COPYCENSE

The Clippings train continues, pulling in with stories about Jerry Seinfeld’s wife and spinach; iPods and the TEACH Act; downloads and taxes; movies and advertisements; and a sincere, well written, well considered recitation from a publisher (gasp!!!) about the problems it faces with infringement from potential customers who likely mean well, but misunderstand the Copyright Act of 1976.

Articles of the Week

The Movie Blog. Why Commercials Before Movies Is Worse Than Piracy. Oct. 16, 2007. A simply great, common sense, well deserved rant about the evils of in-movie advertising. Categories: Film & Video; Infringement.

EnvironmentalChemistry.com. Plagiarism, Copyright Infringement, Fair Use and Environmental Organizations. Oct. 16, 2007. Regular readers know we have not hesitated to strongly criticize publishers for their consistently overreaching allegations of copyright infringement. We never have said, however, that publishers do not suffer copyright infringement; certainly infringement and plagiarism hurt small publishers in disproportionate way. This post is one of the most honest, candid, spin-free explanations we’ve seen about how infringement hurts publishers. What’s more, this editor concedes fair use exists, but cogently explains that fair use is not a license to commit infringement. We urge officials at the Association of American Publishers to study this article thoroughly and use it as a case study in how to explain the infringement issue to the public, instead of continuing the ineffective, often disingenuous, propaganda-laden scorched earth campaign it has pursued to frighten its audience into copyright compliance. Further, we encourage the public to use fair use and other copyright exceptions to their full limit; we also urge the public to pay for the information and entertainment you use and enjoy. Categories: Fair Use & Other Limitations; Infringement; Web & Online.

Quote of the Week

“Good teaching shouldn’t be unlawful.” — Rebecca Tushnet

43(B)log. iTeach. Oct. 11, 2007. Georgetown law professor Rebecca Tushnet mentions what a shame it would be if innovative language learning initiatives (such as the one occurring in New Jersey using iPods) had to succumb to an inflexible copyright regime. Categories: Education; Mobile Devices.

Technorati Tags: Copycense, Copycense Clippings, K. Matthew Dames

CommuniK. Clippings

Miguel Helft. Google Takes Step on Video Copyrights. The New York Times. Oct. 16, 2007. Google’s plan to fingerprint video in order to prevent infringement depends upon content owners giving Google their content. Since many content developers consider Google a competitive distribution threat even without the content, the question is why would content owners provide Google the source material it has been missing to become a full-fledged content powerhouse? Surely, Google will research the content to find new business models that cause larger threats to the content industry.

And, in the meantime, contributing to this plan would seem to dull the infringement sword copyright owners have been using to control Google. This seems a recipe for disaster for contributing content owners.

Many online commentators opined on this initiative. Jeremiah Owyang’s opinion echoes ours to some degree: he suggested content owners may want to look at other options before agreeing to submit to Google’s proprietary fingerprinting.

Public Knowledge’s Gigi Sohn opines that Google “blinked,” which in her mind means a curb in the free flow of information over the Internet. We think that view is a bit dire: technically, any copyright owner could use the Copyright Act to curb the free flow of information over the Internet. That’s one of the things monopolies do: curb what is otherwise free. The question, then, is how to limit the monopoly when there is virtually no precedent for repealing or reversing the monopoly’s growth. Categories: Cases & Litigation; Film & Video; Web & Online.

Merissa Marr and Kevin J. Delaney. Disney, Microsoft Lead Copyright Pact. WSJ.com. Oct. 19, 2007. The Five New York Families — um, we meant Walt Disney Co., Microsoft, NBC Universal, Viacom, and CBS (among others) — have agreed not to sue Internet companies for copyright infringement if their sites adhere to certain principles, such as eliminating copyright-infringing content uploaded by users to Web sites, and blocking any infringing material before it is publicly accessible.

As a practical matter, Internet companies (at least service providers) already have this protection under the Digital Millennium Copyright Act, so this condition is moot. The second prominent condition — blocking infringing material — is something Google is testing, but Google, curiously, is not part of the group. (And this probably is because this is a concealed effort to crush YouTube, or at least stall its development until the Families can put together an alternative.) But let’s take this a step further. One could say, reasonably, that there may be no practical way to block infringing material before it is publicly accessible. Google has some of the best technical minds in the world looking at this problem, and its engineers cannot develop a sure solution, at least so far.

The other problem with automated blocking of infringing material is that this condition presumes that any use of the Families’ protected content without permission and without compensation is, de facto, an infringement. Therefore this condition renders irrelevant all the codified copyright exceptions in Sections 107 through 122 of the Copyright Act. It is no different than signing a license agreement in which a signee loses all exceptions because the agreement’s terms and conditions eliminate them, and the contract gets adjudicated under state law instead of federal law.

And doesn’t this sound mysteriously similar to the Microsoft-Novell pact, in which Microsoft announced it would not sue individual, non-commercial developers for patent infringement so long as developers work with Novell instead of RedHat? Categories: DMCA; Film & Video; Online.

Clippings

Katie Hafner. Libraries Shun Deals to Place Books on Web. The New York Times. Oct. 22, 2007. The Open Content Alliance — not Google or Microsoft — strikes deals with several repositories, including the Smithsonian. (This is the same institution who struck a deal in April 2006 that restricted its archives to near-exclusive use by Showtime.) The article suggests libraries are rethinking collaborations with commercial entities, which may place restrictions on alliances that run counter to the library’s mission. If this is true, we thin there are two ways to consider that stance: first, it’s good that libraries want to retain notions of universal access; second, maybe it’s time libraries change their missions to allow collaborations with businesses in the expectation that a well-considered collaboration will provide broader access than the library could provide alone. Categories: Books; Digitization; Libraries & Information Science.

Andrew Adam Newman. Penguin Audio Ends EMusic Deal. The New York Times. Oct. 22, 2007. Penguin Audio, one of five audiobook publishes that signed a contract with EMusic to sell audiobooks without copy restriction technology, withdraws 150 titles because it is concerned some of the titles are being copied and distributed without payment to Penguin. It says it will “wait for the landscape to shake out.” By that time, Penguin could be toast. This is a perfect example of a company’s executives being unable, or unwilling, to manage their way across a transitional period. This is what executives get paid to do. If your executives can’t do this, fire them. Immediately. Elsewhere, Wendy Davis at MediaPost notes insightfully that the so-called audiobook “piracy” may be an overrated problem because “people who purchase books, or audiobooks, have long had the option to take them out of libraries instead. In fact, many libraries now offer digital downloads of audiobooks. Yet pirated audiobooks have never emerged as a big problem.” This suggests the executives don’t recognize the business landscape. Again, fire them. Categories: Books; Digitization; Multimedia; Web & Online.

Jennifer L. Schenker. Endgame for Europe’s Microsoft Case. BusinessWeek.com. Oct. 22, 2007. Summarizes the European Commission’s order forcing Microsoft to obey the European Commission’s March 2004 order to share networking interfaces and to offer a version of Windows without a built-in copy of its audio and video Media Player, and what it means for the open source community. Categories: Antitrust; Computers; International.

News.com (via Reuters). Wal-Mart Tries to Stop Early Black Friday Ad Posts. Oct. 19, 2007. Wal-Mart is starting this nonsense (.pdf) extra early this year. In some previous years, it misused the DMCA’s takedown provisions to remove the material. There is no clear indication what legal action Wal-Mart will take; we wonder if it would be a state-based contract or proprietary information claim? Categories: DMCA; Web & Online.

Mokoto Rich. How to Get Junior to Eat His Veggies Turns Out to Be (Too) Common Knowledge. The New York Times. Oct. 19, 2007. So the husband of new cookbook author Jessica Seinfeld, one Jerry Seinfeld, said in response to accusations that his his wife may have lifted more than a few ideas for her new tome “Let’s be realistic — my wife isn’t in this for the money or the publicity. I really don’t think we have another Watergate here.” OK, then why publish at all? Oh, right: Jessica wants her own identity separate from Jerry’s money and publicity. (That, and the chance to help all the mothers out there who have trouble getting Johnny to eat his vegetables.) On a more serious note, an unfortunate part of plagiarism claims (as well as copyright infringement claims) is a presumption that the better-known person owns the work or the idea. As applied here, Ms. Seinfeld gets the nod for the idea over Missy Chase Lapine because Ms. Seinfeld is “smart, stunning, and infinitely promotable,” according to her high-powered literary agent, and because … well, she’s Ms. Seinfeld. After all, like Mr. Seinfeld suggested without saying, rich people who have money and publicity don’t need to cheat. Which, we have found, is exactly why they may cheat after all. I mean, why work when the littles can do that? Categories: Books.

Vito Pilieci. Canadians to Pay Tax on Downloaded Tunes. Canada.com. Oct. 19, 2007. The Copyright Board of Canada, the country’s regulatory body that is empowered to establish the royalties to be paid for using copyrighted works, has approved (.pdf) a three cent tax on MP3 downloads (1.5 cents per track for albums). The tax is meant to compensate artists for the reproduction of their songs, but compensation meant for artists too often winds up in the pockets of the recording companies. Categories: File Sharing, P2P & Downloads; Legislation & Regulation; Music; Politics & Government.

The Iconoclast (News.com). Are Universities Protecting Students from the RIAA? Oct. 18, 2007. Declan McCullagh discusses the role of universities in so-called “file sharing lawsuits,” specifically his theories about the institutions’ ability or willingness to maintain IP address data, which the RIAA uses to file identify alleged infringement on campuses. Categories: Cases & Litigation; File Sharing, P2P & Downloads.

Stephen Labaton. Plan Would Ease Limits on Media Owners. The New York Times. Oct. 18, 2007. FCC Chairman Kevin Martin, who consistently eliminated decades-long rules against media cross-ownership until the Third Circuit halted his repeal campaign in the 2004 decision Prometheus v. FCC (.pdf), is proposing a plan that would eliminate the legal ban the prohibits one company from owning a newspaper and broadcast station in the same market. Editor & Publisher reports this repeal interests Sam Zell, the real estate investor who is seeking to buy Tribune Co. Categories: Broadcasting & Journalism; Law & Legislation; Politics & Government.

Robin Fry. Copyright Must Be Watertight. vnunet.com. Oct. 18, 2007. An IP head at a UK law firm calls for increased institutional vigilance against copyright violations, lest the firm and its directors be held responsible for employee and contractor violations. Categories: Infringement; International.

Gavin O’Malley. Viacom Says The Google Suit Is Still On. Media Post. Oct. 17, 2007. Fingerprinting be damned, Viacom rattles its swords and affirms (just in case you wanted to know) that its $1 billion copyright infringement lawsuit against YouTube will continue. News.com chimes in a day later to say, effectively, few deals will get completed until this matter is resolved. his In a separate, but related article, Wired News noted each side in this case features a “Who’s Who” of the copyright bar: Jenner & Block’s Donald B. Verrilli, Jr. for Viacom, and the razor sharp WIlliam Patry for Google. Categories: Cases & Litigation; Film & Video; Web & Online.

Asher Moses. Australians Miss Out on iTunes Price Cut. smh.com.au. Oct. 17, 2007. Long ago, we learned how to parse some of Apple’s public relations spin: the big announcement they’re pushing hard almost always overshadows an equally significant second announcement the company mentions as an afterthought. Case in point: when Apple announced by iMac’s redesign, the company glossed over its upgrade of the much more affordable mini to the Intel Core Duo 2 chipset. Here, the company made a splash about its new Leopard operating system, but gave short shrift to its report that it cut iTunes MP3 prices (at least in most territories) from $1.29 to $0.99, likely in response to competition from Amazon.com’s new download store. Categories: DRM & Copy Restriction; File Sharing, P2P & Downloads; Music.

Michael McCarthy. Fantasy Sports Ruling Could Have Wide Impact. USA Today. Oct. 17, 2007. The Eighth Circuit Court of Appeals affirms the ability of sports fantasy leagues to use the names and likenesses of professional athletes in baseball, basketball and football. The sports leagues had argued that such information was protected intellectual property. Categories: Cases & Litigation; Licensing & Permissions.

News Blog (News.com). Non-‘casual’ Bloggers Win Legal Shield in House. Oct. 16, 2007. The Boucher–Pence Free Flow of Information Act seems like bad policy on many different levels, but we’ll point out some of our most pressing objections. First, tying the privilege to income is a bad idea because most bloggers don’t make a significant portion of their livelihood from blogging, therefore the protection applies only to those limited amount of people who are outliers. Second, we think there is too much flexibility in state-based journalistic privileges right now; why extend a weak concept to writing on the Web, which in many cases is haphazard, informal, and lacks attribution? Third, with community standards differing widely across the nation (even in the same state), creating a federal privilege seems not only a bad idea, but a set of lawsuits in the making. We almost cringe to say this, but we actually would support a Bush veto on this. Categories: Broadcasting & Journalism; Legislation & Regulation.

Ellen Nakashima. Verizon Says It Turned Over Data Without Court Orders. WashingtonPost.com. Oct. 16, 2007. In more than 700 instances between January 2005 to September 2007, Verizon, the nation’s second largest telecommunications company, thought it was “not their role to second-guess the legitimacy of emergency government requests.” This, after Verizon refused to say earlier in the week whether or not it gave U.S. intelligence agencies access to Americans’ phone and computer records without court orders. Categories: Politics & Government; Privacy & Security.

Michael Geist. Music Industry Needs a Dose of Innovation, Not Intervention. The Ottawa Citizen. Oct. 16, 2007. Geist explores the Canadian Recording Industry Association’s rote argument that the government needs to give its industry even more protection than it currently enjoys, and its reliance on the failed twin strategies of copy restriction technology and a blank media tax. Categories: Legislation & Regulation; Music; Politics & Government.

Rewind: Stories We Missed

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

Info/Law. The “Trademark Use” Debate. Oct. 15th, 2007. William McGeveran, a fellow in the Berkman Center’s Digital Media Project, discusses a suite of law review articles that study trademark use, and the conflict between the trademark holder’s mandatory commercial uses, and other’s commercial uses, some of which may be considered infringing. Categories: Trademark; Research.

PCWorld (via Reuters). Book Publisher May Make Peace With Google. Oct. 14, 2007. Random House considers joining Google Book Search’s partner program. We expect that increasing numbers of publishers will join the partner program, and the AAP lawsuit eventually with wither under the weight of momentum-driven settlement. Categories: Books; Cases & Litigation; Digitization; Web & Online.

Louise Story. The New Advertising Outlet: Your Life. The New York Times. Oct. 14, 2007. Nike announces it is moving its advertising budget away from glossy magazines and television to more community-based online environments that cater to the actual participants. This is an extension of the decisions by Procter & Gamble, Johnson & Johnson, General Motors to move their ad budgets away from traditional channels. Categories: Broadcasting & Journalism; Business & Commerce.

Boing Boing. An Apology to Ursula K Le Guin. Oct. 14, 2007. BB writer Cory Doctorow apologizes to Ursula K. Le Guin, an American science fiction and fantasy author, for posting Le Guin’s work without a copyright notice, and for posting the work without a plausible fair use defense (in Le Guin’s estimation). Categories: Fair Use & Other Limitations.

Dagens Politik. The Market Impact of Pirated Software. Oct. 17, 2007. A well considered article about how so-called “piracy” helps to reinforce a market leader’s position. Categories: Computer; Infringement.

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