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AUTHORS

Donna Wentworth
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Ernest Miller
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Elizabeth Rader
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Jason Schultz
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Wendy Seltzer
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Aaron Swartz
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Alan Wexelblat
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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

COPYFIGHTERS
a Typical Joe
Academic Copyright
Jack Balkin
John Perry Barlow
Benlog
beSpacific
bIPlog
Blogaritaville
Blogbook IP
BoingBoing
David Bollier
James Boyle
Robert Boynton
Brad Ideas
Ren Bucholz
Cabalamat: Digital Rights
Cinema Minima
CoCo
Commons-blog
Consensus @ Lawyerpoint
Copyfighter's Musings
Copyfutures
Copyright Readings
Copyrighteous
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
Cruelty to Analog
Culture Cat
Deep Links
Derivative Work
Detritus
Julian Dibbell
DigitalConsumer
Digital Copyright Canada
Displacement of Concepts
Downhill Battle
DTM:<|
Electrolite
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
GrepLaw
James Grimmelmann
GrokLaw
Groklaw News
Matt Haughey
Erik J. Heels
ICANNWatch.org
Illegal-art.org
Induce Act blog
Inter Alia
IP & Social Justice
IPac blog
IPTAblog
Joi Ito
Jon Johansen
JD Lasica
LawMeme.org
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
miniLinks
Mary Minow
Declan McCullagh
Eben Moglen
Dan Moniz
Napsterization
Nerdlaw
NQB
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
Slapnose
Slashdot.org
Stay Free! Daily
Sarah Stirland
Swarthmore Coalition
Tech Law Advisor
Technology Liberation Front
Teleread
Siva Vaidhyanathan
Vertical Hold
Kim Weatherall
Weblogg-ed
David Weinberger
Matthew Yglesias

LINKABLE + THINKABLE
AKMA
Timothy Armstrong
Bag and Baggage
Charles Bailey
Beltway Blogroll
Between Lawyers
Blawg Channel
bk
Chief Blogging Officer
Drew Clark
Chris Cohen
Crawlspace
Crooked Timber
Daily Whirl
Dead Parrots Society
Delaware Law Office
J. Bradford DeLong
Betsy Devine
Dispositive
Ben Edelman
EEJD
Ernie the Attorney
FedLawyerGuy
Foreword
How Appealing
Industry Standard
IP Democracy
IPnewsblog
IP Watch
Dennis Kennedy
Rick Klau
Wendy Koslow
Kuro5hin.org
Elizabeth L. Lawley
Jerry Lawson
Legal Reader
Likelihood of Confusion
Chris Locke
Derek Lowe
Misbehaving
MIT Tech Review
NewsGrist
OtherMag
Paper Chase
Frank Paynter
PHOSITA
Scott Rosenberg
Scrivener's Error
Jeneane Sessum
Silent Lucidity
Smart Mobs
Trademark Blog
Eugene Volokh
Kevin Werbach

ORGANIZATIONS
ARL
Berkman @ Harvard
CDT
Chilling Effects
CIS @ Stanford
CPSR
Copyright Reform
Creative Commons
DigitalConsumer.org
DFC
EFF
EPIC
FIPR
FCC
FEPP
FSF
Global Internet Proj.
ICANN
IETF
ILPF
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
PFF
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office
W3C


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

Copyfight

September 3, 2015

Trademark Law Includes False Endorsement

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Posted by Alan Wexelblat

False endorsement occurs when a person's identity is connected with a product or service in such a way that consumers are likely to be misled about that person's sponsorship or approval of the product or service
The Lanham Act governs most of trademark in the US, and section 43(a) provides the justification above. In effect, I can't claim that you like this blog unless I have your permission to do so.

So when Hasbro toys brought out a hamster with the name "Harris Faulkner" the Emmy-award winning newscaster named Harris Faulkner sued, Her lawyer claims she actually sent the toy company notice back in January and when that didn't get a response this many months down the line they decided to file suit.

More disturbing to me is the allegation that Hasbro designed elements of the toy to resemble Ms Faulkner. This led the newscaster to include claims for unfair competition and violation of her right of publicity. Interestingly, the right of publicity in the US is governed by state laws

I have to ask, though, did someone not notice that Ms. Faulkner is black? How tone-deaf do you have to be not to realize that black people have had to put up with many years of demeaning animal images. Maybe a hamster is better or cuter than some of the overtly racist animal comparisons, but COME ON, people. Pay some attention here.

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

Kickstarter Math

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Posted by Alan Wexelblat

...is weird, at least to Marian Call. I thought I had covered some of Ms Call's writing in the past but apparently not, so add this to our series of occasional reports from people who've braved the frontiers of Kickstarter and come back to report (see here from the Doubleclicks and here from Amanda Palmer and here from Ferret Steimetz).

Calll's blog entry from earlier this week is intended as a "you should do this" for anyone thinking of doing a Kickstarter. It even includes a template spreadsheet to help you (the prospective project organizer) figure out how much you'll need to raise. Her philosophy is interestingly different from some of the Kickstarters I've backed.

For example, she asserts that people should raise what they can raise, and deliver on that amount, rather than trying to raise what is needed for their vision project and risk not getting funded. I've backed a number of (computer) game projects on Kickstarter that had sizeable budget estimates and when they didn't make those budgets they chose not to make the games rather than produce a smaller and possibly inferior project.

Much of her other advice is quite valuable, notably "do your research and use real numbers rather than guesses" and "run (what if) scenarios". Your project may not get figuratively buried by the next Hurricane Sandy, as happened to one of her projects, but you should have a reasonable plan for what to do if something that really ought to happen ends up not happening.

Another important part of her advice: ask your fans what they want. This is part research and part fan service. If your rewards just happen to be the things that excite your fans then not only are they more likely to pick support levels you want them to pick they're more likely to share that excitement with other fans. If you don't know what your fans want then you're doing a Kickstarter at the wrong time. Yes, it's important to fulfill your dreams and produce that awesome thing that will take the world by storm but if nobody knows about it, nobody gets excited about it... well, there are cheaper vanity presses by far.

She has a full list of recommendations at the end of the blog post that I think are required reading, so I won't reproduce them here, But let me pull out two that - as someone who participates in a number of kickstarters every year - are my particular bugbears. Number one: early and late rewards. ARGH. Think it through, people. Don't make me feel second-class because I didn't back you in the first week and don't annoy me by trying to get me to go back to Kickstarter and change my pledge level because you just added a cool thing.

(For the record, I also hate the airlines' current practice of trying to get me to pay more at check-in time for a "seat upgrade". F that - if I'd wanted that seat I would've bought it when I bought the ticket. OTOH airplanes all seem to fly full these days so maybe I'm the odd one out.)

Number two: for the luvva god, do not make me go through some annoying hoops creating some other account somewhere just to get my pledge fulfillment. As I mentioned, I back a lot of games, and most games have forums for the players and fans to talk about the game. OK, fine, I'll create an account there. But if I have to skip through screens of "buy extra stuff" and then create an account just to give you money... feh, I may just click away. My time is worth something, too.

In the end, I think Call's blog post is somewhat mistitled. Kickstarter math isn't so much "weird" as it is "way more complicated than you think from the outside." But that's a pretty wordy title.

Comments (0) + TrackBacks (0) | Category: Big Thoughts

September 2, 2015

IP Without Scarcity

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Posted by Alan Wexelblat

In an academic paper posted last year on SSRN, Mark Lemley of Stanford Law looks at the issues surrounding "IP in a World Without Scarcity." This is an academic paper and is a dense 60+ pages of PDF so I'm not going to be able to do justice to Professor Lemley's arguments in a short blog post. But here's what I took from it.

Lemley argues that the purpose of IP, and the laws that create it, is to create scarcity so that creators can profit. The government grants a monopoly so that the creator can prevent others from copying their invention and the creator can reap the financial rewards. If there was no scarcity what would be the incentive to pay for the creative product? If you think this sounds like the music industry since, oh, 1999 or so then you're on the right track.

Lemley points out that we're on the verge of seeing a similar thing happen to many physical objects as happened in the past few decades to purely digital objects. As (home) 3D printing becomes a consumer item, even more radical ideas are taking shape, such as small-scale creation (growing, printing - who knows what verb we'll use; Lemley uses "bioprinting") of biological items (think drugs). So take as given that scarcity is not going to be easy to create in the future - what future does IP have in that world?

Lemley assumes that people are "intrinsically motivated" to create. There's some good evidence for that: if you look at areas and regimes where IP restrictions are weak you find innovation flourishes, both at the individual and the corporate/commercial level. To organize this sort of intrinsic creativity in an era where scarcity is the exception, requires what Lemley calls "post-scarcity economics" and he believes this is one of the greatest tasks of economists in the 21st century, comparable to how post-agrarian economics developed.

Lemley's paper dives into each of these area (disintermediation, 3D printing, robotics) and gives a concise introduction to where we've gotten in the last 5-10 years. His message seems to be that it's not an all-or-nothing situation. Some things get copied a lot and yet people still pay ever more for it. Digital music is a great example of this - illegal copying and sharing are likely at historical highs, but so is the number of dollars spent on music.

It's also the case that the same technologies that make scarcity so hard to enforce also vastly lower the barriers to creative expression in the first place. Making and publishing digital music is easier now precisely because of the technologies and systems (YouTube, the Internet, cheap home computers) that enable copying and sharing.

Lemley is also realistic that those with the current monopoly powers will fight the loss of those powers and likely can delay the (as he sees it) inevitable for some time. In effect, the current IP infrastructure makes it inevitable that any transition away from that infrastructure will have to be gradual.

In the end Lemley is not offering solutions to the problem, though he believes our experiences with the upheavals of the last two decades offer valuable lessons. Among them: you have no right to have the government intervene to protect your monopoly, and we should resist the expansion of IP rights beyond targeting infringers, particularly when that expansion would threaten the growth of new technologies. Too bad the judge in Aereo didn't read this paper.


Comments (0) + TrackBacks (0) | Category: Big Thoughts

Crash Patents

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Posted by Alan Wexelblat

I finally took time to watch Crash Course's Part 4 on "Patents, Novelty, and Trolls" (previously I mentioned the series starter, and episode 3 on copyright). As the name implies, this episode attempts to teach people about the current state of patent law.

Stan begins by covering the basics of patents - what is eligible. Since this is a beginner course, he simply mentions that natural sequences (genes) are not patent-eligible since Myriad and moves on. Would that the world were so simple. Likewise, the concept of "nonobvious" is kind of easy to describe at a simple level but once you start digging into it the waters quickly get murky. Ditto for the video's treatment of trolls, and Stan acknowledges as much.

The episode covers utility, design, and plant patents. That last one was new to me. I didn't realize you could get a special kind of patent on a grafted plant growth. Apparently very few of these things issue in any given year, but they do exist.

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

September 1, 2015

Why Create?

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Posted by Alan Wexelblat

The whole point of creating is affecting other people.
In a short piece on John Scalzi's "Whatever" blog, author, actor, and publisher Felicia Day comments on her new book You’re Never Weird on the Internet (Almost). Scalzi runs these pieces often, inviting authors with newly published works to talk about the big ideas and geneses of their books. Usually those are SFF novels, but sometimes other authors appear. In this case, Ms. Day's book is part humor, part memoir, and part commentary on the technosocial milieu of the early 21st century, as seen from Day's point of view.

That POV starts as an awkward fangirl looking in from the outside and goes to... well, she still claims to be awkward, insider looking out at a large fan base and around her at other people who are what passes for stars these days. And in this blog entry she looks inward, and shares what motivates her. Which, generally, is other people.

That is, Ms Day explains, what it's all about. It's about creating something you can give to others, about creating a thing that has an impact on others, about making something that exists so that others can repurpose it.

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

August 31, 2015

Facebook Admits it Might Have a Video Piracy Problem

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Posted by Alan Wexelblat

Two months ago, advertising agency Ogilvy did a study of videos posted on peoples' Facebook pages and concluded that "73% of the most popular videos on Facebook had been ripped from other websites."

There's a whole side issue here I don't have time to write about, relating to how Facebook has make itself as much of a walled garden as it can, thereby training people that they can't just link to other content, they have to put content into Facebook itself. That they follow this training with other peoples' (video) content isn't hugely surprising. But onward.

Today the company announced that it would begin limited roll-out of a "video matching" technology that would alert creators when matched content was found in a Facebook upload. That seems like a fair first step to me, but it leaves open a lot of questions.

First (OK, I have to go there) why is Facebook still encouraging people to upload videos rather than link to them? Second, what is the success rate of this matching technology, and what's its false positive rate? Third, does the technology have any idea of the difference between a clip (which might be argued to be fair use) and a full-on copy or very long grab, which are much more likely to be illegal copies? Fourth, why is this only being made available to "a small group of partners"? Some pigs are more equal than others, I guess.

On the third point, the BBC story claims that, "...the tool will be able to detect when small portions of stolen content are used in another video without permission." Which is exactly and entirely the wrong way to go about this. Small portions are exactly the kind of thing that are important to use for educational, critique, and other fair uses. If Facebook is going to waste peoples' times chasing after this sort of minima then resources are going to be diverted from the most damaging instances of bucket copying.

They say that the first step is admitting you have a problem. Awesome, step one complete. Now about that effective response...

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

August 23, 2015

A Natural Superfood, and Intellectual Property

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Posted by Alan Wexelblat

In the United States we are used to an IP regime where the state grants the IP rights (usually limited monopolies) but does not itself own IP. That's not universally true, though. Many other countries rest control of local IP with the government and control its use and export. Two of those countries are Bolivia and Ecuador.

This matters because, as Lisa M. Hamilton reports for Harper's, these countries control the germ plasm (i.e. the biological IP) for quinoa. It's possible that quinoa is just another flash-in-the-pan fad-of-the-month food. But it's also possible that this crop, which contains a variety of nutrients and is the only known plant to have a whole protein, is an important resource in the fight against world hunger and a possible way to stave off the crop depradation

In order to do that, though, it would need to be adapted to grow at something other than the high, cold, barren conditions where it now thrives. If you could get hold of the best seeds this would not be a huge problem. Even in the days before GMOs the Andean potato was taken (by Spanish conquistadors) and crossed with other plant species to get something that now grows pretty much everywhere in the world. Today, though, the best seeds are locked up in the national reserves of Bolivia, which is well aware of the value of its intellectual property, and has no intention of sharing it.

That seems so unfair but consider the history of the potato and that Bolivia is one of the poorest countries in the world right now. The country and its peasant farmers saw not a penny in compensation for the potato so why should it now give away what might be its last and most valuable crop? It is, as the Bolivians say, about food sovereignty. In the end, science may trump sovereignty, as there are wild plants outside Bolivia that share many of the desirable traits of quinoa. Scientists working with those may be able to do an end run around the seed blockade and cross-breed those related wild plants with domesticated crops to get the desirable traits. Or maybe the whole thing will become moot, as no grain is likely to be a significant displacement for current corn and wheat in time to deal with the shifts of climate change.

To me it's like watching a train wreck in slow-motion. There's no perfect outcome here - the best I can hope for is everyone to have a change of heart and the Bolivians manage to negotiate some kind of licensing for their plant IP that helps lift their peasantry out of grinding poverty and gives the world more healthy feeding options.

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

August 21, 2015

August 18, 2015

August 5, 2015

Open the Music Industry's Black Box

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Posted by Alan Wexelblat

This is the titular plea of a Sunday Review column written by David Byrne. Byrne argues that these days should be a golden age for music, with more music being made and people growing used to paid services such as Spotify, which Byrne credits with "sav[ing] a record industry that piracy had gutted." But at the same time, tales of artists receiving paltry payouts from these services abounds.

A couple years ago, I raised just this issue: is the compensation that artists get from streaming services enough? Byrne's update is a variety of "not so fast there." He argues that:

...ways have been found to siphon off a greater percentage than ever of the money that customers and music fans pay for recorded music.

So if only a trickle of pennies is making its way back to the artists, maybe we ought to be pointing a finger at something other than the streaming services. Unfortunately, contracts and non-disclosure agreements are keeping all this shrouded in mystery from the general public.

No problem, you think, Byrne isn't the general public. He's a recording artist, producer, composer, and copyright holder. Surely someone who makes and owns the music ought to be able to get information on how revenue is distributed, right? Nope.

Byrne, having been told that royalty calculations were "...disclosed [] only to copyright owners" went to his own distributor, and hit a wall when they told him "You can’t see the deal, but you could have your lawyer call our lawyer and we might answer some questions.”

Byrne also reports on his frustrations trying to get simple answers to questions like "What's the general split of ad revenue on YouTube?" Byrne again credits Spotify for trying to make things clearer and notes that its data show that 70% of what listeners pay Spotify goes to the labels that hold the rights, and who often demand advance payments even before music starts to stream. What Sony, BMG, et al do with their 70% so that only pennies trickle into artists' bank accounts remains a mystery.

Certainly what they are not doing is managing the physical processes they used to manage. Disks, packaging, transport, distribution, inventory control, etc. are all valuable services when you're selling physical goods and in the days of vinyl and then CDs the labels handled these things and paid out money for each of them. In the era of electronic distribution all those things that previous were costs instead go into the labels' profit margins. In addition, the money that labels get from streaming services is mixed with all the other sources of profit (or loss) from the labels' other businesses, cranked through some arcane formula and only then will the label decide how much it gives to the artist. Your record might stream more on Spotify than mine but that's no guarantee you'll see more revenue at the end.

Recall that a few months ago we were just discussing how e-book sales calculations are a black art. Profits from streaming are even moreso, and it's not likely to change because it's in everyone's interest - except the artist of course - to keep it this way. So remember this next time you read a complaint about how meager the money is coming from streaming services. Not only is not the streaming service's fault, the service might even not be able (legally) to talk about why it's not their fault.

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

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. ;)

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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