COPYCENSE

This week’s edition of Clippings is all “straight, no chaser”: a good number of new stories, a good number of older stories, and a QoTW that questions core elements of the U.S. patent system.

Quote of the Week

“Even if AT&T’s [telephone] patent is theoretically applicable to the Internet, why should AT&T be allowed to claim such rights? If I set up an packet-based extraterrestrial communications network five years from now, should AT&T ‘own’ the rights to it?” — Alexander Wolfe

Wolfe’s Den. AT&T Suit Against Vonage Makes Mockery Of U.S. Patent System. Oct 22, 2007. Information Week columnist Alexander Wolfe blows hard, but true in his incredulity at the state of the U.S. patent system, which contributed to AT&T’s patent infringement lawsuit against Vonage. Cases: Cases & Litigation; Patent; Web & Online.

Clippings

Catherine Pickavet. Trademark Infringement Meets Consumer Privacy. Internet News. Oct. 29, 2007. Similarly named companies battle over trademark confusion, while consumers routinely send private and confidential e-mail to the wrong financial institution. Categories: Privacy & Security; Trademark.

The Wired Campus (Chronicle of Higher Education). Senators Support Open-Access Measure. Oct. 29, 2007. The Senate passes appropriations bill HR 3043, which includes language requiring all NIH-funded researchers to submit their final manuscripts to the National Library of Medicine’s PubMed Central. Now the measure, already passed in the House, needs to survive a Bush veto. Categories: Legislation & Regulation; Open Access; Science & Medicine.

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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.

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Technology publication ArsTechnica is reporting that Jammie Thomas’ appellate strategy will be to question the damages award first, leaving to a later date the broader (and arguably more important) issue of whether or not “making available” files violates the reproduction and distribution rights in Section 106. Ars reports that if the court decides against granting a new trial, Thomas would have 30 days to appeal the original verdict, and she could use that opportunity to argue against the “making available” doctrine, which the judge conveyed in jury instructions.

William Patry has observed that he would be “stunned if there is any room for overturning the award. There is doubt that any award within the permissible range, even the tippy-top, is subject to review. I think there may well be cases where a damage award may be constitutionally flawed, but this is not one of them.”

Still, since Thomas currently is responsible for more than $200,000 in statutory copyright infringement damages, there is little surprise that she would look to reduce that figure. The strategy, however, smells like an unfortunate case of CYA and seems narrow considering the broader stakes at hand.

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Another weekly edition of Copycense Clippings, with stories about Led Zeppelin, Radiohead; free radio in the U.S.; limited downloads in Europe; and the Nobel Prize that made the iPod possible.

Quote of the Week

“A sensible copyright system—perhaps similar to the one we had for most of the 20th century—would work just fine for the 21st century. It would ensure artists are fairly compensated while greatly reducing the deadweight losses Baker identifies in the status quo. The reasons these reforms haven’t happened (and indeed, the reason that copyright rules keep getting more and more draconian) is that the copyright industries are one of the most powerful special interest groups on Capitol Hill. This is the old story of concentrated benefits and dispersed costs. There’s no shortage of good reform proposals, there’s just no one with the clout to push any of those reform proposals through Congress.” — Timothy B. Lee, Cato Institute

Cato@Liberty. A Bad Copyright Reform Proposal. Oct. 11, 2007. Lee’s quote is a response to an article by Dean Baker, co-director of the Center for Economic Policy Research and editor of the Beat the Press blog on economic reporting, in which Baker opined that artist subsidies (such as his proposed Artistic Freedom Voucher) are a useful alternative to copyright law run amuck. Unfortunately, Lee does not prescribe any solutions to this problem.

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(Editor’s Note: This article accompanies a lecture K. Matthew Dames gave Oct. 9, 2007, to the Digital Libraries class (IST 677) at Syracuse University’s iSchool. The Fall 2007 class is taught by University Librarian Suzanne Thorin and Angela Ramnarine-Rieks, web administrator at Syracuse University Library.)

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Since we began publishing independently, we have railed against two things consistently: sloppy, misleading, or biased commentary about the copyright debate; and copyright propaganda disguised as “education.” (Unsurprisingly, the latter is filled with the former.) Our most recent comment about copyright education appeared last month.

Almost all of the “education” efforts we have criticized have been initiatives developed by large businesses that derive most of their revenue from copyrighted art or entertainment, or trade groups that represent those businesses. Before now, we would have thought that the court system would be above politicizing the copyright debate, or invoking egregious bias into it, because the court system and members of the judiciary must arbiter copyright disputes fairly, without a predisposition toward either the copyright owner or an alleged infringer.

Unfortunately, we have been proven wrong.

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