Copycense Clippings (Sept. 4 – Sept. 10, 2007)

This edition of Clippings includes articles about Illinois’ State’s Digital Citizen Project; another federal court rejection of the USA PATRIOT Act; NBC hopping in bed with Amazon soon after breaking up with Apple; ISPs cutting off customers who have had too much to drink; and a priceless Site Check video.

Article of the Week

Patrick Ross. Fair Use Is Not a Consumer Right. Sept. 6, 2007. We agree with Ross that “consumers need a better understanding of both the rights of creators as well as the limits on those rights through fair use” and that “education is the right approach.” Where we disagree — vehemently — is that organizations like the Copyright Alliance are those that should be providing the “education.” (Editor’s Note: Read the full commentary and analysis in K. Matthew Dames’ recent CommuniK. editorial.)

CommuniK. Clippings

John Letzing. Lawmakers Take Aim at Patent Speculators. MarketWatch. Sept. 7, 2007. Categories: Framing & Rhetoric; Legislation & Regulation; Patent.

We’ve not posted from MarketWatch in quite some time, so it’s interesting to see this type of article in a financial publication. We have a few observations. First, we note the continued use of the term “patent trolls.” Unlike “piracy,” which at least has a legal definition (albeit one that is not used or used improperly), “patent trolls” is a meaningless unphrase that is even more severe than “piracy” because it has no legal meaning whatsoever. Unfortunately, the term “patent trolls” has been used as the basis for intellectual property policy and legislation, including the Patent Reform Act of 2007.

Second, what is wrong with being a patent holding company (which is what some refer to as “patent trolls”)? Large copyright holding companies in this country — Disney, Viacom, and Universal among them — are admired, protected, and tremendously influential in getting protectionist copyright legislation passed in their favor. They engage in financial speculation with their assets. They are aggressive about suing to protect their portfolio assets (anyone hear about lawsuits against alleged illegal file sharing), and industry applauds those efforts not only as right, but just. To hold patent holding companies to a different commercial, legal, or social standard is the height of hypocrisy. As an attorney quoted in the article notes, “No one looks at real-estate investors who speculate as trolls. They’re admired for what they do.”

Finally, any policy or legislation that is based upon the alleged affect of “patent trolls” is bad policy or legislation because such policy is based upon framed, spun, one-sided rhetoric. But it seems Congress has made a practice of passing intellectual property legislation that is based upon framed, spun, one-sided rhetoric. Perhaps Congress needs to do a better job of getting better information (or at least information from parties other than those who have a direct interest in the legislation). Perhaps citizens and policy groups who want more equitable laws need to do a better job of presenting their side of the policy story. Perhaps both?

Site Check

This anti-piracy spoof, created by the makers of British sitcom The IT Crowd, is raw, rude, crass, irreverent … and priceless.


Apple Unvarnished. Steve Jobs’ Other Mistake. Sept. 10, 2007. An interesting post-mortem on the iPhone pricing snafu that poses an interesting question: will Apple be more interested in serving its customers or becoming partners with Big Content? The iPod is Apple’s crown jewel, and the one thing it needs is content. Preferably fresher, newer, and buyable content. Since Apple and Steve Jobs are one and the same, it’s significant that Jobs both is chair of the company that makes the iPod, and on the board of directors of one of iPod’s major content providers (Disney). It will be interesting to see how this all plays out. Categories: Film & Video; Mobile Devices; Music.

John Timmer. Science Gets Its YouTube On With SciVee. ArsTechnica. Sept. 10, 2007. This concept — scientists (who, after all, are responsible for creating the Internet) using the Internet to summarize and extend research findings — is so “duh” and so brilliant at the same time. Categories: Education; Science & Medicine; Web & Online.

Eric Bangeman. With Trial Date looming, RIAA Tries to Avoid Facing a Jury. ArsTechnica. Sept. 10, 2007. This article identifies a possible factual and procedural hole in the RIAA lawsuit scheme (we’d really like to hear Patry’s opinion on this, since he’s quite knowledgeable about the intersection of federal civil procedure and copyright litigation). The piece also suggests, perhaps unwittingly, one solution to this copyright mess: mandatory registration. We know that since U.S. became signatory to the Berne Convention, copyright registration is optional. But that policy change has seriously harmed this nation’s copyright system, in our estimation. Without mandatory registration, we have the orphan works problem. Without reliable registration, one cannot legitimately contest ownership should there be a question over ownership. Patent and trademark law require registration and committee review for all mark applicants; why not for copyright? Categories: Cases & Litigation; International; Registration.

Brock Read. The First Close Look at Colleges’ Digital Pirates. The Chronicle of Higher Education. Sept. 7, 2007. Page A1. While this story is unavailable on the Web without a subscription, we felt it was too interesting not to mention. The article talks about Illinois State University’s Digital Citizen Project, and some of the Project’s preliminary research findings. “The Digital Citizen Project … has benefited from considerable entertainment-industry financing, including an influx of several hundred thousand dollars that came shortly after [a late 2006] meeting. Later, Illinois State secured promises that the information the university collects will not be used to prosecute students. … The university opened up its campus network, collecting never-before-seen data on what files students were swapping and how they share them. It has started to survey students’ opinions on copyright, hoping that a scholarly study will reveal how they can be persuaded not to download illegally. It is also working to create a sort of Consumer Reports for antipiracy tools, testing both legal downloading services and technology designed to block peer-to-peer file sharing. The first results from the research are startling: They show that record companies and movie studios have reason to complain about campus piracy. … But the project’s other preliminary conclusion may steel college officials who argue that entertainment-industry groups — and lawmakers — should dial back their invective. According to Illinois State’s tests, the technology tools that the industry is recommending to block illegal transactions may have only a limited effect. In April they captured just a small percentage of the university’s pirated files.” Categories: Education; File Sharing, P2P & Downloads; Research.

Richard B. Schmitt. Federal Judge Strikes Down Part of Patriot Act. Baltimore Sun. Sept. 7, 2007. The U.S. District Court for the Southern District of New York again has held that a provision of The Patriot Act is unconstitutional. Judge Victor Marrero wrote in a 103-page decision that National Security Letters violated the First Amendments. The letters are a sort of discretionary, administrative subpoena that federal law enforcement officials issued to businesses (including ISPs) that are performing an inquiry into suspected spying or terrorism. Upon receipt of such an inquiry, a business (including a library or Internet service provider) is required to release records that are requested in the Letter. Further, the business’ employees would be banned from telling anyone about the subpoena. This opinion (.pdf) is the second time Marrero has found Patriot Act provisions to be unconstitutional. Categories: Cases & Litigation; Legislation & Regulation; Privacy & Security.

Kim Hart. Shutting Down Big Downloaders. Sept. 7, 2007. Taking up too much bandwidth on your ISPs network? You risk the provider turning off the spigot. This brings up three somewhat unrelated thoughts. First, if the shutoff is the answer to perceived bandwidth hogging, and bandwidth hogging reasonably is presumed to relate to heavy multimedia download traffic, then it seems ISPs have a way to monitor possible copyright infringement through extensive downloading of media files the subscriber hasn’t purchased or does not legally own. Second, what standards does the ISP use to determine that a customer is using an unreasonable amount of bandwidth? Third, the discussion of bandwidth (and the possibility of bandwidth overconsumption) reminds us that the United States customers endure “only ‘basic’ broadband, among the slowest, most expensive, and least reliable in the developed world,” according to a Foreign Affairs article from Thomas Bleha. Applied here, maybe customers are using too much bandwidth, but maybe ISPs need to provide more at better prices. Further, you can’t really discuss the whole “Net neutrality” debate without asking why the U.S. lags so far behind Asia and Europe in broadband deployment. Categories: Privacy & Security; Web & Online.

ArsTechnica. RIAA File-Sharing Case Ending With Squabble Over Check for Attorneys’ Fees. Sept. 6, 2007. It figures that after being beaten in court, the RIAA would play games with the attorneys’ fees it owes Debbie Foster, whose counterclaim against Capitol Records was dismissed in July 2006, but nevertheless was proclaimed to be the prevailing party in the copyright action. Foster subsequently requested, and won, attorneys’ fees. Categories: Cases & Litigation; File Sharing, P2P & Downloads. (via Associated Press). Justice Department opposes ‘Net Neutrality’ Laws. Sept. 6, 2007. The mainstream press has given little coverage to the once white-hot Net Neutrality debate, but the Justice Department’s opposition to the concept — which seeks to keep Internet service equally accessible for all users without exception — is important information. DoJ’s rationale is the predictable “open market” argument: “The FCC should be highly skeptical of calls to substitute special economic regulation of the Internet for free and open competition enforced by the antitrust laws. Marketplace restrictions proposed by some proponents of ‘net neutrality’ could in fact prevent, rather than promote, optimal investment and innovation in the Internet, with significant negative effects for the economy and consumers.” The Department’s filing is available from its Web site. Categores: Legislation & Regulation; Web & Online.

Brooks Barnes. NBC in Deal With Amazon to Sell Shows on the Web. The New York Times. Sept. 5, 2007. Within a week of announcing it was ending its partnership with Apple, which provided television show episodes through iTunes, NBC Universal inks a deal with for the online retailer to sell video downloads. The shows will be sold through’s Unbox download service. Categories: File Sharing, P2P & Downloads; Film & Video; Web & Online.

Grant Gross. Consumer Groups Back Patent Bill. PCWorld. Sept. 4, 2007. The Electronic Frontier Foundation is among the groups that is supporting the Patent Reform Act of 2007. Public Knowledge provides a good summary of the legislation. Categories: Legislation & Regulation; Patent.

Edvard Pettersson. Universal Music Sues Eisner-Backed Veoh Networks Over Web Site. Bloomberg. Sept. 4, 2007. A Big Content company suing another for alleged copyright infringement is commonplace these days. And it doesn’t matter that the alleged infringer, a video site, has substantial financial backing from former Disney CEO Michael Eisner. Veoh had anticipated the lawsuit, since it filed a declaratory judgment in August, asking the court to determine that its service passes legal muster. Categories: Cases & Litigation; Film & Video.

The Patry Copyright Blog. Golan’s Copyright Lows. Sept. 4, 2007. Razor sharp William Patry analyzes the 10th Circuit’s recent decision (.pdf) in Golan v. Ashcroft, which used the First Amendment to revive another legal challenge to the Copyright Term Extension Act‘s (.pdf) retroactive removal of some works from the public domain. Categories: Cases & Litigation; Public Domain & Term.

Associated Press (no author cited). Microsoft Fails to Win First Round Making Open Office XML a Global Standard. Sept. 4, 2007. Microsoft’s effort to standardize its own version of XML has been in high gear since Massachusetts opted in 2005 to standardize with the Open Document Format, a move several library representative organizations supported. (Last month, Massachusetts decided to approve Microsoft’s XML initiative.) Others have criticized Open Office XML as another Redmond ploy geared toward dominating the desktop. It is true that we now exist in a sociological environment where people are creating and storing an increasing number of documents online using online tools such as Google Notebook or Google Docs, but the Open Office XML/ODF battle will continue to be relevant for several reasons, not the least of which is creating digitization standards for the innumerable physical documents that already exist, but need to be made virtual. Categories: Computers; Digitization; Open Access.

Eric Wilson. Before Models Can Turn Around, Knockoffs Fly. The New York Times. Sept. 4, 2007. Here’s one for you, just in time for Fashion Week: “An expert working with the designers’ trade group [Council of Fashion Designers of America] estimates that knockoffs represent a minimum of 5 percent of the $181 billion apparel market.” So let’s break this down a bit. First, if we use just the numbers we’re given, the CFDA estimates the “knockoff” market totals “at least” $9 billion. But what, exactly, is a “knockoff”? And is a knockoff a copyright infringement? Can an industry that historically has had (and, to some degree, welcomed) the presence of knockoffs legitimately lobby Congress for a change in the law that will give increased copyright protection to fashion designs? (Because, you know that is where this is going: straight down the same path that boat builders paved in 1998.) And, finally, can we rely on any research a trade group publicizes when it is about to lobby Congress for increased copyright protection? Categories: Fashion & Ornaments; Legislation & Regulation.

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Written by sesomedia

09/11/2007 at 08:00

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