COPYCENSE

[Editor’s Note: Due to technical difficulties, we were unable to publish this week’s Clippings during our regular Tuesday, Oct. 9 slot. We apologize for the inconvenience. To compensate, we have extended our coverage of the RIAA’s jury verdict victory against Duluth, MN resident Jammie Thomas.]

Issue of the Week

Given the jury verdict against Jammie Thomas, a Minnesota woman found liable for copyright infringement, we have decided to transform our Article of the Week into an Issue of the Week. Here, we will round up some of the Web’s best coverage in Virgin v. Thomas. Categories: Cases & Litigation; File Sharing, P2P & Downloads; Infringement; Music.

Threat Level (Wired). RIAA Juror: ‘We Wanted to Send a Message’. Oct. 9, 2007. Wired reports the jurors deliberated only five minutes before they concluded Jammie Thomas had committed copyright infringement. It seems the general consensus within the jury was Thomas was not a credible witness. With so much on the line in the larger perspective, we wondered if Thomas’ lawyers ever doubted her story, or whether a Minnesota jury would believe that story. Within the last decade or so, it seems many of these music download cases have had two things in common: the defendants rarely win, and the defendants rarely are “ideal defendants” given their actions, their political views, their alibis, or their circumstances. It’s unfortunate that so many of these cases seem to involve defendants who are not ideal witnesses.

The Iconoclast. Will Appeal Succeed In RIAA’s $222,000 ‘Making Available’ Case? Oct. 8, 2007. Declan McCullagh reviews the likely issues that Thomas and her lawyers will raise on appeal. We will be interested in seeing if another legal team handles the appeal, since federal appellate work is a special niche. And while we’re on the topic of legal representation, where was the Electronic Frontier Foundation in this case. EFF certainly provides legal representation in select cases, so why not a high profile case like this one?

Eric Bangeman. How the RIAA Tasted Victory: A Perfect Storm Which Might Not Be Repeated. ArsTechnica. Oct. 7, 2007. After Ars’ Bangeman wrote the verdict story, he returns later in the week to write a postscript: “With the RIAA having successfully tried a case, there’s now a template for how to handle future cases that go to trial. First, the RIAA will need to make sure that the evidence is as exhaustive as possible. Second, the labels will need to be able to make a concrete connection between the screen name on KaZaA (or whatever application is in use) and the human being at the keyboard, something they were able to do with Thomas. If the defendant doesn’t have a wireless access point or a router, so much the better. Lastly, try to keep the legal team together. The RIAA’s lead counsel, Rich Gabriel, did an excellent job shepherding the evidence and presenting the case.”

Media 3.0 with Shelly Palmer. Episode 43. Oct. 6, 2007. A nearly 17-minute interview with Ray Beckerman, who co-authors the Recording Industry vs. The People Web log.

Recording Industry vs. The People. My Comment on the Jury Verdict in Virgin v. Thomas. Oct. 5, 2007. Beckerman expresses incredulity at the verdict and an urgent call to arms. “I hope it is a wakeup call to the world that we all need to start supporting the defendants in these cases, and the attorneys who are sacrificing so much to represent them. And the support cannot be with words, it must be with check books. And it cannot be next year, it must be now.” This Web site also maintains a compendium of trial documents; we expect it soon will include a trial transcript.

The Iconoclast (News.com). Four Reasons Why the RIAA Won a Jury Verdict of $220,000. Oct. 5, 2007. Razor sharp Declan McCullagh provides a cogent analysis on the how the recording industry was able to persuade a Minnesota jury that Thomas committed infringement by making available more than 1,700 songs through the Kazaa network. McCullagh’s coverage also links to important case documents. Particularly interesting is McCullagh’s synthesis of the jury instructions and how they connected with the a doctrine that alleges that merely making music files available online constitutes copyright infringement, even if no other users download those files. William Patry noted the rise of this doctrine earlier this year in a Pennsylvania case, and Columbia’s Jane Ginsburg also has discussed this issue.

The Patry Copyright Blog. The RIAA’s Jury Verdict. Oct. 5, 2007. William Patry focuses his comments on the relative reasonableness of the jury’s damages award, and the unlikelihood that part of the decision will be overturned on appeal. Patry’s post is brief, but the post’s comments are extensive and interesting.

Technology & Marketing Law Blog (Eric Goldman). “Making Available” as Copyright Infringement–Capitol v. Thomas. Oct. 4, 2007. Goldman’s coverage does not differ significantly from the other outlets’, but he links to several other posts where he has discussed the “making available” cause of action upon which the verdict seemingly hinged.

Quotes of the Week

“The Washington Post has an article on the entertainment industry’s efforts to increase penalty’s [sic] for copyright violations. The article wrongly claims that [copyright] violations cost the economy money. This is untrue on its face. The losses to the industry are gains to consumers, and those who know economics would know immediately that the gains to consumers vastly exceed the losses to the industry. Some economic analysis would be useful in this article. … The monopoly status of copyrights mean as a logical proposition that the gains to consumers from ending copyright will be greater than the losses to producers. In addition, there are also all the costs associated with enforcement (e.g. software locks, lawyers police to invade bedrooms), which are a pure loss from a social standpoint.”

Beat the Press (The American Prospect). The Attack of the Protectionists: Where are the Economists? Oct. 3, 2007. Dean Baker’s quote is one of the few times in which we have found an unbiased economic voice that challenges the entertainment industry’s endless (and questionable) assertions that so-called “piracy” hurts the American economy. But it is refreshing to hear another point of view. Even we had not considered that the end copyright’s “life plus 70” monopoly (also called the public domain) would provide greater gains to consumers than the losses copyright owners suffer. What is unsettling, though, is that the one-sided views of the entertainment industry are used, for example, by U.S. trade representatives to develop trade policy that governs intellectual property.

Which leads us to our second Quote of the Week from Mr. Baker.

“Government imposed monopolies like patents and copyrights arguably have no place in a free market economy. These monopolies have a large and growing impact on the economy, affecting the distribution of trillions of dollars of goods and services worldwide. They have also been the topic of heated dispute in recent trade agreements.”

Beat the Press. Pew Finds Worldwide Opposition to Patents and Copyrights. Oct. 5, 2007. Categories: Business & Commerce; Framing & Rhetoric; Public Domain & Term.

Clippings

Jonathan Bailey. Copyright Cases to Watch: Lenz v. Universal. The Blog Herald. Oct. 8, 2007. We disagree: this is not a case to watch; it is a case that begs to be settled. This is a relatively simple issue: an aggressive, questionable DMCA takedown, followed by a lengthier than required restoration period. Questionable DMCA takedowns are unfortunate and should be stopped, but why make a mountain out of this case when the Jammie Thomas trial is being prepared and occurring? Ultimately, EFF’s decision to select this case instead of the Thomas case begs the question why (besides publicity) would the Electronic Frontier Foundation get involved? YouTube has restored the video, harm is no longer evident or even calculable. EFF says this is about halting copyright abuse. Wouldn’t the organization’s members and mission have been served more admirably by trying to get some clear guidance on the “making available” doctrine that is at the core of the Thomas litigation? Categories: Cases & Litigation; DMCA; Film & Video; Web & Online.

Rocky Mountain News. Copyright Wrongs. Oct. 8, 2007. The editorial board at the News rejects provisions in H.R. 3476 that would require the education secretary to keep a tally of reported copyright violations involving students using campus online networks. Categories: Education; Legislation & Regulation; Politics & Government.
Bobby Jordan. Drug Companies Looting SA’s Bounty of Medicinal Plants. The Times (South Africa). Oct. 7, 2007. We’ve not devoted much coverage to patenting plants, genome sequences, and other forms naturally occurring substances or traditional knowledge. (We have enough of a challenge covering copyright adequately.) The patent reform debate in the U.S. has focused mostly on business process patents, but clearly this is an area in which reform also is critical. Categories: Patent; Science & Medical.

BBC News. Kwik-Fit Sued Over Staff Radios. Oct. 5, 2007. Here’s the latest joke: “So a guy is hacking away at a tailpipe, listening to his radio when all of a sudden a suit walks in the shop. Guy says, ‘Howdy mate.’ Suit says, ‘You’ve been served.'” A lawsuit because employees are listening to the radio at work? That sounds like the height of stupidity and desperation. Categories: Broadcasting & Journalism; Cases & Litigation.

BBC News. Procol Harum Battle Back in Court. Oct. 4, 2007. Lead singer Gary Brooker is appealing against last year’s ruling that organist Matthew Fisher was entitled to a portion of the song’s royalties from the group’s hit “A Whiter Shade of Pale.” Categories: Cases & Litigation; Infringement; International.

Ellen Lee. Cal Offers Full Courses on YouTube – But Not for Credit. SFGate.com. Oct. 4, 2007. Cal-Berkeley has been a consistent innovator in education delivery (broadcasting classes online in 1995; distributing courses via free podcasts through the iTunes store as of last year), so this initiative is novel for them, but not a stretch. Categories: Education; Film & Video; Web & Online.

News Blog (News.com). AT&T Defends Plan to Detect Customers’ Net Piracy. Oct. 3, 2007. In June, AT&T announced that it would work with film studios to develop technological solutions that would prevent subscribers from exchanging large amounts of content. This story is about AT&T’s attempt to diminish potential customer service criticisms. Categories: DRM & Copy Protection; Web & Online.

Frank Ahrens. With Video, Music Piracy on the Rise, NBC Chief Calls for Tougher Penalties. WashingtonPost.com. Oct. 3, 2007. This is all you need to know about Zucker’s stance: “If we don’t continue our education campaign, I fear that we will lose that momentum that we have gained.” NBC in the copyright education business? Just what we need. Also, see our Quote of the Week. Categories: Legislation & Regulation; Politics & Government.

Jason Marks. Arizona State Univ. Contacts Va. Beach H.S. Alleging Copyright Infringement. WAVY-TV (Portsmouth, VA). Oct. 2, 2007. The editorial staff made an egregious error by claiming the alleged violation is copyright infringement; in fact, ASU is alleging Salem High School’s logo is a trademark infringement of the Sun Devil logo. But a visual comparison of the two logos (available in the story) clearly shows that there is no resemblance between the logos, which suggests ASU is looking to bully a smaller institution into ceding its nickname. Categories: Education; Trademark.

Rewind: Ones We Missed
(Interesting stories we missed after we sent previous editions to press.)

Nate Anderson. Copyright Lawyer Tells Universities to Resist “Copyright Bullies.” ArsTechnica. Sept. 28, 2007. Northeastern University School of Law professor Wendy Seltzer talks (RealMedia player needed) to an audience at Cornell, and urges universities to fight the RIAA. We find it significant that Seltzer’s talk occurred at Cornell because around this time last year, Cornell decided not to fight the Association of American Publishers and its accusations of copyright infringement. Categories: Education; Events; File Sharing, P2P & Downloads.

Copycense™: Code + Content.™ A venture of Seso Group LLC.

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

Copyright Clippings continues with another truckload of stories and commentary.

Article of the Week

The Patry Copyright Blog. Kopyright and Kids Continued. Oct. 1, 2007. Over the last two weeks, razor sharp William Patry has written some powerful posts about copyright education. This one offers a withering criticism of the Copyright Kids “education” effort produced by the Copyright Society of the U.S.A. It is a bittersweet read: sweet because Patry’s humorous sarcasm drips off the screen, bitter because one would have expected so much better from one of this country’s leading copyright organizations. Categories: Education; Framing & Rhetoric.

Quote of the Week

“The strangest part of the release is the vision put forward by these four groups. There are no musicians, performers, songwriters, or copyright collectives to be found (the absence of consumers is a given). Of course, the release fails to mention that Canadian musicians stand against WIPO ratification, while CRIA is in the middle of litigation in which it opposes the collectives and is trying to reduce the amount of compensation they receive. In other words, it is an industry view of a music industry without musicians.”

Michael Geist. Copyright and the Throne Speech. Sept. 25, 2007. Razor sharp Michael Geist discusses an effort by Big Content in Canada to include mention of copyright (including World Intellectual Property Organization ratification) in the country’s upcoming legislative agenda. (Later in the week, he discusses the political dangers that could pose for Big Content.) Certainly, the effort to craft copyright policy in isolation occurs regularly in the United States as well, yet Geist is one of the few we’ve discovered who is willing to characterize things this bluntly. Categories: Politics & Government.

Site Check

Photo Business News & Forum. A Walk Through the Copyright Office. Sept. 25, 2007. This is a multipart photo essay about the copyright registration process, an area of copyright whose importance often is overlooked. What makes this unique (and interesting) is the author’s commentary, along with step-by-step photos. Categories: Registration; U.S. Copyright Office.

Clippings

Geoff Boucher and Chris Lee. A Record Price for a Radiohead Album: $0. LATimes.com. Oct. 2, 2007. Last week, we reported in Clippings that Radiohead eschewed selling their digital downloads on iTunes in favor of working a deal with 7digital in which the site sold full albums in .mp3 format without any copy restriction technology. This week, the British rock band announces it will release its seventh studio album, In Rainbows, at whatever price the customer deems appropriate (including free). This move follows Prince’s decision to give away 3 million copies of his latest album through a British newspaper. Both moves point to the new way of marketing music, and suggest the demise of music as a salable product. This news hits the wires about the same time Virgin announces it will close its online music store, rendering useless any music customers paid for because of copy restriction technology. Categories: Business & Commerce; Music; Web & Online.

Groklaw. The Novell-Microsoft Wheeler Dealers Speak. Sept. 30, 2007. Groklaw heavily criticizes the Novell-Microsoft agreement to develop what seems to amount to a response to Red Hat market leadership. Rule No. 1 on these joint venture announcements: any time companies talk about “customers winning,” that really means the companies are winning through greater market control, higher revenues, and stronger profits … and if the customer happens to benefit after the corporate partners achieve those goals, then so be it. (If you don’t believe us, listen to the speech yourself and note the frequency with which these themes arise.) What we find particularly interesting is Novell’s position in this whole thing. Novell does not have enough bargaining power to craft favorable terms negotiating with Microsoft, and according to News.com, the patent infringement protection isn’t worth the paper upon which it is written. Categories: Licensing & Permissions; Open Source; Patents.

Cristina Jimenez. British Library Books Go Digital. BBC News. Sept. 28, 2007. The national library of the Mother England begins a mass digitization project involving 19th century books. Categories: Books; Digitization; Libraries & Information Science.

Angela Kang, et al. Has Sense Flown the Coop? The Harvard Crimson. Sept. 26, 2007. It seems copyright is one of those topics that spurs stupidity in spades: Harvard’s bookstore, The Coop, claims that textbook information is its intellectual property. The premise that price, title, ISBN, and other factual information about textbooks qualifies as copyrightable (or some other form of intellectual property) is so asinine that we’ll ignore it. Kang’s editorial, however, merits a read, if only because it shows that increasingly, students are becoming more aware of copyright’s parameters. Categories: Bundle of Rights; Education.

Jim Puzzanghera. Google, Microsoft Spar Before Senators. LATimes.com. Sept. 28, 2007. The high tech mud fight begins: “Google and Microsoft executives sat side by side at a Senate hearing here and engaged in about 90 minutes of controlled sniping befitting their increasingly heated rivalry.” Categories: Antitrust; Business & Commerce; Politics & Government.

The Recording Industry vs. The People. First RIAA Jury Trial to Start Tuesday October 2nd in Duluth, Minnesota, in Virgin v. Thomas; Motion for “Summary Adjudication” Denied. Sept. 27, 2007. Barring a last minute settlement, the music industry will for the first time be forced to meet a burden of proof in one of its so-called “file sharing” lawsuits. Opening arguments likely will occur as this edition of Clippings is distributed to our readers. According to Ray Beckerman, one of the lawyers that edits the Recording Industry vs. The People Web site, the RIAA has no evidence that defendant Jammie Thomas has committed copyright infringement. Categories: Cases & Litigation; Music.

American University Center for Social Media. The Costs of Copyright Confusion for Media Literacy. September 2007. In a nutshell, this report (.pdf) concludes educators who use media are confused about copyright law, and comprehensive education is needed. No surprise (or argument) here. Categories: Broadcasting & Journalism; Education; Fair Use; Research.

News Blog (News.com). Brazil’s Minister of Culture Calls for Free Digital Society. Sept. 27, 2007. A great profile about Grammy award winning musician Gilberto Gil‘s platform for digital culture in a country whose culture is commercially very hot right now. Categories: Government & Politics; International; Legislation & Regulation.

Tim Wu. Where’s My Free Wi-Fi? Slate. Sept. 27, 2007. Columbia law professor Tim Wu discusses the once-hot, now cool concept of municipal WiFi service, and why the “last mile” problem never was solved in this concept. Categories: Politics & Government; Web & Online.

Olga Kharif. Vonage’s Prospects Dim. BusinessWeek. Sept. 27, 2007. And the hits just keep on coming for Internet phone provider Vonage, as a federal court rules it infringed on Sprint Nextel patents. (Verizon and Nextel patents? How does a decent patent search not reveal these?) At this point, we figure to hear about the seemingly inevitable bankruptcy reorganization by first quarter 2008. Categories: Cases & Litigation; Infringement; Patents.

Library of Congress Blog. The Price of the Copyright Catalog. Sept. 26th, 2007. LoC responds to Carl Malamud’s letter to Register of Copyrights Marybeth Peters, which requests the Copyright Office “to provide bulk access to the copyright catalog of monographs, documents, and serials on the Internet.” Categories: Open Access; U.S. Copyright Office.

Danielle Kahn. Movie Nights May Violate Copyright Laws. The Massachusetts Daily Collegian (University of Massachusetts, Amherst). Sept. 26, 2007. Movie nights long have been a staple of college life. Clearly, movie nights are public performances that need require permission (usually in the form of a license) from the copyright holder to show in a dorm or other part of campus. We would be interested in seeing some data that reliably assesses what percentage of college campuses routinely has licenses in place for official movie nights. Categories: Education; Film & Video.

Nate Anderson. Start ‘Em Young: WIPO Unveils Children’s Copyright Law Workbook. ArsTechnica. Sept. 26, 2007. Ars confirms what we’ve already seen for ourselves: while WIPO’s book mentions nothing about common exceptions like fair use, the booklet actually discusses the public domain. Still, the booklet is far too protectionist to serve as education. Categories: Education; Framing & Rhetoric.

The Digital Home (News.com). Why Microsoft Must Abandon Vista to Save Itself. Sept. 26, 2007. Interesting insights from a News.com blogger on the problems Microsoft is encountering with Vista adoption. This was published about the same time that Microsoft announced it would extend the time it would sell OEM versions of Windows XP to June 30, 2008. Microsoft previously said it would end Windows XP OEM sales in January. Categories: Computers.

Jennifer M. Freedman. WTO to Rule on U.S. Claim China’s Piracy Laws Are Lax. Bloomberg. Sept. 25, 2007. Two things stand out about this story. First, this news comes after China complained to the World Trade Organization that the U.S. had initiated anti-dumping measures that target China. Second, the U.S. bases its allegations of “piracy” and China’s “weak piracy laws” on the U.S. Trade Representative’s annual Special 301 report. That report is based heavily on recommendations from the International Intellectual Property Alliance, a trade group that represents large copyright portfolio owners. If you look at IIPA’s recommendation to USTR on China (.pdf), and then compare that to USTR’s 2007 Special 301 report, you will see lots of similarities. These similarities suggest that U.S. trade policy in the long term, this area is a proxy for the commercial and legislative desires of Big Content. As a result, it should be unsurprising that the United States claims China’s “piracy” laws are weak; that comments fits the frame perfectly. Categories: Framing & Rhetoric; International; Legislation & Regulation.

Yinka Adegoke. Amazon Launches Early Version of Web Music Service. WashingtonPost.com (via Reuters). Sept. 25, 2007. Will Amazon.com’s entry into the downloadable music market mark the beginning of real competition against iTunes? Categories: File Sharing, P2P & Downloads; Music; Web & Online.

Ian Williams. Starbucks Brews iTunes Wi-Fi Giveaway. vnunet.com. Sept 25, 2007. Starbucks further solidifies its foray into the music business by promoting Apple’s iTunes Wi-Fi Music Store. We’re not sure how a free 99 cent download is an equivalent substitute for a $5 cup of coffee, but it’s a free country. Categories: File Sharing, P2P & Downloads; Music; Web & Online.

Reuters. Supreme Court Says It Will Hear LG Patent Case. Sept. 25, 2007. Consistent with predictions that the Supreme Court would hear arguments in an increasing number of commercial law when the Senate confirmed Chief Justice John G. Roberts Jr., the Court this term will hear a case that will determine whether patent holders can receive royalties from various companies as the product moves its way through the manufacturing chain. Categories: Cases & Litigation; Licensing & Permissions; Patent.

Jeffrey H. Birnbaum. Tech Industry Builds Lobbying Machine for Patent Fight. WashingtonPost.com. Sept. 25, 2007. The Post’s Birnbaum presents an insightful article about Washington’s K Street apparatus. (Appropriately, his column is entitled “The K Street Insider.”) Luckily for us, he trains his sights on the heavy lobbying that continues to go on in the fight over the Patent Reform Act of 2007. Categories: Legislation & Regulation; Patent; Politics & Government.

Rewind: Ones We Missed

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

Linux-Watch.org. First U.S. GPL Lawsuit Heads for Quick Settlement. Sept. 24, 2007. It took less than a week for DVR manufacturer Monsoon Multimedia to settle allegations that its BusyBox violated terms of the GNU General Public License, version 2. We’re unsure what happened, but two possibilities are the Free Software Foundation jumped the gun in filing the lawsuit, or Monsoon underestimated the Foundation’s resolve to litigate the case. Categories: Cases & Litigation; Licensing & Permissions; Open Source.

Christopher Price. Did Apple Violate Magnuson-Moss over iPhone Unlocks? Phone News. Sept. 24, 2007. An interesting analysis of the warranty and license implications inherent in Apple’s decision to “brick” any iPhone that has unauthorized software or changed network settings. Categories: Business & Commerce; DRM; Mobile Devices.

Anders Bylund. RIAA’s Day in Court Nearly Over. The Motley Fool. Sept. 24, 2007. The well-known financial site explains why it thinks the music industry’s litigation strategy of suing consumers over alleged infringement arising from so-called “file sharing” needs to end. When the financial press begins criticizing your strategy, then you know things are not going well. Categories: Cases & Litigation; Music.

Michael Robertson. My Business Failure – AnywhereCD. Sept. 24th, 2007. Founder Michael Robertson chronicles and laments the failure of his download initiative AnywhereCD. Categories: File, P2P, Downloads; First Sale; Music; Web & Online.

Jacqui Cheng. As Deadline Looms, Senate Still Debating Fate of Internet Tax Moratorium. ArsTechnica. Sept. 21, 2007. It is true the Internet tax moratorium is due to expire, but what electoral party wants to be known as the party that taxed the Internet just before a presidential election year? We can almost guarantee this moratorium will be extended — just as we can guarantee an increasing number of states will follow New York’s lead and tax goods bought on the Web in the same way it taxes sales of tangible personal property through traditional channels. Categories: Business & Commerce.

Matthew Belloni. Monroe, Money Fueling Right of Publicity Battle. The Hollywood Reporter. Sept. 14, 2007. Copyright is not the only form of intellectual property that is spiraling out of hand. Rights of publicity — or the right of a person to control his or her image or likeness — is the new, hot thing, especially among celebrities in the entertainment capitals of New York and California. Typically, one’s right of publicity ends at death, but a shocking California’s law grants right of publicity rights to a deceased’s estate 70 years after a person dies, meaning that California’s “life plus 70” right of publicity law lasts as long as today’s copyright term for individuals. Categories: Film & Video; Right of Publicity.

Copycense™: Code + Content.™ A venture of Seso Group LLC.

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

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.

Copycense™: Code + Content.™ A venture of Seso Group LLC.

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

Beware any music executive who opines on the record that “the demand for music is as strong as it has ever been.”

There is incontrovertible evidence that compact disc sales cannot fall much further before they fall into the toilet. There also is what music executives would have you believe is incontrovertible evidence that so-called “file sharing” is killing sales. (A masterful, peer-reviewed article (.pdf) in the Journal of Political Economy empirically debunks that myth.)

And if you know anything about the music business, music executives, or the ability to read between the lines of a quarterly earnings statement from the CEO of a major corporation, then you can be confident that when Warner CEO Edward Bronfman talks about “demand,” he really is using that word as an alternative meaning for “sales revenue.”

Finally, one can surmise reasonably that the money the recording labels receive from digital music outlets like iTunes Music Store (iTMS) is not nearly enough to support the corporate and executive infrastructure those labels have grown and maintained for the past three decades. The labels’ desire to maintain this level of corporate infrastructure is one reason several have balked at the uniform pricing scheme Apple has demanded as a condition of selling music through iTMS.

So how does one reconcile trickling unit sales and the scourge of “file sharing” with healthy “demand” (i.e. sales revenue)? I count at least three possible ways that revenue could rise without unit sales of compact discs increasing.

First, look at the increase in the manufacturer’s suggested retail price (MSRP) of new compact discs, which now routinely approaches (and even exceeds) a Jackson. Even if the public can buy a new CD for less than MSRP, a higher MSRP still leads to a higher actual retail price, since any discount that retailers impose is deducted from MSRP. All things being equal, a higher MSRP leads to higher revenue, hence higher “demand.”

Second, look at alternative methods of getting revenue. In the past two weeks’ Clippings, we ran stories about a clash between Bob Marley’s estate and Verizon over the cellular provider’s agreement with Universal to sell Marley ringtones. (Universal owns the copyrights to much of the Marley song catalog.) Traditionally, recording industry contracts have been silent about revenue that occurs outside of unit sales of records and compact discs, or explicitly has reserved such revenue to the recording artist. Not so in today’s music environment: increasingly, recording labels are demanding through contract that artists surrender some of non-music revenue, such as ringtones.

Although a relatively recent innovation, ringtones have become popular, and thus potentially lucrative. Further, since the ringtones are derivative works of an intellectual property asset the record company already owns, it can cut lucrative deals with the highest bidder. The label has to share some of the ringtone earnings with the songwriter and publisher, but since this is a new revenue stream that the labels and songwriter may not have been envisioned, the label has more flexibility in crafting a deal with those parties than it would have under more established revenue streams.

You can be sure the label is going to cut that deal as far to its advantage as possible, even if the artist objects to the very idea of a ringtone deal (which is the case in the Marley-Verizon clash). While there are several variables in this situation, the net effect of ringtones is more revenue to the label, hence higher “demand.”

Third, labels increasingly are demanding that artists surrender or share a portion of concert and tour revenue. This demand is more egregious than the ringtone sharing deals. Ringtones are a new revenue stream that recent technological advances made possible. There was no tradition or business precedent for it, and in a new, free market, parties are free to cut their deals as they please.

In contrast, live performance revenue always — always — has been the artist’s exclusive economic domain. No longer: now labels want a share of ticket revenue, merchandising, and licensed products. (Some even ask for a share of licensed product revenue that has nothing to do with live performances.)

I consider this to be salt in the proverbial wound. It’s not enough that the typical artist will get no revenue from radio play: radio consolidation increasingly demands that only top-selling artists get airplay because radio executives are convinced such a playlist drives advertising revenue. It’s not enough that the typical recording artist will get no revenue from unit sales. It is true that illegal music copying and downloading cheats recording artists out of potential revenue. But one could argue reasonably that restrictive and egregious contract terms cheat recording artists out an equal amount of potential revenue even before that artist records the album.

Now, the artist has to go on tour and pay off the label, too? That artist is better off working the line at UPS; at least Brown pays health insurance and tuition reimbursement. While there are several variables in this situation as well, the net effect of this new, previously unheard of economic stream is more revenue to the label, hence higher “demand.”

None of this rationale considers a current trend in which states are making it difficult to sell used music. A recent trend, however, has state legislatures creating or extending so-called “pawn shop” laws to apply to the sale of used compact discs. These measures effectively create an economic disincentive for retailers to sell used discs.

Billboard magazine reported in May that a new law in Florida requires all stores that buy used goods to apply for a permit; thumb-print compact disc sellers; retrieve and retain the sellers’ government-issued identification; and hold the discs for 30 days before resale is allowed. Consumers no longer can receive cash for their discs; only store credit is allowed. ArsTechnica reported, also in May, that the legislatures in Rhode Island and Wisconsin are considering similar legislation.

Remember that pursuant to the “first sale” doctrine, neither labels nor recording artists receive any revenue from the sale of used compact discs. But of these two groups, recording artists have much more to gain from secondary market resales of their work because at minimum, a sale of a used disc creates or maintains attention for the artist. This attention could lead to future sales of new music, or attendance at a concert. I’ve discovered several artists’ work in this manner; it’s a safe way to test an artists repertoire before committing to full price on a new compact disc (which you cannot return to a retail store once you’ve broken the insanely tight shrinkwrap).

The recording industry’s attempt to restrict or eliminate sales of used music does not help its bottom line; all it does is harm consumers and artists. (For one artist’s opinion on how the music industry treats consumers, see Trent Reznor’s rant on YouTube.)

But let me return to the central premise: above, I’ve articulated three reasons why Bronfman can claim that “demand” (i.e. revenue) for music in 2007 is “as strong as it has ever been.” But what Bronfman is not saying is critically important: he is not saying that consumers are buying more units because the labels are providing better (or at least more popular) products and services. Quite the contrary: “demand” (i.e. revenue) likely has increased because the labels are charging consumers more, taking more from artists’ pockets, restricting consumer choice, and (equally as likely) engaging in creative accounting.

And even with all Bronfman’s rosiness, Warner Music Group’s third-quarter revenue (the three months ending June 30) still dropped 2 percent.

See also:
News.com (via Reuters). Warner Boss Sees Rebound Despite CD Sales Decline. Sept. 18, 2007.

Copycense™: Code + Content. A venture of Seso Group LLC.

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

Beware any music executive who opines on the record that “the demand for music is as strong as it has ever been.”

There is incontrovertible evidence that compact disc sales cannot fall much further before they fall into the toilet. There also is what music executives would have you believe is incontrovertible evidence that so-called “file sharing” is killing sales. (A masterful, peer-reviewed article (.pdf) in the Journal of Political Economy empirically debunks that myth.)

And if you know anything about the music business, music executives, or the ability to read between the lines of a quarterly earnings statement from the CEO of a major corporation, then you can be confident that when Warner CEO Edward Bronfman talks about “demand,” he really is using that word as an alternative meaning for “sales revenue.”

Finally, one can surmise reasonably that the money the recording labels receive from digital music outlets like iTunes Music Store (iTMS) is not nearly enough to support the corporate and executive infrastructure those labels have grown and maintained for the past three decades. The labels’ desire to maintain this level of corporate infrastructure is one reason several have balked at the uniform pricing scheme Apple has demanded as a condition of selling music through iTMS.

So how does one reconcile trickling unit sales and the scourge of “file sharing” with healthy “demand” (i.e. sales revenue)? I count at least three possible ways that revenue could rise without unit sales of compact discs increasing.

First, look at the increase in the manufacturer’s suggested retail price (MSRP) of new compact discs, which now routinely approaches (and even exceeds) a Jackson. Even if the public can buy a new CD for less than MSRP, a higher MSRP still leads to a higher actual retail price, since any discount that retailers impose is deducted from MSRP. All things being equal, a higher MSRP leads to higher revenue, hence higher “demand.”

Second, look at alternative methods of getting revenue. In the past two weeks’ Clippings, we ran stories about a clash between Bob Marley’s estate and Verizon over the cellular provider’s agreement with Universal to sell Marley ringtones. (Universal owns the copyrights to much of the Marley song catalog.) Traditionally, recording industry contracts have been silent about revenue that occurs outside of unit sales of records and compact discs, or explicitly has reserved such revenue to the recording artist. Not so in today’s music environment: increasingly, recording labels are demanding through contract that artists surrender some of non-music revenue, such as ringtones.

Although a relatively recent innovation, ringtones have become popular, and thus potentially lucrative. Further, since the ringtones are derivative works of an intellectual property asset the record company already owns, it can cut lucrative deals with the highest bidder. The label has to share some of the ringtone earnings with the songwriter and publisher, but since this is a new revenue stream that the labels and songwriter may not have been envisioned, the label has more flexibility in crafting a deal with those parties than it would have under more established revenue streams.

You can be sure the label is going to cut that deal as far to its advantage as possible, even if the artist objects to the very idea of a ringtone deal (which is the case in the Marley-Verizon clash). While there are several variables in this situation, the net effect of ringtones is more revenue to the label, hence higher “demand.”

Third, labels increasingly are demanding that artists surrender or share a portion of concert and tour revenue. This demand is more egregious than the ringtone sharing deals. Ringtones are a new revenue stream that recent technological advances made possible. There was no tradition or business precedent for it, and in a new, free market, parties are free to cut their deals as they please.

In contrast, live performance revenue always — always — has been the artist’s exclusive economic domain. No longer: now labels want a share of ticket revenue, merchandising, and licensed products. (Some even ask for a share of licensed product revenue that has nothing to do with live performances.)

I consider this to be salt in the proverbial wound. It’s not enough that the typical artist will get no revenue from radio play: radio consolidation increasingly demands that only top-selling artists get airplay because radio executives are convinced such a playlist drives advertising revenue. It’s not enough that the typical recording artist will get no revenue from unit sales. It is true that illegal music copying and downloading cheats recording artists out of potential revenue. But one could argue reasonably that restrictive and egregious contract terms cheat recording artists out an equal amount of potential revenue even before that artist records the album.

Now, the artist has to go on tour and pay off the label, too? That artist is better off working the line at UPS; at least Brown pays health insurance and tuition reimbursement. While there are several variables in this situation as well, the net effect of this new, previously unheard of economic stream is more revenue to the label, hence higher “demand.”

None of this rationale considers a current trend in which states are making it difficult to sell used music. A recent trend, however, has state legislatures creating or extending so-called “pawn shop” laws to apply to the sale of used compact discs. These measures effectively create an economic disincentive for retailers to sell used discs.

Billboard magazine reported in May that a new law in Florida requires all stores that buy used goods to apply for a permit; thumb-print compact disc sellers; retrieve and retain the sellers’ government-issued identification; and hold the discs for 30 days before resale is allowed. Consumers no longer can receive cash for their discs; only store credit is allowed. ArsTechnica reported, also in May, that the legislatures in Rhode Island and Wisconsin are considering similar legislation.

Remember that pursuant to the “first sale” doctrine, neither labels nor recording artists receive any revenue from the sale of used compact discs. But of these two groups, recording artists have much more to gain from secondary market resales of their work because at minimum, a sale of a used disc creates or maintains attention for the artist. This attention could lead to future sales of new music, or attendance at a concert. I’ve discovered several artists’ work in this manner; it’s a safe way to test an artists repertoire before committing to full price on a new compact disc (which you cannot return to a retail store once you’ve broken the insanely tight shrinkwrap).

The recording industry’s attempt to restrict or eliminate sales of used music does not help its bottom line; all it does is harm consumers and artists. (For one artist’s opinion on how the music industry treats consumers, see Trent Reznor’s rant on YouTube.)

But let me return to the central premise: above, I’ve articulated three reasons why Bronfman can claim that “demand” (i.e. revenue) for music in 2007 is “as strong as it has ever been.” But what Bronfman is not saying is critically important: he is not saying that consumers are buying more units because the labels are providing better (or at least more popular) products and services. Quite the contrary: “demand” (i.e. revenue) likely has increased because the labels are charging consumers more, taking more from artists’ pockets, restricting consumer choice, and (equally as likely) engaging in creative accounting.

And even with all Bronfman’s rosiness, Warner Music Group’s third-quarter revenue (the three months ending June 30) still dropped 2 percent.

See also:
News.com (via Reuters). Warner Boss Sees Rebound Despite CD Sales Decline. Sept. 18, 2007.

Copycense™: Code + Content. A venture of Seso Group LLC.

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

This week’s mondo edition of Clippings includes the proper use of the word “piracy”; ringtones abuzz; DRM-free audiobooks; and the fashion industry’s attempt to gain copyright protection for designs.

Articles of the Week

Freakonomics (New York Times). The Economics of Piracy (the Real Kind, With Peglegs and Pieces of Eight). Sept. 17, 2007. Finally, finally … FINALLY: a member of the mainstream press uses the term “piracy” in its proper context and definition. We were beginning to lose hope. Seriously, the blog posting links to several interesting articles about valuation in piracy activities. Categories: Framing & Rhetoric.

Roughly Drafted. Apple’s Ringtones and Copyright Law. Sept. 14, 2007.
Daring Fireball. The Ringtones Racket. Sept. 13, 2007.
This pair of articles is a great introduction into the legal and business thicket that is the mobile phone ringtone. Music copyright is an odd mix of rights that differs considerably from the information rights we typically cover in Copycense. (To be truthful, we need to do a better job of explaining music copyright issues, since we talk so much about the music industry.) These articles, however, can serve as a solid introduction to this specialized area of copyright law. They also provide a good business analysis of Apple’s new iPhone ringtone capability, which is a transaction that is separate from a song purchase. These articles are particularly important now, since ringtones are one of the few sources of revenue upon which the traditional music industry can rely. Categories: Mobile Devices; Licensing & Permissions; Remixes & Derivative Works.

Clippings

James Surowiecki. The Piracy Paradox. The New Yorker. Sept. 24, 2007. The author of The Wisdom of Crowds steps into the intellectual property thicket with an article that analyzes the fashion industry’s relatively recent complaints about alleged infringement of patterns and designs. (Folks in this industry call the phenomenon “knockoffs” instead of the misleading term “piracy.”) For more insight to this issue, see H.R. 2033 and S.1957, both entitled the Design Piracy Prohibition Act, which would give registered fashion designs copyright protection for three years. Sen. Charles Schumer (D-NY) is sponsoring the Senate version. Categories: Fashion & Ornaments; Infringement; Legislation & Regulation.

O’Reilly Radar. Carl Malamud Tackles the Copyright Office. Sept. 17, 2007. Malamud is an agitator for free public access to government information, including federal case law. (Also, in the early nineties, Malamud’s work and advocacy were critically important to developing what would become EDGAR.) Now, Malamud has sent a letter to Marybeth Peters, Register of Copyrights, that asks her to “provide bulk access to the copyright catalog of monographs, documents, an serials.” Essentially, what Malamud wants, among other things, is for the public to be able to access the copyright registration database in order to hack some newer, better solution. Malamud has the signed support of university librarians from Harvard, Stanford, the University of Pennsylvania, and MIT. Categories: Open Access; Politics & Government; Research.

Paul McDougall. SCO Blames Linux For Bankruptcy Filing. InformationWeek. Sept. 17, 2007. The marketplace’s adoption of he open source Linux operating system may have been a major reason, but not the only reason, for the bankruptcy. SCO sued software developer Novell in January 2004, claiming that it (not Novell) owned the rights to the Unix operating system. Last month, a federal court judge ruled that Novell owns the copyrights to Unix. Categories: Open Source.

Andrew Adam Newman. EMusic, a Song-Download Site, to Offer Audiobooks. The New York Times. Sept. 17, 2007. And unlike their competitors on iTunes, these audiobooks will be offered in the .MP3 file format, absent of any copy restrictions. This shouldn’t be too much of a problem, since whole audiobooks tend to be very large files that are not easy to copy or distribute across the Web, even at the highest connection or bandwidth. Categories: Books; File Sharing, P2P & Downloads.

Ryan Paul. Leaked Media Defender E-mails Reveal Secret Government Project. ArsTechnica. Sept. 16, 2007. This is but one of several stories Ars has on the approximately 700 MB of MediaDefender’s internal company e-mail that leaked onto the Web last weekend. Ars characterizes MediaDefender as a company that “specializes in file-sharing mitigation.” Ars reports the leak was made easier when a MediaDefender employee forwarded all his work email to a personal Gmail account. We ask: why would any employee do that? Categories: File Sharing, P2P & Downloads; Privacy & Security.

Sam Diaz. New Music Model: Free Before Fee. WashingtonPost.com. Sept. 15, 2007. The Post profiles a new music site, AmieStreet.com, that charges a fee for music based upon its popularity (as measured by the number of downloads). Those who recommend and review music for the site can earn credit toward site purchases. At first blush, the concept seems interesting, especially since it is a riff on the variable pricing model Apple consistently has rejected for iTunes. The site’s catalog, however, is bereft of most major artists, which will hamper customer adoption. Further, there is nothing to indicate the site will be able to win approval from the major labels to allow for distribution of such music. Perhaps their best end game is to make themselves attractive enough to have a major label buy it and use the ideas and technology to sell its own music to compete with iTunes. Categories: File Sharing, P2P & Downloads; Music.

Andrew Adam Newman. Marley Family’s Vitriol Leads Verizon to Bite Back. The New York Times. Sept. 14, 2007. This is a continuation of the Marley-Verizon battle that centers on the cellular carrier’s plan to license Marley songs from copyright owner Universal in order to offer ringtones to the public against the family’s will. Apparently, Verizon and Universal agreed to remove the ringtones from the Verizon Web site, but recanted on the removal when representatives from the Marley estate were not properly deferential and gracious. To date, the concept of moral rights is rather thin in the U.S., and only covers visual art. This clash, however, shows that the concept may need to be available for authors of other forms of creativity. Can you imagine a cellular company and music company being so disrespectful to, say, the repertoire of the Gershwin estate? Categories: File Sharing, P2P & Downloads; Licensing & Permissions; Mobile Devices; Music.

Deirdre McMurdy. Copyright Will Soon See Its Name In Lights. The Ottawa Citizen. Sept. 14, 2007. This is a great article that outlines the state of copyright legislation in Canada, and how the U.S. government influences that legislation. Categories: International; Legislation & Regulation.

Anne Broache and Declan McCullagh. Web Ad Blocking May Not Be (Entirely) Legal. News.com. Sept. 14, 2007. Both Broache and McCullagh typically are good journalists, but this important story is not really their best work. (They refer to an upcoming court case they don’t identify.) Still, the underlying issue — advertisements as a form of speech that receives First Amendment protection — is one of those areas (like making corporations a legal person) that probably was a good idea when the founders wrote the Constitution, but arguably should be revisited due to the perverted ways in which such principles have manifested themselves in today’s society. Categorizing advertising as speech allows spammers to legally challenge anti-spam laws, like the one that is being challenged in Virginia. Categories: Privacy & Security.

Surveillance State. TV Torrents: When ‘Piracy’ Is Easier Than Legal Purchase. Sept. 13, 2007. We wrote about the NBC-Apple breakup last week. What happens to NBC Universal content when it no longer is available through iTunes once its contract expires?

Elinor Mills. Google Proposes Global Privacy Standard. News.com. Sept. 13, 2007. If Google was not in the midst of trying to buy online advertising giant Doubleclick for $3.1 billion — and facing antitrust scrutiny for this proposed transaction — we might be persuaded that the privacy standard talk is genuine. There probably should be a worldwide privacy standard (or standards), but we cannot really take Google seriously on this one given the context in which their proposal arrives. Categories: Privacy & Security.

Public Knowledge. Web Radio Inches Towards a Solution. Sept. 13, 2007. The proposed resolution of Webcasting fees limits liability for large broadcasters that also provide an online feed, but does not provide similar protection for small broadcasters. It’s unclear where Congress or the Copyright Office plans to draw the line between “small,” “medium,” and “large.” But at least this is a start. Categories: Broadcasting & Journalism; Music

Liam Tung. Google Denies Ownership of Users’ Words. News.com. Sept. 12, 2007. When we teach copyright law these days, we spend an inordinate amount of time on the interplay between copyright and licensing, especially clickwrap licenses that are common to free Web applications like Google’s Docs & Spreadsheets. This article outlines the danger lurking in using online applications, especially if the user does not take the time to read the terms of service. Categories: Licensing & Permissions; Web & Online.

Anick Jesdanun. Libraries Facing Internet Traffic Jam. MSNBC.com (via The Associated Press). Sept. 12, 2003. More patrons, more services, more bandwidth, more electricity … and less money. Meet the plight of the modern public library. Categories: Libraries & Information Science; Web & Online.

Thomas Claburn. Fair Use Worth More to Economy Than Copyright, CCIA Says. InformationWeek. Sept. 12, 2007. Last week, K. Matthew Dames opined about the CCIA’s Defend Fair Use campaign. In summary, he was skeptical about CCIA’s aims. This week, CCIA pushes forward with its support of fair use by publishing an economic report (.pdf) that concludes fair use exceptions to U.S. copyright laws are responsible for more than $4.5 trillion in annual revenue for the United States. We’ll report further after we study the report’s conclusions, hedges, and methodology. We can say now, though, that those in support of balanced copyright long have needed the sort of research, lobbying, and public relations power that Big Content has had — and exhibited — almost exclusively over the last three decades. Perhaps CCIA will be the cornerstone of a coalition that can build such an infrastructure. Categories: Fair Use & Other Exceptions; Politics & Government; Research.

Amol Sharma and Christopher Rhoads. NTP Brings More Suits. WSJ.com. Sept. 12, 2007. So-called “patent trolls” are front and center in Congress right now, as members in both houses consider and debate the Patent Reform Act of 2007. It reasonable to argue that the term, attendant controversy, and at least part of the efforts at patent reform, a small patent holding company based in Arlington, VA of which the world knew little until it played a legal game of chicken with Blackberry maker Research In Motion and won $512 million in settlement. Guess what? Like Tony Kornheiser, NTP is back for more cash. Categories: Cases & Litigation; Legislation & Regulation; Patent.

The Iconoclast (CNet News.com). DirecTV Faces Setback In Dubious Antipiracy Campaign. Good. Sept. 12, 2007. The inestimably good Declan McCullagh analyzes a recent Ninth Circuit Court of Appeals decision (.pdf) that essentially says plaintiff DirecTV cannot hold liable two researchers for alleged violations of the Federal Communications Act of 1934 and the Electronic Communications Privacy Act. McCullagh focuses his coverage on DirecTV’s extreme and presumptive behavior towards any customer that buys, programs, or possesses electronic smart cards. Categories: Broadcasting & Journalism; Cases & Litigation.

David Gonzalez. Tempting Diners in Queens With a Pirated ‘El Cantante’. The New York Times. September 11, 2007. We can hear it now: “Would you like a beverage before ordering? How about an appetizer? Let me tell you the specials, which include [enter entree]. And before we begin, would you like a movie to take home with you? One for $7, four for $20.” And if you’re El Cantante director Leon Ichaso, what do you say when illegal copies of your movie are offered to you at dessert? As one important aside, this article indirectly confirms what we’ve alleged before on these pages: in many cases, the leaked copies originate from the studios or an outsourced editing shop. One would think that if there would be a business model for “secure studios”: places where the employees are fingerprinted, monitored, and perhaps even bonded as a condition of working. This might be one way to stem the flow of illegal content from the source. As a second (more important) aside, though, almost everyone in the article who’s “victimized” by the (likely) infringement concede that the distribution rings the illegals operate are far more efficient and advanced than whatever Hollywood has in place right now. Maybe there’s a lesson there. Categories: Film & Video; Infringement.

Public Knowledge. Fall Policy Preview: Copyrights (and Patents) Return to the Headlines. Sept. 11, 2007. PK’s (newly wed) Gigi Sohn provides a thorough update of copyright and licensing legislation that is on Congress’ docket for the remainder of the 110th Congress. This final quarter of 2007 will be particularly interesting, as it is common for large copyright owners to push hard for protectionist legislation late in a year (or at the end of a Congressional term) as the [Congressional] clock winds down to zero. Although Term 110 does not officially end until Dec. 31, 2008, Dec. 31, 2007 can be considered the de facto end of term because next year is a presidential election year. Although stranger things have happened (including the never-ending possibility of horse trading for presidential support in exchange for legislative support on pet bills), most of Congress is too busy with the presidential race to worry about intellectual property legislation. But again, stranger things have happened. Categories: Legislation & Regulation.

Ones We Missed

(Interesting stories that we found after the previous editions of Clippings went to press.)

The Patry Copyright Blog. Copyright Always Is Government Intervention. Sept. 10, 2007. Razor sharp William Patry assesses the CCIA fair use initiative, and gets tons of comments in the process. (Patry continued the thread on Sept. 12.) Categories: Fair Use & Other Exceptions.

Law.com Blog Network. Lawyer Sanctioned for Plagiarism in Brief. Sept. 7, 2007. A federal bankruptcy court judge levies disciplinary sanctions against an Iowa attorney for filing a brief where about 85 percent of the brief consisted of a verbatim copy of a law review article. (“Mr. Cannon’s only significant modification to the Article text he incorporated into the pre-hearing brief was to delete certain passages, including some that would not support Defendant’s attempt to remove counsel for Trustee,” wrote bankruptcy judge Paul J. Kilburg.) The court forced the lawyer, Peter Cannon, to return the fees he charged his client in the case, and “complete a law school or equivalent course in professional responsibility on or before August 31, 2008.” K. Matthew Dames has written about the distinction between copyright infringement and plagiarism; from the facts, it seems the law review publisher may have a valid action for copyright infringement as well. Categories: Infringement.

Copycense™: Code + Content.™ A venture of Seso Group LLC.

This edition of Clippings includes articles about Illinois’ State’s Digital Citizen Project; another federal court rejection of the USA PATRIOT Act; NBC hopping in bed with Amazon soon after breaking up with Apple; ISPs cutting off customers who have had too much to drink; and a priceless Site Check video.

Article of the Week

Patrick Ross. Fair Use Is Not a Consumer Right. News.com. Sept. 6, 2007. We agree with Ross that “consumers need a better understanding of both the rights of creators as well as the limits on those rights through fair use” and that “education is the right approach.” Where we disagree — vehemently — is that organizations like the Copyright Alliance are those that should be providing the “education.” (Editor’s Note: Read the full commentary and analysis in K. Matthew Dames’ recent CommuniK. editorial.)

CommuniK. Clippings

John Letzing. Lawmakers Take Aim at Patent Speculators. MarketWatch. Sept. 7, 2007. Categories: Framing & Rhetoric; Legislation & Regulation; Patent.

We’ve not posted from MarketWatch in quite some time, so it’s interesting to see this type of article in a financial publication. We have a few observations. First, we note the continued use of the term “patent trolls.” Unlike “piracy,” which at least has a legal definition (albeit one that is not used or used improperly), “patent trolls” is a meaningless unphrase that is even more severe than “piracy” because it has no legal meaning whatsoever. Unfortunately, the term “patent trolls” has been used as the basis for intellectual property policy and legislation, including the Patent Reform Act of 2007.

Second, what is wrong with being a patent holding company (which is what some refer to as “patent trolls”)? Large copyright holding companies in this country — Disney, Viacom, and Universal among them — are admired, protected, and tremendously influential in getting protectionist copyright legislation passed in their favor. They engage in financial speculation with their assets. They are aggressive about suing to protect their portfolio assets (anyone hear about lawsuits against alleged illegal file sharing), and industry applauds those efforts not only as right, but just. To hold patent holding companies to a different commercial, legal, or social standard is the height of hypocrisy. As an attorney quoted in the article notes, “No one looks at real-estate investors who speculate as trolls. They’re admired for what they do.”

Finally, any policy or legislation that is based upon the alleged affect of “patent trolls” is bad policy or legislation because such policy is based upon framed, spun, one-sided rhetoric. But it seems Congress has made a practice of passing intellectual property legislation that is based upon framed, spun, one-sided rhetoric. Perhaps Congress needs to do a better job of getting better information (or at least information from parties other than those who have a direct interest in the legislation). Perhaps citizens and policy groups who want more equitable laws need to do a better job of presenting their side of the policy story. Perhaps both?

Site Check

This anti-piracy spoof, created by the makers of British sitcom The IT Crowd, is raw, rude, crass, irreverent … and priceless.

Clippings

Apple Unvarnished. Steve Jobs’ Other Mistake. Sept. 10, 2007. An interesting post-mortem on the iPhone pricing snafu that poses an interesting question: will Apple be more interested in serving its customers or becoming partners with Big Content? The iPod is Apple’s crown jewel, and the one thing it needs is content. Preferably fresher, newer, and buyable content. Since Apple and Steve Jobs are one and the same, it’s significant that Jobs both is chair of the company that makes the iPod, and on the board of directors of one of iPod’s major content providers (Disney). It will be interesting to see how this all plays out. Categories: Film & Video; Mobile Devices; Music.

John Timmer. Science Gets Its YouTube On With SciVee. ArsTechnica. Sept. 10, 2007. This concept — scientists (who, after all, are responsible for creating the Internet) using the Internet to summarize and extend research findings — is so “duh” and so brilliant at the same time. Categories: Education; Science & Medicine; Web & Online.

Eric Bangeman. With Trial Date looming, RIAA Tries to Avoid Facing a Jury. ArsTechnica. Sept. 10, 2007. This article identifies a possible factual and procedural hole in the RIAA lawsuit scheme (we’d really like to hear Patry’s opinion on this, since he’s quite knowledgeable about the intersection of federal civil procedure and copyright litigation). The piece also suggests, perhaps unwittingly, one solution to this copyright mess: mandatory registration. We know that since U.S. became signatory to the Berne Convention, copyright registration is optional. But that policy change has seriously harmed this nation’s copyright system, in our estimation. Without mandatory registration, we have the orphan works problem. Without reliable registration, one cannot legitimately contest ownership should there be a question over ownership. Patent and trademark law require registration and committee review for all mark applicants; why not for copyright? Categories: Cases & Litigation; International; Registration.

Brock Read. The First Close Look at Colleges’ Digital Pirates. The Chronicle of Higher Education. Sept. 7, 2007. Page A1. While this story is unavailable on the Web without a subscription, we felt it was too interesting not to mention. The article talks about Illinois State University’s Digital Citizen Project, and some of the Project’s preliminary research findings. “The Digital Citizen Project … has benefited from considerable entertainment-industry financing, including an influx of several hundred thousand dollars that came shortly after [a late 2006] meeting. Later, Illinois State secured promises that the information the university collects will not be used to prosecute students. … The university opened up its campus network, collecting never-before-seen data on what files students were swapping and how they share them. It has started to survey students’ opinions on copyright, hoping that a scholarly study will reveal how they can be persuaded not to download illegally. It is also working to create a sort of Consumer Reports for antipiracy tools, testing both legal downloading services and technology designed to block peer-to-peer file sharing. The first results from the research are startling: They show that record companies and movie studios have reason to complain about campus piracy. … But the project’s other preliminary conclusion may steel college officials who argue that entertainment-industry groups — and lawmakers — should dial back their invective. According to Illinois State’s tests, the technology tools that the industry is recommending to block illegal transactions may have only a limited effect. In April they captured just a small percentage of the university’s pirated files.” Categories: Education; File Sharing, P2P & Downloads; Research.

Richard B. Schmitt. Federal Judge Strikes Down Part of Patriot Act. Baltimore Sun. Sept. 7, 2007. The U.S. District Court for the Southern District of New York again has held that a provision of The Patriot Act is unconstitutional. Judge Victor Marrero wrote in a 103-page decision that National Security Letters violated the First Amendments. The letters are a sort of discretionary, administrative subpoena that federal law enforcement officials issued to businesses (including ISPs) that are performing an inquiry into suspected spying or terrorism. Upon receipt of such an inquiry, a business (including a library or Internet service provider) is required to release records that are requested in the Letter. Further, the business’ employees would be banned from telling anyone about the subpoena. This opinion (.pdf) is the second time Marrero has found Patriot Act provisions to be unconstitutional. Categories: Cases & Litigation; Legislation & Regulation; Privacy & Security.

Kim Hart. Shutting Down Big Downloaders. WashingtonPost.com. Sept. 7, 2007. Taking up too much bandwidth on your ISPs network? You risk the provider turning off the spigot. This brings up three somewhat unrelated thoughts. First, if the shutoff is the answer to perceived bandwidth hogging, and bandwidth hogging reasonably is presumed to relate to heavy multimedia download traffic, then it seems ISPs have a way to monitor possible copyright infringement through extensive downloading of media files the subscriber hasn’t purchased or does not legally own. Second, what standards does the ISP use to determine that a customer is using an unreasonable amount of bandwidth? Third, the discussion of bandwidth (and the possibility of bandwidth overconsumption) reminds us that the United States customers endure “only ‘basic’ broadband, among the slowest, most expensive, and least reliable in the developed world,” according to a Foreign Affairs article from Thomas Bleha. Applied here, maybe customers are using too much bandwidth, but maybe ISPs need to provide more at better prices. Further, you can’t really discuss the whole “Net neutrality” debate without asking why the U.S. lags so far behind Asia and Europe in broadband deployment. Categories: Privacy & Security; Web & Online.

ArsTechnica. RIAA File-Sharing Case Ending With Squabble Over Check for Attorneys’ Fees. Sept. 6, 2007. It figures that after being beaten in court, the RIAA would play games with the attorneys’ fees it owes Debbie Foster, whose counterclaim against Capitol Records was dismissed in July 2006, but nevertheless was proclaimed to be the prevailing party in the copyright action. Foster subsequently requested, and won, attorneys’ fees. Categories: Cases & Litigation; File Sharing, P2P & Downloads.

SiliconValley.com (via Associated Press). Justice Department opposes ‘Net Neutrality’ Laws. Sept. 6, 2007. The mainstream press has given little coverage to the once white-hot Net Neutrality debate, but the Justice Department’s opposition to the concept — which seeks to keep Internet service equally accessible for all users without exception — is important information. DoJ’s rationale is the predictable “open market” argument: “The FCC should be highly skeptical of calls to substitute special economic regulation of the Internet for free and open competition enforced by the antitrust laws. Marketplace restrictions proposed by some proponents of ‘net neutrality’ could in fact prevent, rather than promote, optimal investment and innovation in the Internet, with significant negative effects for the economy and consumers.” The Department’s filing is available from its Web site. Categores: Legislation & Regulation; Web & Online.

Brooks Barnes. NBC in Deal With Amazon to Sell Shows on the Web. The New York Times. Sept. 5, 2007. Within a week of announcing it was ending its partnership with Apple, which provided television show episodes through iTunes, NBC Universal inks a deal with Amazon.com for the online retailer to sell video downloads. The shows will be sold through Amazon.com’s Unbox download service. Categories: File Sharing, P2P & Downloads; Film & Video; Web & Online.

Grant Gross. Consumer Groups Back Patent Bill. PCWorld. Sept. 4, 2007. The Electronic Frontier Foundation is among the groups that is supporting the Patent Reform Act of 2007. Public Knowledge provides a good summary of the legislation. Categories: Legislation & Regulation; Patent.

Edvard Pettersson. Universal Music Sues Eisner-Backed Veoh Networks Over Web Site. Bloomberg. Sept. 4, 2007. A Big Content company suing another for alleged copyright infringement is commonplace these days. And it doesn’t matter that the alleged infringer, a video site, has substantial financial backing from former Disney CEO Michael Eisner. Veoh had anticipated the lawsuit, since it filed a declaratory judgment in August, asking the court to determine that its service passes legal muster. Categories: Cases & Litigation; Film & Video.

The Patry Copyright Blog. Golan’s Copyright Lows. Sept. 4, 2007. Razor sharp William Patry analyzes the 10th Circuit’s recent decision (.pdf) in Golan v. Ashcroft, which used the First Amendment to revive another legal challenge to the Copyright Term Extension Act‘s (.pdf) retroactive removal of some works from the public domain. Categories: Cases & Litigation; Public Domain & Term.

Associated Press (no author cited). Microsoft Fails to Win First Round Making Open Office XML a Global Standard. Sept. 4, 2007. Microsoft’s effort to standardize its own version of XML has been in high gear since Massachusetts opted in 2005 to standardize with the Open Document Format, a move several library representative organizations supported. (Last month, Massachusetts decided to approve Microsoft’s XML initiative.) Others have criticized Open Office XML as another Redmond ploy geared toward dominating the desktop. It is true that we now exist in a sociological environment where people are creating and storing an increasing number of documents online using online tools such as Google Notebook or Google Docs, but the Open Office XML/ODF battle will continue to be relevant for several reasons, not the least of which is creating digitization standards for the innumerable physical documents that already exist, but need to be made virtual. Categories: Computers; Digitization; Open Access.

Eric Wilson. Before Models Can Turn Around, Knockoffs Fly. The New York Times. Sept. 4, 2007. Here’s one for you, just in time for Fashion Week: “An expert working with the designers’ trade group [Council of Fashion Designers of America] estimates that knockoffs represent a minimum of 5 percent of the $181 billion apparel market.” So let’s break this down a bit. First, if we use just the numbers we’re given, the CFDA estimates the “knockoff” market totals “at least” $9 billion. But what, exactly, is a “knockoff”? And is a knockoff a copyright infringement? Can an industry that historically has had (and, to some degree, welcomed) the presence of knockoffs legitimately lobby Congress for a change in the law that will give increased copyright protection to fashion designs? (Because, you know that is where this is going: straight down the same path that boat builders paved in 1998.) And, finally, can we rely on any research a trade group publicizes when it is about to lobby Congress for increased copyright protection? Categories: Fashion & Ornaments; Legislation & Regulation.

Copycense™: Code + Content.™ A venture of Seso Group LLC.

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