Copycense Weekly Review (through Dec. 10, 2011)

Copycense social media posts on copyright, communications, intellectual property and the media industries from December 4 through December 10, 2011.

  • Dec. 10 is Human Rights Day. Sec. Clinton on Internet freedom vs ICE seizures #copyright
  • Dec. 10 is Human Rights Day. Re: human rights & IP: UNESCO UNDHR, Art. 27 #copyright
  • Audio Drylongso: Former slaves tell their stories (via LoC): | Coverage: /HT @LawandLit
  • “For Chinese netizens, #SOPA is another great firewall” /HT @onthemedia #copyright
  • Ice Cube draws parallels between sampling and … Eames architecture?!?!? /HT @NewBlackMan | Straight boulevois
  • LOC: Digitizing & making pre-1978 @CopyrightOffice records more accessible
  • “Viacom’s lawsuit vs. Google showed studio reps surreptitiously uploaded clips … for promotional purposes” #copyright
  • RE UNESCO? UNDHR, Art. 27? #copyright
  • “This truth should be self-evident: Human rights should never be subjugated to #copyright”
  • Does red herring of tech vs. Hollywood move so-called #copyright “wars” to Defcon 2?
  • MPAA chairman slams Google over its PIPA/SOPA opposition /HT @robinhoover #copyright
  • RE … Is another salvo in the “Tech is killing #copyright” meme in the air lately
  • RE Industry verification the “culture industries” sell units, not culture #copyright
  • Music publishers’ association president: #SOPA needed to protect digital marketplace #copyright
  • “Watering down” #SOPA begins | I’m all in as of Nov. 28 #copyright
  • Outstanding reporting by @mmasnick on the Dajaz1 #domain seizure & due process problems #copyright
  • ESPN’s ® for its SportsCenter theme | Sound /HT @tm4smallbiz #trademark
  • Electronic Arts banning users from games for alleged forum comment violations #games
  • USA: Ad network not liable for #copyright Infringement in “For Dummies” e-book case
  • USA: Federal court rules pro-se blogger isn’t journalist; judgment is $2.5 million /HT @LloydJassin
  • Verizon to take on Netflix with video streaming service
  • Netflix chief: HBO Go is rival ‘we fear most’
  • ESPN reporter sues hotel, stalker for $10 million /HT @BizMediaLaw:#privacy
  • RE Official announcement UK coverage
  • RT @James_Gannon: Since when is the test for #copyright infringement “lost sales” and not “copying”?
  • “Cluetrain” author officially on the “Internet is ruining everything” bandwagon /HT @Shocklee
  • #SCOTUS cert petition in Wiley v. Kirtsaeng /HT @IPInBrief #copyright
  • Why the $2.99 e-book may signal “cheap” (Hint: Starbucks) #amwriting #books
  • @MPAA says SOPA/PIPA will have “changes” | Doubling down #copyright
  • EU investigating possible collusion between Apple, publishers in e-book market #amwriting
  • RT @CathyGellis: USA is barely more than 200 years old and already libraries and the post office are dying. Ben Franklin would be pissed.
  • @AmericanPublish joins @RIAA seek to file amicus brief in 9th Cir. RIghthaven case #copyright
  • Norweigan press boycotts Janet Jackson after singer’s photo ownership demands /HT @ArtistsRights #copyright
  • Paper: “Predicting Fair Use” #copyright
  • RT @rachaelvaughn: Matthew Sag speak about empirical fair use analysis; ~ 40% of district court cases find fair use #copyright
  • 10,000 tweets equals more than 450, 500-word blog posts | Reallocating writing time in 2012
  • RE Likely SOPA/PIPA related, then reframe convo to make well-funded tech cos. (instead of poor consumers) the devil
  • Per @robinhoover, anyone else in #copyright space notice preponderance of Hollywood v. Tech reporting in last 7-10 days? Fishy.
  • @robinhoover RE May have a point. Add Levine’s Free Ride book review Seems a coordinated effort
  • Napster closed Nov. 30; co-founder says Spotify follows Napster’s “original dream” (video) /HT @Shocklee #music
  • “Traditional media has historically done well by selling inefficiency.”
  • Economic “piracy” losses questioned, @MPAA subtly reframing to jobs lost, i.e. #copyright
  • RE Hollywood v. Tech is a sexy news story line, but there’s more synergy than difference #copyright
  • Piracy legislation pits Hollywood against Silicon Valley /HT @Cal_Lawyer
  • “There are indications that an exquisitely designed hardcover book can keep print sales high & cut into e-book sales”
  • Selling a book by its (intricately gilded) cover | Reminds me of past excitement over LP album covers #books
  • Chik-Fil-A sends C&D to Vermont who wants folks to “Eat More Kale” #trademark
  • Extra | USPS to close half of its mail processing centers; slower first class mail delivery times
  • RE No coincidence movie studios’ Ultraviolet move concurrent with SOPA/PIPA proposals #copyright
  • Will Hollywood’s ‘UltraViolet’ plan replace the DVD? | More format shift monetization #copyright #DRM
  • RT @lawgeeknz: Killing Michael Jackson gets max 4 years in prison; uploading MJ song under #SOPA gets max 5 years #copyright

Written by Copycense Editorial

12/10/2011 at 12:00

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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 [pdf]
  • Bikram’s at it again: sues former student for allegedly violating #copyright in hot yoga poses
  • Filmmakers seek to renew #DMCA anti-circumvention exemption for DVDs [pdf] #copyright
  • @CopyrightOffice digitizing 70 million+ images /HT @Clancco_ArtLaw
  • EU: E-book sales hampered by 25% tax
  • Workers use labor law to dispute disciplinary actions related to social media use /HT @sunil_abraham @PRC_Amber
  • RT @ARLpolicy: Library #Copyright Alliance comments on 1201 DRM exceptions: Blog summary to come!
  • Read this @jakonrath post | 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 [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
  • Tired of reading about #copyright hindering access to digital collections, when institutions don’t aggressively negotiate license contacts
  • “What would happen if all movie-downloading BitTorrent users made the switch to Netflix?” #copyright
  • RT @pranesh_prakash: European firms building their own #cloud services to avoid lax US data #privacy laws:
  • @primusluta RE Yeah, I looked twice at it; concluded “benefit of the doubt”
  • Kojo Nnamdi Show: Stopping Online #Piracy #copyright
  • McGruff the Crime Dog on “piracy” & knock-offs /HT @MPAA
  • How SOPA/PIPA Affects Your Small Business /HT @DanaNewman #copyright
  • BBC Click interview with Neelie Kroes spokeman on #copyright /HT @ArtistsRights
  • Scholarly press rents articles | No print, no download; straight cash, homie /HT @copyrightgirl
  • A +1 for @IDEALAW series interpreting common contract/ToS clauses
  • Why Uncle Sam wants to save T-Mobile from AT&T #mobile
  • USAG on “piracy”: “The public’s proactive attention … can help us to disrupt the sale of illegal goods”
  • @mmasnick interview with author (and former IP lawyer) Barry Eisler on #copyright, #SOPA
  • The tautolgy of #copyright law’s “irreparable harm” injunction standard
  • Cable companies seeking to charge extra for Netflix, Hulu streaming
  • RT @howardknopf: Samsung Defeats Apple-Sought Ban in Australia
  • Sci-fi author: Big 6 publishers cutting their own throats with e-book #DRM #amwriting #copyright
  • Lipitor loses #patent, goes generic /HT @BoothSweet
  • Net Neutrality Is Too Regulatory, but Stop Online Piracy Isn’t? #copyright #sopa
  • Economist: Redraft #SOPA more tightly #copyright
  • New @CopyrightOffice proposal [pdf] could put DMCA safe harbor at risk #copyright
  • Tom Moulton, the inventor of the remix, turns 71 today /HT @primusluta
  • Ray Bradbury relents, allows ‘Fahrenheit 451’ to become e-book /HT @LawandLit
  • Bronx tattoo artists say Fiat had no clearance for mural appearance in J-Lo ad /HT @howardknopf #copyright
  • Prediction: The #SOPA fallback will omit most egregious provisions, then pass in election year budget bill. Standard procedure #copyright

Written by Copycense Editorial

12/03/2011 at 12:00

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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) [; 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) [; 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

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