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.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

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Monthly Archives

August 25, 2011

Black Monolith vs Apple

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Posted by Alan Wexelblat

The FOSS Patents blog has an interesting note on a patent issue being raised by Samsung in its fight with Apple over iPad. In particular, the fight is over design patents, which cover the expressive elements of design - the style, feel, visual look, decorative elements and so on.

In this case Samsung has introduced into evidence images from Stanley Kubrick's classic movie 2001: A Space Odyssey. In that movie, characters are seen using a tablet-like device as shown in the image I've copied at the bottom of this blog entry (image enlarged somewhat so you can see details).

According to Samsung, this constitutes prior art because it shows key elements of the design that Apple wishes to protect with its patent, in specific: " overall rectangular shape with a dominant display screen, narrow borders, a predominately flat front surface, a flat back surface (which is evident because the tablets are lying flat on the table's surface), and a thin form factor."

I confess I'm not familiar with how prior art works in design patents - are the rules different from prior art challenges to functional/process patents? Is a use in a purely fictional context sufficient to show that the design elements are not original and thus presumably not qualified for new patent protect? Will the court even accept Samsung's submission for consideration as an element of prior art? We'll certainly find out the latter soon and the others in due time.

Comments (1) + TrackBacks (0) | Category: IP Markets and Monopolies

August 23, 2011

May Their Memories Always Be A Blessing

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Posted by Alan Wexelblat

Salon has a nice tribute to two of the great creators in the pop music industry who recently passed away, Jerry Leiber and Nick Ashford. Both were part of song-creating duos and it's worth reading the stories of how they worked together with their main partners, and with other collaborators, producers, and musicians throughout their long careers.

In particular, looking at these two men it's clear both that they were greatly influential and that they were deeply embedded in rich systems of shared creation. Their life stories give lie to the myth that people create in a kind of mystic isolation where there is An Idea, pure and platonically ideal, which leads to the error of trying to (over)protect those creations. Like many great creative teams who came before, the fine works that bear these mens' names are made possible because their ideas are not hoarded, but are shared and worked and reworked, being refined and made better in the process.

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

August 22, 2011

"What.." Makes Fair Use Easier

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Posted by Alan Wexelblat

Nate Anderson's piece for Ars on Brownmark Films v Comedy Partners et al is too funny for me to do justice to. You should go read the original. The gist, for you folk who want to know what you're getting into first, is that a decision last month in Wisconsin in the suit over South Park's parody of the viral YouTube video for "What What (In the Butt)" may help people who want to cite fair use defenses in copyright cases.

In particular, the judge agreed to a motion to dismiss on fair use grounds very early in the case, well before trial and even before the discovery phase began. If such early proceedings catch on it could significantly ease the way for defendants who want to raise fair use defenses and as a result make these defenses much less expensive. Since parodists are often independent or small operators without deep pockets for legal bills this can be a good thing.

(h/t +Donna Wentworth, who used to blog here, for the pointer.)

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

August 18, 2011

August 17, 2011

Dear Daily Mail: You Suck At Copyright Infringement

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Posted by Alan Wexelblat

The UK's tabloid The Daily Mail stole and reprinted Alice Taylor's picture and quotes without attribution and after being told no, they couldn't use the photo. Taylor had granted permission to the Washington Post, but wanted a small concession from the Mail, which they refused. Then they went ahead and stole the photo anyway.

According to Taylor's blog entry, the Mail does this with some regularity except this time they may just have picked the wrong person to steal from. Taylor is not only a CEO of a gaming company, a gamer in her own right, and a savvy blogger. Plus, she happens to be married to Cory Doctorow of Boingboing, which has more than a little experience dealing with the difference between fair use and outright theft.

I've said it before and I'll say it again: creators should be paid. If the Mail didn't like Taylor's terms for the photographs they could have sent their own photographer out there and paid for their own picture to be made. Not that I think the Mail cares if they get a bad (worse) name in the blogosphere, but I do hope Taylor follows the advice in her comments stream and sends them an invoice, including costs for her time in dealing with this.

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

August 15, 2011

Springsteen, Kool, Henley et al vs The RIAA

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Posted by Alan Wexelblat

On one side: a raft of the biggest names in recording in the late '70s. Everyone from Bruce Springsteen and Don Henley to Kool And The Gang to Kris Kristofferson. On the other side: the RIAA. Let us pause a moment to appreciate and remember all the work this fine organization has done... OK that was fast. What the hell are they doing fighting not their customers this time but household names in music?

According to Larry Rohter for the NY Times, they're about to fight those musicians over something known as "termination rights." These rights were written into copyright law in the mid-1970s and they give the current owners of albums 35 years to profit from it - which they have done handsomely. But after that time, musicians who want to reclaim the rights can do so by giving the Cartel at least two years' notice that they intend to exercise their termination rights.

If you get out a calendar and do a little math 1978+35 = 2012, which is next year. So starting last year some forward-thinking musicians such as Bob Dylan and others assisted by Don Henley's Recording Artists Coalition began making their applications and would like to get their music back please and thank you.

Not so fast! says the RIAA (you have to imagine Frank Morgan as the Wizard voice here). The Cartel claims that these rights don't apply to those recordings and they aren't going to give them up without a fight. Instead, says the RIAA, the albums were made as works for hire and belong to us in perpetuity sort of like copyright and certainly you can't get them back, like, ever nyah nyah. OK maybe I made that last bit up, a little.

The 'work for hire' claim seems to rise (or fall) on whether or not you think that the musicians were employees of the record companies at the time the recordings were made. That's some pretty thin legal ice because if they were employees then things like Social Security withholding and regular paychecks would have been the order of the day. In fact, they were not. Records were made (as they most often are today) based on advances given to artists against future royalties and an arrangement like that leans heavily toward considering those artists as independent contractors who are then entitled to exercise their termination rights.

Much as I'd like to see the RIAA get another black eye here, I doubt it's going to happen. The artists have huge incentive to negotiate a settlement well before it goes to court, let alone the Supreme Court as Rohter writes. In addition, there will be other interested parties such as producers, sound engineers, session musicians and so on who will want to put in for their share of the rights once the Cartel's grip is loosened. Allowing that whole snarl to go to court would likely cost everyone more millions than they want to spend, and would result in confused and probably contradictory rulings. A much better arrangement will be worked out that will allow major labels to continue making hefty sums off the albums while giving musicians some rights to do other things with the music, or to get a larger cut of the profits from new technologies such as ringtones, digital downloads, and music streams.

I don't know of anyone who has tallied the multi-decade profits of the labels from the albums threatened with rights termination, but it has to be billions of dollars. As with the NFL lock-out, the pot of money on the table is too big for anyone to walk away or let it go to waste; a split is in everyone's best interest.

Comments (1) + TrackBacks (0) | Category: IP Markets and Monopolies

First Comes the Rumor

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Posted by Alan Wexelblat

Everyone is talking about Google's purchase of the formerly Motorola Mobile division in terms of protecting their Android hardware platform, or in terms of the patent portfolio they'll acquire. Both valid points, but I just want to note that this is also the division that makes the DVR high-def set-top boxes. Google owns YouTube. Anyone think 1+1 != 2?

(h/t +Harry Hawk for the pointer.)

Comments (0) + TrackBacks (0) | Category: Rumor and Gossip

August 12, 2011

There's a(n Ebook) War Going On

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Posted by Alan Wexelblat

Almost since the moment Amazon announced its Kindle ebook reader, a price war has been raging. It's been bloody complicated and has something to do with the limited number of book publishers, more to do with how they manage their ebook versus physical book businesses, and a lot to do with how new technologies get rolled out and what market lock-in effects mean.

The fight has largely gone on behind the scenes - the most obvious consumer-visible part of it has been the fluctuating prices for ebooks. Now it threatens to burst into full public view, with a class-action lawsuit filed in CA this week alleging that ebook publishers colluded (illegally) with Apple to fix the prices of ebooks.

The simple view of things - as presented in the suit - is that Amazon was working to force e-book prices down and the publishers decided they didn't want to play ball. In fact it's a complex situation revolving around who gets to set the prices for ebooks and whether or not a publisher will be locked in to a model or technology.

Initially, the retailer (Amazon) set the prices we would pay for ebooks as they do with physical books. Publishers charge the retailer a price but the retailer had the freedom to charge more or less than that price. In order to encourage adoption of its Kindle and to boost the nascent ebook industry, Amazon priced the ebooks low - often well below hardcover and even paperback prices. This frightened the publishers, who reasoned that Amazon would not forever take losses on ebooks; instead, they feared, once Kindle lock-in had happened, Amazon would insist on lower prices from the publishers. The publishers fought back with what is called "agency" pricing, meaning they and not the retailer would set the prices we pay. Under this model either Amazon plays ball and sells the ebooks for what the publishers want or the publishers deny Amazon access to the titles.

Although losing access to an individual title may not seem like a big deal it can be significant and relevant for adoption by customers. If customers can't find the titles they want on one ebook reader they're more likely to go with another and once you've bought your books on a particular reader you're locked in. In addition authors often have multi-book contracts with and stay with a publishing house for some years. If you want to read the latest Big Name Author book it's likely you're going to be reading something published by the same house that published her previous work. It's a complex Mexican stand-off with customers, publishers, and ebook maker/sellers all having some power to hold other parties to account.

The fight over the agency model started over a year ago with Macmillan going up against Amazon, which retaliated by discouraging people from buying new copies of Macmillan titles, and the Author's Guild and SFFWA weighing in on the publisher's side. This time it's not just one publisher, but the five big names (HarperCollins, Hachette Book Group, Macmillan, Penguin and Simon & Schuster) in publishing.

But wait, it's more complicated than that. Technically the argument isn't over the agency model itself - the model is used in lots of other places - the argument is over whether the model led to illegal collusion. The publishers are allowed to act to set prices, but they're not allowed to agree ahead of time what those prices are to be, nor to act in concert with outsiders, which is why Apple is named in the suit as well. As notes, the switch by the big 5 publishers to agency models happened virtually simultaneously, happened in conjunction with the launch of the iPad, and came along with an agreement by the five to allow Apple to use the publishers' various trademarks in iPad promotion. Walks like a duck, smells like a duck...

The agency model has certainly had the effect the publisher desired - ebook retail prices have gone up some 30% in the past year. Given the introduction of new popular readers (Nook and iPad most obviously) it seems like prices ought to be going down. However, publishers do not want to be in a position where they can be dictated to, authors want more money for ebooks, and customers... well, we get the short end of the stick. Again.

Comments (8) + TrackBacks (0) | Category: Laws and Regulations

August 11, 2011


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Posted by Alan Wexelblat

SIGGRAPH (the ACM special interest group on graphics) invited Cory to give a Keynote address at their annual convention. This shindig is attended by some of the biggest names on the tech-creative side of Hollywood, in advertising businesses around the world, and hosts some of the neatest research you're likely to watch. Their video show is often a place where the most cutting edge techniques in animation, computer-aided cinematography, and related computer visual techniques such as motion capture are first shown in public.

Cory's address is of course fun to watch - he's very "on". He's also trying to get some of these great creative minds involved in the Copyright Wars in more than a rote fashion. More power to him for that.

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

August 10, 2011

Big-Headed Dolls, Big Dollars Settlement

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Posted by Alan Wexelblat

Earlier this week, Mattel got its proverbial ass handed to it in the long-running suit over the Bratz doll line. My guess is that we'll now see a quick settlement with Mattel paying something significantly less than the USD 310 million that the judge ordered. This is a huge win for MGA, a small company that has nearly gone out of business fighting the protracted legal battle with Mattel, which doesn't like competitors to its flagship Barbie product line.

Mattel has all along claimed copyright infringement, and argued that the Bratz designs were, in effect, stolen by their creator Carter Bryant, who had worked for Mattel on the Barbie product. In fact, they won a first round (in 2008) and were awarded $100 million. However at the retrial Mattel came out on the losing side both in terms of its claims and also losing the contest over MGA's claims that Mattel had stolen trade secrets.

To add damages to damages, the judge then went on to award not only damages and attorney's fees in the trade secret theft issue but also $137 million in fees and costs for its protracted defense of the copyright infringement claims.

Given the size of these awards the lawyers must be absolutely salivating over MGA's announced intention to go after Mattel again on antitrust grounds. Clearly I am in the wrong business.

Comments (1) + TrackBacks (0) | Category: IP Markets and Monopolies

Obvious Troll is... um... Uninformed

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Posted by Alan Wexelblat

Commenter Gareth Simpson pointed me to Mark Cuban's next blog entry on the topic of patents. To say that it's cringe-worthy is a polite understatement. I suppose people worth two billion dollars are equally as entitled as you and I to spew uninformed commentary over the Internet, but geebus.

Cuban's prescriptions for patent reform include abolishing software patents. This is a topic that has been debated at least since the first software patent was granted. I am myself a software patent holder, but I have mixed feelings on the topic. Patents are presently the best form of intellectual property protection available. Contrary to Cuban's one-sentence dismissal the protection offered by copyright is quite weak. I still believe we need a new form of IP protection for software; however, I have to agree that the advances in information science fundamentally challenge the notion that software (information) is different from hardware. Generally, patenting hardware is uncontroversial but then people opposed to software patents must also answer the question of why a program expressed as a custom chip is afforded a different protection than a program expressed as a block of C++ code.

Regardless of which side of the debate you find yourself on (or flip-flop across as I tend to do) Cuban's curt dismissal of the complexity of the issues comes across as ignorant.

Then again, he also wants to abolish "all process patents." I'm going to take a wild guess (since he doesn't bother to state) that what he means are business process patents. Unless he's also opposed to all biological, chemical, and mechanical transformative processes being patented, in which case I find myself wondering what the hell he thinks could be patented. So let's credit him a little bit.

Abolishing business process patents is a less-well-studied suggestion, but not terribly original. The problem I see is that a business process isn't necessarily that different from a software process - certainly every maker of workflow software would like you to think they can encode your business processes in their software (see for example the open-source ProcessMaker if you aren't familiar with this stuff). If we think business processes can be encoded in software then they can also be encoded in machines and now we're back in the weird world of saying "well, yes, you can patent a machine that carries out steps A B and C but if you have human beings doing it then you can't patent it."

Again, I think reasonable people can debate this issue and come out on either side, but you can't just hand-wave them away.

I would love to do a similar dissection of Cuban's opinions of the "benefits" of eliminating these forms of patenting, but I have more interesting things to spend my time on, like Dungeon Crawl Stone Soup.

Comments (6) + TrackBacks (0) | Category: Interesting People

August 9, 2011

Any Mac Users Out There? (OS X Lion Video DRM)

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Posted by Alan Wexelblat

I've not been able to find any news outlets that are covering this story, but the word among my Apple friends is that if you play a DVD with Apple's built-in DVD player you are no longer able - as of the Lion release - to capture a movie frame.

Dan Gillmor pointed to this small FAQ from Ambrosia software, but that's all I could find online.

Anyone got a fuller/better story?

Comments (1) + TrackBacks (0) | Category: Rumor and Gossip

August 8, 2011

Those People Looking For Me on Google+ Will Not Find Me

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Posted by Alan Wexelblat

As of yesterday my profile on Google+ has been suspended. No warning was given (contrary to their written policy). I was suspended because I was participating in the "I am Spartacus" support effort.

If you were one of the readers who followed me there, I'm sorry. This blog and its standard RSS feed should continue to function just as well as before.

My suspension and Google's fight against 'nymity are not really Copyfight-relevant so I won't spend any more cycles here on it, but I do recommend you read what danah boyd has to say on this topic. In my opinion hers is hands-down the best commentary on this, from someone who has spent her career in the social networking area:

"Designing for Social Norms (or How Not to Create Angry Mobs)"
“Real Names” Policies Are an Abuse of Power

Comments (1) + TrackBacks (0) | Category: Announcements

August 7, 2011

Yes, Mark, But Exactly How?

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Posted by Alan Wexelblat

Serial entrepreneur, billionaire, and controversial NBA team owner Mark Cuban posted a little mini-rant to his blog yesterday, asserting that changing (US) patent laws would create more jobs. Unfortunately, he doesn't say how he thinks laws should be changed.

I'm sympathetic to people decrying the current craptastic state of patenting in the US. But Cuban's random shot at "patent trolls" comes off as easy and facile. He notes that Google spent USD 900 million for Nortel's patents and seems to share Vlad Savov's sentiment there in engadget that the major reason for Google spending this money was to defend itself against these unnamed trolls.

The problem, though, is that wailing about trolls misses major problems with the patent system, such as random rejections, pathetic prior art practices, and a patent reform bill mired in the political mess of the US Congress, a bill opposed by just about everyone from individual inventors to small businesses, to unions, to large organizations. And really, if you haven't been treated to the (reasonably well-informed, if highly biased) rantings of Greg Aharonian on the horrid state of patenting in the US you're missing a real treat.

With all that out there one wonders what, exactly, has Cuban's ire up? Unfortunately his blog entry doesn't even begin to sketch an answer or suggest any way to solve the problem, let alone demonstrate some linkage between some nebulous patent reform and job creation. If someone made an elevator pitch with this scanty a level of logic and detail to Cuban I bet you that he'd get pitched out on his ear.

Comments (2) + TrackBacks (0) | Category: Interesting People

August 3, 2011

How Felicia Day is Making It Her Way

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Posted by Alan Wexelblat

Felicia Day is profiled by David M Ewalt for Forbes. Ms. Day may be known to some readers for her roles on syndicated TV shows such as House, M.D. or Buffy the Vampire Slayer. But she's also well-known for her Web video production, The Guild, now starting its fifth season. She's another of the new breed of creators, and she seems to be doing well at it.

Ewalt's column recaps how Day took her own personal gaming obsession and turned it into a low-budget original series show that quickly became an online hit. Picking up sponsorships from big names (Sprint and Microsoft) led to the series not needing to rely on the still-shaky Web advertising business model, and has allowed her to expand the business side of things. Day's company now has deals with iTunes, Hulu, and Netflix and is about to launch a new series in conjunction with Electronic Arts based on EA's popular Dragon Age franchise.

This new series will also represent the first time Day is giving up control of the intellectual property - in a sense she's participating in a shared universe of EA's making. So far this appears to be a win-win deal: Day is an avid fan of EA's Bioware game products and was eager to do the show, and EA has to this point kept a mostly hands-off approach.

As with any of these individuals' stories I'm not sure this could be the blueprint for anyone else's success. Day brings a unique combination of talent and obsession - her promo music video for The Guild ("Do you wanna date my avatar?") played off both her personal good looks and the well-established male sexist tradition of creating anatomically unrealistic female avatars in gaming. Because she was poking fun at herself as well as her fans it helped cement her insider cred in a way that would be hard for someone else to duplicate. Similarly, Day has successfully made a transition from crowdfunded to corporate- and merchandise-funded production, a form of the patron model that many creators dream of but that comes with its own set of perils.

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