COPYCENSE

As our regular readers know, CopyCense has been on break for most of this month. We will return soon, however, publishing again on Tuesday, September 5.

While we were away, we have picked up quite a few new subscribers. (Now that’s odd: we don’t write for most of the month, yet we gain readership. Hmmm.) To those new subscribers, we say “Welcome.” And as always, to our faithful subscribers and readers, we say thank you.

Back on Tuesday, Sept. 5.

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

As our regular readers know, CopyCense has been on break for most of this month. We will return soon, however, publishing again on Tuesday, September 5.

While we were away, we have picked up quite a few new subscribers. (Now that’s odd: we don’t write for most of the month, yet we gain readership. Hmmm.) To those new subscribers, we say “Welcome.” And as always, to our faithful subscribers and readers, we say thank you.

Back on Tuesday, Sept. 5.

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

We have just discovered that our domain name — copycense.com — has been masked or hijacked in order to send unauthorized spam. While we are not the source of this intrusion, we feel compelled to apologize for the inconvenience.

As of right now, we have discovered that the spam is coming from the following e-mail addresses:

• uncinct@copycense.com (No name)
• podolian@copycense.com (Name: Karin Hayes)
• lulling@copycense.com (Name: Merna Price)
• spitballer@copycense.com (Name: Margi Holmes)

To reiterate, no one at CopyCense or the copycense.com domain has sent email out to anyone during the months of July 2006 and August 2006. We are working with our domain registrar to resolve the situation.

Again, we regret the inconvenience this has caused, and are fervently working on resolving this issue. We ask your patience, and will publish an update as soon as we have new news.

K. Matthew Dames

Executive Editor

CopyCense

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

This snippet from the Washington Post was so interesting I had to drop in an offer a comment:

“Allan Adler, the vice president for legal and government affairs for the Association of American Publishers, [shakes] his head at what he sees as the breathtaking arrogance of” Google’s Book Search project.

A bit of context here is in order. The quote comes from an article published in yesterday’s Washington Post, sort of an update on the Google Book Search project. As is the case with this issue, the Post predictably interviews all the usual suspects: including Google executives (who won’t talk about the project because of its proprietary nature, yet still manage to talk about it to keep the project in the press); and publishing industry flaks (all of whom talk about how great Google Book Search would be if only Google would ask permission to digitize the works).

We are amused for several reasons. First of all, this story has no news value. It is a “we haven’t run anything on this topic, and it’s a slow news week for everything except the airport and the Lebanon crises, so let’s do an update” story. Second, nothing new has been added to this story.

But the kicker is Allan Adler, of all folks, being characterized as miffed because somebody didn’t bow down, kiss his ring, and ask permission before doing something with the work of one of his clients. Maybe the 15 or so exceptions to copyright actually do mean something after all.

Adler calling Google arrogant is really the pot calling the kettle black. Since I first was introduced to him at an American Association of Law Libraries annual conference some years ago, Adler and his Big Content mates have acted like arrogant, dismissive people who expect that libraries, among other institutions, have a duty to protect publishers (and their profit margins) from being made extinct by Web-based technologies and flat world evolution.

Now Adler and his cronies face an opponent that has the money and public relations capital to rebut their public relations campaign to instill what Lawrence Lessig calls “permission culture.” Further, Google arguably is more important to the domestic and global economy than any single publisher. Google’s impact and influence globally is a factor that may not get argued in a legal brief, but certainly will influence the decisionmaking process of a judge or jury.

“Breathtaking arrogance”? Mr. Adler, we’re glad you’ve noticed the attitude. I just wish libraries would adopt more of that attitude as well.

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

The lazy, hazy days of summer are upon us, and we, too, have decided to find some shade. Due to vacation, CopyCense is taking a publication break for a few weeks commencing Monday, July 31.

Throughout August, we will have a guest writer occasionally post a new edition of CopyCense Clippings (beta) so that our readers can stay up to date on any really important stories. And as always, our archives will remain open to the public.

We will resume our normal publication schedule on Monday, August 28.

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

CopyCense Clppings: Week of July 24, 2006

This week, we’re introducing two new components to CopyCense Clippings: an Article of the Week and a Quote of the Week. Our first AOTW goes to the Web site Defective by Design, which published an interview with New York attorney Ray Beckerman; while our first QOTW goes to Washington Post business columnist Steven Pearlstein for his withering critique of Big Music.

Article of the Week

Defective by Design. Transcript of Ray Beckerman Talking About the RIAA Law Suits. July 20, 2006. A great interview with one of the few attorneys who is willing to represent citizens against the RIAA. Beckerman discusses what the process is like, and gives a bit more credence to our contention that these Luddite judges know nothing about the technologies that support today’s digital environment, and therefore should not be allowed to decide on these cases until they do. (Audio also available.)

Quote of the Week

Steven Pearlstein. A Sound Marketplace For Recorded Music. WashingtonPost.com. July 19, 2006. Pearlstein scorches Big Music’s resistance to TiVo-like devices. And this is a killer lead (especially from a business columnist, most of whom are rabidly pro-industry): “Here in Washington, there is nothing more amusing than watching business interests work themselves up into a righteous frenzy over a threat to their monopoly profits from a new technology or some upstart with a different business model. Invariably, the monopolists (or their first cousins, the oligopolists) try to present themselves as champions of the consumer, or defenders of a level playing field, as if they hadn’t become ridiculously rich by sticking it to consumers and enjoying years in which the playing field was tilted to their advantage.”

Clippings

• Electronic Frontier Foundation. Frequently Awkward Questions for the Entertainment Industry. No date. A new FAQ for Big Content that pushes beyond their public relations frame. Some of the questions allow for a little more wiggle room than we would allow. But others (such as “The RIAA has sued over 20,000 music fans for file sharing, who have on average paid a $3,750 settlement. That’s over $75,000,000. Has any money collected from your lawsuits gone to pay actual artists? Where’s all that money going?”) are right on point.
• Antony Bruno. Zune Gets In the Ring. Billboard. July 29, 2006. Courtesy of Ars Technica, it is confirmed that Microsoft wants to compete directly with Apple on the iPod’s turf.
• Randy Dotinga. Mr. Comics Talks Comics. Wired News. July 21, 2006. Superman. Spider Man. X-Men. The Incredible Hulk. All of these characters have made it to the big screen over the past decade, pointing to the growth of the comic book character. Scott McCloud talks about the development of the comic book character, and trends to look for.
• EFF Deep Links. Digital Copyright Showdown in P10 v. Google. July 21, 2006. EFF provides a summary of its position in Google’s appeal of a February district court decision against it earlier this year, including a brief (.pdf) it filed on behalf of it and the Library Copyright Alliance supporting Google in its appeal to the Ninth Circuit.
• Peter Wayner. Technology Rewrites the Book. The New York Times. July 20, 2006. Print-on-demand continues its inexorable march toward legitimacy.
• Kelefa Sanneh. Mixtapes Mix In the Marketing That Fuels the Hip-Hop Industry. The New York Times. July 20, 2006. It seems after years of lucrative anonymity, mixtapes have become a fascination for the mainstream press. But the mixtape phenomenon points to another issue: if there is such a demand for these items, and they cannot be sold legally because of copyright restrictions, might it be time to rethink the rights-exceptions balance?
• Stan Gibson. Is India Losing Its Wage Edge? eWeek. July 20, 2006. At some point, even a flat world becomes more expensive.
• Deborah Rothberg. Geeks Versus Suits: The Great Boardroom Schism. eWeek. July 20, 2006. This problem has been going on for so long. We wonder if other countries — like, the ones the U.S. is “competing” against — have the same problem.
• Douglas Heingartner. Maybe We Should Leave That Up to the Computer. The New York Times. July 18, 2006. So it seems that that managers can be replaced by mathematical decision making models, says a Dutch sociologist. Junk science or more evidence that the world is flat?
• Ars Technica. Hacking Digital Rights Management. July 18, 2006. “We’re going to revisit the history of the most famous DRM cracks.”
• Juan Carlos Perez. AFP: Google News’ Indexing Boosts Case. InfoWorld. July 18, 2006. One of the things that has to happen in a flattened world is a quicker disposition of cases, particularly technology cases. Agence France Presse’s copyright infringement lawsuit against Google was filed in March 2005. Yet 15 months later, the case has not come to any sort of resolution. The issues in the case are too important to drag on undecided for years on end. This InfoWorld piece provides an update.
• Listening Post. YouTube’s ‘New’ Terms Still Fleece Musicians. July 18, 2006. Before you upload, read.
• Keith Bradsher. Dare Violate a Copyright in Hong Kong? A Boy Scout May Be Watching Online. The New York Times. July 18, 2006. Big Content has already started a campaign to recruit youngsters that perpetuate its narrow vision of copyright, complete with “training” and “education” at the primary school level. Be afraid; be very afraid.
• The University of Chicago Law School Faculty Blog. The Next Video Machine? July 17, 2006. An interesting post on the copyright ramifications of video storing and sharing by Chicago law professor Randy Picker.
• Freedom to Tinker. Taking Stevens Seriously. July 17, 2006. Princeton professor Edward Felten has a more measured reaction to Sen. Ted Stevens’ remarks about net neutrality.
• BusinessWeek Online. The Dude Tube. July 17, 2006. Instead of video games, now we have television programming devoted to watching others play video games.
• Greg Sandoval. Movielink To Allow Movies Transferred to DVDs. News.com. July 16, 2006. OK, let’s get this straight, Movielink (a joint venture of MGM, Paramount, Sony Pictures, Universal Studios and Warner Bros., which effectively is the film arm of Big Content) now wants us to believe that it will let us burn movies we download onto our computer — after which we can burn that movie onto DVD. But in burning the DVD, we will download copy protection onto the medium. After the Sony BMG rootkit scandal, Big Content has absolutely no credibility when it comes to implementing digital rights management. And, as far as we’re concerned, it lost any good faith that it would act fair or evenhanded concerning DRM.
• Amanda Termen. Where Indie Music Meets Mainstream Media. News.com. July 14, 2006. Dance artist Moby showed how an independent artist could develop a career out of pitching music directly to marketers. Hopefully Pump Audio can fairly and substantively help other indies get their music before marketers as well, since it’s clear that licensing may be one of the few reliable forms of royalty revenue a musician is likely to see these days.
• Reuters. No Quick Fix for Government Data Security. News.com. July 14, 2006. This sentence sums it all up: “slipshod handling of data and equipment, poor training and the slow moving government bureaucracy are seen as the main causes of vulnerability.”
• Mike Ricciuti. Microsoft to Google: Hands Off Enterprise Search. News.com. July 13, 2006. One of the things we will miss about discontinuing our sister publication Search & Text Mining Report is no longer covering the battle royale between Microsoft and Google. It’s always amusing to see nerds get into intellectual catfights while beating their chests over who has the superior technology. Can you say “We must protect this house!!!”
• Tom Jacobs. Learning From the French iTunes Legislation. News.com. July 12, 2006. Sun Labs’ engineering director opines on how the French government should have handled the iTunes interoperability issue.
• Shannon P. Duffy. Copyright Fever: Battle Over ‘Disco Inferno’ Rages. The Legal Intelligencer. July 12, 2006. From a music catalog that was purchased recently for nearly $43 million, The Trampps’ classic is that catalog’s fourth-highest revenue generator, according to the story. Who said disco died in Comiskey Park?
• Knowledge@Wharton. The Market Is Hot, but Business Models Are Fuzzy. July 12, 2006. U. Penn’s business school weighs in on the video hosting and sharing business.
• Greg Sandoval. BitTorrent Inks Licensing Deal With Studios. News.com. July 10, 2006. Was this Big Content’s plan all along: threaten (or actually sue) every new technology company known to mankind — effectively halting their growth and innovation — then use the intervening time to do due diligence with an eye toward acquisition or partnership? Also, see Sandoval’s subsequent article on what this means for file sharing companies and Big Film.
• Associated Press. Japan Court Rejects Paramount’s Request to Halt Sales of Cheap DVDs. SiliconValley.com. July 11, 2006. Big Film already has contorted the public domain in America when it got Congress to pass the Copyright Term Extension Act (which the Supreme Court allowed with a punt of a decision in Eldred v. Ashcroft). It should be no surprise, then, that Big Film would look to circumvent public domain elsewhere as well.
• Marguerite Reardon. Vonage Sued for Patent Infringement–Again. News.com. July 10, 2006. Football pool season is approaching. How about we add this to the line: 3-to-1 that Vonage doesn’t make it out of 2007 with its independence in tact? It’s clear that VoIP will make it, but Vonage is having capitalization problems because its IPO tanked. And it faces at least two lawsuits over patent infringement. Neither are good signs for longevity.
• Center for Democracy & Technology. CDT Offers Interpretation of Grokster Decision. (.pdf) June 28, 2006. Clearly, we just missed this one. An interesting read published in the Stanford Technology Law Review.

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

CopyCense Clippings: Week of July 17, 2006

• Jessi Hempel. Friendster’s Patent Possibilities. BusinessWeek Online. July 14, 2006. When Friendster gets a patent on social networking (No. 7,069,308), it’s a sign it has gone completely establishment. (The back story on how this came to be also is available online.) And of course, others are rushing to claim they already have a separate patent in this space. How can one patent personal connections and contacts?
• Marguerite Reardon. Skype Protocol Cracked? News.com. July 14, 2006. Chinese engineers apparently have reverse engineering the Skype VoIP code, potentially cheating the eBay division out of a huge market. Where’s the DMCA when you really need it?
• Renee Boucher Ferguson. U.S. Senators Launch RFID Caucus. eWeek. July 14, 2006. Thought RFID was dead? Think again. Wal-Mart has made a sizable investment in the technology, which means much of American retail already has followed that lead (or will soon). But if these sessions contain nonsensical babble along the lines of what we heard recently from Sen. Ted Stevens, we’re all better off just getting the presentation directly from Wal-Mart executives. They’d have a better shot at explaining the technology than some of these Luddite members of Congress.
• Red Herring. Gracenote Frees Lyrics. July 13, 2006. Gracenote, the company responsible for the CDDB database that grabs track and album titles from the Internet whenever you play a CD, has contracted with several music publishers to let the company provide commercial song lyric services over the Internet. We wonder what will happen to sites like pearLyrics? Further, Ars Technica asks a great question: particularly in light of this deal, how does fair use apply to song lyrics?
• Ars Technica. RIAA Loses In File Sharing Case. July 13, 2006. … And Big Music has to pay plaintiff’s attorneys fees, too. How about them apples?
• Ryan Singell. MySpace Kills Internet Tube Song. Wired News. July, 13, 2006. Senator Gone Wild site pulled from YouTube, then mysteriously reinstated, with the Rupert Murdoch-owned site claiming it erroneously invoked a Section 512 DMCA takedown. WashingtonPost.com‘s Frank Ahrens does a nice job of parsing out this one as well. Should we have technology-ignorant individuals heading committees that determine legislation about the Internet? We actually advocate that copyright and other technology law matters be adjudicated by a special court by judges with special training and background, since it is so evident that too many judges and Congressman simply have no clue about the technology they’ve affected with damaging court decisions and half-baked legislation.
• Elinor Mills. Google Joins OpenDocument Group. News.com. July 12, 2006. More evidence that OpenDocument is gaining steam.
• Ed Foster. A License to Audit. InfoWorld. July 11, 2006. The venerable Ed Foster looks at software audits, how software companies decide on when to have them, and how they effect software buyers.
• Los Angeles Times Editorial Board. We Aren’t All Pirates. LATimes.com. July 10, 2006. With increasing regularity, the Los Angeles Times has been skewering Big Entertainment over its copyright policies, legislation, and business practices. In fact several of the comments have been posted by the paper’s Editorial Board, which is shocking — yet refreshing — for the largest paper in Hollywood’s hometown.
• Fred von Lohmann. YouTube’s Balancing Act: Making Money, Not Enemies. The Hollywood Reporter Esq. July 10, 2006. EFF’s senior lawyer on the copyright implications of YouTube.
• Eric Lai. Microsoft Shifts ODF Stance. Computerworld. July 10, 2006. If you’re an information professional and you haven’t been following the OpenXML/OpenDocument tiff, shame on you. All that’s at stake is the continued move of applications from the desktop to the Web. This is Web 2.0.
• Charles Cooper. Have Patent, Will Sue. News.com. July 10, 2006. Never heard of Acacia? Neither had we until we read this story. Apparently, it’s the alleged patent “trolls” we haven’t heard of that can be the most dangerous.
• BusinessWeek Online. So Much Fanfare, So Few Hits. July 10, 2006. What happens or is delivered after the buzz of a new, non-search Google offering dissipates? BusinessWeek answers “surprisingly little.”
• Roger Vincent. ‘Sanitizers’ of Home Video Lose in Court. LATimes.com. July 10, 2006. When YouTube started out, several writers commented about how the service would never get big because much of the video being posted was from Big Content, and therefore subject to copyright claims and potentially expensive litigation. From a legal standpoint, they said, it was a legal slam dunk. Curiously, the same conclusion wasn’t made when it was discovered that CleanFlicks and other businesses were making unauthorized derivative works out of the existing movies. The federal court opinion (.pdf) confirms the apparent.
• Declan McCullagh. FBI Plans New Net-Tapping Push. News.com. July 7, 2006. It seems data retention (and surrender) isn’t enough for the Feds. Now they’re seeking to require ISPs to create wiretapping hubs for surveillance and force makers of networking gear to build in backdoors for eavesdropping. And where, exactly, is Congress? Have we completely surrendered the notion of “checks and balances”?
• Kane Farabaugh. Atlanta Group Buys Martin Luther King, Jr. Archives. VOA News.com. July 3, 2006. The other shoe drops on the King papers auction, and the collection will not be sold by Sotheby’s for the estimated $15 to $30 million. Instead, the collection was purchased by a group of Atlanta leaders, including Mayor Shirley Franklin and former Mayor Andrew Young for $32 million. The collection will be housed at Morehouse College in Atlanta, King’s alma mater. Apparently, the sale hasn’t quieted a longstanding debate over copyright to that collection, particularly since it seems that copyright to the papers remains with the King family, which has been aggressive in foreclosing all unexcepted uses (including quotations) that don’t involve a license fee. Also, here’s an irony: Morehouse is part of a consortium of colleges called the Atlanta University Center (AUC). One of the member colleges of this consortium, Clark Atlanta University, ran one of the Southeast’s best known graduate library science programs until it closed in 2005. Now, neither AUC nor the Atlanta region has graduates from a nearby accredited library science school from which it can get archivists to preserve the King collection. (For a further examination of the Clark library school closing, please see Risa Mulligan’s paper.)

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