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.
If you've been with us a very long time, you'll remember this case from back in 2004. Lexmark made printers and ink cartridges and in order to stop people using 3rd-party replacement cartridges they jiggered up a UI that read information from a chip in the (their) ink cartridge. Static Control figured out what signals the printer wanted to get and made its own chipped cartridges that could be used. Lexmark sued, initially under a novel DMCA theory that tried to prevent SC or anyone else from reverse-engineering the printer-cartridge interface. They lost.
The case went back down to the trial level, Lexmark lost again, appealed up to the Sixth Circuit again, lost again. The case went back down. Meanwhile SC made new cartridges and started its own suit looking for a declaratory judgment that it was non-infringing. The suits got consolidated, and a jury trial was held, at which Lexmark lost again, and again appealed to the Sixth, which has just slapped them down again.
If anyone starts to think this more resembles a game of handball than an intellectual property case, I can't blame them.
Professor Grimmelman shows how the root of these problems is a case commonly called Cablevision, after the company known by that name. In the decision, a specific way of giving customers copies of programs was ruled legal. Unfortunately, the method used to store and supply those copies is what computer geeks like to call "pessimal" - the worst possible way to do something. In this case "worst" means most expensive and least efficient use of resources when looked at from a server/storage/recording/transmission technical point of view. However, a company that is technologically pessimal but legal stays in business where ones that have used more efficient architectures or technical solutions have been found to be in violation of copyright law and precedent, which Grimmelman repeatedly refers to as "demonstrably insane".
In his closing section "The road not taken" Grimmelman makes a plea for us all to get along, and for courts to concern themselves less with legal arcana and more with the function and purpose of the law in the first place, including issues such as fair use that never even got into the Cablevision discussion. Maybe I'm just too jaded, but after two decades of the Copyright Wars I have no hope that sanity will suddenly descend on US copyright regimes.
To be clear, I want to talk about documentary films, often released by major studios. "Real" real life, not reality TV or other obviously scripted stuff. A documentary film that claims to portray events from the real world may soon carry a 'writer' credit, begging the question "who wrote reality?"
According to Tom Roston's piece for the NY Times last week, the idea of a documentary writer is being pushed by the Writer's Guild, a union for writers of film and television. The Guild's actions appear to be worrying some makers of documentaries, who are concerned that the appearance of a writer credit may cause viewers to be concerned about whether this is an actual documentary or the fake kind of 'reality' show that has become so popular in the past couple decades. When you're using a documentary to call attention to an important current, social, or historical issue that can matter a great deal.
On the other hand, life doesn't just manage itself for your camera's convenience. There are creative decisions made, editing done, and often voice-over or narration added. The writers of these latter have long received credit, even on documentaries. But even in the absence of such narration, the Guild wants there to be a writer credit on any film it registers and thus gives its protection/enforcement to. As Roston's piece notes, television documentaries have more often had writer credits. And then there's online, and who's going to get credit there...
I remain committed to the idea that businesses should be able to profit from what they do, including pharmaceutical companies. Bringing a new drug to market is still a multi-million (maybe billion) dollar endeavor - beyond the scope of most charities and even many governments. But we're not talking about hobby items here - medicines developed this way are potentially life-saving and, when full-priced, are often beyond the means of millions of patients who need them to live. This gap has to be bridged, somehow, and drug companies have successfully used IP monopolies (primarily patents) to shut down efforts to bridge it.
In today's About STD column, Elizabeth Boskey notes that a new regime of multi-drug/single-pill treatments may be coming online soon. These new treatments should make life vastly easier for patients who no longer have to do such careful juggling, and should improve treatment because people will, simply put, take one pill consistently and more often than they will manage a complex daily regime of multiple pills and meals. New drugs, better treatment. And of course the companies that make these pills will likely get tidy profits from the drugs' success rate and - as Boskey notes - from a lock-in effect.
All of which brings us back to the central dilemma: companies will need patents (or similar legal mechanisms) to protect their innovations against unauthorized copying, but at the same time they'll have to figure out what to charge. And it looks like Congress may be getting in on the act early this year, as Congresscritters have already written to one manufacturer asking that the medicine be priced "sustainably". Maybe that's the right solution - let companies know that legislators are watching over their shoulders and encourage them to consider how they can recoup costs and make profits over a longer time period, selling more cheaply.
(Full disclosure: Ms. Bosky is a long-time personal friend and like other journalist/bloggers gets paid to write columns for places like About. I don't think she makes money per click but I'm sure her employers are happy when her writings prove popular.)
As so often happens, Professor Michael Geist reminds me that I have too US-centric a viewpoint. The previous blink should have been titled as relating to "US fair use" reasoning. In his own blog, Geist gives us a very nice summary on how Canadian courts assess "Fair Dealing for Education".The post also has helpful links to Geist's previous posts on related topics including Canadian fair use. Fair dealing is, as Geist points out, a user's right, but it's somewhat different from our conceptions of fair use and the four-part test.
Julie Hilden has a nice primer up on Justia's IP Law blog on how fair use cases can be reasoned. Using the case of Monge v Maya, in which a panel of the 9th Circuit just overturned a previous decision, Hilden traces the classic four-factor test that is intended to guide courts in determining if a use of copyrighted works is fair. In this case - concerning stolen wedding photos - Hilden walks through how two of the three judges found the factors to weigh against Maya. The fact that the decision was not unanimous, though, shows that these factors are broad and general enough to be subject to different interpretations and weighting and I would expect Maya to ask for an en banc re-hearing.
This is interesting, as previously the lower court had found there was no protection due to the drawings not having the use commonly associated with such drawings. Architectural plans are both expressive and functional - they're intended to allow the construction of buildings, for example, and provide enough detailed information for such functional uses. But in this case the drawings didn't contain enough detail to be used that way. So the question at hand was whether the expressive/artist elements of the drawings were sufficient to merit protection.
This has obvious implications beyond architecture, as many professions produce documents that are intended for functional uses and may also qualify for copyright protection as expressive works. The software industry, for example, produces great quantities of such documents.
David Byrne has been a force in music and on musicians since Talking Heads first broke into the national spotlight decades ago. His collaborations with Eno are often cited as some of the most influential of their time, and he's still rocking out, appearing recently on-stage with Amanda Palmer.
Byrne sent out an announcement today of his upcoming book "How Music Works" to be published next month by McSweeneys. In the book he reflects on his life experiences in the music business and on how technological and cultural influences have interacted to shape our experience of music. This one is definitely going on my to-read list.
When sourcing Copyfight stories I'm almost always using US or Commonwealth sources (particularly Canadian and UK). That's largely due to my own language deficiencies and the result is a particular set of views on topics.
In this 25-minute segment, Fault Lines' Sebastian Walker focuses on the movie industry, home entertainment, and the copying of movies in particular. The content is not likely to be novel to most readers of this blog and if you're interested in diving more into this let me re-recommend Decherney's book on the topic.
Walker goes into some depth on US legislation aimed at controlling the Internet, particularly SOPA/PIPA and the Web site blackout that appears to have been a key factor in turning back those particular bills. Clay Shirky gives good soundbite, as usual. And then, maybe because it's a source that isn't beholden to US-centric interests, Walker goes on to point out the great hypocrisies of Obama and Hilary Clinton, who utter wonderful worlds about Internet freedom when it's an Arab dictatorship shutting its own people down, but then go right back to supporting restrictive legislation and secret copyright-distorting treaties like ACTA at home.
The emperor has some pretty translucent skivvies on, and US media aren't saying anything about it. I like living in the future, though, where we don't have to depend solely on these media.
Ferguson, best known for his series "Everything is a Remix" and his work on copyright policy in the US, puts the basic idea in front of the TED audience. Unfortunately, although his examples are interesting, the talk is a bit disjointed as he jumps from the notion that creativity is external, not internal, to the ongoing smartphone patent wars, with a very fleeting touch on the notion that the current intellectual "property" regime is hampering creativity. I suppose that's the challenge of trying to cover something this complex in under 10 minutes.
I haven't talked about remixes much lately because they've fully infiltrated the culture. I couldn't resist this one, though, because it's so delightfully meta.
I'm sure by now you've heard about a hundred different forms of Gotye's current hit "Somebody That I Used to Know." There's the five guys/one guitar version, and parodies of that. There are famous covers and infamous covers. There's even an artistically expressive ASL interpretation. And now gotyemusic has posted a remix of these interpretations and covers, called "Somebodies: A YouTube Orchestra." It's a wholly delightful production even if, like me, you're pretty tired of hearing the original. The Orchestra comes with links to all the originals that were used, and a frank admission that there are just too many out there already to fit.
Of all the possible reactions an artist could have to this level of YouTube response, this is one of the best I've seen.
According to Dan Rowinski in the latest ReadWriteWeb/Mobile posting, the reason why Apple has embarked on a world-wide patent war is because they're losing the marketing war, badly. Specifically, it appears that the Apple share of the smartphone market has dropped to just under 17% while Android devices (across all makers) accounts for just over 68%. Samsung, the latest Apple target, accounts for 44% of Android devices. If you can't beat 'em, sue 'em - where have we heard this before?
A new update notice from Google's "Inside Search." is getting notice in the copyfight community. The notice describes a new change in Google's ranking algorithms that will cause pages with "valid copyright removal notices" to appear lower in the rankings. It's an interesting step, and given that it's based on validated notices it's certainly better than basing anything on filed notices. Still, the notice-and-takedown process is far from perfect, particularly for people who want to contest notices, and I hope Google keeps a close eye on how this one plays out.
Amazon has a high-profile role in the crowdfunding space due to it being the main payment hub for Kickstarter projects. Similarly, it had been processing payments for unglue.it, and their withdrawal has forced the site to "suspend all active ungluing campaigns" while it looks for a new payments processor. The Oral Literature project is apparently already through the payments processing stage and will continue, which is good since Amazon is apparently forcing unglue to "void all pending authorizations".
No reason for the decision has been made public but one can speculate. In particular, it's probably not too far-fetched to wonder if Amazon didn't want to be associated with a project that's likely (further) to piss off book publishers, whose relationships with Amazon are testy at best.
Today's Insertcoin column by Paul Tassi over on Forbes talks about a brewing struggle between two heavyweights in the gaming world: Electronic Arts (EA) and Zynga. EA has been in the gaming business forever and has slowly grown into a giant powerhouse by producing its own popular titles and by acquiring popular titles that already existed and often the gaming companies that produced them. Zynga by contrast is a relative newcomer, born in the age of mobile- and browser-based games, and rising to financial success along with Facebook, where it provides gaming to Facebook's millions. By contrast, EA is a much more traditional gaming publisher, placing its titles in retail stores, on download services like Steam, and only recently moving into mobile gaming.
Zynga has been dogged for years by claims that it has stolen (used, borrowed, copied) intellectual property from other games, both in terms of concept/topic and in specific terms such as characters, art style, and so on. People have accused Zynga not of being a game 'developer' but of being a game 'cloner'. But mostly the smaller players haven't had the resources to take their claims all the way; now, finally, someone with very deep pockets (EA and its Maxis studio) are going to court to try and prove it.
Tassi's column is mostly a set of side-by-side images, one taken from a game by a non-Zynga publisher and one from a game put out by Zynga that is accused of being a clone of the original. In an earlier column, Tassi showed side-by-side images of Zynga's recent "The Ville" with EA's "The Sims Social." EA has a lot of time and money invested in its Sims franchise and Sims Social is apparently quite profitable for them. To have that investment threatened by a Zynga clone is not something EA felt it could tolerate.
It will be interesting to watch as this case develops: game IP can include visual design elements, creative process elements such as gamer interactions or component behaviors, and arrangements of elements. These can be covered by trademarks, patents, and copyrights depending on the particular element to be protected. Tassi quotes David Marsh of game maker Nimblebit, which also felt that Zynga had ripped off one of their products:
[W]e were taken aback by [...] how thoroughly Zynga had copied the mechanics of our game, right down to small trivial details that had no effect on the functionality of the game, but got caught up in Zynga’s blanket duplication process.
If EA feels that Zynga has similarly blanket-copied The Sims Social then this could be a very large and wide-reaching suit indeed.
Research Project on Growing Book Challenges in the US
In this case a "book challenge" is an attempt to have a book or other reading material removed from publicly accessible spaces, usually library shelves or school curricula. The good folk at the Comic Book Legal Defense Fund sent out a press release calling attention to a project by the Missourian titled "Unfit to Read?" The project notes that some challenges have been successful and that both the number and success rate of challenges appears to be on the rise; it then examines reasons for these trends, with some examples and supporting graphics.
TorrentFreak reports on leaked MPAA internal memos that highlight the problems the Cartel is having with trying to buffalo the UK's law enforcement into joining its private army, where the US DOJ is already captive - namely, people think it's not right. In fact, so many sane people, even in the media, think it's not right that the MPAA can't get any favorable coverage. Boo hoo.
And when you can't do that, then you need "third parties" (as the memo calls them) who will deliver your message for you, while not appearing to be you. We have a different name for that: lying, or more politely "astroturfing." Basically you recruit some patsies (Boingboing calls them "sock puppets") , feed them your prepared scripts, and have them trick journalists or other citizens into believing that anyone at all, beyond possibly the criminally insane, thinks it's a good idea to ruin this guy's life.
In case you are concerned that TorrentFreak might be engaged in its own misrepresentation, there's a Scribd embed in the story. The document appears to have no seal or other identifying mark on it, so you'll have to judge for yourself whether it's real. Or you could ask the MPAA whether they're employing the same tactics here that they used to try and manufacture support for SOPA. Maybe it's coincidence... yeah, that's it.
On his personal blog, Lauren Weinstein catalogs the history of this current #NBCfail. His focus is on the Streisand Effect but I was taken by the NBC network attitude that American audiences are "too stupid". We're too stupid to install TORbutton, too stupid to watch sporting events without editing and commentary, and too stupid to figure out and get away from the ongoing scam that is pay-one-price-for-shit-you-don't-want cable subscriptions. Yeah, right. I'm reminded of Amanda Palmer's observation that the entire big-label music industry is built on the premise that people have to be tricked into parting with their cash. Can you imagine if television was built, instead, on the idea that there are millions of passionate fans out there who will pay money to get what they want, when they want it, how they want it? That would be cool.
