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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.

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Monthly Archives

September 30, 2008

Orphan Works and Emphatic Words

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Posted by Alan Wexelblat

Once again I'm finding myself trying to make sense of something and hoping others can help me out.

I got a pointer from a freelancer friend to a page posted by the Illustrator's Partnership of America. This page contains a harsh critique of The Orphan Works Act of 2008.

That name sounded familiar but I hadn't heard it recently, so I went back into the archives and found a Nate Anderson piece on ars, from back in April, that talked about this proposed legislation. Anderson does a good job of summarizing the problem that the bill is trying to solve - if you can't determine the copyright status of a work, what can you do with it? And if you do reuse it, what protection do you have from being submarined?

The idea in this bill is to set up a system of rules that an artist would need to follow; if those rules are followed and a legitimate copyright holder later emerges, the re-using artist can't be sued into oblivion. In effect we get a 'safe harbor' for innocent infringement. The re-user doesn't get free access - he still has to pay license fees to the late-emerging copyright holder. But he would be immunized from large punitive damages.

This sounds like a really good idea to me, and organizations I generally agree with, like Public Knowledge, have been working on the issue. PK's page on this topic has not been updated since May as of this writing, but their blog entry for today, written by Rashmi Rangnath, addresses the bill as it was just passed, including the improvements in the definition of "diligent search."

So, what is causing the Illustrator's Partnership to use such harsh language? They claim that the bill "goes far beyond current concepts of fair use" and "has a disproportionate impact on visual artists." They use further alarmist language about "forc[ing] artists to risk their lives' work" and they go on and on at some length. Are we sure Jack "Boston Strangler" Valenti isn't writing this stuff from beyond the grave?

Certainly some freelancers are feeling that this reaction is disproportionate. For example, Adam Hutter of the Fractured Atlas Blog characterizes the response as "panicked hand-wringing". He also points out that much of the reaction is factually inaccurate and provides links to the bills for people to read themselves.

Rangnath's blog entry also points out how some of the bill's language has changed in direct response to concerns that were expressed when the bill was first introduced. It's just not clear to me why these changes haven't averted the apocalyptic verbiage from some quarters.

Comments (11) + TrackBacks (0) | Category: Laws and Regulations

September 23, 2008

Burn (DVD) to Hard Drive

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Posted by Alan Wexelblat

I got a pointer to a forthcoming program from Real, to be called RealDVD, that is supposed to be the first legal way to rip DVDs to hard disk. It's kind of that, kind of not.

Of course, we've had DVD rippers forever; the problem is that they're technically a no-no, since they tend to strip off the copy protection. The question of whether or not this is a legal backup copy of software you legally own is best left for another time. RealDVD leaves the copy controls in place by, effectively, locking your copy to the hard drive onto which it was burned. All the bits from the DVD platter are transferred, once, and no further. At 5G+ per burned copy it's still pretty huge and even with the plummeting prices of large thumb drives I can't see a whole lot of value here.

PC World previewed the program as well
and didn't come away much more impressed than I.

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

September 22, 2008

Politics and Song Rights

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Posted by Alan Wexelblat

This isn't another political song remix, or even a political song parody. This is about the use of (usually American pop) songs in political ads and campaign appearances by candidates for a political party. In this case, McCain for the Republicans.

First off, we have the candidate's use of the song "Barracuda" by the band Heart, even though the band has asked them to stop. Sorry girls, that's what you get for entrusting your license rights to a blind agency like ASCAP. All the McCain camp has to do is pay the fees and away they go, right?

Well, yes, it'd be nice if they did pay the fees. According to TMZ they might not have cleared every song they used. I mean, what remixer goes through all that trouble, right?

And, really, what's an artist going to do, sue John McCain? Well, um, yes. Jackson Browne is suing McCain (and the Ohio Republican party, which apparently produced the ad in question) for using Browne's music without permission.

According to the LA Times blog post McCain has "a track record of using music without permission." This is all probably just a tempest in a teapot, but it's pretty funny from where I'm sitting.

Comments (1) + TrackBacks (0) | Category: IP Use

September 17, 2008

September 15, 2008

Disney and the Copyright on Mickey Mouse

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Posted by Alan Wexelblat

Disney is famous for getting copyright-term legislation passed that extends protection on old materials and thus protects their interest in Mickey Mouse, their iconic character. One of the first appearances (Wikipedia claims it's the third appearance) of this character is in the cartoon short Steamboat Willy. This short has been at the center of much of the debate around copyright on the character.

Recent work suggests that, in fact, the character in Steamboat Willie is not copyrighted any longer. If that's so, Mickey Mouse as he's presently constructed is probably a too-close derivative work to be claimed under separate copyright and thus the mouse may be out.

In a recent PATNEWS email letter, Greg Aharonian reviewed some of the scholarship around this issue. (This summary reprinted from PATNEWS with Aharonian's permission.) Start with a popular-press story from late August by Joseph Menn in the LA Times. In this story, Menn traces the value of Mickey Mouse to Disney and some of the corporation's fights to keep control of the character. Menn introduces us to "[t]hin, pale and bespectacled" Gregory S. Brown, a former Disney researcher who has unearthed some uncomfortable facts.

First, Brown found a court case in which Columbia convinced a judge that a failure to renew a particular copyright had let the image of the popular kid's ghost "Casper" fall into the public domain and thus they were free to use that image in their movie Ghostbusters. Then Brown found that Disney had made a similar lapse in protecting a 1933 Mickey Mouse short called "The Mad Doctor." If like follows like, then the images (cels) from that short should be in the public domain and he could make some money selling copies of the cels. Of course, you can see where this ends up: Disney sues, Brown loses to the tune of half a million dollars, case closed.

Except, maybe not. In a move that was too late to save his own case Brown introduced evidence from a 1993 rerelease of "Steamboat Willie." In that release, there were three parties named as possible owners of the Mickey Mouse character, a confusion that could nullify copyrights. Don't ask me to explain it - even Aharonian, an IP lawyer, calls this bit of law "arcane rules". Menn's article quotes a treatise called Nimmer on Copyright as saying that "a copyright is void if multiple names create uncertainty." Three names? Uncertainty! And thus voided copyright.

Or so conclude a couple of people who've looked at the issue. One, an ASU law student, posted a paper on the topic in 1999. Here is her punchline:

Disney published its common law protected expression without the proper copyright notice attached to the films and on the club materials. The statute of limitations to rectify that omission has long since elapsed, as has the statute of limitations for Disney to file any infringement claims based on that omission. As a result of its omissions and inaction, Disney forfeited its copyright claims to Mickey Mouse. Mickey has fallen into the public domain where all are free to copy and enjoy him.

Of course, here "free" means "anyone with the resources to defend this claim against Disney's army of lawyers."

Likewise a Georgetown University law student, Douglas Hedenkamp, agreed and published his review first online and then later in an article in the 2003 edition of the Virginia Sports and Entertainment Law Journal. His conclusion is similar:

Ultimately, if all the material incorporated into the films published without notice is in the public domain, this means that the character Mickey Mouse is himself public domain material. Mickey would still be protected by the copyrights in his other films and products, but those copyrights would only extend to the new matter that is original to them. [FN161] The aspects of Mickey's image and character that were derived from the original public domain films cannot be protected by virtue of their inclusion in new works; this is true under both the 1909 Act and the Current Act. [FN162] This means that the public is free to exercise all of the rights that the Copyright Act would otherwise reserve to the holder of a valid copyright. [FN163] This includes the rights to copy, display and distribute the films, and to make, display and distribute derivative works based on those films and the Mickey Mouse character. [FN164]

So, what happens now? At the moment all this is so much theorizing. As noted, the judge in the original case never ruled on the validity of these challenges, only that they came too late to save Brown's business.

The challenge, as Aharonian puts it, is to find someone with deep enough pockets to put this to the test. If someone was to distribute material Disney claims is its copyrighted work (e.g. digital reproductions of early Mickey Mouse images) then Disney would no doubt sue to put that person out of business. And in court would possibly be required to defend its most valuable IP asset.

Will such a thing happen? Probably not. Although the publicity would be great, and there's a lot to be said for taking down the Mouse Empire, few people or organizations have the resources to make this kind of play, especially with the likely result being that even if they win they won't reap any benefits to themselves.

Them as as the gold still makes the rules.

Comments (6) + TrackBacks (0) | Category: IP Markets and Monopolies

September 4, 2008

Google Backs Up On Chrome EULA

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Posted by Alan Wexelblat

Well, that didn't take long. Google has admitted that putting Clause 11 into its EULA was a mistake. Frankly, it's a cut-and-paste error as I had guessed. As reported in a number of places (see, for example, CNET). Google has pulled the unnecessary language.

It was never clear to me how Google planned to capture any of the customer's data from general use of Chrome in the first place. One thing that is pretty clear is that Google will store auto-suggest and search-box info, along with the originating IP address. I'm sure Google has its own business purposes for this, but to me it looks like a prime target for bad guys in black hats and bad guys with legal discovery motions, all of whom would love to get their hands on peoples' search histories.

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

September 3, 2008

Google, Chrome, and Copyright

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Posted by Alan Wexelblat

I'm filing this under "IP Abuse" because I'm starting to think Chrome, Google's new wonder-browser, is a tool for (potential) copyright abuse. I was first tipped to this by Edward Champion, who blogs under the title "Reluctant Habits." In a post dated September 3, he picks apart the Chrome EULA and does not like what he sees.

In essence, Google has applied the same EULA that it uses for Gmail to everything you put into the Chrome browser. What, you never read the gmail EULA? You do realize it gives Google copyrights in your email, right? Yeah, it does.

Anyway, here's the relevant clause from the Chrome EULA:

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.
So, technically, you still keep the copyrights for things you create in the Chrome browser - like, say, blog entries. But you give up to Google the right to redistribute that content, including using it for commercial purposes.

That's potentially very bad. Should Google ever choose to make use of those rights it could cause problems ranging from simple embarrassment to loss of serious value. For example, I work at a company that makes Web-based tools for securities traders. If someone runs our tools in a Chrome browser, does that mean Google owns (or thinks it has any rights to) my customers' financial data? Should I be telling my customers not to run Chrome? Does this principle apply to anyone who ever does any home banking in the Chrome browser?

This condition seems completely unnecessary for a browser. I can't find any similar language in the Firefox EULA. The Internet Explorer EULA has language some people object to in terms of disabling and potential interference, but it doesn't seem to contain any terms claiming ownership of content. WTF, Google?

Comments (7) + TrackBacks (0) | Category: IP Abuse