oclc will take member feedback on catalog records policy change

OCLC will take member feedback on its recent proposed change in licensing terms on cataloging records. See OCLC’s press release from yesterday, “OCLC Board of Trustees and Members Council to convene Review Board of Shared Data Creation and Stewardship.” link from librarythingtim

yaay.

update 2009/1/15: Salon on OCLC at Radical Reference, Friday, Jan. 23, 8 pm, at ABC No Rio, 156 Rivington St., Manhattan.

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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

i heart new york

New York’s state tourism board is seeking to reclaim their “I heart NY” slogan. (link from michele) According to the article, the slogan was developed for them pro bono by graphic designer Milton Glaser in the early 1970s. It was used prolifically as a mark; then they let their registration lapse and stopped policing it; and then everybody and their sister started selling products with “I heart NY” on them. Over the last few years the tourism board (“Empire State Development”) realized the “error” (read: revenue stupidity) of their non-policing ways so they renewed their registration and began policing the mark.

How did they begin? By threatening to sue Mr. Glaser (the original graphic designer, remember, who donated the logo pro bono), who had, after 9/11, designed an “I heart NY More Than Ever” logo. He was naturally outraged.

random aside: My browser (Firefox 2.0/Mac 10.5) displayed the “heart” ♥ on the browser bar (generated by the title tag) but on the headline text itself and throughout the rest of the body of the article, I saw only a junk ascii character. Looking at the source, they used ♥ in both the title and throughout the body. No problem with display (either of the NYT article or this post) in Safari. Apparently, this is some kind of Firefox rendering problem. Hmm.

… Anyway, just a note on terminology. Here again we have people talking about “fakes”, which is the accepted jargon within trademark circles for unlicensed products. Note, however, that they’re not “fake” in any way that ordinary people would understand fake: It’s not like the t-shirt or mouse pad or bumper sticker is not really a t-shirt or mouse pad or bumper sticker. “Fake” means “unauthorized” — that the NY tourism board didn’t license the use of their registered mark to the t-shirt, mouse pad, or bumper sticker maker.

Well, “unlicensed” or “unauthorized” might arguably be serious when people are actually paying good money for the brand. Traditionally marks are meant to help consumers identify the source of a good or service, so that they can choose to pay top dollar for goods and services with good reputations for high quality. Quality might be quality of components — well-made, true cotton and not poly-blend, etc. Or it might be more money than the bare physical elements of the product are worth, for instance, as in paying top dollar for a Gucci purse. Here we’re getting into more ephemeral attributes and qualities: quality of design, maybe, and of course “authenticity”.

But how does that apply to “I heart NY”? Slogans can be marks; you can associate a slogan with a particular good or service. “I can’t believe it’s not butter.”

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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

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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“Expelled” music licensed or not?

Josh Timonen wrote a detailed synopsis of the movie “Expelled”, the creationist film that tries to argue that creationist views are “unfairly” excluded from the academy.

What piqued my interest about this particular post (there have been hundreds by now about how bad the movie is, the deceptiveness of the filmmakers, P.Z. Myers’ being prevented from attending, the NCSE’s excellent “Expelled, Exposed” website, and so on) was that Timonen noted the proliferation of popular commercial music, including John Lennon’s “Imagine”, and a song from “The Killers”; maybe others. Timonen says:

Either Expelled has a disproportionately-large music budget (for how bad of a film it is), or they are using songs they haven’t paid for in their Director’s Cut private screenings (that may be changed before the official nationwide release). John Lennon’s “Imagine” is played (original version) over B&W scenes of what looked like communist China, with a parade of soldiers. The lyrics to the song were subtitled on the bottom of the screen. I think I remember a shot of Stalin saluting somewhere in here as well. The part of the song played was of course “…and no religion too…”, implying that no religion equals communist China. Does Yoko know about this? I doubt she’d be pleased.

The excellent “Mad Hot Ballroom Dancing” got dinged for a lot of money for a lot less music use than this. Could the Expelled filmmakers really not have known they needed to license music? Did they have a giant music budget? Are they relying on fair use? Maybe one could make a fair use case for using “Imagine” to illustrate communist China, although it seems a bit of a stretch to me since the point of the film isn’t China or John Lennon, or even atheism per se.

I’ll be interested to see what happens when it’s officially released. Same music? And what’s the story with the licensing? Does Yoko Ono not control the Lennon estate? Would she really license the music for that purpose? Questions, questions.

Supposedly, the film also includes animations of cellular functions. There have been lots of such animations made in the last few years. P.Z. Myers of Pharyngula described one such animation out of Harvard and XVIVO being edited and used without in creationist lecture tours. What’s the licensing on these, I wonder? Studio Daily describes the animation process and says they can’t provide it, because it belongs to Harvard & XVIVO; there’s a version at Harvard’s MCB website. These were funded by the HHMI and the licensing notes the copyright to Robert Lue & Alain Viel, Harvard University, and says “For educational use only. The use, duplication, or distribution of this material for any commercial purpose is strictly prohibited.” Well, creationist lectures are arguably “educational”, at least in the broadest possible sense, but editing it to create a derivative work — that seems a bit different.

Elsevier’s environmentally-unfriendly licenses

Why does Elsevier hate the environment and all the trees and all the little children who will be living in a world 50 years from now harmed by Elsevier’s really stupid insistence that its electronic documents be PRINTED and then SCANNED IN before being sent out for ILL ????

Seriously, faculty should really reconsider submitting to Elsevier journals. What a waste of human effort as well as trees.

Open Access News has the rest of the scoop. Although this isn’t new news, it seems like an opportune moment to bring it to people’s attention.

See also digital koans.

Johnson & Johnson sues the Red Cross

give it up already. we all know that the red cross means the Red Cross.

It’ll be interesting to see a major company actually litigate such a completely jury-unfriendly case. It will also be interesting to see if how licenses for intellectual “property” survive when the property — in this case, consumer identification of a mark — no longer exists. Or, at least, when consumer identification of the mark is much stronger with the “licensee” than the “licensor”.

good news in SCO case

The District Court of Utah has issued a decision and order finding that SCO does not own parts of Linux (D.Utah 2007/8/10). The lengthy litigation (funded in part with Microsoft’s investments in SCO) was the only serious shadow hanging over Linux, although the claims seemed bogus when examined closely. (I also liked this chart that geekly picked over the possible harms to linux.) It’s good to see Judge Dale Kimball come to the same conclusion.

The D. Court of Utah website was down yesterday and for some reason has labeled all SCO filings and orders as available only through PACER (a fee-based access service to public court filings). However, groklaw posted the decision.

royalties & licensing, mapped

A friend just pointed me to two global maps of exports of royalties & licensing fees and imports of same.

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.)

divine licensing: god and the gang of four

Two great tastes that taste great together.

Many “Daily Show” fans (well, okay, me) have been concerned about the future of “This Week in God” now that Stephen Colbert is leaving “The Daily Show” for his own spinoff. Today’s NYT (10/12) explains that the segment is going to stay, but with a new correspondent — apparently, because of divine licensing:

“God has an exclusive licensing agreement with ‘The Daily Show,’ ” Mr. Colbert said. “We’re trying to get the Devil for our show.”

In completely unrelated entertainment news, Slate informs us (10/5) that the Gang of Four is covering their own songs on what is effectively a tribute album by the Gang of Four, in tribute to the Gang of Four. (Hey, I think they’re worth it.) Go4 was a little less happy with their licensing arrangement than God, apparently:

A sraightforward repackaging of the old recordings, such as a compilation or box set, would only serve to enrich EMI, their original record company in the United Kingdom. And that’s something Gang of Four didn’t want to happen. “We have never made any money at all from record sales with EMI and still have unrecouped advances,” King wrote in an e-mail. “So we didn’t want them to benefit as they did nothing to support us.” As for their original American record company, Warner Bros., King claims that they deleted Entertainment!—easily one of the 50 most powerful and influential rock albums of all time—in 1993 and only rereleased it in 2005 in response to Gang of Four’s having become a fashionable reference point. Rerecording the songs—something that contracts typically allow artists to do after 20 years—puts Gang of Four in a strong bargaining position for negotiating a new deal with superior royalty rates. “It is our way of reasserting ownership of our own material,” says King.

covers & licenses to cover

Slate just ran an article on cover albums (“Copycats – The cover album makes a comeback” by Franklin Bruno, 2005/6/23), which is interesting timing considering that the Register of Copyrights has proposed to eliminate the compulsory cover license. [Lessig covers (ahem) the issue and responds to commentary from Importance of Being Ernest and Joe Gratz].