Is “Hollywood” hypocritical?

Cory Doctorow over at Boing Boing comments on

the hypocrisy of the way that [the entertainment industry has] painted Kim Dotcom and MegaUpload

by pointing to a blog post by Alan Parker over at the Toronto Sun.  Parker’s argument for hypocrisy is historical, based on the founding of Hollywood in the face of Thomas Edison’s assertions of monopoly control (via patents) over motion picture technology.  He concludes:

The film corporations that were spawned by the very pirates and outlaws who created a hole-in-the-wall getaway hideout in Hollywood are now leading the charge to eradicate uncontrolled Internet access to works and technology they say they hold copyright and patent title to.

And they even use much of the same hypocritical, moralistic language that the Edison Trust used to claim the high ground over the shabby, nasty little rats, weasels, thieves and cheats stealing from them.

If Carl Laemmle, William Fox, Louis B. Mayer, Sam Goldfish/Goldwyn, Jesse Lansky, Adolph Zuker, Marcus Loew, or “the Warner boys”–all cited by Alan as independent producers who resisted Edison’s monopoly–had personally tried to assert their own monopolies and cut off subsequent producers, that would undoubtedly be hypocrisy.  But that is not what Alan is arguing:  he is accusing corporations of hypocrisy because their contemporary trade organization (the MPAA) is taking a position (roughly, that “pirates” should be “shut down”) that is contrary to the position (roughly, that the “market should flourish”) taken by natural persons (particular independent producers whose associated corporations continue in some form to this day) about a hundred years ago.

Can corporations be hypocritical in this fashion?  At its core, hypocrisy is falseness, saying one thing yet doing another.  When the “saying” and the “doing” are separated by 100 years–and involve none of the same actual people–it’s hard for “hypocrisy” to have any real meaning.

Copyrighting time

David Kravets at Wired reports on a copyright lawsuit that seems to attempt to enforce a copyright over data about time itself:

The publisher of a database chronicling historical time-zone data [Astrolabe] is claiming copyright ownership of those facts, and is suing two researchers for re-purposing it in a free-to-use database relied on by millions of computers….The researchers’ publicly available database was being hosted on a server at the Maryland-based National Institutes of Health, which apparently has removed the data at the request of Massachusetts-based publishing house, Astrolabe. The publisher markets its programs to astrology buffs “seeking to determine the historical time at any given time in any particular location, world-wide,” and claims ownership to the data in its “AC International Atlas” and “ACS American Atlas” software programs.

Wired posted a copy of Astrolabe’s complaint.  Digging into it a bit, here are the main facts alleged:

9. Defendant [researcher Arthur] Olson’s unauthorized reproduction of the Works have been published at ftp://elsie.nci.nih.gov/tzarchive.qz, where the references to historic international time zone data is replete with references to the fact that the source for this information is, indeed, the ACS Atlas [emphasis added].
10. In connection with his unlawful publication of some and/or any portion of the Works, defendant Olson has wrongly and unlawfully asserted that this information and/or data is “in the public domain,” in violation of the protections afforded by the federal copyright laws.
[11. and 12. The same as 9 and 10, except naming second defendant Paul R. Eggert.]

In other words, based on this complaint, it seems that the researchers simply took facts (e.g., “in 1900, Greenwich Mean Time +3 was defined as the longitude running from…”) and incorporated them into their own database.

If this is true, Astrolabe, as Wired points out,

faces the tough challenge of overcoming a 1991 Supreme Court decision [Feist v. Rural Telephone Service Co.], concerning a company that harvested listings from a phone company’s telephone book and re-published them. The court ruled that “copyright does not extend to facts contained in [a] compilation.”

Unfortunately, I’m guessing that Astrolabe filed this lawsuit simply to scare Olson and Eggert into a quick settlement well before a judge rule on the merits of their claim to use this data under established copyright law.  In part, my surmise is based on the counsel Astrolabe retained.  Their complaint is signed by Julie C. Maloney, an attorney who appears to be a solo practitioner based out of a small town in Cape Cod in Massachusetts.  Although she doesn’t have a law firm website, a bit of Internet searching appears to confirm that land use/zoning rather than intellectual property is her legal specialty.

While I don’t know Ms. Maloney or her professional reputation and am sure she is a capable advocate, these facts don’t suggest that Astrolabe is seeking a discussion on the legal merits of copyright law.  On the contrary, Astrolabe appears (1) primarily concerned with saving money by going with a solo practitioner rather than a bigger law firm, (2) incapable of finding a copyright-specializing attorney willing to take their (weak) case, or (3) both.

Quick legal-related links

EFF:  “Courts Call Out Copyright Trolls’ Coercive Business Model, Threaten Sanctions.”  Apparently discovery (in the legal sense of the term) isn’t what it used to be…

Ars Technica:  “Supreme Court weighs legality of putting public domain works back under copyright.”  Golan v. Holder is shaping up to be one of the biggest copyright decisions by the Supreme Court in years.  The briefs are available at SCOTUSblog.

WSJ @ Truth on the Market –> “Litigation funding grows.”  Hedge funds enter the world of litigation…as an investment opportunity.

Righthaven loses in Colorado

Last week, Righthaven was flirting with bankruptcy due to legal fees associated with a Nevada case.  This week, the fees keep piling up, this time in Colorado:

Righthaven’s only interest in the Work is “the right to proceeds in association with a Recovery.”  The Copyright Assignment Agreement defines “Recovery” as “any and all sums . . .arising from an Infringement Action.”  Thus, when read together, the Assignment and the Copyright Assignment Agreement reveal that MediaNews Group has assigned to Righthaven the bare right to sue for infringement – no more, no less.  Although the assignment of the  bare right to sue is permissible, it is ineffectual….Accordingly, Righthaven is neither a “legal owner” or a “beneficial owner” for purposes of § 501(b), and it lacks standing to institute an action for copyright infringement….I convert Mr. Wolf’s Rule 12(b)(1) motion to a Rule 56 motion and GRANT him SUMMARY JUDGMENT.  Furthermore, in light of the need to discourage the abuse of the statutory remedies for copyright infringement, I exercise my discretion under Section 505 of the Copyright Act and ORDER that Righthaven shall reimburse Mr. Wolf’s full costs in defending this action, including reasonable attorney fees. [emphasis added]

More coverage from Ars Technica, Techdirt, and the EFF (h/t).

The Freakonomics of fair use

The NYTimes’ Freakonomics blog uses the subject of poetry criticism to tackle fair use:

In a recent article, the poetry critic of the New York Times complained that to do poetry criticism right, it’s often necessary to quote extensively from a poem. Indeed, in the case of a short poem, it might be helpful to readers to copy the whole thing. But, the critic said, this can’t be done because it might run afoul of copyright law.

It is true that copyright law prohibits the unauthorized copying of any substantial part of someone’s poem, song, or other work.…Is this a good policy?  From an economic perspective, no.

The reason this is bad policy, however widely discussed, bears repeating:

Use of a small bit of someone else’s creative work to build a new creative work rarely harms the economic interests of the first copyright owner, because most “derivative” works do not directly compete with the original.

Every creator builds on what came before, and such building usually doesn’t “compete” with that earlier work in any economic sense.  Creating legal fear and uncertainty about building on the past, however, is quite effective in limiting the creation of new works in the present.

Righthaven “nearing bankruptcy”

I was suspicious several days ago when I heard that Righthaven might be going under, but apparently it’s true:

The Las Vegas copyright-trolling firm Righthaven told a Nevada federal judge Friday it might file for bankruptcy protection, or cease operations altogether.

To prevent that, Righthaven is asking U.S. District Judge Philip Pro to stay his decision requiring Righthaven pay $34,000 in legal fees to an online commenter it wrongly sued for infringement.

Wired has posted Righthaven’s Motion to Stay here (pdf).  They are exceptionally candid about the economics of copyright troll litigation:

In Colorado, 35 Righthaven copyright infringement cases have been stayed since May 19, 2011 pending a ruling on whether the company has standing to maintain these actions. Likewise, ten infringement actions, most of which involve an amended version of the SAA that addresses the concerns expressed by this Court in its subject matter decision, have been stayed in this District until a standing determination is made. Thus, Righthaven has been precluded from actively litigating and resolving the stayed cases. Moreover, Righthaven has delayed filing new copyright enforcement actions until a standing determination is made based upon the terms of the currently operative version of the SAA. Throughout this period, and despite a lack of incoming revenue given that numerous pending action are stayed, Righthaven has continued to incur operating expenses.

Clearly, Righthaven is a cash-poor outlet these days.  And here’s where things get really interesting:  based on its motion, Righthaven seems deathly afraid that they might have to sell some of their assets to satisfy a $34,000 judgment.  As they explain to the court:

Righthaven also has significant proprietary rights in its copyright infringement search engine software (the “Software”), which plays an integral role in the company’s operations. If a stay is not granted pending appeal, this valuable Software may be seized and liquidated in an attempt to satisfy the Judgment. Liquidation may result in the Software being sold to a competing organization or entity.

Talk about woeful undercapitalization.  A $34,000 judgment is going to force them into selling off their core business assets?  Really?

Righthaven always presented defendants in its copyright litigation with an unfair dilemma:

(1) pay out a few thousand in “go away” money now, or
(2) mount an actual legal defense (at an initial, minimum cost of a few thousand, with no guarantees that things would work out well).

It seems that Righthaven now faces a dilemma of its own:

(1) raise enough capital to pay off this $34,000 pending appeal, or
(2) go bankrupt.

The difference, of course, is that the dilemma Righthaven faces is fair.  They put defendants to the expense of hiring lawyers.  Some of those defendants won.  The law says that those winning defendants should have their legal expenses paid by Righthaven.  Sounds about right to me.  If Righthaven can’t afford to pay without selling assets, perhaps they never should have been filing lawsuits in the first place.

Righthaven losing that rocky mountain high

I noted yesterday that copyright troll Righthaven hasn’t filed any new lawsuits in the past two months, but I was suspicious that it was all over.  After reading Wired’s coverage today, however, I think Righthaven’s end is near:

The new chief executive of MediaNews Group, publisher of the Denver Post and 50 other newspapers, said it was “a dumb idea” for the nation’s second-largest newspaper chain to sign up with copyright troll Righthaven.…

“The issues about copyright are real,” [John] Paton told Wired.com in a telephone interview. “But the idea that you would hire someone on an — essentially — success fee to run around and sue people at will who may or may not have infringed as a way of protecting yourself … does not reflect how news is created and disseminated in the modern world.”

I stand corrected.  Barring a court-ordered miracle, it seems only a matter of time before Righthaven closes up shop.