UCLA v. AIME – more good news

The court finally issued its order dismissing the case in the AIME v. UCLA case. (The second amended complaint, in case you’re counting.) In short, it was another big victory for libraries. The court affirmed all its earlier reasoning, and deepened its reasoning in a few key areas.

Here’s a quick summary — more discussion will be out on all the usual places in the near future, I’m sure.

Sovereign & Qualified Immunity Defenses
– All claims against Regents and claims seeking damages against individual defendants in their official capacity were dismissed because of sovereign immunity.
– The officials were also protected by sovereign immunity for their supervisory activities.
– The officials also had qualified immunity because the actions taken were not clearly copyright infringement; where there is at least some reasonable ambiguity around fair use, one could reasonably believe the action is fair use, and not copyright infringement. “The Court finds that a reasonable person would not have known that the alleged conduct violated any clearly established rights pursuant to copyright law because it is ambiguous whether the use was fair use under copyright law.” More on that below.

Associational Standing
– The earlier holding that AIME does not have associational standing still applies.

Interpreting the License
– The earlier holdings on interpreting the license language still apply — the court had said the activity looked like a “performance” not a “distribution”. However, the court also examined the “distribution” claim, and made a couple of key holdings: (1) The streamed copy on the end-user’s machine is not “fixed” and does not therefore constitute a “distribution”. (2) The licensing agreement language prohibiting broadcast or transmission over an “open or Internet system” did not clearly preclude the closed intranet system. Conflict between the marketing brochure and the licensing language created ambiguity which could be exploited by the library.

DMCA Anti-Circumvention
– Very nice interpretation of the DMCA anti-circumvention: Because UCLA had lawful access to the content of the DVD, their circumvention was okay. Oddly, the Court didn’t look to the DMCA anti-circumvention exemptions.

Fair Use
– Intermediate copying (to put the files on the streaming server) was “incidental fair use”.
– The streaming activities themselves were also analyzed for fair use, in the context of the officials’ qualified immunity. Thus, the Court did not fully assess whether the streaming itself were definitively fair use; only whether they were plausibly fair use. The Court found only that there was at least a strong argument about fair use, and so the officials were not liable for copyright infringement. It is clear, however, that this Court felt the activities were fair use.
The court found that the purpose and nature favored fair use — no discussion at all.

The second factor — the type of work — was neutral because, although these were creative works, they were used in an “informational and educational context”.

The third factor was “slightly” against a finding of fair use because the entire work was streamed: The “time shifting” argument was “compelling” and tipped this toward only weighing “slightly” against fair use.

The fourth factor weighed in FAVOR of fair use because someone watching the streaming DVD in a classroom has no effect on their likelihood of buying.

Overall, this is a very helpful analysis from the perspective of libraries.

Non-Copyright Claims
– The various state common law claims were preempted by federal copyright claims.

The full opinion can be read at scribd.

my two-year-old, on copyright

Grabbing a couple of my paperback books, my two-year-old pages through them and engages in a lengthy monologue.

A: “This is about Mamiche’s copyright car. I’m just going to read this page and then go back to the cat page. Okay! Let’s go back to the cat page. This book is your book and it is about copyright. This is your book.”

me: “Thank you,” I say, accepting the book she hands me.

A: “Read it, and then it is my copyright. This is called Mamiche’s copyright. This is MY copyright, and this is YOUR copyright, and this is MY copyright. Here it is.” She shifts into a downward dog pose and holds the book below her. “I need my copyright. When I get my copyright I tell Mamala [ed.: that's me], ‘I need my copyright now!’”

I am speechless.

celebrity sex tapes: tell us something we don’t know

Broadsheet @ salon.com is usually a pretty fair source for recycled news and commentary about women, gender, and sexuality.

But Tracy Clark-Flory’s recent commentary about yet another celebrity sex tape — Kendra Wilkinson, who I had to look up after reading this article — is possibly one of the most pointless articles on the phenomena I’ve ever read.

Clark-Flory gives a brief review of the facts — sex tape made; released for big bucks by ex-boyfriend who made the tape; Wilkinson trying to get a C&D on privacy grounds. She then reviews the Paris Hilton and Pamela Anderson sex tape litigation — primarily copyright litigations that were settled. Then she concludes that Wilkinson is not likely to succeed because the video has hit the Internet and quotes a lawyer who says if you don’t want your sex tape released don’t make it.

Wow, how insightful.

Could we please talk about the merits of the privacy argument, which is the only real piece of this that makes it a gender issue? (or interesting at all)

Or maybe talk about the phenomenon of women’s boyfriends releasing privately made sexual materials? How that implicates privacy law, as well as ethics and sexism? Instead of quoting a lawyer (male) who says if you don’t want your sex tape splattered on the Internet, don’t make one; why not tell women not to leave their sex tapes in their boyfriends’ hands ????

limewire / grokster

Summary judgment against Limewire on a number of key points, including inducement à la Grokster. As predicted, footnote 13 of Grokster is troublesome.

Obama’s ongoing copyright industry promotion: FTC edition

aka, “the copyright industry suckup continues”, this time with the elevation of FTC commissioner Jon Leibowitz to Chair. Leibowitz is a former MPAA lobbyist (well, “vice president for congressional affairs”).

The DOJ and current copyright conflicts of interest

The Dept. of Justice is threatening to weigh in on one of the numerous cases relating to the Constitutionality of statutory damages in copyright law. In case anyone hasn’t heard this, the Obama Administration has larded the DOJ with numerous copyright litigators and lobbyists.

I just sent the following letter to whitehouse.gov:

I’m writing in regard to the Department of Justice’s stated intent to intervene in the case, Sony BMG Entertainment Media v. Cloud. This case is one of several seeking Constitutional review of the egregious statutory damages available to copyright plaintiffs, which can be up to $150,000 for a single instance of copyright infringement, regardless of any actual damages.

I strongly urge the Department of Justice NOT to intervene in this and similar matters, based on clear conflicts of interest of top decision-makers at the Department of Justice.

The Administration has appointed numerous officials at the DOJ who have been formerly active in the issue precisely at stake — copyright enforcement and damages. Unfortunately, however, the appointments have not been representative of all sides of this issue, and have resulted in an imbalance in the nominees for decision-making positions at the DOJ. Neil MacBride, Thomas Perrelli, and Donald Verrilli, in particular, have all represented the trade associations for the copyright industry.

Thomas Perrelli, Managing Partner at Jenner & Block, has been nominated for Associate Attorney General of the United States. At Jenner & Block, he has represented the Recording Industry Association of America (RIAA) and Sony BMG — the very client at issue in this litigation.

Donald Verrilli, another partner at Jenner and Block, is President Obama’s nominee for Associate Deputy Attorney General, and has stated that he is likely to have a civil portfolio. Mr. Verrilli directly represented the recording industry in the “Jammie Thomas” case, the infamous case that resulted in an almost quarter-million dollar judgment against a single mother for making 24 songs available on a P2P network. Moreover, he was the lead attorney for the RIAA, personally delivering oral argument at the hearing in which the Court threw out the verdict.

Clearly, all former Jenner & Block attorneys now at the Department should recuse themselves from the decision-making process, as should any other attorneys who directly represented clients on matters adverse to either of the parties in this important Constitutional case.

Unfortunately, however, because the Department of Justice has so many appointments representing one side of copyright-related matters, any intervention by the Department on behalf of Sony BMG in this case carries not just the appearance, but the actual risk, of violation of President Obama’s conflicts of interest policy. An ethical firewall will not suffice to remedy the conflict of interest when multiple top decision-makers are similarly conflicted.

Therefore, I strongly discourage intervention by the Dept. of Justice in this case and urge President Obama to consider balance in copyright and information policy in his future nominations. I also inquire specifically as to whether Mr. Perrelli and Mr. Verrilli have committed to recusing themselves in this and related matters, and what steps they plan to take to create an ethical firewall between themselves and the relevant decision-making processes.

Best regards,

etc.

Thanks to Jonathan Band for flagging the issue on a list, Mike Masnick at techdirt for the brief summary & relevant links, and Kevin Donovan at freeculture for his submission (which I took as my starting point).

Google Book Search panel at ALA Midwinter

The ALA’s Copyright Subcommittee (Committee on Legislation) is hosting a panel on the Google Book Settlement at ALA Midwinter this year — Saturday at 1:30 at the Grand Hyatt. (I’m on the committee and on the panel.) Should be interesting.

Come to the Google Book Settlement Session at ALA Midwinter Conference January 24th, 2009, 1:30-3:30, Grand Hyatt, Maroon Peak Room

If you’ll be at ALA’s Midwinter Conference in Denver at the end of January, please check out the session “Google Book Search: What’s In It for Libraries?” The open forum will be hosted by the ALA Committee on Legislation’s Copyright Subcommittee to discuss the proposed Google Book Search settlement. The discussion will take place on Saturday, January 24, from 1:30 to 3:30 p.m. at the Grand Hyatt, Maroon Peak (listed as the Washington Office Breakout Session IV – Google Book Search in the program).

Panelists will include Dan Clancy, Engineering Director for the Google Book Search Project, Karen Coyle, Digital Librarian and Consultant, Paul Courant, Dean of Libraries at the University of Michigan, and Laura Quilter, Librarian and Attorney at Law. The session will be moderated by Nancy Kranich, chair of the COL Copyright Subcommittee. Following brief opening remarks by each panelist, there be an opportunity for dialogue and questions from the audience.

Additional information about the proposed Google Book Search settlement is available at http://wo.ala.org/gbs/.

new US Trade Rep; same bad Hollywood favoritism

see below for update 12/19

Obama has appointed the next US Trade Representative, current U.S. Representative Xavier Becerra (D-CA 31); see also Becerra’s House site. Unfortunately, it looks like he’s going to be in the pocket of tank for Hollywood, just as prior USTR’s have been.

A few notes from some fast research (“googling”):

* He’s a Dem from LA. That’s almost saying enough right there.
* The Washington Times (crazy! but it’s what news.google.com pointed me to) reports:

With strong ties to Hollywood, Becerra fought to have the film industry included in the $137 billion tax bill. He wanted to stem the exodus of film production overseas and to Canada with tax-code changes.

* Google shows him on many, many events with, for, or about Hollywood, P2P, etc.
* He’s taken money from copyright maximalist PACs, e.g., $3000, Jan-June 1995, which went waaay up over the next decade: $38,750, 2005-06 (plus $3000 printing, for a total of $41,750 from copyright industries, against $12,000 from telcos & Internet companies). In ’07-’08, he took $47,500 from Hollywood, plus $5,000 from printing & publishing. Cost-of-lobbying increases, I guess. open secrets

But, while it may be bad on the copyright-front (did we expect anything good?), it’s not necessarily all bad. Like I’ve noticed before, Hollywood copyrightists who can’t see the public interest in copyright can definitely see it in patent law. Becerra cosponsored the “Genomic Research & Accessibility Act” to ban gene patents. Michael Crichton, Patenting Life, NYT, 2/13/2007

Last Friday, Xavier Becerra, a Democrat of California, and Dave Weldon, a Republican of Florida, sponsored the Genomic Research and Accessibility Act, to ban the practice of patenting genes found in nature. Mr. Becerra has been careful to say the bill does not hamper invention, but rather promotes it. He’s right. This bill will fuel innovation, and return our common genetic heritage to us.

He’s also done some pro-librarian work, for example, seeking to add librarians to loan forgiveness plans, e.g., by introducing the Librarian Education & Development Act of 2003 (HR 2674).LIS News 2004/6/9

And of course in other areas — human rights not dealing with access to knowledge — he’s pretty good. So, the task is to get the access to knowledge message to him …

update 12/19 So Becerra turned down the job on Monday (12/15), and instead Obama has appointed Ron Kirk, former Mayor of Dallas, and supported by tech. tech daily dose, from private list

another exercise by the military-industrial-entertainment complex

The entertainment industry has succeeded — at least theoretically — in passing off more of their enforcement costs to the federal government — i.e., the taxpayers. Nice use of government dollars at a time of financial crisis, Congress! Bush signed the “Prioritizing Resources and Organization for Intellectual Property Act” (“PROIPA” ?) which, besides shelling out a lot of money to make the Dept. of Justice hunt down copyright infringement, also creates the office of the Copyright Czar.

Will the Copyright Czar be as effective as the Drug Czars? One can only hope.

Variety 10/13

* PS — double points if you can identify the source of the phrase “military-entertainment-industrial complex”, without Googling it. Hint: It’s from a pop culture source in 1996.

saying goodbye to sivacracy

Siva is shutting down Sivacracy. From the inside, it feels right. There are lots of voices talking about copyright and information policy now, and all of us Sivacracy bloggers have enough other balls to juggle.

From the outside, though, the other part of me is saying, “hey but I’m going to be reading blogs again, sometime! and when I do I won’t have Sivacracy!!! Dammit!”

It’s true that all good things come to an end and it’s such a rare pleasure to find closure on the Internet and someone who knows how to wrap things up (god knows that’s not my strength). But no Sivacracy. Damn. The Internet will be a poorer place.

Below is my farewell to Sivacracy, cross-posted, of course, on Sivacracy:

see you all at the sivacracy reunion

It’s just like Siva to wrap things up in style. Book-ending the blog officially.

Over the years, Sivacracy has been literally one of the only blogs that I read every day — multiple times a day — and starting my day at Sivacracy brought new insights, new ideas, new analyses, new arguments. It has always been such a pleasure to have a place to read cutting-edge opinion and news on issues that mattered so dearly to me: information policy, feminism, culture, education, science, politics.

And always quirky and humorous, and open. Many blogs have comments enabled, but few blogs are truly open for dialog. Sivacracy was, for me, a model of committed, activist academic blogging.

So I was truly honored when Siva asked me to participate, and although I joined the blog just as my blogging energies were waning, every time I made a post I felt a warm glow. Posting to other Sivacracy readers felt like an “oh by the way” to other people — not an anonymous blog readership — but intelligent, questioning, curious folk, who share a lot of peculiar passions, and would be fun to have dinner and a few drinks with.

It’s been a pleasure. Let’s have that dinner party sometime. A Sivacracy reader/blogger reunion sounds like a blast.

Cheers,

Laura Quilter

copyright and state statutes

California has followed Oregon in claiming copyright over its state statutes.

new blizzard decision

how on earth does blizzard keep winning these horrible cases? do they bribe the courts?

Patry covers the new case on software cheats, MDY Industries v. Blizzard.

How one might ask can there be a violation of the Copyright Act if no rights granted under the Act have been violated? Good question.

To get to its result, the court had to first find that WoW, even though sold over the counter, was licensed not sold. … Having found there was license not a sale, there still had to be a breach of the license in order to permit an infringement action to lie, and recall here that the claim is not one for direct infringement, but rather secondary liability; there was no privity between the parties. There was in fact no provision in the license that barred use of WoWGlider. The court took the extraordinary step of stitching together two unrelated provisions to create one. You have to read it to believe it, but it took the court 8 pages to go through this hard work, and why? Was the court offended by what it regarded to be cheating? If so, God help us if law is being reduced to such subjective, non-statutory grounds.

Read all of Patry’s analysis, as well as the opinion.

links from G.B. @ Public Citizen

©rappy birthday to the ©opyright alliance

Bill Patry was withering in his critique of the Copyright Alliance’s efforts to define itself as one of the big kids. For example,

Leaving aside the painfully juvenile use of © in voi©e, the math used by the Alliance challenges even the math used by the IIPA in its annual country “piracy” reports.

That is pretty funny, and you should probably go over there & read Bill Patry’s scathing comments instead of my own overheated meanderings. If you’re staying here, you should know that basically the Copyright Alliance is an organization designed to give voice to copyright-holders, the “11 million Americans whose livelihoods depend on the principle of copyright.” Not just give voice, but “one voice”, as their new ad campaign says.

In the few minutes I had today between efforts to get various air conditioners running (thank you, East Coast heatwave), I spared a few of my non-melted brain cells to this organization and its ad campaign. “One Voice.” Probably not an original observation, but one voice for copyright holders — or even those who profit from copyrights — is utterly impossible. There are just too damn many of us and our personal financial interests in copyrights are far too diverse for us to have remotely any ability to speak with “one voice” on copyright. Every creator is representing reality to some extent, but every aspect of reality that they represent also has its own interest. Photographers’ interests are in opposition with those of their subjects and the creators of their subjects and of course those who commissioned their works. Everybody is in opposition with those who seek to represent the same slice of reality

The copyright industry, in fact, has shot itself in the foot. By expanding copyrights ever further, they have in a sense radically democratized copyright ownership. We all now have copyrights in every chicken pot. Instead of a limited monopoly granted only to a few for a short time — a compromise most of us could roll with in order to keep those few doing what they did — now copyright is something that each of us has over all kinds of stuff, and something that each of us interfaces with multiple times on a daily basis. Thus with everybody holding and using multiple copyrights simultaneously we all have the potential to interfere equally with one another. It’s like mutually assured destruction, and so it’s no surprise that some folks are going to advocate for copyright disarmament.

My brain cells really are melting into one another — the similes just keep on coming. I am also reminded of the Libertarian Heinlein myth that an armed society is a polite one — the “wisdom” goes that if everybody has a gun, then everyone has an interest in being polite to everyone else. So too must have gone the wisdom with copyright at some point — if we all have copyrights then we will all be interested in respecting them, we can all live together in the best of all possible copyright maximalist worlds. But the Heinlein armed society is a myth because people may not act in their own self-interest, or their definition of self-interest may not correspond with your definition of their (or your) self-interest, or their self-interest may be benefited by disproportionate harm to others’ self-interest, or they just may not be able to act in a way that makes reciprocity function smoothly … well one could go on for a while but it’s like Dick Cheney shooting birds in a blind — too easy to be sportsmanlike. Anyway just as the Heinlein armed society is a myth, so too is the universal copyright / copyright-respecting society. Everyone can probably find someone to agree with them about how copyrights should be defined, respected, used, and so on, but the differences in opinion mount so quickly it’s hard to imagine a large group of individuals sustaining “one voice” for any significant amount of time.

So there you have it. Heat-addled ruminations on the decline and fall of the copyright industry and its lobbying arm. I’m spinning off into ecological models now, with the copyright industry outgrowing its ecology in the absence of natural predators, so I think I’m going to go splash some cool water on my face & lie down in the shade.

happy birthday is free after all

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; mebeliWired 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.

Expelled without a license

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

fair use (copyright) coming to an LCSH near you

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.

Expelled copyright infringement, cont’d

update 4/16: Both a commenter here and also P.Z. Myers have reported that Expelled filmmakers Premise filed on Monday a DJ (“declaratory judgment”) motion on XVIVO‘s copyright claims against them — i.e., asked a judge to look at the evidence & say that they are not infringing. Premise v. XVIVO, N.D. Tex., 4/14/2008.

Here are links to the PDFs of the
* complaint , and
* the statement of interested parties.
And may I just note that PACER is a pain in the ass?

Also via that same post @ pharyngula, Sarah S @ ERV reports that they copied not just the XVIVO video but other sources as well. Quel surprise.

Previous posts:
* Copyright claims against Expelled
* “Expelled” music licensed or not?

Thoughts on reading the complaint below the fold:
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you paid for it; who owns it? Wal-Mart’s contracted recordings

So, Wal-Mart is fighting with its former video contractor over ownership of a variety of recordings of internal Wal-Mart affairs.

An aside: From the description, it seems like some of them might have been automatically captured footage. The question of copyright over surveillance camera footage and other automated recordings is an interesting one, I think, opening up questions that touch on originality in copyright law; artistic intent; purpose of copyright law; norms; blah blah blah. In the land of amazing coincidences, the sort of coincidences that one’s human pattern-seeking brain wants to interpret as cosmically weird or destined or psychic or deistic intervention, but isn’t — in that land, my partner & I were having a heated debate over this very issue, just the other day, before we had heard anything about the possibly relevant Wal-Mart case. What are the odds?!? Given the geeky arguments which infest our home on a regular basis (and the tenuous connection of that discussion to this issue) — pretty good, I’d say.

At any rate, there’s some 15,000 tapes that the company (Flagler Productions) took of Wal-Mart over the years. Wal-Mart used them for holiday parties & whatnot; family style blooper reels to amuse the employees, I guess. Eventually Wal-Mart cancelled their contract with Flagler, which, trying to figure out how best to turn a profit from the mess, decided to sell the videos. Who’s buying? Clip services, documentary filmmakers, litigants, union organizers … Heh heh.

I bet some in-house attorney who failed to include an IP assignment clause in the service contract (or notice its absence) is in trou – ble.

Aside from one’s usual disdain for things Wal-martian, one can’t help but sympathize with the frustrated administration that generated this statement:

“It’s difficult to understand how the company could now sell to third parties the material we paid it to produce on our behalf. … Needless to say, we did not pay Flagler Productions to tape internal meetings with this aftermarket in mind.”

Needless to say.

On the other hand, there’s a certain poetic justice to it: Wal-Mart photo developing is one of the many, many places that have given consumers grief because they couldn’t prove copyright ownership of photos deemed “professional quality”, or that were commissioned for weddings, family portraits, etc.

(link from Howard Besser)

Copyright claims against Expelled

4/11: I had previously (3/27) drafted a brief commentary on Expelled‘s use of copyrighted material. Then, I unposted it while I checked on something, to try to make it more complete. I hadn’t gotten back to it, when the other shoe dropped: One of the copyright holders’ whose material was used in Expelled wrote a published a draft cease & desist letter to the filmmakers. So, I’m re-posting my original comment, even though I haven’t yet had a chance to figure out the licensing status of the animations in question, and I’m doing a more detailed analysis below of the current set of claims. Consider this a rough draft of an analysis.

In part, I’m rushing this out because there are a few misconceptions about copyright and fair use on the Pharyngula blog comment thread. I’ll have to come back & add in the relevant cites when I’ve got a bit more time (probably not before Sunday), and I may have more considered analysis at that point. Right now, this is my quick first impressions on the merits of the claims that XVIVO is making, and the merits of the likely defenses that Expelled could raise.

I’ve gotta say, I’m rarely so personally sympathetic with a cease and desist as I am with this one, a letter from Peter Irons on behalf of XVIVO to the makers of Expelled, for using without permission a biology animation that XVIVO did.

However.

The misuse of science is not the same thing as the misuse of intellectual property, and I have, unfortunately, a number of problems with this cease & desist letter. My problems are more tactical and, of course, from the perspective of a fair use / information policy attorney. But I’ll go through a bit of legal analysis first, because there are some interesting questions. If you don’t find details of copyright interesting, skip to the last 3 paragraphs.

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professorial copyright wackiness

This professor is claiming that a student note service violates his copyright on his lectures. (wired 4/4, link from Fred @ EFF on a mailing list)

Student note services gather actual student notes of lectures, and sell them to students — who presumably missed a lecture, took bad notes themselves, or want to see another professor’s take on the matter.

What am I missing? The professor is giving an oral lecture, based on his copyrighted “lecture”. (What, notes? sentences? powerpoint slides?) Unless he reads his copyrighted lecture verbatim in class, then his lecture as given is not the same thing as his copyrighted lecture. Copyright requires fixation in a tangible medium, so I don’t see how he has a copyright in the lecture as given.

He argues that he fixes his lecture in writing on overhead transparencies. That’s not going to be a fixation of the lecture as given, either.

Then he also argues that he records his lecture. That’s more solid, but I’m not sure simultaneous fixation is going to work in the non-broadcast setting.

At any rate, notes from a session would seem to be inarguably fair use, or even non-infringing. There’s an early 1900s English case that actually dealt directly with lecture notes and held that they were not infringements. I’ll have to dig that up.

I’ll be interested to see what the pundits think about the legal specifics of this and where I’m wrong. In the meantime I’ll just note that the word “schmuck” leaps to mind.