Examining the world through the values of individual, collective and professional empowerment, the constant questioning of authority and the promotion of innovation over wastefulness.
"Economic growth requires innovation. Trouble is, Washington is practically designed to resist it. Built into the DNA of the most important agencies created to protect innovation, is an almost irresistible urge to protect the most powerful instead.
The FCC is a perfect example. Born in the 1930s, at a time when the utmost importance was put on stability, the agency has become the focal point for almost every important innovation in technology. It is the presumptive protector of the Internet, and the continued regulator of radio, TV and satellite communications. In the next decades, it could well become the default regulator for every new communications technology, including, and especially, fantastic new ways to use wireless technologies, which today carry television, radio, internet, and cellular phone signals through the air, and which may soon provide high-speed internet access on-the-go, something that Google cofounder Larry Page calls "wifi on steroids."" [NewsWeek]
Comments on the Commission's Green Paper on Copyright in the Knowledge Economy
"This paper is a reaction to the Commission's Green Paper on Copyright in the Knowledge Economy. It discusses issues concerning the three step test model licenses, digitization and orphan works, disability discrimination and access to digital content, dissemination for teaching and research, dissemination through libraries and user created content." [SSRN]
Triennial DMCA Review at US Copyright Office"The US Copyright Office is again hearing arguments for exceptions for, as the December 29 Federal Register notice puts it, “certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. The purpose of thisrulemaking proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention.”" [CopyrightAlliance]
Music copyright extension - strings attached: Sort yourselves out, warn Burnham and McCreevy 12th December 2008 Culture Minister Andy Burnham gave clear backing to extending the copyright term for sound recordings yesterday - but called on the music business to make sure it benefits musicians, not industry fatcats.
"We want the industry to come back with good, workable ideas as to how a proposal on copyright extension might be framed that directly and predominantly benefits performers – both session and featured musicians," Burnham said." [TheRegister]
Actually, by framing the issue as a "moral case," Burnham gets to sidestep the entire issue of logic. Critics have already begun to charge that he is ignoring actual evidence and the well-regarded conclusions of the Gowers Report, not to mention previous government policy. But when the issue becomes a moral one and the livelihood of aging performers is at stake, it's suddenly easier to avoid cost/benefit analysis. Doing the right thing isn't always logical or economical." [ArsTechnica]
Are Performers A Special Case? 23rd December "While almost every serious commentator in the field of contemporary copyright law takes the view that no case has been established for the extension of copyright term in respect of sound recordings, the case for the extension of the protection term enjoyed by performers themselves has at least one doughty advocate.
IPKat reader and copyright specialist Professor Amanda J Harcourt writes:
"While Andrew Gowers' article (Copyright Extension is Out of Tune with Reality) makes a number of useful and pithy points, it does not fairly, in my view, state the case for the performer.
While the record companies in the 1990s indubitably "missed the boat" when attempting to debate and adjust their commercial practices to accommodate the developments of the internet - and now are suffering the consequences - there are moral arguments surrounding this new development. The songwriter and performer occupy the only moral high ground in the economic environment that is the music industry. This economic model of copyright has been taken to extreme by record companies. Guy Hands's early pronouncements about executive and administrative waste soon after his purchase of EMI were on point, but an understanding of the way artists are contracted by record companies demonstrates that those at the bottom of the royalty food chain - in this case the artist - have reasons for moral outrage." [IP Kitten]
Thomas on Copyright Reform:An Injudicious Threat to Consumers and Artists "Recently, the Court in Capitol Records, Inc. v. Thomas vacated a $222,000 verdict awarded by a jury of the peers of Defendant Jammie Thomas.1The Court held that it committed a “manifest error of law” by instructing the jury that U.S. law gives copyright owners the “making-available right” required by nine international agreements supposedly implemented by U.S. law.But Thomas did not confine itself to an analysis of whether U.S. law provides a making-available right.
After adjudicating the motion to vacate the jury verdict, the Court appended a gratuitous final section—Section K—that used Thomas as a platform to attack the wisdom of both the jury and Congress.Section K, by casting off judicial conventions, by opining on jury questions, and by mischaracterizing the conduct of a party to a pending case—tried to present the Defendant as a poster child for an ill-conceived advisory opinion on copyright reform.In Section K, looting thus became a nonprofit avocation and deterring deceit became “oppressive.”Worse yet, these characterizations supported “reforms” that would only encourage piracy, endanger consumers, and further undermine the vitality of copyrights." [PFF]
Triennial DMCA Review at US Copyright Office December 30th, 2008 "Has it been three years already?The US Copyright Office is again hearing arguments for exceptions for, as the December 29 Federal Register notice puts it, “certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. The purpose of this rulemaking proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention.”
In other words, when is OK to ignore the Digital Millennium Copyright Act and hack DRM? (You’ll find information on how to participate in this democratic process at the end of this post.)" [CopyrightAlliance]
In Peer-to-Peer File-Sharing Case, "Distribution" Does Not Mean "Making Available"
"At trial, the plaintiffs sought to prove that the defendant, a single mother in Duluth, had willfully infringed 24 of the plaintiffs' recordings by downloading and distributing them via the peer-to-peer program Kazaa. Finding that the defendant had infringed, the jury awarded the plaintiffs statutory damages of $9,250 per song, for a total of $222,000. The defendant filed a motion for a new trial or, in the alternative, for remittitur, calling for a reduction of excessive damages; the plaintiffs filed an unopposed motion to amend judgment, seeking an injunction. Instead, the court elected sua sponte to address the possibility of granting a new trial because of an incorrect jury instruction." [CyberLaw]
Music Sampling Does Not Infringe on Copyright, But…
"The German Supreme Court (BGH) clarified last week that sampling does not infringe on copyright in the work from which samples were taken for the purpose of creating a new work. There is a catch hiding in the details, though. According to the official press release (in German), the highest judicial authority in Germany ruled that a certain statutory exception principally covered instances of sampling. The relevant exception is anchored in section 24 to the German copyright act, known as “free use” (freie Benutzung). Free use is not fair use, but you can think about it as an extreme version of the transformativeness element familiar from the U.S. fair use analysis. Accordingly, the new work must transform the work of which elements it uses into something independent and wholly different. While using the copyrighted elements taken from the prior work, such use should be so transformative that the first work becomes hardly recognizable as the source." [CyberLaw]
Digital Copyright Issues and the Ubiquitous iPod
"The advent of new technologies has resulted in Copyright law having to adapt to new situations and infringements. These technologies, including music formats that contain compression, as well as the reduction in cost and size of hard drives has created significant new challenges and markets for digital content. Even in the short life of the iPod, it has gone from a music device, to a multimedia device. This article examines some of the issues and case law that is relevant to the content revolution created by the iPod." [SSRN]
The Dangers of the Digital Millennium Copyright Act: Much Ado about Nothing?
"In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), a landmark piece of legislation aimed at protecting copyright holders from those who might manufacture or traffic technology capable of allowing users to evade piracy protections on the underlying work. At its core, the DMCA flatly prohibits the circumvention of technological protection measures in order to gain access to copyrighted works, with no safety valve for any traditionally protected uses. While hailed as a victory by the software and entertainment industries, the academic and scientific communities have been far less enthusiastic. The DMCA's goal of combating piracy is a noble one, but lurking is the danger that it comes at the expense of public access to protected works and future innovation. Despite America's long history of fair use protections in copyright law, many commentators have warned that consumers now find themselves unable to do many of the same things with copyrighted works that they previously could - anyone who might sell them the technology to access a protected work and enable fair use would find themselves in violation of the DMCA. Worse, early litigation dramatically expanded the definition of what constitutes a technological protection measure deserving of the law's respect. As the definition broadened, scholars feared that even modest innovations - ones that would never qualify for patent protection under existing law - could wind up receiving perpetual patent-like protection through the backdoor of the DMCA. Despite the experts' dire predictions, however, subsequent common law interpretation of the DMCA has reigned in many of its potential dangers - the judiciary's focus is rightly on the need to balance innovators' interests with the equally important goals of public access and enhancing overall social welfare. Nonetheless, coherent and uniform protection of fair use under the DMCA is likely best achieved through Congressional action." [SSRN]
Why Emerging Business Models and Not Copyright Law are the Key to Monetising Content Online
"The multimedia Internet is here to stay. Rich media - including videos, music, podcasts, and flash animation - is already a key feature of the Internet experience, and will only grow in diversity and importance. As Internet users increasingly crave - and technology increasingly enables - multimedia content delivered on demand over broadband connections, the number of songs, videos, and other media online will increase exponentially to feed the demand. As online media consumption increases, so will expectations for its capacity to generate revenue for content owners and creators. Analysts boldly predict a bright future for the entertainment industries, especially in Asia, with broadband Internet cited as a key growth driver. Yet, to date, the vast majority of music and video acquired or consumed online is free and uncompensated. Despite the rising expectations for monetizing content on the Web, no clear sustainable, scalable model for monetizing content has emerged that compares to the level of revenues copyright owners have enjoyed in the "physical" (as opposed to online) market." [SSRN]
Copyright Owners Must Consider the Fair Use Doctrine when Issuing DMCA Takedown Notices
"The plaintiff, Stephanie Lenz, posted a 29-second video clip on YouTube of her children dancing to the Prince song “Let’s Go Crazy.” Universal, the copyright holder of that song, issued a DMCA takedown notice with which YouTube complied. Lenz believed that her otherwise unauthorized use of the song was permissible under the fair use doctrine and issued a counter-notice. YouTube reinstated the video six weeks later. Under 17 U.S.C. § 512(c)(3)(A)(v), DMCA takedown notices must contain a statement that the issuer has a “good faith belief that use of the material in the manner complained of is not authorized by the copyright owner … or the law.” Lenz sued Universal and claimed that forming such a good faith belief required a consideration of the fair use doctrine. She argued that because Universal had allegedly not given such consideration, it had misrepresented in its takedown notice that it had, in breach of 17 U.S.C. § 512(f)." [CyberLaw]
Fair Use Protection Limits Common Law Copyright Claims Over Sound Recordings in New York
"This was a case of first impression for fair use as a defense against common law copyright infringement of a sound recording. For the first time, the court defined the doctrine of fair use in New York and applied it to sound recordings. Fair use applied to the sound recording regardless of its publication since the song was subject to ‘de facto publication’ and dissemination. The court then looked to both the history of common law copyright in New York and the current federal statute for guidance about fair use. The court applied the federal fair use factors: the purpose and character of use, the nature of the copyrighted work, the amount and substantially of use, and the effect on the market." [CyberLaw]
Chinese Copyright Law, Peer Production and the Participatory Media Age: An Old Regime in a New World
"In 2005, a funny flash song, "I Don't Want to Say I'm a Chicken", spread over the Internet (hereafter referred to as the Chicken Song Case). People were sharing it among friends, downloading it and using it as a mobile phone ring tone, and singing the song on KTV. The flash song is the lament of a chicken that was happy to be a source of eggs and meat, but is now facing extermination because of the threat of bird flu. Although the lyrics of the "Chicken Song" are creative and humorous, the melody of the song is lifted entirely from a famous Chinese song, "I Don't Want to Say", written by Li Haiying. As a result Li has sued the wireless content provider Kongzhong.com where the "Chicken Song" first appeared, for copyright infringement. Li believes he is owed an apology, 2 million Yuan in compensation, court costs and 50000 Yuan for mental suffering." [SSRN]
Ezra Pound's Copyright Statute: Perpetual Rights and the Problem of Heirs
"This Article explores the historical and present-day significance of proposals for copyright reform advanced by the controversial American poet, Ezra Pound, in 1918. These proposals have never been discussed by legal scholars and have received but scant attention from literary scholars. Yet, like William Wordsworth and Mark Twain, whose efforts to reform copyright law are much better known, Pound is a major writer whose views shed considerable light on the state of copyright law and the conditions of authorship in his time. Pound's proposed statute-offered as a "cure" for American book piracy-begins by making authors' copyrights exclusive and perpetual, and goes on, surprisingly, to introduce broad compulsory-license provisions that would prevent authors and their heirs from interfering with later efforts to disseminate authors' works, and would require publishers only to pay a fixed royalty on sales. The tension in Pound's proposal between a perpetual, exclusive copyright and expansive compulsory licenses shows him to be an inheritor of two legal and economic traditions: on the one hand, a Lockean and Romantic belief in a strong property rule grounded in an author's natural rights and unique personality, and, on the other, an anti-monopoly, free-trade preference for a liability rule that would encourage wide dissemination of affordable works to serve the public interest. As the author of such a dual-purpose proposal, Pound emerges as remarkably and presciently alert to the dangers currently posed by lengthy copyright terms unaccompanied by limitations that adequately protect the public. Today, the estates of James Joyce, T.S. Eliot, Marianne Moore, Samuel Beckett, and other modernist authors use extended copyrights to discourage or control use of those authors' works by scholars, critics, and others. Pound's perpetual, royalty-based copyright would, in principle, have removed or reduced such obstacles to the study and enjoyment of modernist authors. Moreover, Pound's draft statute anticipates recent proposals by Richard Posner, Lawrence Lessig, and others for mitigating the conflict between the lengthy copyright monopoly and the needs of the public." [SSRN]
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