Links for 11/29/06

AllofMP3.com to Be Shut Down?
Reports have surfaced that American pressure will force the questionable Russian music site to be shut down.

Links for 11/27/2006

Supreme Court to Examine Patent Attainment
The Supreme Court is hearing the third case concerning the obviousness of patents.

Joi Ito - A Man of Many Hats
Mr. Ito is a technology visionary with a seat on the Creative Commons Board and jobs with Technorati and Six Apart Japan.

20% of Your DNA Is Not Yours

According to this Sunday's Parade Intelligence Report, "1/5 of your genes belong to someone else." Following the sequencing of the human genome, university labs and private firms have been granted patents giving them ownership over 20% of DNA. Other than just being creepy, why should you care?

• Labs can refuse to allow others to research a certain gene
• Owners are charging up to $3000 for life-saving genetic tests
• Uncertainty causes some scientists to avoid potentially important studies
• Some are refusing to report deaths caused by experimental research under the auspices of "trade secrets"

Michael Crichton, the award-winning author, will be using this subject for an upcoming book.

(Just a thought: Though I don't know much about tort law, what would the potential liability be for those who own the gene which causes, say, Alzheimer's disease? I think a successful wrongful death suit would stop this trend rather quickly...)

Digg This

No Copyright Extension in the UK

BBC is reporting that the extension sought by some content owners will be denied. The independent review has determined that copyright will continue to last for 50 years, not the 95 desired.

Perhaps the IPPR report influenced this decision.

Modernize the Law to Mirror Culture

The World Has Changed
The Internet has infiltrated every part of Western life – from commerce to friendships, from entertainment to school.

Out With the Old…
Traditional forms of media are suffering – newspapers cannot hold an audience, YouTube holds more sway than the networks and the masses are acting faster and faster.

…In With the New
Those who push the envelope – those who pave their own paths – are reaping the rewards.

Yet,
The firms with less and less importance have a powerful tool – Congress, which too often is oblivious to the changed world, receives millions of dollars from old media.

20^th Century Law
The paradigm shift of the Internet – which, by design, copies content – calls for a rethinking of intellectual property law.

Try the Other Direction, Sir
Continuing to expand copyright’s duration and scope, that is, continuing to progress in the same manner as before the Internet, threatens both the current opportunities and future possibilities afforded by the web.

Ch-ch-ch-changes
The copyright regime must continue to “promote the progress of Science and the useful Arts.” It will not due this in an environment where innovators are C&D’ed, students sued and artists silenced.

Property Formalities
A house needs a deed. A car is registered. Even other intellectual property, trademarks and patents, are approved before obtainment. Monopoly rights are not for everyone – let those who desire copyright register (choosing which rights to reserve); let the rest be free.

Embrace the Internet
Let future artists search a digital repository of all copyrighted works. Build a 21^st Century Library of Alexandria to not only archive the cumulative creativity of our society, but to inform people of the legal status of the works they encounter.

Spirit, not Letter
The “limited Times” for which the Constitution allows intellectual property must align with the intent of our Founding Fathers. Benjamin Franklin and Thomas Jefferson’s opposition to copyright was well catalogued, yet the minimum term of restriction today is longer than both of their lives. (As for the maximum length, it is greater than their lives combined).

Free to Create
Every innovation draws upon the innovations of the past. Every artist is influenced by another. In a world where distant inventions can be built upon in numerous places, the freedom to create must be preserved.

Free to Profit
In a marketplace which is expanding with the economics of abundance and globalization, the innovations of today have unprecedented economic possibilities, but only if their freedom to create is secured.

Kahle v. Gonzalez

The oral arguments before the 9th Circuit Court of Appeals were made November 13th. Lawrence Lessig argued on behalf of Brester Kahle who founded the Internet Archive.

In 2003, Eldred v. Ashcroft was decided by the Supreme Court. The Court said that extensions of copyright were not unconstitutional. At the same time, it was stated that a First Amendment problem might occur if copyright law experiences a particular change in "the contour" of history.

Kahle alleges that the change from having to register for copyright to automatic, default protection is a major change in the trends of intellectual property law. Since 100% of created works will now automatically be restricted, the plaintiffs believe that a significant threat to freedom of speech is present.

The oral arguments were posted here.

After listening, I fear a bad decision by the justices. Instead of focusing on Kahle and its First Amendment issues, the court seemed to be blinded by the government's smoke and mirrors. The lead justice repeatedly asks for the difference between Eldred and Kahle.

It is this: Eric Eldred challenged the extensions of copyright based on Clause 1, Section 8 of the Constitution which says intellectual property protection must last for "limited Times." Brewster Kahle challenges the change from opt-in copyright to opt-out copyright based on the First Amendment which stops the government from limiting free speech.

We can expect a decision in the coming months.

For more information from the lead counsel for the plaintiffs: this and this.

Links for 11/21/06

Lawrence Lessig on the Creative Commons' Developing Nation License
World Changing interviews the founder of CC about the possibilities CC affords to the third world.

Newsweek Covers the Growing Movement Against DRM
Defective by Design, a movement of the Free Software Foundation is gaining wide support.

CBS: Tiny Steps Towards Common Sense

A recent poll by CBS, which has been streaming some of its major shows at its website, gives data to support the obvious. More than 50% of online viewers had never seen the shows on TV, but many became fans.

So, let's break it down for the CBS executives:

1. Putting your shows online allows people to watch on their schedule.
   
2. Giving consumers the ability to watch your content on their schedule gives them more opportunity to see the shows.
3. More opportunities to see the shows means more people watching your show.
4. More people watching your show means more enjoying it.
5. More people enjoying your show means more people tuning in repeatedly.
6. More viewers (with loyalty) means more people watching you ads.

As Fred von Lohmann of the EFF says, every day iTunes succeeds, is a day piracy is harmed. To stop piracy give your customers the choices that a digital world enables.

Playing to Your Audience

Professor James Boyle of Duke, a leading supporter of copyright reform who I greatly respect, has an opinion piece in the Financial Times. The article, which addresses the proposed retroactive extension of copyright for sound recordings in the UK, draws a parallel between a more traditional medium of property (paintings) and the amorphous idea of intellectual property.

Prof. Boyle paints the following scenario:

"I hired an artist to paint a portrait. I offered $500. He agreed. We had a deal. He painted the painting. I liked it. I gave him the money. A few years later he returned. “You owe me another $450” he said."

The painter's reasoning behind the new charge is that in order to continue creating new works he must derive more profit from past creativity. That is, unless he is paid for the already created work, he will not be able to paint more.

According to Boyle, the recording industry in the UK is doing very much the same thing. By demanding continued payment from past songs, they are hoping to ride the wave of the classics in search of some new hits.

However, in my opinion, the analogy in the article is not fair. A contractual exchange occurred between the artist and buyer; at that point, the buyer owns the painting - the actual paints, wood frame and canvas.

What he doesn't own is the subject: the artist retains control of the right to paint the exact same painting in the future. What the artist also retains is the right to charge a higher fee for the new paintings with the same subject. In essence, that is what the recording industry in the UK wants to do - continue charging for new copies of already sold items.

Prof. Boyle's scenario is this: you buy a song from iTunes, then, after a few years, you are again billed for the song. This is not the current proposal (keyword: current; who knows what they'll try next).

The analogy, I suppose, still serves a purpose. The Financial Times' audience is not one with a fine understanding of intellectual property law. Appropriately, Boyle attempts to make copyright more mundane. If the slightly flawed painting analogy gives readers a reason (albeit a misunderstood one) as to why retroactive copyright extensions are harmful, than that is good.

Yet, with the influential audience of FT, I imagine a more practical, reasoned approach would have sufficed.

Copyright, as with other forms of IP, serve as an incentive to creators. The time, effort and capital necessary for innovation are rewarded by the exclusive right to provide your work to the world.

However, retroactive extensions, like the one proposed in the UK do no such thing. Extending the past works of Ian Anderson of Jethro Tull (a supporter of the plan) will not make him create more music from the '60s.

Furthermore, copyright is so lengthy already that significant economic studies indicate that further extension provides little financial incentive.

Extensions of the kind proposed in the UK are as nonsensical as copyright scholars would have you believe. I believe that if the readers of the Financial Times were presented with the economics and irrationality behind the proposition they would react more favorably.

Universal Music Sues MySpace

Universal Music Group (UMG), one of the five big music labels, has filed suit in federal court reports TechCrunch and the NYTimes. The claim alleges that the wildly popular social network MySpace, the company, induced the copyright infringement of the MySpace users by transcoding the music and video posted to the site.

Universal is turning out to be the most litigious of the RIAA members. In September, the CEO claimed that social networking sites owed his company "tens of millions of dollars." In addition, Universal recently sued the Sony-owned Grouper.com. Interestingly, Sony also owns a major record label (Sony BMG).

By suing MySpace and Grouper, Universal is pitting itself against two of the largest multinational corporations, News Corp. and Sony. Furthermore, they are testing important legal waters.

The MySpace case will most likely hinge on the DMCA "safe harbor" provision which allows internet service providers to be free from liability are they unaware of and do not promote copyright infringement.

Update: See TechMeme's round-up.

Highlight: Magnatune

Magnatune is a record label founded in 2003 by John Buckman whose motto, "We Are Not Evil", is reflected in all business practices.

Magnatune licenses all their tracks under Creative Commons licenses, but that isn't the only progressive thinking. Albums cost $5 dollars and songs are available in a variety of codecs and qualities (all DRM-free). In contrast to major labels where a CD sale results in pennies for the artist, Magnatune gives 50% of the money to the artists. In addition, Magnatune will allow you to re-download music if you ever lose it. Compared to the machine of iTunes, Magnatune is a human-friendly source for great music.

TechCrunch's Mike Arrington predicts that "if Magnatune can get even a single big artist to move to them, they’ll be on the map permanently, and the artist will make a lot more money."

While this might be true, Magnatune already has tons of great music including this great pianist, Rob Costlow.

In related news, founder Buckman recently joined the Creative Commons Board.

The Rising Dragon and Intellectual Property

UCLA's Asia Media has a nice article about the tense relationship China's booming economy and Western ideals of intellectual property.

Piracy in China is rampant. The entertainment industry estimates

"trade losses for U.S. copyright based industries in 2005 due to Chinese piracy amounted to $1.28 billion for business software, $589 million for entertainment software, $244 million for motion pictures and $204 million for records and music."

Historically, the Chinese government has done little to prevent copyright and patent infringement, but local media reports indicate a changing policy. This might be the result of recent pressure from WTO members including Europe, the USA and Japan.

The Asia Media column concludes saying,

"If China truly wants to become an innovation-oriented society... it will have to do better in protecting its own creators of intellectual property. Theft of intellectual property is not only bad for foreign companies -- it is bad for Chinese companies as well."

This argument runs counter to the rest of the story. There is currently little evidence of Chinese IP being pirated. Instead, the foreign brands are overwhelmingly targeted.

This trend mirrors another rising economic power more than 200 years ago - the United States. America was, as Professor Lessig says, "a pirate nation." It did not become a signatory to international IP agreements like the Berne Convention until more than 100 years after its inception.

Perhaps, the free access to innovation will allow the Chinese industries to prosper like America's did after pirating European culture.

A great summary of IP protection in China is available from Duke.

The Schizophrenic Distortions of an Industry

Here are two quotes:

"Fair use is an undeniably important plank of copyright law... A healthy and robust fair use doctrine is critical to us, since so much of what we create is built on the art that came before."

and

"Look, it's simple: Unless you get permission if the music you find on the web is owned by someone else, you can't share it, download it or copy it, period."

Both of these statements were made by the same organization: the Recording Industry Association of America. Yet, they take polar positions.

The first, published this week by the President of the RIAA, Cary Sherman, in an editorial on CNet, portrays the organization as pro-fair use. They are not.

The second is from a video created by the RIAA entitled "Campus Downloading" (see below). The fallacious statement throws the Copyright Act (and its fair use clause) out the window to scare college students into giving up their rights. This statement is closer to the actions of the RIAA.

RIAA and Fair Use

The RIAA has overwhelmingly fought fair use throughout its history. The insidious ways of crushing the right of all Americans are numerous but a few help illustrate the point:

• The RIAA has argued that copying your CDs to your iPod does not fall under fair use. Clearly, all consumers should repurchase all their music on iTunes if they want to listen on-the-go.
  
• The RIAA is currently trying to stop consumers from copying digital content to analog devices . As Arstechnica says, "Or, to simplify, any device that can record video will be illegal to import or purchase in a year, if it doesn't obey [the entertainment industry's] DRM." Can't have those pesky consumers using a TiVo.

So, why the change of tune? Mr. Sherman is terrified of a new coalition of technology companies which are advocating against the RIAA. No longer can the RIAA intimidate broke college students; now, they have to combat large organizations.

Remember, actions speak louder than words. But I guess that doesn't matter because the RIAA is both speaking and acting against fair use.

Watch the [scare-tactics-laden, fact-distorting] video:






Oh, and Mr. Propaganda, if you are going to be lecturing us, stop putting your headphones on... taking them off 5 times just looks silly.

New Copyrightings Feature

Copyrightings is going to begin to highlight great content which is freely available. This may take the form of an innovative service or interesting media, but it promises to be useful and free from restrictive copyrights.

Want to see something highlighted or have another idea for a feature? Let me know in the comments.

More Protectionist Nonsense

From the NY Times comes another story of how intellectual property is restricting artists.

Daniel Moore, a University of Alabama alum and father of two current students, is being sued for his paintings which depict scenes from Alabama football games.

"Mr. Moore’s paintings, reproduced in prints and on merchandise, violated the university’s trademark rights, the suit said. It asked a federal judge to forbid him to, among other things, use the university’s “famous crimson and white color scheme.”"

What trademark? According to the university's lawyers, the crimson and white color scheme depicted in Mr. Moore's paintings infringe upon the intellectual property of the school.

Schools have, in recent years, begun litigating to prevent fans from promoting the school. What is most shocking about this case is the reversal the University of Alabama has done. In the past, the school had provided sideline passes for Mr. Moore. Apparently, the thousands of dollars he has paid the school in tuition and the free promotion he has given doesn't equal the "damages" his work has done.

(Image from the NYTimes)

How Quickly we Forget...

The Chicago Tribune has a short story on the effects of copyright on musical compilations. An upcoming CD of some well known folk songs will not include Woody Guthrie's "This Land is your Land" due to its copyright status.

Because it is still protected, Guthrie's song would have, according to the Tribune, raised the cost of the final product 12%. So, instead of providing the most complete compilation of folk music, the editor, Bob Medich, will have to create a lesser product.

History, as is often the case, highlights the irony. Guthrie, like Walt Disney and many artists, had little patience for the restrictions of copyright. He even went so far as to sing,

"Anybody caught singin' (this song) without our permission, will be mighty good friends of our'n, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do."

However, Guthrie is dead and the rights are held by a body whose interest lies in profit, not folk music. So, like so much content, "This Land is your Land" will stagnate until it is liberated into the public domain.

Copyright Eased? Give me a Break...

Grouper, the online video site recently purchased by Sony, has made 100 clips from Sony films available online. The service, titled ScreenBites, allows (and encourages) anyone to share, republish and mash-up the clips.

Some, have called this a relaxing of copyright by the owners (Sony). In fact, this is nothing of the sort. Fair use clearly provides creators the right to use these clips with or without Sony permission. The only thing remarkable is that Sony is providing these clips (as pure marketing).

Fair use an essential right which is too often overlooked. So, readers, do make use of Sony's provided clips, but even more, make use of clips they keep locked in their vaults because the ability to build on the past is everyone's right.




For more information on fair use, click here.

Google Sued for Google Video

In its quarterly SEC filing yesterday, Google conceded that it is facing a lawsuit due to its Google Video service. Cited as a Risk Factor, Google acknowledged that

"Certain entities have also filed copyright claims against us, alleging that features of certain of our products and services, including Google Web Search, Google News, Google Video, Google Image Search, and Google Book Search, infringe their rights. In addition, our planned acquisition of YouTube may subject us to additional copyright claims upon the closing of the transaction."

The claims against the other services are well known, but the news of Google Video being sued is new. It is not clear how many suits have been filed nor by whom.

Google recently purchased YouTube, the most popular video sharing site. Both YouTube and Google Video have clips of copyrighted material available which may constitute a copyright violation. However, a provision of the Digital Millennium Copyright Act gives a "safe-harbor" to internet service providers who remove copyrighted material after notification.

Creative Commons Contest

Creative Commons, the free service which offers "Some Rights Reserved" licenses for your creative works, is holding its annual fundraising campaign. If unfettered access to media as varied as pictures, books, movies and songs is something you care about, consider donating.

A great way to support CC is through their new contest. Post your pictures of Creative Commons gear to Flickr for a chance to have a CC Board Member record your voice mail message and to see your picture on the postcards of CC.

Opening Education to All

Connexions, the growing collection of freely available educational material, recently received $1.7 million in funding from HP, reports ZDNet. Connexions is the work of Professor Baraniuk of Rice University.
Connexions is primarily a set of online tools to connect publishers, teachers and students, but it also has a Content Commons which is a repository for educational material freely available under a Creative Commons Attribution License.

Baraniuk spoke at the phenomenal TED Conference this past January and his speech on Connexions can be watched here.

Congressional Elections and Copyright Reform II

The Democrats have also taken control of the Senate by a 1 member majority. Like in the House, the Democratic ranking members will take over as chairs of the committees (in which most of the work is done in Congress).

Two relevant subcommittees exist for tackling the issue of copyright and the Internet. The first is the committee on Technology, Innovation and Competitiveness. The ranking member is John Kerry who has been fairly forward thinking in regards to net neutrality and copyright law.

During his Presidential bid, Kerry hinted that he might be willing to lessen the restrictions of the Digital Millennium Copyright Act (DMCA) which prevents backing up DVDs and most software. Kerry was reportedly "open to considering" revising the law to benefit consumers. ZDNet has an article from the 2004 election detailing his approach.

The other important change will take place in the Intellectual Property Subcommittee of the Judiciary Committee. There, Senator Leahy of Vermont will become the chair person. Sen. Leahy is known for sponsoring the INDUCE Act which targeted those who intentionally induce copyright.

There was widespread backlash when initially introduced as some technologists feared devices like the iPod might be in danger.

So, the Senate will be more of a mixed bag with Kerry and Leahy in possibly contrary positions.

Congressional Elections and Copyright Reform

In the wake of the Democratic win in the House of Representatives, some chairs will be rearranged. Democratic representatives will take over as chairmen of the House Committees. Of the committees most relevant to copyright in the digital age is the Internet and Intellectual Property Subcommittee which is currently chaired by Republican Lamar Smith of Texas. The ranking Democrat (and soon to be chairman) is the Honorable Howard Berman of California.

Mr. Berman, according to the National Journal, can be expected to support restrictive copyright and intellectual property laws. Representing the Los Angelos / Hollywood area, Berman will "protect his nearby Hollywood interests by cracking down on piracy and protecting against copyright infringement of TV, music and movie productions." In the past, he has supported legislation allowing copyright owners to "file blocking, redirections, spoofs and decoys" to fight piracy.

Furthermore, according to the independent site opensecrets.org,the top industries contributing to his campaigns are "TV/Music/Movies" and "Lawyers/Law Firms" - the two industries most interested in further expanding copyright.

Update: Techdirt has a great post on the same subject.

Copyright as a Wild West Metaphor

Boing Boing is pointing to a new book explaining copyright law through an extended metaphor of bounty hunters in the Wild West. As the author, Greg London, writes,

"This book introduces the metaphor of authors and inventors as Bounty Hunters. The public offers a bounty to any individual willing to create some as-yet-undiscovered work. Creators provide a "service" in the same vein as a Bounty Hunter provides a service of catching bad guys. Creators are rewarded for their service as a function of the labor put into it and the risk taken to be successful. The community sets the reward to be as low as possible but just high enough that a Bounty Hunter collects. Read about the metaphorical town of "Eureka" and see how the history of intellectual works fit within this metaphor."

Though I have yet to finish it, it is promising and unique so far. Buy the paperback here or read it online (under a CC Attribution License) here.

Is Google Book Search Fair Use?

In December of 2004, Google announced what would become the Google Book Search project. To enable Internet users to search inside books, Google planned to digitize the collections of major libraries and provide the material online, free of charge. Public domain works would be easily viewable while copyrighted material would have restrictions. Publishers and authors have sued to stop this service. Watch Prof. Lessig explain the intricacies of this potentially groundbreaking service:

Fair Use

In 1841, the Supreme Court heard the case of Folsom v. Marsh. Justice Story, in his decision, wrote that a derivative work may not be infringing if it is a "justifiable use of the original materials." This was the beginning of the doctrine of fair use which would come to serve as an important "gray zone" between copyrighted works and their use.

In 1970, this right was codified. Section 107 of the Copyright Act allows for the use of copyrighted material without consent for purposes of, among others, scholarship, criticism or reporting. However, the exemption is hardly well-defined. Congress provided four factors to consider in deciding whether or not a use is fair:

1. the purpose and character of the use, including whether such us is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
   

Fair use is what allows book reviewers to quote a novel or news programs to use other stations materials. It is essential to the global conversation on every topic: from politics to literature.

However, as mentioned above, fair use is not a clear-cut right. Often, a rights holder can scare an unknowing fair user with a cease and desist letter (see examples here).

Fair Use Resources:

Stanford University has an extensive resource guide for fair use.

The Copyright Office has a short page on fair use.

The Fair Use Network is an organization commit

American University (with the help of many others) wrote the Documentary Filmmakers' Statement of Best Practices in Fair Use which gives information which is relevant to more than just movie makers.

New Copyrightings Feature

With the wealth of information about Copyright being published everyday online, I have decided to whittle down the overload to the most important stories. On the left, you will be able to see my link list of new stories about copyright from around the net. Enjoy!