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

a Typical Joe
Academic Copyright
Jack Balkin
John Perry Barlow
Blogbook IP
David Bollier
James Boyle
Robert Boynton
Brad Ideas
Ren Bucholz
Cabalamat: Digital Rights
Cinema Minima
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Copyright Readings
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
Cruelty to Analog
Culture Cat
Deep Links
Derivative Work
Julian Dibbell
Digital Copyright Canada
Displacement of Concepts
Downhill Battle
Exploded Library
Bret Fausett
Edward Felten - Freedom to Tinker
Edward Felten - Dashlog
Frank Field
Seth Finkelstein
Brian Flemming
Frankston, Reed
Free Culture
Free Range Librarian
Michael Froomkin
Michael Geist
Michael Geist's BNA News
Dan Gillmor
Mike Godwin
Joe Gratz
James Grimmelmann
Groklaw News
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Erik J. Heels
Induce Act blog
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JD Lasica
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Lenz Blog
Larry Lessig
Jessica Litman
James Love
Alex Macgillivray
Madisonian Theory
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Kevin Marks
Tim Marman
Matt Rolls a Hoover
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Eben Moglen
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Promote the Progress
PK News
PVR Blog
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Joseph Reagle
Recording Industry vs. the People
Lisa Rein
Thomas Roessler
Seth Schoen
Doc Searls
Seb's Open Research
Shifted Librarian
Doug Simpson
Stay Free! Daily
Sarah Stirland
Swarthmore Coalition
Tech Law Advisor
Technology Liberation Front
Siva Vaidhyanathan
Vertical Hold
Kim Weatherall
David Weinberger
Matthew Yglesias

Timothy Armstrong
Bag and Baggage
Charles Bailey
Beltway Blogroll
Between Lawyers
Blawg Channel
Chief Blogging Officer
Drew Clark
Chris Cohen
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Daily Whirl
Dead Parrots Society
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Betsy Devine
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How Appealing
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Elizabeth L. Lawley
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MIT Tech Review
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Scott Rosenberg
Scrivener's Error
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Eugene Volokh
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Berkman @ Harvard
Chilling Effects
CIS @ Stanford
Copyright Reform
Creative Commons
Global Internet Proj.
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office

In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline


April 8, 2014

Old Tricks, New RulingsEmail This EntryPrint This Article

Posted by Alan Wexelblat

Back in 2012, I noted that the magician and performer Teller was in hot legal pursuit of someone whom he accused of stealing his magic performance. Note that word carefully - performance is at issue here, as a judge who finally ruled for Teller last month has reaffirmed, you can't copyright a magic trick.

However, the question is not whether the defendant, Gerard Dogge, stole the trick. The question is whether he is illegally copying a piece of performance that has been part of Teller's performance repertoire for nearly 40 years, according to the Hollywood Reporter story. The piece, called Shadows, was registered with the US Copyright office - this diagram comes from the copyright registration. That registration formed the basis of the case that Teller has just won at the district level. Dogge may yet appeal, and there's still to be a decision rendered as to whether Dogge's infringement was willful, which would affect damage awards. What Teller has established is that he is the author (creator) of this particular performance and so gets to control who can use it, in the way that a ballet choreographer or pantomime organizer would get similar rights.

My instinct, without having read the judge's ruling, is that this is right. A performance is a performance and the fact that a particular performance incorporates illusion or magic doesn't change the basic right of a performer under law to have a form of protection on their work.

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

April 5, 2014

March 30, 2014

Creativity and CopyfightEmail This EntryPrint This Article

Posted by Alan Wexelblat

If you are a nerdfighter (and you probably are, or should be) then you may have seen the Vlog Brothers' short video on "I Gotta Go". In it, the hosts discuss their use of a sign-off phrase, which they've been doing for years. The brothers realize that their use of this phrase, and much of the style of their videos that they had taken to be unique to themselves, derives instead from childhood hours listening to Ian Shoales commentaries.

This leads to a riff on the notion of creativity and they come around to the idea that creativity isn't a single artist locked in a room, but rather is a creator who is soaked in the cultural milieu of their time and place and whose influences may not even be conscious. As one of them says, "this [sign-off phrase] is deep in my brain."

Long-time Copyfight readers will know that this is the view I've had since I started blogging here. It's been important for me to state that because so much of corporate creativity is based on the myth of the sole creator. I'm not saying that people whose output goes through the professional systems (publishing, record labels, movie studios, etc) are not creative. But in fighting over who has the rights to such creative output, the Cartel has found it convenient to push the myth that creativity is exclusively the province of the most recent person to touch it. The fight against remix culture brought this back into sharp focus, with the assertion that sampling so small an amount as a three-note phrase was "stealing" someone else's "original work."

I can clearly spot my own conversion to the cultural model of creativity: a class I took from Henry Jenkins at MIT. That class changed my ideas about how creativity works, and very nearly rid me of my elitist bias in favor of high art over pop art. Then again, Jackass. I retain my biases, and how Copyfight expresses some of them.

You may have noticed that I'm not posting much here lately. There are a bunch of reasons for that. For one, work has gotten really busy and I don't have a lot of energy for doing more writing when I get home. I also am discouraged by the loss of all the comments that got wiped out in my attempt to deal with the ongoing current of spam. Very few people take the time to comment on entries and I appreciate those who do.

I am also trying to figure out what kinds of things I want to put in the blog. If I have time for fewer entries then I'm likely to shed small stories or things that interest me less, and try to focus what time I do have on things I find more worthwhile. However, that contributes to the blog's quiescence, which isn't good for the blog or regular readership.

Thanks for listening; thanks for reading.

Comments (1) + TrackBacks (0) | Category: Big Thoughts

March 22, 2014

March 19, 2014

Myriad Continues Fight Over BRC GenesEmail This EntryPrint This Article

Posted by Alan Wexelblat

It's often the case that the reporting on a story ends with a Supreme Court decision. That's not entirely wrong, as often a decision from SCOTUS is directive and all that remains is carrying out the proper procedures in light of what the Court has said. However, in many cases there's a great deal more to it, because the Supreme Court doesn't formally settle cases; rather, they rule on questions of laws, interpretations, and novel issues. Once they've made such a ruling the case is usually remanded back down to a lower court for further proceedings, in light of what the Court has said.

Such is the case with Myriad Genetics, which is now back in lower court arguing in defense of its patents despite a unanimous SCOTUS ruling against it. Perhaps Myriad believes its own press about the Court decision being a victory, or perhaps it - like myself and several other commenters - believes that the Court got the science wrong and that lower courts might act on the basis of better scientific understanding.

So, as the ACLU blog report details, Myriad just lost an attempt to get a Utah judge to issue a preliminary injunction. Myriad is arguing that its patents still allow it some form of monopoly control on breast-cancer testing. This is almost certainly wrong, in light of the Supreme Court's decision, but Myriad's suit can go to trial even though the judge does not feel it has a high enough likelihood to success for a preliminary injunction.

Myriad continues to be opposed not only by other commercial entities but by non-profit organizations such as the ACLU and the National Institutes of Health, which believe that regardless of how any specific SCOTUS ruling is interpreted, there is a fundamental (if philosophical) interest in opposing companies that attempt to use patent-level monopolies on key health technologies. Unfortunately I think that not only is Myriad not going away but this issue will rise again as research pushes out into novel frontiers of genetic and molecular medicine.

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

March 18, 2014

Why Did Copyright Shape Music and Books Differently Online?Email This EntryPrint This Article

Posted by Alan Wexelblat

This is the question posed by Paul J. Heald of the University of Illinois (PDF link). Heald's research shows that the majority of uniquely named musical songs from the previous century are available in digital form on places such as YouTube (70% of public domain and 77% of copyrighted). But when you go to look at ebooks, the story is starkly different: 94% of popular books from the early part of the 1900s up to 1923 are available and after that you're pretty much out of luck.

1923 is the publication year for volumes that still fall under copyright - the hole in our collective mind that begins there. But if copyright was the whole answer you'd expect to see a similar gap in availability for other works like music that are still covered by copyright. Since we don't see such a gap the question is why?

Heald's theories, as covered by Rebecca Rosen for The Atlantic, are two-fold:

First, music is both easier to "produce" - that is, convert into easily accessible digital form - and "consume" since any browser or mobile device will hook you up to iTunes or YouTube. By contrast, creating an e-book is still a fair bit of work and you often need a specialized reader or app to consume the e-book.

Second, Heald points to two cases that caused a split in how copyright was applied to the two media. In 2002, the case Random House v. Rosetta Books established that publishers need authorial permission to create e-books, particularly when reprinting older works. By contrast Boosey & Hawkes Music Publishers, Ltd. v. The Walt Disney Company found that publishers - in that case Disney - did not need a special license to convert music to a new form.

Heald's belief is that reform of copyright laws would lead to a surge in publication of older e-books. Given that his data show a high availability of pre-1923 books in electronic form, he argues that the production and consumption barriers aren't really that significant. Publishers are in the business of selling books that people want to read and even if it's not true for all volumes, it's still likely that publishers would find literature that was worth the investment to produce.

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

March 13, 2014

Well FrellEmail This EntryPrint This Article

Posted by Alan Wexelblat

At some point in trying to clear out the backlog of 22,000 or so spam comments it appears that over a year's worth of legitimate published comments vanished. I'm not sure if this was me screwing up, a site malfunction, or what. I also don't know if the comments can be recovered; I've sent a request to Corante administrators for help. If your comment was among the lost, I apologize.

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

March 11, 2014

What is the Solicitor General Arguing in Aereo?Email This EntryPrint This Article

Posted by Alan Wexelblat

In a comment on yesterday's discussion of arguments against Aereo and their implications, J.S. Greenfield argues that I have mischaracterized the position taken by the US Government.

Greenfield points to his own blog entry that discusses what appear to be self-contradictory arguments the SG's office is making. Greenfield notes that there's an important question of "equipment rentals" involved and that one of the issues SCOTUS will need to consider is who is actually doing the "transmitting" of the signal from the cloud DVR to end device. It will make a great deal of difference if the Court decides that the end user is the one doing the transmitting (essentially, downloading their own data) versus Aereo doing the transmitting.

If you believe that latter position, then you can argue that Aereo's system is distinguishable from Cablevision's system because Aereo lacks a license to transmit, which Cablevision has. This would allow the Court to rule against Aereo as a company and business model while still allowing the existing Cablevision decision to stand. If that decision stands, then the threat to cloud storage systems is much less. Except Greenfield argues that distinction rests on (what I would characterize) as nonsense.

In specific he argues that the S.G.'s office brief points to "[a] centralized server and other shared equipment" as well as the way that Aereo dynamically allocates its resources to meet customer demand. Which is, work with me here, pretty much exactly what every other cloud storage provider does. Aereo's architecture may look insane but that doesn't mean it has to ignore basic computer science.

The bottom line in Greenfield's blog is that the government has not offered any logical way to distinguish this case from other potential cloud-storage provider cases and so we're right back where Matt Schruers said we were: If Aereo goes down, a whole lot of next-gen computing solutions are going to be in deep trouble.

Comments (1) + TrackBacks (0) | Category: Laws and Regulations

March 10, 2014

Performance Rights, Aereo, and the CloudEmail This EntryPrint This Article

Posted by Alan Wexelblat

For people who are tired of legal minutae, here's the one liner: Matt Schruers argues at the Disruptive Competition blog that if Aereo loses it will be a big setback for a lot of cloud computing efforts.

That's a fairly big claim to make. As we've discussed from the start Aereo is a kind of weird cloud play itself that is using a particular interpretation of a previous case under which its admittedly crazy set-up ought to be legal. Broadcasters have challenged that and it's likely that SCOTUS will clarify or overturn that ruling in this case.

Schruers points out that this pivots on the question of public performance rights. If Aereo is allowing you to access your legally obtained copies of programs from a cloud server (essentially a remote DVR) then no public performance is happening and thus those rights are not implicated. If the Cartel's theory is correct, though, then the fact that Aereo has all these individual copies doesn't matter - what matters is that the material is being made available to multiple members of the public.

Now stop and think: multiple copies of legally obtained files, made available to multiple members of the public, individually and at different times. If that sounds to you like what Dropbox, SkyDrive, iCloud, and Google Drive (to use Schruers' list) are doing, then you begin to see the problem. If the Cartel prevails in this case it would be a throat-punch for every cloud storage service of every kind, everywhere. As Schruers puts it:

Because all commercial content is likely to be stored and streamed to more than one user eventually, cloud services would have to assume that everything they make available online would ultimately implicate some public performance right.

As usual, the Obama administration is on the wrong side of this one, filing a brief in support of the Cartel and arguing for overturning Cablevision, the base case here.

Comments (1) + TrackBacks (0) | Category: Laws and Regulations

March 8, 2014

Google as "The Copyright Court of Last Resort"Email This EntryPrint This Article

Posted by Alan Wexelblat

Following up on yesterday's discussion of "right of performance", David Post has an interesting blog entry up questioning why Google took the position it did.

He quickly reviews the standard notice-and-takedown procedures, and points out that YouTube (Google) handles hundreds of thousands of these requests in the standard manner. It's not clear why Google refused this takedown request.

The unfortunate consequence of that refusal is that Google now has to be the named defendant in Garcia's suit, rather than an impartial intermediary as it is in other cases. As I noted yesterday, a significant portion of Garcia's claim has to rest on the question of fraudulent action, but Google is not the fraudulent actor here, nor can it possibly produce any evidence related to the interaction between Garcia and the filmmakers prior to the film appearing. Without being able to adjudicate those issues, Garcia's claim becomes a matter of secondary legal theory.

For Google to exercise what Post calls "decision-making discretion" about a case where it is not in possession of key facts is to set itself up as a court for copyright matters. That can only end badly.

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

March 7, 2014

Is There an Independent "Right of Performance"?Email This EntryPrint This Article

Posted by Alan Wexelblat

The traditional answer has always been "no" but in Garcia v. Google, Inc. the 9th Circuit appears to be saying "yes".

A few undisputed facts are relevant here: Garcia is an actor who alleges she was tricked. She believed she was performing in one film ("Desert Warrior") but in fact her performance was dubbed into another film called "Innocence of Muslims." This latter film, on being viewed publicly, caused a controversy and appeared quite insulting to some Muslims even to the point of an imam issuing a fatwa that called for the killing of everyone involved with the film.

Garcia has attempted to have herself removed from the film, and to control reproduction and circulation of the film. As part of that she has tried to get YouTube (Google) to remove copies of the film with her performance in it. Her claim is that she has an independent copyright in her performance. The film's producer has claimed she signed a typical acting waiver, which ought to transfer her rights to the filmmaker. Her counter-claim would have to rest on the notion of being defrauded. If a judge agreed that she had been tricked as to the circumstances of her performance, the waiver could be ruled null and rights in her performance might then revert to her.

Which brings us back to the question of what rights (if any) does Garcia have in how her performance is used? The notion of the existence of such rights has enraged certain commenters (notably Mike Masnick on techdirt) but I am less certain.

What the 9th has said is not "Garcia is correct" but rather it has granted an injunction based on an evaluation that she has a likelihood of succeeding at trial. The injunction requiring Google to remove any copies of the fraudulent film is not dissimilar in my eyes from an injunction requiring removal of a song video by Band A when Band B claims that Band A is passing off its work fraudulently. In the case of a song we have a unified performance in which the myriad of rights are well settled by caselaw. The Garcia case raises the question of whether a film also encompasses a myriad of rights that we normally don't pick apart but in the case of fraud we might need to.

What the Ninth seems to be saying is "let the arguments be made at trial and we'll see." Unlike Masnick I think this is a reasonable way to explore the issue

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

March 5, 2014

Did the Director-General of WIPO Steal Employee DNA Samples?Email This EntryPrint This Article

Posted by Alan Wexelblat

According to a whistleblower complaint the answer is "yes" (PDF document at that link).

Apparently this is part of an ongoing row between Francis Gurry, who is now the Director-General, and staffers at WIPO. Gurry, at the time Deputy Director-General, was accused of sexual harassment and "financial improprieties". The accusations were made in anonymous letters, and Gurry sought permission to collect DNA samples that would permit him to out the anonymous whistleblower. The request was denied and so (according to the complaint filed with the International Labour Office Administrative Tribunal) Gurry conspired with one of the WIPO security officers to swipe things like lipstick and dental floss that could then be analyzed for DNA.

The victims of the theft found out - like you do - and Gurry allegedly retaliated. Like you do, if you're a douchebag. The whole matter then got hauled before an internal "Audit and Oversight" division, which promptly decided not to do anything. So here we are with one Ms. Miranda Brown, having been forced to resign from WIPO, bringing the complaint linked above.

This is all sort of car-crash-as-spectator-sport-level hilarious except when you have to keep in mind that these fine specimens of humanity are supposed to be in charge of the international regulation of intellectual property and associated agreements. If half of this is true I wouldn't put them in charge of a kid's lemonade stand.

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

March 3, 2014

More Evidence People Don't Learn from the PastEmail This EntryPrint This Article

Posted by Alan Wexelblat

In a move that seems to be a direct echo of the old wars around printer cartridges, Keurig appears poised to use an electronic lockout on its coffee makers.

Karl Bode calls this "DRM" but I'm not sure that's the right term. Whatever you call it, it's the same ploy we also saw back in the days of video game console cartridges of using a hardware or software check to block third-party development of reusable or replacement components. In the single-cup-coffee market these components are called "pods" and Keurig wants to force people to buy its pods rather than the (often cheaper) pods made by other companies.

It's ridiculous, it's anti-competitive, and it hasn't worked any of the other times it's been tried. But that doesn't seem to be stopping Keurig.

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

Phoenix (music) Supports Free UseEmail This EntryPrint This Article

Posted by Alan Wexelblat

Phoenix , a band represented by the Australian label Liberation Records, put out a surprising statement last month in favor of fair use. The statement was surprising because Liberation Records had been involved in some hyper-aggressive over-enforcement of copyrights in Phoenix's music.

In particular, Liberation got some notoriety in Copyfight circles for trying to sue Larry Lessig over fair use. Lessig counter-filed, claiming fair use and seeking damages. Liberation backed down, and even paid a small settlement. Apparently, the label acted without the consent of (and even contrary to the interests of) the band, who blogged that they were upset to find out about the label's actions, and that they approved of fans' use of their song "Lisztomania."

I was pleased to see that the band's statement recognized the "illustrative use of our music for educational purposes" - a clear fair use statement - as well as directly encouraging fans.

we encourage people getting inspired and making their own versions of our songs and videos and posting the result online.

It's almost like artists supported creative expression. How about that. (h/t Mike Masnick on Techdirt, where I saw this first)

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

February 28, 2014

February 26, 2014

February 25, 2014

Who's Taking All That Money?Email This EntryPrint This Article

Posted by Alan Wexelblat

Following up on my earlier skepticism about the drive to add royalties to terrestrial radio, Mike Masnick over at techdirt has a story about musicians' changing relationships to streaming services.

He notes that streaming services such as Spotify appear to be paying more than any other source and that in between the person making the payments and the musicians is this giant Cartel of suck called the record labels and much of what they suck is the money that flows on those streams. Dollars you pay to subscribe to Spotify or Pandora turn into pennies by the time they reach the artist, often delayed by months or years.

Back when I wrote that piece (Nov 2012) I suggested we were still in the earliest infancy of streaming services and we should not be making judgments until we had more use, more time, and more data. If the writers Masnick is pointing to (independent musician Ron Pope and polyphonist Benn Jordan) are typical of where we are now then change and maturation are definitely underway.

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

Pointing the Troll Finger in the Correct DirectionEmail This EntryPrint This Article

Posted by Alan Wexelblat

Emory University dean/professor Timothy Holbrook has an op-ed piece up on CNN this week, talking about the patent troll problem. As I've argued in the past, litigating a patent does not make one inherently evil.

Holbrook points out that what he calls PAE's - patent-assertion entities - are often the only way for small businesses, start-ups, or non-profit inventors to get paid for their inventions. If you start from a premise that all patents everywhere are evil and shouldn't exist then I suppose that's a bad thing. But if you believe that people should be able to get compensation for inventions then there needs to be some mechanism to help that. As Holbrook puts it:

[abuses associated with trolls] are not troll problems; they are litigation and patent quality issues. Scapegoating trolls risks disrupting the useful compensatory purpose they serve and may cause unintended consequences in non-troll litigation.

He also notes that the sections of the current proposed anti-troll legislation that were intended to deal with the core issues of patent quality and litigation cost were removed. It's possible the Obama administration could create regulations that affect these important factors, but I'm not holding my breath.

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

February 24, 2014

Pay for (Broadcast) Play RallyEmail This EntryPrint This Article

Posted by Alan Wexelblat

If you're in NYC tomorrow you may want to attend a (free) Content Creators Coalition event promoting their effort to get the United States to add pay for (broadcast) radio play royalties to the mix. It's headlined by David Byrne, from whose email list I got the notice. The event invite has more info on the performer list and event location.

If you've been reading this blog for a while you know that royalties have been a major sticking point for Web radio. Pretty much every form of digital transmission involves royalty payments, but terrestrial broadcast radio has had an historic exception to this requirement, which the CCC and others want changed.

In theory I'm sympathetic to this effort. It's undeniable that people whose music has seen heavy airplay have not been compensated for that play. However, the imposition of royalties on other forms of broadcast/streaming have not served artists well. See the ongoing attempt to drive Pandora out of business by playing royalty shell games. The simple notion that adding royalties to broadcast radio will automatically mean money for artists obscures the vast mechanisms of the Cartel, which have proved adept at extracting money from all and sundry, but have a much worse track record in paying out to anyone. I'd like the CCC - or anyone else who supports adding broadcast royalties - to spell out how this money is going to be different and how it will actually flow to the performers. Once I see that, I'll be more likely to support.

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

February 20, 2014

February 14, 2014

Interesting Patent Note: Reducing to PracticeEmail This EntryPrint This Article

Posted by Alan Wexelblat

One of the important elements in establishing prior art for challenging patents (a big deal these days as we're dealing with more patent trolls) is showing that the invention disclosed in the patent has been "reduced to practice" at some time prior to the patent's claims. Basically, if you can show you were doing a process or using an invention prior to someone making a patent claim then that claim can be invalidated even if you didn't try to patent the thing you were using.

In Solvay, S.A. v. Honeywell Int'l, Inc. the CAFC has affirmed a judgment that the person who reduces an invention to practice does not have to be the inventor. In fact, the inventor was even in another country and although they applied for a patent there (Russia) the foreign patent application wasn't key to this case so much as the fact that the information was communicated to others (in the US) who then reduced the invention to practice.

This is one reason why people interested in busting patents often search for examples of old running systems from the early days of computing. It doesn't matter who wrote the code behind, say, the PLATO chat system - the existence proof of that system is sufficient to invalidate many claims for modern social software.

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

February 13, 2014

This Would Be Why I Renewed My Pandora MembershipEmail This EntryPrint This Article

Posted by Alan Wexelblat

I don't have a lot to add to Mike Masnick's excellent summary of the Cartel's latest shenanigans. Basically, it looks like the labels cooked up a shell game with ASCAP that was designed specifically to drive Pandora out of business.

Masnick calls this "collusion" which is no doubt correct but I bet you could also apply the term "racketeering" to it. Sadly, I'm not a lawyer because if I was, I'd be out there seeing if a RICO case could be made against ASCAP and its label partners. That would be a damned sight more satisfying than settling with the e-book publishers.

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

Talking Seriously About Games and the Public DomainEmail This EntryPrint This Article

Posted by Alan Wexelblat

GOG - Good Old Games is an electronic games-sales store. It has a wide variety of titles but is best known for its namesake: older games that long ago left retail shelves and may be hard or impossible to find from other retailers. Even online retailers need a supply of keys, which make up the inventory of an electronic games store, and there's not a lot of incentive to buy and hold onto keys for old games that people may never buy. GOG, though, lives in the long tail.

Recently, John Walker wrote for RockPaperShotGun an editorial about GOG and included his opinion that games ought to enter the public domain after some time such as 20 years. There are a lot of good reasons for this: demand is low, but old games are inspirational to new gamers and new designers. Games are usually the property of studios or corporations and the people who did the work to make the game aren't going to see any income from long-tail sales anyway. There's an argument that sales can still bring in some money to help maintain servers for online multiplayer, but the vast majority of games don't need these things or can run on donated hardware. Releasing a game to the public domain wouldn't obligate anyone to keep paying monthly bandwidth bills.

Despite the sensible nature of this - 20 years in gaming is approximately forever, for one thing - there has apparently been some kind of uproar, which Timothy Geigner took on for techdirt this week.

Geigner points out the ways in which Walker's proposal appears both sensible and even-handed and highlights some of Walker's responses to his critics, whom he calls both "astronomically false" and "gruesomely inaccurate". It's fun to read and I suggest you read both Geigner's summary and Walker's originals.

Walker touches on several of our common themes: what motivates creative people, what is the purpose of copyright and how has its current maximalist implementation strayed from that purpose, etc. To take a page from the economist's book, it's a fundamental error to treat non-rivalous goods the way we treat rivalrous goods. The creation of a process for releasing old games into the public domain after a long time would enrich our society without impoverishing creators.

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

February 12, 2014

Would Congress Revisit Fair Use?Email This EntryPrint This Article

Posted by Alan Wexelblat

David S. Kemp, a lawyer who writes frequently for Justia's Verdict blog, posted a nice summary of the current American legal Fair Use doctrine.

This comes in response to hearings late last month in front of the House Judiciary Committee, which is apparently considering what it might do to the law. Kemp, following the line of some of the witnesses testifying, believes that Congress should act to strengthen fair use (no duh) but specifics will come in part 2. This column is a review of the current state of the law - primarily the Copyright Act of 1976 - and some of the court cases that have considered it.

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

February 11, 2014

Big Pharma Continues to be Big EvilEmail This EntryPrint This Article

Posted by Alan Wexelblat

Reuters reports that big pharma companies are pushing the US government to bring pressure on India over drug licensing. The issue is not over whether or not a patent can be granted; it's just that India has some requirements that patented life-saving medicines should be subject in some circumstances to compulsory licensing. Drug companies still get to hold monopolies and make money, just not as much money.

Or, you know, they could pressure the Indian government, the US government (in secret, of course) and let more people die. Evil, soulless Mammonites. If I could I'd give every one of them the Midas curse.

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F*ck SpammersEmail This EntryPrint This Article

Posted by Alan Wexelblat

We're getting comment-bombed again. It's been going on for a couple days. I'm cleaning up as best I can, but we might have to turn off comments for a day or two 'till this passes.

Update: the automated filters are catching 99% of the spam. But we're getting 2-4/minute so some are going to slip through. Also, hitting the 'delete' button is not my paying job so please be patient.

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February 10, 2014

The Gospels of PublishingEmail This EntryPrint This Article

Posted by Alan Wexelblat

Under this title, Jim C. Hines would like to give you a commonsense message:

This whole Us vs. Them thing? It’s bullshit.

Hines is referring to the war of words between those who believe traditional publishing and e-book self-publishing are destined to be arch-nemeses in some kind of cartoon version of reality. Hines, who has been on both sides of the deal himself, believes they are not. It's clear that some people do well in each format, but regardless, the number of people doing well is vanishingly small. And of course Hines reminds us that being a (real) writer is a lot of damned hard work and there are no guarantees of success with either route.

I tend to agree with his notion that the low odds of success, large amount of work required, and high stakes of making wrong choices lead people to a level of passionate partisanship that likely exceeds reason. However, I disagree that the two parties are peaceful co-occupants of the landscape. Publishers have been largely reluctant to embrace upstarts such as online self-publishing and while they may invite some successful self-published authors into their exclusive clubs, they do still tend to project an air of being "the" gatekeepers of what ought to be published. The day I see a major publishing house set up a self-publishing arm (or support someone else's self-publishing enterprise in a major way) then I'll revise my opinion.

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February 6, 2014

Sony Throws in the E-Book TowelEmail This EntryPrint This Article

Posted by Alan Wexelblat

Following on Adobe's DRM move earlier this week, Sony has announced it's giving up on e-book publishing.

Sony has never been a big player and there's certainly no direct line from Adobe's move to Sony's, which had to be under discussion for some time. Sony is sending its stored library of (the e-books you thought you bought but really maybe not) to Kobo. This isn't much of a reprieve for readers since Kobo is also a user of the old DRM that Adobe wants to get rid of.

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February 4, 2014

Adobe Plans to Force Everyone to Change to New DRMEmail This EntryPrint This Article

Posted by Alan Wexelblat

Sadly, we can't have only hopeful news today. The Digital Reader reported yesterday that Adobe is planning to push everyone to a new DRM model; along the way existing readers and content will be cut off. I categorically refuse to call this an "upgrade" as Adobe is doing.

I got a good breakdown of the situation from a friend who tracks this marketplace; his assessment is that this is mostly going to hurt the smaller participants. B&N and Amazon, the two giants in this space, don't use the Adobe ACS4 that is being retired. Apple doesn't either, but for all the devices Apple sells, they sell remarkably few books and are not a major player from the publishing side. Most others who publish e-books in ePub or PDF format and want DRM use ACS4; likewise, ACS4 is available on devices like Nook where it's used by third-party publishers who want copy-blocking.

It seems that the use of ACS4 is currently required by many library contracts in order for those libraries to be able to lend out ebooks to be read on Nook devices. This means that libraries will be shut out, or will be in situations where they can't lend older books to users with upgraded tablets (and vice versa). Tablet and smartphone users are likely going to be in better shape as they'll be able to purchase new apps that support the new ACS5 standard. People with dedicated devices (other than Kindle) are going to be badly hit. People who can no longer re-download their e-books due to incompatible DRM formats may be a bit annoyed but anecdotal tales seem to show that people treat e-books largely as disposable items so this may not affect a lot of people. People who must rely on assistive devices such as audio readers (for sight-impaired persons) have my sympathy.

I refer people to my post of April 2012 in which I predicted we would see the end of the dedicated e-reader device in favor of general-purpose tablets. My time window was a little short, but I still think I was fundamentally right. That said, if you're using DRM on your e-books you brought this on yourself and my sympathy is quite limited. Stop letting other people put locks on your stuff and you will cease having these sorts of problems.

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Money SellsEmail This EntryPrint This Article

Posted by Alan Wexelblat

Kim Boekbinder , an artist known for her success with crowd-funded projects, takes to to urge people to buy art where they can.

I've posted a couple of pieces like this already (Scalzi here, and Molly Crabapple here) but I wanted to visit with Boekbinder's piece for two reasons: one is the core argument she's making and two is what I think we're seeing happen in 2014.

Boekbinder's core message is simple: you should pay for art because you can. Whether it's $5 or something bigger, you should be putting that money down for things you care about. Crowd-funding, she argues, is not a form of charity. It's self-interest:

The internet has given us all the opportunity to be engaged in the creation of new art and new knowledge without the need to be corporations, advertisers, religions, or governments. Every choice we make, every action we take, every thing we pay for actively builds the world around us.

There's nothing wrong with, to use her example, paying $5 for a cup of coffee. By doing so, you're sending a signal that you want there to be more five-dollar cups of coffee in the world and that's what's likely to happen.

But if you drop $5 into sponsoring some artist you exchange "life for life" (her phrase). The money you give to artists to pursue their craft continues to pay back as your life becomes enriched. As a result, she argues, we should pay for art what we can, not what pre-Internet market forces have determined prices should be. Not only should you take a flyer on new projects by unproven names, but you should consider a more investment-like approach: "When you are offered a pay-what-you-want scale try entering a value true to your life" even if that's paying $100 for a book or album. If you're a person who makes $100 an hour and this work will enrich your life for more than that hour, isn't it worth that much to you?

As I was reading Boekbinder's column I had a sudden flashback to a point Amanda Palmer tried to make forcefully with her Kickstarter a couple years ago: We are changing from a model where people have to be tricked into paying for things to a model where creative types reach out to "people who love art and want to help."

I continue to think AFP was prescient and the fact that we're seeing several pieces that all are saying similar things indicates that this is the way good stuff of all kinds is going to get made in this century.

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January 31, 2014

January 30, 2014

Mayo Coming Home to RoostEmail This EntryPrint This Article

Posted by Alan Wexelblat

I've written before about how I think the Supreme Court in Mayo muddied the waters rather than clearing them. Now comes Judge Taranto of the CAFC with an opinion in the case SmartGene v. Advanced Biological Laboratories. In this opinion, we find this gem
The Supreme Court in Mayo [...] recognized that "mental processes" and "abstract ideas" (whatever may be the precise definition and relation of these concepts) are excluded from Section 101.
In English what I think that means is that this Judge is writing an opinion citing a SCOTUS precedent that he doesn't think explains anything. Because if the opinion doesn't provide guidance on what might be the definitions of "mental process" or "abstract idea" then how can those concepts be used in a decision by the CAFC that rules on patent validity?

Seriously, guys, WTF? It's like I said "your patent is invalid because hamscrobble berwick" and didn't define that term either. The level of brokenness here is epic and I suppose I should give a nod to Judge Taranto because at least he's willing to say that he doesn't know what Mayo means when it uses those terms. Other judges seem content to go on issuing opinions that claim to be following the Mayo precedent and that therefore those judges understand what those terms meant, which strikes me as highly suspect.

(h/t to Greg Aharonian of PATNEWS for highlighting this decision.)

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January 29, 2014

Three New Models for JournalismEmail This EntryPrint This Article

Posted by Alan Wexelblat

Felix Salmon's blog from a couple days ago looks at three new journalistic endeavors. Each new venture is spearheaded by someone who is already a "name" in Internet journalism and each has a different idea about how to make this kind of business work in the 21st century.

Salmon points out that each of these attempts is "highbrow" by which he means variously that the journalists are taking their work seriously, all have pretty high price tags, and come with high ambitions. It will be interesting to see which of them is able to make it.

Like Salmon I am most excited about Ezra Klein's attempt to do a more networked, more comprehensive, and less time-dictated version of journalism. For a long time the wisdom has been that news has to be "new" and that electronic media would win because it is faster at delivering the latest new thing. Even broadcast television has its news timeslots and 24-hour news channels have schedules to follow.

But maybe news isn't about newness so much as it is about comprehension and understanding. Another thing the net and electronic media are good at is providing comprehensive - some would say overwhelming - amounts of data. That can take the form of a firehose - just search for a common problem like "my cat pees on the carpet" to see how many different answers you can get, not to mention people wanting to sell you products to solve your problem. Or it can take the form of a collaborative answer. This week I remembered the Challenger disaster and found that Wikipedia has a really detailed and thorough page on the event.

These things both have their uses as well as weaknesses and what Klein seems to be proposing is some of the best of both. He wants a site where incremental updates on developing stories are folded into a larger, more comprehensive, and more explanatory whole. This is an idea that I've seen bounced around since people like Ted Nelson first started talking about using hypertext for news, something I heard from him in 1986 or '87. If Klein can make it work that will be a real advance, in my opinion.

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January 28, 2014

Refreshingly Honest Corporate GreedEmail This EntryPrint This Article

Posted by Alan Wexelblat

I'm not going to bore you with a rehash of my ongoing angst over drug IP. Instead I want to focus on a simple statement from the Chief Executive Officer of Bayer, who said in comparing Indian compulsory licensing laws to "theft" (go to the bottom of page 2 if you just want the quote):
We did not develop this medicine for Indians. We developed it for western patients who can afford it.
I'll just let that quote sit there for a while so you can digest it.

Keep in mind we're not talking about a tech toy, a luxury good, or even something moderately useful like a school text. We're talking about medicine. About things that keep people healthy and alive against illnesses like AIDS or cancer. Diseases don't discriminate, but apparently drug companies do and they're no longer ashamed to say so.

Dear Dr. Dekkers. I sincerely hope that neither you nor anyone you care for is ever afflicted with a life-threatening illness. I particularly hope that your privilege and fortune keep you safe from the misery of having a treatable disease but having the treatment withheld because your socioeconomic status doesn't match corporate profit margin forecasts. I thank you for helping me see which side of this discussion I should be advocating for, and I hope that somehow before you die you allow the light of human compassion to illuminate that miserable shriveled hole where you have apparently locked up your soul.

(h/t to Glyn Moody on techdirt, where I saw this first.)

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January 26, 2014

What Should Copyright Look Like Now?Email This EntryPrint This Article

Posted by Alan Wexelblat

Holmes Wilson of Fight for the Future wrote to tell me about a new counter-TPP project they are working on. TPP, as I'm sure you remember, is an attempt to rewrite all the world's intellectual property protection laws in secret, with consultation of big companies sometimes and citizen participation never.

Through their Open Media arm they've kicked off an effort to sample the surface temperature of what people on the Internet see as 'copyright priorities'. Some of the choices are pretty stark: "rules made democratically" versus "protection for media conglomerates" - well, no duh. Others are more subtle: do you value "clear and simple rules" more than "free expression"? Where do "privacy safeguards" fall relative to those two?

Of course we realize that creating a truly 21st-century copyright regime should not be an either-or; it must be a both-and. But somewhere along the way we're going to have to make choices and I'd be interested to know how you ranked their alternatives.

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January 16, 2014

The FCC Lost, not Net NeutralityEmail This EntryPrint This Article

Posted by Alan Wexelblat

Over at ReadWrite, Dan Rowinski has a nice piece pointing out just how limited Verizon's victory was. DemandProgress and others have been spamming me with "NET NEUTRALITY DEAD!" and other alarmist emails, but in reality that's not what the court decided.

As I mentioned earlier this week, what the Court ruled on was not net neutrality itself, but on the power of the FCC to issue such regulations. Rowinski elaborates, pointing out that Verizon raised both First and Fifth Amendment issues and didn't win on those grounds. In fact, the CAFC appears to have agreed that the FCC does have authority to issue regulations much like what net neutrality proponents want, but only for utilities.

The obvious answer is for the FCC to suck it up and reclassify, dealing with the political firestorm that will ensue. That doesn't guarantee that the CAFC (or some other Court) will necessarily agree that the specific regulations are still constitutional in the case of a utility, but it seems like we'd all be much better off.

ETA: Over at Boingboing, Cory Doctorow rounds up several other more realistic takes on the Court's ruling and focuses on the fact that the FCC's rules-as-written "sucked". This decision presents an opportunity to write better rules, assuming one is going to put up with even more howls of protest from industry.

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January 15, 2014

MPHJ ExposedEmail This EntryPrint This Article

Posted by Alan Wexelblat

The EFF has started to pore through and summarize the volume of documents that has been revealed through the ongoing litigation/investigation between the FCC and MPHJ Technology Investments.

MPHJ, generally known as the scanner patent troll, owns patents that, it claims, cover any use of scanners to digitize and send documents. Their methods for attempting to enforce these patents have been particularly odious: they hide themselves inside shell companies and misdirection schemes; they mass-mail small companies with obnoxious threats; they try to pressure scanner makers into having the companies that buy scanners pay off MPHJ. They're like the poster children for bad patent enforcement behavior and now that notorious porno-scammers Prenda have gone down in flames MPHJ seems to have the field of disgusting misbehavior largely to themselves.

As such, they've been the target of an FCC investigation and since the FCC has subpoena powers that mere mortals do not posses this has caused a number of documents to come to light. MPHJ has sued the FCC and filed other documents in support of its suit; the FCC has likewise filed documents defending itself against this suit. All these are filtering into the public record, from which the EFF has concluded that these people are festering pustules on the buttocks of the patent system. No, wait, that's my conclusion.

What got me to write about this is that the EFF has finally said something I've been banging on about in this blog for years: the root of the problem is crap patents, which enable bad actors like MPHJ. EFF's blog posts notes that the patents are "too broad and vague" and even admits that the current Congressional legislative proposals "would largely fail to address the underlying problem of patent quality."

The EFF seems to think that because SCOTUS agreed to hear Limelight v Akamai and Nautilus v Biosig this will somehow "get at the heart of the patent quality issue". Yeah, I'm not so sure. Given the hash that SCOTUS made of the Mayo case I am not hopeful.

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January 14, 2014

FCC Loses Again, and It's Their Own Damned FaultEmail This EntryPrint This Article

Posted by Alan Wexelblat

In a move that surprised approximately nobody, the CAFC has ruled that the FCC lacks authority to regulate "information services" as "utilities." That's unsurprising because about 10 years ago the FCC decided to classify ISPs as information services.

The classification was designed to exempt then-nascent ISPs from the level of regulation that big broadcasters had to follow. Now it's a decade later and there are effectively no differences between the major ISPs and broadcasters - often they're owned by the same parents. But the FCC's regulations are still on the book, and while the court held that the FCC does have the authority to regulate utilities it can't both exempt the ISPs and also try to regulate them.

The obvious solution is to reclassify ISPs properly and continue to work toward providing a level playing field. But that would take some political courage in the face of heavy industry lobbying and howls from Congressional sock-puppets. So I'm not hopeful. The FCC might also appeal this decision but it's going to lose again if it does so.

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January 10, 2014

January 8, 2014

January 3, 2014

December 31, 2013

An Artist's Take on American ClassismEmail This EntryPrint This Article

Posted by Alan Wexelblat

I've tried to champion the notion that creators should get paid, but I've never done it with the verve and raw language that Molly Crabapple uses in her essay "Filthy Lucre" for

Crabapple's essay is about the "foundational myth" of American meritocracy, but along the way she speaks about her own course from being the working daughter of a lower-middle-class single mom to successful artist who can fly first class. She talks about what she needed to do to get where she is and what sort of myths people seem to have about working artists. Let me just quote one bit:

[B]eing an artist means you're in thrall to cash.

My last art show would have been impossible without the money and network of contacts I'd built. I never could have hauled massive slabs of wood up to my old fifth-floor walk-up—never could have painted them in the lightless room I once shared with three roommates. Without an assistant, I never would have had the time to paint my show. Without sponsorships, I never could have afforded the paint. Sometimes, curators look at the work, and say, "Why didn't you ever paint like that before?" I'd answer, "Because no one gave me enough money to be able to."

Crabapple doesn't discount talent - you need to be good enough to get people to give you money for your stuff - but it's the money that makes the art possible.

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Author's Guild Remains Out of Touch with RealityEmail This EntryPrint This Article

Posted by Alan Wexelblat

In a move that should surprise approximately nobody, the Author's Guild has announced it plans to appeal against the the Google Books decision that came down last month. They are also unhappy about printing presses, but decided to defer action on that issue.

It has become increasingly obvious that a move to lock away knowledge because somewhere there might be someone who some day might somehow profit from it is stupid, regressive, a waste of peoples' time and money, and on and on. People of all sorts - not excepting Author's Guild members - benefit from the trove of research materials. If the Author's Guild has concerns (as I do) about giving too much control to one entity doing the digitizing work then it would behoove all of us to negotiate better terms with that entity rather than continuing to drag this thing through the court system.

Sadly, we live in a world where no one speaks for us. The Guild fights for what it thinks its members ought to have, and Google makes the commercial decisions it expects to bring the most benefit. If one or the other of those things happens to be good for the public domain that's at best a fortunate accident.

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December 30, 2013

Open Market, 314, and ObviousnessEmail This EntryPrint This Article

Posted by Alan Wexelblat

In a blog post titled "The CAFC Got it Wrong", Lawrence Stewart discusses a plan to ask SCOTUS to wade back into the patent and patent-obviousness waters. Given what a hash they made of 101 and 103 last time I'm not encouraged but the losers in this case - for whom Stewart works as a consultant - appear to have no other option as the CAFC has ruled against them in Soverain v. Newegg.

The patent at issue here is sometimes referred to as "the e-commerce patent", U.S. Patent 5,715,314. This patent is quite old in Internet years, as it's one of the first filed by a company that was then called Open Market - Soverain now holds Open Market's IP and uses it inside its own current-generation Transact e-commerce system. They sued Newegg contending that the retailer violated the 314 patent and the case has been winding along for years.

The 314 patent is a venerable piece of work. Unlike many of today's software patents, the 314 application included the entire source code and after multiple re-examinations the patent has hundreds of prior art citations. If more software patents were held to that level of rigor we'd have a lot fewer problems, in my opinion. However, the question here isn't its venerability, it's obviousness. Courts asked to rule on obviousness claims can't make judgments based on current understanding. Today HTTP has been around forever and there have been many advances in the art and science of working over stateless protocols. But for someone to claim that the 314 patent discloses something obvious (and therefore invalid) they must rule that it was obvious when the patent was filed. That's a tough job.

Dr Stewart, one of the original founders of Open Market, contends in the blog post linked above that up until recently courts got it right. The 314 patent was not obvious at the time, and it met stringent criteria for validity and usefulness. It has been upheld at trial several times. Recently, however, the CAFC issued a final ruling that two of the claims in the patent were obvious. Soverain has asked the Supreme Court for certatori and Newegg naturally opposes this.

The case is extra-special complicated because there appear to have been legal irregularities in the way the case was handled, not least of them a 17-month delay between oral arguments being heard and a ruling being issued. There are also Seventh Amendment-related issues here as each side makes competing claims about what should and should not have been the subject of a jury trial. Even if SCOTUS takes the case it's entirely possible (I would say likely) that they would not touch the intellectual property issues before settling the procedural and 7th Amendment issues.

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December 29, 2013

December 25, 2013

December 21, 2013

If I Wrote Fiction Like This Nobody Would Believe ItEmail This EntryPrint This Article

Posted by Alan Wexelblat

According to Mike Masnick at Techdirt, Mother Jones has discovered a hilarious goof. A document that the ACLU has been trying to pry loose (and could only get a heavily redacted version of) was left in the open at the Library of Congress because someone at the FBI tried to register it for copyright. Yes, really.

As Masnick points out this is at least three kinds of error: you can't copyright government documents; individuals don't own the documents produced by institutions (including the government); and the entire purpose of putting a copy of a document with the LoC is to make it available to the public.

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Elsevier's "Feeble Facade" CrumblingEmail This EntryPrint This Article

Posted by Alan Wexelblat

Not content with keeping scientific publications off central sites like, Elsevier now appears to have started going after individual researchers' personal sites, usually found at their home university or institute.

Mike Masnick's Techdirt piece from yesterday highlights an incident in which researchers at the University of Calgary in Canada were notified that they had posted their own research papers in violation of Elsevier's copyrights. Andrea Peters at the Washington Post reported that the campaign against authors was alive in the US as well, noting that UC-Irvine and Harvard had gotten takedown notices from the publishing dinosaur.

Mike Taylor at hits back at Elsevier, saying

Whatever feeble facade Elsevier have till now maintained of being partners in the ongoing process of research is gone forever. [...] Elsevier have declared their position as unrepentant enemies of science."

As someone who made his living in research for many years before the Web and a few during its infancy I have to agree. The Web changed everything in terms of how knowledge is spread, how researchers learn about others' results and share their results, and in terms of the ability of new students, young graduates, and even the general public to access scientific knowledge. Elsevier is desperately trying to cling to its 1980s-style model of control in a 2014 world.

Happy holidays academics! Have a lump - of coal or on your head, take your choice. Anyone who submits a paper to an Elsevier publication after this deserves what they (don't) get, but I feel sorry for those who now have to wonder if they're about to be named defendants in "the mother of all copyright battles concerning fair use."

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December 19, 2013

December 18, 2013