COPYCENSE

Copycense is taking a publishing break over the holiday season. We will resume publishing on January 16, 2007.

The editorial staff at Copycense wishes our readers and their families a joyous holiday and a prosperous 2007.

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

Due to a raft of year-end commitments and continued tinkering with our Clippings format, we postponed last week’s edition until this week. In this edition, we look at Google’s copyright challenges with spidering others’ news feeds; a British report on artists’ uses of CC licenses; international attempts at extending the AHRA; and the U.K.’s attempt to extend copyright terms for recordings as some of the Beatles catalog is about to go into the public domain.

Quote of the Week

“I think that a lot of sharing is being and will be hampered by laws and technology, and things like DRM (digital rights management). Part of it is about the business of helping people share. … The idea of the “sharing economy” is to show that “sharing” isn’t about being a communist or taking value from the economy and giving it away. But it’s important to think about how sharing can help the economy and how hurting sharing can hurt it.” — Joi Ito, chief executive office, Neoteny. Daniel Terdiman. Joi Ito: A Man of Many Hats. News.com. Nov. 27, 2006.

Copycense Clippings

Stephanie Bodoni. Google Stumbles Over Belgian Court Challenge to Newspaper Links. Bloomberg.com. Nov. 28, 2006. Does this seem confusing to you? It should, since you’re probably saying to yourself “I thought Google already settled this.” Here’s the basic recap. Within a week of this story being published, news surfaced the Google had settled copyright claims with Belgian news photographers and writers over links to Belgian news content. This story, however, is about Google having similar copyright problems with the newspaper publishers. As always, we note a handful of observations. First, this story illustrates that creators and copyright owners often are two entirely separate entities. This is why we chuckle when Big Content claims their business decision to litigate first and ask questions later is primarily about compensating creators (be they writers, musicians, photographers, or actors). That strategy has nothing to do with compensating creators; it has everything to do with maintaining corporate revenue.

Second, why is Big Content’s first, almost reflexive thought to litigate whenever another, smaller company uses technology and finds more innovative and profitable ways to leverage content than they have themselves. At a minimum, one would thing it would be more advantageous to content provider and innovator to partner. Instead of wasting all this money on lawyers, Big Content should be using this money to either develop their own solutions or just buy out the companies that are doing neat things.

Third, and this seems like an obvious question: how is it that linking to another’s Web site (or even summarizing that Web site, either by creating original abstract or electronically trolling the site and reproducing the first few words of the lead paragraph) qualifies as a copyright infringement violation? Let’s remove this realm of the legal for a moment: given the nature of the Web and what it does, how silly is this entire premise?

Clippings

• Frank Ahrens. A Start-Up Fueled by Star Power. WashingtonPost.com. Nov. 29, 2006. We really like the actor Morgan Freeman. I mean, we really do. But through ClickStar, he’s going to fight Apple and (now) Wal-Mart for the movie download market? He doesn’t stand a chance, no matter how good an actor he is. Categories: Film; File Sharing, P2P & Downloads; Web & Online.
• Open Business. Release of Report on UK Artists, Copyright and Creative Commons. Nov. 28, 2006. Too often, one of the underrepresented parties in the global copyright debate is the creators. (In many ways, Big Content has appointed itself the spokesperson for the creators with whom it has a contractual relationship, but suggesting this relationship is beneficent is rather ridiculous.) This report surveys and speaks to artists, who discuss their use of Creative Commons licenses. Categories: International, Licensing & Permissions, Music.
• Rebecca Lenzini. Wiley to Acquire Blackwell Publishing. Information Today. Nov 27, 2006. This deal has been abuzz the past week or so on the Liblicense listserv. This deal has all the juicy tidbits: family squabbles, industry control, and, of course, lots of cash. More practically, it means even more consolidation in the publishing industry, which inevitably means higher prices and worse service for libraries and other purchasers. Categories: Books, Libraries & Information Centers.
• Patricia Sullivan. H. Donald Wilson, 82; Developed LexisNexis. WashingtonPost.com. Nov. 25, 2006. Wilson began his career as a lawyer. We wonder what he thought about copyright protection for databases? Also, Law Librarian Blog has an appreciation for Wilson and his pioneering role in developing computer-assisted legal research. Categories: Databases.
• Victoria Shannon. The End User: When It Comes to Digital Hardware, Copyright Levies Are a Taxing Debate. International Herald Tribune. Nov. 22, 2006. As we suspected and reported just last week, the idea of a device tax to “compensate artists” for “piracy” — a la the Audio Home Recording Act of 1992 — is beginning to gain currency. This article discusses how the European Union is beginning to investigate the idea. Categories: Music; Law, Legislation & Regulation; International.
• Jennifer Granick. Second Life Will Save Copyright. Wired News. Nov. 20, 2006. Granick details Second Life’s attempt to deal with its Copybot issue not through restrictive software, but through the Second Life licensing agreement. Categories: DMCA; DRM & Copy Protection; Licensing & Permissions; Web & Online.
• James M. O’Neill. Professors Get an ‘F’ in Copyright Protection From Publishers. Bloomberg.com. Nov. 17, 2006. This issue and the Cornell-AAP agreement that it fostered is the culmination of Big Publishing clanging swords for more than a year over alleged revenue loss from e-reserves at institutions of higher learning. Categories: Libraries & Information Science; Books.
• Greg Sandoval. Universal Sues MySpace for Copyright Violations. News.com. Nov. 17, 2006. Ho hum: Big Content is suing over allegations of copyright infringement. Just another mundane tech story. Why, then, are we posting it? We post this story because this lawsuit points to the relevance of the U.S. Supreme Court’s 2005 decision in MGM v. Grokster, which held that providers of software that designed to enable “file-sharing” of copyrighted works may be held liable for the copyright infringement that takes place using that software. This so-called “inducement” theory of liability has facilitated copyright portfolio holders’ entree into federal court on infringement cases. To this end, the razor sharp William Patry discusses how copyright owners are extending Grokster beyond music and and file sharing. Categories: Cases & Litigation; Music; Web & Online.
• James Boyle. Breaking the Deal. FT.com. Nov. 16, 2006. Duke law professor James Boyle looks at the U.K.’s attempt to extend copyright terms for sound recordings another two decades, just as copyright on some of the Beatles’ catalog is about to expire. Sounds familiar, doesn’t it? Who is Britain’s Sonny Bono? Categories: Public Domain & Term; Music.

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

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

So Microsoft decides to give Universal, the biggest player in the Big Music cabal, a percentage of Zune sales that has so many zeroes after the decimal point that it effectively amounts to, well, zero. And Universal’s music chief, Doug Morris, is quoted as saying this zero amount is one way to make up for some of the lost revenue from alleged copyright infringement. This deal and Morris’ comments are so ridiculous that they do not warrant even a cursory comment.

But, as always, what is important here is the back story.

The Audio Home Recording Act (AHRA) is nearing its 15th anniversary, and this is why this story is important. In 1992, about the time Big Music really began putting resources behind the “piracy” frame, the record labels got Congress to agree to pass AHRA, a bill that may have been the first act of Congress to codify digital rights management into law. AHRA also levied a royalty tax of up to $8.00 per new digital recording machine and 3 percent of the price of all blank recording media. AHRA was one large, contributing factor that led to the demise of digital audio tape technology and the media that support it.

Fast forward to Microsoft’s offer of “tribute” to Universal. As we see it, here we have one of the most powerful companies on the planet volunteering its own, contemporary version of AHRA. Of course, the royalty numbers are low. But the royalty almost certainly will rise. As the royalty rises, a few interesting things likely will occur. First, Big Music will beseech Apple to match Microsoft’s “tribute.” Second, Apple chairman Steve Jobs is likely to respond by rubbing the bridge of his nose with his middle finger.

Third, such a response is sure to anger the labels, who will try to force Apple (and other portable digital music player manufacturers) to pay this fee by whining to Congress about how artists are being cheated. This whine will likely be followed by the usual suggestion: amend the copyright laws. In this case, the labels will ask Congress to require all digital music device manufacturers to pay a fee for each unit sold. The easy, ceremonial way to do this is to modify AHRA to include digital music devices.

(And don’t think having a Democratic Congress will keep this from happening. In fact, the Democrats’ traditional coziness with entertainment interests may quicken this occurrence. Remember, a Democratic president signed the DMCA.)

Here’s where things begin to get interesting from a business strategy standpoint. Apple does not have nearly the same amount of cash as Microsoft, and therefore would balk at paying a device “tribute” to the labels on sheer economic grounds. Apple also would balk at the tribute on other grounds: without Apple’s introduction of the iPod and iTunes, one could argue that there might be no digital music market. And since Apple created the market for portable, legal, downloadable music, why would it want to pay out to the labels?

But, we don’t think Microsoft’s move has anything to do with promoting the Zune, or even challenging the iPod. Instead, we think Microsoft made this move as a challenge to Apple’s dominance in personal media, an advantage that will continue to threaten Microsoft for years to come if the Redmond company does not address it now.

Microsoft’s traditional income stream has been from the desktop (including desktop extensions into the enterprise). This income stream, however, currently is being threatened by Google’s attempts to make the Web a primary computing and application platform. On the other hand, Apple has leveraged the iPod into an increased presence in the home, as both novices and “prosumers” choose the Apple for its ease of use and bundled, inexpensive creation tools. (Next time you’re on a college campus, notice how many more people are using Macs instead of Windows-based computers. The change over the last three years is astonishing.) With more powerful and affordable tools, programs, and distribution methods, more people are taking control of their content creation. This trend has helped not only Apple, but Flickr and YouTube, among other companies.

So if you’re Microsoft, you see that your desktop advantage being whittled away over the next 25 years, and you see the home market slipping away, too. What do you do? You pick a fight with Apple, since the perception is it doesn’t have the financial resources to get down and dirty for an extended period of time. (Microsoft’s cash war chest totals more than $28 billion, more than twice Apple’s cash reserve of a bit more than $10 billion.) Picking this fight could include supporting AHRA amendments that force music player manufacturers to pay royalties, something Microsoft would gladly — even to its own detriment — if it meant halting (or at least slowing down) Apple’s five year run of en fuego innovations.

Regardless of its reasons for doing so, the payment to Universal is a strong tactic by Microsoft. But it has little to do with music, and absolutely nothing to do with compensating artists because of alleged lost sales due to downloading. It will be interesting to see how this plays out, but certainly count on Big Music to amend AHRA, or draft new legislation that is consistent with AHRA’s spirit.

Mike Musgrove. Microsoft Music Player To Share the Wealth. WashingtonPost.com. Nov. 10, 2006.

Duke Law & Technology Review. Music Piracy and the Audio Home Recording Act. Nov. 20, 2002.

CopyCense™: The law, business, and technology of digital content. A business venture of Seso Digital LLC.

In this edition of CopyCense Clippings, we feature the razor sharpness of William Patry (on copyright) and Ed Foster (on licensing); Microsoft positioning Zune as an iPod challenger while ripping you off; a foreign court codifying file sharing into law; Bob Barker’s last spin; and “epistemologically unreliable” statistics from Big Content.

But first, we offer our thoughts on Ed Bradley.

In Memoriam: Edward Rudolph Bradley Jr.

(Photo credit: Tony Esparza, The Associated Press)

As likely was the case with many, the news that Ed Bradley died late last week caught me short. There are many others who knew Bradley personally and professionally, much more well than the “six degrees of separation” sense in which I could claim to have known him. Several of Bradley’s colleagues, like Clarence Page of the Chicago Tribune, offer deserved remembrances, accolades, and tributes. To them, I respectfully leave the duty of presenting their memories of one of journalism’s giants.

One recurring question I kept having last week, though, is “Who’s next?” In truth, the mere question seems embarrassing, suggesting there is room for but one Ed Bradley, or one Max Robinson, or one Art Rust, Jr., or one Gil Noble, or one William Rhoden, Les Payne, Clarence Page, George McElroy, John J. Johnson, Charlayne Hunter-Gault or Earl Graves. Part of Bradley’s remembrances will focus on his revered status as a journalist of color, and that is fine. What probably will not be discussed is the aging of Bradley’s contemporaries and the mere sprinkling of successors in the journalism pipeline who can bring competence and color to a news story, regardless of medium.

For me, the brilliance of Bradley’s skill — and it was as much skill as gift — was that he could at once “stay black,” yet remain as invisible as Ellison’s man. It seems there are few ready, willing, or able to follow Bradley and his contemporaries in delivering news and information with equal measures of accuracy, transparency, and inclusion. That is not fine.

K. Matthew Dames

Executive Editor

CopyCense: Code & Content

Article & Quote of the Week

Hollywood has tried to court us, but Hollywood doesn’t understand that once you’ve self-distributed to a mass audience — and we’ve got an audience larger than a lot of cable shows — and they offer you $2,000 per episode, we’re like, ‘What are you talking about?’ We already have an established fan base. We can’t sign the idea away for low money. With 20 million-plus downloads over the last year, and a strong brand and a strong Web site, that’s crazy.

Matthew Klam. The Online Auteurs. The New York Times Magazine. Nov. 12, 2006. In an idea economy that allows for Internet distribution and in-house creation, there’s little need to work through traditional channels unless you can get cash, freedom, and the ability to retain all your rights. Wu-Tang Clan understood that: when the big labels approached the group for a record deal, Wu-Tang opted for no advance, full publishing, and the freedom to release solo work from any of its group member on any other recording label. Ani DiFranco understands that: instead of signing away her songs and her freedom to control her work, she began her own label and performed. Even Prince, once a darling and beneficiary of the old system, understood this. His Royal Badness decided he’d rather write on himself than release another album for Warner Bros.

Big Content? Not so much.

Totally Random & Unrelated Clipping

ABC News. Person of the Week: Bob Barker. Nov. 3, 2006. Perhaps the funniest thing we’ve seen on screen in years is that “Happy Gilmore” skit Barker did with Adam Sandler a few years ago. But that’s one event from a 50-year career in which he’s gracefully declined to dye his hair, stayed calm when hyper contestants threatened to yank his arm off, and always completed one full turn whenever he’s spun the wheel. If we can roll Big Willie style for as long as Barker has, we’ll be very happy campers. Congratulations in advance for a fine career.

CommuniK. Clippings

Sandy Cohen. ‘Stolen’ Ideas Big Business in Hollywood. MercuryNews.com (via The Associated Press). Nov. 9, 2006. In the current economy, ideas are priceless. Some inventors and creators would rather sit on an idea, hoping to bring it to market independently, than to seek funding or partners to help bring an idea to market because they fear a competitor (or worse, a “partner”) will manifest the idea at market and cut them out of the loop. Trade secret laws and confidentiality clauses can help, but both presume that an idea person (a) has access to a good attorney; (b) can afford to pay a good attorney to write the obligatory cease and desist letter should something go wrong; and (c) can afford to defend his idea through litigation if necessary. If a creator has these resources up front, he is more likely than not to have access to more resources to bring the idea to market independently.

Stephen Shankland. Microsoft Patent Peace — Or Patent War? News.com. Nov. 3, 2006. The last two weeks have been rough for Red Hat. First, Oracle announced an initiative in which it will provide support for Red Hat’s product line for half what Red Hat charges. (Red Hat’s stock dropped by 25 percent.) Then late last week, Microsoft announced it would become partners with Novell in order to support Suse Linux. More significantly, both Microsoft and Linux pledged to Linux users that they will be protected against intellectual property infringement lawsuits resulting from proprietary software those companies blend with open source Linux. Red Hat, a much smaller company, had no choice but to offer the same deal.

Turf wars. Undercutting. Protection. Sounds like something straight from The Sopranos, doesn’t it?

Of course, Red Hat is downplaying both deals, particularly the Novell/Microsoft pairing. As usual, Ars Technica’s coverage raises an interesting question: for those companies truly committed to the open source ethos (and not just presumed cost savings), will it matter that Microsoft and Oracle have committed to the platform? One could reasonably suggest that their entrance could solidify Red Hat’s customer base.

MercuryNews.com (via The Associated Press). Spanish Court Dismisses Music File-Sharing Case. Nov. 2, 2006. If the news reports are accurate, this is a significant finding. We’d like to read the opinion ourselves to analyze the facts that are involved in this decision, and we only would be able to guess whether the English translation is accurate (since we assume the decision is written in Spanish). Despite our hesitance to read much into the decision without having analyzed it, this court touches on something about the current content that is irrefutable (even in America): sharing is standard operating behavior for the generation under 30 years old. The Spanish court wrote a guilty verdict in its case “would imply the criminalization of socially accepted and widely practiced behavior in which the aim is in no way to make money illicitly, but rather to obtain copies for private use.” Now, the question domestically is when are the courts and Congress going to recognize the fundamental change in American society and rule and legislate accordingly? This is likely to be a torturously slow process. After all, the Brown vs. Board of Education decision occurred only after decades of an effective, highly coordinated movement that illustrated the injustices wrought on American citizens based solely on their skin color. It took several decades more for the decision to lead to demonstrable change. We do not know how many more years of socially acceptable culture and content sharing must happen before the law falls in line, but we are rather confident that copyright law as it stands now must change. A law cannot be law if much of the society that is supposed to bound by the law doesn’t believe in or abide by the law.

Clippings

• Adam Liptak. Sports Artist Sued for Mix of Crimson and Tide. The New York Times. Nov. 12, 2006. The University of Alabama sues an alumnus whose paintings of Crimson Tide football life have represented the school’s football history and adorned campus for decades. Aside from being examples of questionable litigation and poor alumni relations, this lawsuit suggests the program once run by the legendary Bear Bryant is lost perhaps beyond repair. One could reasonably suggest that the Tide has many more important things to handle after it lost to Mississippi State and another alumnus, State head coach Sylvester Croom.
• Dan Mitchell. What’s Next, a MySpace Profile? The New York Times. Nov. 11, 2006. Abstract: “SEC Chairman Posts to Blog; Government Enters 21st Century.” Posting significant financial information to the Web to comply with Regulation FD seems like an overall idea, but we’re puzzled by Chairman Christopher Cox’s concern about “whether there exists effective means to guarantee that a corporation uses its Web site in ways that assure broad non-exclusionary access.” We always thought company press release and conference calls were exclusionary; why now the concern about making this information non-exclusionary simply because the medium has changed?
• Marketplace. Pushing for EU Patent Reform. Nov. 9, 2006. While patent reform in the U.S. has been an increasingly important issue over the past few years, at least a patent in the United States is respected in all states in territories. In contrast, a patent holder seeking protection in Europe must file a patent application in every one of the European Union countries, since there is no single standard. The move toward unifying the E.U.’s patent standard likely will be a high-stakes issue over the next three to five years.
• The Patry Copyright Blog. What the Election May Mean for Copyright. Nov. 8, 2006. The always razor sharp William Patry writes on the affect a Democratic Congress may have on copyright legislation in the next term. Interestingly, Patry does not discuss the potential role of John Conyers, Jr., currently the ranking Democrat on the House Judiciary Committee and the legislator in line to succeed James Sensenbrenner as chairman. Conyers’ record on intellectual property issues seems conflicted, as he is as likely to support a dominant content industry position as he will consider balanced legislation that seems sane. We also recommend Declan McCullagh’s post-election coverage, which also focuses on technology issues.
• Grant Gross. Is DRM Good Or Bad For Consumers? PC World. Nov. 8, 2006. We link to this story only as an example of how so-called policy makers in Washington, DC seem to be almost pathologically idiotic when it comes to dealing with the intersection of business, law and technology.
• Simon Hayes. Piracy Stats Don’t Add Up. Australian IT. Nov. 7, 2006. For years now, various folks have been challenging the accuracy and truth of the infringement statistics Big Content uses to justify all manner of initiatives, from increased digital restrictions software to maximalist legislation. But we cannot ever recall a government department deriding Big Content’s data as both “self-serving hyperbole” and “unverified and epistemologically unreliable.” Ouch.
• The Age. New Australian Copyright Rules ‘Restrictive’: Google. Nov. 7, 2006. While copyright laws are national, the question is how can they continue to be national when the primary distributive medium — the Web — knows no boundaries? It is unlikely that Australia will enact a proposed set of laws that would allow Australian copyright owners to sue search engines for caching and archiving material because the affect on Australian business would be catastrophic. Still, we remain amazed at how often countries and corporations jockey for special consideration in cyberspace, yet so consistently fail to realize how short-sighted such jockeying hurts not only others, but ultimately themselves.
• Ameet Sachdev. Lawyers Face Right to Blog. Chicago Tribune. Nov. 7, 2006. Some state bar associations are wondering whether attorney-authored blogs constitute legal advertising. Of course they do, but in most cases, no more or less so than if that same attorney gives a speech to lawyers at a convention, or discusses legal topics as part of his child’s show and tell project. Part of the reason the legal profession having its lunch eaten by consulting firms is it hasn’t seen fit to deal with issues of multijurisdictional practice (which is more common than ever now), and many lawyers’ inability to merge their legal knowledge and skills with an understanding of their clients’ business. (That suggests a failure at the law school level.) The lawyer blogging controversy is just an indication of how far behind the profession has fallen in relation to commercial and legal reality.
• Tom Krazit and Michael Kanellos. NTP Slaps Palm With Patent Infringement Suit. News.com. Nov. 6, 2006. Palm should just reach for its checkbook and ask how much. When it sued the Blackberry maker, NTP survived unusual (and ethically questionable, in our view) Congressional intervention, patent invalidation, and full-page ads condemning it in this country’s major newspapers. And still, it walked away with more than a half billion dollars. Palm could go the patent invalidation route, but does it have the cash to be successful? On the other hand, one must question NTP’s decision to launch this lawsuit right before Election Day, which is almost sure to stoke the pro-business Bush administration into action on patent reform in its last two years.
• BBC News. Zune Problems for MSN Customers. Nov. 6, 2006. So you’ve decided to resist the dominant paradigm, eschewing an iPod for a Zune. And you think you’re going to transfer your old music over? Even though you bought that music from a Microsoft entity? We chuckle. Please, just walk away.
• Frank Ahrens. Google to Try Selling Advertisements for Newspapers. WashingtonPost.com. Nov. 6, 2006. At some point, newspapers knew it was going to come to this. They knew they were going to have to go through Google for their ads. (And radio ad execs should not feel safe, either.) The only risk for Google is if newspapers, like other advertisers, demand sharper metrics with which to gauge how the advertising dollar is being spent.
• Drew Cullen. How to Gag Your Enemies Using the DMCA. The Register. Nov. 4, 2006. Chronicling the DMCA takedown notice process from a publisher’s perspective.
• Ina Fried. Microsoft Backtracks on Vista Transfer Limits. News.com. Nov. 2, 2006. When we first noted Microsoft’s new DRM features in the upcoming Vista operating system, we suggested that perhaps Redmond was floating a red herring to gauge consumer backlash against a major DRM initiative. We also predicted that Microsoft’s strategy would be to float out a hardline position that they’d later soften, yet it would find some other method to implement its DRM initiative. This announcement is the predicted softening. Now watch for the sneakily implemented alternative.
• Sue Zeidler. Hollywood Writers, Studios Spar Over Digital Works. WashingtonPost.com (via Reuters). Nov. 2, 2006. Big Content always has said that all this litigation and lobbying is about compensating the artists and creators. We’ll see how long that line stands when union contracts lapse and artists and creators begin demanding their cut of works that are distributed through new channels like iTunes.
• InfoWorld GripeLine by Ed Foster. A Vista of Licensed Censorship. Oct. 24, 2006. The always razor sharp Ed Foster focuses on how Microsoft restricts critical speech via a license agreement.
• InfoWorld GripeLine by Ed Foster. Reader Voices: Copyright Duration. Oct. 20, 2006. The always razor sharp Ed Foster lets his readers sound off about copyright terms.

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

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