COPYCENSE

After a brief pause for the cause, we’re back. Perhaps not “back and better than ever,” but back — with an addition to the staff. Clippings 1.02 marks the editorial debut of Kim Hagedorn.

Kim will be helping us compile Clippings editions and other Copycense content through early May. She is completing a master’s degree in library and information science at Syracuse University’s School of Information Studies, and she will be attending law school in the fall. (We’re hoping we had little to do with that decision.) As you shall soon see, Kim immediately fits right in with the wide-ranging, occasionally irreverent tone we have set for Copycense Clippings.

In this edition, a federal judge tells Big Music to pay tribute to an aggrieved mom; senators continue their mission to force your ISP to snoop on you; Apple’s chairman rankles noses at the suggestion of DRM-free music; and now the DMCA is being invoked to halt the Electric Slide.

Quote of the Week

“Unlike the courts in the unpublished opinions cited by the plaintiffs, this Court must consider whether a defendant should receive an award of attorneys’ fees when she successfully defends against the novel application of secondary copyright infringement claims… Her only alternative to litigating the plaintiffs’ contributory or vicarious liability claim was to capitulate to a settlement for violation she insists she did not commit. Such capitulation would not advance the aims of the Copyright Act as the plaintiffs’ untested theory would remain untested.” — Judge Lee R. West, presiding judge, Capitol Records, Inc. et al. v. Debbie Foster (04-1569-W, U.S. Dist. Ct., W.D. Oklahoma) Ars Technica. Victim of RIAA “Driftnet” Awarded Attorneys’ Fees. Feb. 7, 2007. A federal court judge actually said this? Did we read that correctly? Not only did a federal judge dismiss an RIAA “file sharing” case, he actually awarded attorney’s fees to the aggrieved defendant. So, why has it taken this long for the rest of the judiciary to recognize that the federal court system should not be leveraged as an industry’s protectionist response to a failing business model? Categories: Music; Cases & Litigation; File Sharing, P2P & Downloads.

Site Check

Recording Industry vs. The People. This publication is devoted to “the RIAA’s lawsuits of intimidation brought against ordinary working people,” and contains an index to many source documents that have been filed in several key RIAA-sponsored lawsuits against citizens engaged in so-called “piracy.” At first glance, this site (edited by New York entertainment lawyers Ty Rogers and Ray Beckerman) appears to be a welcome and comprehensive resource. Categories: Music; Cases & Litigation; File Sharing, P2P & Downloads.

Clippings

• Declan McCullagh. GOP Revises ISP-Tracking Legislation. News.com. Feb. 7, 2007. The always-a-step-ahead McCullagh reports on federal legislation that will require all ISP providers to retain information about their subscribers so compliance with court orders will be easier was introduced. Requirement details will be up to Attorney General Gonzales. Due to the broad language used in the bill, he will be able to dictate that ISP providers keep logs of consumer browsing, IM messages, e-mails, etc. Categories: Laws & Regulations; Privacy.
• Ars Technica. Apple Would “Switch to Selling Only DRM-free Music” If Labels Agree. Feb. 6, 2007. After suffering the slings and arrows of Big Music’s outrageous greed since iTunes virtually created the market for legal, purchased digital music — and feeling European pressure over FairPlay — Apple chairman Steve Jobs lays down the gauntlet and challenges the record labels to open up their music files. In a game of chess, that would be called “Check.” Categories: DRM & Copy Protection; Music.
• bIPlog. Day of the RFIDs. Feb. 6, 2007. California’s Identity Information Protection Act of 2007 (SB 30) is up for review by the committee of the Judiciary again. If passed, the act will protect citizens’ privacy from secret scanning which can be done if a person has an object that has an RFID embedded in it. Categories: Laws & Regulations; Privacy.
• Michael Barbaro. Wal-Mart and Studios in Film Deal. The New York Times. Feb. 6, 2006. So the ol’ Midwesterners beat Slick Steve Jobs to the punch on getting the movie studios to do downloads. We wonder if the studios’ decision is about Wal-Mart providing the better deal, or just a strong aversion to Jobs. Categories: Web & Online; Film.
• Josephine Wolff. University Library Joins Google Book Search. Daily Princetonian. Feb. 6, 2007. Princeton University has joined other powerhouse libraries such as Harvard, Oxford, and Stanford in the Google Books Library Project. They will be digitizing 1 million of their books to be accessible through Google Books Library. Princeton feels that by digitizing books that are no longer protected under copyright and providing access via Google, it will provide researchers a new wealth of materials previously easily accessible. Categories: Digitization; Education; Libraries & Information Science; Open Access.
• Vocoid. Vocoid & the Medly Remix Contest. Feb. 6, 2007. Vocoid will be hosting a contest allowing contestants to mix raw audio from their album Medly using ccMixter. Categories: Music; Remixes & Derivative Works; Events.
• bIPlog. Recent Decision About GPS, Privacy, and the Fourth Amendment. Feb. 5, 2007. Esteemed Seventh Circuit Judge Richard Posner recently ruled that the police did not violate a citizens’ privacy and Fourth Amendment rights when they placed a GPS device on this car and collected data to use against him. In fact, Posner said that there does not need to be probable cause for the authorities to legally place a GPS device on a suspect’s vehicle. Hmmm. Categories: Cases & Litigation; Privacy & Security; Law & Regulation; Tech & Devices.
• Jordan Robertson. Apple, Beatle Settle Trademark Lawsuit. BusinessWeek.com (via Associated Press) Feb. 5, 2007. After another once-per-decade battle, the Beatles’ Apple and Jobs’ Apple make nice. America’s Apple — note the removal of “Computer” from the official company name — gets to keep the logo and name while Apple Corps Ltd. gets to license rights from the iPod company. Apple Inc. is not out of the clear, however, since its next big suit is with Cisco Systems Inc. regarding “iPhone.” Categories: Music; Tech & Devices; Trademark.
• 43(B)log. Kings of Crunk Reign in Summary Judgment. Feb. 5, 2007. After plaintiff Wilchcombe sued defendants for copyright infringement, alleging that they unlawfully used the musical work and sound recording of the song “Tha Weedman” on Lil Jon’s Kings of Crunk album, a federal court dismissed the lawsuit. The court stated that since Wilchcombe recorded the interlude song knowing the song was going to put on the album, Teevee Toons, Inc. did not violate copyright law. Presumably, dutchies shall make the rounds in celebration. Categories: Cases & Litigation; Infringement; Music.
• David Lazarus. TiVo Sees If You Skip Those Ads. SFGate.com. Feb. 4, 2007. TiVo announced that it will be offering ad companies the opportunity to purchase data regarding which commercials their customers skip. However, TiVo says that the data that is available has been stripped of all personal information so as to maintain consumer privacy. They will soon start a program similar to the Nielson Ratings – a group of subscribers will volunteer to have their TiVo usage recorded without stripping the data of their personal information. Categories: Privacy & Security; Broadcasting & Journalism; Tech & Devices.
• Daniel Terdiman. Electric Slide on Slippery DMCA Slope. News.com. Feb. 3, 2007. Now, this is silly enough to be interesting. A man claiming to have invented and copyrighted the Electric Slide is having Web sites shut down by invoking the DMCA’s automatic takedown provisions. An attorney from the Electronic Frontier Foundation says dances can be copyrighted. What the EFF attorney doesn’t say is whether the copyright applies to the movement, or the fixation of the movement in either some form of visual medium or in notation. We wonder if Bill Patry has addressed this question in his brand spanking new treatise. Categories: DMCA.
• Reuters. Piracy Worked For Use, Romania President Tells Gates. WashingtonPost.com. Feb. 1, 2007. The Microsoft chairman was probably saying to himself, “Dude, I already gave at the office.” Categories: Computers & Technology; Infringement; International.
• Brian Krebs. Accountability Is Key Goal of Privacy Legislation. WashingtonPost.com. Feb. 1, 2007. A new bill is being created by panel chairman Rep. Barney Frank that will allow companies who protect their data with encryption to waive notifying customers if their databases are breached. The Cyber Security Industry Alliance supports Frank’s bill and feels that companies who make attempts to protect their data should be protected by something similar to the safe harbor limitation on liability. The bill also proposes that retailers should have more accountability with regards to data breaches. Opponents to the bill feel that it is punishing smaller companies who do not have the funds to create as stringent security as the large companies. Categories: Databases; Law & Regulation; Privacy & Security.
• Kim Willsher. Heir of Victor Hugo Fails To Stop Les Mis II. Guardian Unlimited. Jan. 31, 2007. It seems that Victor Hugo’s, author of Les Miserables, great-great-grandson lost his appeal yesterday opposing a sequel of the book. Hugo felt the book violated the “moral rights” of family. The French court disagreed. Categories: Books; Cases & Litigation; International.
• IPTAblog. Citing to Wikipedia in School and in Court. Jan. 30, 2007. The history department at Middlebury College has decided to join forces and create a department wide policy that bans students from using Wikipedia in their papers. The department found that students were using Wikipedia as their only source and were therefore citing incorrect information in their papers. They feel that college level students should be taught how to locate quality information. Wikipedia agrees with Middlebury College in that students should not being using their information as their primary source but rather as a starting point. So, federal judges can use the free encyclopedia, but college students cannot. Categories: Cases & Litigation; Education; Open Access.
• The Patry Copyright Blog. Books on Tape and First Sale. Jan. 30, 2007. The always razor sharp William Patry breaks down a case that addresses the question of whether books on tapes are covered by the exception to the first sale’s rental right. Categories: Books; Cases & Litigation; First Sale.
• Thomas Claburn. Appeals Court Shoots Down Copyright Challenge. InformationWeek. Jan. 23, 2007. The Ninth Circuit rejects a second legal challenge to the Copyright Term Extension Act. Categories: Public Domain & Term; Law, Legislation & Regulation; Cases & Litigation.
• InfoWorld. Will EULAs Follow UCITA into Oblivion? Jan. 18, 2007. The razor sharp Ed Foster addresses the issue of software licenses, which are receiving increased scrutiny in the wake of the release of Microsoft’s Vista operating system. One of the good things about Foster’s commentary is that he often speaks to and quotes regular computer-using folks and gets their take on the issue of end-user licensing agreements. We’ve always considered these licenses to be adhesion contracts, but what do we know? (See also Jennifer Granick’s 2007 prediction column, in which she bets that state legislators will begin to take a second look at the one-sided agreements.) Categories: Licensing & Permissions; Computers & Technology.
• Eliot Van Buskirk. Who’s Killing MP3 and ITunes? Wired News. Jan. 8, 2007. This Wired story foreshadowed Steve Job’s broadside against Big Music. (See above.) Categories: Music; File Sharing, P2P & Downloads; Web & Online.

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

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

Has an RIAA spokesman compared mix tapes to trafficking in illicit drugs? This is one of the least reported stories in the aftermath of the Jan. 16 arrests of DJ Drama and DJ Cannon on allegations that the pair were engaged in an extensive ring of copyright infringement through the creation, reproduction, and sale of mix tapes.

At its core, a mixtape is a compilation of songs woven into a cohesive whole by theme, rhythm, key, or a combination of the three. At their best, this new breed of mixtapes is more than just a musical compilation; it has become an art form that features unique, sometimes legendary performances that can come eerily close to the energy and spontaneity of a live show. While mixtapes are a genre-less art form, the leading mixtape creators seem to concentrate in hip hop.

DJ Drama (born Tyree Simmons, 28) has been one of the leading mix tape producers in the country, and is widely renown, particularly in the South, for his Gangsta Grillz compilations. Drama, through his mix tape series and with partner DJ Cannon (Donald Cannon, 27), also is credited with helping boost the careers of hip hop artists T.I., Lil’ Wayne, and Young Jeezy.

On Jan. 16, the Fulton County Sheriff’s Department, acting on a warrant developed from information provided by RIAA’s anti-piracy unit, arrested Drama and Cannon. In the raid at 147 Walker Street in downtown Atlanta, the sheriff’s department confiscated more than 50,000 allegedly illegal mix tape CDs, computers, studio equipment, bank statements, vehicles, and cash.

The online publication MP3.com quotes RIAA’s Matthew Kilgo as having said the following to the Fox television affiliate in Atlanta, GA:

Statistics prove that you can make a 400 percent markup on a kilo of heroine or cocaine, and statistics also show that you can make up to a 900 percent profit just on the resale of counterfeit CDs.

In order to confirm this quote, we visited the Web site Atlanta’s Fox 5 affiliate; the news broadcast remains available for viewing as of this writing. In the version that appears on the Fox Web site, a visitor clearly can hear Kilgo say the following:

Statistics also show that also show that you can make up to a 900 percent profit just on the resale of counterfeit CDs. So, there’s huge money to be made. (Emphasis added.)

Given the near-exact similarity of the broadcast quote, it is reasonable to conclude that Kilgo made the comparison between mix tapes and drug trafficking, and that this comparison was removed through editing. Assuming the quote and context are accurate, Kilgo’s quote easily would qualify as the most disgusting piece of propaganda about “piracy” since former MPAA CEO Jack Valenti — in January 2001, and again before Congress in April 2004 — compared “piracy” to terrorism.

Jim Welte. DJ Drama Arrested in RIAA Piracy Sting. MP3.com. Jan. 17, 2007.

MyFox Atlanta. Downtown Raid Nets Illegal CDs. Jan. 16, 2007.

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

“Digitization. Everyone’s talking about it, yet few have a firm grasp. Digitization seems to require substantial investment, since large institutions and Google have started massive projects, but there seem to be very few small libraries jumping in.

“However, both large and small institutions should be comfortable with creating, managing, marketing, and preserving digital assets through scanning or otherwise digitizing paper-based (or analog) materials. As we will see, ‘being comfortable’ means being both a generalist and a specialist at the same time.”

A LibraryJournal.com exclusive.

K. Matthew Dames & Jill Hurst-Wahl. Digitizing 101. LibraryJournal.com. Jan. 15, 2007.

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

“Digitization. Everyone’s talking about it, yet few have a firm grasp. Digitization seems to require substantial investment, since large institutions and Google have started massive projects, but there seem to be very few small libraries jumping in.

“However, both large and small institutions should be comfortable with creating, managing, marketing, and preserving digital assets through scanning or otherwise digitizing paper-based (or analog) materials. As we will see, ‘being comfortable’ means being both a generalist and a specialist at the same time.”

A LibraryJournal.com exclusive.

K. Matthew Dames & Jill Hurst-Wahl. Digitizing 101. LibraryJournal.com. Jan. 15, 2007.

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

Unlike Google and others, we have refrained from keeping Copycense Clippings in interminable beta. Therefore, this is the first “official” edition of Clippings, funky fresh for the ’07. We’ve labored and tinkered and tried and reshaped … and we’ve decided it’s never going to be exactly the way we want it, so we should just get over it and provide the news as we see fit, making subtle changes along the way.

Of course, we’re keeping little touches like the Quote of the Week (QoTW) and the Article of the Week (AoTW) — even though they’re not in this edition — because they bring levity to a rather dry topic. (And also because we can’t believe how idiotic some people sound when they’re talking about this stuff. Do they really know what they’re saying, or just looking to frame issues?)

For those who are new to Copycense – we have had a number of new subscribers during our hiatus (thank you) — we welcome you. Copycense is about creativity and the code that governs it; that code may be legal code (such as copyright, which we cover extensively); or computer code; or code containing bits and bytes; or code that ultimately makes up content, however we define “content.”

While copyright is the dominant theme, we also report and comment on developments in business, licensing, patent, and online activity that affects, or is affected by, one or more of those topics. K. Matthew Dames is your host this evening, with contributions from a collective of dozens.

Article of the Week

The DJ Drama mixtape controversy is, by far, the Article of the Week, but it is significant enough that we will reserve our analysis for a separate article.

Clippings

• Heise Online. Music Industry Continues to Push for Further Restrictions On Private Copying. Jan. 19, 2007. We already told you that 2007 is the 15th anniversary of the Audio Home Recording Act, and that Big Music was going to move to expand its scope in 2007. We’re taking bets; want to get in on this action? Categories: Fair Use & Other Exceptions; International; Law, Legislation & Regulation; Music.
• Michael Geist. The Copycat Copyright Campaign. Jan. 18, 2007. One of the world’s leading thinkers on copyright discusses the role of citizen and professional uproar on copyright legislation. Categories: Law; Legislation & Regulation.
• Noam Cohen. Bloggers Take on Talk Radio Hosts. The New York Times. Jan. 15, 2007. The story about radio hosts making insulting, derogatory, or “insensitive” remarks is secondary in our minds to 1&1‘s possibly hair trigger, preemptive removal of content in response to a possible or threatened DMCA takedown notice from copyright owner ABC. This begs the question: are ISPs really knowledgeable about how Section 512 operates, or do they merely cave in and reflexively remove content whenever they get a notice about copyrighted material from a person who ends his or her name in “Esq.”? We suspect it’s the latter. Categories: Broadcasting & Journalism; DMCA; Web & Online.
• BBHub. US Patent And Copyright Laws Guide Avilable For BlackBerry. Jan. 17, 2007. OK, you must admit; this is so hot. Categories: Law, Legislation & Regulation; Tech & Devices.
• Marketwatch. Music Industry Declares War on Internet Providers. Jan. 17, 2007. One would think that American ISPs could find some relief in the safe harbor provisions of the Digital Millennium Copyright Act. This story suggests Big Music thinks Section 512 is too lax, and will seek to have the scope of that provision narrowed in this new congressional session. Categories: DMCA; International; Music; Law, Legislation & Regulation.
• Andrew Salomon. Will ‘Urinetown’ Case Hamper Artistic Process? Backstage.com. Jan. 17, 2007. When people collaborate on creative works in a hyperactively litigious copyright environment, flare ups like this one are bound to increase. Categories: Bundle of Rights; Ownership.
• Randall Stross. Want an iPhone? Beware the iHandcuffs. The New York Times. Jan. 14, 2007. When the Times resorts to dubbing digital rights management “crippleware,” it is a good indication that the controversy over restricted access to purchased intellectual property is much more prevalent than it used to be. Categories: DRM & Copy Protection; Tech & Devices.
• Ars Technica. Why DRM’s Best Friend Might Just Be Apple Inc. Jan. 11, 2007. Ars Technica advances Billboard‘s story about labels’ possible elimination of DRM by noting the Apple’s refusal to license its Fairplay copy protection technology may ensure that content owners will continue to develop DRM technology. Categories: DRM & Copy Protection; Tech & Devices.
• Info/Law. Back to the Future of Copyright Treatises? Jan. 11, 2007. An interesting post by a University of Minnesota law professor about William Patry’s new copyright treatise. (The 5,000 page print publication is accompanied by a blog as well.) Somewhat to my dismay, there have been few challengers to Nimmer on Copyright. We hope this new addition to the copyright literature changes that. And we note for the record that the razor sharp Patry now is senior copyright counsel for Google. Categories: Research.
• Madisonian.net. Isn’t That (Patent) Special? Jan. 10, 2007. Pitt law professor Mike Madison discusses the Supreme Court’s decision in MedImmune v. Genentech case, which he suggests will change the patent licensing game. Categories: Cases & Litigation; Patent; Science & Medical.

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

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

David Pogue, technology columnist for the Times, turns composer and torches the RIAA while doing so.

You’ve just been sued by the R.I.A.A.!

You’ve just been sued by the R.I.A.A.!

Their attorneys say, you committed a crime,

And there’d better not be a next time!

Pogue Posts. Ode to the R.I.A.A. Jan. 18, 2007.

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