COPYCENSE

“During the Asia-Pacific Economic Cooperation summit in Hanoi, Viet Nam, on November 19, 2006, Susan Schwab, the U.S. trade representative, reached a deal with trade officials from Russia that calls for the former Soviet country to ‘significantly upgrade’ its intellectual property protections in exchange for membership in the World Trade Organization. In a Hollywood Reporter story, Schwab commented that the bilateral agreement serves as a blueprint for protecting and enforcing intellectual property rights in Russia. …

“The deal Schwab made with Russia highlights the increasing role the U.S. Trade Representative has in global intellectual property law issues, including the enforcement of domestic copyright law. Unfortunately, this trend portends a serious danger: The establishment of copyright policy in private, without notification to the American public, and often in a way that circumvents Congress’ authority as this country’s sole legislative body.

“In this article, I detail how global trade agreements influence the Copyright Act of 1976, including an explanation of the U.S. Trade Representative’s role, the role of ‘harmonization,’ and an analysis of how international trade agreements effectively circumvent Congress’ constitutional authority to enact copyright laws.”

An Online magazine exclusive.

K. Matthew Dames. Trade Agreements as the New Copyright Law. Online. March/April. Page 16.

Copycense™: Creativity & Code.™ A venture of Seso Group LLC.

So much news, but this week, so little time. Hence, we present an abbreviated edition of Copycense Clippings.

Article & Quote of the Week

“This fight isn’t primarily about consumers and their rights, and its outcome won’t necessarily make things better for Internet users.” — Wall Street Journal columnist Walt Mossberg commenting on Viacom’s copyright infringement lawsuit against Google.

Walter S. Mossberg. Congress Must Make Clear Copyright Laws To Protect Consumers. WSJ.com. March 22, 2007. There is really no new “news” here in Mossberg’s column. We note the article, however, because it is continuing evidence that several technology and business writers affiliated with mainstream media outlets continue to complain about the tilt, interpretation, and occasional lunacy of domestic copyright laws.

These writers — who include Mossberg, The Washington Post‘s Rob Pegoraro, The New York Times‘ Saul Hansell and Jeff Leeds, and even The Chronicle of Higher Education‘s Scott Carlson — have, with varying degrees of journalistic stridency, turned a more critical eye to how copyright interferes with digital work and the digital lifestyle. Further, they are noting the correlation between copyright laws and the behind-the-scenes, industry-led lobbying efforts that create what some might characterize as a stacked deck.

Unfortunately, much of the writers’ coverage (along with that of their parent institutions) continues to lend tacit or explicit support to the process by which copyright laws are created. Mossberg’s column essentially says the byproduct of the legislative and political processes — copyright laws — is unfair and occasionally wrong, but that byproduct would be fairer to Joe and Jane Citizen if they more rigorously followed the process.

In other words, write your Congressman.

We suggest an alternative thought. Maybe Joe and Jane long have known that the process is broken and have consciously chosen to register their dissatisfaction with the process by ignoring it. This may be one reason why voter turnout is so consistently low in various elections.

We submit that one of the main reasons copyright law is unfair to consumers is because the system that produces these laws is broken, perhaps irreparably. Until we have an environment where parties are barred from scripting Congressional testimony that supports aggressive copyright legislation, for example; or barred from providing the “evidence” by which the U.S. Trade Representative “proves” “piracy” occurring abroad, the system will continue to be “broken” — at least as it applies to Joe or Jane.

And increasingly, it seems Joe and Jane are saying, “If it’s broke, why bother?”

Clippings

• Jeff Leeds. The Album, a Commodity in Disfavor. The New York Times. March 26, 2007. The Times’ lead music writer analyzes the demise of the long player in the age of iTunes. Categories: Music.
• Anne Broache. Vonage Ordered to Stop Using Verizon VoIP Patents. News.com. March 23, 2007. In a statement on March 26, Vonage officials called their demise “greatly exaggerated,” claiming the 26 percent drop in the company’s stock was an overreaction to a permanent injunction issued Friday by a federal court judge. In this case, though, it seems the markets may be right. What will be interesting is if Verizon uses the ruling to buy Vonage, and fold the service into its existing VoiceWing telephony offering. Doing so would increase legal and business pressure on Skype. Categories: Cases & Litigation; Infringement; Patents; Web & Online.
• Theresa Agovino. Appeals Court Reverses Patent Ruling. BusinessWeek (via The Associated Press). March 22, 2007. After a federal appeals court reversed a trial court’s ruling that held it infringed on Pfizer’s patent, Canadian generic drug maker Apotex Inc. can begin making generic versions of the drug Norvasc in September. Categories: Cases & Litigation; International; Open Access; Patent.
• American Library Association. Jaszi Honored with 2007 Patterson Copyright Award. March 22, 2007. The ALA will award Peter Jaszi, a Professor of Law at American University’s Washington College of Law, with the L. Ray Patterson Copyright Award at the ALA annual conference in Washington, D.C. on Monday, June 25, 2007. Jaszi was instrumental in creating the American University’s Glushko-Samuelson Intellectual Property Law Clinic and is currently serving as Director of the clinic. Categories: Events; Research.
• Declan McCullagh. Net Porn Ban Faces Another Legal Setback. News.com. March 22, 2007. A federal trial court finds the Child Online Protection Act (COPA) overly broad and would “chill a substantial amount of constitutionally protected speech for adults.” Stanford law professor Lawrence Lessig posits (.mov) a different view: perhaps public laws should block “harmful to minors” content before private censorware does it. Categories: Cases & Litigation; Law, Legislation & Regulation.
• Eric Goldman. KinderStart v. Google Dismissed — With Sanctions Against KinderStart’s Counsel. March 20, 2007. KinderStart felt that their page rank was wrong, which is kind of funny since Google’s page rank is an algorithm and not someone physically going in and saying “Hmmm…I don’t like KinderStart’s website so I am going to rank them at 50.” Kind of silly. Apparently the judge felt the same way since he dismissed the case. Categories: Cases & Litigation; Web & Online.
• Defective By Design. New Online Music Store with No DRM: Amie Street. March 19, 2007. Is this the future of the online music store? Amie Street is set up so that new music is free but the price goes up as the number of downloads goes up with the a maximum price of $0.99 per song. And then vice versa, as the number of downloads decreases so will the price. It is certainly an interesting business model and one that makes sense. The DRM-free songs will be from independent labels. Categories: Business & Commerce; DRM & Copy Protection; Music; Web & Online.
• ArsTechnica. Infringing Videos on iFilm Could Cause Problems for Viacom. March 19, 2007. It appears that Viacom started pointing fingers before cleaning out their closet. One of Viacom’s biggest complaints against YouTube is that they don’t have more stringent tools in place to block or find and remove copyrighted materials. It’s funny that they are harping on YouTube about something that they apparently don’t do themselves. Categories: Film, Infringement, Web & Online.
• The Patry Copyright Blog. Heroes of Infringement? March 19, 2007. Someone is finally bringing suit against a TV station for using one of their ideas. I seems that the producer of “Crossing Jordan” and “Heroes” likes to borrow real situations to put in his show. Can anyone say “Law & Order”? Categories: Broadcasting & Journalism; Bundle of Rights; Cases & Litigation.
• Seltzer.org. The Uses of the DMCA: Viacom v. YouTube. March 17, 2007. Brooklyn Law professor Wendy Seltzer opines on how she thinks Viacom’s lawsuit against Google is not just about infringement, but a surreptitious way to broaden the scope of the DMCA. Also, note the tortured explanation of the NFL legal department, as represented by a spokesperson, about why it is allowed to send as many takedown notices as it wants. Categories: Cases & Litigation; DMCA; Web & Online.
• Charles Babcock. The Controversy Over GPL 3. InformationWeek. March 17, 2007. A good recap of the brewing and increasingly contentious debate over the draft of the GNU General Public License. Categories: Computers & Technology; Licensing & Permissions; Open Source.
• American Library Association. House Passes Open Government Legislation, Senate Introduces Companion Bill. March 15, 2007. Members of the largest library representative organization in America are rejoicing since the House passed the Freedom of Information Act Amendments of 2007 bill (H.R. 1309). This bill basically lessens the restrictions that Attorney General Ashcroft imposed in 2001. The ALA is requesting that members send a note of thanks to their representative if they voted for the bill. Categories: Law & Regulation; Libraries & Information Science.
• Jeff Cox. Internet Radio to Fight Royalty Ruling. CNNMoney.com. March 15, 2007. While terrestrial radio stations pay nothing to broadcast music, under the Copyright Royalty Board‘s new guidelines (.pdf) issued March 2, online broadcasters must pay each time a listener hears a song, at a rate that began at 0.08 cent in 2006 and rises to 0.19 cent in 2010. Those royalties are in addition to a $500 minimum payment for each Web channel. National Public Radio is the first to challenge the guidelines. Categories: Broadcasting & Journalism; Law, Legislation & Regulation; Music; Web & Online.
• Reuters. Starbucks Launches Its Own Record Label. CNNMoney.com. March 12, 2007. Starbucks has been moving into entertainment steadily for at least two years now, a trend we noted last year. So their launch of a record label should not be a surprise. In many ways, Starbucks is the new McDonald’s: real estate and lifestyle company masquerading as a coffee house. This move further extends their movement into lifestyle products and services. Categories: Music.

Copycense™: Creativity & Content.™ A venture of Seso Group LLC.

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

Copycense Clippings returns full-throttle this week with Kim Hagedorn at the helm. We have Article and Quote of the Week goodness, and a CommuniK. Clipping about a Colorado decision in which the plaintiff sought $100,000 because the Internet Archive’s search spider crawled her site. And it seems that no Clippings edition these days would be complete without some doublespeak.

Finally, but most importantly, we continue to get new subscribers to our RSS feed on a frequent basis. Welcome to the new subscribers, and thank you to the existing subscribers.

Articles of the Week

Katie Hafner. History, Digitized (and Abridged). The New York Times. March 10, 2007. Katie Hafner discusses the other side of the digitization trend: artifacts too old or fragile to be digitized. May articles that remain outside the digitization trend be forgotten? Categories: Books; Film; Digitization.

Nick Wingfield and Ethan Smith. Music’s New Gatekeeper. The Wall Street Journal. March 9, 2007. Typically, we are loathe to link to Journal articles because they are not readily available online without a subscription. Fortunately, this one happens to be freely available, and it is an outstanding profile of iTunes’ inner workings, including deal details and artist angst. What becomes apparent is that despite Apple’s rather successful attempt at positioning itself as the consumer’s champion in the digital music realm, it also has become a tough negotiator and competitor, as befits its status as the fourth-largest music retailer in the U.S., behind Wal-Mart Stores, Target and Best Buy.

Quotes of the Week

“These are not just legal wars. They are public relations and political wars.” — Trial attorney Richard Scruggs.

Joseph B. Treaster. A Lawyer Like a Hurricane. The New York Times. March 16, 2007. This quote has absolutely nothing to do with the normal issues we cover on Copycense. In fact, Scruggs’ name doesn’t resonate at all in the technology or intellectual property areas, although some readers may remember the name from Big Tobacco litigation. (Scruggs’ role in Big Tobacco litigation was dramatized by the actor Colm Feore in the 1999 film “The Insider.”) Still, this quote encapsulates the current, ongoing, global legal struggle between creators, corporations, consumers, and the cash that sits between the three. Certainly, the content industries recognize how important it is to frame issues through public relations expenditures, and to ply Congressmen with “research” that “proves” the deleterious of things such as “file sharing.” Such material ostensibly makes it way into the Congressional Record as committee testimony, and ultimately becomes grist for the legislative history of newly enacted copyright bills. Unfortunately, some communities and organizations that seek a balanced approach to copyright (i.e. Electronic Frontier Foundation, Library Copyright Alliance, Public Knowledge) have been slow to recognize the importance of the politics and public relations, or have been unable to consistently summon the resources necessary to effectively sway politicians or public awareness of these issues. Categories: Law, Legislation & Regulation; Libraries & Information Centers; Politics & Government.

“I acknowledge that mistakes were made here.” — U.S. Attorney General Alberto Gonzales.

John M. Broder. Familiar Fallback for Officials: ‘Mistakes Were Made.’ The New York Times. March 14, 2007. Forget for a minute that almost every news photo of U.S. Attorney General Alberto Gonzales published last week makes him look like he had to tell his mother his last report card contains an unacceptable grade, and is trying to diffuse the expected punishment. One thing Mr. Gonzales has learned how to do is engage in doublespeak. As with the prior Quote of the Week, this story — outlining the bipartisan use of the non-comittal, mealy-mouthed phrase “mistakes were made” — has little to do directly with the intersection of business, law, or technology, at least on its face. But since doublespeak and spin are such an integral part of today’s intellectual property debate, we feel compelled to present this story.

CommuniK. Clippings

Technology & Marketing Law Blog. Can a Spider Enter Into a Binding Contract? Internet Archive v. Shell. March 14, 2007. A federal case from Colorado hits squarely at the interplay between licensing and copyright. Plaintiff Suzanne Shell runs the Web site Profane Justice, which is “devoted to providing information, services and other advocacy on behalf of individuals accused of child abuse or neglect,” according to the opinion. (.pdf)

Now, in order to see the Web site’s content, you will have to read and agree to a pop-up disclaimer that says “I agree to this site’s use and purchase as published in the copyright notice on each page.” Unfortunately, one cannot read the copyright notice before assenting to this condition.

If one hits the “Cancel” button at this point, a second pop-up appears which states: “If you disagree with the terms, you must indicate your disagreement, by leaving this site or closing your browser now.” At this point, the only browser choice is “OK.”

If one hits the “OK” button, you are forwarded to the site’s home page. It is unclear whether this means you have consented to the copyright notice that you have not yet had a chance to read.

As for that copyright notice, once could claim it is pretty extreme. At a minimum, it is lengthy. [Editor’s Note: A user must go through the same browser sequence outlined above in order to see the copyright notice. According to the decision, Internet Archive claims this click-through sequence was not in place when it visited the site.] Basically, the notice charges users $5,000 for each individual page copied “in advance of printing,” grants Shell a perfected security interest of $250,000 “per each occurrence of unauthorized use” of the website in all of the user’s land, assets and personal property, and claims the user agrees to pay “$50,000 per each occurrence of failure to prepay” for use of the website, among other things.

Chutzpah she has.

Shell sent a letter to Internet Archive (IA) in December 2005 that sought $100,000 in damages for its archiving of the Profane Justice site; Shell threatened to sue if she didn’t receive the payment. IA filed a declaratory judgment action in a California federal court in January 2006, seeking a judicial determination that it did not violate Shell’s copyright. Shell counterclaimed against IA in February 2006, and added IA founder Brewster Kahle and others as defendants.

In the end, the district court in Colorado concluded it could not make a determination on the contract claim because it did not have enough facts to do so. (We wish other courts facing similar situations would take this route instead of making law based upon incomplete facts.) This case, however, is worth watching, since it gets at some fundamental legal questions about Web site content.

• First, to what extent can search engine spiders freely troll other’s content?
• Second, what (if any) responsibility does a Web site owner have to place code on his Web site to prohibit search engine spiders from indexing that site’s content?
• Third, if a search engine is making money, directly or indirectly, from indexing content, to what extent does the Web site owner have some claim to that commercial activity?
• Fourth, to what extent can search engine spidering be considered fair use? Does this answer change if the entity or person that owns the spider is directly or indirectly generating income from the spidering activity?

All of these questions, of course, are questions Google is wrestling with. And therefore we ask again that nagging, but important rhetorical question: will copyright be to Google what antitrust was to IBM? Categories: Bundle of Rights; Cases & Litigation; Licensing & Permissions; Web & Online

BBC News. Viacom Will Sue YouTube for $1bn. March 13, 2006. Since everyone seems to have an opinion on this case, we’ll refrain from adding much to the cacophony of voices. Still, opining is something we do; we’ll be brief.

First, we feel it is important to remember that Viacom and Google already were negotiating how to post Viacom content through YouTube. (Comedy Central is a Viacom property, and YouTubers routinely post clips from Viacom’s The Daily Show with Jon Stewart.) This suggests, that Viacom is using threat of legal action to seek an edge in negotiations. It is a common tactic: this is the same thing the Association of American Publishers has done with the Google Book Search litigation.

Second, Stanford law professor Lawrence Lessig keenly observes that this lawsuit is a high profile progeny of the U.S. Supreme Court’s 2005 opinion in MGM v. Grokster, which held that software companies can be held liable for copyright infringement when individuals use their technology to download songs and movies illegally. Applied to this case, Viacom argues that YouTube is a technology that “induces” third parties to access Viacom clips illegally. Will this argument be persuasive? It is likely we’ll never know, which brings us to our final point.

This lawsuit will not go to trial. It will settle out of court because (a) the vast majority of lawsuits settle before trial; (b) Google (and likely Viacom) does not want to spend the resources or weather the risk it takes to have this adjudicated in court; and (c) the parties are negotiating already. The issue now for the two is to develop a business template that other content owners can use going forward. Categories: Bundle of Rights; Cases & Litigation; Film; Licensing & Permissions; Web & Online.

Clippings

• James Boyle. Google and the Rocks in the Web’s Safe Harbours. FT.com. March 16, 2007. The razor sharp James Boyle argues that the legal arguments Google can use to avoid copyright infringement in the Google Book Search litigation may not necessarily get the company out of hot water when it comes to alleged infringement on YouTube. Categories: Cases & Litigation; Infringement; Web & Online.
• ArsTechnica. Victims Fight Back Against DMCA Abuse. March 16, 2007. DMCA takedown notice abuse has been occurring for quite a while, the result of misunderstanding, miseducation, or intentional commercial mischief (in the case of retailers such as Best Buy and Wal-Mart, who routinely use DMCA takedown notices to squelch the release of uncopyrightable, factual holiday sales information). Now, finally, Electronic Frontier Foundation has been filing lawsuits against parties that incorrectly use the takedown notice provisions. One of these lawsuits persuaded Michael Crook, who misused the procedure to remove images of him owned by parties other than himself, to settle the lawsuit, in part by posting an online apology. (Crook made it a habit of responding to Craigslist personal ads, getting personal details from those he considered “perverted,” then posted this information online.) Categories: DMCA; Web & Online.
• Reuters. EU Consumer Chief Sounds a Softer iTunes Note. News.com. March 15, 2007. Meglena Kuneva, EU Commissioner, must have received some serious backlash regarding her comment about iTunes, since she has now softened her view. On March 11, 2007, she was quoted as saying “Do you find it reasonable that a CD will play in all players, but an iTunes song will only play on an iPod? It doesn’t to me. Something must change.” This now well-known quote was left out of her press release made on March 15. She claims that she wasn’t instigating or supporting legal action but just wanted to “raise questions.” Categories: DRM & Copy Protection; International; Music; Tech & Devices.
• American Library Association. House Passes Open Government Legislation, Senate Introduces Companion Bill. March 15, 2007. I am a librarian in training so these stories catch my eye. ALA members are rejoicing since the House passed the Freedom of Information Act Amendments of 2007 bill (H.R. 1309) on March 14, 2007. This bill lessens the restrictions that former Attorney General John Ashcroft imposed in 2001. The ALA is requesting that members send a note of thanks to their representative if they voted for the bill. Categories: Law, Legislation & Regulation; Libraries & Information Science.
• Charles Babington. Charges Dropped Against HP’s Dunn. WashingtonPost.com. March 15, 2007. Remember all that hue and cry last year about the HP “scandal,” with “leaks” to the press, black bag operations, and things that go thump in the night? Nothing. It amounted to zero, zilch, zip, nada. Not only is Dunn fully exonerated, three others who were charged will have their misdemeanor convictions erased from their criminal record once they complete community service. Even allowing for a new California attorney genera (from Bill Lockyear, who filed the charges, to Jerry Brown, the state’s former governor), the resolution suggests these were cases that never should have been filed in the first place. Categories: Cases & Litigation; Privacy & Security.
• Sheryl Gay Stolberg and Jeff Zeleny. ‘Mistakes’ Made on Prosecutors, Gonzales Says. The New York Times. March 14, 2006. If you ever thought the U.S. Attorney’s position was simply law and order and devoid of politics, this scenario should forever put that thought to rest. And also think about the doublespeak Attorney General Gonzales has engaged in as he and the rest of the presidential administration continue to spin like a Yugo caught on black ice. (See our Quotes of the Week.) Categories: Law, Legislation & Regulation; Politics & Government.
• Daily Blog Tips. Copyright Law: 12 Do’s and Dont’s. March 14, 2007. Some great quick tips on copyright can be found here. The blog says the tips are for online publishers, but we think they are useful tips regarding copyright for everyone. Categories: Bundle of Rights; Web & Online.
• ArsTechnica. Motion-Based Analysis Can Filter Copyrighted Video Clips. March 14, 2007. Ikena Copyright might save such video sharing sites as YouTube. This new program can locate with 99.99% accuracy pirated material. The program uses motion to determine if something is a copy rather than the traditionally used color, audio, or histogram. Categories: DRM & Copy Protection; Film; Infringement.
• Peter Fleisher and Nicole Wong. Taking Steps To Further Improve Our Privacy Practices. March 14, 2007. Google is making a drastic change to their privacy policy. They will be keeping individual information on users for 18 to 24 months after which it will be anonymized. Google claims they need to keep it that long in order to gather data to better serve prove their users. That is quite a long time to keep data when useful statistics can be gathered from anonymized data such as user gender or what services are used – I don’t see how having someone’s name helps them with gathering information to improve their services. Their new policy should be implemented within a year. Categories: Privacy & Security; Web & Online.
• Breitbart.com. Dogs Used To Tackle Movie, Music Piracy. March 13, 2007. MPAA is testing a new method to combat movie and music piracy – polycarbonate sniffing dogs. A test run that took place in a Malaysia airport was successful. The dogs located pirated copies of the long-running television sitcom Friends. Categories: Film; Infringement; International; Music.
• Simon Aughton. Universal Begins DRM-free Downloads Trial. PCPro.com. March 12, 2007. Universal is following in EMI’s shoes by testing DRM-free downloads. But don’t get your hopes up just yet. EMI has withdrawn from talks with digital music stores regarding DRM-free downloads. Only time and results will tell which direction Universal will go. Categories: DRM & Copy Protection; File Sharing, P2P & Downloads; Music.
• Declan McCullagh. Magnolia Pictures Sends DMCA Subpeona to Google, YouTube. News.com. March 7, 2007. Google is being hit left and right with lawsuits and subpeonas because of YouTube. Just before they were hit with the Viacom lawsuit, Magnolia Pictures subpeonaed Google to provide them information on the user “halifaxion.” (Magnolia is owned by Dallas Mavericks owner Mark Cuban, and is the studio that released the Academy Award-winning documentary Enron: Smartest Guys in the Room.) Now recently, YouTube (and increasingly, Google) have developed an alarming habit of rolling over and granting these DMCA subpoena identity requests without challenge. We wonder if the companies will continue this unfortunate trend. Categories: DMCA; Film; Web & Online.
• ALA TechSource. Dear Library of Congress … March 7, 2007. The Library of Congress met with Google at the end of February to discuss user access needs, and requested comments regarding the meeting. Librarian Karen Schneider offers hers. This article is interesting because Schneider mentions the lack of librarian representation in the IP arena. This is one of the reasons I (Kim) became interested in attending law school. I agree with Ms. Schneider but I also think it is a two-way street: there is a lack of understanding of the intellectual property laws by librarians. Categories: Libraries & Information Science; Law, Legislation & Regulation.
• Glen McGee. A Hostile Environment for Documents. The Scientist.com. March 2007. We’ve been remiss about failing to report on the closing of EPA libraries, and this article outlines the loss. While the wholesale site closings have ceased for right now, users are saying that documents are now disappearing. Categories: Libraries & Information Science.

Copycense™: Creativity & Content.™ A venture of Seso Group LLC.

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

“Traditional publishers are the slave traders. And the research articles and the many academics are the slaves.” — Richard Smith, board member, Public Library of Science (PLoS).

Last month, Richard Smith, a member of the board of directors at the Public Library of Science (PLoS), gave a speech (.mp3) in which he accused journal publishers of acting like slave owners and open access of acting like abolitionists. A PowerPoint presentation (.ppt) containing gory images of slavery accompanied the speech.

While we at Copycense support the core aims of the open access movement, we find any attempt to use the gruesome, wrenching, genocidal reality of human slavery as a comparative or promotional tool for open access is insulting and entirely unacceptable.

As we condemned former MPAA CEO Jack Valenti for comparing piracy to terrorism, and RIAA spokesperson Matthew Kilgo for comparing the profit from mixtapes to profits gleaned from the sale of illicit drugs, we must also condemn Richard Smith for comparing publishers to slave traders.

The increasingly dark, dire imagery used to characterize issues within the digital content debate too often goes far beyond framing, spin, or public relations. Language like this is grossly unprofessional and personally indecent. Nothing in this debate is nearly as urgent or serious as terrorism, illegal drug trafficking, or slavery, and the people who insist on perpetuating this language should be censured. Enough is enough.

Copycense™: Creativity & Code.™ A venture of Seso Group LLC.

Guest editor Kim Hagedorn presents this week’s Copycense Clippings.

Clippings

• David Hewett. Who Owns the Descriptions in Auction Catalogs? Copyright Lawsuit Looms. Maine Antique Digest. March 2007. Two galleries duke it out, with the Dallas gallery charging the California gallery with copyright infringement and unfair competition. The Dallas gallery is alleging that the California gallery stole its printed catalog descriptions. (The descriptions related to coins.) How long before this sort of thing spills out onto eBay? Categories: Bundle of Rights; Cases & Litigation.
• Noam Cohen. In Policy Shift, C-Span Clears Some Clips for Web Use. The New York Times. March 8, 2007. So, it turns out the C-SPAN copyright contretemps turned out to be a bit more than a slight slap on Speaker Pelosi’s wrist. In the end, C-SPAN effectively ends up making “a liberalized copyright policy for Congress- and agency-sponsored events.” Categories: Broadcasting & Journalism; Open Access; Politics & Government.
• Reuters. Yahoo! China Sued for Alleged Copyright Breach. March 7, 2007. Yahoo! China is being sued by 11 companies, including Warner Music Group Corp., for allegedly having links to unlicensed music on their site. The allegations are made by the International Federation of the Phonographic Industry (IFPI), a trade group that represents the world’s music companies, and which estimates that 85% of all music consumed in China is pirated. Categories: Cases & Litigation; International; Music.
• U.S. Copyright Office. Upcoming Fee Adjustments. March 7, 2007. The U.S. Copyright Office is expanding the scope of its eCO (electronic Copyright Office) initiative to allow applicants to register for a copyright. The Office plans to begin its electronic registration service on or about July 1, 2007, and will offer a reduced e-registration fee of $35 (Print registration will remain $45). Register of Copyrights Marybeth Peters announced this plan in a February 21 report on fees. (.pdf) Categories: Registration; U.S. Copyright Office.
• CBS News. Privacy Board Clears U.S. Spy Programs. March 6, 2007. The president’s five-member Privacy Board determines that the administration’s domestic surveillance efforts do not invade the privacy and civil liberties of American citizens. The only area they feel needs improvement is the “terrorist watch lists” since citizens who are mistakenly placed on the list have no means of clearing their name. As ArsTechnica points out, however, it seems the Board’s constituency is open to suspicion, since the its chief (Lanny Davis) is the president’s former fundraising chair. Categories: Politics & Government; Privacy & Security.
• Inside Google Book Search. The Bavarian State Library Becomes Largest Non-English Library Partner. March 6, 2007. The Bavarian State Library has joined the Google Books Library Project, adding more than a million out-of-copyright books. Works by such authors as the Brothers Grimm and Goethe as well as works in French, Spanish, Latin, Italian and English are part of the contribution. Categories: Books; Digitization; International; Libraries & Information Science.
• Saul Hansell. Where Artists and Inventors Plot to Save the World. The New York Times. March 5, 2007. Along with Herb Allen’s Sun Valley confab, the TED Conference is the true players ball. Categories: Events; Web & Online.
• Nat Ives. Hachette Axes Another U.S. Title: ‘Premiere.’ Advertising Age. March 05, 2007. One more publication eschews print for the Web. Pages, pages, they all fall down. Categories: Broadcasting & Journalism; Web & Online.
• Douglas Heingartner. Patent Fights Are a Legacy of MP3’s Tangled Origins. The New York Times. March 5, 2007. Is the brewing battle over the MP3 patent a repeat of last year’s Blackberry-RIM mudslinging litigation? It’s sure shaping up that way. Categories: File Sharing, P2P & Downloads; Patents; Research; Science & Medical.
• U.S. Copyright Office. U.S. Copyright Office Comes to New York 2007. March 5, 2007. The U.S. Copyright Office will be discussing latest developments in copyright law and policy in New York City Tuesday, March 27,2007 at the Benjamin N. Cardoza School of Law, 55 Fifth Ave., Moot Court Room from 8:00am – 6:00pm. The brochure provides a breakdown of the speakers and their scheduled times. Categories: Events; U.S. Copyright Office.
• Harvard Journal of Law & Technology. Symposium: The Outer Limits of Patentable Subject Matter. March 5, 2007. Harvard’s JOLT is hosting a symposium featuring a discussion of patents. Panelists are Dennis Couch, Dana Irwin, and Andrew Schwartz. The symposium will take place Friday, March 16, 2007 at 10:45am in Pound 107, Harvard Law School. Categories: Events; Patents.
• Alan Sipress. Open Call From the Patent Office. WashingtonPost.com. March 5, 2007. The Patent and Trademark Office decided to get with the times and start using the Internet as a means of processing patent applications. The new system will allow such others to review and vote on patent applications making the patent process more democratic. Experts will be separated from fakes by implementing a rating system similar to eBay and Amazon.com. Registered “voters” will vote on all the nominated information and the top 10 items will be passed on to the examiner who will make the final decision. The pilot project will start with volunteer companies in the software industry. Microsoft, IBM, and Intel have already volunteered. Categories: Patents; Registration; U.S. Patent & Trademark Office.
• Gloria Goodale. Sizing Up the Spat Over Red Carpet Copycats. The Christian Science Monitor. March 2, 2007. Fashion designers are happy with the re-issued copyright protection bill Rep. Bob Goodlatte is sponsoring. Similar to the H.R. 5055 bill he introduced during the 109th Congress, the new bill would allow fashion designers to copyright their designs for three years. (As of this writing, the new bill for the current, 110th Congress has not yet been posted to THOMAS.) It will be interesting to see how far this bill goes, especially since it seems to pit copyright law against culture in a very direct way. Category: Fashion & Ornaments; Law, Legislation & Regulation.
• ArsTechnica. Judge Dismisses Claims Against Microsoft in second Alcatel-Lucent Patent Lawsuit. March 5, 2007. A judge has granted Microsoft’s request for summary judgment in the Alcatel-Lucent speech-recognition technology patent infringement case. Alcatel-Lucent plans to appeal because they feel their chances of winning the case are good. Categories: Cases & Litigation; Computers & Technology; Patent.
• The Associated Press. Industry Pressure on Music Piracy. The New York Times. March 1, 2007. The recording industry is giving college students who are suspected of illegally sharing music the opportunity to reach settlements before RIAA sues them for copyright infringement. We read this article the day before high-level officials at Syracuse University (including its chief information officer) distributed an e-mail stating they are one of the thirteen schools that received a letter from RIAA offering discounted settlements to the infringing students. Categories: Cases & Litigation; Education; File Sharing, P2P & Downloads; Infringement; Music.

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A few months ago, a colleague approached me with an interesting request. He wanted me to review a prospective job posting for a new position he was hoping to fill in his organization. If my colleague moved forward with his plan, he would hire a high-level executive whose primary responsibility would be to negotiate and sign contracts to buy electronic resources.

This position seemed to be tailor-made for a librarian. The position would report to the head of a large institution that values instant and timely access to a wide range of sources, and would be a lead official for an organization with several large information centers stretched across a number of different territories. Further, the position would partner with the organization’s general counsel to handle contract negotiation duties.

The organization’s annual electronic content budget is comfortably in the seven-figure range, and my colleague seemed willing to pay far beyond the embarrassingly low salaries I have seen for various electronic resource librarian positions.

In commenting on the job posting, I told the colleague that the prospective position seemed like a fabulous opportunity. The person in that position would have to deal with a variety of information, legal, and business issues: changes in copyright law; providing content for increasingly smaller devices; juggling different delivery formats; and the possibility of having to educate the general counsel on these content licensing issues.

(It is rare that in-house counsel has expertise in content licensing because it is an unusual procurement function to those outside the information profession.)

Unfortunately, I also expressed dismay that he may have to surrender his hope of filling this position with a librarian, since my experience and observation has been that too few librarians – new or experienced – have any experience or training in buying content.

When I started writing Information Today‘s “Intellectual Property” column a year ago, my first piece was about the paucity of copyright education, both in ALA-accredited library schools and through continuing education channels for experienced librarians. Now, in this article, I’ll discuss another yawning gap in contemporary information professional education: the lack of training in licensing electronic content.

An Information Today exclusive.

K. Matthew Dames. Librarians and Licensing. Information Today. March 2007. Page 18.

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Icicles still knife the sky in far too many places, but pitchers and catchers have reported, March Madness is upon us, and Copycense keeps on truckin’. Retro reigns supreme again in this encore edition of Clippings, as we dust off stories we missed over the past couple of months.

Quotes of the Week

“A growing number of outlets beyond the big-name companies, from tiny indie-rock operations to the Philadelphia Orchestra and the Smithsonian Institution’s Folkways label, have realized the futility of copy-restriction software and now sell digital downloads in open, unrestricted formats. At this point, [DRM] amounts to little more than expensive psychotherapy for Hollywood executives. It’s the height of arrogance for them to keep sending us the bill.”

Rob Pegoraro. Time to Face the Music on File Sharing. WashingtonPost.com. Feb. 15, 2007. We really don’t need to say much more, now do we? Categories: DRM & Copy Protection; Music

“The copyright horse already has left the barn. The best way for Fox [and other large studios] to protect its intellectual property should be to let it surge freely throughout the Web, where, in all likelihood, people who see clips of The Simpsons and of 24 will want to check out the actual shows for themselves. On Fox. … Much better to come up with a strategy that recognizes reality and finds a way to make lemons out of YouTube lemonade.”

Alexander Wolfe. YouTube Simpsons Subpoena Spotlights Copyright Insanity. InformationWeek. Jan. 26, 2007. Ditto. We’ve already commented elsewhere about the alarming trend where ISPs and other Web entities seemingly bend over backwards to accommodate the most specious of copyright owner claims under the DMCA’s safe harbor provisions. While that is an important trend to follow, we’ll not revisit that here. Categories: Broadcasting & Journalism; DMCA; DRM & Copy Protection.

Site Check

Copyright (University of Connecticut Libraries). A new copyright resource geared toward the education and library markets. Categories: Education; Libraries & Information Centers; Research.

The Illustrated Story of Copyright. This is the companion Web site to Edward Samuels’ marvelous 2000 title of the same name. Seeing this Web site is bittersweet, for it allows us to remember how outstanding the print volume remains, while leaving us disappointed that the virtual rendering falls short of the possibilities. The book was published by St. Martin’s Press, and is a glorious, tastefully illustrated, succinctly written introduction to American copyright law, with special emphasis on some of the emerging technologies that marked the turn of the century. In fact, we’ve long suspected the book was too good: while reviewing it last year for the umpteenth time, we wondered whether or not the print version ever would see an updated edition. There are so many great photos and illustrations that we would figured acquiring permissions for the artwork would be too expensive. (The cost of re-licensing copyrighted works, if you recall, was what delayed re-issuance of the “Eyes on the Prize” civil rights documentary.) If you have an opportunity to purchase a copy of this book, please do. It is a treasure beyond description. Categories: Books; Bundle of Rights; Research.

CommuniK. Clippings

David Biello. Open Access to Science Under Attack. Scientific American. Jan. 26, 2007. Scientific American reports on a recent trend where publishers or publishers’ representatives hire public relations firms to “properly” frame the open access debate. Thus far, the issue has been discussed in terms of access to literature and research, which is a positive frame for educational institutions and libraries. We expect Big Publishing to counter with stories about economic loss, job loss, and trot out smaller publishers who are “hurt” by the open access movement. Expect this debate to fall down familiar lines, similar to predictable and tired stances that have been presented about the music industry. By now, one should recognize that the debate only is about the continued viability and existence of content industries, not the content itself. And if we’re talking about industries and jobs, isn’t it possible that, consistent with free market principles, if you don’t adapt quickly enough, you cease to exist? Why should these businesses by any different? Categories: Open Access; Research; Science & Medical.

Clippings

• Greg Sandoval. EFF Takes Viacom to Task Over YouTube Takedown. News.com. Feb. 15, 2007. Section 512 safe harbor provisions or no, we wonder why this story didn’t read “EFF Takes YouTube to Task Over [very quick, with no push back at all] Takedown. Categories: DMCA; Web & Online.
• Bruce Byfield. Blackboard eLearning Patent to be Re-examined. News Forge. Jan. 31, 2007. Meet the new tool in the ”patent troll“ fight: the patent re-examination. Question is when, exactly, is the U.S. Patent & Trademark Office going to have time to re-evaluate the contested patents? Regardless, this is a situation worth watching. Categories: Computers & Technology; Education; Patent; Web & Online.
• Ed Oswald. Apple to Pay Bloggers’ Legal Fees. BetaNews. Jan. 30, 2007. Remember that case last year where Apple sued AppleInsider and PowerPage.org, claiming the two sites disclosed trade secrets (specifically a never-released confidential product or project code named ”Asteroid“)? This is how that case was resolved. Categories: Cases & Litigation; Trade Secrets.
• Jeffrey Toobin. Google’s Moon Shot. The New Yorker. Jan. 29, 2007. Toobin, one of many legal commentators who made a name for himself in broadcast media during the O.J. Simpson murder trial, discusses the Google Book Search project. Categories: Books; Cases & Litigation; Digitization; Libraries & Information Centers; Web & Online.
• Guardian Unlimited. Rapper to Record Album in a Week to Avoid Piracy. Jan. 23, 2007. All but the biggest music stars forget about album sales as a revenue source. Movie placements? Nice. Video games? OK. Ring tones? Check. But album sales? Instead, do like The Dead: hit the road. Often. Come up with a killer show, and sell the album as an afterthought on your way out of the dressing room. And if you can’t do that … well, there are lots of career alternatives for young folks with a facile command of the English language. After all, if you’re going record an album in a week to avoid piracy, you might as well bypass the studio altogether and take it directly to the stage. Categories: File Sharing, P2P & Downloads; Infringement; Music.
• Bernhard Warner. Italian Court Says Piracy Not a Crime. Variety. Jan. 22, 2007. Maybe this decision does not have broad significance in the U.S., but you can be sure domestic trade negotiators will point to it when the two countries next discuss imports and exports. Categories: Cases & Litigation; File Sharing, P2P & Downloads; International.
• James Boyle. Text is Free, We Make Our Money on Volume(s). FT.com. Jan. 22 2007. Duke law professor James Boyle outlines the business model for the collaborative, participatory age. In doing so, he notes the relative success of authors who have followed the ”download it online for free“ model, including Yochai Benkler, Lawrence Lessig, and Cory Doctorow. Boyle followed in their footsteps last year, releasing for free the outstanding Bound By Law. Categories: Books; Business & Commerce; Web & Online.
• Jason Lee Miller. Japan Reconsiders Copyright Law For Search. WebProNews. Jan 22, 2007. This story came out about the same time that news broke that Google lost an infringement case to Belgium’s Copiepresse. It will be interesting to see whether this becomes a trend that takes hold. We also wonder what, if any, behind-the-scenes maneuvering Google did to get this done. Categories: Infringement; International; Law, Legislation & Regulation; Web & Online.
• ArsTechnica. The Streamburst Antipiracy Plan: Don’t Use DRM. Jan. 19, 2007. Ars discusses a UK media company that has decided not to laden its works with copy protection, opting instead to use watermarking technologies (among other things) to protect their intellectual property. Key sentence: ”Piracy is a business model. To compete with it effectively, content companies have two choices. They can pour millions into robust new DRM schemes (see HD DVD, Blu-ray, and Windows Vista for examples) and then use the power of the law to hammer any users who are found violating their copyrights. … The other way to compete with piracy is by actually attempting to compete: lower prices, no DRM, and making it easier to pay for a high-quality legal file than to pirate it.“ Categories: Business & Commerce; DRM & Copy Protection; Multimedia; P2P, File Sharing & Downloads; Web & Online.
• EFF Deep Links. PERFORM Act = DRM Mandate. Jan. 14, 2007. It has been quite a while since we’ve posted something from the EFF Deep Links site, but that’s probably our fault, not theirs. Here, Fred von Lohman discusses another restrictive technology bill couched in acronym-laden doublespeak: the PERFORM Act (S. 256), which continues in a vein similar to what the Senate introduced last Congress. Categories: DRM & Copy Protection; Law, Legislation & Regulation; Music.
• Freedom to Tinker. 2007 Predictions. Jan. 5, 2007. Princeton computer science professor Ed Felten makes his predictions on the intersection of business, law, and technology. Prediction 1 (”DRM technology will still fail to prevent widespread infringement. In a related development, pigs will still fail to fly“) is so dead on that Big Content is considering doing away with DRM altogether. See how he did for 2006. Categories: DRM& Copy Protection; Research.

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