COPYCENSE

This edition is so thick and heavy, it groans under its own weight. We feature lots of material, including an Oregon mother winning attorneys fees in her three-year battle with the music industry; hanky panky between a Canadian copyright official and a copyright lobbyist; creating false license codes as a new way to illegally tap content; and “360 degree” deals that take money away from musicians.

Articles & Quote of the Week

“I don’t know how those people can sleep at night doing what they’re doing. I really don’t.”
— Tanya Anderson

A little more than a week ago, Marketplace produced a three-part series on the music industry’s litigation campaign against citizens that allegedly are engaged in copyright infringement through so-called “file sharing.” Our Quote of the Week is from the series’ first report, in which an Oregon single mother recounts her three-year litigation odyssey with the RIAA. The RIAA accused Anderson of engaging in illegal “file sharing,” but dropped its claim after three years once it could not produce any evidence that Anderson had downloaded a single music file to her computer.

Last Friday, a federal magistrate judge granted (.pdf) Anderson’s request to recoup attorney’s fees from RIAA, concluding the following:

In this case, plaintiffs dismissed their claims before any rulings on any significant legal issues under the Copyright Act, or the factual issues associated with plaintiffs’ claim. Choosing that course, on this record, should be deterred in light of its potential chilling effect on the public’s access to creative works. If this were to become a more typical course in prosecuting the type of allegations faced by defendant, it is reasonably foreseeable that members of the public would be more hesitant to use the Internet to share creative works in general, regardless of whether their specific conduct violated copyright law or occupied an area yet to be addressed by copyright law.

Copyright holders generally, and these plaintiffs specifically, should be deterred from prosecuting infringement claims as plaintiffs did in this case. Plaintiffs exerted a significant amount of control over the course of discovery, repeatedly and successfully seeking the court’s assistance through an unusually extended and contentious period of discovery disputes. Nonetheless, after ample opportunity to develop their claims, they dismissed them at the point they were required to produce evidence for the court’s consideration of the merits. Despite the protracted nature of this action, at this point, as noted by plaintiffs, there is no explanation for the inconclusive nature of the evidence relevant to their claims. Plaintiffs assert that the unresolved, or unresolvable, status of the merits provides no basis for deterrence. Plaintiffs are incorrect, because this case provides too little assurance that a prosecuting party won’t deem an infringement claim unsupportable until after the prevailing defendant has been forced to mount a considerable defense, and undergo all that entails, including the incurring of substantial attorney fees.

Given the facts of this case, we’re a bit puzzled why Anderson’s attorneys did not seek more punitive measures against RIAA counsel, such as Rule 11 sanctions, which allows for sanctions against attorneys who bring litigation or sign pleadings, motions, or other court papers that “cause unnecessary delay or needless increase in the cost of litigation.” (One reason may be they are simply too busy; another may be that such a move could delay payment of attorneys fees and other costs.) Still, it seems Anderson’s attorneys, Ray Beckerman and Ty Rogers, have found a template for fighting spurious RIAA lawsuits. Oddly enough, the template seems to be to simply follow the law.

Recording Industry vs. The People. Tanya Andersen’s Motion for Attorneys Fees Granted by Magistrate: “These Plaintiffs … Should Be Deterred.” Sept. 22, 2007.

Marketplace. Music Biz’s Future Rests on Key Changes. Sept. 19, 2007.

Marketplace. Free? Illegal? … What’s the Difference? Sept. 18, 2007

Marketplace. No Pause In Music Industry’s Tough Play. Sept. 17, 2007.

Clippings

Gary Anthes. Happy Birthday, Sputnik! (Thanks for the Internet). Computerworld. Sept. 24, 2007. Arguably, the Internet marked change the nature and interpretation of intellectual property law. This article chronicles the events that led to the Internet’s creation. Categories: Research; Science & Medical; Web & Online.

Brooks Barnes. Disney Tolerates a Rap Parody of Its Critters. But Why? The New York Times. Sept. 24, 2007. This short, but interesting article discusses Disney’s failure to invoke a DMCA takedown notice against a YouTube video mashup that uses several of its videos and animated characters. Interestingly, the Times story does not provide a direct link to the video, one of which is available here. The story quotes the executive direct of Stanford’s Fair Use Project stating that media companies have tolerated mashups, a statement that surprises us. Of course, the same companies have been fairly intolerant of any other uncompensated use that could reasonably qualify for one or more codified copyright exceptions. Categories: Fair Use; Film & Video; Remixes & Derivative Works; Web & Online.

Michael Geist. Canadian Heritage Copyright Policy Rocked By Conflict of Interest Concerns. Sept. 24, 2007. It seems love (or at least lust) is in the air up north, as the Canadian press reveals (and Geist confirms) that the Director General of Copyright Policy at Canadian Heritage has had to resign because she has been romantically involved with a copyright lobbyist. Neri reportedly has appeared testified on matters with the lobbyist in the room. We think that constitutes just a minor conflict of interest, wouldn’t you say? (According to its Web site, Canadian Heritage “is responsible for national policies and programs that promote Canadian content, foster cultural participation, active citizenship and participation in Canada’s civic life.”) Geist asks the pertinent question: If the announcement is just coming out now, and Neri has not been at work since Labour Day (which was the same weekend as Labor Day in the U.S.), when did the Canadian government know about this problem and why is it just coming to light now? Categories: Politics & Government.

Robert Plummer. Online Music Fees Pose Digital Dilemma. BBC News. Sept. 24, 2007. BBC reports that days before the New York Times Magazine published its lengthy interview with music producer and Columbia Records co-chairman Rick Rubin (in which he promoted a flat-fee, online subscription music service), Sony, Columbia’s parent, had killed off the company’s online music store. So much for the right hand knowing the left hand’s activities. Categories: File Sharing, P2P & Downloads; Music; Web & Online.

Emiliano de Pablos. Spain Pioneers ‘Legal’ Piracy. Variety. Sept. 23, 2007. False license codes? Folks are now creating and using false license codes to access intellectual property now? This is probably so illegal, but so sickeningly next level that to some degree, you have to hand it whomever thought this out. Categories: Film & Video; Infringement; Licensing & Permissions.

WebTVWire.com. Viacom Believes In Fair Use: Michael Fricklas Gives Views On Copyright Infringement. Sept. 23, 2007. Public Knowledge’s Art Brodsky analyzes the warped interpretation of fair use that Viacom’s general counsel holds. This is the same person who told Beet.TV that he didn’t have a problem with mashups, but that he had problems with copying protected works. Not for nothing, but virtually every derivative work (including mashup) necessarily requires making a copy. (Also, check out Fricklas’ Freudian slip, where he starts his explanation of fair use with the statement “Fair use was a concept … .”) Categories: Fair Use & Other Exceptions.

Mike Musgrove. Online CD Seller Fights Suit. WashingtonPost.com. Sept. 22, 2007. This is getting to sound like the setup to a one-liner: So a large record company files another lawsuit that alleges copyright infringement. Big Woo!! What’s really funny is that the lawsuit involves a California resident’s online auction sales of promotional CDs. (We couldn’t make this up if we tried.) So, let’s get this straight: a large record label has decided to sue a person for selling promotional CDs it gave away for free in exchange getting airplay, from which it hoped it would generate sales. That’s so asinine, we don’t know how to respond. Categories: Cases & Litigation; First Sale; Music.

Katie Dean. Copyright Blues: Venues Not Singing Happy Tune Over Fee to Songwriters. Madison.com. Sept. 22, 2007. Newspaper readers typically don’t realize that writers usually don’t craft their own story headlines. This can lead to a disconnect between the headline and the actual story content, which is the case here. This headline suggests that owners of live performance venues do not want to pay any music royalty fees, when in fact these owners really are complaining about having to pay a band, then pay ASCAP, then BMI, then (possibly) SESAC … and then deal with “the strong-arm tactics and legal threats the national copyright organizations use to ‘educate’ local establishments.” The article also dispels the myth that license royalties are spread evenly amongst all a performance organization’s members. Categories: Licensing & Permissions; Music.

Brian Prince. Using Licensing Strategies to Deal with Piracy. eWeek. Sept. 21, 2007. This sounds like someone is wearing a thinking cap (or at least willing to acknowledge another way of doing business). In last week’s Clippings, we linked to a New York Times story that chronicled how customers could get illegally reproduced film DVDs in unusual places like restaurants. Film director Leon Ichaso, one of the people affected by this alleged infringement, conceded that organized infringement rings that sell illegal DVDs and compact discs typically have better distribution methods than the major film and music producers. This story discusses Uniloc‘s plan to use peer-to-peer and warez sites as authorized computer software license distributors. If Uniloc can work out the wrinkles in this plan, it could be a brilliant maneuver. Categories: Computers; File Sharing, P2P & Downloads; Licensing & Permissions.

Andrew D. Smith. Bedford Mom Sues Virgin Mobile Over Teen’s Photo In Ad. DallasNews.com. Sept. 21, 2007. Ahhh, the joys and frustrations of user-generated content. A Texas mother whose teenage daughter is featured in a Virgin Mobile advertisement has sued the mobile telecom provider and Creative Commons, but the news story is poorly reported. The complaint (.pdf) alleges Alison Chang, 16, is the only minor whose photograph is featured in the Virgin campaign, and that use of her image violates her privacy, and is libelous, among other issues. There are a ton of legal issues here, all of which together would make a great exam question. First of all, does the mother have standing just because her daughter is involved? It seems the daughter is the proper party in interest, rather than the mother. Second, what are the Texas state laws concerning one’s right of publicity, and then how does that conflict with any contractual agreement (i.e. licensing agreement or terms of use) that Flickr has with the photo’s copyright owner? And then why sue an Australian unit of Virgin Mobile? And, why in the world did Virgin Mobile use these photos anyway? Surely, it has enough money to work with an outfit like Corbis and avoid this problem altogether. … See, this is all too complicated already, but Creative Commons board member Lawrence Lessig discusses this issue at length. Categories: Cases & Litigation; International; Licensing & Permissions; Visual Art.

Charles Babcock. Software Freedom Law Center Files First U.S. Suit To Uphold GPL. InformationWeek. Sept. 20, 2007. The Law Center was founded in 2005, and provides legal representation to protect open-source software. It has accused California-based Monsoon Multimedia of including creating products that use open source code in a way that violate the Free Software Foundation’s General Public License. This is the first such lawsuit in the United States. Categories: Cases & Litigation; Open Source.

Short Sharp Science (New Scientist). Publishers Prepare for War Over Open Access. Sept. 20, 2007. In the Information Age, no document is safe from being leaked (to the extent that we have to wonder whether the “leaks” are intentional efforts to obfuscate truth and real motives). Therefore, we have to be a little skeptical about the alleged leaked plans (.pdf) from the publishers’ public relations representative, which purport to detail strategies on how to derail open access. Categories: Books & Publishing; Framing & Rhetoric; Open Access.

Thomas Wilburn. Online Music Distributors: Song Licensing a Painful and Expensive Process. ArsTechnica. Sept. 20, 2007. A Digital Media Association representatives chronicles to an audience at the Future of Music Policy Summit his members’ problems with finding songwriters and owners. You can’t license work if you don’t know who owns the work, and the inability for well-intentioned businesses — who are seeking to make money for themselves and others — to find copyright owners accurately and quickly can be linked to this country’s failure to have mandatory copyright registration. Categories: Licensing & Permissions; Music; Registration; Web & Online.

Steve Gordon. RIAA Eyes Radio’s Billions. The Register. Sept. 20, 2007. For all the might the music lobby has in Washington, its power pales in comparison to the political power the broadcasting industry wields. This is one reason why radio broadcasters do not have to pay recording labels for the music they play. (Broadcasters pay fees to songwriters, but not to labels.) This fact also manifests itself in strategy: we suspect one of the reasons Big Music has come after consumers for pittance amounts of money is because music industry executives know they could never get big money from the broadcasters because the broadcasters would crush them on Capitol Hill. This story is a great summary of the history of that arrangement in the U.S. Categories: Broadcasting & Journalism; Politics & Government.

Eric Bangeman. RIAA “Boilerplate” Complaint Comes Under Fire in Yet Another P2P Case. ArsTechnica. Sept. 20, 2007. Razor sharp William Patry emphasizes in his treatise the importance of federal civil procedure and practice on copyright litigation. Consistent with this theme, we have wondered aloud in these digital pages why more defendants have not sought Rule 11 sanctions from Big Music attorneys on the grounds that insufficient complaints are wasting the time of the federal judiciary. (To be fair, filing a Rule 11 motion presumes (a) you have the money to do so; and (b) you consent to the jurisdiction of the federal court system, thereby tacitly legitimizing the complaint.) Now, it seems like defendants are challenging the industry’s P2P lawsuits on procedural grounds. We’ll continue to follow this story. Separately, we plan to publish our interview with William Patry in its entirety soon. Categories: Cases & Litigation; File Sharing, P2P & Downloads.

Bill Carter. NBC to Offer Downloads of Its Shows. The New York Times. Sept. 20, 2007. NBC says the show downloads are “free,” but read the fine print on this deal. You will not be able to transfer the shows to another computer. The downloads will not work on a Mac. The files will self-destruct on your computer after seven days. And the downloads are available only after a 7-day waiting period. And we know nothing about the interface and the online shopping experience (which content providers typically design poorly). Why would any customer bother with this? Separately, there is no indication (in this story, at least) that this move will upset NBC’s recently signed distribution deal with Amazon.com’s Unbox service. Categories: Broadcasting & Journalism; File Sharing, P2P & Downloads; Film & Video.

Paul Sweeting. Consumer Backlash Against DRM Could Fire. Video Business. Sept. 19, 2007. A former Sony executive and CEO of a forensic tracking company claim it’s not the technology, stupid; it’s the way the entertainment business has chosen to apply the technology. When isn’t that the case? Categories: DRM & Copy Restriction; Film & Video.

Canadian Internet Policy and Public Interest Clinic. Digital Rights Management and Consumer Privacy: An Assessment of DRM Applications Under Canadian Privacy Law. Sept. 18, 2007. CIPPIC, whose mission it is “to fill voids in public policy debates on technology law issues, [and] ensure balance in policy and law-making processes,” has issued a report (.pdf) that concludes many DRM technologies threaten personal privacy, and organizations that use such technologies often fail to comply with basic requirements of Canadian privacy law. This is an organization with which Michael Geist is affiliated; that fact alone is enough for us to feel comfortable that the organization is credible and its work product likely is stellar. Categories: DRM & Copy Restriction; International; Privacy & Security; Research.

Kembrew McLeod. Uri Geller’s YouTube Takedown. LATimes.com. Sept. 18, 2007. Iowa scholar McLeod, whom we consider one of today’s best writers and scholars on copyright and other intellectual property issues, chronicles and opines on a series of YouTube DMCA takedowns from a person who is featured in the allegedly infringing videos, but whom may not be owner of those videos. That a non-owner may remove allegedly offending material is one of the DMCA’s many holes. Categories: DMCA; Film & Video; Web & Online.

Faster Forward (WashingtonPost.com). Debating the Future of Music. Sept. 18, 2007. Post technology writer Rob Pegoraro records various and sundry observations from this year’s Future of Music conference in Washington, DC. Categories: Events; Music.

CNNMoney.com (via Investors Business Daily). Macrovision: Legal DVD Copying On Deck. Sept. 18, 2007. The leading manufacturer of copy restriction technology for video cassettes and DVDs claims it clients (the movie studios) are considering allowing home consumers some home taping rights. Why would you ever believe this claim coming from this source? Categories: DRM & Copy Protection; Film & Video.

Ones We Missed

(Interesting stories we missed after we sent previous editions to press.)

News Blog (News.com). Copyright Office Chief: I’m a DMCA Supporter. Sept. 17, 2007. To some degree, it’s difficult to comment on what Marybeth Peters is alleged to have said at the Future of Music Policy Summit in Washington, DC. (This outlet, and others, are reporting that Peters said she supports the Digital Millennium Copyright Act, and at a separate time, acknowledged she does not own a computer or DVD player.) We’d prefer to see live video ourselves, or at least to have a reliable transcript. It’s easy to focus on a handful of statements that one can interpret out of context. Having said that, however, we ask how an administrative public official can judge the efficacy of a law or policy under her purview without having any knowledge about the sociological and technological factors that go into enacting or enforcing that law or policy? Further, is it appropriate for such an official to make any comment — positive or negative — about legislation that is under her purview (especially when Congress will ask her to weigh in on such legislation)? Categories: U.S. Copyright Office.

Listening Post (Wired). Radiohead Blows Off ITunes, Sells Full Albums in MP3 Format. Sept. 17, 2007. Radiohead, an English band that is wildly popular with select U.S. audiences, signs a digital distribution deal with London-based outlet 7digital, and does so without copy restriction technology. More than a matter of doing business with the home team, Radiohead cites its desire to sell its catalog as entire albums as a major reason for rejecting a deal with Apple’s iTunes. (iTunes requires artists to sell single tracks from all their albums.) Categories: International; Licensing & Permissions; Music.

Clare Matheson. Music Giants Change Their Tune. BBC News. Sept. 13, 2007. A couple of weeks ago, BBC ran a story about “360 degree deals,” contracts between a musical act and a record label in which the label handles (and controls) not just album production and distribution, but also revenue lines that traditionally have been left to the artist (including tours, merchandising, management and publishing). What this article does not mention — and something K. Matthew Dames did mention in a recent CommuniK. column — is that these sorts of initiatives come at the expense of the artist. Categories: Music.

InsideHigherEd.com. ‘New York Times’ Enters Distance Learning Market. Sept. 7, 2006. The Times Co., parent company for the newspaper, is touting this initiative (press release) as the beginning of the end of the traditional college textbook, among other things. With this move, the Times more closely mirrors The Washington Post Co., which long has had a presence in the education market through its ownership of Kaplan. Clearly, the commercialization of education is far beyond for-profit schools like Strayer and Phoenix. Still, as K. Matthew Dames alluded to last week in his editorial, it remains to be seen whether this trend is positive for education generally, or students specifically. Categories: Education; Web & Online.

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