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.
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.
Crash Course Intellectual Property Part 5 covers trademarks and covers the basics of trademarking and how it relates to (or helps alleviate) consumer confusion. One item I'd forgotten: even though the USPTO (Patent and Trademark Office) is responsible for both, the Supreme Court has held that Congress cannot regulate trademarks under the intellectual property clause of the constitution. This is the clause that gives Congress power over copyrights and patents. Instead, Congress regulates trademarks through its Commerce power, another Constitutional clause entirely. Why Patents and Trademarks are under one office while the Library of Congress gets Copyrights is anyone's guess.
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.
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.
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.
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.)
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. ;)
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.
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.
Out of the public eye, sure. Still lining the lawyers' pockets, though. Another issue appealed, upheld in part and reversed in part. To be fair to the hired guns they are doing this because it's their jobs. The real fault lies with the warring parties who would rather litigate this sort of thing endlessly than behave like reasonable corporations and negotiate a settlement. Maybe corporations are people, after all, just not very mature ones.
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.
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).
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?
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.
Jim Hines gives us his version of "Publishing 101" in which he takes apart some of the most common criticisms of John Scalzi's big book deal. As Scalzi has pointed out in many past blog entries, publishing at its base is still a business. We may love the authors and books and things that publishing gives us, but the publishers (like the authors) are in this to make a living. Tor, in giving Scalzi such a large deal, is saying "we believe that we will make a lot of money this way." That's a very interesting statement about the future of publishing, and not something about which one ought to make ignorant assumptions. It's possible Tor will be wrong and they (like other today-profitable businesses) will end up losing money or even going out of business. But that's something we have to wait and see, not something you can divine from the entrails of this deal.
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.
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.
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.
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.
If you're Jim Hines, apparently pretty well. Hines reports on the experience of having his Libromancer selected for the cut-price (USD 2) deal. He reports that the result was a surge in sales, a competitive price cut from other retailers, and apparently there's some noticeable pull-through of other things he's written. He sold a good number of the KDD title, but also noticed that sales of his other two books came in with above-average sales volumes. He still doesn't have royalty numbers, so it's not yet clear what the impact on his bank account will be, but it seems pretty clear he's boosted his fan base through this surge in publicity.
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.
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.
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.
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?
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.
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.
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.
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.