Tag Archives: copyright follies

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.

arrested for 20-second recording

Some poor kid took a short clip of the Transformers movie, and was hauled out and arrested. The theater (Regal Cinemas Ballston Common 12, in Arlington, Virginia) is pressing charges that could land this 19yo in prison for a year for the 20-second film clip. She recorded the clip to show her little brother, because she thought it would get him excited to go see the movie, too.

I think the only good outcome of this is that the theater has lost years of revenue from this young woman because in addition to trying to put her in prison for a year, they have banned her from their theater for life. Hopefully her friends will boycott the theater on her behalf too.

If you have any thoughts about the ludicrous nature of this prosecution, feel free to share them with the theater at (703) 527-9730; Regal Cinemas at 877-TELLREGAL (1-877-835-5734); or the Arlington, VA, Office of the Commonwealth’s Attorney at (703) 228-4410.

Her trial date is set for August 21. She’s being prosecuted under a new Virginia statute that criminalizes using cameras in movie theaters.

Further reading:

  • Washington Post 8/2
  • USA9.com
  • excess copyright
  • Two commenters on slashfilm note that “Regal offers employees, most of whom make minimum wage, $10,000 for catching a ‘pirate’. I’ve never heard of anyone getting it.”1 and “the MPAA gives a cash reward (Around $500 last time I checked) to whoever reports someone for using any kind of recording device in a move theater”2

cross-posted at sivacracy

update 8/9:

  • free culture NYU calls for a boycott.
  • a commenter posted the email address for the VP of investor relations: ddelaria at regalcinemas.com
  • a commenter at sivacracy suggests that people at arlington do a mass protest and everybody record 20-second video clips.

Wiley copyright imbroglio at science blog

Last week a copyright imbroglio broke out at a science blog which had written a post critiquing mainstream coverage of a science article; the blog had posted a figure from the paper to demonstrate bad science writing in the mainstream media. Wiley sent a C&D; the blogger agreed to take the material down (actually took the data and recreated the figures herself) but posted about the incident; a blogstorm erupted (see also coturnix); THEN Wiley apologized … and the blogger as far as I can tell just left her own recreated figures on the blog post, and who can blame her? It’s a (relative) pain in the ass loading images on a blog.

So some good will come out of this incident: that a bajillion people will have heard the words “fair use” and been inspired to participate in discussions about open content, fair use, control of information, etc.

I really, really hope that people do *not* take the lesson that if the publisher had not apologized and “granted permission” that the original figures would have had to stay down. This was a classic example of the chilling effect that comes from cease and desist letters. In other words, a classic example of the growth of copyright paranoia.

The law is actually on the blogger’s side on this issue. That blogger would have been well within rights to completely ignore the C&D to begin with because this was as fair use (as many people pointed out). Wiley would have then had to do a s.512 notice to the ISP (scienceblogs.com) which would also have been within its rights to ignore the notice. They could have then filed a 512(f) suit against Wiley for a bad faith s.512 notice, and EFF or any number of attorneys would have been delighted to take them on as pro bono clients, I’m certain.

My point: These incidents raise questions about the growth of copyright and whether copyright should be usefully applied to certain kinds of knowledge and how public investments in scientific research should be monitored. But they also raise simple questions of the abuse and misuse of copyright law — misuse which is illegal in some circumstances and can cost the misuser a lot of money.

I’d like to see in-house counsel advising their “junior staff” about the possible liability for misusing its copyrights. A few more high-profile cases might put that in their list of important topics to cover in their in-house trainings.

shaolin trademarks and copyright as generic for IP

In an SFgate story about conflicts between folks trying to take Shaolin practice in different directions, I spotted this:

In recent years, the main temple’s abbot, Shi YongXin, has tried to copyright the Shaolin name. He’s also been criticized for commercializing the faith. YongXin gave his approval to Ho’s venture in San Francisco.

Really? I thought. Tried to copyright the name? Surely they mean trademark …. A little googling found this China Daily article from a couple of years ago (2004/9/28). I quote in its entirety because virtually every single paragraph illustrates the wacky confusion:

Shaolin monks in hand-to-hand copyright battle
Updated: 2004-09-28 09:53

The monks of China’s Shaolin temple are not just good at kung fu but also increasingly agile at using copyright rules to protect their name from rip-offs, state media reported.

The 1,500 year-old temple, known as the cradle of China’s martial arts, recently set up the Henan Shaolin Temple Industrial Development Co., whose main purpose is to protect the temple’s intellectual property rights, Xinhua news agency said.

“Everyone just wants to make some profits from the name, totally regardless of the integral image of Shaolin Temple,” Shaolin abbot Shi Yongxin told the agency.

More than 1,000 brands containing “Shaolin” have been registered without the approval of the temple in the United States, Japan and Europe, Shi said.

Since its start, the new company has been engaged in feverish activity, registering nearly 100 Shaolin-related brands in China and has applied to register “Shaolin” brands in over 100 countries, Xinhua said.

A survey by the China Trademark and Patent Law Office found that many countries were competing to register their own trademarks of Shaolin or Shaolin temple, state media reported previously.

On the west coast of the United States alone, there are three Shaolin temples. In Europe, Shaolin temples can be found in Vienna and Budapest.

with a photo captioned:

A young monk of China’s Shaolin temple demonstrating his skills. The monks have increasingly been using copyright rules to protect their name from rip-offs. [AFP]

Further reading–it looks like this story has flurried every couple of years, 2002, 2004, 2006:
* The People’s Daily from 2002/9/25 had more information about the beginning of the trademark wars.
* The USA Today picked up the story around the same time.
* The BBC News on 2004/6/29
* 2004/6/2 a story at p2pnet.net
* Another 2006 piece from China Shaolin Temple itself gives their perspective.
* China Daily, 2006/10/19 had this insightful history:

Back in 1993, Shi Yongxin took a ham manufacturer to court for promoting the ham under the brand “Shaolin,” which he claimed constituted a trademark infringement. It was the first case on brand rights in China’s religious circles.

Recalling the lawsuit, Shi said, “a long time ago, communication and transportation were not as convenient as today, and products were circulated in a limited area, so trademark registration was not required. With globalization comes infringement. To protect the trademark, we have to register the brand ‘Shaolin.’ The registration is totally protective. ”

However, the Shaolin Temple brand is being taken advantage of by other businessmen. About 200 meters north of the temple, the local tourist bureau has built the Shaolin Temple Martial Arts School, and right across from that is a Zen institute that is backed by a salt company.

Many suspect such commercial aspirations will disturb the tranquility of the temple. Shi, however, believed such establishment is a result of the interplay between business and brand, likening Shaolin Temple to the American Disneyland, which is a brand as well as a business.

* Kung Fu Magazine had an interview with Shi Yongxin, Abbot of Shaolin temple:

GC: How is trademarking the name of Shaolin going?
Abbot: Recently, some businessmen and companies had been engaging in using the Shaolin name to further their product. This influenced the image of Shaolin culture in a negative way. Now Shaolin Temple is attending to this matter. Abuse of the Shaolin trademark will diminish the influence of Shaolin Temple and create misunderstandings of Shaolin in the public eye. Shaolin represents the best of traditional Chinese art in kung fu and Chan Buddhism. As we know, some products and services provided by these companies were outlawed by the rules of Buddhism. So we have begun to administrate the trademark of Shaolin, not for the sake of profit, just for the sake of preserving our culture and religion.

… This was an interesting search in its own right, but a couple of observations:
* You know, it’s not so easy to google for something + copyright, because every frickin’ thing on the Internet says “blah blah blah COPYRIGHT date by yadda yadda yadda”.
* This isn’t the first time I’ve noticed “copyright” being used synonymously for “intellectual property”. It’s as if the copyright trademark is itself being diluted.

* Every article has its own copyright date and they’re apparently being put in almost at random as part of website templates in some cases, the article in other cases, etc. For instance the 2002 USA Today article, which I found on 2007/4/29, had a “Copyright 2005 the Associated Press”. The Kung Fu Magazine article didn’t have a date on the article or on its copyright statement, but had an automatically generated “today’s date” in the header — so one might mistakenly read the article and think it was today. This is a problem for citations, of course, but it’s also a problem for orphan works issues in the far future. So if the dates on the works themselves are practically meaningless, then how is the future historian going to be able to tell when the 95-year corporate copyright term has expired? If we’re all relying on the overworked Internet Archive as our de facto copyright database then someone needs to give them like a bajillion dollars in a hurry so they can capture the whole Internet and do it every day.

lost licensing revenue & Google Print

I just got around to reading the weekend’s Washington Post Google Print editorials, pro (Mary Sue Coleman, UMich Pres) & con (Nick Taylor, Authors’ Guild). Short editorials, and I suppose the format limits their ability to go beyond rhetoric (“access to vast libraries of content” … “this is a socialist plot!”) into any actual legal or policy nuances. But I was particularly disappointed with Nick Taylor’s editorial, in a few ways. Taylor wisely doesn’t actually make any legal arguments. Instead, his editorial boils down to the complaint that Google Print is lost licensing revenue for publishers. It’s okay, that he makes that point, because that’s actually the publishers and Authors’ Guild’s real (and only) point. I just resent the rhetorical slurs that are used to pad the actual argument.

  1. Red-baiting? “It’s been tradition in this country to believe in property rights. When did we decide that socialism was the way to run the Internet?” Man. Best response: Peter Suber, at Open Access News, who said:

    Nick Taylor’s piece shows that he’s as clueless as I feared. First, he doesn’t understand what socialism is. Second and more important, he complains that the Google project will deprive him of revenue but doesn’t offer a single reason to think so.

  2. Taylor uses socialism as a slur in one breath, and in the next apparently would like to see — what? a government panel passing over each and every use of a copyrighted work?

    Google contends that the portions of books it will make available to searchers amount to “fair use,” the provision under copyright that allows limited use of protected works without seeking permission. That makes a private company, which is profiting from the access it provides, the arbiter of a legal concept it has no right to interpret.

    <shaking my head in disbelief> What? A user has no “right to interpret” fair use? Okay, but I think that government bureaucracy’s gonna be pretty large when every teacher, every forwarded email, every reviewer, every parodist, every sampler, every quoter, and so on, and so on, has to file permission slips with the “arbiters” of “fair use”.

    Once again, if Google Print goes forward, that doesn’t mean that Google Print will be the only big database, and it doesn’t mean that Google is now the arbiter of, well, anything other than its own sweat-of-the-brow compilation of data (the words used in books and the order in which they are used).1

As for the actual argument, yeah, there’s lost licensing revenue. Every use of a work, including every fair use, involves potential licensing revenue.2 That, alone, won’t win their case. But I suppose they think red-baiting and appeals to public sympathy for starving artists (not exactly a coherent set of positions) can only help.


Footnote Meanderings

1. The total number of words, the presence of particular words, and the arrangement of those words in a work are, among other things, facts about the work. So are the author, the title, chapter titles, publication date, etc. Creation of an index to a work or multiple works includes gathering facts about the works. Conceptually, it’s quite distinct from the activities the Copyright Act is aimed at: copying and distributing works are clearly aimed at competitive copying, what used to be termed “piracy”. The copy(ies) that Google makes in the course of its scanning and indexing are technical copies, like RAM copies, and that would be an unpleasant route for courts to try to follow. (Although they have in the past; see, e.g., MP3.com, 92 F.Supp.2d 349 (SDNY 2000).)

The Google Print distributions are small pieces of the text, not easily framed with all the other pieces of that text, but instead contextualized with small pieces of other texts that match the search terms. Again, this isn’t the sort of competitive distribution which leaps easily to mind when one thinks of the exclusive right to distribute a work. [Note: this is true for Google Google Print Library program for copyrighted books, not the Google Print Publishers program, or Google Print for public domain works. I’ve seen several articles, like this one, that conflate or obfuscate the different programs.]

The derivative works right is aimed at translations, movie scripts, and the like. Again, not quite the right fit. I know some people will argue that an index is a derivative work, but treating derivative works in this way skirts too close to any and all fair uses. The caselaw shows this kind of interpretation, which is why the derivative works right is the most troubling of the exclusive rights, but I’m going to steer clear of that morass of a discussion for purposes of this footnote.

Performance and display are also aimed, obviously, at specific actions. Oddly, I think performance might be the best fit for Google’s use, in some kind of wierd philosophical way. A performance enacts a work, simultaneously interpreting it and creating the possibility of interaction with the audience. Interpretative performance necessarily demands recourse to information about the work, as well as the work itself. An index is also centrally about user interactivity, in a way that mere consumption of the text work is not. An index, then, performs the work, interpreting it by recourse to information beyond the text itself (for instance, bibliographic data; retail or location data; or the meta-structures of the work’s organization, in paragraphs, sections, chapters, parts, pages) and opening it to dialog with the audience.

Ahem. Or not. I confess to some recent exposure to critical continental literary queer performative prepoststructuralist theory stuff.

2. Hell, you could sell a copy of a book with a separate shrinkwrapped license that charges a new fee for each and every individual use. (I think Adobe may already have a patent for that method of doing business, though.)

no play for fan play

San Francisco’s counterPULSE Theater got a cease-and-desist from Fox TV demanding they cancel their sold-out live action performance of “Once More, With Feeling” (the Buffy musical).

According to SFist, Buffy creator Joss Whedon said he had no objection to the staging of the show.

[link from whedonesque]

copyrighted tattoos?

WebIndia has a report about a fight between a tattoo artist and a tattoo recipient. (I found it odd that it was listed in the sports page until I thought, hmm, maybe Beckham is some sort of athlete; then I remembered the soccer flick “Bend It Like Beckham” and suddenly the title made sense, and a search of wikipedia confirmed that indeed David Beckham is indeed the exact sort of athlete that would inspire youthful admiration.)

See also bella online, teen hollywood.com and contactmusic.com. A number of US-written articles seem a bit confused (or maybe they’re confusing me): in a situation involving a UK football star, and a UK tattoo artist, and where the inkwork presumably occurred in the UK — one wonders why bella online and defenestrate are citing to and discussing US law?

Civil Rights Leader Calls for Copyright Civil Disobedience

“I would call upon everyone who has access to ‘Eyes on the Prize’ to openly violate any and all laws regarding its showing,” says civil rights leader Lawrence Guyot, who led the Mississippi Freedom Democratic Party and today is a program manager for the D.C. Department of Human Services.

from daily kos 1/17; and see also wired 12/22 and on the commons 1/18 and Toronto Globe & Mail 1/17.