COPYCENSE

Copycense Clippings returns full-throttle this week with Kim Hagedorn at the helm. We have Article and Quote of the Week goodness, and a CommuniK. Clipping about a Colorado decision in which the plaintiff sought $100,000 because the Internet Archive’s search spider crawled her site. And it seems that no Clippings edition these days would be complete without some doublespeak.

Finally, but most importantly, we continue to get new subscribers to our RSS feed on a frequent basis. Welcome to the new subscribers, and thank you to the existing subscribers.

Articles of the Week

Katie Hafner. History, Digitized (and Abridged). The New York Times. March 10, 2007. Katie Hafner discusses the other side of the digitization trend: artifacts too old or fragile to be digitized. May articles that remain outside the digitization trend be forgotten? Categories: Books; Film; Digitization.

Nick Wingfield and Ethan Smith. Music’s New Gatekeeper. The Wall Street Journal. March 9, 2007. Typically, we are loathe to link to Journal articles because they are not readily available online without a subscription. Fortunately, this one happens to be freely available, and it is an outstanding profile of iTunes’ inner workings, including deal details and artist angst. What becomes apparent is that despite Apple’s rather successful attempt at positioning itself as the consumer’s champion in the digital music realm, it also has become a tough negotiator and competitor, as befits its status as the fourth-largest music retailer in the U.S., behind Wal-Mart Stores, Target and Best Buy.

Quotes of the Week

“These are not just legal wars. They are public relations and political wars.” — Trial attorney Richard Scruggs.

Joseph B. Treaster. A Lawyer Like a Hurricane. The New York Times. March 16, 2007. This quote has absolutely nothing to do with the normal issues we cover on Copycense. In fact, Scruggs’ name doesn’t resonate at all in the technology or intellectual property areas, although some readers may remember the name from Big Tobacco litigation. (Scruggs’ role in Big Tobacco litigation was dramatized by the actor Colm Feore in the 1999 film “The Insider.”) Still, this quote encapsulates the current, ongoing, global legal struggle between creators, corporations, consumers, and the cash that sits between the three. Certainly, the content industries recognize how important it is to frame issues through public relations expenditures, and to ply Congressmen with “research” that “proves” the deleterious of things such as “file sharing.” Such material ostensibly makes it way into the Congressional Record as committee testimony, and ultimately becomes grist for the legislative history of newly enacted copyright bills. Unfortunately, some communities and organizations that seek a balanced approach to copyright (i.e. Electronic Frontier Foundation, Library Copyright Alliance, Public Knowledge) have been slow to recognize the importance of the politics and public relations, or have been unable to consistently summon the resources necessary to effectively sway politicians or public awareness of these issues. Categories: Law, Legislation & Regulation; Libraries & Information Centers; Politics & Government.

“I acknowledge that mistakes were made here.” — U.S. Attorney General Alberto Gonzales.

John M. Broder. Familiar Fallback for Officials: ‘Mistakes Were Made.’ The New York Times. March 14, 2007. Forget for a minute that almost every news photo of U.S. Attorney General Alberto Gonzales published last week makes him look like he had to tell his mother his last report card contains an unacceptable grade, and is trying to diffuse the expected punishment. One thing Mr. Gonzales has learned how to do is engage in doublespeak. As with the prior Quote of the Week, this story — outlining the bipartisan use of the non-comittal, mealy-mouthed phrase “mistakes were made” — has little to do directly with the intersection of business, law, or technology, at least on its face. But since doublespeak and spin are such an integral part of today’s intellectual property debate, we feel compelled to present this story.

CommuniK. Clippings

Technology & Marketing Law Blog. Can a Spider Enter Into a Binding Contract? Internet Archive v. Shell. March 14, 2007. A federal case from Colorado hits squarely at the interplay between licensing and copyright. Plaintiff Suzanne Shell runs the Web site Profane Justice, which is “devoted to providing information, services and other advocacy on behalf of individuals accused of child abuse or neglect,” according to the opinion. (.pdf)

Now, in order to see the Web site’s content, you will have to read and agree to a pop-up disclaimer that says “I agree to this site’s use and purchase as published in the copyright notice on each page.” Unfortunately, one cannot read the copyright notice before assenting to this condition.

If one hits the “Cancel” button at this point, a second pop-up appears which states: “If you disagree with the terms, you must indicate your disagreement, by leaving this site or closing your browser now.” At this point, the only browser choice is “OK.”

If one hits the “OK” button, you are forwarded to the site’s home page. It is unclear whether this means you have consented to the copyright notice that you have not yet had a chance to read.

As for that copyright notice, once could claim it is pretty extreme. At a minimum, it is lengthy. [Editor’s Note: A user must go through the same browser sequence outlined above in order to see the copyright notice. According to the decision, Internet Archive claims this click-through sequence was not in place when it visited the site.] Basically, the notice charges users $5,000 for each individual page copied “in advance of printing,” grants Shell a perfected security interest of $250,000 “per each occurrence of unauthorized use” of the website in all of the user’s land, assets and personal property, and claims the user agrees to pay “$50,000 per each occurrence of failure to prepay” for use of the website, among other things.

Chutzpah she has.

Shell sent a letter to Internet Archive (IA) in December 2005 that sought $100,000 in damages for its archiving of the Profane Justice site; Shell threatened to sue if she didn’t receive the payment. IA filed a declaratory judgment action in a California federal court in January 2006, seeking a judicial determination that it did not violate Shell’s copyright. Shell counterclaimed against IA in February 2006, and added IA founder Brewster Kahle and others as defendants.

In the end, the district court in Colorado concluded it could not make a determination on the contract claim because it did not have enough facts to do so. (We wish other courts facing similar situations would take this route instead of making law based upon incomplete facts.) This case, however, is worth watching, since it gets at some fundamental legal questions about Web site content.

• First, to what extent can search engine spiders freely troll other’s content?
• Second, what (if any) responsibility does a Web site owner have to place code on his Web site to prohibit search engine spiders from indexing that site’s content?
• Third, if a search engine is making money, directly or indirectly, from indexing content, to what extent does the Web site owner have some claim to that commercial activity?
• Fourth, to what extent can search engine spidering be considered fair use? Does this answer change if the entity or person that owns the spider is directly or indirectly generating income from the spidering activity?

All of these questions, of course, are questions Google is wrestling with. And therefore we ask again that nagging, but important rhetorical question: will copyright be to Google what antitrust was to IBM? Categories: Bundle of Rights; Cases & Litigation; Licensing & Permissions; Web & Online

BBC News. Viacom Will Sue YouTube for $1bn. March 13, 2006. Since everyone seems to have an opinion on this case, we’ll refrain from adding much to the cacophony of voices. Still, opining is something we do; we’ll be brief.

First, we feel it is important to remember that Viacom and Google already were negotiating how to post Viacom content through YouTube. (Comedy Central is a Viacom property, and YouTubers routinely post clips from Viacom’s The Daily Show with Jon Stewart.) This suggests, that Viacom is using threat of legal action to seek an edge in negotiations. It is a common tactic: this is the same thing the Association of American Publishers has done with the Google Book Search litigation.

Second, Stanford law professor Lawrence Lessig keenly observes that this lawsuit is a high profile progeny of the U.S. Supreme Court’s 2005 opinion in MGM v. Grokster, which held that software companies can be held liable for copyright infringement when individuals use their technology to download songs and movies illegally. Applied to this case, Viacom argues that YouTube is a technology that “induces” third parties to access Viacom clips illegally. Will this argument be persuasive? It is likely we’ll never know, which brings us to our final point.

This lawsuit will not go to trial. It will settle out of court because (a) the vast majority of lawsuits settle before trial; (b) Google (and likely Viacom) does not want to spend the resources or weather the risk it takes to have this adjudicated in court; and (c) the parties are negotiating already. The issue now for the two is to develop a business template that other content owners can use going forward. Categories: Bundle of Rights; Cases & Litigation; Film; Licensing & Permissions; Web & Online.

Clippings

• James Boyle. Google and the Rocks in the Web’s Safe Harbours. FT.com. March 16, 2007. The razor sharp James Boyle argues that the legal arguments Google can use to avoid copyright infringement in the Google Book Search litigation may not necessarily get the company out of hot water when it comes to alleged infringement on YouTube. Categories: Cases & Litigation; Infringement; Web & Online.
• ArsTechnica. Victims Fight Back Against DMCA Abuse. March 16, 2007. DMCA takedown notice abuse has been occurring for quite a while, the result of misunderstanding, miseducation, or intentional commercial mischief (in the case of retailers such as Best Buy and Wal-Mart, who routinely use DMCA takedown notices to squelch the release of uncopyrightable, factual holiday sales information). Now, finally, Electronic Frontier Foundation has been filing lawsuits against parties that incorrectly use the takedown notice provisions. One of these lawsuits persuaded Michael Crook, who misused the procedure to remove images of him owned by parties other than himself, to settle the lawsuit, in part by posting an online apology. (Crook made it a habit of responding to Craigslist personal ads, getting personal details from those he considered “perverted,” then posted this information online.) Categories: DMCA; Web & Online.
• Reuters. EU Consumer Chief Sounds a Softer iTunes Note. News.com. March 15, 2007. Meglena Kuneva, EU Commissioner, must have received some serious backlash regarding her comment about iTunes, since she has now softened her view. On March 11, 2007, she was quoted as saying “Do you find it reasonable that a CD will play in all players, but an iTunes song will only play on an iPod? It doesn’t to me. Something must change.” This now well-known quote was left out of her press release made on March 15. She claims that she wasn’t instigating or supporting legal action but just wanted to “raise questions.” Categories: DRM & Copy Protection; International; Music; Tech & Devices.
• American Library Association. House Passes Open Government Legislation, Senate Introduces Companion Bill. March 15, 2007. I am a librarian in training so these stories catch my eye. ALA members are rejoicing since the House passed the Freedom of Information Act Amendments of 2007 bill (H.R. 1309) on March 14, 2007. This bill lessens the restrictions that former Attorney General John Ashcroft imposed in 2001. The ALA is requesting that members send a note of thanks to their representative if they voted for the bill. Categories: Law, Legislation & Regulation; Libraries & Information Science.
• Charles Babington. Charges Dropped Against HP’s Dunn. WashingtonPost.com. March 15, 2007. Remember all that hue and cry last year about the HP “scandal,” with “leaks” to the press, black bag operations, and things that go thump in the night? Nothing. It amounted to zero, zilch, zip, nada. Not only is Dunn fully exonerated, three others who were charged will have their misdemeanor convictions erased from their criminal record once they complete community service. Even allowing for a new California attorney genera (from Bill Lockyear, who filed the charges, to Jerry Brown, the state’s former governor), the resolution suggests these were cases that never should have been filed in the first place. Categories: Cases & Litigation; Privacy & Security.
• Sheryl Gay Stolberg and Jeff Zeleny. ‘Mistakes’ Made on Prosecutors, Gonzales Says. The New York Times. March 14, 2006. If you ever thought the U.S. Attorney’s position was simply law and order and devoid of politics, this scenario should forever put that thought to rest. And also think about the doublespeak Attorney General Gonzales has engaged in as he and the rest of the presidential administration continue to spin like a Yugo caught on black ice. (See our Quotes of the Week.) Categories: Law, Legislation & Regulation; Politics & Government.
• Daily Blog Tips. Copyright Law: 12 Do’s and Dont’s. March 14, 2007. Some great quick tips on copyright can be found here. The blog says the tips are for online publishers, but we think they are useful tips regarding copyright for everyone. Categories: Bundle of Rights; Web & Online.
• ArsTechnica. Motion-Based Analysis Can Filter Copyrighted Video Clips. March 14, 2007. Ikena Copyright might save such video sharing sites as YouTube. This new program can locate with 99.99% accuracy pirated material. The program uses motion to determine if something is a copy rather than the traditionally used color, audio, or histogram. Categories: DRM & Copy Protection; Film; Infringement.
• Peter Fleisher and Nicole Wong. Taking Steps To Further Improve Our Privacy Practices. March 14, 2007. Google is making a drastic change to their privacy policy. They will be keeping individual information on users for 18 to 24 months after which it will be anonymized. Google claims they need to keep it that long in order to gather data to better serve prove their users. That is quite a long time to keep data when useful statistics can be gathered from anonymized data such as user gender or what services are used – I don’t see how having someone’s name helps them with gathering information to improve their services. Their new policy should be implemented within a year. Categories: Privacy & Security; Web & Online.
• Breitbart.com. Dogs Used To Tackle Movie, Music Piracy. March 13, 2007. MPAA is testing a new method to combat movie and music piracy – polycarbonate sniffing dogs. A test run that took place in a Malaysia airport was successful. The dogs located pirated copies of the long-running television sitcom Friends. Categories: Film; Infringement; International; Music.
• Simon Aughton. Universal Begins DRM-free Downloads Trial. PCPro.com. March 12, 2007. Universal is following in EMI’s shoes by testing DRM-free downloads. But don’t get your hopes up just yet. EMI has withdrawn from talks with digital music stores regarding DRM-free downloads. Only time and results will tell which direction Universal will go. Categories: DRM & Copy Protection; File Sharing, P2P & Downloads; Music.
• Declan McCullagh. Magnolia Pictures Sends DMCA Subpeona to Google, YouTube. News.com. March 7, 2007. Google is being hit left and right with lawsuits and subpeonas because of YouTube. Just before they were hit with the Viacom lawsuit, Magnolia Pictures subpeonaed Google to provide them information on the user “halifaxion.” (Magnolia is owned by Dallas Mavericks owner Mark Cuban, and is the studio that released the Academy Award-winning documentary Enron: Smartest Guys in the Room.) Now recently, YouTube (and increasingly, Google) have developed an alarming habit of rolling over and granting these DMCA subpoena identity requests without challenge. We wonder if the companies will continue this unfortunate trend. Categories: DMCA; Film; Web & Online.
• ALA TechSource. Dear Library of Congress … March 7, 2007. The Library of Congress met with Google at the end of February to discuss user access needs, and requested comments regarding the meeting. Librarian Karen Schneider offers hers. This article is interesting because Schneider mentions the lack of librarian representation in the IP arena. This is one of the reasons I (Kim) became interested in attending law school. I agree with Ms. Schneider but I also think it is a two-way street: there is a lack of understanding of the intellectual property laws by librarians. Categories: Libraries & Information Science; Law, Legislation & Regulation.
• Glen McGee. A Hostile Environment for Documents. The Scientist.com. March 2007. We’ve been remiss about failing to report on the closing of EPA libraries, and this article outlines the loss. While the wholesale site closings have ceased for right now, users are saying that documents are now disappearing. Categories: Libraries & Information Science.

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