COPYCENSE

This week’s edition of CopyCense Clippings features movement in the Google Book Search lawsuit, scuttlebutt over YouTube’s possible acquisition, Microsoft’s thoughts of placing malware on your computer, and the British Library’s intellectual property manifesto.

Article of the Week

Elise Ackerman. Google Seeks Rivals’ Data for Lawsuit Over Libraries. MercuryNews.com. Oct. 5, 2006. Has it been one year, already? We had to chuckle, because this is, at once, a brilliant legal and public relations strategy. From a public relations standpoint, it forces the Open Content Alliance (OCA) folks to divulge information about its project. If OCA doesn’t provide details, it looks like it is hiding something (effectively not “open” after all). The legal strategy, though, is even better. Google is trying to position book digitization as a natural extension of search, while saying to a court “See, everybody’s doing it.” By doing this, the case becomes about the viability of search — not just this single digitization program — and it there is virtually no way that a federal judge is going to issue a ruling that could significantly hamper Google and Microsoft and Yahoo!, as important as those companies are (financially and symbolically) to the American economy. (And if a federal district court judge does issues an adverse ruling, he is virtually certain to have parts of that decision overturned on appeal. No judge likes to have his decisions overturned on appeal.) As K. Matthew Dames wrote in the March 2006 edition of Online noted last year, these and other extra-legal factors point toward a positive outcome for Google, which is all the more reason why the library representative organizations should have been on board supporting Google a long time ago.

Quote of the Week

“The British Library last week voiced its concern after it found that of 30 licensing agreements recently offered to the library for use of digital material, 28 were more restrictive than the rights existing under current copyright law. ‘Our concern is that, if unchecked, this trend will drastically reduce public access, thus significantly undermining the strength and vitality of our creative and educational sectors,’ Chief Executive Lynne Brindley said in a statement.”

– Reuters. Rallies Protest Limits on Digital Copying. News.com. Oct. 3, 2006.

Clippings

• Elise Ackerman and Ryan Blitstein. Google In Talks to Buy YouTube. MercuryNews.com. Oct. 7, 2006. One person interviewed for the story, a “veteran of the Napster wars,” is quoted as saying “I don’t know why Google would be buying YouTube. They can’t just go in and buy a copyright infringement machine. They are a publicly traded company. They have obligations to their stockholders and they have obligations under the law.” Maybe Google thinks it is strong enough, rich enough, and important enough to the American economy at this point (remember all those data centers) that it can sway legislators enough to keep Big Content off its back on the copyright issue. Maybe it has enough gall to think it can do for online video music what Apple did with downloadable music (legitimize it, legalize it, and commercialize it). The Napster analogy is inappropriate because the environment has changed so radically. Then, content companies were arrogant enough to think they could move online at their own pace, under their own conditions. Now, many still outwardly present that notion, but the smartest companies know that they have no choice but to find a way to make the online model work.
• Reuters. U.S. Pushes Russia In WTO Talks to Close MP3 Site. News.com. Oct. 5, 2006. Trade talks and state law are the new ways in which federal copyright law is being introduced and codified. William Patry wrote about this phenomenon three weeks ago.
• Google Watch. ‘My Sharona’ Creators Sue Yahoo, Apple, Amazon and Run DMC for Copyright Infringement. Oct. 4, 2006. The Knack sues legendary hip hop group Run-DMC over the latter’s alleged use of The Knack’s “My Sharona” in the single “It’s Tricky.” “Sharona” was released in 1978; “Tricky” in 1986. The statute of limitations for a civil copyright infringement case is within three years of the claim’s accrual. (Heavy civil procedure concept; we’ll go no further.) We don’t think this one has a chance of getting past summary judgment, but we’ve seen stranger. And while we’re on sampling infringement cases, has anyone heard any update about the Ready To Die case? If so, please let us know.
• Associated Press. Microsoft to Step Up Anti-Piracy Stance With Windows Vista. SiliconValley.com. Oct. 4, 2006. Big Redmond vows “that people running an unlicensed copy of Vista that it believes is pirated will initially be denied access to some of the most anticipated features of the operating system. … If a legitimate copy is not bought within 30 days, the system will curtail functionality much further by restricting users to just the Web browser for an hour at a time.” (Emphasis added.) This really is worthy of a CommuniK. piece, but let’s just briefly parse this here. So Microsoft is essentially saying that it will intentionally shut down your computer if its spider deems that the version of Windows Vista you have on your machine is illegal (or simply not registered). How is that different from what happened in the Sony BMG spyware scandal, besides Microsoft announcing at least 6 months before Vista is ready to ship? The only difference we see is that the announcement was made 6 months before Vista is ready to ship, which suggests that Big Redmond is floating this as a public relations ploy to gauge where the wind might blow on this issue. If there is a big hue and cry — and their should be — then Microsoft will retreat slightly, then position itself as sensitive to customers’ needs while balancing its need to protect its intellectual property. Only then the spyware will come in another form. Does it sound like we’re cynical?
• Thomas J. Lueck. Coliseum Books to Close Permanently by Year’s End. The New York Times. Oct. 3, 2006. One of New York City’s last, great independent book stores succumbs to a changed marketplace. The store, first open on 57th Street near Columbus Circle and now located on 42nd Street across the street from Bryant Park and the main branch of the New York Public Library, first opened in 1974.
• Alan Sipress. Ever So Humble. WashingtonPost.com. Oct. 3, 2006. Reasonable people can debate whether the removal of the “I’m Feeling Lucky” button would lead to “mass protests worldwide,” the article does offer some insights into the spartan design that is the Google home page.
• Laura Holson. Is Th-Th-That All, Folks? The New York Times. Oct. 3, 2006. The lack of imagination in the creative industries is astonishing. Once something works, like animation, then everyone wants to plumb that line in the name of revenue and profit. Recently, we have seen articles that suggest that publicly-held newspaper companies take themselves private as a way to focus on their core mission without having to worry about investors’ quarterly financial demands. Can the same question viably be put to media and entertainment companies?
• David Cohn. At BarCamp, Form Trumps Substance. Wired News. Oct. 3, 2006. Although the story’s title is somewhat dismissive, we think this idea (or rather, the format) actually could be very effective if implemented into a law school curriculum. Intellectual property law is created by, and opined on, some individuals (legislators and judges) who, as a class, are incredibly technologically illiterate. The next generation of lawyers, legislators, and judges must be able to fully understand a wide host of technology issues, understand where they apply commercially and societally, and be able to write laws and opinions that reflect a balance between protection and possibility. (See also, O’Reilly’s Foo Camp.)
• Robin Peek. The British Library Releases Intellectual Property Manifesto. Information Today Newsbreaks. Oct. 2, 2006. Lynne Brindley’s comments last week on copyright were our QoTW, but regretfully we forgot to post a link to the news item, nor did we actually provide information about the British Library’s press release or the actual Manifesto (.pdf). Will James Billington (to whom Register of Copyrights Marybeth Peters reports) please stand up?
• Fred Vogelstein. Rebuilding Microsoft. Wired. October 2006. What happens to the most powerful technology company in the world when it’s iconic co-founder steps down, just at a time when the platform upon which it made its fortune begins to be irrelevant?
• Elise Ackerman. Judge Dismisses Suit Against Google Over Trademarked Terms in Ads. MercuryNews.com. Sept. 29, 2006. Of course, decisions like this (.pdf) are welcome for Google, whose entire financial house is built upon AdWords revenue. This decision helps to settle the law in this area. What we find interesting about this case is its venue. The Northern District of New York typically is not known for handling these types of cases. Most of the time, the venue of choice is the Southern District of New York or any of the California districts.
• 7online.com. N.J. Sales Tax Covering More Items. Sept. 28, 2006. So it seems New Jersey is one of an increasing number of states that is taxing digital downloads. New York State does not tax downloads (yet) but does charge an Internet use tax to all residents and businesses.

CopyCense™: Code & Content.™ A venture of Seso Group LLC.

Technorati Tags: CopyCense, CopyCense Clippings, copyright, DRM, K. Matthew Dames, licensing

“Consumers now have the ability to buy digital versions of music and movies from a vast (and growing) online catalog. But that convenience has come at a price: Most of the digital content is packaged with technology called digital rights management, or DRM, a sort of copy protection that limits what users can do with the material.

“The music and movie industries defend DRM as a means of protecting artists and publishers — without it, they say, it would be too easy for users to abuse copyrights by illegally swapping files over the Internet. They also argue that without DRM technologies, publishers wouldn’t have been willing to distribute their content in online music and video stores, such as Apple’s iTunes.

“But some consumer advocates argue that DRM often goes too far, treating customers as would-be criminals and putting burdensome restrictions on what they can do with music and movies that were legally purchased. (ITunes, for instance, allows users to burn music to an unlimited number of CDs, but limits the number of computers on which users can play purchased music.)

“The Journal asked Fritz Attaway, a senior executive with the Motion Picture Association of America, to debate the issue over email with Wendy Seltzer, a law professor who specializes in intellectual property and First Amendment issues.”

Fritz Attaway and Wendy Seltzer. ‘DRM’ Protects Downloads, But Does It Stifle Innovation? The Wall Street Journal Online. June 20, 2006.

Related Stories & Documents:

• DRM Blog. The DRM Cycle. June 14, 2006.

CopyCense™: The law, business, and technology of digital content. A business venture of Seso Digital LLC.

Tim Berners-Lee: “When I invented the Web, I didn’t have to ask anyone’s permission. Now, hundreds of millions of people are using it freely. I am worried that that is going end in the USA.

“I blogged on net neutrality before, and so did a lot of other people. (see e.g. Danny Weitzner, SaveTheInternet.com, etc.) Since then, some telecommunications companies spent a lot of money on public relations and TV ads, and the U.S. House seems to have wavered from the path of preserving net neutrality. There has been some misinformation spread about. So here are some clarifications.”

Decentralized Information Group. Net Neutrality: This Is Serious. June 21, 2006.

CopyCense™: The law, business, and technology of digital content. A business venture of Seso Digital LLC.

“An appeals court in The Netherlands ruled on Friday that a Web site posting links to copyrighted MP3 files was breaking the law by promoting copyright infringement. The site, zoekmp3.nl, was taken offline Monday after the court said it would face daily fines of 10,000 euros.

“Although zoekmp3.nl did not directly host the MP3 files, the court ruled that facilitating the downloads was also in violation of Dutch law. Similar Web sites have been ruled illegal in Australia and China, and the United States has cracked down on BitTorrent sites, which facilitate distribution by hosting torrent files.”

Nate Mook. Dutch Court Rules MP3 Linking Illegal. BetaNews. June 19, 2006.

CopyCense™: The law, business, and technology of digital content. A business venture of Seso Digital LLC.

This story has been updated. Original CopyCense coverage: March 28, 2006.

An independent writer who has been prohibited from selling an unofficial guide to the popular online game World of Warcraft because of the manufacturers’ repeated takedown complaints under the Digital Millennium Copyright Act has sued the game makers, claiming their DMCA takedown notices are a misrepresentation of copyright infringement.

Brian M. Kopp, a writer located in Bronson, Fla., filed the lawsuit late last week in a California federal court after Blizzard Entertainment (the creator of World of Warcraft) repeatedly filed DMCA takedown notices with eBay, where Kopp was trying to sell his book via auction. After eBay blocked two different accounts Kopp had used to sell the book because of repeated DMCA takedown notices, Kopp filed his lawsuit. He is being represented in court by Public Citizen, the Ralph Nader-founded consumer watchdog group.

Under Section 512(g)(1) of the Copyright Act, an online service provider such as eBay can clear itself of potential copyright infringement liability if, in response to a party’s claim that a Web site contains infringing materials, that ISP immediately removes the materials. Pursuant to Section 512(g)(3), a party’s whose information was removed can have the service provider reinstate that information if that party “has a good faith belief that the material was removed … as a result of mistake or misidentification …”

EBay has a policy whereby the online auctioneer may remove a listing or otherwise disable an account if a Verified Rights Owners (VeRO) complains that a listing infringes on its intellectual property. This is what occurred with Kopp’s books. One of Kopp’s legal claims, however, is that Blizzard and its co-defendants violated Section 512(f) by “knowingly and materially misrepresenting that Kopp’s book violated their copyrights. Section 512(f) makes it illegal to “knowingly materially misrepresent … that material is infringing …” A violation for Section 512(f) can include can lead to damages, costs, and attorneys’ fees.

Gaming guides have become big business. A New York Times article cited on CopyCense™ two weeks ago noted that gaming guides can sell hundreds of thousands of copies. The books typically provide insights and clues on how best to succeed at playing a particular video game. According to a more recent News.com report, World of Warcraft has now attracted a following of 6 million subscribers worldwide since it debuted in 2004.

Kopp’s book had sold several hundred copies on eBay, said the News.com report; the complaint says the book is still available for sale from Kopp’s Web site.

Anne Broache. ‘Warcraft’ Maker Sued For Blocking Sales of Unofficial Guide. News.com. March 24, 2006.

Related Stories & Documents:

• U.S. District Court, Central District of California. Complaint for Misrepresentation Under the Digital Millennium Copyright Act … and Declaratory and Injunctive Relief. (.pdf) March 23, 2006.
• CopyCense. Games Give Authors New Revenue Stream. March 7, 2006.

Update:

• Anne Broache. Blizzard Abandons DMCA Threat over ‘WoW’ Manual. News.com. June 9, 2006

CopyCense™: The law, business, and technology of digital content. A business venture of Seso Digital LLC.

“On the banks of the windswept Columbia River, Google is working on a secret weapon in its quest to dominate the next generation of Internet computing. But it is hard to keep a secret when it is a computing center as big as two football fields, with twin cooling plants protruding four stories into the sky.

“The complex, sprawling like an information-age factory, heralds a substantial expansion of a worldwide computing network handling billions of search queries a day and a growing repertory of other Internet services.

“And odd as it may seem, the barren desert land surrounding the Columbia along the Oregon-Washington border — at the intersection of cheap electricity and readily accessible data networking — is the backdrop for a multibillion-dollar face-off among Google, Microsoft and Yahoo that will determine dominance in the online world in the years ahead.”

John Markoff and Saul Hansell. Hiding in Plain Sight, Google Seeks More Power. The New York Times. June 14, 2006.

CopyCense™: The law, business, and technology of digital content. A business venture of Seso Digital LLC.

“The latest Net neutrality provisions in a mammoth Senate communications bill stopped short of giving Internet companies and consumer advocacy groups all the assurances they’ve requested.

“Unveiled formally at a briefing here for reporters on Monday, new provisions in the latest draft of the sweeping Consumer’s Choice and Broadband Deployment Act would allow the Federal Communications Commission to police subscribers’ complaints of “interference” in their Internet activities and to levy fines on violators.

“Specifically, the bill would require all Internet service providers to adhere to what the proposal calls an ‘Internet consumer bill of rights.’ But critics say the latest draft refrained from addressing a major complaint of advocates of network neutrality–that is, the idea that network operators should give equal treatment to all content that travels across their pipes.”

Anne Broache. Senate Panel Proposes Net User ‘Bill of Rights’. News.com. June 19, 2006.

Related Stories & Documents:

• U.S. Congress. Consumer’s Choice and Broadband Deployment Act (S. 2686). June 22, 2006.
• Ars Technica. Senate Bill Compromise Paves the Way for “Net Neutrality Lite.” June 18, 2006.
• Talking Points Memo. Net Neutrality Senate Vote Tally. June 15, 2006. (Last update.)
• Anne Broache. Net Neutrality Field In Congress Gets Crowded. News.com. May 19, 2006.
• U.S. Congress. Internet Freedom Preservation Act. (.pdf) Undated draft. (Courtesy of Public Knowledge)
• The Conservative Voice. What the Misguided Have Missed Regarding Network Neutrality. May 9, 2006.

CopyCense™: The law, business, and technology of digital content. A business venture of Seso Digital LLC.