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

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

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Monthly Archives

April 28, 2011

RIP Keith Aoki

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Posted by Alan Wexelblat

Boingboing and The Public Domain blog have remembrances up for Keith Aoki. Copyfight noted the publication of his Bound By Law comic five years ago. We join his friends and colleagues in mourning his passing. May his memory be a blessing.

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

April 21, 2011

The Gaga Saga

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Posted by Alan Wexelblat

A friend pointed me to an interesting blog entry from Weird Al Yankovic on his difficulties getting permission for a parody of a new Lady Gaga song. The blog entry describes his attempts to get permission from Gaga for a parody song Al intended to be the lead piece on his new album.

As Al notes in the blog entry, his parody tunes fall under one of the traditional fair use exemptions and as such do not technically require anyone's permission. However, as a matter of his "personal policy" he seeks permission beforehand. In the old days, a tune that didn't appear on an album would be buried somewhere. These days, though, Al could still release his version, "Perform this Way", on YouTube, which is what he did, as well as releasing a free MP3 download of it.

But wait, there's more. News travels by strange means and the upset on the 'nets about Gaga's refusal reached her ears. Where, it seems, it was news to her as well. According to Al's blog update on the situation, Gaga's manager has admitted that he never even sent Al's original request to her. Gaga hadn't refused permission; she wasn't even aware she had been asked.

This is an old lesson, but one that bears repeating. When you hear that $BIGNAME has said or done such-and-such, treat it with a grain of salt. Performers and creative types accrete layers of people around them as they get more famous and as often as not something that's attributed to a Big Name is actually just something a publicist or manager thought would be a good idea. One of the neat things about living in this future is that our new technologies sometimes allow those walls to be pierced, with interesting results.

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

April 7, 2011

Fans to Blame for "Tunes for Tyrants"

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Posted by Alan Wexelblat

In today's Doonesbury, Jimmy Thudpucker explains that it's all the fans' fault that the patron model has certain risks.

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

Facebook and Takedown Notices

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Posted by Alan Wexelblat

A few days ago I pointed at the underreported relevance of Viacom v YouTube and the associated ideas of safe harbor and takedown notices. I've since gotten a private communication of frustration from someone who believes Facebook is potentially blocking this kind of arrangement from working.

Here's the gist: this person is responsible for enforcing a contract between his organization and a broadcaster. The broadcaster pays for exclusive rights to film and sell recordings of an event; in return he, acting on behalf of his organization, agrees to help enforce the exclusivity by delivering take-down notices when infringing material (such as home-made recordings of the event) is found. So far so good, all in accord with how the Copyright Act envisions things should go.

The problem comes when people post their videos not to open sites like YouTube, but to walled gardens such as Facebook. The person gets a notification (say, someone sends an email saying "I saw a video of your event on Facebook") but when he goes to Facebook to search for the video he's prevent from searching it. The consequent is that he can't provide an adequate notice to Facebook.

The question to hand is whether sites like Facebook are doing enough to permit copyright holders to issue proper notices. I'm not certain. The notion of friends lists and posting things privately to your friends is inherent in most social sites; I don't want to lose that, nor do I think I want Facebook to be legally required to go on fishing expeditions through user content. On the other hand, if being less open is allowing Facebook to escape responsibilities that more open sites like YouTube have to handle, doesn't that encourage the walled gardens and discourage openness?

I'm not happy with either answer.

Comments (10) + TrackBacks (0) | Category: Big Thoughts

April 6, 2011

Makena Update

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Posted by Alan Wexelblat

A couple weeks ago I noted an actual mainstream news story about an IP issue - the drug maker KV Pharmaceuticals raised the price on a drug (marketed as Makena or commonly called 17P) that used to cost $10 per shot. The new price? $1500. Ouch. Then on April 1, KV announced they were dropping the price... to $690! April Fools!

KV are taking a lot of heat for this debacle. The March of Dimes (a US-based charity focused on "healthy babies") announced it was severing its relationship with KV, a pharmacists group blasted the company, and the FDA responded to KV's cease-and-desist letters by encouraging pharmacists to continue compounding the drug on their own.

I believe that much of this would not have happened if the story hadn't gotten big-press coverage, and it highlights the challenges inherent in monopoly grants such as patents. KV's foolish behavior with its windfall is probably not reason to abolish monopoly grants, but certainly the government should be (more) careful whom it grants a monopoly on what.

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

April 4, 2011

TorrentFreak Reports on Domain-Seizure Failures

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Posted by Alan Wexelblat

Back in February I put up a quick pointer to a TorrentFreak note that 84,000 domains had been shut down by mistake. Well, along with 84,000 mistakes the Feds also tried to seize the domain names of about 80 sites that were accused of sharing files or selling counterfeit goods. You'd think they could get it right 1 in 1000 times, no?

Well, um, no. TorrentFreak's post-mortem on the shutdowns indicates that most were back on the net in a few minutes under new domain names. Sometimes it was a simple as changing a .com domain name to a .info or other TLD.

Of course the MPAA and government tout these as "successes" which leads to two possible conclusions. One is that they're just too stupid to understand how the domain naming system works; two is that they're just willfully misleading (that'd be "lying") to the public. Take your pick, and keep this in mind next time you see someone claiming that the COICA bill is a good idea.

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

Can Do-It-Yourself Publishing Really Work?

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Posted by Alan Wexelblat

In 2007 I posted an offhand query asking for peoples' opinions on Createspace. This remains one of the most popular items on this blog - every so often someone will drop in to share their thoughts or experiences or complain about the world of self-publishing.

I confess that the state of the industry scared me off back then. Well, here we are nearly four years later and the question still remains relevant. The industry is fragmented and disorganized, and one person's experiences may or may not be a good guide to others in what to do, what to avoid, who to do business with, and how it may all turn out. I was reminded of this by Cory Doctorow's latest column for Publisher's Weekly.

In this piece he talks about his own checkered experiences - including run-ins with Createspace - getting his story published and listed in the complicated DIY publishing world we have in 2011. In my social group we have an acronym for this - WoWftVoE. Words of Wisdom from the Voice of Experience.

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

April 2, 2011

Viacom et al. v. Youtube And Its Importance

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Posted by Alan Wexelblat

David Post (of The Volokh Conspiracy) is rapidly becoming one of my favorite sources for Copyfight stories that don't get adequate mainstream media coverage. On Friday of last week he put up a pointer to his "brief" in the Viacom/YouTube case that is to be argued before the 2nd Circuit.

Post makes the point that the decision to be rendered is potentially ground-breaking for not just YouTube but for the whole "safe harbor" exemptions provided by section 512(c) of the Copyright Act. These exemptions have allowed not just YouTube, but every blog, social site, site that allows user comments, and pretty much the entirety of what is sometimes called "Web 2.0" to flourish in conjunction with, rather than as slave to, copyright restrictions.

Safe harbor basically means that you, or I, or anyone else putting out material on the net or providing hosting for material on the net, can do so freely in good faith and when given information indicating that material we posted or hosted is violating copyrights we can then, post facto, remove that material. Viacom, representing the Cartel in this case, would like that turned around. They'd like to require that sites block material based merely on suspicious labeling, or other external markers. If I upload a photograph of, say, my dog and call it "Lindsey Lohan revealed!" the Cartel thinks that label is sufficient to require the photo hosting site to block my picture until they can inspect it to determine that it's not something Ms Lohan or a professional photographer would have a copyright interest in.

Post has put together a concise "brief" written with Annemarie Bridy and aimed at law professors to help them understand (and presumably educate their students) on just how wrong the Cartel position is. Post points out that pretty much all the successful Web 2.0 sites are American-based and operate pretty much only because they can use the safe harbor provisions to move huge volumes of content quickly. Take away this unhindered flow and... well, you'd have something that much more resembled Egypt, or even the U.K. where, despite a long tradition of radical speaking they have far fewer protections for online speech than we do here.

From a legal-path perspective there are two ways this can go. If the 2nd rules to keep the interpretation of the safe harbor provisions as they are then it would be in agreement with the 9th Circuit and it's extremely unlikely that SCOTUS would grant cert. If the two Circuits disagree, however, that's a standard way to get a case before the Court.

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