derivative work

According to Robert Brauneis’ new paper, “Copyright and the World’s Most Popular Song”, the song “Happy Birthday To You” — long held as an example by us copyright reformists — is most likely not copyrighted after all, due to the tortuous path of ownership and failure to re-register.[linked from patry copyright blog]

See also the brauneis website for the song’s history.

The author draws four important lessons, summarized here:

1. [T]he perils of using anecdotes in legal and policy arguments. (p.3) Hoho. Yes.
2. Noting the utter lack of litigation over this song, despite the weaknesses in the copyright and the money at stake ($2M/year), Brauneis suggests, “[T]he absence of such challenges strongly suggests that there are structural barriers to mounting them, and those structural barriers are worth exploring.”
3. Noting what was effective abandonment of the copyright of the work for long stretches of time, despite significant uses by others, Brauneis reminds readers that “Were “Happy Birthday to You” a piece of real property, its open, unopposed use over such a period could have resulted in the acquisition of prescriptive rights.” Developing doctrines of adverse possession / prescriptive easements to go along with the propertarian rhetoric of copyright maximalists has been on many people’s proposal lists (even I, as a lowly 1L in properly law, came up with this argument), but this article gives the “dead hands” arguments new teeth by tying the ongoing copyright term extensions to his newly uncovered history: “In light of that increase [in copyright term], it may be necessary to develop some doctrine to avoid the inefficiency and inequity that could result from reassertion of copyright in a work that had been published and used by others without opposition over a long period of time.”
4. A lesson about the difficulty in tracking copyright, and a reminder that that difficulty will only increase as copyright terms lengthen. Brauneis refers to Copyright Office records, which, reminder to readers, were decimated by the abolition of formal registration requirements in the 1976 Copyright Act. This is also an opportune moment to plug the Orphan Works Act, recently re-introduced in both the House & the Senate. (See beSpacific, 4/27; Wired Campus, 4/25)

Also, just in the matter of women’s musical history, Brauneis does a great job in recovering and fleshing out the story of Mildred Hill and Patty Hill.

This is great news. The Open Humanities Press (OHP) aims to be for the humanities what many similar archives and endeavors have been for the sciences.

It will begin including the following journals: Cosmos and History, Culture Machine, Fibreculture, Film-Philosophy, International Journal of Zizek Studies, Parrhesia and Vectors.

link from peter suber @ open access news

In Burger with a Side of Spies (editorial, NYT 5/7), Eric Schlosser calls for legislation to protect people from private entities, á la the Bill of rights.

The article discusses a number of incidents, including spying and infiltration
- by HP on journalists;
- by a private security firm on Greenpeace & other environmentalist groups; and
- most recently, Burger King on the Student/Farmworker Alliance.

I note that the article did not cover the related litigation against the RIAA’s minions, spying on your networks. Similarly, the article did not cover companies’ growing abuses of their employees. Still, a good start.

The current New Yorker (2008/5/12) is chock-full of good stuff:

* Malcolm Gladwell, In the Air, New Yorker. link from MC on closed mailing list

Invention is part of zeitgeist. Many people come up with the same ideas at the same moment — true in her field, my partner says, and it looks true from any study of the history of science.

Also I liked the section toward the end about how the practice of naming discoveries after the putative discoverer is silly at best.

* Tim Wu, Fan Feud, covering the J.K. Rowling / lexicon suit and hearing.

* covering NIN’s decision to release their new album for free on their website

This is highly amusing. A Constitutional flaw in the way that patent appeals judges have been appointed since 2000 (by persons without authority to do so) threatens to invalidate all the decisions made by a panel that includes a judge appointed since 2000. [My initial hearing of snatches of this made me think there was a problem with the Fed Circuit, which would have been even more hilarious! But this is pretty funny too.]

rotflol …

but seriously, folks, this will never happen. Congress will hastily fix the appointment process and pass a law grandfathering in the eight years’ worth of decisions. The grandfather statute will be challenged, and will be upheld on appeal as a lawful exercise of Congress’ power to regulate commerce. Decisions premised on this problem will be held off or actions stayed until resolution of the dispute.

Charles Miller, a spokesman for the Justice Department, said the government had no comment. “There is really nothing we can say at this time,” he said.

rotfl, rotfl …

But a 1999 law changed the way administrative patent judges are appointed, substituting the director of the Patent and Trademark Office for the secretary of commerce.

And now that Professor John W. Duffy has pointed it out, it’s so completely obvious! Of course the head of the PTO can’t appoint judges. How did nobody ever see this before? … Someone is going to be digging out their notes from nine years ago tonight and going “oh shit….”

teeeheeeheee…. i’m going to be chuckling on and off all the rest of the night.

Duffy paper @ SSRN

This just in from AP: Mildred Jeter Loving, of Loving v. Virginia, passed away on Friday 5/2.

A longer obit from the NYT. “Mildred’s mother was part Rappahannock Indian, and her father was part Cherokee. She preferred to think of herself as Indian rather than black.” I can’t tell if that was throughout her life, or just at the time of Loving?

“Mrs. Loving stopped giving interviews, but last year issued a statement on the 40th anniversary of the announcement of the Supreme Court ruling, urging that gay men and lesbians be allowed to marry.” (NYT). A longer statement is available at balkinization.

Surely some enterprising plaintiff-side attorney can generate a lawsuit from the reasonable expectations of consumers to continue to have access to the music they paid for:

Customers who have purchased music from Microsoft’s now-defunct MSN Music store are now facing a decision they never anticipated making: commit to which computers (and OS) they want to authorize forever, or give up access to the music they paid for. Why? Because Microsoft has decided that it’s done supporting the service and will be turning off the MSN Music license servers by the end of this summer.

MSN Entertainment and Video Services general manager Rob Bennett sent out an e-mail this afternoon to customers, advising them to make any and all authorizations or deauthorizations before August 31. “As of August 31, 2008, we will no longer be able to support the retrieval of license keys for the songs you purchased from MSN Music or the authorization of additional computers,” reads the e-mail seen by Ars. “You will need to obtain a license key for each of your songs downloaded from MSN Music on any new computer, and you must do so before August 31, 2008. If you attempt to transfer your songs to additional computers after August 31, 2008, those songs will not successfully play.” …

Bennett insists that MSN Music keys are, in fact, not yet expiring. Technically speaking, that’s true—if I authorize one of my PCs, never get rid of it for the rest of my life, and never upgrade its OS, I will be able to play my tracks forever. But as some of our readers note, this technicality is not rooted in reality—the authorizations will now expire when the computer does, for whatever reason.

quoted from DRM sucks redux: Microsoft to nuke MSN Music DRM keys, Jacquie Cheng, 2008/4/22, Ars Technica; connecting link from somewhere i forget

Source: More Clarity About Abuse,
Intermarriage, Child Breeders, and
the Fundamentalist Church
of Later Day Saints,
Sara Robinson, Orcinus, 2008/4/25

[Warren] Jeffs was convicted last year in Utah of forcing a 14-year-old girl into marriage with an older cousin.

I’m sick of these quotes that just talk about “marriage” and accept the use of that word.

If you are “forced” into “marriage” you are not married: you have been kidnapped (restrained against your will) and forced to engage in a marriage ceremony, but your marriage is not lawful and valid because there was no consent.

Will the defenders of marriage against homosexuals please stand up and take back your frickin’ word against these people who want to define it to include nonconsensual behaviors like kidnapping and rape?

This sentence or one like it was widely quoted in the media. One source is wtop, which has the new information that a large number of the teenage women/girls in the compound were currently pregnant or had previously given birth. I have no idea any more where I got this link from.

In case all this is not completely, crystal-clear, note the caption on the picture of Warren Jeffs’ father, Rulon Jeffs: “FLDS founding patriarch Rulon Jeffs with his last two wives — sisters Edna and Mary Fischer — on their wedding day. He received the pair as a 90th birthday present.” (emphasis added)

“Neither slavery nor involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Thirteenth Amendment to the Constitution of the United States

The feminist blogosphere has been erupting lately, showing our strengths and our weaknesses and faultlines. One of those faultlines is race, and the discussions over Amanda Marcotte (of Pandagon)’s work, BrownFemiPower’s work, and cultural appropriation have brought this out.

I’ve stayed quiet thus far on the issue, mostly because I have too many thoughts, and not enough time to do the full book-length essay I want to do and have been futzing about with for several years now.

But, since I am a feminist blogger [in addition to being an information activist blogger], and this issue is on the nose for my interests, I wanted to post something. I’ve been tinkering with a draft for a week or more, but finally scrapped it and wrote this one. And since this post is all about credit where credit is due, I’m going to single out two posts that influenced me and this post:
* Twisty’s recent post on the issue (Schooled, 4/23) helped me think through the need to speak sooner rather than later when I have the perfect statement;
* The Angry Black Woman’s post that she’s not going anywhere –in the missing voices of those who *have* gone away. (ABW Not going anywhere, 4/26). See also ABW On Feminism Part 2, 4/28.)

As Feministe (4/26) said: The question stopped being about plagiarism a long time ago, but that’s what I find myself still responding to; that’s what Amanda continued to respond to. (Well, long ago in blogospheric terms!) I understood this passage to mean that the plagiarism stuff was just the tip of the iceberg that has been revealed and now we’re talking about the whole iceberg, that is, racism and cluelessness in (white) feminism. As to what has replaced the plagiarism/appropriation, I’ve included links at the bottom about one of the issues — the imagery associated with the Marcotte/Seal Press book. But since this blog and my passion is about information and autonomy, it’s the plagiarism / cultural appropriation that I want to deal with (even though it’s “long ago”, as in, days and weeks old).

note: This post is long and rambly and goes a lot of places before it gets to its destination. Be forewarned. (This post was edited & tweaked & updated & corrected for a day or two after initial publication, as is my wont.)

Read the rest of this entry »

on LJ, which had this hilarious graphic about Elsevier. There’s an alternate text, too, so read the whole thing:

I just got a call from someone claiming to be a “domain notification server”. They had pulled our contact information off our domain record, and had a highly deceptive pitch, something like:

We are calling you to alert you that you will be receiving a notification regarding your domain, blah blah blah information from our domain record. Please give us your fax number…

Only, more misleading. I was like, Is this really about my domain? Is this a DMCA notice of some sort? Is this a spammer? To the direct questions: “Do we have an existing business relationship?” the person was confused and couldn’t really answer off-script. To be fair, “Alex” wasn’t speaking in his native language — clearly Indian, so could have been US-based or outsourced. Eventually I got enough information that I determined with 98% certainty that this was spam, and told them to take us off the call list. He said he would, which confirmed that it was indeed spam.

wtf? We’re on the do-not-call list. Is this a racket anybody else has encountered?

The cuss-o-meter says only 21.5%. That is not the high standard I set for myself in conversation as a youth. Also, the quiz says that “This is 139% MORE than other websites who took this test.” What does that mean? More than the average, I presume?

Created by OnePlusYou (Yes, this is one of those quizzes/gimmicks/ploys that attempt to drive traffic to the originating site. The site is a dating site and not as interesting, IMO, as the quiz. I have added a “rel=”nofollow”" to my link so as to not assist any google-bumpage, and taken the liberty of making the text small per my own site style, and adding this note. But in the interests of credit & freedom, I have left the link active so that you, Gentle Reader, may feel free to click-through.)

There’s been a blog flurry about the use (dare I call it “appropriation”?) of the term “open source” for a project aimed at facilitating gropes of women’s breasts at SF cons. The project was called the “open source boob project” and proposed to pass out buttons so that people (”women”) could affirmatively opt-in to the project and say: “yes you may” or “no you may not” (ask if you can grope my breasts).

The original poster was unfortunately clueless about sexism, and writing from a position of utterly unexamined privilege. Many, many gajillions of postings have pointed out the numerous ways the proposal is bad:
* it makes people (”women”) feel unsafe
* it makes people (”women”) feel pressured to participate
* since cons are also meetings for people in the SF trades and professions, it may pressure people (”women”) to participate to advance their careers, in the fine old school tradition of sexual harassment

… I could go on, but instead I’ll just point to the feminist SF blog and FSFwiki and Feministing for summaries and links. Particularly noteworthy responses include:
* open source swift kick to the balls by misia
* open source african hair project from plastic sturgeon
* The Open Source Women Back Each Other Up Project! by vito_excalibur
* Open Source Male Assholes by springheel jack, excellent for its libertarian fallacies analysis. My only complaint is I wish that the author had used the capital L Libertarian, since there is, in fact, a large thread of libertarian thinking that specifically recognizes social inequalities: anarchism, the original and still the best “libertarian” philosophy/analysis/action plan.

The thing that caused me to post about this over here, as well as interacting with the general blog furor, is the appropriation of the term “open source”. This also did not go over well. But isn’t it interesting the way “openness” and “open source” has become some sort of synonym for permissiveness? Despite the massive way this is a completely wack analogy? (see inhammer, below)

Links discussing the open source aspect include:

• matthew garrett
• inhammer: failure of metaphor
• rivkat: “a category mistake of the ugliest kind”
• In a comment on the Rivkat thread, Ithiliana picked up Rivkat’s phrase “Bodies are rivalrous” and made an awesome LJ icon: Later…: I keep coming back to this image and staring at it. Honestly, I just love this so much that I want it plastered all over my blog, my shirts, my bumper stickers, and maybe my household windows.
• designated sidekick at girl-wonder.org extends the metaphor to “closed source misogyny” and suggests “Let’s put our male entitled view of women’s bodies as our property to use, modify, open source and otherwise interact with into a neatly closed source wrapper, bundle it in DRM, load it on an iPod and repeatedly strike our narrow minded selves in the face until the bleeding starts, and continue until the ability to stand upright stops.” Hear, hear.

Word on the street is starting to trickle in that the popular music was not licensed:

* John Lennon’s “Imagine” was definitely used without permission. The Lennon estate + EMI are suing. (See Reuters, 4/23 (link from pharyngula); the NYT, 4/24; and Paste Magazine. (I can just picture the graphic on The Daily Show: “Ono you di’n't!”)

* I’m also hearing that The Killers (”Personal Jesus”) didn’t authorize. (See comments on earlier posts.) … And now I’m hearing that they did authorize, but were duped into doing so. See the playlist.

Updates as available.

4/28 update: It looks to me as if copyright infringement was at least anticipated and planned for, and the case that the copyright infringement was an intentional gambit by Premise Media to inspire litigation is considerably stronger: Check out this press release by Premise. They’re trumpeting the litigation, and note that they reference it as litigation by the “beloved Yoko Ono.” Tapping into popular dislike of Yoko Ono — which had significant racist and sexist over-, under-, and in-the-middle-tones — Premise Media continues to demonstrate that they are a class act. Their behavior reflects on the religion they profess and promote, of course.

Other discussions on the issue:
* metamagician
* Lippard Blog

Just a list of links for the flurry of postings on this topic:
* Bug Girls’ Blog, Weekly WTF: More threats by Creationists, 2007/7/12; related Pharyngula, 2007/7/11; Bug Girl’s blog, 2007/7/20
* Bug Girl’s Blog, Creationist Death Threats, Part 2 (2007/8/24)
* Pharyngula, Another example of amoral religiosity, 2007/8/24
* Sunclipse, Creation, Power and Violence (2008/4/18)

New Jersey’s Supreme Court has recognized that people have a reasonable expectation of privacy in their email communications — thus, law enforcement has to get a search warrant or grand jury subpoena. This was under the New Jersey Constitution and applies only to New Jersey. It’s the first major case finding a state constitutional privacy right in electronic records.

Awesome librarian (and friend) Jenna Freedman has been on the LCSH (”Library of Congress Subject Headings”) for a while for its many failures to recognize current topics and language. She just posted about the new and revised headings, including a new heading for Fair use (copyright).

150 Fair use (Copyright) [May Subd Geog] [sp 85046891]
* 450 UF Fair use (Copyright)–Law and legislation
* 550 RT Library copyright policies

You can follow the ongoing saga of feminism, freeganism, and other opportunities for in-cluing the LC, at Jenna’s blog.

So at the end of this long post about Expelled and copyright infringement, I appended some rewritten lyrics to the tune of “Spirit in the Sky” :

When I copy and they tell me “desist”,
Gonna go to the place that’s the best
When I get caught in a lie,
Goin’ up to Designers in the sky
Goin’ up to Designers in the sky
That’s where I’m gonna go when I lie
When I lie and they tell me desist
Gonna go to the place that’s the best.

DJ actions might come a bust
Gotta have a friend in Jesus
So you know that when you lie
He’s gonna recommend you
To Designers in the sky
Gonna recommend you
To Designers in the sky
That’s where you’re gonna go when you lie
Steal in God’s name but they tell you desist
You’re gonna go to the place that’s the best

I sorta copied and I maybe infringed
I got a friend in Jesus
So you know that when I lie
He’s gonna set me up with
Designers in the sky
Oh set me up with Designers in the sky
They’ll protect me when I lie
Texas judges might not let me rest
But Designers will protect me the best
Gonna go to the place that’s the best.

I thought it was free will but it was all part of some greater cultural zeitgeist. Today, PZ Myers linked (in a post called “RIAA bait” — boy, their reputation sucks, doesn’t it?) to two others that must be read and hummed along to:
* Imagine (Ben Stein’s Ethics) (from MJS on Corrente)
* Bensteinian Rhapsody (from MartinC posted on Stranger Fruit)

And then in the comments thread many people started posting their own rewritten lyrics — there are some amazing ones. (I posted these there too.)

Do I sense a phenomena? Will Expelled inspire all the rewritten lyrics the way Fellowship of the Ring (1) inspired a gajillion rewritten poems? (I still love the one I did based on Whitman’s Song of the Open Road).

Yesterday I excitedly pointed to this io9 blog entry about vat-grown meat: “You see!” I told my partner. “You see! I was right. We are going to have vat-grown meat, in our lifetime !!!”

The “I was right” or “you were right” is the gold ring of our relationship. The ch-ching it makes when one gets one — ah, I live for those moments.

We had previously argued about this a few times. My partner — a biologist, like P.Z. Myers (aka “Pharyngula”) — has long held that it is impractical, that you need medium to grow it in, blah blah blah technical objections that impede my vision, blah blah blah. I think this technology will provide us transplantable organs, vat-grown meat, and perhaps external uteruses (eventually). She has argued instead that for things like organs and vat-grown meat, we should be cloning humans or animals without brains [and other stuff, that I can't remember right now] , and harvesting organs from those living brainless creatures. Needless to say I find this utterly repulsive, frightening, and vaguely unethical. “But,” she points out, “the thing that makes us human is our brain [etc]. A clone of ourselves without a brain is just a bag of organs.” Then I bring up the birth of severely disabled children, and we get going on yet another round of the unsolvable discussions that occupy our time.

But lo, today, in response to the same vat-grown meat story that I trumpeted, Pharyngula posted this response arguing that instead of building brainless humane meat from cellular matrices & tissues & then adding support structures, we should be building it top-down — stripping the sentience from our food animals. Needless to say, this is as disturbing as my partner’s vision of brainless clonal twin organ farms. Isn’t this basically what Brave New World did to the various classes of people? If we do accustom ourselves to get over the squick factor about this, isn’t that actually — well, risky and scary?

My partner accuses me of falling prey to Bushian “culture of life” mysticism. Sentience, pain perception, fear, anxiety, happiness — all the things that make killing animals for food inhumane would be irrelevant if the food stuffs had the biological capacity to feel those things removed. I admit my arguments get a little weak around this time. “Muscle memory,” I counter, suggesting that our sentience, while centered on the brain, is perhaps also holistically grounded in our entire body. She mocks the “muscle memory” argument mercilessly.

Anyway, the real point is that their arguments are disturbingly similar (and similarly disturbing). Possibly related to the fact they’re both biologists. On the other hand, I never have seen them in the same place at the same time.

(Also, all this reminds me of Rudy Rucker’s Software, Wetware, etc. — which my partner introduced me to. Cloned human meat was popular — also vat-grown I think — and one of the characters actually made a ton of money from allowing herself to be cloned into one of the most popular burgers. While funny and thought-provoking and all the other good stuff that Rucker & SF generally are, I gotta say that this squicked me out more than almost anything else I’ve read in SF.)

How did I miss this Alabama story?
Greg L. Gambril, a DA in south Alabama (Covington County), is prosecuting women for endangering their fetuses under a chemical endangerment law intended to protect children from meth labs — “chemical endangerment of child”.

“When drugs are introduced in the womb, the child-to-be is endangered. It is what I call a continuing crime.” He added that the purpose of the statute was to guarantee that the child has “a safe environment, a drug-free environment. No one is to say whether that environment is inside or outside the womb.”

Tiffany Hitson spent her daughter’s first year in Julia Tutwiler Prison. He has prosecuted at least eight women under this law.

WTF is wrong with this asshole? Does he really not have anything better to do? Can’t someone disbar this motherfucker for blatant prosecutorial misconduct in using a law (a) to target crimes not intended to be reached, and (b) in violation of women’s constitutional rights to privacy?

Oh, no, wait — I forgot. Alabama is fucked up and the rest of the country just lets it stay that way. Women in Alabama, women in religious cults in Texas — fuck ‘em.

I know the ACLU of Alabama is overburdened, but come on.