COPYCENSE

Copycense Weekly Review (through Dec. 3, 2011)

Copycense social media posts on copyright, communications, intellectual property and the media industries from November 27 through December 3, 2011.

  • Complaint in Bikram’s #copyright infringement lawsuit vs. competing Yoga studio http://t.co/WQUkCW21 [pdf]
  • Bikram’s at it again: sues former student for allegedly violating #copyright in hot yoga poses http://t.co/EZ9kwsIA
  • Filmmakers seek to renew #DMCA anti-circumvention exemption for DVDs http://t.co/ML7U0XCT http://t.co/y4bkg8VM [pdf] #copyright
  • @CopyrightOffice digitizing 70 million+ images /HT @Clancco_ArtLaw http://t.co/d6kIYiiR
  • EU: E-book sales hampered by 25% tax http://t.co/chBta8uu
  • Workers use labor law to dispute disciplinary actions related to social media use http://t.co/mOfRtgQ7 /HT @sunil_abraham @PRC_Amber
  • RT @ARLpolicy: Library #Copyright Alliance comments on 1201 DRM exceptions: http://t.co/PCRxkivc Blog summary to come!
  • Read this @jakonrath post http://t.co/HuN3dipG | 6,200 miles on a 2006 book tour. If he’s making money now, don’t knock the hustle
  • Minority Media & Telecom Council supports SOPA/PIPA passage http://t.co/GNw4aSto [pdf] /HT @MPAA | Response stuck between chuckling & “Oy!”
  • If your business is access to digital information, and you don’t fight for every penny and access provision, stop whining about #copyright http://is.gd/yCNAPZ
  • Tired of reading about #copyright hindering access to digital collections, when institutions don’t aggressively negotiate license contacts http://is.gd/kBXWTq
  • “What would happen if all movie-downloading BitTorrent users made the switch to Netflix?” http://t.co/GGzEHYEL #copyright
  • RT @pranesh_prakash: European firms building their own #cloud services to avoid lax US data #privacy laws: http://t.co/pUtihFDX
  • @primusluta RE http://t.co/kC66SpQE Yeah, I looked twice at it; concluded “benefit of the doubt”
  • Kojo Nnamdi Show: Stopping Online #Piracy http://t.co/hfeBaJ4Z #copyright
  • McGruff the Crime Dog on “piracy” & knock-offs http://t.co/G1aCxlmF /HT @MPAA
  • How SOPA/PIPA Affects Your Small Business http://t.co/qlUN9K7v /HT @DanaNewman #copyright
  • BBC Click interview with Neelie Kroes spokeman on #copyright http://t.co/mCP4Hb2q /HT @ArtistsRights
  • Scholarly press rents articles http://t.co/RAjhZLfn | No print, no download; straight cash, homie /HT @copyrightgirl
  • A +1 for @IDEALAW series interpreting common contract/ToS clauses http://t.co/3OhphZ0o
  • Why Uncle Sam wants to save T-Mobile from AT&T http://t.co/bf4NTfNj #mobile
  • USAG on “piracy”: “The public’s proactive attention … can help us to disrupt the sale of illegal goods” http://t.co/5aCSGj1H
  • @mmasnick interview with author (and former IP lawyer) Barry Eisler on #copyright, #SOPA http://t.co/3K4V4Qis
  • The tautolgy of #copyright law’s “irreparable harm” injunction standard http://t.co/X6pNShGX
  • Cable companies seeking to charge extra for Netflix, Hulu streaming http://t.co/MKkZpxEh
  • RT @howardknopf: Samsung Defeats Apple-Sought Ban in Australia http://t.co/oSW3H6uj
  • Sci-fi author: Big 6 publishers cutting their own throats with e-book #DRM http://t.co/oTHw7Kpz #amwriting #copyright
  • Lipitor loses #patent, goes generic http://t.co/04mFB5mb /HT @BoothSweet
  • Net Neutrality Is Too Regulatory, but Stop Online Piracy Isn’t? http://t.co/PEIPp9jl #copyright #sopa
  • Economist: Redraft #SOPA more tightly http://t.co/1AGAXugl #copyright
  • New @CopyrightOffice proposal http://t.co/Wd2AUycw [pdf] could put DMCA safe harbor at risk http://t.co/PLPmSbjI #copyright
  • Tom Moulton, the inventor of the remix, turns 71 today http://t.co/cWjzvnho /HT @primusluta
  • Ray Bradbury relents, allows ‘Fahrenheit 451’ to become e-book http://t.co/NssNENM7 /HT @LawandLit
  • Bronx tattoo artists say Fiat had no clearance for mural appearance in J-Lo ad http://t.co/I6YnhITJ /HT @howardknopf #copyright
  • Prediction: The #SOPA fallback will omit most egregious provisions, then pass in election year budget bill. Standard procedure #copyright http://is.gd/Vur5zR

Written by Copycense Editorial

12/03/2011 at 12:00

Posted in Uncategorized

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Science vs. Advocacy: Thoughts on the Felten BitTorrent Study

Princeton computer science professor Edward Felten has posted on his Web site a summary of a study he and Princeton student Sauhard Sahi conducted involving BitTorrent, the peer-to-peer network protocol. Felten and Sahi summarize their study as an investigation into what types of files are available on the system:

BitTorrent is popular because it lets anyone distribute large files at low cost. Which kinds of files are available on BitTorrent? Sauhard Sahi, a Princeton senior, decided to find out. Sauhard’s independent work last semester, under my supervision, set out to measure what was available on BitTorrent. This post, summarizing his results, was co-written by Sauhard and me.

Sahi and Felten chose a random sample of files available “via the trackerless variant of BitTorrent, using the Mainline DHT. The sample comprised 1021 files. He classified the files in the sample by file type, language, and apparent copyright status.” The summary does not clearly identify the time frame (either in length of time, or the time of year) in which Sahi and Felten performed the study.

Summary of the Study Summary

In summary, Sahi and Felten concluded that nearly half the files (46 percent) in the study comprised of non-adult movies and “shows.” (We presume the scholars mean shows — either dramatic serials or game shows — that appear on television.) These category of content would include what the Copyright Act of 1976 defines in Section 101 as “motion pictures” (“Motion pictures are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.”) Adult films and computer games and software each accounted for 14 percent of the total files; music accounted for another 10 percent of the files.

The part of the Sahi-Felten study summary that seemed to garner the most attention was the section entitled “Apparent Copyright Infringement.” Wrote the scholars:

Our final assessment involved determining whether or not each file seemed likely to be copyright-infringing. We classified a file as likely non-infringing if it appeared to be (1) in the public domain, (2) freely available through legitimate channels, or (3) user-generated content. These were judgment calls on our part, based on the contents of the files, together with some external research.

Overall, we classified ten of the 1021 files, or approximately 1%, as likely non-infringing, This result should be interpreted with caution, as we may have missed some non-infringing files, and our sample is of files available, not files actually downloaded. Still, the result suggests strongly that copyright infringement is widespread among BitTorrent users.

In other words, the pair have drawn a preliminary conclusion that 99 percent of the files in this BitTorrent study infringed U.S. copyright law.

It is virtually impossible to discuss this study or its conclusion without reviewing the final paper, the data, and the data analysis that lead to the conclusions about “Apparent Copyright Infringement.” We and another reader have requested to review that information. We also specifically asked to see the coding sheets, the variables, and a closer look at the variable operationalizations; upon a second glance at the summary, we also would like to review the study design, particularly its sampling design.

(By the way, none of these requests are abnormal for social science studies. It is possible a reviewer may not request coding sheets, for example, but if coding schema are integral to variable operationalizations, then requesting the coding schema is not abnormal either.)

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Written by Copycense Editorial

02/01/2010 at 08:30

Posted in Research

The (Second) William Patry Interview

Editor’s Note: Copycense executive editor K. Matthew Dames interviews William Patry a second time. (The first interview occurred in late 2006, and was published in 2007, the same year West Publishing released the multi-volume treatise Patry on Copyright.) This second interview, completed in late August 2009, deals exclusively with Patry’s new book, Moral Panics & The Copyright Wars (2009, Oxford University Press) [Amazon.com; Barnes & Noble; author’s book blog]

K. Matthew Dames: After writing several scholarly works and treatises (including the current Patry on Copyright and the revised Patry on Fair Use), Moral Panics and the Copyright Wars is your first general market book. Why this book at this time?

William Patry: I have been concerned for awhile about the type of discourse used in the debates about copyright. I thought and still think it is generally unhealthy, and in some cases, deliberately unhealthy. George Orwell once wrote that words can corrupt thought, and I believe this has happened in the copyright debates. I set out to find out why this was going on, and how to change the discourse by making it healthy again.

Dames: Moral Panics … opens with a discussion of business models, and your general argument that copyright law has been used too often to control what consumers do with products, rather than encouraging platforms that give (paying) consumers what they want. This book also was researched and written during a time when, for the first time, you have been in-house counsel to a technology company. To what extent did your work as a business lawyer spur your research into business models?

Patry: I have been privileged to work in lots of difference environments: private practice, government service, academia, and now in-house. You learn a lot from each experience. Certainly the greatest benefit to being in-house is learning business stuff, so being in-house has definintely sensitized me to business issues in a way I wasn’t before. I hope that is helpful too for readers.

Dames: In Moral Panics …, you spend a lot of time discussing language and rhetoric. How did you become interested in this area?

Patry: I became interested because language and rhetoric is so prevalent in the copyright debates and has driven policy decisions, something I think is regrettable.

Dames: Moral Panics … also includes several extended discussions about how language is used to shape the parameters of debates and political issues. In your former work with the House of Representatives, you must have heard several interesting arguments or statements. In your view, which person or organization has been the best at using language to best articulate their point of view and why was that person or organization so effective?

Patry: George Lakoff, a very liberal Democrat and a cognitive linguistic, has written extensively about how conservatives are masters of framing political debates, and I would be surprised if many disagreed. As the opposition now, of course, they don’t have responsibility for actually accomplishing anything, which gives them a lot more room to maneuver.

Dames: On page 29 of Moral Panics .., you write

The response of the heads of these companies to the youthful rebellion of democratizing content on the Internet has been that of may parents worldwide: to fight against the present, to try to ban the future, and to punish those audacious enough to challenge the status quo. The Copyright Wars are a fight against our own children, and it is a fight that says everything about adults and very little about the children.

As a father who purchases lots of books, films, and music for your children — and as a scholar who has objected to “educational” initiatives geared toward children like “Kopyright Kids” and “Captain Copyright” — what conversations do you have with your children about copyright and what their relationship is, or should be, with protected works?

Patry: I think parents have a great deal of responsibility, really the primary responsibility, which should be exercised both by example and by ensuring their kids act responsibly.

Dames: If you had one resource to recommend to your children to teach them about copyright, what would it be?

Patry: Creating something themselves and figuring out how they wanted it used by others online.

Dames: In Moral Panics …, you talk a lot about the consumer, the purchaser, and the end user and their relationship (or lack of relationship) with copyright law. Historically, copyright law and policy in the United States have been debated and discussed in a way that presumes the sole affected audience is large, corporate copyright owners, and you and University of Michigan law profession Jessica Litman have written about the legislative process that goes into making copyright legislation. Further, you have written about the current national copyright reform conversation occurring in Canada. What elements or conditions do you believe would need to exist in the United States so that a similar conversation or reform effort may occur?

Patry: I think that Michael Geist in Canada has shown the short of grassroots movement that is effective, and I think technology companies need to educate policymakers about what they do, in detail.

Dames: What issues are not addressed in the book that you wish you had addressed?

Patry: There are two: Marissa Mayer‘s theory of the atomic unit of consumption [.pdf], and the discsussion by Gwenyth Jackaway in her 1995 book called Media at War: Radio’s Challenge to the Newspapers, 1924-1939. (See Slate article.) Her book is a great example of what I am talking about in a different era.

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Written by Dr. K Matthew Dames

09/02/2009 at 08:30

Posted in Research

Is Creative Commons Good for Copyright?

One of the beauties and frustrations of dealing with issues online is the immediate feedback loop and the possibility that such a loop amounts to little more than people talking at each other, rather than with each other. We experienced this last week, when we posted the following thoughts to our Twitter account (@copycense):

Empirical question: how much is it worth in publicity, goodwill for creator to use Creative Commons license vs. copyright registration?

Empirical question: How many creators involved in the arts actually take the time to learn copyright basics? How do they do it?

Empirical question: If creators don’t understand basic copyright, how can they reasonably distinguish between copyright & Creative Commons?

Would energy behind CC be applied better to calibrating U.S. Copyright Act of 1976 to be more neutral to citizen creators? (See Canada)

This chain of thoughts began while we watched a talk by filmmaker and cartoonist Nina Paley, whose film Sita Sings the Blues has become a “copyleft” cause célèbre. Film critic Roger Ebert, for example, has gushed praise on the film. Techdirt’s Michael Masnick has followed and railed against Paley’s plight. Paley, too, has been active in talking about her copyright clearance plight on her blog. The confluence of events has created an environment wherein another creator is held captive by copyright considerations. In this way, Paley has become the film equivalent of Girl Talk’s Gregg Gillis: all they want to do as citizens is clear rights easily and create.

The subtext of all this, of course, is “Why is this copyright stuff interfering with what I want to do?” In this vein, we continue to find amusing and interesting the how selective concern about copyright clearance, remixing, and related issues can be. It’s as if there are certain artists and works for whom copyright issues are real and significant, but other artists and works for whom the same issues either are not real, or unworthy of discussion. But we’ve already addressed this issue.

Typically, we use Copycense’s Twitter account as a news feed: it is quick, concise, and serves that purpose well. Occasionally, we post questions or thoughts to the feed, but usually expand on such questions or thoughts by writing on Copycense’s FriendFeed account. Regretfully, we did not do so with any of the four questions mentioned above.

A number of interesting responses ensued. Robert Richards of the Legal Informatics Blog (@richards1000) questioned the preemption responses we gave, in which we attempted to explain our theory that license contracts — and not copyright — may be the dominant legal regime in a digital information ecosystem. Then, a representative from Free Government Information (@freegovinfo) questioned our assertion that a Creative Commons license is an alternative to copyright; he opined CC works “on top of copyright.”

Mind you, all this dialogue was occurring as each of us were posting separate items on wholly different issues on our respective Twitter accounts. Given the way Twitter works, it is difficult to reconstruct the exact timeline of the posts, which would help the contextual understanding.

Instead of continuing to debate relatively complex ideas within the vacuum of 140-character limited posts, we have decided to address several of these issues here in a more expansive manner. Thus, this article will discuss preemption in copyright law, and why we feel that concept establishes license contracts as the dominant legal regime in digital and online software and services. We also will respond to our own aforementioned questions about Creative Commons licenses, and their role within the legal sector of the digital information ecosystem.

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Written by Copycense Editorial

08/31/2009 at 08:30

Posted in Uncategorized

Copycense: The William Patry Interview (2006)

Editor’s Note: William F. Patry has a new book out entitled Moral Panics & The Copyright Wars (2009, Oxford University Press) [Amazon.com; Barnes & Noble; author’s book blog]. Patry, one of this nation’s foremost authorities on copyright, also is the author of the eight-volume treatise Patry on Copyright and serves as the senior copyright counsel for Google, Inc.

Copycense executive editor K. Matthew Dames interviewed Patry in late 2006; the interview was published in June 2007, the same year West Publishing released Patry on Copyright. Since then, West has republished Patry’s book on fair use, Patry on Fair Use.

Here, we republish the interview between Dames and Patry in its entirety on Copycense for the first time, updating where appropriate and adding new, previously unpublished material from the original 2006 transcript. Links to entries in Patry’s now retired blog, The Patry Copyright Blog, are made where appropriate. Copycense has arranged to interview Patry again about Moral Panics; that interview will occur and be published soon.

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Written by Dr. K Matthew Dames

08/11/2009 at 04:00

Posted in Research

Your Copyright Responsibility As a Citizen

We have been extraordinarily busy lately, and therefore have yet to write on important issues like the Amazon Kindle situation. Yet, we felt compelled to write this entry after two occurrences over the past four days.

In the first situation, several of the participants thanked us for leading a recent copyright training session. While doing so, many participants commented they felt our education session was useful because it was the first session they ever had attended in which the session leader actually required them to read relevant portions of the Copyright Act of 1976. It is hard to fathom how one could teach copyright without reviewing the statute. In fact, we never write a post here on Copycense without having a browser tab open to the U.S. Copyright Office’s official version of the law.

In the second situation, we were reviewing our sources, first comments to a copyright-related Techdirt post; then a post from Ben Sheffner, the editor of the Copyrights & Campaigns blog. Sheffner, who has done a fine and professional job covering the Jammie Thomas-Rasset and Joel Tenenbaum copyright infringement trials, opened his post by writing the following:

On the Internet, (almost) everyone hates copyright. In fact that’s one of the reasons I started this blog. Every day, for years, I would read about how copyright is stupid, outmoded, destructive, and downright evil. But I knew that the ‘law’ I would read about bore scant resemblance to the actual law, and the way that businesses that earn revenue from production and exploitation of copyrighted works actually function. And I knew that not everyone harbored such vitriol and venom for the copyright owners, who routinely win major victories in the courts and the political arena.

After these two incidents, we thought that one reason so much misinformation (and even disinformation) exists about copyright is because too few ever have actually read the statute.

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Written by Copycense Editorial

08/07/2009 at 12:30

Posted in Uncategorized

Two Years Later, We Still Cannot “Free Jammie”

In October 2007, we wrote in these digital pages an article entitled “Should We Still ‘Free Jammie’?” The article’s title referred to a then-existing campaign to elevate Jammie Thomas-Rasset (then Jammie Thomas) to political prisoner status because she lost at trial after being sued by several record companies for copyright infringement.

The core issues in Thomas-Rasset’s second trial, which concluded last month, were substantially similar to those litigated in her first trial as defendant, in which a federal jury found her liable for copyright infringement, and awarded the copyright-owning record companies $222,000 in damages. At the time, we questioned whether the “Free Jammie” campaign was appropriate, given the facts of the case and Ms. Thomas-Rasset’s reported appellate strategy:

Technology publication ArsTechnica is reporting that Jammie Thomas’ appellate strategy will be to question the damages award first, leaving to a later date the broader (and arguably more important) issue of whether or not “making available” files violates the reproduction and distribution rights in Section 106. Ars reports that if the court decides against granting a new trial, Thomas would have 30 days to appeal the original verdict, and she could use that opportunity to argue against the “making available” doctrine, which the judge conveyed in jury instructions.

William Patry has observed that he would be “stunned if there is any room for overturning the award. There is doubt that any award within the permissible range, even the tippy-top, is subject to review. I think there may well be cases where a damage award may be constitutionally flawed, but this is not one of them.”

Still, since Thomas currently is responsible for more than $200,000 in statutory copyright infringement damages, there is little surprise that she would look to reduce that figure. The strategy, however, smells like an unfortunate case of CYA and seems narrow considering the broader stakes at hand.

Thomas and her counsel certainly knew this case would be a high profile matter, but both also had to know this case would have a significant effect on the substance and interpretation of copyright law. It is reasonable to expect any party in litigation to do only what is best for their personal and legal interests. Likewise, attorneys have an obligation to work primarily in their clients’ best interests. But in light of the context, it also seems reasonable for those interested in copyright to expect the litigants in these high profile, important cases to recognize the cases’ legal and societal issues and attempt to resolve such issues, while continuing to do what is best for the client.

The more we dig into this case, the more likely we are to conclude that Thomas was the wrong defendant to support in the wrong case. A five-minute deliberation on liability indicates Thomas’ liability never was in doubt. That fact alone suggests Thomas (as well as proponents for balanced copyright) would have been much better off had she settled for $3,000.

Good party or no, good facts or no, Thomas now is in the belly of the beast, but in ways much more significant than the $220,000 in damages she must pay. This verdict will embolden the music industry to continue its ridiculous litigation campaign; at a minimum, focusing on continuing the campaign likely will keep the industry from making the fundamental business changes it needs to make in order to provide valuable services to consumers in a vastly changed business environment. No one wins in this arrangement.

We were willing to go along with the “Free Jammie” ride so long as she and her legal team recognize they have a responsibility to litigate and resolve the broader, more significant policy issues — particularly this issue of “making available” being made a de facto seventh exclusive right in Section 106.

But if Thomas and her legal team are unable or unwilling to make a legitimate attempt to resolve this and similar broader policy issues, we cannot continue to support their cause because it seems there is no doubt she committed widescale copyright infringement and her appeal seems confined to soothe the sting of what seems to be a sound, if harsh, penalty. We would much rather support [defendants] like Tanya Anderson, who is much more the victim of RIAA’s overly aggressive and flawed litigation tactics than Thomas seems to be.

Ms. Thomas-Rasset ended up getting a reprieve, as a federal judge vacated the first jury’s verdict because of an errant jury instruction. At the time, William Patry opined that he failed to see where the $222,000 verdict could be overturned on constitutional grounds. Ms. Thomas-Rasset refused to settle the case with RIAA, leading to a retrial that occurred last month.

In the second trial, a second federal jury determined that Ms. Thomas-Rasset committed copyright infringement by downloading 24 songs onto a personal computer over which she had control (or to which she had access). The second jury then awarded the copyright owning music companies $1.92 million in willful infringement damages per Section 504(c)(2). In the wake of this second verdict — in which the jury took only five hours to deliberate (compared to five minutes in the first trial) — much of the commentary has been about potential backlash against the recording industry, the recording industry’s “capacity for evil,” and the “scapegoating” of Ms. Thomas-Rasset.

What? Are you kidding us?

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Written by Copycense Editorial

07/02/2009 at 11:00

Posted in Uncategorized

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