COPYCENSE

In a recent News.com editorial, Copyright Alliance executive director Patrick Ross criticizes the “Defend Fair Use” campaign that the Computer and Communications Industry Association (CCIA) started last month. The Copyright Alliance is another Big Content lobbying outfit whose members include ASCAP, BMI, SESAC, MPAA, RIAA, Microsoft, Time Warner, Viacom and Walt Disney. (Interestingly, the Alliance also has appointed seven “Academic Advisors,” including Lee A. Hollaar, whose book Legal Protection of Digital Information I reviewed favorably in 2002.)

To say the Alliance’s membership favors a restrictive interpretation of the Copyright Act of 1976 may be an understatement. So this may shock some of our readers: there are several points in Ross’ editorial with which we agree.

We agree with Ross it is odd to see the (CCIA) take such a sudden, strong stand in support of fair use, especially on the issue of broadcast copyright warnings. As we mentioned in a recent Clippings, we are unsure how to react to Maura Corbett’s Aug. 27 News.com editorial supporting the CCIA campaign. Specifically, we wrote:

Sure, it [the editorial] says all the right things. But the writer is a partner at a heavy duty Washington, DC public relations firm. In other words, she spins for a living. Our skepticism is rooted in observing a spinner now getting on the “free information” bandwagon — in other words, a spinner unspinning the spin.

Large public relations firms like Corbett’s Qorvis Communications have been central in creating and perpetuating the “piracy” spin, a frame now so ingrained in the American psyche that even news outlets we respect succumb to it. Why, then, should we fail to remain skeptical when a person whose professional life has been devoted to spinning now wants to spin in a way that is more palatable to us (fair use) than a spin that is unpalatable (“piracy”)? Any way you cut the mustard, a spin is a spin: once you enter the cycle — even if it’s for your own benefit — clarity is lost and difficult to recoup. We like to do without spin, even if it’s beneficial to us.

Next, we agree with Ross’ assertion that fair use is not a consumer right. It is well settled that fair use is an affirmative defense to a properly filed allegation of copyright infringement.

Additionally, we agree with Ross that CCIA has offered little “demonstration of harm caused by copyright notices,” although we could counter that in today’s environment, such warnings reinforce notions of copyright protectionism, instead of supporting the premise that copyright is (and always has been) a balance between protection and free public access.

We even can agree, grudgingly, that copyright warnings may not be appropriate as a “fair use public service announcement,” as Ross characterizes CCIA’s attempt to have the FTC decide that the warnings are misleading. Ross is correct when he notes that “describing fair use merely as a ‘consumer right’ can lead otherwise well-meaning individuals to infringe on content and face civil or criminal liabilities.” This could happen because those individuals may only have paid attention to an incomplete disclaimer, and therefore acted in a way that wasn’t allowed under the fair use doctrine.

On the other hand, one also could argue just as plausibly that failure to mention fair use in the copyright warnings cheats well-meaning individuals and organizations out of their statutorily-granted opportunity to use, access, and even reproduce protected works without having to pay for those works, or even ask permission to use them. As we’ve noted consistently in these pages, Sections 110, 109, and 108, at the least, work together with Section 107 to allow use and access without payment or permission. But for argument’s sake, we’ll even concede to Ross that the “fair use public service announcement” may be incomplete.

Finally, and most importantly, 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.“

We have noticed that over the last two years or so, “copyright education” has become a hot topic. Ross implies that organizations like the Copyright Alliance are the proper carriers of the copyright education mantle when he writes, “Education is the right approach, and one to which the Copyright Alliance is dedicated.” Here’s the problem, though, with the current “copyright education” dialogue: it’s nothing more than another spin. Too often, the ”education“ that the Copyright Alliance and similar organizations provide is incomplete at best, propagandist at worst. (Remember Disney’s use of Penny Proud to deliver copyright ”education“?)

Further, many of the proponents of “copyright education” are, or represent, large copyright portfolio owners that have a vested interest in “teaching” an incomplete, skewed interpretation and analysis of copyright law. To make it plain, “copyright education” provided by an organization that is (or represents) a large copyright portfolio owner is akin to letting the fox inside the hen house. Things could get bloody.

Given the overheated copyright environment we have experienced since October 28, 1998, we posit that no copyright ”education“ for the public is more useful to the public in the long term than copyright ”education“ that transforms the public’s knowledge Copyright Act of 1976 into a proxy for Big Content’s skewed representation of that legislation. But if copyright “education” is to be done — and it should be done — let it be consistent with the Latin term “educere,” which means “to draw out.” When teaching copyright, draw out and present both sides of the Act — rights and exceptions all — and erase any trace of spin and framing.

See also:
Patrick Ross. Fair Use Is Not a Consumer Right. News.com. Sept. 6, 2007.

Maura Corbett. Separating Fact From Fiction on Digital Copyrights. News.com. Aug. 27, 2007.

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

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

In a recent News.com editorial, Copyright Alliance executive director Patrick Ross criticizes the “Defend Fair Use” campaign that the Computer and Communications Industry Association (CCIA) started last month. The Copyright Alliance is another Big Content lobbying outfit whose members include ASCAP, BMI, SESAC, MPAA, RIAA, Microsoft, Time Warner, Viacom and Walt Disney. (Interestingly, the Alliance also has appointed seven “Academic Advisors,” including Lee A. Hollaar, whose book Legal Protection of Digital Information I reviewed favorably in 2002.)

To say the Alliance’s membership favors a restrictive interpretation of the Copyright Act of 1976 may be an understatement. So this may shock some of our readers: there are several points in Ross’ editorial with which we agree.

We agree with Ross it is odd to see the (CCIA) take such a sudden, strong stand in support of fair use, especially on the issue of broadcast copyright warnings. As we mentioned in a recent Clippings, we are unsure how to react to Maura Corbett’s Aug. 27 News.com editorial supporting the CCIA campaign. Specifically, we wrote:

Sure, it [the editorial] says all the right things. But the writer is a partner at a heavy duty Washington, DC public relations firm. In other words, she spins for a living. Our skepticism is rooted in observing a spinner now getting on the “free information” bandwagon — in other words, a spinner unspinning the spin.

Large public relations firms like Corbett’s Qorvis Communications have been central in creating and perpetuating the “piracy” spin, a frame now so ingrained in the American psyche that even news outlets we respect succumb to it. Why, then, should we fail to remain skeptical when a person whose professional life has been devoted to spinning now wants to spin in a way that is more palatable to us (fair use) than a spin that is unpalatable (“piracy”)? Any way you cut the mustard, a spin is a spin: once you enter the cycle — even if it’s for your own benefit — clarity is lost and difficult to recoup. We like to do without spin, even if it’s beneficial to us.

Next, we agree with Ross’ assertion that fair use is not a consumer right. It is well settled that fair use is an affirmative defense to a properly filed allegation of copyright infringement.

Additionally, we agree with Ross that CCIA has offered little “demonstration of harm caused by copyright notices,” although we could counter that in today’s environment, such warnings reinforce notions of copyright protectionism, instead of supporting the premise that copyright is (and always has been) a balance between protection and free public access.

We even can agree, grudgingly, that copyright warnings may not be appropriate as a “fair use public service announcement,” as Ross characterizes CCIA’s attempt to have the FTC decide that the warnings are misleading. Ross is correct when he notes that “describing fair use merely as a ‘consumer right’ can lead otherwise well-meaning individuals to infringe on content and face civil or criminal liabilities.” This could happen because those individuals may only have paid attention to an incomplete disclaimer, and therefore acted in a way that wasn’t allowed under the fair use doctrine.

On the other hand, one also could argue just as plausibly that failure to mention fair use in the copyright warnings cheats well-meaning individuals and organizations out of their statutorily-granted opportunity to use, access, and even reproduce protected works without having to pay for those works, or even ask permission to use them. As we’ve noted consistently in these pages, Sections 110, 109, and 108, at the least, work together with Section 107 to allow use and access without payment or permission. But for argument’s sake, we’ll even concede to Ross that the “fair use public service announcement” may be incomplete.

Finally, and most importantly, 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.“

We have noticed that over the last two years or so, “copyright education” has become a hot topic. Ross implies that organizations like the Copyright Alliance are the proper carriers of the copyright education mantle when he writes, “Education is the right approach, and one to which the Copyright Alliance is dedicated.” Here’s the problem, though, with the current “copyright education” dialogue: it’s nothing more than another spin. Too often, the ”education“ that the Copyright Alliance and similar organizations provide is incomplete at best, propagandist at worst. (Remember Disney’s use of Penny Proud to deliver copyright ”education“?)

Further, many of the proponents of “copyright education” are, or represent, large copyright portfolio owners that have a vested interest in “teaching” an incomplete, skewed interpretation and analysis of copyright law. To make it plain, “copyright education” provided by an organization that is (or represents) a large copyright portfolio owner is akin to letting the fox inside the hen house. Things could get bloody.

Given the overheated copyright environment we have experienced since October 28, 1998, we posit that no copyright ”education“ for the public is more useful to the public in the long term than copyright ”education“ that transforms the public’s knowledge Copyright Act of 1976 into a proxy for Big Content’s skewed representation of that legislation. But if copyright “education” is to be done — and it should be done — let it be consistent with the Latin term “educere,” which means “to draw out.” When teaching copyright, draw out and present both sides of the Act — rights and exceptions all — and erase any trace of spin and framing.

See also:
Patrick Ross. Fair Use Is Not a Consumer Right. News.com. Sept. 6, 2007.

Maura Corbett. Separating Fact From Fiction on Digital Copyrights. News.com. Aug. 27, 2007.

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

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

Last winter, Northeastern University School of Law professor Wendy Seltzer tested the application, limits, (and to some degree) silliness of the DMCA’s takedown procedure. In early February, she posted on YouTube a 33-second snippet of the NFL’s copyright warning, which she recorded from a Fox television broadcast of the Super Bowl. Seltzer’s snippet ended just as a group of Chicago Bears converged on a kick from Indianapolis Colts place kicker Adam Viniateri to begin the second half of Super Bowl XLI. (Note: Seltzer was a visiting professor at Brooklyn Law School when these events occurred.)

As we have come to know, the NFL filed a DMCA takedown notice with YouTube, alleging Seltzer’s post infringed the League’s copyright. The filing set in motion a series of actions (which Seltzer called “the DMCA dance”) in which the video was alternately removed, replaced, removed again, and replaced again. The Seltzer-NFL battle received coverage in the mainstream media, including in The Wall Street Journal.

Further, Seltzer’s DMCA demonstration likely was the event that led the Computer & Communications Industry Association to launch its “Defend Fair Use” campaign. This campaign includes filing a complaint (.pdf) before the Federal Trade Commission that alleges that copyright warnings from the NFL and Major League Baseball constitute “unfair and deceptive trade practices.”

Fast forward to today, the Friday before NFL’s Week 1. USA Today has published a front page story that outlines the NFL’s attempts to exert tighter control over media footage. The league’s changes include introducing a rule that limits to 45 seconds the amount of footage that news organizations can show on their Web sites.

Of course, the news organizations are all in a tizzy about this, even though one could ask if competition and ratings are so important, why does any station share any footage with another outlet? It seems the sharing arrangement has developed as an industry custom, not as a law. Therefore, the NFL’s move to exercise tighter control over its property arguably is consistent with the nature of commercial competition, even though it’s inconsistent with industry custom.

We think the NFL’s 45-second policy has copyright implications as well, even though it’s anyone’s guess whether the League’s tiff with Professor Seltzer was part of the reason it announced the policy. In short, we see the 45-second rule as NFL’s attempt to codify a “fair use” guideline for media organizations. The current 45-second policy is less time than the previous policy, which allowed “reasonable” posts to new Web sites. The 45-second policy, though, does introduce some level of certainty.

Now, we have a few rhetorical questions for The Ligg (as Tony Kornheiser calls it):

1. Are you willing to allow other members of the public to post 45 seconds of footage to their Web sites? (After all, “fair use” is not limited to news organizations.)
2. Are you willing to allow members of the public to post 45 seconds of footage to any site if such footage reasonably qualifies as “fair use”?
3. What will happen if news organizations post more than 45 seconds of footage? (After all, “fair use” isn’t necessarily limited to 45 seconds.) Will the league issue a DMCA takedown against the news organization’s Web site?
4. By allowing news organizations to post 45 seconds of footage, are you suggesting that the NFL does not recognize that other applications or interpretations of fair use do not exist?
5. Is the NFL’s policy that any online entity, regardless of ownership or purpose, that fails to follow the 45-second rule for news Web sites is subject to a DMCA takedown?

If anyone has NFL press office contacts, Copycense would be interested in sending these questions along to see if we can get some answers.

See also:
Michael McCarthy. NFL’s Bold Steps in News Blur Media Boundaries. USAToday.com. Sept. 7, 2007.

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

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

This edition of Clippings features a great profile of music producer Rick Rubin; commentary about the legal ramifications of hacking iPhones; patent reform positioning; and a tussle between the Bob Marley estate and Verizon over ringtones.

Article & Quotes of the Week

“Until very recently, there were a handful of channels in the music business that the gatekeepers controlled. They were radio, Tower Records, MTV, certain mainstream press like Rolling Stone. That’s how people found out about new things. Every record company in the industry was built to work that model. There was a time when if you had something that wasn’t so good, through muscle and lack of other choices, you could push that not very good product through those channels. And that’s how the music business functioned for 50 years. Well, the world has changed. And the industry has not.” — Rick Rubin

“The music business, as a whole, has lost its faith in content. Only 10 years ago, companies wanted to make records, presumably good records, and see if they sold. But panic has set in, and now it’s no longer about making music, it’s all about how to sell music. And there’s no clear answer about how to fix that problem.” — David Geffen

Lynn Hirschberg. The Music Man. The New York Times Magazine. Sept. 2, 2007. Dixie Chicks, Slayer, Johnny Cash, Red Hot Chili Peppers, Jay-Z, Neil Diamond, Shakira. The names look like something from an eclectic iPod playlist. Instead, those are the acts Rick Rubin has produced over the last decade: all major award-winning albums, all commercially successful. In addition to producing outstanding popular music, Rubin is making a lot of money. The industry should take note. And one more question: Why can’t we get this kind of diversity on the radio? Categories: Broadcasting & Journalism; Music.

CommuniK. Clippings

Charles Arthur. Which Is Worth More: DRM or Music Quality? The Guardian. Aug. 30, 2007. An outstanding article that focuses on the pricing of downloaded music, and its correlation to file quality. If not for the Rick Rubin piece, this would have been our Article of the Week. Categories: Business & Commerce; DRM & Copy Protection; Music.

Clippings

Michael Geist. Unlocking the Mysteries of Locked Cellphones. Sept. 3, 2007. University of Ottawa law professor Michael Geist discusses the legal ramifications of unlocking cell phones, as word makes way around the globe that people are hacking their iPhones for use on networks other than AT&T’s network. Of particular interest is Geist’s assessment that a DMCA exemption the Librarian of Congress authorized in November 2006 may not clarify things: “Last year, the U.S. created an exemption to allow consumers to legally unlock their cellphones, yet the provision seemingly does not allow a company to offer the service of unlocking cellphones. In other words, consumers can do it, but they’re on their own.” Categories: DMCA; Tech & Devices.

Duke Scholarly Communications. Salvos in the Copyright Wars. Sept. 3, 2007. Two things stand out about this post from Duke’s Scholarly Communication office. First, it’s nice to see that that unit is housed within in the University Library. Second, the following quote is just the sort of thing we at Copycense really like to see: “It is always odd to see a group that says it advocates small government and free markets swing so far in favor of stronger copyright protection, which, by its nature, is government intervention to distort the market.” Categories: Libraries & Information Centers; Framing & Rhetoric.

Elise Ackerman. Google Settles Suit Over Ad Keywords. SiliconValley.com. Sept. 1, 2007. Google escapes from the clutches of another lawsuit that potentially threatened its sacred cash cow. But Eric Goldman asked the key question about this lawsuit back in April: Why did plaintiff American Blinds ever commence this action when it had little to win? Now, after four years of legal expenses, the parties settle (.pdf), Google admits no wrongdoing, and gets to continue its AdWords business. (Goldman summarizes the decision here.) And a federal judge calls into question whether “American Blind” is too generic to trademark. Any way one cuts it, this is a large, expensive loss for American Blind. Categories: Cases & Litigation; Web & Online.

ArsTechica. Movie Biz Obsesses About Pirates Even As It Plunders Box Office Booty. Sept. 1, 2007. Ars incisively notes the irony of the Motion Picture Association of America’s continued alarm-ringing about alleged widespread copyright infringement (even turning its home page into an exhibition decrying the problem with movie thieves) despite what some analysts are predicting will be a record take at the box office. (.pdf) While the Ars column notes that the record take has occurred despite a record-high average ticket price of $6.85, it fails to note that the record take likely has occurred because of a record-high average ticket price of $6.85. For a fuller story, one must look at attendance figures, not just box office numbers, since a higher ticket price could result in higher summer season box office tally even if fewer people attend the movie theater. Still, the Media By Numbers statistics show that even attendance rose 3 percent in 2007 over 2006, but that total is the first time attendance has been above 600 million consumers since 2004. Categories: Business & Commerce; Film & Video.

Bits (New York Times). Engineers Fight Patent Reform, Not Patent Trolls. Aug. 30, 2007. At least on its face, the American chapter of IEEE supports patent reform. Why would the organization, which represents more than 215,000 professional engineers, oppose (.pdf) the Patent Reform Act of 2007 (S. 1145)? IEEE-USA’s opposition counters support from Google, Apple, and Microsoft, and aligns the organization with the pharmaceutical industry and the AFL-CIO. Legislation so often creates strange partnerships. (As an aside, we’re beginning to feel the same disdain for the term “patent troll” as we’ve articulated for “piracy.”) Categories: Legislation & Regulation; Patent.

William Triplett. RIAA Faces Serious Piracy Lawsuit. Variety. Aug. 30, 2007. We’ve long wondered when someone would attack Big Music on legal grounds for its litigation tactics, especially since so many of the lawsuits are filed with sketchy information at best. We’ve suggested defendants file for Rule 11 sanctions, but this method (which calls for class action lawsuit and uses state racketeering statutes) may be better for several reasons. Categories: Cases & Litigation; File Sharing, P2P & Downloads; Music.

Center for Citizen Media. Punishing Corporate Copyright Abusers. Aug. 30, 2007. That Viacom would issue a DMCA takedown notice to a YouTube subscriber whose own copyright video appears in a broadcast by MTV (a Viacom-owned) property is almost funny. Almost. Categories: DMCA; Film & Video; Web & Online.

Ask MetaFilter. Technically It’s Piracy, But It Doesn’t Feel That Way… Sept. 1, 2007. Most of our readers know the aversion we have to the word “piracy.” So while the article means well — it summarizes ways you can (or should be able to) use protected works without pay or permission), it mistakenly synonymizes piracy with infringement. Worse, it perpetuates Big Content’s politicized legitimation of the term “piracy.” This is a perfect example of an article that means well, but whose value is diminished because it perpetuates a frame copyright portfolio owners use to justify everything from legislation to foreign and trade policy. Categories: Framing & Rhetoric.

David Kravets. Hollywood’s Next Anti-Piracy Crusade: Crappy Cell Phone Copies. Wired. Aug. 31, 2007. As this article notes, cellphone cameras were powerful and discreet enough to clandestinely tape Saddam Hussein’s execution by hanging last year. What it doesn’t mention is that cellphones and ISP networks in Europe already may be good enough to make decent copies of film snippets at the very least. This is more evidence that when it comes to keeping many works from being distributed without control or consent, resistance is futile. Categories: Film & Video; Mobile Devices.

Brooks Barnes. NBC to End iTunes Sales of Its Shows. The New York Times. Aug. 31, 2007. NBC’s planned departure is the second defection from the iTunes camp. (Universal Music Group already has announced it will not renew its licensing contract with Apple.) Apple retaliates by pulling the upcoming season’s NBC shows from iTunes, two years ahead of the current contract’s expiration. The question we have is: Where are you going to go? Apple created the market for digital music, has sustained that market, and continues to dominate the market. And once Apple releases new innovations to the iPod (i.e. including wireless capability), it will strengthen it dominance. Big Media seems incapable of innovating its way out of its malaise, and now its greed is causing it to cut its nose to spite its face. Vaya con Dios. Categories: File Sharing, P2P & Downloads; Music; Tech & Devices.

Liam Tung. Sony Pleads Innocent in Latest Rootkit Fiasco. News.com. Aug. 31, 2007. Once proven to be a surreptitious rootkit installer, always acknowledged to be a surreptitious rootkit installer. Since Sony installed a rootkit on music CDs as a DRM measure in November 2005, we’ve not purchased a Sony-BMG music disc. We’ll gladly extend the boycott to Sony’s computer electronics. Categories: DRM & Copy Protection.

Andrew Adam Newman. Family Challenges Verizon Wireless Deal to Sell Bob Marley Ring Tones. The New York Times. Aug. 31, 2007. Universal’s desire to monetize the Marley catalog does not strike us odd, for ringtones are one of the few profit centers on which traditional record labels can rely. Further, it does not strike us odd that the Marley family might object to the scheme on any grounds (including the possibility that the venture is tawdry), despite the money it would generate for the Marley estate. (We wish Martin Luther King Jr.’s family had exercised such restraint before allowing Dr. King’s image to grace all manner of television commercials.) What strikes us is Universal’s and Verizon’s apparent dismissal of the family’s claims, seemingly on the sole grounds that the family does not (or should not) object because it is getting paid. Categories: Licensing & Permissions; Music; Tech & Devices.

Boing Bong. Science Fiction Writers of America Abuses the DMCA. Aug. 30, 2007. Using the DMCA as an anticompetitive tool has long been a problem made possible by consistent exploiting of legal loopholes. The law allows for relief for bad faith DMCA takedown filings, but seemingly few (most notably, Diebold) have been punished for such activity, and one could argue the punishment is not severe enough to prohibit the same behavior in the future. We spoke earlier about Rule 11 sanctions; if there ever was a problem that required such sanctions, this is it. Categories: DMCA.

Jason Cross. Controlling Access–Activation and DRM. ExtremeTech. Aug. 30, 2007. Product activation as a form of copy protection? Interesting concept. Categories: DRM & Copy Protection; Computers.

Lessig 2.0. On Teaching Artists’ Rights. Aug. 29, 2007. Despite his announced retirement from intellectual property issues, Stanford law professor Lawrence Lessig opines on the restrictive copyright practices at the University of Hawaii’s Academy for Creative Media. Apparently, Academy students are required to sign a release (.pdf) form that permanently gives full copyright to the institution. This practice is so egregiously ridiculous we’re surprised (a) the Academy continues to have any students and (b) the Academy has been getting away with this for so long. (Most universities have a policy that confirms the obvious: students are the authors of student work for copyright purposes, and therefore the work’s owners.) Categories: Education; Film & Video.

NewsBlog. U.S. to Russia: Allofmp3.com Closes Door on Your WTO Chances. Aug. 29, 2007. World Trade Organization membership has become very important to several countries over the last few years, and this story emphasizes the roles of “piracy” and the U.S. Trade Representative in brokering WTO admission to countries like Russia and China. Categories: File Sharing, P2P & Downloads; International.

Andrew Edgecliffe-Johnson. YouTube Seals UK Music Royalty Deal. FT.com. Aug. 29, 2007. Are deals like this one the wave of the future for YouTube and other online video-sharing sites? Categories: Film & Video; International; Licensing & Permissions; Music.

Greg Sandoval. Court Rules Against TorrentSpy in Hacking Case. News.com. Aug. 28, 2007. Sharing media files is illegal, immoral, and unethical, the MPAA says, but it doesn’t find a problem with paying $15,000 to obtain private e-mails that belong to a target’s executives. Categories: Cases & Litigation; Privacy & Security.

digiRAMA (New Zealand Herald). The Dying Days of DRM? Aug. 28, 2007. An Australian publication analyzes WalMart’s decision to eliminate copy restrictions from music files that are for sale from its online music store. The decision is significant because WalMart is the largest music retailer in the U.S. We post this here because it’s good to get an international perspective of U.S. copyright issues. Categories: DRM & Copy Protection; Music.

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A brief Clippings right before the U.S. Labor Day holiday.

Clippings

Maura Corbett. Separating Fact from Fiction on Digital Copyrights. News.com. Aug. 27, 2007. We’re not quite sure what to make of this op-ed article. Sure, it says all the right things. But the writer is a partner at a heavy duty Washington, DC public relations firm. In other words, she spins for a living. Our skepticism is rooted in observing a spinner now getting on the fair use bandwagon — in other words, a spinner unspinning the spin.

Large public relations firms like Corbett’s Qorvis Communications have been central in creating and perpetuating the “piracy” spin, a frame now so ingrained in the American psyche that even news outlets we respect succumb to it. Why, then, should we fail to remain skeptical when a person whose professional life has been devoted to the spinning now wants to spin in a way that is more palatable to us (fair use) than a spin that is unpalatable (“piracy”)? Any way you cut the mustard, a spin is a spin: once you enter the cycle — even if it’s for your own benefit — clarity is lost and difficult to recoup. We like to do without spin, even if it’s beneficial to us. Categories: Framing & Rhetoric; Bundle of Rights; Fair Use & Other Exceptions.

Greg Sandoval. Hollywood’s Copyright Enforcer. News.com. Aug. 27, 2007. News.com interviews Dean Garfield, Big Film’s chief strategist for infringement reduction, both real and alleged. What we find revealing is that Garfield (a) cannot say conclusively whether or not electronically-based infringement is growing; and (b) concedes his clients (the six major U.S. film studios) did not actually seek to study and analyze the issue until 2005. Of course, the film industry has been screaming about the sky falling due to “piracy” at least since 1998. This disconnect between MPAA’s study of the issue and lack of factual evidence that a correlation exists between “file sharing” and “piracy” provides even more evidence that “piracy” is nothing more than public relations blather, upon which no legislator should base public policy. Categories: Film & Video; Framing & Rhetoric; Politics & Government.

Brad Stone. With Software and Soldering, a Non-AT&T iPhone. The New York Times. Aug. 25, 2007. Seriously, you had to know it was just a matter of time before someone cracked the iPhone encryption and reconfigured the device to work on networks other than AT&T’s. Unfortunately, the hackers made a critical mistake: by seeking the limelight, the have identified themselves, making it easier for AT&T or Apple to sue them. Categories: DMCA; DRM & Copy Protection; International; Mobile Devices.

Ellen Nakashima. Telecom Firms Helped With Government’s Warrantless Wiretaps. WashingtonPost.com. Aug. 24, 2007. Call us cynical, but we would be surprised if any consumer was surprised that the private sector would roll over for the federal government. We’ve concluded one never should believe a private business’ pledges to uphold a consumer’s privacy, especially if that company does business in the capital markets. It’s too easy to surrender that pledge and claim it was necessary to protect shareholders’ interests. Categories: Politics & Government; Privacy & Security.

Open Access News. Publishers Launch an Anti-OA Lobbying Organization. Aug. 23, 2007. Peter Suber thoroughly analyzes the effect and implications of a press release that announced the formation of the Partnership for Research Integrity in Science & Medicine (PRISM), a front for the Association of American Publishers (AAP) that seeks to discredit open access under the guise of “protect[ing] the quality of scientific research.” This is the next step in AAP’s ongoing campaign to diminish (if not destroy) open access. (AAP took the first step in January, when it hired the spinster that worked with former Enron chief executive officer and convicted felon Jeffrey Skilling.) Categories: Open Access; Research; Science & Medical.

David McNary and Ben Fritz. Lawmaker Proposes Piracy Warning. Variety. Aug. 23, 2007. California Democrat representative Howard Berman plans to introduce legislation that would require Internet service providers to send subscribers a warning letter if they access so-called “pirated” content. While we would have to analyze the actual bill in order to provide a full response, our first reaction is that the idea is such bad policy on so many different levels that it’s asinine. More dangerously, though, such a bill would represent another attempt to codify “piracy” into federal law. That would indicate the “piracy” frame remains effective. Categories: Framing & Rhetoric; Legislation & Regulation.

Frank Ahrens and Mike Musgrove. Music-Selling Rivals Take Aim at iTunes. WashingtonPost.com. Aug. 22, 2007. WalMart moves the price of downloads from 99 cents to 94 cents, while Real Networks partners with MTV and Verizon. Meanwhile Prince is giving away 3 million albums for free in the United Kingdom. Do we catch a trend here? Categories: Music; Web & Online.

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No, we have not abandoned the site.

Regular Copycense readers surely have recognized that we have not published new material in a while. And we apologize for the inconvenience and lack of notice.

We are, however, in the process of redesigning Copycense from the ground up. This means new graphics, a new logo, a new design, new layout, new publication platform, and a new hosting provider. In short, the redesign is comprehensive. (The redesign is being led by Dan O’Brien Muzyka at Creative Web Media LLC in Portland, OR.)

Since the redesign is rather large, we have to delay new posts until we get everything tweaked and the domain names reset. Again, we apologize for the inconvenience.

Oddly, one of the strengths of this site — the comprehensive archive — is one of the issues that has taken the most time to manage. It is our intention that all the archive and archive URLs stay the same so our audience can continue to go refer back to our earlier stories. Once the redesign is finished, however, the entire archive — including stories, editorials, and “Copycense Clippings” from throughout the summer — will be complete.

In the meantime and in between time, please bear with us while we work on providing Copycense 2.0 to our audience. We will publish updates about the new site over the next few weeks.

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Back in April, we published a portion of an interview K. Matthew Dames conducted last winter with William Patry. Patry, who writes, edits and publishes The Patry Copyright Blog, is one of the foremost authorities in the field. Bill also is the sole author of a new seven-volume treatise, Patry on Copyright, for which he has completed a first substantive update, to be published later this month.

(Bill maintains a separate blog for the treatise, The Patry Treatise Blog.)

Our interview with Bill lasted nearly 90 minutes, and a large portion of that interview is now available in the June 2007 edition of Searcher magazine. (Cite below.) There are some portions of the interview, however, that were not published in Searcher. The following passage — about the importance of civil procedure in copyright law — is a Copycense exclusive.

K. Matthew Dames: I found it interesting in looking at some of the [treatise’s] categories that you have [that] fair use is a large chunk of material, and I think people would expect that. Remedies is also a large chunk of material, and I think people would expect that. What surprised me was the number of pages devoted to jurisdiction. Could you talk about that?

William Patry: If you look at the remedies chapter itself it would surprise you because, consistent with my earlier comments, what I tried to do there was is to place copyright inside the general jurisprudence on remedies. First of all, while there are certain peculiarities in copyright law – for example, statutory damages – the concept of actual damages or profits is no different in copyright than they are in any other form of the law. So one has to take that into account.

In terms of injunctions, there are special things in copyright law – for example, the presumption of irreparable harm once somebody has made a prima facie case of infringement. What I discovered through research and my own views is that the way in which copyright law has been treated specially – as if there is a niche, as if the general rules on preliminary injunctions somehow don’t apply to intellectual property – really are wrong. So I spend a lot of time on the general doctrines of preliminary injunctive relief.

I have a circuit-by-circuit breakdown on just general law: how the circuits deal with preliminary injunctions. Then, I place that within how [the courts] deal with intellectual property, and trace the origins of this idea that there should be a presumption of irreparable harm once you make out a prima facie case of infringement; how it came about; how I think it went wrong; and how it may, for example, conflict with the Supreme Court’s more recent eBay case.

Another example of that is in the chapter on statute of limitations, which is a fairly long chapter for that discrete topic in what might be regarded as a specialty treatise. There has long been a supposition that the Seventh Circuit [Court of Appeals] is sort of off on its own … that somehow they treat statute of limitations differently. And you’ll see lots of many cases from other circuits, and lots of commentators say that.

So I spent about three months just steeping myself in general statute of limitations law, learning as much as I could about it. I then discovered that, in fact, there is no such split in the circuits at all. While there may be some language that would make someone think that [there is a split], indeed it’s not true. And I actually confirmed that with some of the judges in the cases, and I sort of lay out how general limitations law works, and how it has been applied in copyright cases. You discover there’s no split in the circuit. That’s sort of another example of how my attempt to educate myself about general law, and then place copyright in general law, paid off. But it only paid off because I attempted to take the time to really steep myself in general limitations law.

The [jurisdiction chapter] arose out of the same instinct that led me to have fairly long chapters on remedies and statute of limitations. For jurisdiction, there are two elements. First, part of it deals with Copyright Office registration practices. I could have treated that as a separate chapter, but since [such issues] really are encountered as a jurisdictional question – “Do you have a registration or not?” is a subject matter jurisdiction question; “Is your registration valid or not?” “Is there fraud in the Copyright Office?” – those sort of issues arise within challenges that typically come at the jurisdictional phase. So within that admittedly long chapter, there is substantive discussion about Copyright Office practices on registration. So that accounts for some of it.

But the other part of that chapter is just general law: personal jurisdiction; subject matter jurisdiction, forum selection; venue selection clauses, and those things. The reason for that, again, is my desire to understand general law, but it also came from reading [nearly] 30,000 copyright cases. If you look at the volume of cases, the majority of cases are jurisdictional cases involving copyright. The ones that people tend to focus on are the substantive ones: “Is it infringement” “Is it fair use?” “What are the remedies?” Those [issues] are all important, but if you look at what is the actual meat-and-potatoes stuff that litigators and judges face in copyright cases, the majority of those [issues] are jurisdictional.

So I felt that in a treatise on copyright, it would be irresponsible not to devote a substantial amount of time to the issues that are of the most obvious importance, as judged by the number of cases that are out there. There you find there is nothing truly spectacular about jurisdiction in copyright cases. Copyright really is determined by general jurisdictional issues; for example, because there is no national service of process in copyright cases, jurisdiction is determined by state law. (Subject matter jurisdiction, of course, is federal.)

So I had very long discussions because those are the issues copyright lawyers are going to be dealing with, and many copyright lawyers who are specialists don’t take the time to understand general jurisdictional law. And for that, they can get creamed by people who do, and certainly by judges, who handle jurisdictional issues every single day of the week. So I wanted to provide a resource by which copyright lawyers who may not spend too much time on jurisdictional issues as others do, could have at their hands really the most recent stuff on general jurisdiction. To me, it was a service to provide for specialists.

See also:

K. Matthew Dames & William Patry. The Evolution of Copyright. Searcher. June 2007. An Information Today exclusive.

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