Recently in Copyright Category

J.K. Rowling testified this week in her lawsuit against the publisher of a book version of The Harry Potter Lexicon, Warner Bros. Entertainment Inc. v. RDR Books.

Mark Hamblett, New York law Journal: Harry Potter Author Fights Creator of Lexicon, Calling It 'Wholesale Theft': "In pointed and at times emotional testimony, Rowling employed a sharp tongue to charge that a Michigan publisher borrowed much from her wildly successful works and added nothing when it created a 'lexicon' alphabetically listing characters, places, spells, creatures and objects in the Potter series."

New York Times, Rowling Testifies Against Lexicon Author: "Ms. Rowling argued on Monday in Federal District Court in Manhattan that the proposed encyclopedia — she has read the manuscript — is a copyright infringement and is little more than an alphabetical form of plagiarism. She claims the author has lifted large chunks of her own language without quotation marks. ‘I believe that this book constitutes the wholesale theft of 17 years of my hard work,’ she testified."

Scrivener's Error Beware the Ides of April: "the reporting of the Harry Potter Lexicon case is only making clearer that Warner Brothers' trademark interests, far more than Rowling's copyright interests, are driving the lawsuit. Although Rowling's testimony yesterday was from a copyright holder/creator's perspective, the questions from plaintiffs' counsel — representing her interests — were from a trademark and dilution/disparagement/passing-off perspective, even when put in the formal language of copyright claims.

Derek Bambauer, Info/Law Harry Potter and the Lexicon of Fair Use: "I think the book infringes Rowling’s copyrights, that the use isn’t fair, that the trademark claim is weak, that the plaintiffs will win on the copyright claim, and that this outcome is a good thing."

Tim Wu, Slate.com: J.K. Rowling should lose her copyright lawsuit against the Harry Potter Lexicon: "But Rowling is overstepping her bounds. She has confused the adaptations of a work, which she does own, with discussion of her work, which she doesn't. Rowling owns both the original works themselves and any effort to adapt her book or characters to other media—films, computer games, and so on. Textually, the law gives her sway over any form in which her work may be 'recast, transformed, or adapted.' But she does not own discussion of her work—book reviews, literary criticism, or the fan guides that she's suing. The law has never allowed authors to exercise that much control over public discussion of their creations."

Mike Madison, Madisonian.net: A Fair Use Lexicon: "Over the last decade, copyright owners in many industries dreaded and resisted the prospect that the copying machine that we call ‘the Internet’ might destroy their business models.  Rowling v. RDR Books (the formal title of the Harry Potter case) presents the relatively uncommon situation in which the Internet (i.e., ‘free’) version of the alleged infringement was unobjectionable; hackles were raised and claims were filed only when what was merely digital became (or threatened to become) analog. "

Kevin Kelly ponders ways to think about moving to a new media world where the marginal cost of all copies drops to zero: Better Than Free: "When copies are super abundant, they become worthless. When copies are super abundant, stuff which can't be copied becomes scarce and valuable."

While AT&T is considering helping large copyright owners police infringements on its network, Verizon. The NYT Bits Blog reports, Verizon Rejects Hollywood’s Call to Aid Piracy Fight. Tom Tauke, Verizon’s executive vice president for public affairs offers three reasons why ISPs have no incentive to monitoring for copyright infringements:

"1) The slippery slope. Once you start going down the path of looking at the information going down the network, there are many that want you to play the role of policeman. Stop illegal gambling offshore. Stop pornography. Stop a whole array of other kinds of activities that some may think inappropriate. 2) It opens up potential liability for failing to block copyrighted work. When you look back at the history of copyright legislation, there has been an effort by Hollywood to pin the liability for copyright violations on the network that transmits the material. It is no secret they think we have deeper pockets than others and we are easy-to-find targets. 3) Privacy. Anything we do has to balance the need of copyright protection with the desire of customers for privacy."

Wired: Humorless Metalheads Shut Down Popular YouTuber: "The three unnamed artists filed copyright infringement claims against the parody videos of Finnish media artist Santeri Ojala, causing YouTube to shut down his account over the weekend.… Ojala's popular videos poked harmless fun at famous guitar soloists by dubbing his own abhorrently bad strummings over rock concert footage."

The "shreds" videos live again on at MySpace (until they receive a takedown notice) and at Wired.

Eric Clapton shreds

Since the videos comment on the seriousness of virtuostic guitar wanking, there is a non-trivial argument that these could be considered a parody fair use. Of course, there is also a non-trvial argument that these videos are defamatory and damaging to the guitarists' reputations, even though they are public figures. But from that perspective, striking these videos down off one video hosting service may perpetuate them across the web becoming more powerful than imaginable.

One of the big issues in tech and IP policy this year will be the role of ISPs. To what extent should they be common carries of information, enforcers of digital copyright, or delivery networks giving special priority to preferred media providers?

The NY Times published an AP report that the FCC will investigate complaints that Comcast blocks BitTorrent traffic on its networks, F.C.C. to Look at Complaints Comcast Interferes With Net: "The Federal Communications Commission will investigate complaints that Comcast actively interferes with Internet traffic as its subscribers try to share files online, the commission’s chairman, Kevin J. Martin, said Tuesday."

From another session at CES, the Times' Bits blog reports that AT&T is looking to act as an enforcement agent for copyright owners, AT&T and Other ISPs May Be Getting Ready to Filter

"'What we are already doing to address piracy hasn't been working. There’s no secret there,' said James Cicconi, senior vice president, external & legal affairs for AT&T.

Mr. Cicconi said that AT&T has been talking to technology companies, and members of the MPAA and RIAA, for the last six months about implementing digital fingerprinting techniques on the network level.

'We are very interested in a technology based solution and we think a network-based solution is the optimal way to approach this,' he said. 'We recognize we are not there yet but there are a lot of promising technologies. But we are having an open discussion with a number of content companies, including NBC Universal, to try to explore various technologies that are out there.'"

Reaction from David Isenberg, isen.blog: Konflating Kopyright and Kongestion: "The two issues should be separated. Network congestion has some very simple solutions."

David Pogue speaks at a college and finds out that kids today don't believe that creative works fixed in a tangible electronic medium have any value: The Generational Divide in Copyright Morality:

"The exercise is intended, of course, to illustrate how many shades of wrongness there are, and how many different opinions. Almost always, there’s a lot of murmuring, raised eyebrows and chuckling.

Recently, however, I spoke at a college. It was the first time I’d ever addressed an audience of 100 percent young people. And the demonstration bombed.

In an auditorium of 500, no matter how far my questions went down that garden path, maybe two hands went up. I just could not find a spot on the spectrum that would trigger these kids’ morality alarm. They listened to each example, looking at me like I was nuts."

In the Listening Post blog at Wired, Eliot Van Buskirk tries out Boomshuffle, a new service from Snocap, New Direction For SnoCap: Free, 15-Song Embeddable Mixes: "The service only plays 30-second clips of the songs unless you include 15 tracks by 15 different artists, because that helps Boomshuffle qualify for a lower internet radio royalty rate -- fine by me, I'd rather include more music anyway. Other royalty-related requirements: the songs shuffle, and users can't skip to a specific song, rewind, or skip more than 4 tracks"

Here is a case of how the statutory licensing has directly shaped the way that this service operates.

Take a look at 17 USC §114(d)(2) and compare the limits of interactivity allowed for webcasters using the statutory license with the terms of the Boomshuffle service.

William Patry takes a look at some "non-partisan" copyright groups educational materials: The Patry Copyright Blog: Non-profit, non-partisan education in copyright: "It would be sad indeed if a balanced educational plan for copyright was unachievable, especially where there is a will to develop one."

As Patry discusses, the copyright debate is not partisan in the traditional sense-- it is not a Democratic-Republican party issue. Rather, it is partisan among the various interest groups, with the public interest often never considered in policy-making, or often relegated to just another special interest.

But, that's a topic for another post.

This raises the question of how and when copyright should be taught to students. In the increasingly wired and creative classroom, Copyright is something that will come up as students scour the internet to download photos, videos and music to use in their school projects and presentations.

But at the same time, issues of plagarism/attribution, information literacy and ascertaining the veracity of sources also arise. For today's students, web research and vetting sources should probably be taught along with basic copyright principles.

What needs to be taught in an introduction to information literacy and intellectual property curriculum? When is the best time to start to teach it? Elementary school? Middle School? High School?

Here's a big bunch of unfiltered links about copyright-related topics that I have accumulated over the last couple of months. Most of these deserve more discussion, but are getting the short end of the stick.

Erik J. Heels, Drawing That Explains Copyright Law

Detroit News, Eminem suit targets Apple: "A 'burning issue' in the music industry today is whether the rights record labels hold to sell a recording artist's CDs include the rights to authorize music downloads, or whether further permission is needed from the music publishers who hold the copyrights to the lyrics and sheet music."

The Patry Copyright Blog, Bands and Partnerships: "It is common for bands to form a corporation or other juridical entity like a partnership. When preexisting works are transferred to such an entity, the ordinary provisions on individual ownership, duration, and termination of transfer apply. But what about works created after the juridical entity is created? This issue is presented, but not considered, in Lopez v. Musinorte Entertainment Corp., 2007 WL 579746 (9th Feb. 16, 2007)."

News.com, TorrentSpy lawyer battling 'copyright extremism': "Ira Rothken is technology's answer to the radical lawyer, Silicon Valley's version of Johnnie Cochran or William Kunstler. Tech start-ups sued by media conglomerates for copyright infringement typically call on Rothken, a medical researcher turned lawyer. He's made a name for himself by bucking entertainment empires and by backing long-shot copyright cases, such as those involving RecordTV, ReplayTV and MP3Board.com."

Coolfer: DRM: Who Wants What?

The Daily Swarm, Getty Images is listening through Paper Thin Walls: "Late last month, Getty Images – one of the leading visual image distributors that provides readily licensable photographs, video, artwork, and other creative content to websites and print publications around the world – announced the $42 million acquisition of Pump Audio, an online clearinghouse of pre-cleared music and sounds."

Fred von Lohmann, EFF, YouTube Embedding and Copyright: "I'd say bloggers are generally pretty safe on this score, at least until someone notifies them that an embedded video is infringing."

Law.com, Federal Judge Clears Law Firm Accused of Hacking Opponents' Web Archives: "A law firm did not violate copyright and computer anti-hacking laws when it used a Web archive search tool to recover old Web pages of its client's adversary, says a federal judge.…'They did not 'pick the lock' and avoid or bypass the protective measure, because there was no lock to pick,' Kelly wrote in Healthcare Advocates Inc. v. Harding Earley Follmer & Frailey, No. 05-3524. 'Nor did the Harding firm steal passwords to get around a protective barrier. ... The Harding firm could not 'avoid' or 'bypass' a digital wall that was not there.'"

Rufus Pollock, Forever Minus a Day? Some Theory and Empirics of Optimal Copyright: "The optimal level for copyright has been a matter for extensive debate over the last decade. This paper contributes several new results on this issue divided into two parts. In the first, a parsimonious theoretical model is used to prove several novel propositions about the optimal level of protection. Specifically, we demonstrate that (a) optimal copyright falls as the costs of production go down (for example as a result of digitization) and that (b) the optimal level of copyright will, in general, fall over time."

Jeff Neuburger, Technology Law Update: Seventh Circuit YouTube Reference Thwarted by Major League Baseball: "Judge Evans closes his account of the incident with a citation to a video of the incident available on YouTube. Naturally we had to check out the video. But alas! The url returns an error message: 'This video is no longer available due to a copyright claim by MLB Advanced Media.'"

Los Angeles Times, Can the music industry sue its way to profit?: "The entertainment industry’s legal successes against Napster, Grokster, etc., have failed to slow plummeting sales. How will cracking down on web radio be any different? Publisher Kurt Hanson and attorney Jay Rosenthal debate the economics of online music"

Los Angeles Times, AT&T to target pirated content: "The San Antonio-based company started working last week with studios and record companies to develop anti-piracy technology that would target the most frequent offenders, said James W. Cicconi, an AT&T senior vice president."

Law.com, Citing Supreme Court Precedent, 11th Circuit Reverses Major Copyright Ruling: "In a decision called 'curious' by an intellectual property expert, a federal appellate panel in Atlanta has reversed its circuit's 6-year-old opinion in a major copyright case, declaring the ruling's mandate on behalf of freelance photographers to be 'moot.'"

President Bush Visits Nashville, Discusses Budget (Doesn't know that artists and labels earn no royalties from terrestrial radio broadcasts, unlike songwriters and publishers.)

Q Mr. President, music is one of our largest exports the country has. Currently, every country in the world -- except China, Iran, North Korea, Rwanda and the United States -- pay a statutory royalty to the performing artists for radio and television air play. Would your administration consider changing our laws to align it with the rest of the world?

THE PRESIDENT: Help. (Laughter.) Maybe you've never had a President
say this -- I have, like, no earthly idea what you're talking about.
(Laughter and applause.) Sounds like we're keeping interesting
company, you know? (Laughter.)

Look, I'll give you the old classic: contact my office, will you?
(Laughter.) I really don't -- I'm totally out of my lane. I like
listening to country music, if that helps. (Laughter.)

Maybe creating a performance royalty may not be a bad idea if radio listeners do buy less music than non-radio listeners. The NY Times reports, Radio Listeners Seem to Buy Less Music: "Very roughly, an hour’s worth of radio listening per person per day, over the course of a year, corresponded with a 0.75 drop in the number of albums purchased per capita in a given city."

Here's the full paper on SSRN: Stan Liebowitz, The Elusive Symbiosis: The Impact of Radio on the Record Industry (March 2004)

"The reason for the weaker copyright protection on sound recordings relative to movies appears to be that radio broadcasters have argued, and it is generally accepted, that radio play benefits record sales and thus there is less need for radio broadcasters to purchase the rights to broadcast the sound recording. This impact of radio play on record sales is commonly referred to as a 'symbiotic' relationship between these two industries and is often mentioned by radio broadcasters as a reason for keeping rates low, at hearings to set copyright payments. Yet there appears to be no systematic examination of this relationship. In this paper I present evidence indicating that radio play does not appear to benefit overall record sales."

The Copyright Office has released a guide for teachers, Taking the Mystery Out of Copyright.

Where's the verse on the visual artists rights act? The verse about the §115 compulsory license and the verse on royalty proceedings? How do you turn the protection against anti-circumvention measures into a catchy rhyme?

Macworld: Free Battlestar Galactica game hits the Mac:

"Beyond the Red Line rewinds the show’s timeline a little bit, taking players back to Battlestar Galactica’s second season. You arrive on board the Battlestar Pegasus, ready to help defend humanity against the Cylons. Actually, you’ve been given no choice: A civilian refugee, you’ve been press-ganged into service as a pilot, and you take the yokes of a Viper Mk II, Mk VII or Raptor spacecraft as you test your skills against wave after wave of Cylon craft."

Sounds interesting. But wait, there's more:

"The game is entirely fan-created — it’s neither made nor endorsed by Universal Studios, NBC nor anyone else officially associated with the hit reimagining of the 1970’s space opera, which has received massive acclaim since its introduction three seasons ago."

Is Beyond the Red Line infringing on the copyrights or trademarks of NBC Universal?

Does it make a difference that an official BSG game will be released out in the fall by Sierra Online. "We're huge fans of Battlestar Galactica and are thrilled to have the opportunity to create a game inspired by the TV series," said Ed Zobrist, president of Sierra Online. "NBC Universal is working closely with us so that players will be able immerse themselves in the Battlestar Galactica universe and re-live their favorite missions from the TV series."