Alice decision is that it confuses section 101 and 103/102. There's a good argument to be made that 101 could (should? must?) be dispensed with, as its vagueness and interpretations are at the root of many problems. Along the way Congress really needs to make some kind of clear ruling on what to do about patenting virtual machines (commonly called software).

Also, I'd like a pony.

Comments (0) + TrackBacks (0) | Category: Counterpoint

June 8, 2015

Who Owns the Software in Your Car?

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Posted by Alan Wexelblat

Cars today come with a lot of computers in them (here's a claim of 50, which is on the lower side of the claims I found). All of those computers (microprocessors, if you will) require code. Question: who owns that code?

It seems rather indisputable that you, the car buyer, own the microprocessors themselves, much as you own the other bits and pieces of your vehicle. However, an article in autoblog last month reports on statements made by General Motors to the effect that it (not you) owns the software that runs those processors. Orly?

Pete Bigelow's piece stems from hearings held by the US Copyright Office, which is considering various exemptions that, in effect, allow independent mechanics to work on modern cars. Today, the ability to decode, understand, and even modify the electronics embedded in a vehicle are as essential to a repair shop's operation as a set of wrenches. If car companies (or other vehicle makers such as John Deere noted in the story) are allowed to exclude independent and third-party operators they will effectively be able to shut down all non-dealer repairing.

In addition, allowing manufacturers to control the software separately from the vehicle could cripple the used-car market. Can you imagine trying to buy a used car if you couldn't be sure that the software controlling the airbags had transferred with the vehicle?

We've seen this pattern before - companies using expansive readings of copyright laws to try and control or eliminate competition and secondary markets. The Copyright Wars grind on.

Comments (0) + TrackBacks (0) | Category: IP Markets and Monopolies

June 2, 2015

June 1, 2015

Is "The Lego Movie" Anti-Copyright?

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Posted by Alan Wexelblat

One of the interesting things coming from PBS Digital is The Idea Channel, a weekly series in which the host poses and then discusses a topic at least inspired by popular culture and social media. In the April 15 episode (yes, I'm that far behind on blogging, hush) the question of what stance on copyright is conveyed in this movie.

The YouTube video contains massive spoilers for the movie, but I'll try to avoid that by saying that the video argues for the "yes" position. Despite the movie being made by a massive corporate that is itself notoriously litigious, and despite it using material that was licensed from dozens or probably hundreds of entities, the argument is that the message is still anti-copyright.

The movie presents a struggle against a dictatorial power that represents... something. Autocracy? Strict control over creativity? Something that limits the ability of the characters to rearrange existing resources. In this argument Lego bricks stand in for the cultural melange that gets used for potentially copyright-infringing activities like remixing, fan fiction, parodies, and so on. The movie's maguffin has the effect of freezing stuff in place forever - or if it's copyright, life plus forever. You see the analogy.

It's interesting to me that the video goes on to argue that "only Lego" (the company) could have made this movie because Lego-the-company has become a trusted licensor of copyrighted materials. When Lego comes to the owners of Batman, Superman, Star Wars, etc and says "Hey, we want to use your stuff in our movie" those owners are much more likely to say yes. Unfortunately, this results in reinforcing the copyright elite (who can pay big bucks for these sorts of things) and shuts out the 99%. But I think we're rather used to that by now.

Comments (0) + TrackBacks (0) | Category: Culture

May 28, 2015

May 26, 2015

CAFC Yer Still Doin' It Wrong

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Posted by Alan Wexelblat

SCOTUS has reversed and remanded CAFC yet again. In a 6-2 ruling (Breyer recused) the Supreme Court has held that even if you think a patent is invalid you have to behave as if it is, as regards induced infringement.

Specifically, the courts seem to agree that Cisco (in this case) induced customers to infringe Commil's patent through giving them equipment to use where that equipment itself was infringing. The case is a little tricky because it's dealing with the intersection of patent validity (where peoples' mental states are not considered) and direct versus indirect infringement, which does implicate peoples' beliefs and mental states.

I'm (still) not a patent lawyer, but on first reading I think SCOTUS got it right.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

Hi, I Still Exist

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Posted by Alan Wexelblat

Due to a series of personal setbacks I've rather let blogging fall off my priority list. Sorry about that. I will try to pick it up more. I've been doing this a long time and I remain dismayed by the trench warfare that the Copyright Wars have been in. But there's still news and I'll find some things to say about it.

Comments (0) + TrackBacks (0) | Category: Announcements

April 7, 2015

3C is Fair Parody

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Posted by Alan Wexelblat

Techdirt pointed me to a nice ruling that came down recently in New York (reported here in The Hollywood Reporter) in which U.S. District Judge Loretta Preska accepted a parody play as fair use.

The play, 3C, is a direct parody of the popular TV sitcom "Three's Company" and was running off Broadway for a couple months. Then it got a cease-and-desist order from DLT Enterainment, which owns the rights to the original TV series. The play's author, David Adjmi, argued that his play was commentary on the "ways the television show presented and reinforced stereotypes about gender, age and sexual orientation" as well as the social times in which the comedy series played (sexual liberation, exploitation of that sexuality, etc).

Judge Preska agreed that 3C copied many elements of Three's Company directly, but felt that the transformative nature of the parody was, when taken as a whole, sufficient to outweigh any claims of IP infringement.

Comments (0) + TrackBacks (0) | Category: IP Use

March 26, 2015

March 19, 2015

Patreon Buys Subbable

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Posted by Alan Wexelblat

If you're a Subbable supporter you've probably gotten several emails on this already - make sure they didn't go into your spam folder or something.

It's interesting to me to see consolidation happening in this space. The two entities had almost identical models, except Patreon doesn't support one-time payments. As AFP said, this is about ongoing support. Subbable began as a way for the Vlog brothers (see here in case you missed it) to fund their Crash Course series of videos. As that grew so did the business side of Subbable and what I think we're seeing here is another example of the "I don't want to have to run a small business just to create my art" realization. It's interesting to me as someone who once dabbled with the idea of becoming an independent consultant. Basically I loved the work I did and wanted to be my own boss.

Except I discovered that my boss was an ass who wanted me to pay attention to things like drumming up new clients and billing old ones and negotiating contracts and taking care of office supplies and and and. At the end of the day I found I was spending less time on the work I wanted to do and much more on the work necessary to do the work. So I went back to being a salaried wage slave. Nowadays I'd probably employ one of the many entities that exist to do all this (inaptly named) overhead.

Patreon fits into that role and I will be interested to see how they manage their growth. Patronage of this sort is strongly encouraged by tight interactions between the supporters and the people asking for support. If any intermediary - Patreon or otherwise - starts putting a big impersonal face on things then that risks the closeness.

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March 8, 2015

March 6, 2015

Who Made That Music?

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Posted by Alan Wexelblat

I'm really pleased that The Wrecking Crew film is finally going to see the light of day. I backed this film on Kickstarter and I've been reading along as the producers have struggled to get together enough money to manage the various licenses that were involved. I quote from one of their updates:

With over 140 songs that were licensed, each license has multiple parties involved and we are painstakingly going through each license to make sure we haven't made any mistakes.

By organizing each of these licensing issues, Danny Tedesco and his team (over 18 years) managed to ensure that the musicians involved were compensated and also the lawyers for a major movie distribution house were satisfied that they could pick up this film without risking entanglement in a copyright dispute.

Comments (0) + TrackBacks (0) | Category: IP Use

March 4, 2015

This is More Like Going Steady

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Posted by Alan Wexelblat

So analogizes Amanda Palmer in announcing her new Patreon: Kickstarter is like a date; Patreon is more like going steady.

Palmer is already well experienced with a couple successful Kickstarters, as well as having taken a lot of flak over her success with such fundraisers and how the money was to be used. Each of those was for a specific project, event, tour, album, etc. The Kickstarter funded the target art, and associated materials. However, as many people have discovered, doing a good Kickstarter is a lot like running a small business. If what you want to be doing is making great art/music - and Ms Palmer has a lot of projects she wants to get done - then running a small business might not be the right way to get what you want.

Enter Patreon, a site where people can subscribe at user-set rates, can be in communication with the artists they're supporting, and can get "things" from the creators they're backing. As Palmer says, the creation of a lot of good art requires "ongoing support"; doing one-off asking for every project she has in mind would be an insane amount of overhead. So why not dispense with the overhead and just ask people directly to give what they want for the things Palmer is going to make?

And because she's still Amanda Fucking Palmer she is "planning to release pretty much all [her] artistic content for free." In my mind this is one of the most important parts of the project. When MIT put its course materials online for free it made a statement that the value of MIT wasn't captured by any set of lecture notes; likewise, Palmer is asserting that the value she's providing in return for this patronage is not captured in any song, picture, podcast, or whathaveyou. Her fans get value from knowing that Palmer is out there making more great art, communicating with her, and in the process making the world a better place.

That sounds like airy-fairy stuff on the face of it but as of this writing over 1700 patrons agree with me that it's a real and important dynamic. Two years ago, Palmer asserted that what she was doing was the future of music. I think she's doing it again.

Comments (0) + TrackBacks (0) | Category: Interesting People

February 27, 2015

Counting E-Book Sales is a Dark Art

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Posted by Alan Wexelblat

I swear I'm not entirely going to turn Copyfight into a blog of "people Alan Wexelblat is interested in who do interesting copyright things." It's just that kind of month.

With that said, Ferret Steinmetz has just published his first novel, and he has some clear advice for readers who want to help out: pre-order. Steinmetz used to work as a book buyer for Borders and Waldenbooks; the business has no doubt changed somewhat since he left, but the basics are still probably true. Pre-orders matter because they encourage stores to stock more copies and once the stores have invested in those copies there's incentive to promote the book in order for the store to make its money on the investment.

It's true that a store can usually return unsold copies but stores have still paid costs beyond the per-book price, not least of which is that they can only invest in a certain number of books and if one of them doesn't sell then the store has missed out on potential sales of a different volume. So their incentives remain high and thus it's important to authors that they have a lot of pre-orders in order to convince retail outlets to get on board.

There's also the perennial question of physical versus e-books and as often happens, it comes down to discounts (as we've been discussing for years). Authors get more per e-book copy sold at a given price, but e-book discounts come out of authors' pockets. The complete inability to get reliable data on e-book sales may also hurt, but it's all guesswork right now in the absence of data.

So, e-book sellers, how about publishing these data?

Comments (1) + TrackBacks (0) | Category: IP Markets and Monopolies

February 24, 2015

February 19, 2015

February 18, 2015

What Do You Do When You Discover You're a Copyright Thief?

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Posted by Alan Wexelblat

If you're John Green, you try to make it right. I'm a casual vlogbrothers fan but never thought I'd be writing about them here. However, the video linked above concerns an interesting copyright situation.

In the piece, Green describes how a particular quote - from a book he wrote seven years ago - is widely attributed to him. In fact, he doesn't remember writing that line but then again he doesn't remember writing a lot of the lines. He talks about being on the set of a movie being made from his book and asking the director why something happens, only to be told "because it's in the (your) book."

But then something surprising happens - a claim is made that the quote in fact does not appear in the book. Curious, Green downloads the illegal torrent of the published work in order to be able to search it. You could write a whole column about how broken that is - the DRM on his own e-book prevents him from searching it - oh, wait, Cory Doctorow has already written that column, many times.

Searching the file, Green comes to realize that he did not in fact write this quote. Further research shows that it was written by a commenter, a fan. Meanwhile, Green's organization has been selling posters using this quote and there are hundreds or thousands of places scattered all over the Internet claiming that this is Green's quote. Probably nothing can be done about those, though the video should serve as an authoritative reference for people who want to argue about it. But something can be done about the appropriation, even though it was inadvertent. In the piece, Green describes how they've gone back and figured out how much likely should be owed to the person who originated it, and how it's been paid. That itself is pretty awesome.

This incident serves as a jumping-off piece for Green to note just how "messed up" our copyright system is, a topic that I'm hoping to hear him go on about at some length through his free online education series, Crash Course. Stay tuned for Crash Course: Intellectual Property.

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February 13, 2015

A Difference between Content and Carrier

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Posted by Alan Wexelblat

I've not talked much about the theory of patent "exhaustion" - mostly because I'm not a lawyer and will probably botch it up, but here goes. Patent exhaustion is somewhat similar to first sale doctrine - it holds that once you've sold a patented item you give up your control over that particular item, and also you implicitly grand the purchaser of the patented item a license to use it as they see fit. The IP Law blog article linked here has more details.

This is relevant background to a case that was decided (overturned in fact) at the CAFC this week. Patent-holder Helferich Patent Licensing had appealed a loss lower down regarding patent exhaustion. The question was whether the fact that Helferich had licensed certain patents to phone makers allowed content providers to use patented techniques for displaying Web pages on those mobile devices. The District court had agreed with defendants (mostly big media organizations like the NY Times and CBS) that patent exhaustion not only covered the individual purchasers of the handsets but also the media companies that were providing content to the phone users.

This week the CAFC disagreed, holding that the District court's summary judgment extended the exhaustion doctrine too far. It's now possible that the defendants could seek Supreme Court review - hoping perhaps that the Supreme Court will continue its efforts to smack down the CAFC - or the case could go back to the District for an actual trial on the merits, after which it could wind right back up in front of the CAFC again.

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January 30, 2015

Nintendo Rolls Out Terrible Deal for YouTubers

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Posted by Alan Wexelblat

Nintendo has put out a new "Creator's Program" for people who review, comment on, or do "Let's Play" videos using its games on YouTube. The program attempts to restrict 'Tuber's fair use of Nintendo-originated material and give the company large slices of the revenue.

It also includes some perplexing restrictions, such as payments only being in USD and only via PayPal. Why Nintendo can't manage more than that remains a mystery, but that's not really the big deal here. It'll cost you PayPal fees and currency conversion fees, sure.

The big deal is that Nintendo has gone from making aggressive takedown claims to a "thoroughly regressive" (thank you TotalBiscuit) policy on fair use of online media content. By positioning itself as entitled to (a share of) any revenue Nintendo is pushing a stand on ownership that sets it apart from - and I would say far behind - every other major gaming company.

I've noted in the past that there is a wide spectrum of game-related content on YouTube. Dealing with that variety - which includes criticism, game-theory work, comparative explorations along side full-on streams and other less creative forms requires sophistication, not stonewalling and absolutism. Whether or not a video earns money is not the question: the question is whether the use of Nintendo's (or any other company's) copyrighted material in the video meets the Fair Use test.

The company's current approach - which seems to be to pretend there is no such thing - is a terrible idea.

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January 20, 2015

SCOTUS vs CAFC, Round N+1

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Posted by Alan Wexelblat

I noted last year that the CAFC seems to be hell-bent on interpreting the laws however it damn well pleases, despite Supreme Court decisions to the contrary. Guess what? It's still happening.

This time (in a case called Teva Pharmaceuticals v Sandoz) the Supreme Court has once again rejected the CAFC's practice of conducting de novo reviews of cases that appear before it. In this case, Teva had its patent upheld as valid by a lower court in its suit against Sandoz. But when the case reached the CAFC the higher court decided to reopen the claims construction argument and reversed, finding the patent invalid.

Except you can't do that. One of the core principles of the hierarchical structure of US courts is that lower courts find on facts and then interpret the law in light of those facts. An appeal against a lower court verdict has to make a claim that the law was incorrectly interpreted or applied, or there has been some kind of procedural error. The Supreme Court has rejected this behavior by the CAFC before and now they've reversed again, reminding the CAFC that they have to play by the same rules as everyone else.

However, as I noted last time this happened, there doesn't seem to be any means to enforce this dictate by the Supreme Court. Sad.

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January 12, 2015