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.
The Merc has a great article on how the RIAA bashes P2P out of one side of their mouth while secretly using data from the networks to boost sales of their CDs. Check out this tasty bit:
Record-label executives discreetly use Garland's research firm, BigChampagne, and other services to track which songs are traded online and help pick which new singles to release. They increasingly use such file-sharing data to persuade radio stations and MTV to give new songs a spin or boost airplay for those that are popular with downloaders.
Some labels even monitor what people do with their music after they download it to better structure deals with licensed downloading services. The ultimate goal is what it always has been in the record business: Sell more music.
``I know of a case where an artist had obviously gone with the wrong single, and everyone loved this other song they had on their record,'' said Guy Oseary, Madonna's business partner and head of her label, Maverick Records. ``In the world of what we do, it's always good to have real information from real fans.''
Maverick used BigChampagne's 100-city breakdown of popularly downloaded songs to persuade radio stations to start playing a new band, Story of the Year, during prime daytime listening hours instead of at night.
The online data revealed that despite Story of the Year's lunar rotation, its single ``Until the Day I Die'' ranked among the top 20 most popular downloads, alongside tracks from Blink-182, Audioslave and Hoobastank that received significantly more airplay. And when the band performed in a city, ``we didn't necessarily see the phones blowing up at radio, but we saw download requests for the song skyrocket as they went through,'' said Jeremy Welt, Maverick's head of new media.
Armed with this data, Maverick fought for more airtime at radio, which translated into more CD sales. Story of the Year's album, ``Page Avenue,'' just went gold, selling more than half a million copies....
Folks keep asking why more artists aren't breaking into the mainstream through P2P. I think this may provide some answers -- they are; the record labels are just taking all the credit.
[ed-Sorry for the lack of links/source. This was sent via email. I think it's from Variety.]
Update:here is the link to the Variety story, although a subscription is required to see the whole thing.
By MEREDITH AMDUR
Is Hollywood to blame for the music industry's woes?
According to market research group NPD, it's not just illegal downloads of electronic MP3 files that are eating into traditional music sales but the ever-increasing popularity of DVD movies.
In a survey of consumers who admitted to spending less money on CDs in the last year, some 21% blamed an increased spending on DVDs for their reduced appetite for CDs. Only 15% of respondents blamed their DVD habit in the same survey a year and a half earlier. NPD noted that the increase was the largest single jump in its survey. At the same time, the number of consumers who cited downloading as their excuse for lower CD spending fell from 30% in 2002 to only 21% this month.
NPD, which just finished up a study into understanding why people are buying less music, said the chief reasons remain the high price of CDs (48% cited) and the general quality of content available recently (42%).
One household entertainment budget
While music and movies are vastly different pastimes, NPD analyst Russ Crupnick argues that the decline in CD sales is increasingly attributable to the rapid rise in DVD sales. (Similarly, many publishers believe the lure of inexpensive DVDs, available in big chains like Borders, has eaten into book sales.) Researchers note that purchases and rentals of movies and music, along with videogames, typically come out of the same household budget for entertainment, so an increase in one can have a direct impact on the other.
"As DVD prices fall, especially for catalog titles, the price-to-value proposition only gets higher," noted Crupnick.
NPD reported that the average full length CD sold for a still-hefty $13.47 in the fourth quarter of last year. This price represents a fairly modest 2% reduction from the same period in 2002 and 4% down from 2001. Many DVD movies can be purchased for $15 or less.
BetaNews reports on a new form of DRM from Microsoft that will be part of MSN Music and tightly integrated with MS Windows (Microsoft Remakes DRM for MSN Music Service). This new form of DRM is a secure clock technology code-named "Janus," which
enables songs distributed under a subscription model to be transferred to portable devices, with a built in "time bomb" that enables songs to expire in the event that a customer's subscription lapses.
Although Janus has been publically discussed since at least June 2002, observers hadn't expected it to come out so soon. Undoubtedly, MS is feeling a little pressure from Apple's iTunes.
Expect to see agenda-laden Flash games, spoofed websites and commercials, George Bush verbal blooper tapes, videos of John Kerry debating himself, and nasty-funny creations of all types, from supporters of both sides (or all three, if you count Nader).
The Korea Herald has a rather disturbing story to report with regard to innovation in Korea (Music industry emits static on MP3 phones). Apparently, developers of cellphones in Korea have begun adding MP3 capability to the small, ubiquitous, portable devices. An obvious enhancement for cellphones, I would think. However, the Korean equivalents of the RIAA were upset by this and have essentially forced Korean cellphone manufacturers to reduce the quality of playback for non-DRM'd music:
After fierce debate over the new mp3 phone, the two parties have found some common ground by agreeing that MP3 phones can play illegal music files, but only at low sound quality.
....However, the controversy is still raging with Samsung Electronics insisting that record producers should eventually let them have at least 96kbps.
Hopefully, the RIAA won't try something like this in the States.
A trendy topic of late seems to be that with the improvements in search technology and the increasing prevalence of message boards, blogs and other ways to express yourself on the Net, people will increasingly be able to find out what you've written and done in the past. Even law firms have apparently begun to take an interest in their employees' or candidates' online acts.
My first reaction is one I have over and over in Internet law... firms--did you really think your employees never talk about the firm and its goings-on? Did you really think your candidates had no opinions other than those they glibly recited in their interviews and fancy lunches? Lawyers--did you really think the firm would never check your background? Did you really think the firm wouldn't notice if you're writing about it? My second reaction is also typical: Firm--get a thicker skin. Lawyers---own up to your past and, today, if you're ashamed for someone to read what you're saying, why are you saying it in the first place? I know there are important reasons for anonymity, but I also think far too many people use "privacy" as an excuse to just avoid standing up for what they believe, or to get away with things they know are criminal, embarrassing or just plain icky.
The Scotsman, "Scotland's National Newspaper," is all shook up about the sad tale of a backwater Scottish town that believes it is the birthplace of Elvis Presley's forefathers (When Copyright is King). The town thought to attempt to promote itself as a place of pilgrimage for the King's fans. Unfortunately,
Within 24 hours of the discovery, Elvis Presley Enterprises had issued a reminder that it owns all the intellectual property (IP) rights in his name, his image and his songs, including the trademark of the very words Heartbreak Hotel.
The article goes on to detail how tightly EPE controls the King's copyrights, trademarks and right of publicity (for someone 26 years dead).
Infringements of our copyright does not include where bloggers quote from and link back to our original story, or where sites display a headline and link back to reuters.com. We are very comfortable with these practices.
Jeff Jarvis has an excellent idea for another use of Larry's work - the annotated version (Free debate). Those familiar with my writings know that I am a huge fan of annotations, which I also call recipe files or client-side remixes. Jeff asks,
But wouldn't it be great to take a book and break it open at the spine for some back-and-forth?
Why not turn a book into a conversation?
Why not, indeed? Lessig would certainly favor such a concept, I believe. And if he didn't, too bad, the book is already licensed for such a thing. Poor arguments can be pointed out, but so can additional evidence on behalf of particular arguments. In a way, Solum's work is a step in this direction. Who will be the first to add Solum's book club to an edition of Lessig's book? (I don't see a license on your blog, Solum, is that okay with you?) Wouldn't it be great, also, to append all the reviews, negative and positive, as well as Lessig's promotional interviews to the book for easy future reference?
Jeff also notes that many other books would benefit from such annotations. Of course, some of the authors Jeff cites as being chief beneficiaries, such as Ann Coulter or Michael Moore, probably wouldn't like to have their books torn apart like that.
As many readers might know, there are three ongoing concurrent challenges to the recently passed Partial Birth Abortion Ban in court these days. In fact, trial in the San Francisco Case was scheduled to begin today.
Part of the issues before the courts is whether or not so-called "partial birth" abortions are ever medically necessary to preserve the health of the pregnant woman. (The Ban does not include any exception for such circumstances). Congress found that such procedures were never medically necessary. Planned Parenthood and other abortion providers disagree. As part of its preparation for trial on this issue, the U.S. Gov't sought to subpoena the medical records of women who have had the procedure. PP and the other providers sought to quash the subpoena. The district court in Chicago quashed the subpoena and the Government appealed the the 7th Circuit for reversal. Just the other day, the 7th Circuit handed down their opinion (penned by the well-known hand of Judge Posner) affirming rejection of the subpoena.
While the opinion is interesting for any number of other reasons, I found Posner's reference to Internet privacy (or the lack thereof) as a reason particularly interesting:
This is hardly a typical case in which medical records get drawn into a lawsuit. Reflecting the fierce emotions that the long-running controversy over the morality and legality of abortion has made combustible, the Partial-Birth Abortion Ban Act and the litigation challenging its constitutionality—and even more so the rash of suits around the country in which the Department of Justice has been seeking the hospital records of abortion patients—have generated enormous publicity. These women must know that, and doubtless they are also aware that hostility to abortion has at times erupted into violence, including criminal obstruction of entry into abortion clinics, the firebombing of clinics, and the assassination of physicians who perform abortions. Some of these women will be afraid that when their redacted records are made a part of the trial record in New York, persons of their acquaintance, or skillful “Googlers,” sifting the information contained in the medical records concerning each patient’s medical and sex history, will put two and two together, “out” the 45 women, and thereby expose them to threats, humiliation, and obloquy. As the court pointed out in Parkson v. Central DuPage Hospital, supra, 435 N.E.2d at 144, “whether the patients’ identities would remain confidential by the exclusion of their names and identifying numbers is questionable at best. The patients’ admit and discharge summaries arguably contain histories of the patients’ prior and present medical conditions, information that in the cumulative can make the possibility of recognition very high.”
And check out this rather empathetic section:
Even if there were no possibility that a patient’s identity might be learned from a redacted medical record, there would be an invasion of privacy. Imagine if nude pictures of a woman, uploaded to the Internet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her. She would still feel that her privacy had been invaded. The revelation of the intimate details contained in the record of a late-term abortion may inflict a similar wound.
An interesting new study from Harvard and UNC economists finds that file-sharing may not, after all, significantly affect CD sales:
A longstanding economic question is the appropriate level of protection for intellectual property. The Internet has drastically lowered the cost of copying information goods and provides a natural crucible to assess the implications of reduced protection. We consider the specific case of file sharing and its effect on the legal sales of music. A dataset containing 0.01% of the world's downloads is matched to U.S. sales data for a large number of albums. To establish causality, downloads are instrumented using technical features related to file sharing, such as network congestion or song length, as well as international school holidays. Downloads have an effect on sales which is statistically indistinguishable from zero, despite rather precise estimates. Moreover, these estimates are of moderate economic significance and are inconsistent with claims that file sharing is the primary reason for the recent decline in music sales.
We would certainly be remiss if we didn't (also) point you to AKMA's project to spread Free Culture to the four corners of the Internet. The good reverend is in the process of recruiting volunteers to record portions of the book and make them available as digital audio files; sign up to record one of the remaining portions here.
The Berkman Center has released a 100-page case study of the iTunes Music Store, discussing the laws and treaty obligations around the music store, including its DRM system, the triple-pun FairPlay. The study is part of their Digital Music Project and the principal investigator is Terry Fisher, of compulsory licensing fame.
(Unfortunately, the study itself seems to be unreadable in Mac OS X's Preview for some reason. It works fine in Adobe's PDF reader.)
If you're more interested in the technical rather than legal aspects of FairPlay, Jon "DeCSS" Johansen has reverse-engineered it for VLC, so that you can play your songs on GNU/Linux, Windows, OS X, or whatever other system you like as long as you have a Windows system or iPod.
Homework assignment: use Johansen's C code and additional research to write up an English explanation of how the FairPlay system works. Extra credit: include a security analysis.
I want to clarify that my analysis had very little to do with bloggers who copy headlines. Frankly, I'm one of the few bloggers who almost always uses the titles of stories and posts when I link to them. Look at the above paragraph, through my archive here, Ernest Miller at Copyfight, or my personal blog The Importance Of .... To the extent that I implied bloggers would not get a different analysis, "perhaps," I was expressing my cynicism about the courts and copyright.
As I note in comments to Wendy's post, bloggers are almost certainly situated differently than the case that was apparently decided in Japan. A fair use analysis of a blogger copying newspaper headlines would almost certainly be found to be a fair use. Without going into all possible details, for example,
1) What is the character of the use?
Goes for the defense. Blogging is almost always an example of a core fair use, such as criticism, comment, news reporting, or teaching, and is frequently part of scholarship and research. For most bloggers, the use is also non-commercial.
2) What is the nature of the work?
Goes for the defense. First, there is a question as to what the work is. Generally, bloggers are commenting on the article of which the headline is a title, not simply the headline itself (though sometimes that happens too - see, Wonkette Gay Marriage: Way to Drive the Point Home). This is unlike the case in Japan in which one could argue that it was the headlines themselves which were being used as the content. In the case of the headline as title, the copyright is virtually nonexistent.
3) How much of the work is used?
Goes for the defense. Again, generally the work will be the article, not the headline. The headline is a very small part of the article. Unlike the case in Japan where the headlines were being used as content and the entire headline (numerous headlines) were being copied.
4) What will be the effect of the use upon the potential market for or value of the copyrighted work?
Goes for the defense. Generally, the market effect of commentary and criticism is not really relevant.
Also, as Wendy points out, if a blogger is posting an RSS feed of headlines on their webpage, the fact of the RSS feed indicates an implied license to use them. I'm working on a longer posting about RSS and copyright, but bloggers shouldn't feel chilled to copy headlines for their blog. On the other hand, I still wouldn't feel confident advising a commercial portal to feel entirely free of liability in stripping headlines from a newspaper that told them to knock it off.
The answer, according to tunA is an enthusiastic "yes"! I apparently missed the news of this fascinating new software application when it first became public late last year, but I really think this is an innovative and cool idea. According to the project's home, Media Lab Europe, tunA,
is a mobile wireless application that allows users to share their music locally through handheld devices. Users can "tune in" to other nearby tunA music players and listen to what someone else is listening to. Developed on iPaqs and connected via 802.11b in ad-hoc mode, the application displays a list of people using tunA that are in range, gives access to their profile and playlist information, and enables synchronized peer-to-peer audio streaming.
Social sharing of music with strangers without disturbing people around you. How cool is that? It could certainly make the morning commute more interesting or add some spice to cubicle life. People complain that walkmans isolate people from their environment. Now walkmans can help people connect to others.
The next step: using e-ink digital readers to virtually read over other commuter's shoulders.
Dan Gillmor, a fellow I generally agree with, has written a pean to the decades-long president of and lobbyist for the MPAA, Jack Valenti, who is soon to retire (Valenti, Right and Wrong, Is a Man to Respect). Gillmor's article finds much to admire in the man, finding him a fervent defender of the First Amendment and personally charming. That I grant, but much of the characterization is over the top.
Okay, I'll admit it--I read this article because of its title: Copy Fight. But I'm passing it on to you because it's a terrific interview on digital copyright issues with Larry Lessig and Ken Waagner--the man who oversees all things online for the band Wilco. Waagner made a streaming version of Wilco's "Yankee Hotel Foxtrot" available online three years ago. That's three years and a half a million albums ago.
Fellow Copyfight-er Ernest Miller points out that Orrin Hatch-of-the-opportunistic-anti-porn-invective appears to have forgotten that pornographers are copyright holders, too. And that the proposed PIRATE Act, then, makes them very odd...bedfellows.
Frank Field, disgusted at the recording industry's latest "solution" to a problem it's "too lazy to put real thought into solving," takes Ernie's observation to the next logical step: "Maybe we can ask Larry Flynt to call a press conference to thank Senators Hatch and Leahy for their efforts? Any other pornographers out there who would make excellent poster children for this initiative?"
AP had an interesting article the other day on the declining number of professional country songwriters in Nashville. The article is mostly a lament about the loss of a culturally significant and important profession, but it also speculates on reasons for the decline, including corporate mergers, media consolidation, and music piracy:
Herbison puts much of the blame on radio consolidation, which he says has made it tough to get airplay and the royalties that come with it. Nine years ago, he said, there were 5,400 country music stations, compared with 1,700 today. The stations' music playlists have also been shrinking to make room for more commercials and talk shows, he said.
"Three people program 85 percent of all country stations in America," Herbison said. "They sit in office towers and don't know George Jones from George Clooney."
Songwriter royalties from CD sales are about 8.5 cents per song; that's usually split between the writer and the publisher. Often, the songwriters' cut is even less because he has to share it with a co-writer.
The big money for most successful songwriters is from performance royalties, which are paid when a song is played on the radio.
"The biggest lick a writer can make is having a single that does good on radio," said Fred Knobloch, who has written songs for Faith Hill, George Strait, Ray Charles and Trisha Yearwood. "You want singles, and you want them bad."
But there are fewer big record labels to release and promote those singles. A series of mergers has left only five major music companies: Universal, Warner Bros. and EMI, plus Sony and BMG, which are planning to merge.
Many in the industry - writers, producers, musicians, publicists - have lost their jobs in the shuffle.
"I get at least a call a week, sometimes two, from people who had jobs in this business a year ago that are looking for work," Knobloch said.
...
As for music piracy, or downloading music for free from the Internet, everyone believes it's a problem, but not the worst one. Ultimately, many predict, the technology will help songwriters and performers more than hurt them. The challenge now, they say, is for the record companies to catch up to changing technology and consumer demand.
As a follow up to Friday's Ditherati about the PIRATE Act, editor Owen Thomas sends a helpful clarification: "Friday's Ditherati incorrectly identified Orrin Hatch's political affliliation as '(D.-RIAA).' It should have been '(R.-MPAA).' My apologies to all parties concerned."
You may not agree with the recording industry's litigation campaign against people who use peer-to-peer file-sharing networks. No matter. Under legislation introduced Thursday by Senators Patrick Leahy (D-VT) and Orrin Hatch (R-Utah), you'd still have to pay for it.
The legislation in question is the Protecting Intellectual Rights Against Theft and Expropriation Act (PIRATE Act). It would allow federal prosecutors to bring civil copyright infringement suits--meaning a lower burden of proof and no need to show that a defendant had knowledge of knowledge of/willful engagement in her wrongdoing.
"For too long, federal prosecutors have been hindered in their pursuit of pirates, by the fact that they were limited to bringing criminal charges with high burdens of proof," said Senator Leahy in a statement introducing the bill. "In the world of copyright, a criminal charge is unusually difficult to prove because the defendant must have known that his conduct was illegal and he must have willfully engaged in the conduct anyway."
Two million dollars are earmarked, four U.S. Attorney's offices must set up a "pilot" program, and the Department of Justice is required to file annual reports with the Judiciary committee to identify how many civil actions have been brought.
Okay--so the recording industry rejects voluntary collective licensing, implying that it's a compulsory system and therefore tantamount to the dreaded government solution to a private sector problem. Yet it supports the PIRATE Act--a government solution that would have taxpayers paying for lawsuits, not music.
Says Sharman attorney Phillip Corwin over @ Wired: "It's unfortunate that the entertainment industry devotes so much energy to supporting punitive efforts at the federal and state level, instead of putting energy into licensing their content for P2P distribution so those same people could be turned into customers."
Sure is.
More (reg. req.) from David McGuire @ the Washington Post.
Apex Digital, makers of famously inexpensive DVD players ($30!), has just announced the final specs for its soon-to-come, potentially revolutionary new PC Game Console/DVD player/PVR (Apex Digital Finalizes Spec for DVD Player/PC Game Console). This will be the first major consumer device that really pushes convergence to the current, practical limits and, at a suggested retail price of $499, it seems pretty well-priced. It may not get everything right (first generation devices usually don't), but who knows? See the product home page (which hasn't been updated with PVR information): ApeXtreme - PC Game Unit / DVD Player.
What might make this device especially cool for copyfighters is that APEX devices have also been famously hackable (Apex/Hiteker DVD Hacking Pages). How hard will it be and how long will it take for hackers to figure out a way to do all sorts of cool things with the capabilities this device has? How long til someone gets the device running Linux or ports MythTV? I know I'll be eagerly waiting.
Jeff Jarvis had a very interesting announcement on his blog yesterday, he is hoping to start a "Center for Citizens' Media" at a university, possibly NYU (The Center for Citizens' Media). The basic idea is to create an institution where bloggers and traditional journalists can share ideas and educate each other:
Citizen journalists can benefit from education in some of the tricks of the trade (e.g., how to avoid libel, how to file freedom of information requests, how to write a killer lede). I'm not saying that bloggers need to be like big-media journalists but I am saying that media must to embrace this new wave of journalists.
Journalism students can, for the first time in history, think and act like entrepreneurs (see Gawker, Gizmodo, Engadget). They can use weblogs to create a body of work that will get them hired. They must learn how to interact with their publics in new ways.
Big media needs to learn how to interact with and serve and, most importantly, listen to the citizens formerly known as their audience.
News sources -- in politics, government, business -- need to learn how to relate to citizens who can now, finally, speak to them.
This is a great idea ... and I'm not just saying that because I hope the Center keeps me in mind when they start hiring (IP/Free Speech Knight Foundation Blogger-in-Residence, yeah, that's the ticket). Seriously, the four constituencies Jeff identifies are important ones and would certainly benefit from institutional support. For many reasons I think the last two may require more formalized, academic-style support than the first two. All those institutions concerned about the future of US media should seriously consider Jeff's proposal.
Apparently there has been some grousing that the free, downloadable version of Larry Lessig's new book, Free Culture is in a proprietary format, namely PDF. Larry responds to the criticism here: Free Culture Followups. He makes the obvious point that the book has been released in one of the most free of the Creative Commons licenses, attribution, non-commercial, which means that anyone can port the PDF to another format as long as they leave Larry's name on it and aren't selling it.
Well, someone has already taken advantage of the license. Blackmask, an excellent source of free, online books (I dig their pulp fiction collection - the genre, not the movie), has ported Free Culture into other formats.
Ernie does a fair use analysis of the copying of headlines (below) -- an issue of more than passing interest to bloggers and blog search tools that routinely copy headlines or extract them from RSS feeds (as the Trademark Blog picks up). Defenses of implied license for some uses aside, I think the headline republishers have a stronger case than Ernie credits, because copyright does not protect titles, short words, and phrases (see Copyright Office Circular 34). Thanks to that exclusion, librarians don't have to rely on fair use to list books in card catalogues or their online equivalents, and others than copyright holders can prepare indexes directing readers where to find more information. If the subject matter is unprotectable or only slightly protected in the first place, or if the use is "transformative" -- indexing rather than publishing articles, the "effect on the market" is less important.
The irony is that the ombuds position was supposed to contribute to enhanced accountability. The delays in filling the position, however, lead to a lessening of trust and to diminished accountability. The appointment of an ombudsman might also compensate for the fact that the other “accountability” processes, independent review and reconsideration, are either not functioning or barely functioning. The ombuds position was a new idea for ICANN and I had hoped that it would help greatly in building trust in the legitimacy of actions taken by ICANN. Unfortunately, not only is there no ombuds position but there is no independent review process either.
The agenda for Thursday's U.N. meeting includes a discussion titled "Accumulated Concerns, Perspectives, and Exploring How We Can Cooperate." Domain names, technical standards, network security, intellectual property, privacy, e-commerce, free speech, taxation, and "cultural and linguistic diversity" also are listed as topics for discussion.
I try not to be paranoid, but the concept of the UN deciding issues related to free speech sends shivers down my spine. And I'm not too confident about giving the UN more purview over the other issues either.
Japan's English-language Mainichi Daily News reports that a lawsuit alleging copyright infringement for a website that copied newspaper headlines was dismissed (Court denies copyright for Web news headlines). The district court judge ruled that headlines were not creative expression:
"These headlines were created within 25 characters, and either stated objective facts, or used only very short qualifying words, and cannot be described as creative expression," the ruling said.
I know nothing about Japanese law, so I can't comment on that, but it is interesting to consider how such a case might be decided in the US. I'm not so sure a US decision would come out the same way.
For example, the bar for finding creativity is quite low. It depends on the style of headline somewhat, but likely headlines rise above that bar. Heck, the American Copy Editors Society awards prizes each year for the best headlines: ACES 2003 Headline Contest: Winning Entries. So, I don't think the "it isn't creative" line would work.
One could argue that the copying was "de minimis." This is a copyright doctrine which is based on the adage, "the law does not concern itself with trifles," meaning that very small or insignificant amounts of copying don't really count. The law here isn't very clear, but I don't think this defense would fly in this case. It might fly for a headline here or a headline there, but routinely copying every headline is probably not de minimis.
This leaves that old standby, the fair use defense. Without going into an exhaustive discussion, the four factors:
1) What is the character of the use?
Not a good one for the defense. This is pretty obviously a commercial use by the internet service firm. Might be different for a blogger, perhaps.
2) What is the nature of the work?
Probably goes for the defense. Generally, copyright infringement for phrases is pretty thin. The shorter the phrase, the more difficult it will be to distinguish the idea from the expression, especially as the headlines will be tied to some factual circumstances. Unless the headlines are routinely highly imaginative, they most likely tend much more towards the factual.
3) How much of the work is used?
The amount taken and the length of the headlines will be a major, though likely not a decisive factor. It will probably go in favor of the defense.
4) What will be the effect of the use upon the potential market for or value of the copyrighted work?
This will be the critical factor, as usual, I think. I could see it going either way. Even though the headlines would be more likely to spark interest in the full articles and send traffic to the newspaper, there is probably a market for a headline syndication service.
A commenter over at Slashdot has calculated, given the current odds of being sued by the RIAA for file-sharing, how much you would need to save every month to pay off your eventual settlement.
The magic number? $0.01483 per month. Even assuming the RIAA stops settling and gets $1,000,000.00 judgments against every defendant, the number only goes up to about $5.00 per month.*
* Gee, haven't we heard that amount mentioned somewhere else recently?
Here's the text:
Given your numbers an illegal file sharer can calculate their monthly financial risk from RIAA lawsuits.
Your numbers are:
Time (T)=8 months
Probability (P)=1/25290
Cost (C)=3000
With monthly financial risk = (P*C)/T, if each month you put away 1.483 cents, you would on average have enough money to pay your settlement fees by the time you were sued.
Now assume that the RIAA gets more aggressive and settles less, and through the courts gets a $1 million verdict in 100% of the people it sues (1977 people / 8 months). The monthly financial risk then is $4.94 a month.
Cartoonists are up in arms about Comictastic, a new program for OS X that's essentially NetNewsWire of comics. The interesting thing about Comictastic is its AutoFind technology, which can take a URL and automatically find the comic and its archives.
Then, Comictastic will automatically check for a new comic every day (and optionally some of the old comics and present you with a list of updated comics. Each comic also has a calendar so you can easily browse through your personal archive of old strips.
Cartoonists are, predictably, upset at the development, which indeed provides a better experience to users while eliminating the ads and merchandise links. (For his part, the author says he'd be happy to ad support for ads and other plugs, but that he's not stopping development of the software.)
And so the technology vs. copyright battle plays out yet again, in another field.
"Apple's (market) share will go down if they continue to do this. The only way to presently put songs on an iPod is to (buy) them from iTunes," Glaser said, referring to downloads purchased from online music stores.
Of course, Real fails to note that iPod supports non-DRM'd MP3s. How about that?
Doesn't anyone get that the ongoing DRM Babel is only slowing market adoption and doing very little to inhibit piracy? And, oh yeah, even if one proprietary DRM scheme does manage to dominate the market, are copyright owners really going to be better off with some technology company that has a stranglehold on one layer of the distribution stack?
Larry Lessig's new book, Free Culture, is going to be released next week and the reviews are starting to come out. Unfortunately, Larry didn't see fit to send me a review copy (hint, hint) so you won't get my take on it until I have a chance to read the free online version when it is released (and reading books online is a pain). Ah, well. The first review was an extremely negative (and clueless one) from Forbes (reg. req.) (The Trouble With Larry). Larry responded here: Talkback: Manes. Now, the Washington Post (reg. req.) has a professional reviewer take on Larry's latest (Copyrights and Wrongs: Damming the Flow of 'Free' Information). This is a real book review and will help the decision-making process for those who, for budgetary or other reasons, aren't sure they want to buy it.
via JD Lasica, who promises his review within a week
All the original research articles in journals published by BioMed Central are immediately and permanently available online without charge or any other barriers to access. This commitment is based on the view that open access to research is central to rapid and efficient progress in science and that subscription-based access to research is hindering rather than helping scientific communication.
The more important news is that Creative Commons is launching what may eventually be a sister organization that will focus on the sciences (Science Commons). Work will not be limited to copyright, but "will delve into both legal areas (patents, data) and subject matter (biomedicine) outside the scope of our current organization." All I can say is, "wicked cool." If you have talent and experience in these areas ... they're hiring: Job Announcement: Science Commons Executive Director.
Thanks to the once-powerful but now-defunctcopyright renewal requirement, George Romero's horror classic Night of the Living Dead has successfully entered the public domain. Archive.org has graciously hosted the film for any and all to download, rip, mix, and burn to your heart's content.
In an era where copyrights seem to come back from the dead to inhibit the creativity of the living, it's not without some sense of irony that one of the first "modern" cult films to enter the PD is about zombies who come back from the dead and eat the brains of the living.
"Cypherpunk," a frequent poster on copyright-related weblogs, has the following to say in a response to Jason's announcement about the new Copyfight over @ LawGeek:
"I'm skeptical that you'll be debating, at least not with each other, kenetically or otherwise. You guys are a group mind. Have you ever disagreed with [eachother] on any issue?"
Jason's response was to point out that he and Ernie disagree all the time about IP issues and peer-to-peer technology, but often in private--and that this is part of the reason why he thinks Copyfight will make for an interesting, more public discussion space.
Ernie himself then posted a reply: "Cypherpunk, I'm surprised at you. You know I march to my own drummer and frequently criticize the position of EFF, for example."
As did Wendy: "Ernie and Jason are wrong. We always agree on everything."
On a serious note, we do expect to have respectful debate here--the kind that helps us to clarify our own positions as well as to gain perspective on the "other side" of a particular issue. Beyond that, we hope you (Cypherpunk and others) weigh in as well.
The change would make it legal for someone who owns a legitimately obtained CD to make one copy for their own private use. Under the widely flouted current law, all copying, even for personal listening, is banned.
There are some interesting quotes from major members of the recording industry in NZ:
Sony NZ managing director Michael Glading said he was totally opposed to the move, which he believed would "open the floodgates" to unrestricted piracy.
No reference to serial killers here, but alarmist nonetheless. And what planet has Glading been living on? Hello ... P2P filesharing ... gates already open ...
"At the end of the day, you're sending a message that it's okay to copy, and that is going to kill our business. It's taking away people's rights to earn a living, and that's horrendous."
They just don't get it. By trying to prevent all copying, copyright maximalists undermine copyright law as a whole. Personal-use copying causes no harm, but is extremely convenient for the consumer. By making regular consumers into copyright criminals for personal-use copying, overall respect for copyright is substantially diminished. The same thing is happening with file sharing. By claiming that all file sharing is bad, even with close friends and family, copyright maximalists are hurting their own cause (Share with Friends, Not Strangers).
He [Glading] said the proposal was inconsistent. "They're not saying it's okay to copy Lord of the Rings from one DVD to another, but it's okay to copy Brooke Fraser from one CD to another. It's farcical."
Well, you know, he does have a point. Of course, I can't imagine this argument being made by a US recording industry leader except ironically. Still, this argument would only seem to point the way towards a general right of personal use copying. After all, NZ law already provides for backup copies of computer programs.
One of the interesting aspects of copyright law is that you cannot be guilty of copyright infringement if you independently create the exact same work. This doctrine of "independent creation" means that if I write a song autonomously that is the same as a song someone else wrote, I can make as many copies of my independently created song as I want without infringing the copyright of the other person's song. Of course, in practice, things aren't that easy for those who want to raise a copyright infringement defense of "independent creation." The fact that one work is very much alike, or even identical to another, would likely give rise to an argument of "probative similarity" or "striking similarity." Either of these would have a tendency to shift the burden of proof to the defendant to show that they could not possibly have copied the allegedly infringed work.
I recently came across an example of what seems to be a case of "independent creation" in which it would likely be possible to find experts who would see "striking similarities" between the two works (The Strange Synchronicity of "The Last Breakfast"). The two works are both parodies of Leonardo Da Vinci's famous fresco The Last Supper. Instead of the last "supper" the parodies depict the last "breakfast." Each uses common breakfast trademarks:
The similarities are incredible. Both pictures have Captain Crunch as Judas, both have Snap, Crackle and Pop, The Trix Rabbit, Tony The Tiger, Lucky The Leprachaun and the Quaker Oats Man. Both have Aunt Jemimah, although Aubrey's painting has her as the Christ figure while Detzner's has Mrs. Butterworth in that role. Still, it is amazing both have a female advertising icon in the center.
Coincidence? According to the artist of the temporally second work, yes.
Bway.net is hoping to lure RIAA wary customers with a new anonymous DSL service dubbed AnonDSL. The company says the service is "the ultimate tool for protecting your identity from tracking by the RIAA, MPAA or anyone else" because it makes your "online activities untraceable." According to the product's FAQ, Bway claims users "are entitled to privacy on your Internet connection" and Bway has "created this service to meet that need".
...
Unlike these other services [like AnonX], Bway.net says their new service doesn't make use of proxy servers. While the company won't go into specifics, Bway's Joe Plotkin informs us it's "a combination of dynamic addressing and our decision not to retain logs on this service." Bway likely assigns a special pool of rotating IP addresses to users who subscribe to the service, but doesn't keep logs of the leases.
When the RIAA or Lars Ulrich comes knocking, Bway can only confirm that the user was one of their customers, but not which customer; with no amount of legal pressure able to change that. Plotkin notes the company simply "cannot supply information we do not possess."
An interesting approach, to say the least. The RIAA's current war against file sharers depends on the ISPs maintaining the data necessary to unmask the end user based upon correlating IP addresses with his or her historical usage. Growth of services like this would certainly push the RIAA either to improve its evidence gathering methods or advocate for some kind of mandate that ISPs log their users' IPs and maintain those logs. The first may present both fiscal and technological challenges to the RIAA; the second would create a scary precedent for undermining online anonymity.
Mike Godwin @ PK has released his "Everything You've Always Wanted to Know About DRM But Were Afraid To Ask" 40-page primer. A free PDF is available here.
I haven't read it yet, but Mike's a smart lawyer and knows his tech stuff, so I expect this will be a good read. A quick skim of the contents shows that it covers both encryption and watermarking systems as well as DRM's application to P2P nets. Mike concludes with his own vision of a "humane" DRM world with minimal government regulation and negligible effects on public domain materials. I'll post more after I finish my first detailed pass. If you've already plugged through it, feel free to post your thoughts.
First there was Eldred v. Ashcroft, in which Internet publisher Eric Eldred challenged Congress's power to extend the term of copyright seemingly ad infinitum--and failed. Then there was Golan v. Ashcroft, in which music conductor Lawrence Golan continues to fight Congress's "restoration" of copyrights to works that have passed into the public domain.
Now, there is Kahle v. Ashcroft, in which two archives--Brewster Kahle's Internet Archive and the Prelinger Film Archive--have launched a challenge arguing that the Berne Convention Implementation Act (BCIA) and the Sonny Bono Copyright Term Extension Act (CTEA) together create an "effectively perpetual" term with respect to works first published after January 1, 1964 and before January 1, 1978, thereby violating the Constitution's Progress Clause.
"This case is about freeing culture from unnecessary and harmful regulation," said Chris Sprigman, CIS fellow and lead plaintiff attorney in the case. "We will focus on a series of recent changes to copyright law that have failed to benefit copyright owners, but have instead created serious burdens on those who create digital culture."
Greetings, all, from the brand new Copyfight--now a group-authored weblog featuring the cites & insights of an extraordinarily talented crew. Joining me here are:
For many of you, these folks need no introduction. They're the people doing the real-world work in the battle to restore traditional balance to intellectual property law--at the front lines of what I've been calling "the copyfight."
Elizabeth and Jason work on cutting-edge legal issues in pursuing litigation @ EFF and Stanford's CIS. Both have been part of the legal challenges to the Sonny Bono Copyright Term Extension Act, which extended the term of copyright by 20 years.
Jason is now working on a number of cases at EFF, including engaging the ongoing fight against DirecTV--the satellite TV giant seeking to establish an unfortunate "guilt-by-purchase" theory in its campaign against people who buy smart-card technology.
Elizabeth has most recently been working on Golan v. Ashcroft and representing Open Source Yoga Unity, a group of yoga instructors challenging the claims of Yogi Bikram Choudhury that he can copyright a yoga routine and sue other yoga instructors for teaching it.
Increasingly well-known in the blogosphere and author of his own Corante weblog, "Importance Of...," Ernest is a fellow at Yale's ISP and former Editor-in-Chief of its must-read blawg, LawMeme. Last year, he testified before the U.S. Copyright Office for an exemption to the controversial Digital Millennium Copyright Act (DMCA).
Wendy, an IP attorney @ EFF, was key in getting Openlaw--an experimental project that helped the Internet community contribute substantively to the Eldred challenge--off the ground. A longtime Berkman Fellow, Wendy is founder of the innovative Chilling Effects Clearinghouse, which exposes the ways that intellectual property law is abused to silence legitimate speech.
Needless to say, I'm extremely pleased--and honored--to have this group aboard here at Copyfight. It will be exciting to see what discussions this mix will yield. I invite you to tune in, and, if you're so inspired, to use our comments feature to join the conversation.
It's only a certain desire for euphony in the suggestiveness of our otherwise arbitrary marks that makes us think we need certain names for our services. I look at language and I see something adaptable and fluid. I'd rather ask our natural talent for creative wordplay to carry a little more water and cause a little less disruption by evicting incumbent registrants from their domains.
C|Net News' Declan McCullagh reports on a potential ".XXX" top level domain (The battle over triple 'x'). Though such a domain would probably be a good thing (the more TLDs the better, I say) the real problem is that governments (including the US) might require adult websites to use the ".XXX" domain, which has obvious implications for freedom of expression.
And be ready for Sony to move to the domestic market soon enough, bringing more incompatability fun with it. I thought Sony was working with Phillips on DRM that anyone could license - a Phillips executive even said: "The electronics industry recognizes that Microsoft is a formidable player, but consumer electronics makers do not want to become dependent on Microsoft. They need an interoperable and independent system, DRM is an accelerator which will boost digital sales of media, because it will convince media companies their content is protected. It should not be a competitive weapon." Sony doesn't seem to actually buy that. They're trying to set the standard, and they want control over the devices.
Elsewhere, and even in pre-Internet trademark law, we've solved these problems by distinguishing among namespaces -- different realms in which the same name can have different meanings. Computer programmers recognize that identically named variables can have different values in different scopes; trademark lawyers of 50 years ago recognized that a "Dawn Donut" in New York didn't interfere with "Dawn Donut" in Michigan. The advent of the Internet should make us more careful in scoping our references, not throw sense out the window by giving contested domain names to the highest bidder.
Says Gleick: To cope with the dynamic, entangled, variegated nature of our information-governed world, perhaps the law just needs to relax -- loosen the cords, instead of tightening them.... The law needs to prevent miscreants from pretending to be people they're not or from passing off spurious products -- but that is all. BODACIOUS-TATAS.COM may be unsavory, but it was not fooling anyone; it was not trying to impersonate the House of Tata; its wares were exactly as advertised.
My EFF colleague Ren Bucholz has created a picture that easily beats a thousand words for explaining how a voluntary collective licensing system such as the one we propose might work. The best part is that it's meant to serve as a virtual whiteboard of sorts--courtesy of a Creative Commons license, you can feel free to wipe away bit and pieces, add others, and repost at will. Or as Wendy puts it, "Don't think sampling will work? Add a few 'bugs' to the picture. Like hardware levies? Add them in. Then, please share what you rip-mix-burn."
The news in a nutshell? In the wake of Janet Jackson's "wardrobe malfunction," the FCC has reversed its previous position on Bono's use of the word "fucking"--as in "this is really, really fucking brilliant." This use has now been deemed "profane."
Writes Ernie:
Although 18 USC 1464 has always given the FCC jurisdiction over "obscene, indecent or profane language," the FCC has never based any fine on "profane" language, preferring to rely on indecency rulings. Given the newness of this interpretation of the law and the vagaries of the definition of "profane," this might be the most far reaching of the FCC's recent assaults on freedom of expression.
[...]
"Profane" can't be about blasphemy, that would raise all sorts of freedom of religion issues, but it has to be distinct from "indecent." I think that leaves hate speech. Seems to me the FCC has decided that it wants to regulate the broadcast of hate speech.
Donald Trump is seeking ownership of a brand new property. Nope, not another skyscraper. He wants the catchphrase from his new hit show, The Apprentice. That's right--Trump wants to own the words "You're Fired."
ABC News reports that Trump is looking to "copyright" the phrase, which of course you can't do. You can, however, trademark a phrase, and in this Trump may very well succeed.
The Reuters piece includes a rare touch of evidently borrowed humor: "Trump might have competition: A search of the PTO's database revealed that three other applications for 'You're fired' have been filed. [Wait a beat.] No applications appear to have been filed for 'You're outsourced,' however."
Siva Vaidhyanathan has a question of interest to copyfighters of the scholarly persuasion: What should we call the emerging field of study that recognizes the architectural element to expression in the networked environment? Or, as Siva puts it, the "scholarly partner" to the Free Culture movement?
Siva's trial balloon is "Critical Information Studies," a term he suggests might encompass work by economists, communication scholars, lawyers, computer scientists, librarians and others to interrogate the "structures, functions, habits, norms, and practices that guide global flows of information and cultural elements."
Central to this field of inquiry, writes Siva, is a concept manyofus have begun to call "semiotic democracy," or the ability of citizens to "employ the signs and symbols ubiquitous in their environments in manners that they determine."
To my view, Siva's term works rather well--I've seen "critical media studies," but that doesn't connote information/networked environments specifically.
What do you think? If you have a thought or two to share, do let me or Siva know.
KoreaTimes runs a story today about the inevitably brewing conflict between mobile device makers and the music industry over use of MP3s:
LG Electronics, the world's fifth-largest cell phone maker, last week started selling its LP3000 model, an MP3 phone that can save 16 music files at a time.
...
The Korea Association of Phonogram Producers (KAPP) claimed the rollout is against copyright law and said it will seek to block sales of the LP3000.
The organization of the music producers also stopped providing any phonograms to the LG-made MP3 phones starting March 12.
LG Electronics countered that it has incorporated digital rights management (DRM), solutions devised to prevent illegal play of music files, into the LP3000 phones.
However, the KAPP claimed that already back-door programs enabling free play of music files via the LP3000 are available on the Internet.
...
Following LG, the world's third-biggest cell phone maker Samsung Electronics also plans to release a similar phone within this month.
As the article suggests, this issue is only going to intensify. The RIAA has had enough trouble tracking down infringers based on home ISP accounts. Wait until they try to go after mobile devices, which can be shared, sold, or stolen with incredible ease. DRM can't keep ever song under lock and key. So what's the solution, Trusted Phoning? I hope not...
The Barenaked Ladies and Red vs. Blue have teamed up: at their live concerts, the Ladies are showing two exclusive machinima videos from the Red vs. Blue folks.
It's a neat triple play. Bungie encourages people to make videos using their Halo game engine and gets back great promotional exposure for the game. Red vs. Blue enlists the services of a major band in getting new fans and selling their compilation DVDs. And the Barenaked Ladies get an additional draw to their live shows: something not available anywhere else. File this one under "new horizons in clever business models."
Several months back, AT&T Research released a report finding the 77% of all pirates movies came from sources inside the movie industry. Such findings were further confirmed recently with the investigation of Carmine Caridi, an Oscar screener accused of distributing films on the net.
Today, the Smoking gun released documents from an FBI investigation implicating yet another Hollywood Insider -- this time at Fox:
MARCH 17--The piracy wave vexing Hollywood has hit particularly close to home for one studio, The Smoking Gun has learned. Secret Service agents last month raided the Los Angeles home of a Fox Entertainment employee suspected of involvement in an online conspiracy to distribute pirated films like Old School, X-Men 2, and The Matrix Reloaded. According to the below Secret Service affidavit, more than a dozen illegally duplicated movies were actually housed on a Fox computer server (along with pirated computer software and games), where they were accessed by members of a "warez" group trafficking in such bootlegged material. Lisa Yamamoto, the 45-year-old Fox employee whose home was raided, is allegedly a key member of that "warez" group. Last November, in the course of an investigation into an unrelated computer intrusion, Fox gumshoes stumbled upon the cache of pirated films, and immediately called in the feds. Along with unwittingly storing the titles, Fox was also paying for the bandwidth used when ring members downloaded the films. Yamamoto, who has yet to be charged in the probe, did not respond to phone or e-mail messages left for her by TSG.
District Judge Lewis T. Babcock granted in part and denied in part the Government's Motion to Dismiss. Here's the opinion. The Court dismissed Count IV, challenging the Sonny Bono Copyright Term Extension Act, holding that the Supreme Court's decision in Eldred rejected the theory pleaded in the Amended Complaint, based on Justice Breyer's dissent. (We beg to differ). The Court refused to dismiss any of the Counts challenging Copyright Restoration under the Uruguay Round Agreement Act. Count I alleges that the URAA violates the Copyright Clause of the Constitution because Congress attempted to grant copyright in works that were already in the public domain. Count II alleges that the URAA infringes the public's first amendment rights. Count III alleges that violates Plaintiffs' rights to substantive due process by unfairly depriving them of property without due process of law. The Court found that none of these issues was decided in Eldred and seemed to find the Government's arguments unpersuasive.
More on Lessig's blog and a press release from the Center for Internet & Society to come soon.
I've assumed that the RIAA was monitoring BitTorrent downloader/uploaders. Now I've come across this report (not sure how credible it is) of such monitoring: Bit Torrent downloading:
So here I am, downloading through various torrent apps, various music torrents, all probably illegal. My first day, so I've learned the ropes, a little, and already blocked Sony North America, The Australian Broadcasting Corporation, RIAA and some others, I didn't recognise late last night. They were scanning my torrents, looking down my ports, or trying to.
Of course, I'm still sort of wondering why we haven't seen many DMCA notice-and-takedowns for BitTorrent seeding sites yet.
The Seattle Post-Intelligencer ran an article today about automobile manufacturers who are frustrating independent auto mechanics by locking down their technologies with secret access codes:
Gary Putman is an accomplished mechanic with bills to pay and a business to grow.
Yet more and more these days, he's forced to wave customers away from his popular shop in West Seattle. He literally can't crack the computer code he needs to diagnose and fix an assortment of maladies ranging from climate systems to brakes to electrical glitches that commonly strike late-model cars.
"If you don't have the code, you lose the job. They have to go to the dealers. It's an illegal monopoly, in my opinion. It happens enough that it's a real problem," said Putman, who owns Westside Import Repair.
Putman isn't alone. Across the nation, professional mechanics and weekend tinkerers alike are confronting a new reality in today's highly computerized cars -- to fix the car, you first have to be able talk to the computer. And that's where the trouble starts. More often than not, the code is in a language understood only by auto manufacturers.
...
Even locksmiths are annoyed because these days the keys to some cars contain computer chips, and to replace them, a locksmith needs the correct code.
The article goes on to talk about a recent effort in Congress to pay a bill that forces auto manufacturers to release this information publicly. What the article doesn't discuss, however, is the underlying principle being threatened here: interoperability. Numerous professionals perform services on the devices we purchase. For the cars here, they are mechanics and locksmiths, but it could be service/repair folks for items like copy machines, phone lines, computers, dishwashers, etc. The legacy of independent service providers, both big and small, is quite long and historic in this country.
The article supports this, pointing to what the automakers appear to fear the most -- competition for interoperable parts:
Automakers are fighting the legislation; they believe the real goal is to obtain proprietary "calibration codes" that are the blueprints for how parts are made. With that information, Territo said, independent mechanics and parts manufacturers could duplicate major components such as fuel injectors that automakers have spent millions of dollars developing.
While the "security through obscurity" approach described in the article seems anti-competitive on its own, I'm much more concerned with what may be the next step -- DMCA anti-circumvention lawsuits. Automakers could well declare that their "secret codes" are access controls on their systems software and that mechanics who figure out the codes are "circumventing" them. Sounds a bit silly, but not to far off from the theories in Skylink and Lexmark.
As Professor Vaver, supra, has explained, at p. 171: User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.
[...]
In words that may reverberate into the online environment, the court also concludes that a person does not authorize copyright infringement by authorizing the mere use of equipment (such as photocopiers) that could be used to infringe copyright. In fact, courts should presume that a person who authorizes an activity does so only so far as it is in accordance with the law.
