Category Archives: Legal

Throwing the book at them

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What’s the advantage for libraries seeking to move to e-book formats?  Not much, according to this article from Library Journal:

HarperCollins has announced that new titles licensed from library ebook vendors will be able to circulate only 26 times before the license expires….Josh Marwell, President, Sales for HarperCollins, told LJ that the 26 circulation limit was arrived at after considering a number of factors, including the average lifespan of a print book, and wear and tear on circulating copies.

This is utterly ridiculous.  One of the major advantages of e-books is that they don’t wear out.  Whatever happened to products that become “new and improved” with innovation rather than “same because crippled”?

Oh, that’s right — copyrights create a legal monopoly that allow for monopolistic behavior of the sort we regularly see from utility companies and the DMV.  Now I remember.

Even so, HarperCollins’ move here seems incredibly short-sighted.  They may well be killing off a lucrative new market (e-books for libraries) before it has a chance to develop fully.  After all, most people still don’t have e-book readers and find it inconvenient to read books from a computer screen.  As for libraries,

further license restrictions seem to come at a particularly bad time, given strained budgets nationwide. It may also disproportionately affect libraries that set shorter loan periods for ebook circulation.

Between the growing number of contemporary authors who distribute their books with a Creative Commons license and the growing repository of easily accessible public domain works in electronic text (“book”) and spoken (“audiobook”) form, there may be a great swath of written culture from the 20th century that becomes effectively inaccessible.

Update 2/28/2011: TechDirt has now picked up this story.

Musical innovation

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As I noted in passing a few days ago when discussing the Brittney Spears’ dispute with the Bellamy Brothers, pop songs are pretty much all alike.

The same goes for music labels’ business models.  Commenting on a recent Financial Times article, paidContent suggests that “new” music services reportedly in development by Apple and Google — allowing individuals to store music on a “hard drive in the sky” — seem to be less “innovation” than “more of the same”:

The idea sticks closely to today’s à la carte, per-track model of buying individual tracks, which itself replicates yesteryear’s model in which music was packaged up in to individual plastic units of consumer product.Growth in this method of buying digital music has basically peaked in the U.S.. Will a hard drive in the sky give it a lift? Unlikely. Some now think that illegal music consumption is so tempting that the industry should effectively mimic this “music like water” approach legally.

Of course, Rhapsody has an all-you-can-eat model, has been available in the U.S. for years, and is a bit player.  Maybe it’s time to start coming up with some actually new ideas…

A call for copyright reform

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Kudos to David Freddoso of the Washington Examiner, who yesterday called for copyright reform:

[P]art of the problem is that current copyright law is ambiguous about what constitutes “fair use.” Congress could put an end to this gaming of the legal system by rectifying this. It’s something that House Judiciary Chairman Lamar Smith, R-Tex., should seriously consider.

In justifying his call to action, David cites activities by Righthaven, highlighting the chilling effect copyright trolls have even on established media players like the Examiner:

Throughout the Reid-Angle Senate race in Nevada, we were scared to death to quote or link to anything at the Las Vegas Review Journal (dare I even post something with their name in it?) because they have farmed out copyright infringement to a serial lawsuit abuser.

When a conservative-leaning newspaper with a subscription to the Associated Press is afraid “to quote or link” to another U.S. newspaper for fear of a copyright infringement lawsuit, you know that the current system isn’t working.

Update: Bloggers are pretty scared of Righthaven too.  That’s why the Media Bloggers Association (official website) has filed an amicus brief on behalf of a hapless Righthaven defendant.  (Thanks to TechDirt for the doc and further analysis.)

In defense of an (un)original aesthetic

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My Modern Met has posted a hauntingly beautiful gallery of photos that manages to tease striking originality out of a tired world of copies:

Switzerland-based Corinne Vionnet is our guide to the world’s most famous landmarks, monuments millions have visited before. Her art is created not by acrylic, oil, or watercolor, each piece is made by combining hundreds of tourist photos into one. After conducting an online keyword search and sifting through photo sharing sites, this Swiss/French artist carefully layers 200 to 300 photos on top of one another until she gets her desired result.

You really need to click over to My Modern Met to see this stuff for yourself.  Words alone doesn’t do it justice.  (Vionnet’s own website is here, if you want to look further into her work.)

I first became interested in intellectual property law as a part-time photographer.  I was intrigued by the legal implications of photographing the world around me, including the ever-encroaching restrictions that narrow the subjects “safe” from litigation threats.  Not surprisingly, then, I get pretty excited when the fields of copyright and photography intersect as explicitly as they do in Vionnet’s work.

Vionnet’s pieces — beautiful in their own right — serve as a meditation on the artist within the collective and the unique within the copies.  Her works have an ethereal and timeless aesthetic because they are composed of photos taken by hundreds of people over many years (they are literally ethereal and timeless).  The “originals” (taken by tourists) are simply copies of what everyone else takes, but her “copies” (clearly lovingly composed by Vionnet) are truly original takes on these famous landmarks.  Brilliant.

The article quotes Vionnet’s own summation of this series:

“Why do we always take the same picture, if not to interact with what already exists?,” Vionnet asks. “The photograph proves our presence. And to be true, the picture will be perfectly consistent with the pictures in our collective memory.”

Well said, Vionnet.  This is why our shared, cultural commons is so important.  Artists always have to “take the same picture” in order to “interact with what already exists”.  It is what artists do with their picture that makes them unique, not in some divine ex nihilo sense, but as mirror-holders who call our attention to a part of the larger whole and allow us to see one bit of reality in a new way.

However, artists do not “own” reality any more than their creative fore-bearers — or any of us.  In the slow passage of time, we all receive, create, and relinquish back.  Hopefully, in the words of John Locke, we relinquish “as good as” what we have ourselves received.

To be sure, copyright law is needed to allow Vionnet to enjoy the full fruits of her creative labor.  Nonetheless, take care to remember that, in a very real sense, she does not “own” her works any more than she took the underlying photographs — or than those tourists built the towers, mountains, and waterfalls they themselves copied with their cameras.  Vionnet’s pieces are “out there” now, part of our collective memory.  We can discuss them, critique them, applaud them, reject them, or even build on them.  However brilliant, Vionnet doesn’t “own” them in an absolute metaphysical sense, and she shouldn’t “own” them in an absolute legal sense.

Given the genesis of her work, I doubt that Vionnet would be overassertive with her copy-rights.  (Though one never knows.)  Unfortunately, lots of other people routinely assert “their” divine rights in “their” intellectual property.  As sad as this state of affairs is, one has to laugh a bit.  Just because they have a mirror doesn’t mean that they made the sun.

The billable value of humility

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In a previous post, I linked to an IBM executive who claimed that Watson’s success on Jeopardy! might revolutionize the legal profession.  Gary Kasparov, the chess champion who was defeated by IBM’s Deep Blue in 1997, makes an interesting observation over at the Atlantic:

My concern about its utility, and I read they would like it to answer medical questions, is that Watson’s performance reminded me of chess computers. They play fantastically well in maybe 90% of positions, but there is a selection of positions they do not understand at all….A strong human Jeopardy! player, or a human doctor, may get the answer wrong, but he is unlikely to make a huge blunder or category error—at least not without being aware of his own doubts. We are also good at judging our own level of certainty…but I would not like to be the patient who discovers the medical equivalent of answering “Toronto” in the “US Cities” category, as Watson did.

It would be ironic (in the extreme!) if what saved the legal profession from being taken over by computers was lawyers’ own humility.  In a world where machines can process far more data far faster than human minds, perhaps our weakness is also our greatest asset:  we know our limits.

Long-winded patents

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Edward Tenner over at the Atlantic has a few observations about the trend towards ever-longer patents:

Patent numbers are often treated as a proxy for invention or technological creativity. There are many more now than there were at the peak of technological optimism in the late 1990s….[But if each individual patent has] thousands of claims, is none of them very important or — as some speculate — is there a tendency to obfuscate the significant ideas with chaff, defeating the patent’s rationale of disclosure?

I wonder whether another reason for increased patent lengths is the widespread availability of word processing software.  One observation I have made in my years of legal research is that court opinions and law review articles tend to be shorter (and have fewer citations) the further back in time one goes.  Perhaps our fore-bearers spent just as much time on their “work product” (a.k.a. writing and analysis) as we do but the cumbersome mechanics of research and writing in a pre-digital era nudged one towards focus and concision.  Today, of course, the kitchen sink goes in because it can.

Whatever the reasons, you should really check out Tenner’s full post, which offers a few other explanations and ends by arguing that all this increase is not necessarily a good thing.

Settling the score

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Daniel J. Wakin over at the New York Times has a write-up about Edward W. Guo and the International Music Score Library Project (IMSLP):

The site, the International Music Score Library Project, has trod in the footsteps of Google Books and Project Gutenberg and grown to be one of the largest sources of scores anywhere. It claims to have 85,000 scores, or parts for nearly 35,000 works, with several thousand being added every month. That is a worrisome pace for traditional music publishers, whose bread and butter comes from renting and selling scores in expensive editions backed by the latest scholarship. More than a business threat, the site has raised messy copyright issues and drawn the ire of established publishers.

Has it ever.  Apparently, all this free music sharing of hundreds-of-years-old music is not putting money in the right people’s pockets:

While a boon to garret-living, financially struggling young musicians, the library has caught the attention of music publishers.

Take that, struggling musicians!  Music publishers are feeling the heat!  Though, really, it’s only going to hurt all of you in the end:

“I don’t know if I would call it a threat, but I do believe it hurts sales,” said Ed Matthew, a senior promotion manager at G. Schirmer in New York. “It is that profit that helps us to continue to bring out more composers’ work.”

Wait…what?  It is the profit from selling/renting sheet music composed by long-dead composers like Beethoven at above-market prices that allows the G. Schirmer company “to bring out more composers’ work”?  Insofar as this even makes sense, they can only mean one of two things:

1.  Traditional music publishers can only continue to publish public domain scores if they can continue to sell it at monopoly prices (e.g., $30-50 for “[a] set of parts for a mainstream string quartet”, according to the NYTimes article).

Analysis:  Good riddance.  IMSLP will publish it for free.  Deadweight loss triange:  gone.

2.  Traditional music publishers can only afford to take a bath on contemporary composers if it can subsidize them with profits from public domain scores of dead composers.

Analysis:  Whatever this is, it’s not a business argument.  There are plenty of reasons to support new composers (and musicians generally) that have nothing to do with business, of course.  One may think that the arts are intrinsically valuable, or may want to give back/pay it forward, or may simply want the prestige of having one’s name connected rising talent as a “patron”.  All fair enough.  But there’s no business reason for a traditional music publisher to subsidize new talent with monopoly money.  Why should it do that?  It would make much more money if it simply sold the old public domain stuff and told new composers to take a hike.  (Unless, of course, it does make money off the new composers….)

You can’t have it both ways, G. Schirmer.  Either you do make money off new composers (in which case the issue is completely unrelated to your publication of public domain scores) or you don’t.  If you don’t, you have been running a charity, not a business.

I should point out that if G. Schirmer (or any other traditional music publisher) has been effectively running a charity for new composers up until now, I thank them.  Seriously.  This was very kind of them and the sort of thing that should be encouraged.

I hasten to add, however, that just because a music publisher may have used some of its profits to support the arts doesn’t mean that they should be able to assert legal rights they don’t have to public domain musical scores just because the Internet is threatening their traditional business model.  The arts can be supported much more directly and efficiently.  There’s no need to expand copyright law to allow a revenue stream to continue flowing into the publisher’s pockets that a trickle may eventually find its way into the tip jar of the up-and-coming composer.

Update 2/27/2011: TechDirt selected my comment summarizing this post as an “Editor’s Choice” in their comments-of-the-week wrap-up!

“Singing”

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Is there something in the hyperspace? William Shatner, best known for his portrayal of Captain Kirk on Star Trek, is rather infamous for his spoken-song style. Now TechDirt draws our attention to James Earl Jones, who gave voice to Darth Vader in Star Wars, who is apparently jumping in on the act:

the great actor James Earl Jones recites some Justin Bieber lyrics while a guest on the Gayle King Show.

Here’s a direct link to the YouTube video.

As TechDirt’s Mike Masnick asks,

So here’s a simple question: is this copyright infringement? Did the Gayle King Show properly license the lyrics from the copyright holder? Perhaps it did, but we’ve seen music publishers get pretty worked up about various websites posting lyrics online and have heard stories about books not being able to be published because they quoted snippets of lyrics without a license.

Assuming fair use is off the table, I don’t think JEJ’s recitation qualifies for the compulsory license provisions of U.S. copyright law because he was performing on TV — he would have needed a synchronization license.  Moreover, according to 17 U.S.C. section 115(a)(2):

A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner. [emphasis added]

I think we can all agree that JEJ changed the basic melody of this work.

Of course, there is no doubt a simpler explanation for all this.  Bieber’s song “Baby” is repped by ASCAP, and ASCAP offers blanket licenses that allow for TV broadcasts of their works.  I’m guessing the Gayle King Show (or, more likely, the Oprah Winfrey Network) simply paid the requisite fees.

Searching for a safe harbor

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TorrentFreak reported a few days ago that Google has filed an amicus brief in the appeals case against torrent search engine isoHunt:

Google has been keeping an eye on the legal battle between the MPAA and isoHunt as last week, out of nowhere, the company unexpectedly got involved in the motion for summary judgment appeal. The search giant, which has always stayed far away from these types of cases, filed an amicus cuiae brief (third party testimony) at the Appeal Court.

“This cases raises issues about the interpretation and application of the safe-harbor provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 512 et seq. (“DMCA”) and common-law rules governing claims for secondary copyright infringement. Google has a strong interest in both issues,” Google’s counsel writes.

Talk about understatement.  You can read Google’s 39-page brief for yourself over on Scribd — thanks to PaidContent for posting.

TechDirt posted additional commentary late yesterday suggesting that Google’s stance in the isoHunt appeal is mostly about its own ongoing litigation with Viacom:

Google argues that as long as YouTube took down any content it received a takedown notice on, it was in compliance and protected by safe harbors. Viacom leaned heavily on the IsoHunt ruling, to claim that the DMCA doesn’t just cover takedown notice responses, but also requires a response to “red flag” infringement.

However, Google knows that the IsoHunt ruling is basically the only legal precedent out there that reads the DMCA in this manner. So, from Google’s perspective, dumping that reasoning is key. So its amicus brief still argues that IsoHunt is guilty of contributory infringement, a la the Grokster standard, but not because of red flag infringement.

The last thing Google wants is to be liable for copyright infringement under the DMCA every time there is a “red flag” that infringement is taking place; that would be the end of Internet search engines as we know them.

Of course, Google’s business strategy isn’t merely to file amicus briefs and hope for the best; the search giant has also recently taken proactive steps to reduce its liability, including turning off autocomplete results for torrent-related searches.  I guess this is what the Intellectual Property Enforcement Coordinator (IPEC) meant by “dialogue”, as detailed in her recent report:

the IPEC has facilitated and encouraged dialogue among the different private sector Internet intermediaries that contribute to the dynamic nature and functioning of the Internet, including payment processors, search engines and domain name registrars and registries. These entities are uniquely positioned to enhance efforts of rightholders and law enforcement to combat infringing activity and help reduce the distribution of infringing content in a manner consistent with our commitment to the principles of fair process, freedom of expression and other important public policy concerns. We believe that most companies share the view that providing services to infringing sites is inconsistent with good corporate business practice and we are beginning to see several companies take the lead in pursuing voluntary cooperative action.

I’m not sure how “voluntary” this really is — or whether “fair process” and “freedom of expression” accurately describes a “dialogue” written under a Damoclesian sword of statutory copyright damages and domain name seizures.  But I will agree that ruinous lawsuits and seizures are “inconsistent with good corporate business practice”.

Hat tip to Keith Lowery for sending me the link to the original TorrentFreak story.

Taking enforcement to the next dimension

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Get ready for the next avalanche in copyright infringement lawsuits:  3D printing!

[L]ast week, Ulrich Schwanitz figured out how to print the “impossible” Penrose Triangle,” a well-known optical illusion. He released a video of the shape and challenged others to see how it might have been done. 3D modeller Artur Tchoukanov promptly figured it out, designed a 3D shape that accomplished the same thing, and uploaded his shape’s specifications to Thingiverse, a repository for 3D designs….Schwanitz sent Thingiverse a DMCA notice — essentially, a threat to name Thinigverse as a party in any copyright lawsuit against Tchoukanov unless Thingiverse took the shape down immediately.Whereupon Schwanitz became the inventor of something much more substantial than a 3D Penrose Triangle — he became the inventor of copyright threats over open 3D repositories. A weekend’s worth of acrimony followed — with lots of speculation about the copyrightability of Schwanitz’s design and questions about whether Tchoukanov was guilty of violating any copyright that vested in the design, and further questions about the ethics of copying designs and the ethics of sending copyright threats to Thingiverse.

As Cory Doctorow later notes in his BoingBoing post, Schwanitz has withdrawn his litigation threat, but legal wrangling of this new, third-dimensional sort is certainly not going to stop anytime soon:

[A]ggrieved optical illusion creators don’t have anything like the political and legislative clout of other potential 3D printing complexifiers. Imagine what happens when some magistrate in Alabama decides that Thingiverse is liable for hosting 3D models of sex toys (illegal in AL) and issues a bench warrant for Bre Pettis’s arrest. Or when someone from Shapeways shows up at CES in Vegas, only to discover that the state Drug Enforcement Agency has issued a warrant on the basis of a bong design available at Shapeways, violating the state’s strict anti-drug-paraphenalia laws. Or someone from i.materialise gets an EU extradition request from Germany because someone’s printed a detailed, historically accurate toy soldier with a swastika armband, violating Germany’s strict laws against Nazi paraphernalia.

And just wait until someone creates a printer that can reproduce patented pharmaceutical compounds or Monsanto’s patented life-forms! Now there are a couple of villains with a lot of resources to throw at making the whole Internet’s life miserable in order to squeeze an extra 0.05% into the quarter’s bottom line.

As the Economist’s cover study just two weeks ago indicates, the 3D printer world is already here.  As that report suggested,

Good ideas can be copied even more rapidly with 3D printing, so battles over intellectual property may become even more intense. It will be easier for imitators as well as innovators to get goods to market fast. Competitive advantages may thus be shorter-lived than ever before.