COPYCENSE

This week’s mondo edition of Clippings includes the proper use of the word “piracy”; ringtones abuzz; DRM-free audiobooks; and the fashion industry’s attempt to gain copyright protection for designs.

Articles of the Week

Freakonomics (New York Times). The Economics of Piracy (the Real Kind, With Peglegs and Pieces of Eight). Sept. 17, 2007. Finally, finally … FINALLY: a member of the mainstream press uses the term “piracy” in its proper context and definition. We were beginning to lose hope. Seriously, the blog posting links to several interesting articles about valuation in piracy activities. Categories: Framing & Rhetoric.

Roughly Drafted. Apple’s Ringtones and Copyright Law. Sept. 14, 2007.
Daring Fireball. The Ringtones Racket. Sept. 13, 2007.
This pair of articles is a great introduction into the legal and business thicket that is the mobile phone ringtone. Music copyright is an odd mix of rights that differs considerably from the information rights we typically cover in Copycense. (To be truthful, we need to do a better job of explaining music copyright issues, since we talk so much about the music industry.) These articles, however, can serve as a solid introduction to this specialized area of copyright law. They also provide a good business analysis of Apple’s new iPhone ringtone capability, which is a transaction that is separate from a song purchase. These articles are particularly important now, since ringtones are one of the few sources of revenue upon which the traditional music industry can rely. Categories: Mobile Devices; Licensing & Permissions; Remixes & Derivative Works.

Clippings

James Surowiecki. The Piracy Paradox. The New Yorker. Sept. 24, 2007. The author of The Wisdom of Crowds steps into the intellectual property thicket with an article that analyzes the fashion industry’s relatively recent complaints about alleged infringement of patterns and designs. (Folks in this industry call the phenomenon “knockoffs” instead of the misleading term “piracy.”) For more insight to this issue, see H.R. 2033 and S.1957, both entitled the Design Piracy Prohibition Act, which would give registered fashion designs copyright protection for three years. Sen. Charles Schumer (D-NY) is sponsoring the Senate version. Categories: Fashion & Ornaments; Infringement; Legislation & Regulation.

O’Reilly Radar. Carl Malamud Tackles the Copyright Office. Sept. 17, 2007. Malamud is an agitator for free public access to government information, including federal case law. (Also, in the early nineties, Malamud’s work and advocacy were critically important to developing what would become EDGAR.) Now, Malamud has sent a letter to Marybeth Peters, Register of Copyrights, that asks her to “provide bulk access to the copyright catalog of monographs, documents, an serials.” Essentially, what Malamud wants, among other things, is for the public to be able to access the copyright registration database in order to hack some newer, better solution. Malamud has the signed support of university librarians from Harvard, Stanford, the University of Pennsylvania, and MIT. Categories: Open Access; Politics & Government; Research.

Paul McDougall. SCO Blames Linux For Bankruptcy Filing. InformationWeek. Sept. 17, 2007. The marketplace’s adoption of he open source Linux operating system may have been a major reason, but not the only reason, for the bankruptcy. SCO sued software developer Novell in January 2004, claiming that it (not Novell) owned the rights to the Unix operating system. Last month, a federal court judge ruled that Novell owns the copyrights to Unix. Categories: Open Source.

Andrew Adam Newman. EMusic, a Song-Download Site, to Offer Audiobooks. The New York Times. Sept. 17, 2007. And unlike their competitors on iTunes, these audiobooks will be offered in the .MP3 file format, absent of any copy restrictions. This shouldn’t be too much of a problem, since whole audiobooks tend to be very large files that are not easy to copy or distribute across the Web, even at the highest connection or bandwidth. Categories: Books; File Sharing, P2P & Downloads.

Ryan Paul. Leaked Media Defender E-mails Reveal Secret Government Project. ArsTechnica. Sept. 16, 2007. This is but one of several stories Ars has on the approximately 700 MB of MediaDefender’s internal company e-mail that leaked onto the Web last weekend. Ars characterizes MediaDefender as a company that “specializes in file-sharing mitigation.” Ars reports the leak was made easier when a MediaDefender employee forwarded all his work email to a personal Gmail account. We ask: why would any employee do that? Categories: File Sharing, P2P & Downloads; Privacy & Security.

Sam Diaz. New Music Model: Free Before Fee. WashingtonPost.com. Sept. 15, 2007. The Post profiles a new music site, AmieStreet.com, that charges a fee for music based upon its popularity (as measured by the number of downloads). Those who recommend and review music for the site can earn credit toward site purchases. At first blush, the concept seems interesting, especially since it is a riff on the variable pricing model Apple consistently has rejected for iTunes. The site’s catalog, however, is bereft of most major artists, which will hamper customer adoption. Further, there is nothing to indicate the site will be able to win approval from the major labels to allow for distribution of such music. Perhaps their best end game is to make themselves attractive enough to have a major label buy it and use the ideas and technology to sell its own music to compete with iTunes. Categories: File Sharing, P2P & Downloads; Music.

Andrew Adam Newman. Marley Family’s Vitriol Leads Verizon to Bite Back. The New York Times. Sept. 14, 2007. This is a continuation of the Marley-Verizon battle that centers on the cellular carrier’s plan to license Marley songs from copyright owner Universal in order to offer ringtones to the public against the family’s will. Apparently, Verizon and Universal agreed to remove the ringtones from the Verizon Web site, but recanted on the removal when representatives from the Marley estate were not properly deferential and gracious. To date, the concept of moral rights is rather thin in the U.S., and only covers visual art. This clash, however, shows that the concept may need to be available for authors of other forms of creativity. Can you imagine a cellular company and music company being so disrespectful to, say, the repertoire of the Gershwin estate? Categories: File Sharing, P2P & Downloads; Licensing & Permissions; Mobile Devices; Music.

Deirdre McMurdy. Copyright Will Soon See Its Name In Lights. The Ottawa Citizen. Sept. 14, 2007. This is a great article that outlines the state of copyright legislation in Canada, and how the U.S. government influences that legislation. Categories: International; Legislation & Regulation.

Anne Broache and Declan McCullagh. Web Ad Blocking May Not Be (Entirely) Legal. News.com. Sept. 14, 2007. Both Broache and McCullagh typically are good journalists, but this important story is not really their best work. (They refer to an upcoming court case they don’t identify.) Still, the underlying issue — advertisements as a form of speech that receives First Amendment protection — is one of those areas (like making corporations a legal person) that probably was a good idea when the founders wrote the Constitution, but arguably should be revisited due to the perverted ways in which such principles have manifested themselves in today’s society. Categorizing advertising as speech allows spammers to legally challenge anti-spam laws, like the one that is being challenged in Virginia. Categories: Privacy & Security.

Surveillance State. TV Torrents: When ‘Piracy’ Is Easier Than Legal Purchase. Sept. 13, 2007. We wrote about the NBC-Apple breakup last week. What happens to NBC Universal content when it no longer is available through iTunes once its contract expires?

Elinor Mills. Google Proposes Global Privacy Standard. News.com. Sept. 13, 2007. If Google was not in the midst of trying to buy online advertising giant Doubleclick for $3.1 billion — and facing antitrust scrutiny for this proposed transaction — we might be persuaded that the privacy standard talk is genuine. There probably should be a worldwide privacy standard (or standards), but we cannot really take Google seriously on this one given the context in which their proposal arrives. Categories: Privacy & Security.

Public Knowledge. Web Radio Inches Towards a Solution. Sept. 13, 2007. The proposed resolution of Webcasting fees limits liability for large broadcasters that also provide an online feed, but does not provide similar protection for small broadcasters. It’s unclear where Congress or the Copyright Office plans to draw the line between “small,” “medium,” and “large.” But at least this is a start. Categories: Broadcasting & Journalism; Music

Liam Tung. Google Denies Ownership of Users’ Words. News.com. Sept. 12, 2007. When we teach copyright law these days, we spend an inordinate amount of time on the interplay between copyright and licensing, especially clickwrap licenses that are common to free Web applications like Google’s Docs & Spreadsheets. This article outlines the danger lurking in using online applications, especially if the user does not take the time to read the terms of service. Categories: Licensing & Permissions; Web & Online.

Anick Jesdanun. Libraries Facing Internet Traffic Jam. MSNBC.com (via The Associated Press). Sept. 12, 2003. More patrons, more services, more bandwidth, more electricity … and less money. Meet the plight of the modern public library. Categories: Libraries & Information Science; Web & Online.

Thomas Claburn. Fair Use Worth More to Economy Than Copyright, CCIA Says. InformationWeek. Sept. 12, 2007. Last week, K. Matthew Dames opined about the CCIA’s Defend Fair Use campaign. In summary, he was skeptical about CCIA’s aims. This week, CCIA pushes forward with its support of fair use by publishing an economic report (.pdf) that concludes fair use exceptions to U.S. copyright laws are responsible for more than $4.5 trillion in annual revenue for the United States. We’ll report further after we study the report’s conclusions, hedges, and methodology. We can say now, though, that those in support of balanced copyright long have needed the sort of research, lobbying, and public relations power that Big Content has had — and exhibited — almost exclusively over the last three decades. Perhaps CCIA will be the cornerstone of a coalition that can build such an infrastructure. Categories: Fair Use & Other Exceptions; Politics & Government; Research.

Amol Sharma and Christopher Rhoads. NTP Brings More Suits. WSJ.com. Sept. 12, 2007. So-called “patent trolls” are front and center in Congress right now, as members in both houses consider and debate the Patent Reform Act of 2007. It reasonable to argue that the term, attendant controversy, and at least part of the efforts at patent reform, a small patent holding company based in Arlington, VA of which the world knew little until it played a legal game of chicken with Blackberry maker Research In Motion and won $512 million in settlement. Guess what? Like Tony Kornheiser, NTP is back for more cash. Categories: Cases & Litigation; Legislation & Regulation; Patent.

The Iconoclast (CNet News.com). DirecTV Faces Setback In Dubious Antipiracy Campaign. Good. Sept. 12, 2007. The inestimably good Declan McCullagh analyzes a recent Ninth Circuit Court of Appeals decision (.pdf) that essentially says plaintiff DirecTV cannot hold liable two researchers for alleged violations of the Federal Communications Act of 1934 and the Electronic Communications Privacy Act. McCullagh focuses his coverage on DirecTV’s extreme and presumptive behavior towards any customer that buys, programs, or possesses electronic smart cards. Categories: Broadcasting & Journalism; Cases & Litigation.

David Gonzalez. Tempting Diners in Queens With a Pirated ‘El Cantante’. The New York Times. September 11, 2007. We can hear it now: “Would you like a beverage before ordering? How about an appetizer? Let me tell you the specials, which include [enter entree]. And before we begin, would you like a movie to take home with you? One for $7, four for $20.” And if you’re El Cantante director Leon Ichaso, what do you say when illegal copies of your movie are offered to you at dessert? As one important aside, this article indirectly confirms what we’ve alleged before on these pages: in many cases, the leaked copies originate from the studios or an outsourced editing shop. One would think that if there would be a business model for “secure studios”: places where the employees are fingerprinted, monitored, and perhaps even bonded as a condition of working. This might be one way to stem the flow of illegal content from the source. As a second (more important) aside, though, almost everyone in the article who’s “victimized” by the (likely) infringement concede that the distribution rings the illegals operate are far more efficient and advanced than whatever Hollywood has in place right now. Maybe there’s a lesson there. Categories: Film & Video; Infringement.

Public Knowledge. Fall Policy Preview: Copyrights (and Patents) Return to the Headlines. Sept. 11, 2007. PK’s (newly wed) Gigi Sohn provides a thorough update of copyright and licensing legislation that is on Congress’ docket for the remainder of the 110th Congress. This final quarter of 2007 will be particularly interesting, as it is common for large copyright owners to push hard for protectionist legislation late in a year (or at the end of a Congressional term) as the [Congressional] clock winds down to zero. Although Term 110 does not officially end until Dec. 31, 2008, Dec. 31, 2007 can be considered the de facto end of term because next year is a presidential election year. Although stranger things have happened (including the never-ending possibility of horse trading for presidential support in exchange for legislative support on pet bills), most of Congress is too busy with the presidential race to worry about intellectual property legislation. But again, stranger things have happened. Categories: Legislation & Regulation.

Ones We Missed

(Interesting stories that we found after the previous editions of Clippings went to press.)

The Patry Copyright Blog. Copyright Always Is Government Intervention. Sept. 10, 2007. Razor sharp William Patry assesses the CCIA fair use initiative, and gets tons of comments in the process. (Patry continued the thread on Sept. 12.) Categories: Fair Use & Other Exceptions.

Law.com Blog Network. Lawyer Sanctioned for Plagiarism in Brief. Sept. 7, 2007. A federal bankruptcy court judge levies disciplinary sanctions against an Iowa attorney for filing a brief where about 85 percent of the brief consisted of a verbatim copy of a law review article. (“Mr. Cannon’s only significant modification to the Article text he incorporated into the pre-hearing brief was to delete certain passages, including some that would not support Defendant’s attempt to remove counsel for Trustee,” wrote bankruptcy judge Paul J. Kilburg.) The court forced the lawyer, Peter Cannon, to return the fees he charged his client in the case, and “complete a law school or equivalent course in professional responsibility on or before August 31, 2008.” K. Matthew Dames has written about the distinction between copyright infringement and plagiarism; from the facts, it seems the law review publisher may have a valid action for copyright infringement as well. Categories: Infringement.

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