COPYCENSE

We have provided a full slate of Clippings before the holiday break, with stories and commentary on a small, middle America music publishing company that effectively has halted musical sampling; the real importance of YouTube; Apple’s response to Zune; legislative wheeling and dealing during Congress’ lame duck session; and the growing problem of a new disease called EDTS (errant DMCA threat syndrome).

Best to you and yours over the Thanksgiving holiday.

Article of the Week

Nolan Strong. Bridgeport Music Files Lawsuit Against Jay-Z Over ‘Justify My Thug.’ AllHipHopNews.com. Nov. 6, 2006. The Sixth Circuit’s 2004 decision in Bridgeport Music v. Dimension Films, in which the court held that the Copyright Act’s fair use clause is inapplicable within the context of music sampling, will continue to have a huge affect on contemporary music for two reasons. (See CopyCense coverage on how this decision halted sales of Notorious B.I.G.’s Ready to Die.) First, the plaintiff music publisher controls the copyright to several integral soul and funk compositions that are popular with the hip hop community. Second, much of hip hop still implements sampled recordings.

Third, contemporary popular music is rooted in (or influenced by) hip hop implements, leading to a higher possibility that a composition will contain samples. Fourth, and finally, the Bridgeport decision is so inconsistent with prevailing fair use constructs from other federal circuits that the Supreme Court may actually decline to hear the appeal on certiorari because most of the other circuits are not as stark in rejecting fair use. The Court typically will hear a case when it determines it is clear there is a wide divergence in opinion in several circuits. If, however, only one of the circuits holds anomalously on a broad concept that has been addressed across the federal court system, the Court is more likely than not to let that anomaly stand.+

Quote of the Week

What makes [YouTube] so revolutionary is that it’s one of those Internet moments where something that used to be hideously difficult — to the extent that you didn’t do it — all at once, almost overnight, became easy. Video just used to be a terrible experience on the Web: files wouldn’t load, or you’d be told you needed software. Or you’d wind up seeing the dreaded word: buffering. And almost overnight, YouTube made that go away. You saw video on Web sites, and you weren’t afraid to click on it. If you were a Web site designer, you weren’t afraid to use it. That was a remarkable change in opening up the promise of video. — Jason Fry, assistant managing editor, The Wall Street Journal Online.

Fry’s comments on NPR’s Talk of the Nation last week echo what he wrote in a Nov. 13 article published in The Wall Street Journal Online. We believe the NPR broadcast (.ram) is superior because it includes an interview with James Boyle, a Duke law professor who also is one of the masterminds behind Tales From the Public Domain: Bound by Law?, the first copyright comic book.

For all the talk about YouTube and the copyright issues at stake, Fry reminds us of why YouTube (and protecting the underlying sharing principle it manifests) is so important. Insightfully, Fry tells host Lynn Neary that the real importance of YouTube’s posting of Saturday Night Live’s “Lazy Sunday” skit was more than a copyright issue: in many ways, it made SNL relevant again to viewers who had abandoned the show. We’d add that this consumer-driven identification of relevance and freshness is stronger than any advertising a content creator could conceive.

Yet, Neary points out the inherent double standard that YouTube’s presence manifests. Content creators can benefit from the audience driven legitimacy a strong showing on YouTube presents, but they also exclusively control when or how to remove that content. We would agree that copyright owners should have primary control over how others use their works, but we also would demand a counterbalance to that control, one which does not seem to be evident in today’s hyperactively protective environment.

Separately, we look askance at Big Content’s intentional exploitation of the double standard. They act like a cop who allows every car to exceed the speed limit by 20 miles per hour, only to arbitrarily choose which driver among dozens will receive a speeding ticket. This sort of selective prosecution not only is inconsistent; it fosters a fundamental distrust of large, corporate content-owning entities. Some of the deep seated distrust consumers have of Big Content — everything from rigged CD prices, to ridiculous concert ticket prices, to computer viruses being marketed under the doublespeak of “digital rights management” — contributes mightily to many consumers’ unwillingness to play by traditional rules.

But there is really no stopping YouTube. For one, it represents a chance — however brief — for consumers to “stick it to the man” by remixing other’s work. Additionally, YouTube has a great technology: it legitimately and greatly simplifies the traditional problems consumers have had with watching video online. Finally, we think people honestly think that they are sharing works they post to YouTube and, in some way, helping to bring to broader light events that others may have missed. (Increasingly, YouTube has been used to document abuse such as police brutality and human rights violations.)

For these and other reasons, we believe it is appropriate that Time Magazine has called YouTube the “Invention of the Year” for 2006. The questions that remain include whether YouTube ever will be allowed to evolve beyond its current position. If not, what we will remain is exemplified by a column written by ESPN’s Bill Simmons. The article, “The YouTube Hall of Fame,” has been rendered irrelevant by links to videos that had been on YouTube, but which have been removed for copyright reasons.

Is this swiss cheese, residual approach to content what people really want?

Things We Missed

Google Blog. Spot On. Oct. 31, 2006. With all the hubub about YouTube and Google, we missed the fact that Google bought JotSpot, the popular wiki software.

CommuniK. Clippings

Ars Technica. Best Buy Tries to Copyright Sales Prices. Nov. 14, 2006. As we approach the Thanksgiving holiday in the States, we also approach that gross cultural abomination called the holiday shopping season. And for about five years now, holiday shopping season has ushered in a new, legal abomination: errant DMCA threat syndrome (“EDTS”). EDTS is a severe, seasonal affective disorder in which major retailers such as Wal-Mart and Best Buy threaten informational Web sites with a DMCA-sanctioned blackout pursuant to Section 512 should those sites publish so-called “Black Friday” sales information before those stores are ready to publish that information. (“Black Friday” is a term the retail industry uses for the Friday after Thanksgiving, which officially begins the holiday shopping season. The term was coined as a play on the financial phrase “in the black,” or profitability.)

Of course, it doesn’t matter that advertising information is clearly factual information, and therefore ineligible for copyright protection. Under the DMCA takedown and safe harbor rules, this critical fact actually is irrelevant. Of course, the defending Web sites could bring legal action, but (a) this costs money many of them do not have to spend, and (b) would do nothing to avoid having their Web sites shut down for the mandatory 10-day period. Conveniently for the retailers, this 10-day period would span the entire Black Friday weekend.

EDTS has become rampant over the last few years, and to date, the only known cure is an amendment to the DMCA (or a judicial decision) that would codify and enforce automatic financial damages against any entity that invoked the takedown procedures for clearly factual information. This has a snowball’s chance in hell of ever happening.

The Patry Copyright Blog. Why UK Scholars Eat Our Lunch. Nov. 14, 2006. William Patry weighs in — rather heavily — on American legal scholarship’s dirty little secret: its system of scholarship is questionable, its peer review process non-existent. Law reviews are managed, operated, edited, and produced by second- and third-year law students, almost none of which have the requisite legal (or writing, or editing) skills to properly challenge, audit, or improve serious legal scholarship. What makes the situation worse, though, is that legal scholarship increasingly is interdisciplinary. For example, we just came upon a new publication, Empirical Legal Studies, which covers the emergence of empirical scholarship in the legal academy. In other words, this group of law professors is seeking to apply social science methodology, both quantitative and qualitative, to the law, resulting in a data rich level of case analysis, content analysis, and statutory analysis. In contrast, many third year law students are ill-equipped to do statutory analysis properly; how, then, would these students be in a position to edit or gauge the quality of an empirical legal study as the editor of a law review? Patry’s post points to a 2004 article by Seventh Circuit judge Richard Posner that more thoroughly analyzes this system.

Clippings

• Greg Sandoval. Movie Studios Sue DVD-to-iPod Service. News.com. Nov. 17, 2006. So, let’s get this straight. You go to your local store (physically or virtually) and you pay full price for Season 6 of The Sopranos. You want to view these discs on your iPod. You’re in a hurry.You ask a commercial service to load the DVD content — the content you’ve already paid for — onto the iPod you’ve bought, also with your own money. And this allegedly is illegal? Electronic Frontier Foundation includes the complaint (.pdf). The organization is 100 percent correct when it says this is copyright gone too far.
• Association for Computing Machinery. Meet the New Boss: Outlook for Technology Policy in the Next Congress. Nov. 16, 2006. ACM’s public policy staff has written a good overview of how a new Congress likely will vote on technology issues. As we discussed last week, a Democratic Congress does not ensure intellectual property fairness.
• Louis E. Frenzel. Digital TV: Issues And Impacts. Electronic Design. Nov. 16, 2006. A good primer on the various issues related to serving digital television, and by extension, the broadcast flag.
• Sean Captain. So Much Music, So Few Choices. The New York Times. Nov. 16, 2006. Little new here for our regular readers, but the article does highlight that some musicians like Sonny Rollins are using the virus-free .mp3 format for online music distribution, and depending using that as an incentive for live performance participation. We’ll also note for the record that The Saxophone Colossus is leveraging YouTube’s technology to help him broadcast some of his live performance videos from his home page.
• Daniel Terdiman. Second Life Faces Threat to Its Virtual Economy. News.com. Nov. 15, 2006. This is affirmation that Second Life is as close to real life as possible. It now has a copyright problem. IPTA Blog adds an interesting perspective to this issue, as does Edward Felten’s Freedom to Tinker.
• Gigi B. Sohn. Still Sticking It to the Consumer. News.com. Nov. 15, 2006. Public Knowledge‘s president warns us: beware the lame duck session of Congress. This period virtually rivals no other for the amount of Congressional wheeling and dealing that occurs in our nation’s capital. Ostensibly, this is the time of year when egregiously bad copyright laws miraculously appear on the books with little notice, no debate, and nary a whiff of negotiation. Journalistic integrity obliges us to note that Big Music capo Cary Sherman weighed in on this same issue (we presume News.com intended a mano a mano debate), but Sherman’s take on fair use is predictably narrow, and his lobby’s efforts at “educating” Boy Scouts and primary school children are offensive.
• MacNN. Apple, Airlines Offer iPod Integration. Nov. 14, 2006. And, um, what was the name of Microsoft’s new digital music player?
• Charles Hutzler. Gutierrez Urges China Piracy Crackdown. Boston.com (via The Associated Press). Nov. 14, 2006. Trade agreements are the new copyright legislation. This is significant enough that we will write about this separately, perhaps in an a CommuniK. piece or as an article for one of our print partners.
• Lifelong Learning. Of the Case for Fair Use: Digital Distribution of Course Materials — Market Failure. Nov. 13, 2006. Georgia Harper analyzes the economic calculus courts seem to use to determine the fourth factor in fair use analysis, set against the context of educational uses of protected works.
• Light Reading. BitTorrent Video Store Delayed. Nov. 13, 2006. This illustrates the enormous paradox that is occurring in the content industries. On the one hand, Big Content struggles with its irreversibly broken current business model and, in a state that is panicked, arrogant, stupid, and confused all at once, it does nothing but file lawsuits, hoping this tactic can by it some time to get itself together. Savvy companies who understand the current content environment have provided Big Content with solutions. Apple handed the entire digital music market on a platter. Instead of working with Apple to provide the best customer experience possible, Big Music has its hand out, asking for a larger slice of a pie that had no hand in making. Facing a torrent of lawsuits, which were validated by the Supreme Court’s Grokster decision, BitTorrent pledged to work with Big Content. As a distributive technology, BitTorrent is fantastic. But now the company is flailing because Big Content won’t provide … well, content. And content executives wonder why consumers get exasperated and simply ignore them.
• Richard Siklos. A Struggle Over Dominance and Definition. The New York Times. Nov. 12, 2006. Google’s YouTube purchase reignited debate over whether Google is a media company, or otherwise pushing itself toward being, effectively, the King of All Media. Google makes its money in advertising; media companies understand and operate on advertising as well. Perhaps the two camps are not as far apart as we originally thought.
• BBC News. Public ‘Support Longer Copyright.’ Nov. 12, 2006. Recall the Australian government’s assessment that Big Music’s infringement claims are “epistemologically unreliable”? Until Big Music proves otherwise, we will presume most of its survey findings are “epistemologically unreliable,” calling into question the veracity of this claim.
• Nailchipper. Implications of the Web for Free and Open Source Licenses. Nov. 12, 2006. An interesting thought piece on EULAs within the context of Web-based applications.
• Ars Technica. RIAA Defendant Argues Damages Are Excessive. Nov. 11, 2006. Finally, it seems like a legal team is stepping up to the plate and challenging Big Music on the merits of its spurious claims. We understand the economics of litigation — without cash, you can neither assert your rights nor defend yourself against questionable claims — which is why we’re surprised organizations like Electronic Frontier Foundation have not been a bit more active in protecting some of the public in the most egregious music file sharing cases.
• Gary Shapiro. Tenure Online. The New York Sun. Nov. 3, 2006. Is traditional, stodgy academia prepared to give equal weight to publication in open access journals when faculty get evaluated for tenure? The day is coming where a young faculty member will have nothing except open access citations. According to Issues in Scholarly Communication, that day is sooner than later: UMI (known to doctoral candidates and recipients as the company to which dissertations are sent for microfilm publication) is now offering an open access option for students submitting their theses or dissertations.

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