COPYCENSE

Some readers have informed us they appreciate Clippings’ incisive, retrospective commentary about the week in copyright and digital media, but have suggested that we break out some of our longer passages into distinct entries. Doing so, they have argued, will make certain longer entries easier to read, and will ensure that our readers can link to the longer entries without losing them within a broader Clippings publication.

We couldn’t agree more.

Therefore, beginning this week, we will make remix and republish select individual stories from each edition of Clippings, including all our Article of the Week and Quote of the Week entries. These new entries often will add extended commentary and analysis. The remixed versions will be published throughout the 7-day period between Clippings editions.

In the end, we believe this effort will make the content more readable and accessible. Thank you to all who suggested improvements.

In this week’s huge edition of Clippings, we look at registration reform; news media inaccuracy; a challenge to the DMCA “safe harbor”; ICANN seeking independence; and the wireless spectrum auction.

This is Copycense.

Articles of the Week

Public Knowledge. Don’t Trust the Media to Get Copyright Right: Scrabulous Coverage Scores Few Points. Jan. 22, 2008. Often, we have taken the press to task for its frequently errant and one-sided coverage of intellectual property issues. When IP was a backwater issue, poor (and sometimes inaccurate) coverage was a problem, but was not evident. Now IP often warrants front-page, above-the-fold coverage, and the mistakes not only are evident, they are harmful. A news organization’s primary professional objective is to get it right. Writing flowery prose like Selena Roberts is optional. Talking loud and saying little like Stephen A. is optional. Whining while cashing checks like Mr. Tony is optional.

Getting it right, on the other hand, is mandatory.

Marc Fisher got it wrong in a big way last month, likely because he relied on second-hand reporting and did not do the requisite amount of fact- and document checking. Now, as PK points out, several media outlets seem to have gotten the Scrabulous/Facebook story wrong, attributing to an alleged copyright infringement problem what really is an alleged trademark infringement problem. Not only is this unacceptable, it is grossly unprofessional. If the news media can’t get it right, above all else, it’s useless. Categories: Broadcasting & Journalism; Infringement; Trademarks.

Dan Heller’s Photography Business Blog. Proposal for Privatizing the Copyright Registration Process. Jan. 21, 2008. Citing other instances of government outsourcing — including U.S. Postal Service allowing Mail Boxes Etc. and other commercial mail receiving agencies to manage mail delivery and pickup — Heller suggests that the U.S. Copyright Office accredit private sector business to handle copyright registrations. (Although Heller does not mention this specific example, America already is quite familiar with registration outsourcing: domain name registrations are outsourced to hundreds of registrars that are accredited by the Internet Corporation for Assigned Names and Numbers (ICANN).)

We already have some businesses that purport to handle copyright registrations, but many of these firms seem suspect at best. A rigorous accreditation process (similar to the one ICANN uses), overseen by the U.S. Copyright Office, likely would weed out the fly-by-night firms. Further, the U.S. Copyright Office already has received poor marks for its online registration system, so there remains a legitimate question as to whether the agency can implement a solid solution. And online registration clearly is the way to go, since (a) USPS mail to federal government agencies still gets delayed because of anthrax screening; and (b) it’s 2007 and our federal government should have online services like this down pat by now.

Further, broadening the registration process may encourage more people to register their works. Currently, copyright is the only one of the Big Three forms of intellectual property where neither registration nor public review is required prior to the government granting monopoly status. This leads to several problems, not the least of which is a huge orphan works nightmare, and a suppressed, downstream licensing market that suffers because no one can find the correct copyright owner.

This is a marvelous idea in so many ways. Categories: Registration; U.S. Copyright Office.

Eric Bangeman. Debating Copyright Reform: Time for Compulsory Licenses? ArsTechnica. Jan. 21, 2008. Ars reports on a copyright panel convened at the Consumer Electronics Show entitled Washington, Intellectual Property and Your Living Room, which was moderated by Ars editor Kenneth Fisher. The panel seemed fairly balanced, which is unusual for these panels, and everyone allegedly agreed some sort of copyright reform was necessary. Surprisingly, though, compulsory licensing was discussed, and at least one panelist positioned compulsory licenses as a way of providing compensation in light of the fact that copyright owners no longer can control their works.

There are two basic arguments here. On one hand, a compulsory license would force media companies to license their works at an established, set rate. (For example, royalties for cover songs are paid according to a rate set in a compulsory license.) Additionally, it would eliminate the often licensing negotiations, many of which can be ridiculous and random. (The music industry, in particular, suffers this problem when it comes to digital sampling.) On the other hand, U.S. Register of Copyrights Marybeth Peters is on record as opposing compulsory licenses because it hurts “creators.” As we mentioned last week, though, one must be careful with the label “creators”: are we talking about individuals, or multinational corporations that own and control the copyright monopoly? We’re unsure what Peters means when she refers to “creators.”

Nevertheless, this is the first time we recall hearing someone — anyone — talk seriously about compulsory licensing as an option worth investigating. Also, it is the one of the first times we can recall any person who deals with copyright for a living bluntly proclaim that control of protected works no longer is possible or realistic. Categories: Bundle of Rights; Licensing & Permissions; U.S. Copyright Office.

Quotes of the Week

“One way to look at plaintiff’s difficulties here is as further evidence of the disproportionate difficulties African-Americans have had in getting the benefits of IP protection.” — Rebecca Tushnet.

43(B)log. Strikeout: Baseball Player’s Claim Against Cards Fails. Jan. 5, 2008. Georgetown law professor Tushnet (no, the junior Tushnet) ends her analysis of a lawsuit against the Topps trading card company with this interesting comment. The lawsuit (which was based on right of publicity, trademark and related claims) was brought by the daughter of legendary Negro Leaguer James “Cool Papa” Bell, alleging that the trading card company did not have permission to print Bell’s likeness on a trading cards released earlier this decade. Tushnet’s summary says Bell granted to the Baseball Hall of Fame permission to use his name and likeness on various products. (Bell was inducted into the National Baseball Hall of Fame in 1974.) Tushnet’s comment raises interesting issues about IP protection and race.

Stories are legion about the extent to which creative, technical, or scientific achievements by African-Americans have been appropriated without initial or residual compensation. And strains of complaint often make it into the lyrics of contemporary music. (Even Jay-Z once said in “H.O.V.A.” “I’m overcharging labels for what they did to the Cold Crush.”) We would be very interested in seeing any articles, reports, books, or scholarly work that addresses this phenomenon and estimates the lost value therefrom. Categories: Licensing & Permissions; Trademark.

Copycense: Incisive IP.

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Clippings

Bill Board (BBC News.) Locking Down Open Computing. Jan. 28, 2008. BBC columnist Bill Thompson discusses copyright restriction technologies and digital rights management, and points to examples where both technologies have been implemented fairly. Most importantly, he positions them as benign technologies that only are as fair or onerous as their implementer intends them to be. Categories: Computers: DRM & Copy Restriction.

Rosie Swash. Qtrax Off Track After Labels Deny Deal. Guardian Unlimited. Jan. 28, 2008. Despite reports to the contrary, apparently Qtrax does not have the requisite licenses in place to provide an advertiser-supported P2P free music network. It seems the PR folks got ahead of the lawyers on this one. Categories: File Sharing, P2P & Downloads; International; Licensing & Permissions; Music.

Gordon Cairns. Boxed Sets Exhaust Back Catalogue. Sunday Herald (Scotland). Jan. 28, 2008. The Herald is a new addition to Clippings, and its coverage of the UK DVD market suggests the film industry is beginning to feel the decay from which the music industry has suffered. The details are not encouraging: the number of DVD releases (through 3Q, 2007)dropped 15%. What’s more pressing, though, is that the candidate pool of older television shows that could be re-released is shrinking rapidly. Here at the Cense, we are big fans of American TV shows compiled on DVD box sets, but with each passing year, the offerings seem to become increasingly tepid. “Gilligan’s Island” is OK for an occasional trip down memory lane, but coughing up $30 to see Ginger prance around in the sand for more than 15 hours? We’re really not feeling it like that. Categories: Film & Video; International; Licensing & Permissions; Remixes & Derivative Works.

SiliconValley.com (via The Associated Press). Google Cuts Ad Incentives for Domain Name Tasting. Jan. 26, 2008. Last week, we wrote about the “domain tasting” phenomenon and Network Solutions’ poor policy choice to eliminate that fraudulent practice. Money is the reason people engage in domain tasting, and it seems the proper solution is not to hijack the domain registration system, but instead to eliminate the economic incentives. Categories: Domains; Marketing; Registration; Search.

Joe Hernick. P2P Threats Call In The Copyright Cops. InformationWeek. Jan. 26, 2008. A good overview of the issues and solutions associated with managing digital media and copyright issues that will arise on a private sector company’s extended, distributed network. Categories: DMCA; Infringement; Networks.

DealBook (The New York Times). F.C.C. Approves $20 Billion Clear Channel Buyout. Jan. 25, 2008. Private equity hits the airwaves as Bain and Thomas H. Lee snap up the entity that has been in the cross-hairs of the debate over the media convergence and broadcasting consolidation. Categories: Broadcasting & Journalism; Deals.

Jeremy Kirk. Antipiracy Group’s Tactics Violate Swiss Law. InfoWorld. Jan. 25, 2008. This is another novel theory of the privacy issues that are raised when the music industry uses private firms to track file sharing networks for alleged copyright infringement. We first heard about this approach late last year, when the University of Oregon questioned the authority MediaSentry had to engage in investigative tracking on the RIAA’s behalf. The University argued, among other things, that MediaSentry’s tracking activities may be illegal because the Maryland-based company does not hold a investigator’s license in Oregon. Categories: File Sharing, P2P & Downloads; International; Networks; Privacy & Security; Telecom.

Techdirt. Court Says You Can Copyright A Cease-And-Desist Letter. Jan. 25, 2008. We link to this story because this decision could be interesting, but as of right now, all we’re left with is Techdirt coverage, a press release from an allegedly victorious lawyer, and no PDF of the decision. Surely after the Washington Post debacle, we would think everyone would reserve judgment on this matter until folks get a chance to read a judge’s decision. If you get a copy of the decision, please contact us. Categories: Bundle of Rights; Cases & Litigation.

Nate Anderson. Warner Sues “Playable Search Engine,” Tests DMCA Safe Harbor. ArsTechnica. Jan. 25, 2008. Warner Bros. trots out all the goodies in its 57-page complaint (.pdf) that alleges copyright infringement by search engine SeeqPod. One of the ways in which SeeqPod tries to differentiate itself is by providing links to music or video files that others make available on the Web. (For example, we typed in a search “jay-z” and received about 20 hits, many of which were links to YouTube videos. We were able to watch the YouTube videos within the SeeqPod site instead of having to link out to YouTube to get the content.) Apparently, SeeqPod compiles search results not only through the work of its own search robot, but also through user-contributed submissions. Warner Bros. has seized on this second aspect to frame SeeqPod as a business that “aims to capitalize on the illegal use of ‘free’ music to grow its user base rapidly and inexpensively,” accusing the search provider of direct infringement, contributory infringement, vicarious infringement. WB also throws in MGM v. Grokster‘s inducement liability theory (just for kicks and giggles). One of the interesting things about this case is SeeqPod’s technology was born in the Lawrence Berkeley National Laboratory; the Lab also has a 5% stake in the spin-off company. So, in essence, Warner Bros. also is suing the federal government. Another interesting tidbit: Anderson notes that Last.fm has a similar search capability, but also has licensing deals in place with the major music labels, while SeeqPod has no licensing deals and seems to rest its business model on the DMCA ISP safe harbor at Section 512(c). We hate to see a promising technology like this get ensnared in litigation so early in its life, but in the unlikely event this goes to trial, this could be an interesting case. Categories: DMCA; Networks; Web & Online.

BBC News. Net Body Issues Plea for Liberty. Jan. 24, 2008. The Internet Corporation for Assigned Names & Numbers (ICANN) likely is the most important quasi-government agency about which most Web users know nothing. It is, however, a critically important organization whose core mission — coordinating the Internet’s domain name system — essentially runs the Web. ICANN operates as a private-public partnership with the U.S. government. (ICANN receives oversight from the U.S. Department of Commerce.) Over the last few years, this arrangement has become more problematic to foreign countries, which claim that an like ICANN should not be so intimately tied to the government of any single country because that gives such a country an unusual amount of influence over what is an international network. As a result, ICANN’s request (.pdf) to separate itself from such close contact with the American government is a significant development. Categories: International; Web & Online.

Paul Davidson. Google Could Cause a Stir in FCC’s Airwaves Auction. USAToday.com. Jan. 24, 2008. This story, and the coverage at InfoWorld, provide good introductions to the wireless spectrum auction and how it may affect everyday people. The airwaves that the Federal Communication Commission is auctioning are the leftover spectrum that will be made available once television becomes a digital-only proposition in 2009. (In other words, this year may be the final year you can use “rabbit ears” to watch television. Starting in 2009, your choices likely will be either digital television or a subscription option, such as cable. The New York Times has a good primer if you need more details.) Google has won a petition to ensure “C” block spectrum airwaves are available to any wireless provider a subscriber wants to use. This allows Google to act as a service or application provider even if it does not win the auction. The spectrum auction began Thursday, Jan. 24 with more than 200 bidders — including Google, Verizon, and AT&T — submitting sealed bids. Winning bids could be revealed any time between late February and late March. Categories: Broadcasting & Journalism; Mobile Devices; Multimedia; Politics & Government.

Robert Ambrogi. Changing the Online Legal Landscape. Law.com. Jan. 23, 2008. We want to focus on two sites that are providing public domain repositories of all federal and state case law: Public.Resource.Org projects (shepherded by Carl Malamud and Fastcase) and AltLaw (created by law professors Tim Wu and Stuart Sierra). Together, these sites are further evidence that non-proprietary increasingly is a viable business model. Categories: Research.

Yahoo! News (via The Associated Press). MPAA Admits Mistake on Downloading Study. Jan. 23, 2008; Inside Higher Ed. Downloading by Students Overstated. Jan. 23, 2008; Association for Computing Machinery. MPAA’s Data Oops: How Will Congress React? Jan. 23, 2008; News Blog (News.com). Why Did Colleges Stay Mum on MPAA Stats? Jan. 25, 2008. We don’t think this is a mistake, actually. For several years, we have questioned as biased and invalid many of the “studies” the entertainment industry creates that purport to show a correlation between alleged infringement activity from a specific environment (i.e. file sharing networks) or population (i.e. college students). More investigation should be done into the numbers and methodology of these reports, especially since the entertainment industry parades them before Congress as evidence that it needs more restrictive intellectual property rights. If you think there is no connection between these sorts of studies and legislation like the PRO IP bill (H.R. 4279) or the HEA Reauthorization bill, think again. Categories: Education; File Sharing, P2P & Downloads; Film & Video; Legislation & Regulation; Research.

Jon Stokes. Proposed EU ISP Filtering and Copyright Extension Shot Down. ArsTechnica. Jan. 22, 2008. Just as AT&T begins considering filtering on its network for alleged copyright infringement violations, the European Union decides not to allow it for now on ISP networks in member countries. But as long as intellectual property is seen as an “economic engine” — and who’s not looking for an “economic engine” with this credit crisis upon us — this issue will not go away easily. Categories: DMCA; Networks; International; Public Domain & Term.

Rewind: Stories We Missed

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

QuestionCopyright.org. Musicians Censoring Themselves. Jan. 21, 2008. We have to agree: when people interested in the performing arts discontinue sharing their craft because of copyright concerns — legitimate or not — it is time for a change. It’s easy to say “people need to be educated.” To some degree, this is true. If your profession involves working with copyrighted information, you need to know basic copyright law. (For example, we already have addressed our concerns that the library profession cannot continue to be effective when so many librarians fail to have a firm grasp of basic copyright.) As an enthusiast or hobbyist, though, we think it’s an entirely different ball game. This post includes a link to a bulletin board forum thread that illustrates the chilling effect that the overprotective copyright rhetoric has had on people who just want to enjoy art and culture. Categories: Music.

Tim Wu. J.K. Rowling’s Dark Mark. Slate. Jan. 10, 2008. Wu discusses the Harry Potter author’s lawsuit and the legal standards surrounding fan sites. Categories: Fair Use & Other Exceptions; Licensing & Permissions; Marketing; Remixes & Derivative Works.

Copycense: Incisive IP.